Family law exam notes
Divorce
Professional conduct:
Family solicitors owe duties to their clients:
Para 6.2 conflict of interest – cannot act for both parties no matter how amicable their
separation due to a conflict of interest.
Para 6.3 duty of confidentiality – for example if solicitor has previously acting for both
husband and wife in a transaction and now one of them wants the solicitor to represent
them in the divorce, the solicitor must ensure they don’t have any confidential
information about the other party where they would have to decline to act for the other.
Exceptional circumstances where duty of confidentiality can be disclosed – risk of child
safety.
‘Unbundling’ = providing a limited retainer (carrying out selected parts of a client’s case).
The Law Society ‘Unbundling civil legal services’ identified some risks of unbundling – 1.
allegations of professional negligence arising from insufficient knowledge of the client's
situation, 2. allegations of professional misconduct in relation to client care and duties to
the court and third parties, 3. failing to explain to the client the extent and limitations of
the unbundled services being offered, 4. unwittingly creating a full retainer and the
consequent liabilities, 5. compliance with professional indemnity insurance terms, 6.
dealing with complaints. In Minkin v Lesley Landsberg --- court stressed importance of
clarity and said that as a matter of good practice, any limitations placed on a retainer
should be confirmed from the solicitor to the client in writing.
Funding and process options
Legal aid not been available for most family cases since the Legal Aid, Sentencing and
Punishment of Offenders Act 2012. Unless, case of the type specified under LASPO 2012 –
public law children proceedings, obtaining protective injunctions, cases with children under
18 is applicant, respondent or joined as party to proceedings, securing an order to prevent
the unlawful removal of a child from the UK, domestic violence.
Legal help: Initial advise and only very limited steps following on from that advice eg writing
a letter. On divorce, covers all steps taken on the divorce. To be financially eligible must come
within financial limits for both capital and income. Receive welfare benefits automatically
qualify on income grounds. Capital limit is £8,000.
Family help (Lower): work done by the solicitor up to, but not including, the issue of
proceedings. Advise client, draft documentation, write correspondence, negotiate and/or
support client through mediation. NOT AVAILABLE FOR DIVORCE.
Family help (higher): justified only where LAA is satisfied that it is necessary to litigate or
proceedings are already under way, and all reasonable alternatives to litigation have been
exhausted.
Legal representation: preparation for and representation at the final hearing.
Deferred payment of legal fees: Sears Tooth agreement – Where the client assigns any award
for financial relief so far as is necessary to pay fees, to the solicitor. Eg acted for wife in
financial proceedings, wife agreed to assign any award for financial relief (other than for
maintenance) or costs to them as far as was necessary to pay their fees.
Court orders: court can order one party to contribute to another party’s legal fees. S22ZA
MCA 1973 enables court to make legal services order requiring one party to pay an amount
for the purposes of enabling the other party to obtain legal services.
Loan: bank/borrowing.
Unbundling: instructing solicitors to deal only with discrete elements of the case.
, CFA – not available in family proceedings (s58 and s58A CLSA 1990).
Dispute Resolution
P20/chapter 2.
Family Procedure Rules 2010 placed emphasis on DR in family cases. Part 3 court’s powers to
encourage use of DR.
Reaching an agreement between yourselves:
Advantages – cheaper, may be easy if both want same things, communicate well with
each other, trust each other, want same things for children. Parties have total control
over process.
- Disadvantages – Parties lack legal support, Requires confidence/ability to negotiate.
Solicitor negotiations: consensual resolution. Offers to reach settlement. ‘Round table meetings’
where in same buildings solicitors negotiate face to face and take time out to take instructions from
their client.
Advantages – find the best way to solve things for the whole family, approaching issues
constructively could cost less, negotiation may be better and long-lasting solutions, can
be used along other processes such as mediation, supported through the negotiation
process. Confidential settlement.
- Disadvantages – costs of lawyer. No guaranteed outcome. Only work if parties want to
resolve their differences in good faith.
Mediation: engage assistance of mediator, help to resolve disputes and deal with consequences of
relationship breakdown. Must first attend MIAM (s10 Children and Families Act 2014).
Advantages – focus on issues the parties can’t agree on to try to reach an agreement,
neutral and cannot take sides, reach practical solutions for the whole family including
children, only when both parties happy with outcome will lawyer’s turn it into a legally
binding agreement. Parties can control the process. Relatively cheap- parties share the
costs.
- Disadvantages – costs of mediator especially if lasts a few days. Mediator cannot give advice.
No guaranteed outcome. Outcome is not binding. Unlikely to be appropriate for certain
clients eg victims of DA.
Collaborative law/practice: series of meetings aimed at enabling parties to resolve the issues and
parties and their solicitors to sign up to a participation agreement promising to try to reach an
amicable consensus on all issues without recourse to court proceedings. each person appoints their
own collaboratively trained lawyer and you and your respective lawyers all meet together to work
things out face to face. Both of you will have your lawyer by your side throughout the process and so
you will have their support and legal advice as you go.
Advantages – helps to reach agreements on finances and children. Can be around
family’s individual timetable and priorities. Reduce legal costs of court in issues where
still need their lawyers. May be more successful in long term as reached negotiations
together rather than having this imposed on them by the court. Team of experts. Legal
advice in the room. Conducted in open and transparent manner.
- Disadvantages – Must work together and trust each other, must compromise, not the
cheapest option for divorce. Requires high level of trust and cooperation. Risk of no
agreement being reached.
Early neutral evaluation: parties jointly appoint an evaluator who will give their opinion on the likely
outcome of the case were it to go to court.
Advantages – can help narrow issues between parties. Allows parties to become more
realistic about their legal position.
Disadvantages – not binding, can be ignored by parties. Could be waste of time/costs.
Arbitration: P’s agree to put the matter before an independent 3 rd P who will consider the dispute
and make a decision for them. Binding. Resolve a case in its entirety or decide on discrete issues.
, Advantages – decision final and binding. Quicker than court, confidential. Flexible. Less
formal. More cost effective than court. Parties have high degree of control in process.
- Disadvantages – final and binding decisions may not be beneficial if party does not agree to
decision. Not suitable in situations where 3 rd party evidence is needed or if risk that partner
may try to hide assets.
Going to court:
Advantages – client may feel they have ‘had their day in court’, only choice after
everything else, decisions can be appealed. Binding outcome. Evidence can be tested.
- Disadvantages – trials open to public so not confidential, costly, effect on family after trial,
will not solve and come to amicable solutions (confrontational).
Which process options to use?
1. One party lying about how much they earn and hiding assets:
o Court only process which allows ability to test evidence. Issue proceedings
immediately to obtain court order to prevent spouse dissipating assets.
2. Argument over the children’s arrangements, not speaking to each other:
o Child inclusive mediation to give children a voice in the process. But, mediation
requires both parties to engage and a degree of cooperation.
o If parties cannot reach decision themselves, someone else will have to do it for
them. Arbitration or court proceedings. Arbitration more preferable as quicker and
cheaper, to restore previously good relationships.
3. Mediation has failed in deciding how to split assets, which other options to use:
o solicitor negotiation – round table meeting involving the 2 parties, as they are able to
communicate.
o As the parties have already shown themselves amenable to the mediation process,
hybrid-mediation is a possibility which would give the benefit of immediate legal
advice and confidential discussions with the mediator.
Divorce Dissolution and Separation Act 2020
Reformed the law on divorce embedded in the MCA 1973.
Heavy scrutiny of the previous law.
Owens v Owens --- Lady Hale regarded this as a “very troubling case”, where “referring to
‘unreasonable behaviour’ can also lead to a search for who is the more to blame”.
The new act – remove any need for there to be findings of wrongdoing against one party and thereby
reduce the potential for argument and acrimony.
The law pre- 6 April 2022: that the marriage had broken down irretrievably and one of the 5 factors
were present - adultery, behaviour, desertion, two years separation with consent, five-year
separation.
One year rule
S3 MCA 1973: an application for divorce cannot be filed at court before the end of a period of one
year from the date of the marriage.
Jurisdiction
When Q in exam on jurisdiction, apply the 8 grounds (a-g) of s5(2) DMP to the facts to see which
ones apply. EXAM TIP
S5(2) Domicile and Matrimonial Proceedings Act 1973, courts of England and Wales have jurisdiction
to entertain proceedings for divorce only where on the date of the application:
(a) Both parties to the marriage are habitually resident in the England and Wales.
(b) Both parties to the marriage were last habitually resident in E&W and one of them continues
to reside there.
, (c) The respondent is habitually resident in E&W.
(ca) in a joint application only, either of the parties to the marriage is habitually resident in E&W.
(d) The applicant is habitually resident in E&W and has resided there for at least 6 months
immediately before the application was made.
(e) The applicant is domiciled and habitually resident in E&W and has resided there for at least 6
months immediately before the application was made.
(f) Both parties to the marriage are domiciled in E&W.
(g) Either of the P’s to the marriage is domiciled in E&W.
Habitual residence:
Z v Z – Ryder J: ‘a centre of interests may be established quickly or slowly, depending on the
circumstances. Habitual residence in one country may not be lost despite a lengthy period in
another… there is no requirement that the centre of interests has to be permanent, it only need to
be habitual. But it must have a stable character’.
Domicile:
- If an individual has there permanent home in a country.
Domicile of origin – acquires this at birth. It is never lost.
- Parents who are married: the child’s domicile will be the same as the father's.
- Parents who are unmarried: the child’s domicile will be the same as the mother’s.
Domicile of choice – aged over 16, residence in a country other than domicile of origin and an
intention to remain there permanently or indefinitely. Eg becoming a citizen, purchase of home,
length of time spent there.
Domicile of dependence – A child can acquire an independent domicile only at 16 years of age, or on
marriage under that age. If he is under 16 years old and unmarried, his domicile will follow his
father’s domicile if his parents are married, or his mother’s if his parents are not married. If married
parents separate, the child will acquire the domicile of the parent with whom he lives.
Choice to jurisdiction – appropriate forum and how to choose this
Client needs to act quickly, want the best jurisdiction for client rather than being forced into
jurisdiction by their ex-spouse if they issue first and make the decision. Under Brussels II
Revised, the court of the state “first seised” of the divorce gains exclusive jurisdiction of the
proceedings.
Instruct a family solicitor in the other jurisdiction and check if they agree to the choice of
forum. Check if there is a choice of forum to avoid disputes and what the law is in the other
jurisdiction before we can advise on the choice, eg financial orders, issues in law procedure
and forum, any material difference to E&W.
Need to know what law the court in the other jurisdiction would apply.
