Consider at the first interview: • s.1(5) MCA 1973 The applicant(s) must give confirmation before
1. Client details the end of a 20-week period from the start of proceedings.
2. Client’s story and objectives • FPR 2.9 Count clear days: 20 weeks + 1 day
3. Screening for issues – eg. domestic abuse
4. Signpost client to ADR Stage 2 – Final order:
5. Funding options • s.1(4)(b) MCA 1973 Within 6 weeks from the conditional order,
the parties/sole applicant can apply for the court to turn it into
a final divorce order.
DIVORCE AND DISSOLUTION • The court must wait for 6 weeks from the conditional order to
make the final order.
DIVORCE PROCEDURE: • s.1(6)-(7) MCA 1973 The Lord Chancellor may amend these time
frames but the whole process cannot exceed 26 weeks.
Exam structure – divorce: • FPR 2.9 Count clear days: 6 weeks + 1 day
1. Length of marriage • Application is dealt with on paper and the final order is granted
2. Jurisdiction and copies sent to both parties.
3. Grounds for divorce • Once the final order has been granted that the marriage is over
4. Procedure for divorce and parties are free to re-marry.
5. Conclude
Length of marriage:
DISSOLUTION PROCEDURE FOR CIVIL PARTNERSHIPS:
s.3(1) MCA 1973 The parties must have been married for at least 1 Exam structure – civil partnership:
year to issue proceedings as any other applications will be barred. 1. Length of civil partnership
2. Jurisdiction
Set out the length of marriage and see if it satisfies the criteria. 3. Grounds for divorce
4. Procedure for divorce
Jurisdiction: 5. Conclude
s.5(2) Domicile and Matrimonial Proceedings Act 1973 The most Length of civil partnership:
suitable jurisdiction for the proceedings should be England and Wales. s.41 CPA 2004 The parties must have been civil partners for at least 1
The English court will have jurisdiction if: year to issue proceedings as any other applications will be barred.
– Both parties are habitually resident or domiciled in England/
Wales Set out the length of civil partnership and see if it satisfies the criteria.
– Either party is domiciled in England/Wales
– The respondent is habitually resident in England/Wales Jurisdiction:
– The applicant has been habitually resident in England/Wales for
1 year immediately before the application. s.5(2) Domicile and Matrimonial Proceedings Act 1973 The most
suitable jurisdiction for the proceedings should be England and Wales.
If so, they can commence proceedings in the UK. The English court will have jurisdiction if:
– Both parties are habitually resident or domiciled in England/
Grounds for divorce: Wales
– Either party is domiciled in England/Wales
s.1(1) Matrimonial Causes Act 1973 One/both parties to the marriage – The respondent is habitually resident in England/Wales
can apply to the court for a divorce order on the ground that the – The applicant has been habitually resident in England/Wales for
marriage has broken down irretrievably. – there is only this one ground 1 year immediately before the application.
and no need for any of the previously used 5 facts to prove this ground.
s.1(2) MCA 1973 An application must be accompanied by a statement If so, they can commence proceedings in the UK.
of irretrievable breakdown. Grounds for dissolution:
s.1(3) MCA 1973 The court dealing with the application must take this s.3-4 Divorce, Dissolution and Separation Act 2020 s.44 of CPA 2004 is
statement as conclusive evidence that the marriage has broken down amended and a new s.37A CPA 2004 is inserted.
irretrievably.
Procedure for divorce: s.44(1) Civil Partnership Act 2004 One/both civil partners may apply to
for a dissolution order which will dissolve the civil partnership on the
Before commencing proceedings: ground that it has broken down irretrievably.
• If sole Applicant: notify Respondent before sending off the s.44(1A) CPA 2004 An application must be accompanied by a statement
application to maintain a cooperative relationship. of irretrievable breakdown.
• Applicant must send the court: s.44(4) CPA 2004 The court dealing with the application must take this
– The completed court application form
– Including statement of irretrievable breakdown statement as conclusive evidence that the civil partnership has broken
– Court fee down irretrievably.
Procedure for dissolution:
• Financial Dispute Resolution Appointment:
Rule 9.15(7)(b) and 9.14(5)(d) Family Procedure Rules 2010 s.4(3) DDSA 2020 Procedure is set out.
Court may treat a first appointment as a Financial Dispute
Resolution Appointment (FDRA) if the parties submitting the Before commencing proceedings:
application docs state in the notice that they are in a position to • If sole Applicant: notify Respondent before sending off the
make their first appointment an FDRA. application to maintain a cooperative relationship.
FPR 9.17(1) and (6) FDRA = Dispute resolution meeting where • Applicant must send the court:
parties try to reach an agreement. – The completed court application form
– Including statement of irretrievable breakdown
Once issued: – Court fee
• If sole Applicant: once issued, serve on the other party:
– Docs sent to court • Financial Dispute Resolution Appointment:
– Blank acknowledgement of service for them to fill in FPR 9.15(7)(b) 9.14(5)(d) Court may treat first appointments as
– Notice of proceedings received from Court (this will a Financial Dispute Resolution Appointment (FDRA) if the
explain the procedure and next steps) parties submitting the application docs state in the notice that
they are in a position to make their first appointment an FDRA.
Stage 1 – Conditional order:
• s.1(4)(a) MCA 1973 Court in the first instance will make a FPR 9.17(1) and (6) FDRA = Dispute resolution meeting where
conditional order and send a copy to each party. parties try to reach an agreement.
• s.1(5)(a)-(b) MCA 1973 Court will not make a conditional order
unless the applicant(s) confirm that they wish the application to
continue.
Family law – Revision notes | Page 1 of 19
,Once issued: Mediation:
• If sole Applicant: once issued, serve on the other party: A process in which couples cab decide for themselves what to do about
– Docs sent to court their children and finances with the help of an impartial mediator.
– Blank acknowledgement of service for them to fill in
– Notice of proceedings received from Court (this will Matters most suited to this type of dispute resolution?
explain the procedure and next steps) * Cases involving children as mediation is child-focused and
enabled children of a suitable age to meet with the mediator
Stage 1 – Conditional order: and express their feelings
• s.37A(1)(a) CPA 2004 Court in the first instance will make a * Financial cases since any agreement becomes legally binding
conditional order and send a copy to each party. once it has been made into a Consent Order
• s.37A(2) CPA 2004 Court will not make a conditional order
unless the applicant(s) confirm that they wish the application to Not appropriate for: domestic abuse cases/harm to a child
continue.
• s.37A(2) CPA 2004 The applicant(s) must give confirmation Pros Cons
before the end of a 20-week period from the start of
proceedings (the second prescribed period). * Process is confidential so * Voluntary process so nobody can
• FPR 2.9 Count clear days: 20 weeks + 1 day parties can explore their be forced to mediate
options without prejudice * Mediation only works if both
Stage 2 – Final order: * Mediator is impartial and will parties are fully engaging with it.
not take sides
• s.37A(1)(b) CPA 2004 Within 6 weeks from the conditional * Clients are in charge of the
order, the parties/sole applicant can apply for the court to turn outcome
it into a final order (the first prescribed period). * Costs less than half the price
• The court must wait for 6 weeks from the conditional order to and takes half the time of
make the final order. going to court
• s.37A(4) CPA 2004 The Lord Chancellor may amend the two * Ensures better results for
prescribed periods but the whole process cannot exceed 26 families
weeks.
• FPR 2.9 Count clear days: 6 weeks + 1 day Solicitor negotiations:
• Application is dealt with on paper and the final order is granted Solicitors from both sides negotiate → offers clients a process where
and copies sent to both parties. they do not have to be in the same room as their ex-partner.
• Once the final order has been granted that the marriage is over
and parties are free to re-marry. Matters most suited to this type of dispute resolution?
Most cases
IMPACT OF THE DDSA 2020:
Pros Cons
The DDSA 2020 changed the law on divorce:
1. Removed the possibility of one party contesting the application * This is the default option * Costs dependent on both length
2. Made the terminology simpler and accessible for laypersons – especially where one party and breadth of negotiations
Decree nisi is not called a conditional order and decree absolute refuses to engage in other * Tends to be more expensive than
is now a final order. alternative processes or where mediation since increased
a mediation has broken down involvement of solicitors
3. It removed the requirement to establish one of five facts and * Clients do not have to be in the
same room
allows for a joint application: * Between parties face-to-face
– Application must be accompanied by a statement by the or solicitor’s correspondence
applicant that the marriage or CP has broken down
irretrievably
– Statement will be taken as conclusive evidence Collaborative Law:
– No need for any facts to prove this ground Couples can focus on child-centered issues in a supported environment.
– Removes issue of fault from divorce/dissolution process Process involves both parties and respective solicitors signing up at the
start of the process to an agreement.
4. Introduced new timeframes:
– Old rules: applicant could apply for decree nisi/ Matters most suited to this type of dispute resolution?
conditional order once the R has acknowledged service. Most cases
– New rules: court will not make a conditional order until
at least 20 weeks after the start of the proceedings. Not appropriate for: domestic abuse cases/cases with lack of trust and
– Minimum period between the conditional order being communication between the parties.
granted and the applicant(s) being able to apply for a
final order = 6 weeks and 1 day Pros Cons
– Mandatory cooling off period of 20 weeks between the
commencement of proceedings and the applicant(s) * It is agreed that if the process * More expensive process given
being able to apply for a conditional order breaks down, both parties are the involvement of both parties’
– Minimum time from applying for the divorce to required to instruct new solicitors at all of the 4 way
obtaining the final order is 26 weeks. solicitors – strong incentive for meetings
everyone to strive towards
agreement and resolution
TYPES OF NON-COURT DISPUTE RESOLUTION: * Abiding threats are removed
* Collaborative process – similar
Arbitration: benefits to mediation
Parties appoint an arbitrator to decide the case and provide them with * Confidentiality
a binding decision. * Withdrawal by solicitor if party
is withholding information –
forces transparency
Matters most suited to this type of dispute resolution? * Concluded quicker than
Suits complicated financial cases in need of swift resolution. conventional discussions or
court
Not appropriate for: simple cases
Pros Cons
* Most similar to the court * Most expensive option
process and offers clients an
alternative to relying on a court
system that is at full capacity
and beset by delays
* Bespoke, straightforward
process
* Family dispute can be resolved
quickly and privately
* Parties select their own tribunal
* Final arbitral award is binding
on both parties with more
limited scope for appeal
Family law – Revision notes | Page 2 of 19
, CHILDREN – PRIVATE LAW When does PR end?
Parents – automatic PR: PR ends when child is 18/adopted/parent dies.
Parental rights and responsibilities: Unmarried father/stepfather/other woman: court can end PR any time.
* Decision-making regarding the child’s daily routine – eg. their Not parent but acquired PR after CAO: PR will last as long as the CAO.
diet and what time they go to bed.
* In relation to day-to-day decisions, each parent can exercise s.10(4) CA 1989 Who can apply for s.8 order?
parental responsibility independently • Parents
* For significant decisions, the consent of both parties with • Stepparents with PR
parental responsibility will be required – eg. name and name • Anyone with “lives with CAO” in force.
change, child’s schooling, religion, medical treatment.
s.10(5) CA 1989 Who can apply for a CAO:
• Any party to a marriage/CP in relation to whom the child is a
S.8 ORDERS: child of the family.
• Anyone with whom the child has lived for 3 years (not beginning
Exam structure – s.8 orders: more than 5 years before and not ceasing more than 3 months
1. How to commence proceedings before the application)
2. Who has parental responsibility
3. Types of orders that party wants to apply for and whether • Anyone with the consent of:
they meet the requirements – Everyone with “lives with CAO” in force
4. Duration of s.8 orders – Local Authority (LA) if child is in its care
5. Welfare checklist OR
6. Conclude – In any other case, those who have PR for the child
Commencing proceedings: s.10(1) CA 1989 Anyone else applying for a s.8 order must apply for court
permission first.
The applicant should first negotiate with the other parent by sending s.10(8) CA 1989 A child can apply for a s.8 order on their own behalf –
out a solicitor’s letter to this effect. court grants permission if the child has sufficient understanding to make
the application.
FPR 3.6 12 BPD 5.3 If this is unsuccessful, then the parties must attend
a MIAM before making an application. Types of orders:
MIAM exemption: Child arrangements orders (CAO):
* Evidence of domestic abuse
* Child protection concerns “Lives with” CAO:
* Matter is urgent as there is a risk to life/limb/liberty/physical
safety, risk of harm to the child/child abduction. If parties cannot agree which parent the child should live with post-
separation one of them can apply for “lives with” order.
If attended MIAM without success of falls within an exemption, then Court may grant a “lives with” order in favour of both parents. – more
the applicant can go ahead with an application. likely if the child has historically spent substantial time with both.
Division of time need not be equal.
Who has parental responsibility (PR):
Relocation with children:
State who the applicant is and see whether they have/can obtain PR.
s.13(1)(b) CA 1989 s.1(1) Child Abduction Act 1984 No one can remove
Mother: a child from the UK without written consent from everyone with
s.2(1) and s.2(2)(a) CA 1989 Automatic PR. PR/leave of the court.
Father: Exception: s.13(2) CA 1989
s.2(1) CA 1989 Automatic PR only if married to the child’s mother when Person with PR or “Lives with CAO” may remove the child for less than 1
the child is born. month without the consent of the other parties with PR. – short holidays.
If not married to the mother, father can acquire PR by: Parent wanting to remove child from the jurisdiction should apply to
1. Being named as the father on the child’s birth certificate – the court for permission.
s.4(1)(a) CA 1989
2. Entering into PR agreement with mother – s.4(1)(b) Consider factors:
3. Applying for a court order – s.4(1)(c) * Impact of relocation on the parent left behind if granted.
4. Marrying the mother – s.2(3) * Impact on applicant if the application is refused.
5. Being appointed the child’s guardian (but appointment will take * Motives of both parents – are motives child-focused?
effect on mother’s death only) – s.5(6) * Proposals of the applicant – plans for a home, child’s schooling,
job, how will the other parent contact the child. Is this a going
6. Obtaining a child arrangement order (CAO) home (to country of origin) or moving away case? Less likely to
s.12(1) If father obtains a “lives with CAO”: court must also make allow if parent and children have no connection to the country
a PR order if father has no PR. they are moving to.
s.12(1A) If father obtains a “spends time with CAO”: court may
make an order granting the father PR. Change of surname:
Re H (Minors) (LA: Parental Rights) (No3) [1991] Consider factors: s.13(1)(a) CA 1989 If there is a ‘lives with’ CAO, no person may change
* Degree of commitment towards the child the child’s surname without written consent of everyone with PR/leave
* Degree of attachment between father and child of the court.
* Father’s reasons for applying – child-focused? s.10(5) CA 1989 Any party to a marriage in relation to whom the child is
* Guiding principles will apply – mainly the s.1(1) welfare principle. a child of the family is entitled to apply for CAO.
Women in relationship with mother: Taking the child on holiday:
s.2(1A) A woman who is married to a woman/in CP when that woman is
artificially inseminated will automatically have PR. s.13(1)(b) CA 1989 Parents are not allowed to take a child under 16 out
s.42(1) HFEA 2008 Such a woman is deemed to be a parent with PR. of jurisdiction without the consent of other parent with PR/the court.
s.43 HFEA 2008 Woman obtains PR if she marries/enter into CP mother. s.13(2) CA 1984 Exception: The parent with a “lives with” CAO in place,
may take the child out of the jurisdiction for a period of less than 1
Non-parents: month without the other parent’s consent/leave of the court.
s.25 Adoption and Children Act 2002 Adoption orders give adopter PR.
s.5(6) CA 1989 The child’s guardian acquires PR (appointment effective “Spends time with” CAO:
on mother’s and father’s death if father has PR).
s.12(2) CA 1989 If someone obtains “lives with CAO”: court must also CAO providing for contact can cover regular contact and holiday contact.
make a PR order in favour of that person if they have no PR. CAOs can provide for direct and/or indirect contact.
s.12(2A) If person who is not parent/guardian obtains “spends time with Order can be prescriptive about precisely when contact should take
CAO”: court may make a PR order in favour of that person. place or it can be more general.
Step-parent/civil partner may obtain PR:
Enter into PR agreement with all parents with PR.
s.4A CA 1989 If not possible, stepparent/CP can apply for PR order.
Family law – Revision notes | Page 3 of 19
, Domestic abuse: Welfare checklist:
A child benefits from having contact with both parents. Court will consider each of the below factors when making a decision.
You should spend most of your time in this question applying the facts
12 JPD If there are domestic abuse allegations: to this checklist.
* Is the domestic abuse harmful to the child?
* Has the child been subject to domestic abuse? s.1(3)(a) CA 1989 The ascertainable wishes and feelings of the child
* Does the child live in a home in which domestic abuse has been (considered in the light of the child’s age and understanding). – usually
perpetrated – child need not be conscious of the behaviour complied in a s.7 report by the CAFSASS Family Court Adviser.
* When deciding on child arrangement – court must ensure that a
contract order will not expose the child to an unmanageable risk Older/more mature child: more weight given to their wishes/feelings.
of harm and will be in their best interests. Maturity is determined on child’s intelligence/understanding, not age.
* How does the court deal with non-compliance and other
problems regarding contact? Gillick v West Norfolk and Wisbech Child must be Gillick competent –
must have sufficient understanding and intelligence to make a sound
s.11A Court may make an order that a parent who is party to CAO decision on the issue.
proceedings must take part in activities helping to establish, maintain or
improve involvement in the child’s life for that parent/other parent. Area Health Authority Court will consider:
s.11H Court may ask a CAFCASS officer to report/monitor compliance * The significance of the decision
with CAO. * If the child’s wishes/feelings are influenced by one of the parents
s.11I When the court makes/varies a CAO, it must attach a notice * Rarely separates siblings feelings
warning the parties of the consequences for non-compliance.
s.1(3)(b) The child’s physical, emotional and educational needs.
Specific issue order (SIO):
Court will consider the disruption caused to the child’s education by
SIO = An order determining single issue disputes between the parties making/refusing the order.
relating to PR. – eg. where the child should go to school.
Physical needs: Can the parent meet the child’s physical needs?
s.9(5) CA 1989 If the outcome can be achieved by a CAO, the court
should not make a SIO/Prohibited steps order. Emotional needs: It is in the child’s best interests to spend quality time
with both parents and maintain a positive relationship.
Change of surname:
Educational needs: will contact/lives with/specific issue order affect
If there is no “lives with” CAO in place: obtain consent of everyone with child’s educational needs? – eg. pick ups from school/change of school.
PR to change the child’s surname. If not possible, apply for a specific
issue order to the court. s.1(3)(c) The likely effect on the child of a change in circumstances.
Dawson v Wearmouth Court can only order a change of surname if there State the current circumstances (status quo) and consider the impact of
is evidence that this would be an improvement in terms of the welfare a change in circumstances on the child’s welfare.
of the child.
Re W Re A Re B (Change of Name) [1999] If the reason for seeking a CAO contact: consider if the child has previously had regular contact with
surname change is that the child’s surname is not the same as the the parent making the application. How long has the current pattern of
parent, this will not carry much weight. contact been established for?
Prohibited steps order (PSO): Holiday: consider if parent has ever taken the child on holiday before.
PSO = An order preventing a party from taking specific steps in relation s.1(3)(d) The child’s age, sex, background and relevant characteristics.
to a child (used for single issue disputes). – eg. Preventing a child’s
surname from being changed if one party with PR is informally allowing Age: Babies are too young and should not be separated from mothers
the child to be known by a new surname. Prohibiting a party from overnight, especially if breastfeeding.
removing a child from the UK.
Sex: child should be able to spend time with role model of same sex.
Duration of s.8 orders:
s.1(3)(e) Any harm the child has suffered/at risk of suffering.
s.9(6) CA 1989 No s.8 order should have an effect beyond the 16th bday Physical, psychological and emotional harm the child has suffered or is
of a child unless there are exceptional circumstances. at risk of suffering.
Guiding principles of CA 1989: Preventing the child from seeing the other parent with no good reason
is emotionally damaging to the child.
The court will apply any relevant guiding principles in determining the
application. s.1(3)(f) Capability of parents to meet child’s needs.
s.3(1) Children Act 1989 Court should take into account all the rights, Court will consider:
duties, powers, responsibilities and authority a parent of a child has in * Physical/mental illnesses that either parent has and consider the
relation to the child/their property. extent to which this may affect their ability to care for the child
* Harm from domestic abuse – direct/indirect eg. witnessing.
Welfare Principle: s.1(1) * Systems of care are in place – eg. live close to school, pick ups
The child’s welfare will be the court’s paramount consideration.
s.1(3)(g) The range of powers available to the court.
No Delay Principle: s.1(2) a) Court has the power to make an order that a person should not
The court take into account that any delay in determining the question be permitted to make further applications. – s.91(14) CA 1989
is likely to prejudice the welfare of the child. b) Make a different order
c) Make a conditional orders requiring party to comply with Activity
No Order Principle: s.1(5) Direction pursuant to s.11 CA.
No order to be made unless doing so would be better for the child than d) Order CAFCASS s.7 report to investigate child’s wishes/feelings.
making no order at all. – court will allow/uphold agreements between
the parents unless that would not be beneficial to the child’s welfare. S.8 ORDER APPLICATION PROCEDURE:
Presumption of Parental Involvement: s.1(2A) STEP 1. – Attend MIAM:
s.1(4)(a) s.11 CFA 2014 Court will presume that the involvement of both
parents in the child’s life will further the child’s welfare in circumstances. FPR 3.6 12 BPD 5.3 The parties must attend a MIAM.
12 BPD 5.3 and 5.9 Parties can attend MIAM together/separately.
Presumption can be rebutted if:
There is evidence that the involvement of both parents would be MIAM exemption – may still attend if they want: FPR 3.8 FPR 5.6
detrimental to the child’s welfare – decisions that there should be no * Evidence of domestic abuse
involvement are rare. * Child protection concerns
* Matter is urgent as there is a risk to life/limb/liberty/physical
12 JPD 7 (Child Arrangements and Contact Orders: Domestic Abuse and safety, risk of harm to the child/child abduction.
Harm) Cases of domestic abuse: Court will have particular regard to any
allegations/admissions of domestic abuse to the child/parent and
carefully consider whether the presumption should be rebutted.
Family law – Revision notes | Page 4 of 19
