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Summary BPP - LPC Family Law Exam Notes (2022) - Distinction (91%)
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SGS 1 - DIVORCE AND DISSOLUTION1. conduct a first interview with a client on a family law matter;
2. advise a client on the different methods and benefits of non-court dispute resolution;
3. advise a client regarding the potential bars to a divorce / dissolution;
4. explain the law and procedure for obtaining a divorce/ dissolution following the
enactment of the Divorce, Dissolution and Separation Act 2020.
BARS TO GAINING A DIVORCE
STEP 1: There are two potential bars to a divorce.
state that there 1. The first concerns the issue of jurisdiction under s.5(2) DDS 2020. Here it is clear
are two that [insert both parties names] are both habitually resident and domiciled in England
potential bars and Wales so the court will have jurisdiction to process their divorce.
to obtaining a
divorce The English court will have jurisdiction if:
– Both parties are habitually resident or domiciled in England/ Wales
– Either party is domiciled in England/Wales
– The respondent is habitually resident in England/Wales
– The applicant has been habitually resident in England/Wales for 1 year immediately
before the application.
If so, they can commence proceedings in the UK.
2. The second potential bar is contained in s.3(1) DDS 2020. It prohibits divorce in the
first year of marriage. [Insert names of both parties] have been married for [insert
number] years so this is not an issue.
Conclude: Given the above, there are no bars to [insert name of the party requesting a
divorce] obtaining a divorce now.
STEP 2: 1. s.1(1) DDS 2020 One/both parties to the marriage can apply to the court for a divorce
order on the ground that the marriage has broken down irretrievably. – there is only
state the this one ground and no need for any of the previously used 5 facts to prove this ground.
grounds for
divorce AND 2. s.1(2) DDS 2020 An application must be accompanied by a statement of irretrievable
how to prove breakdown.
this ground
3. s.1(3) DDS 2020 The court dealing with the application must take this statement as
conclusive evidence that the marriage has broken down irretrievably.
NB - the other party i.e., husband does not have the right to contest a divorce as this has been
removed by the DDS 2020.
1
, DIVORCE PROCEDURE
1. Before Before commencing proceedings:
commencing - If sole Applicant: give notice to the Respondent before sending off the application to
proceedings maintain a cooperative relationship (best practice).
(Pre-issue) - This can be done via a letter/email from solicitor stating intention to proceed with a
divorce
- A can ask if R wants to make a joint application or not
- Notify the other side that if you don’t hear from them, you will begin proceedings with an
application to the court
2. Issue stage (Issue stage) Applicant must send the court:
(to commence - The completed court application form
proceedings) - Including statement of irretrievable breakdown
- Court fee of £550 (unless exempt)
- Documents including a valid marriage certificate/certified copy (7A PD)
3. Serve If sole Applicant: once issued, serve on the other party:
proceedings - Application for the divorce and accompanying statement that the marriage has broken
on the down irretrievably
Respondent - Docs sent to court
- Blank acknowledgement of service for them to fill in
- Notice of proceedings received from Court (this will explain the procedure and next
steps)
4. Court stage Stage 1 – Conditional order:
1 = conditional - s.1(5) DDS 2020 The applicant(s) must wait for 20 weeks from the start of the divorce
order proceedings (i.e., the date of issue of the application for divorce)
- s.1(4)(a) DDS 2020 Court in the first instance will make a conditional order and send a
copy to each party.
- s.1(5)(a)-(b) DDS 2020 Applicant must then confirm to the court that she wishes to
continue with her application and make an application for a conditional order.
- FPR 2.9 Count clear days: 20 weeks + 1 day.
5. Stage 2 = Stage 2 – Final order:
Final order - s.1(4)(b) DDS 2020 Applicant must wait six weeks before applying for the conditional
order to be made final
- s.1(6)-(7) DDS 2020 The Lord Chancellor may amend these time frames but the whole
process cannot exceed 26 weeks.
- FPR 2.9 Count clear days: 6 weeks + 1 day
- Application is dealt with on paper and the final order is granted and copies sent to both
parties.
- Once the final order has been granted that the marriage is over and parties are free to
re-marry.
6. Divorce is What is the effect of the final divorce order? It brings the marriage to Altaf to an end.
finalised
2
, DISSOLUTION OF A CIVIL PARTNERSHIP
STEP 1: There are two potential bars to a dissolution.
state that there 3. The first concerns the issue of jurisdiction under s.5(2) DDS 2020. Here it is clear
are two that [insert both parties names] are both habitually resident and domiciled in England
potential bars and Wales so the court will have jurisdiction to process their dissolution.
to obtaining a
dissolution The English court will have jurisdiction if:
– Both parties are habitually resident or domiciled in England/ Wales
– Either party is domiciled in England/Wales
– The respondent is habitually resident in England/Wales
– The applicant has been habitually resident in England/Wales for 1 year immediately
before the application.
If so, they can commence proceedings in the UK.
4. The second potential bar is contained in s.41 CPA 2004. It prohibits dissolution in
the first year of partnership. [Insert names of both parties] have been married for
[insert number] years so this is not an issue.
Conclude: Given the above, there are no bars to [insert name of the party requesting a
divorce] obtaining a dissolution now.
STEP 2: state s.3-4 Divorce, Dissolution and Separation Act 2020 s.44 of CPA 2004 is amended and a
grounds for new s.37A CPA 2004 is inserted.
dissolution
AND how to 1. s.44(1) Civil Partnership Act 2004 One/both civil partners may apply to for a dissolution
prove this order which will dissolve the civil partnership on the ground that it has broken down
ground irretrievably.
2. s.44(1A) CPA 2004 An application must be accompanied by a statement of irretrievable
breakdown.
3. s.44(4) CPA 2004 The court dealing with the application must take this statement as
conclusive evidence that the civil partnership has broken down irretrievably.
PROCEDURE FOR DISSOLUTION s.4(3) DDSA 2020
1. Before Before commencing proceedings:
commencing - If sole Applicant: give notice to the Respondent before sending off the application to
proceedings maintain a cooperative relationship (best practice).
(Pre-issue) - This can be done via a letter/email from solicitor stating intention to proceed with a
dissolution
- A can ask if R wants to make a joint application or not
- Notify the other side that if you don’t hear from them, you will begin proceedings with an
application to the court
2. Issue stage (Issue stage) Applicant must send the court:
(to commence - The completed court application form
proceedings) - Including statement of irretrievable breakdown
3
, - Court fee of £550 (unless exempt)
- Documents including a valid civil partnership certificate/certified copy (7A PD)
3. Serve If sole Applicant: once issued, serve on the other party:
proceedings - Application for the dissolution and accompanying statement that the partnership has
on the broken down irretrievably
Respondent - Docs sent to court
- Blank acknowledgement of service for them to fill in
- Notice of proceedings received from Court (this will explain the procedure and next
steps)
4. Court stage Stage 1 – Conditional order:
1 = conditional - s.37A(1)(a) CPA 2004 Court in the first instance will make a conditional order and send
order a copy to each party.
- s.37A(2) CPA 2004 Court will not make a conditional order unless the applicant(s)
confirm that they wish the application to continue.
- s.37A(2) CPA 2004 The applicant(s) must give confirmation before the end of a 20-
week period from the start of proceedings (the second prescribed period).
- FPR 2.9 Count clear days: 20 weeks + 1 day
5. Stage 2 = Stage 2 – Final order:
Final order - s.37A(1)(b) CPA 2004 Within 6 weeks from the conditional order, the parties/sole
applicant can apply for the court to turn it into a final order (the first prescribed period).
- The court must wait for 6 weeks from the conditional order to make the final order.
- s.37A(4) CPA 2004 The Lord Chancellor may amend the two prescribed periods but
the whole process cannot exceed 26 weeks.
- FPR 2.9 Count clear days: 6 weeks + 1 days
- Application is dealt with on paper and the final order is granted and copies sent to both
parties.
- Once the final order has been granted that the marriage is over and parties are free to
re-marry.
6. Dissolution What is the effect of the final order? It brings the civil partnership to an end.
is finalised
IMPACT OF THE DDSA 2020
The DDSA 1. Removed the possibility of one party contesting the application
2020 changed
the law on 2. Made the terminology simpler and accessible for laypersons – Decree nisi is not called
divorce by: a conditional order and decree absolute is now a final order.
3. It removed the requirement to establish one of five facts and allows for a joint
application:
– Application must be accompanied by a statement by the applicant that the
marriage or CP has broken down irretrievably
– Statement will be taken as conclusive evidence
– No need for any facts to prove this ground
– Removes issue of fault from divorce/dissolution process
4. Introduced new timeframes:
4
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