Family law and practice lecture notes. These notes include an in-depth, clear and easy to follow exploration of family law. Includes worked examples, statute law and case law.
, General Overview
Legal Aid
There is no legal aid in family law except –
Public law
Protective injunctions – non-molestation order, occupation order, forced marriage
protection order
Child applicant – if you are acting for a child personally, they may be able to get legal
aid. However, it is very rare that your client will be a child
Prevent unlawful removal of child – if there are any child abduction issues suggested
then legal aid may be available
Domestic violence gateway – for domestic violence you should be able to get legal
aid for injunctions. Domestic abuse also opens up the domestic violence gateway
Domestic Violence Gateway & Legal Aid
This allows you to apply for injunctions and could mean that if there has been
domestic abuse, the client could be entitled to legal aid to deal with the Children Act
applications e.g. private childcare, child arrangement orders or even in respect of
any financial applications
“Any incident or pattern of incidents of controlling, coercive or threatening
behaviour, violence or abuse.” – abuse does not only mean physical abuse, it can be
some form of controlling behaviour
Must be evidence of domestic violence/risk of domestic violence
o Evidence is called LASPO evidence (LASPO stands for the Legal Aid,
Sentencing and Punishment of Offenders act 2012). For example, if client is
getting assistance from an organisation e.g. Womens Aid, Womens Aid can
provide a LASPO letter confirming that they are providing that assistance.
This letter is evidence and means the client is entitled to legal aid, subject to
their income. Over evidence can be police reports, medical reports (the
evidence must be by a valid organisation)
Legal Aid – Means Test
When considering whether an individual is entitled to legal aid, various matters are taken
into account, such as –
Universal credit – if on universal credit, client would automatically be entitled to
legal aid. If not, there will be an assessment of how much they earn
Child care
Rent
If client has loads of debt, for example, this test would not take this into account
Legal Aid – Statutory Charge (not free)
If you are getting an injunction, it is free unless you are having o make a contribution
If you are being granted legal aid because of domestic abuse and you want to use it
to make an application for financial relief in a divorce case, if you recover money or
property as a result of the legal aid assistance, there is something called a ‘statutory
charge’.
Statutory charge is where the Legal Aid board decides that you have recovered X
amount of property for the client and so the Legal Aid Board apply a charge to the
, property (the same way a mortgage lender applies a charge to a property) for the
legal fees. This charge is often deferred until the property is sold in the future e.g.
when sold, legal aid fees must be paid before you receive any equity from the
property
Where you use legal aid to get a financial reward, the legal aid is not free – they will
expect this to be repaid out of the financial reward you receive
Impact of Lack of Legal Aid for Family Law
Delays – huge delays in courts because judges are having to deal with litigants in
person and the fact that they are doing this means that the cases aren’t prepared in
the same way as they would be if a solicitor was acting for both parties. Can lead to
adjournments
More acrimonious (angry/bitter) – maybe less likely to settle as there is no additional
person to advocate between husband and wife and take the sting out of
negotiations. If husband and wife have to negotiate between each other, it is going
to be difficult for them to agree as it is likely that they do not have a good
relationship
Lack of knowledge of rights – parties may agree things without understanding what
they are agreeing to
Bullying/manipulation – one party may be put under duress to agree settlement that
they wouldn’t usually agree to
Unfair bargaining position
Increase in unrepresented litigants – if you work in this area of law, you will often be
acting against people who are not legally represented so there is guidance in place to
ensure you deal with them correctly (https://resolution.org.uk/resolutions-good-
practice-guides/good-practice-guide-to-working-with-litigants-in-person/)
Family Law and ADR (alternative dispute resolution)
Mediation/MIAM
Mediation – Children and Families Act 2014, S.10
Mediation Information and Assessment Meeting (MIAM)
Due to the increase of the number of litigants in person and backlogs in court, the court
insists that wherever possible, the parties try to resolve issues between themselves before
getting to court or even if court proceedings are underway, to make the court process
shorter. As a result, before you can issue any application for a Children Act application or
financial relief within family law proceedings, you must show that you have attempted
mediation. Client must attend a MIAM meeting to see if anything can be resolved before
you issue.
There is an exclusion for a MIAM meeting –
If there has been domestic abuse, this is usually an exclusion for a MIAM meeting.
This used to be an absolute exclusion, however sometimes the court will still expect
the client to try this (post-COVID the rule changed).
, Mediators can now do shuttle mediation (this is sometimes online e.g. they can be
on Teams and have each party in a breakout room and the mediator will shuttle from
one room to another, mediating on behalf of each party so the parties are never in a
room together). As a result, they may still require a domestic violence victim to
attempt mediation as they will not be face-to-face with the other individual
However, domestic abuse tends to be excluded to prevent the abuser from being
able to manipulate the client
Collaborative Law
Lawyers are being trained to encourage settlement between family law clients
This s training family lawyers to deal with their clients differently than they would
with other types of clients. This is to take the sting out of any litigation and
encourage parties to collaborate with each other and reach agreement.
Arbitration
Appoint an arbitrator, who acts like a judge, to listen to the facts and come to a
decision
Both parties agree to the appointment of an arbitrator
There is a cost
Both agree at the outset that they will be bound by the arbitrator’s decision
Sometimes it can be cheaper to deal with by arbitration but only if a decision is
reached. If the arbitrator cannot make a decision, you might still have to go through
the court process at the end and as a result, may incur more expenses.
Preliminary Matters – Divorce
Old Law
In April 2022, huge changes were made to this area of law. Old law under Old Law
Matrimonial Cause Act 1973 and as a result of various cases, in particular Owens v Owens
[2018], you had to prove one ground for divorce – that the marriage had broken down
irretrievably. However, to prove that ground you also had to prove 1 of 5 facts –
1. Someone committed adultery
2. Desertion (act of leaving a person)
3. Unreasonable behaviour – majority of cases were reliant on this ground
4. Parties been separated for 2 years and agree to divorce
5. Parties been separated for 5 years and therefore no consent needed
In Owens v Owens, client was arguing grounds for unreasonable behaviour. Mrs was
petitioning against Mr. UKSC accepted that the marriage had broken down irretrievably, but
found that the wife couldn’t prove Mr’s behaviour was unreasonable and therefore refused
the decree absolute (judge accepted that there was no way the couple were going to
reconcile, however they were forced to stay married as the wife didn’t have enough
evidence to show the husband’s behaviour was unreasonable).
New Law
As a result of the New Law Divorce Dissolution and Separation Act 2020, there is something
called a ‘no fault divorce’. Now there is no requirement to rely on 1 of the 5 factors from the
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