Adultery is one of the facts commonly used to show irretrievable breakdown of a marriage in support of a divorce petition. Adultery is voluntary intercourse between a man and a woman, who are not married to each other but one or both of them are married.
The Applicant is the person who applies to the court seeking an order. This term is used for all applications to the court whether financial orders or orders concerning children.
A method of dispute resolution in family proceedings and an alternative to court proceedings. The parties willappoint an independent arbitrator whose decision will be final and binding.
Cafcass (include Cafcass officer)
Cafcass stands for Children and Family Court Advisory and Support Service. Cafcass may be involved with any applications issued in the court that involve children. Cafcass assist the court to promote children’s welfare through proceedings. A Cafcass officer is a social worker who may be appointed to a case and if so will be responsible for talking to the parties, and in some cases the children, and providing the court with advice and recommendations for the future of the child.
Child Arrangements Order (include reference to old orders e.g. contact and residence)
A Child Arrangements Order is a court order which governs when a child will live with a person or spend time with a person, or any other contact e.g. indirect contact. This catch all term has replaced the previous concepts of ‘custody’, ‘access’, ‘contact’ and ‘residence’. An application for a Child Arrangements Order is only necessary if the parties cannot agree arrangements between themselves. Child maintenance (include CSA & CMS) Child maintenance is a sum of money paid by one parent to the parent with main care of the child, to meet the day to day living expenses of the child. This can be agreed between the parties themselves. Alternatively parents can use the Child Maintenance Service (formerly the Child Support Agency) to calculate and, if necessary, collect child maintenance payments of their behalf.
A financial settlement in a divorce which does not include any ongoing financial obligations between the parties. Each party’s financial affairs will then be independent. If necessary, this can be deferred for example, until after any children have reached the age of 18 or finished education or the parties reach retirement age.
An unmarried couple living together, whether same sex or opposite sex. Cohabitees do not have any legal rights as a couple. Sometimes the term “common law marriage” is used to describe cohabitation but this is not a legal concept in the UK and does not provide any of the legal rights provided by marriage or civil partnership.
A cohabitation agreement records the arrangements between a couple living together as to their financial and legal responsibilities with each other and what will happen if the relationship breaks down. A cohabitation agreement can be particularly important if a couple decide to purchase property together as cohabiting couples do not have the same legal rights as married couples.
Collaborative law is an alternative to the traditional adversarial process with solicitors. The parties will use trained collaborative lawyers, and aim to resolve things through a series of face to face 4 way (both parties and their lawyers) meetings, rather than going to court. In some cases other experts e.g. accountants, counsellors and financial advisors may attend the meetings.
When parties are going though court proceedings, they can make agreements between themselves and have it recorded in a formal court order so that it is binding. Consent orders are used for a variety of agreements, from simply changing a hearing date to when parties have reached a full settlement agreement governing their financial affairs.
Decree absolute is the final order in divorce proceedings (called a “final order” for dissolution of a civil partnership). This means that the marriage is legally at an end. It is normally a good idea to finalise your financial affairs before this.
The first court order in divorce proceedings entitling the Petitioner to proceed to seeking decree absolute. The court is satisfied that the petitioner has established that the marriage has irretrievably broken down.
Desertion is one of the 5 facts that can be used in support of a divorce. Desertion is quite rarely used and the Petitioner has to establish the following: a separation, an intention to desert by the Respondent; no consent to separation by the Petitioner; no just cause for the Respondent to leave; continuous desertion and immediately proceeding the petition for divorce.
If one party breaches a Child Arrangements Order, the other can apply for an enforcement order which imposes an unpaid work requirement on the party in breach as punishment.
Fact finding hearing
The court may order a fact finding hearing in proceedings concerning children if there are allegations of for example alcohol abuse, drug abuse or physical, sexual, verbal or emotional domestic abuse. The parties will give evidence and the court will establish whether any of the allegations are established and are sufficient to have an impact on the Children Act proceedings.
First appointment, FDR and Final Hearing
The first appointment is the first hearing in financial proceedings in a divorce. At this hearing, the judge will give directions and decide how the matter will proceed. The Financial Dispute Resolution (FDR) hearing is the middle stage of financial proceedings and aims to direct the parties towards settlement. Each party will make his/her case to a judge and inform the judge of any offers made. The judge will then give an indication asto how the court may decide matters at a final hearing and that indication can guide the parties to settlement. Further directions can be made towards a final hearing if the parties are unable to reach a settlement. If the parties have not been able to reach an agreement on their finances, the case will have a Final Hearing before a judge. Each party will make out their case and call evidence. The judge will then make a final court order to resolve the parties’ finances.
If there is a risk that a party may dispose of their assets to avoid judgment, the court can make an order preventing the party from dealing with those assets. This is normally used to preserve that person’s assets untiljudgment or final order.
A hearing is when parties attend court before a judge for a decision on an issue or procedure.
Joint lives order
In financial divorce proceedings, the court may make an order for payments to a spouse or civil partner to last until the death of the payee or payer or the remarriage of the payee.
Judicial Separation is an alternative to divorce. The parties may not want to divorce for religious or other reasons. Judicial Separation does not formally end the marriage but formally releases the parties from the obligation to live together and allows the court to make the same financial orders as it could on divorce.
State assistance with legal costs. This is only available in family proceedings where there is evidence of child abuse or domestic violence or risk of child abduction. Or mediation if one or both meet the financial criteria.
Mediation is a dispute resolution process suitable to a range of family disputes. A trained mediator will meetwith the parties together and aim to help them resolve any issues they cannot agree. A mediator is independent and impartial; some mediators are legally trained. The courts now expect parties to consider whether mediation may be appropriate before they issue proceedings.
Mediation Information and Assessment Meeting. Before making any application to the court for family proceedings, in most cases the applicant must attend a MIAM with an authorised family mediator to consider whether mediation is suitable for the dispute. The parties can attend a MIAM together or the applicant can attend alone. Insome circumstances, there is no requirement to attend a MIAM, for example: where parties have reached an agreement, urgent or emergency proceedings, or cases with domestic violence.
A non-molestation order is a court order which prohibits a person from violence, harassment and threats by a particular person. They are commonly used in cases of domestic violence.
An occupation order grants a person the right to live in all or part of a home and can exclude another party from that home. Occupation orders are mainly used in situations of relationship breakdown where parties can no longer live together.
Parental responsibility means the rights, duties, powers, responsibilities and authority a parent has in relation to their child by law. A child’s mother always has parental responsibility for the child. A father will automatically have parental responsibility is he is married to the mother at the time of birth or, if his name is on the birth certificate when the child is born after 1 December 2003. Fathers can also obtain parental responsibility by court order or other means.
The Petitioner is the person in the marriage/civil partnership who initiates the divorce/dissolution by filinga divorce petition at the court.
A prenuptial agreement is made between a couple before a marriage takes place to set out how couples propose to manage their finances during the marriage and how matters will be dealt with if the relationship breaks down. A post-nuptial agreement deals with these arrangements in circumstances where the parties are already married. No nuptial agreement can remove the jurisdiction of the court over such matters and the court will not uphold one in situations where it is inherently unfair to do so. A court is more likely to uphold the terms of a nuptial agreement if the parties have entered into the agreement of their own free will with full and frank disclosure of the circumstances, and understood the agreement they entered into. The parties each taking legal advice is good evidence of this.
Prohibited steps order
A prohibited steps order is an order preventing a person performing certain actions in relation to child, suchas removing the child from someone’s care, changing their name and making decisions in relation to their healthcare or education.
The Respondent is the party to a dispute who receives and application or divorce petition. This title is used in all proceedings.
A fact in support of divorce. The petitioner can rely on 2 years separation if the parties both agree to divorce. If the parties do not agree to divorce then the petitioner will have to rely on 5 years separation.
When parties separate, but one or both are not ready to proceed to the finality of a divorce, they can choose to enter into a formal agreement governing the terms of their separation. The agreement may set out how the couple’s finances, property and children are to be dealt with at present and on divorce. The arrangement may notbe binding on the court when considering the parties needs at a later date, if you want certainty of arrangements the best option is to divorce and a consent order approved by the court.
Specific issue order
A specific issue order (SIO) is an order to resolve a particular dispute in proceedings regarding children. Itallows the court to decide on an issue where those with parental responsibility cannot agree. SIO’s can cover a range of issues including medical treatment, education, passports and relocation.
In financial proceedings in a divorce, the parties may agree or the court may order for regular payments to be made by one spouse to another if the judge feels he/she cannot support him/herself independently. The level of the payments is determined by need. Maintenance may be capitalised and paid in a lump sum or in regular payments for a length of time.
One of the five facts available in support of a divorce is “behaviour that the other party cannot reasonably be expected to live with.” Commonly called “unreasonable behaviour” this can cover a range of different behaviours. It is sensible to give 4-5 examples to prove irretrievable breakdown of the marriage and try and agree the particulars in advance to avoid the cost of a defended divorce or amending the petition.