Legal Q&A

This response considers whether there is a fixed period that a relationship needs to have lasted in order to fall within the definition of a relationship of ‘significant duration’ under section 62(3) of the Family Law Act 1996 ( FLA 1996). A court may issue a non-molestation order under FLA 1996, s 42 where an application is brought by a person ‘associated with the respondent’. Equally, in any family proceedings to which the respondent is a party, the court can decide that such an order should be made for the benefit of any other party to the case or any relevant child, despite no application having been submitted ( FLA 1996, s 42(2)). For more detailed guidance, see Practice Note: Non-molestation orders. The phrase ‘associated persons’ is defined in FLA 1996, s 62(3)......

In financial remedy proceedings, it is usual for one party to earn on a self-employed footing as a sole trader in practice. Instead of using a separate legal personality, for example a company acting as the primary earning vehicle and paying salary and dividends, they trade in a chosen style or their own name and settle personal income tax on profits. Business costs are set off in the ordinary manner, and accounts are normally drawn up for this very purpose. Some sole traders simply run income and outgoings through a personal bank account, while others prefer to operate from a separate, dedicated business account......

Both the High Court and the Family Court possess jurisdiction to issue injunctions, whether interlocutory or final, and to appoint a receiver whenever it is considered just and convenient to do so. Any order can be made unconditionally or subject to such terms and conditions as the court deems appropriate, pursuant to section 37 of the Senior Courts Act 1981, which applies in the Family Court as it does in the High Court......

The statutory formula for child maintenance under the Child Support Act 1991 ( CSA 1991) The statutory formula for child maintenance under the Child Support Act 1991 ( CSA 1991) does not link the amount payable to whether the paying parent has contact with the children, other than insofar as the shared care rules operate. Under CSA 1991, s 3(5), it is recognised that, for the purposes of the Act, there can be more than one person with care in relation to the same qualifying child. The Child Support Maintenance Calculation Regulations 2012, SI 2012/2677, reg 46(2), further provide that any calculation must be grounded in the number of nights the non-resident parent is expected to care for the qualifying child overnight during the 12 months commencing on the effective date of the relevant calculation decision. The Child Maintenance Service ( CMS) retains a...

Section 12(2A) of the Children Act 1989 ( Ch A 1989) Inserted by paragraph 21(4) of Schedule 2, Part 1 of the Children and Families Act 2014 ( CFA 2014), Section 12(2A) of the Children Act 1989 ( Ch A 1989) came into force on 22 April 2014. This statutory amendment to Ch A 1989, s 12 expressly empowers the court to confer parental responsibility on an individual who is neither a parent nor a guardian of the child, but who is identified in a relevant child arrangements order ( CAO) as a person with whom the child spends time or otherwise has contact. Any parental responsibility granted under Ch A 1989, s 12(2A) endures only for as long as the corresponding CAO currently remains operative. Although the provision has been operative for more than two years, there seem to be no reported cases that...

If the court issues a child arrangements order under section 8 of the Children Act 1989 ( Ch A 1989) directing that a child is to reside with someone other than a parent or guardian, that individual acquires parental responsibility for the child for as long as the order is operative, insofar as it provides for the child to live with them ( Ch A 1989, s 12(2)). That individual continues to hold parental responsibility under that provision for as long as the provision requiring the child to live with them still remains effective......

No statute sets out what counts as a non-matrimonial asset, yet case law has long examined and refined the line between these items and property included within the marital acquest during divorce proceedings. An interest a spouse obtains during the marriage in a parent’s home can be treated as comparable to an inheritance and, for the purposes of classification in financial remedy claims and outcomes, viewed as non-matrimonial. Such an interest might indeed effectively amount to a lifetime gift or a pre-death inheritance......

Section 28 of the Matrimonial Causes Act 1973 ( MCA 1973) Pursuant to section 28 of the Matrimonial Causes Act 1973 ( MCA 1973), a periodical payments order terminates automatically if the recipient remarries. If, for any reason, this does not occur, an application can be brought to recover the sums paid. See Practice Note: Impact of remarriage, subsequent civil partnership, or cohabitation......

Legal professional privilege Legal professional privilege denotes a doctrine shielding particular categories of documents from scrutiny or inspection by the opposing party to the case. Legal advice privilege covers materials containing advice irrespective of whether proceedings are envisaged at any stage. Litigation privilege concerns documents created when litigation is extant or on foot, anticipated, or pending as such. Both are treated as sitting beneath the umbrella of legal advice privilege. A hearing attendance note will, as a rule, come within litigation privilege and so need not be disclosed to the other side. The request for a copy of that hearing note may, therefore, be made with a respondent’s potential appeal in mind......

Legal professional privilege Legal professional privilege is a doctrine shielding specified categories of documents from scrutiny by the opposing party in proceedings. Legal advice privilege covers materials that convey advice, regardless of whether litigation is anticipated. Litigation privilege concerns documents created when litigation is on foot, foreseen, or awaiting commencement. Both are treated as sitting beneath the umbrella of legal advice privilege. A hearing attendance note will usually attract litigation privilege and, as a result, need not be disclosed to the other side. A request for a copy of the hearing attendance note may, in fact, be made with a respondent’s prospective appeal in mind......

The Family Court holds jurisdiction, under section 23 of the Matrimonial Causes Act 1973 ( MCA 1973), to make orders for periodical payments in favour of a party to a marriage, or in favour of a child of the family, for that party’s own maintenance or for the maintenance of a child. This power is, nevertheless, subject to the provisions of the Child Support Act 1991 ( CSA 1991), and CSA 1991, s 8 correspondingly and accordingly limits the court’s powers to make child maintenance orders......

The court's role when considering a draft financial consent order When a draft financial consent order is presented for approval, the court does more than merely endorse what is put before it. It is obliged to examine the proposed terms and, relying on the details set out in the parties’ statements of information, may still seal an order in the agreed form, unless it has cause to suspect there are further circumstances that merit enquiry. The court’s discretion, preserved by the Matrimonial Causes Act 1973, always applies and is not displaced. Clients should be made aware of this position and cautioned that it cannot be guaranteed the court will approve the order (see Pounds v Pounds)......

Section 28(3) of the Matrimonial Causes Act 1973 ( MCA 1973) places a near-complete prohibition on the court’s power to consider any application issued post-remarriage. That restriction is limited by the phrase ‘by reference to the grant or making of that [italics inserted] decree or order’. Yet, once a final order/decree absolute is made or granted in respect of (in this instance) the husband’s petition, there remains no continuing marriage to which the wife’s initial petition can thereafter be advanced or otherwise progressed by her......

The Marriage ( Same Sex Couples) Act 2013 ( M( SSC) A 2013) confirms that marriages between same-sex partners are lawful and effective. Under s 9 of M( SSC) A 2013, civil partners in England and Wales can convert their partnership into a marriage, should they wish to do so. That conversion terminates the civil partnership, with the resulting marriage treated as having existed from the date the partnership was created. Before M( SSC) A 2013 came into force, same-sex marriages formed overseas were recognised in England as civil partnerships, falling within the category of ‘overseas relationships’ under the Civil Partnership Act 2004, rather than as marriages......

Legal ownership of a property in England and Wales as joint tenants Holding legal title to a property in England and Wales as joint tenants means each proprietor owns the undivided whole, and if one dies, the survivor automatically becomes the sole owner (and where there are more than two legal owners, the successively smaller number of survivors does so, until only one remains). This is called the doctrine of survivorship. No transfer takes place and the co-owner’s interest does not form part of their estate; rather, that interest is extinguished. Legal joint tenants who co-own hold the property’s beneficial interest on trust for the beneficial owners. The starting position is that the legal joint tenants are also the beneficial owners in the ordinary course of ownership......

For the purposes of this response This response proceeds on the basis that the divorce application was issued on or after 6 April 2022. Where a conditional order exists in divorce proceedings, the respondent may apply on notice for a final order, using the Part 18 route under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, once three months have elapsed from the earliest date the applicant could have applied ( Matrimonial Causes Act 1973, s 9(2); FPR 2010, r 7.20). When determining such an application, the court retains discretion over whether to make the conditional order final (see Smith v Smith; Dart v Dart; Wickler v Wickler; Re G ( Decree Absolute: Prejudice); Thakkar v Thakkar). The court’s options are to grant the final order, rescind the conditional order, order further inquiry, or otherwise dispose of the case as it thinks fit ( MCA...

Under section 55A of the Family Law Act 1986 ( FLA 1986), a party can apply to either the Family Court or the High Court for a declaration determining whether a person named in the application is, or was, the parent of another individual in question. The court’s authority depends on domicile or habitual residence in England and Wales, as set out in FLA 1986, s 55A(2). Where the application is successful, and a declaration of parentage is granted by the court, it shall give notice to the Registrar General ( FLA 1986, s 55A(7))......

Tattersall v Tattersall In Tattersall v Tattersall, the husband moved to amend a maintenance order, while the wife pursued steps to compel compliance with that order......

To persuade the court to grant a decree nisi, proof that the application for a matrimonial order has been duly served is required. Ordinarily, this can be shown by producing the acknowledgement of service filed in the divorce proceedings. If the respondent does not return an acknowledgement of service or lodge any documentation, the petitioner must establish service. The petitioner may choose to arrange personal service of the petition on the respondent and any co-respondent. Where, after personal service, no acknowledgement of service is filed by the respondent, the person who effected service must file a certificate of service stating the precise date and time of that personal service. That certificate should be completed in Form FP6. If an application has been served on a respondent, no acknowledgement of service has been returned to the court office, and the court is...

A pension sharing order A pension sharing order enables one party to obtain, in their own name and in their own right, benefits directly debited from the other party’s pension scheme, and secures a clean break between the parties regarding pensions. Sections 11 and 12 of the Welfare Reform and Pensions Act 1999 ( WRPA 1999) state that pension rights under approved pension schemes do not vest in a trustee in bankruptcy, provided the bankruptcy petition was presented on or after 29 May 2000 under the legislation. Consequently, if the individual holding the pension to be shared is made bankrupt, the court’s authority to make a pension sharing order should remain unaffected in law......