Family law in UK (England and Wales): overview

A Q&A guide to family law in UK (England and Wales).

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.

James Stewart, Penningtons Manches LLP and Louise Spitz
Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

Common law is the basis of the legal system of England and Wales. There is no codified system of law. Family law is found in Acts of Parliament (legislation or statute law), as applied and interpreted by the Higher Courts (precedent).

The Matrimonial Causes Act 1973 (MCA 1973) is the core legislation relating to divorce and financial proceedings. The Children Act 1989 (CA 1989) is the primary source of law in relation to children, their upbringing and welfare.

Other important statutes are:

  • The Married Women's Property Act 1882 (declaration of existing property rights).

  • The Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) (jurisdiction disputes within the jurisdictions of England, Scotland).

  • Northern Ireland, Jersey, Guernsey and the Isle of Man.

  • The Matrimonial and Family Proceedings Act 1984 (MFPA 1984), Part III (financial relief in England and Wales after an overseas divorce).

  • The Family Law Act 1986 (FLA 1986).

  • The Child Support Act 1991 (CSA 1991).

  • The Family Law Act 1996 (Part IV, family homes and domestic violence).

  • The Human Rights Act 1998 (incorporating the European Convention on Human Rights into English law).

  • The Civil Partnership Act 2004 (CPA 2004) (allows same sex couples to form registered civil partnerships).

  • The Children and Families Act 2014 (CFA 2014).

  • Marriage (Same Sex Couples) Act 2013 (M(SSC)A 2013).

  • The Adoption and Children Act 2002 (ACA 2002).

A number of EC Regulations apply in England and Wales, notably Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Brussels II Regulation). The UK has also ratified a number of international conventions dealing with the international aspects of family law including the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention).

Court system

Section 31A of the Matrimonial and Family Proceedings Act 1984 (inserted by the Crime and Courts Act 2013) established a Single Family Court (Family Court), which exercises jurisdiction in all family proceedings. The Family Court is able to sit anywhere and in general is likely to sit at the County and Magistrates' Courts where family cases were heard previously.

The Family Court is divided into geographical areas, each of which has a Designated Family Centre (DFC) which is managed by a Designated Family Judge (DFJ).

Business rules made under MFPA 1984, section 31D determine the level of judge to which a case is allocated. Schedule One of the Family Court (Composition and Distribution of Business) Rules 2014 offers guidance on the level of judge likely to be allocated to certain types of proceedings.

The High Court will continue to operate in family proceedings. However, only a limited number of cases will be automatically reserved to the High Court, such as those which involve wardship proceedings and certain international cases.

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

The court has jurisdiction in relation to divorce and ancillary relief under Article 3(1) of the Brussels II Regulation if any of the following apply:

  • The petitioner and the respondent are both habitually resident in England and Wales.

  • The petitioner and the respondent were last habitually resident in England and Wales and one of them continues to reside there.

  • The respondent is habitually resident in England and Wales.

  • The petitioner is habitually resident in England and Wales and has resided there for at least one year before the divorce petition is presented.

  • The petitioner is domiciled in England and Wales and has been habitually resident in England and Wales for at least the six months before the divorce petition is presented.

  • The petitioner and the respondent are both domiciled in England and Wales.

  • No court of a Brussels II Regulation signatory state has jurisdiction and either party is domiciled in England and Wales when proceedings are begun.

Property

In relation to married couples, the court's ability to hear a financial claim depends on whether or not it has jurisdiction to hear a petition for divorce, nullity or judicial separation (section 24, MCA 1973). Where parties are merely cohabiting, upon breakdown of a relationship claims can be brought under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) for an equitable share in property owned solely by one party (see Question 23) or for a declaration of the respective interests of co-owners where these are not expressly stated in title documents.

Children

Jurisdiction in children cases (which commonly involve disputes surrounding the care of, contact with and upbringing of a child) is governed by the Brussels II Regulation and the FLA 1986. The court can also stay proceedings in relation to children under its general case management jurisdiction, applying the principle of forum non conveniens (if it considers that there is a jurisdiction which is more appropriate and where proceedings have already been started).

For international cases, where the Brussels II Regulation does not apply, the courts will turn to the forum non conveniens principles. The relevant considerations are as follows:

  • The child's habitual residence.

  • The parents' connections with the competing jurisdictions.

  • The child's welfare.

  • The ease with which the parties could participate in the process.

  • The range of orders available in the competing jurisdictions.

Jurisdiction as between EU member states in matters of parental responsibility is based on a child's habitual residence (Article 8, Brussels II Regulation). If a child's habitual residence cannot be established, jurisdiction is based on the child's physical presence in England and Wales (Article 13, Brussels II Regulation).

The FLA 1986 applies principally to jurisdictional conflicts between jurisdictions within the UK and covers any application under section 8 of the Children Act 1989 (including applications for child arrangement orders, which are similar to residence/custody and contact/access orders).

Domicile and habitual residence

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

Domicile

The meaning of domicile in civil jurisdictions, where the term often equates to the place where a person habitually resides, is not the same as in common law jurisdictions such as England and Wales. Domicile can be either:

  • Domicile of origin. Domicile of origin is acquired at birth. If a child is born to married parents, domicile is determined by that of the domicile of the father. If the mother is unmarried or widowed, an individual acquires the mother's domicile of origin.

  • Domicile of dependence. Until the age of 16, a person's domicile is dependent on that of their parents.

  • Domicile of choice. A domicile of origin may be displaced by a domicile of choice, when a person has an intention to reside permanently in a jurisdiction where he is physically present. The burden of establishing a change of domicile is on the applicant.

A special legal status is associated with domicile and the court has jurisdiction for divorce under Article 3(1) of the Brussels II Regulation if the petitioner and the respondent are both domiciled in England and Wales, even if they have not lived there during the marriage.

Habitual residence

Under common law, habitual residence is taken to mean the country of ordinary residence. This is essentially the country where a person is living for purposes such as work or family life, except for the occasional absence. This is a question of fact and it must be shown that the person was present in the country voluntarily, with a settled intention and for an appreciable period of time. In England and Wales a person can have more than one habitual residence.

Habitual residence for the determination of jurisdiction under Brussels II Regulation has a different meaning compared with that under English domestic law. In Marinos [2007] 2FLR 1088, the High Court described the phrase "habitually resident" as "the place where the person has established, on a fixed basis, his permanent or habitual centre of interest". The interpretation of habitual residence under the Brussels II Regulation does not permit a person to be habitually resident in two countries at the same time. In cases relating to international child abduction under the Hague Convention, habitual residence refers to the country regarded as the home of the child in question. In Re LC (Children) (No2) [2014] UKSC 1, the Supreme Court concluded that a child's state of mind regarding his or her integration in a social and familial environment could be relevant to a determination with respect to the child's habitual residence. This test was applied in LC v RPL and others [2014] EWFC 8 to establish that four children had not acquired a new habitual residence in Spain when they relocated there with their mother and they were therefore allowed to remain in England where they had been retained by their father following a period of agreed contact.

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Within the EU

Within the EU (except Denmark) the rules on jurisdiction in the Brussels II Regulation apply. Where proceedings for divorce, nullity or judicial separation are started in two EU member states, where both have jurisdiction, the proceedings commenced first in time must be allowed to continue and those started second must be halted. Proceedings are considered to have "commenced" once the required documents are lodged with the court, provided the necessary steps to effect service on the respondent are taken.

Within related jurisdictions

In related jurisdictions (Scotland, Northern Ireland, Jersey, Guernsey, Alderney, Sark and the Isle of Man), paragraph 8 of Schedule 1 to the DMPA 1973 provides that the English court must stay divorce proceedings if, before the beginning of trial or first trial, one party to the marriage applies for a stay and all of the following apply:

  • There are already divorce proceedings in existence in a related jurisdiction.

  • The parties to the marriage have resided in that jurisdiction together.

  • The place where they resided together when the proceedings in the court were begun, or if they did not then reside together, where they last resided together before those proceedings were begun, is in that jurisdiction.

  • One of the parties was habitually resident in that jurisdiction throughout the year ending with the date on which they last resided together before the date on which the proceedings were begun.

Non-EU jurisdictions

If a party suggests that the English court is not the appropriate forum, and that another, non-EU country, is more appropriate, paragraph 9 to Schedule 1 of the DMPA 1973 gives the court discretion to order a stay if there are concurrent proceedings in any other jurisdiction, other than proceedings governed by the Brussels II Regulation. The court will apply the principle of forum non conveniens and will consider if the balance of fairness (including convenience) as between the parties means that it is appropriate for the proceedings in the other jurisdiction to be disposed of before further steps are taken in the English proceedings.

The respondent must satisfy the court that there is some other available non-EU forum, which is clearly a more appropriate forum, to hear the case. Important criteria which the court will consider include the following:

  • Which forum was first involved and is most likely to reach a final decision first.

  • The location of family assets (whether they are wholly or mainly in England).

  • Whether foreign proceedings would result in a decision which is incompatible with English concepts of justice.

The English court has little influence over the continuation of the proceedings in the other non-EU jurisdiction. If the English court refuses to stay the English proceedings, there may be two sets of proceedings concerning identical subject matter, between the same parties, in two places concurrently. In divorce cases, this usually results in a race to see which legal system will produce a final result first.

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

Historically, pre- and post-nuptial agreements have not been legally binding in England and Wales. The Supreme Court's judgment in the case of Radmacher v Granatino [2010] UKSC 42 marked a shift in the attitude of the courts towards upholding such agreements. While it did not make pre-nuptial agreements binding in England and Wales on divorce, it took a substantial step towards that eventuality. The judgment comprises four key principles:

  • There is now a rebuttable presumption that courts should give effect to pre-nuptial agreements.

  • Nuptial agreements cannot oust the jurisdiction of the court.

  • The substance of nuptial agreements must be fair. They cannot be allowed to prejudice the reasonable requirements of any children of the family and a failure to meet a party's needs or to compensate them for relationship-generated loss may render it unfair to hold that party to the terms of the agreement.

  • The circumstances surrounding the making of nuptial agreements will affect the weight given to the agreement upon divorce. If there is evidence of duress, fraud or misrepresentation, the agreement may be ignored. The weight attached to the agreement may be reduced if the parties do not take legal advice or have the benefit of disclosure prior to its execution. Best practice suggests that each party should have independent legal advice and that there should be disclosure prior to entering into the agreement.

Following Radmacher, great weight will now be given to both pre- and post-nuptial agreements unless the terms are manifestly unfair. The status of nuptial agreements in England was considered in the Law Commission's Report, titled Matrimonial Property, Needs and Agreements published on 27 February 2014. The Law Commission has confirmed that the position put forward in Radmacher, that nuptial agreements will only be upheld if they are "not unfair" and cannot take a couple's arrangements "outside the scrutiny of the family courts", still stands. The Law Commission has recommended that in order for a pre-nuptial agreement to be valid it must not have been made less than 28 days prior to the wedding or civil partnership ceremony.

The Law Commission found that the Supreme Court in Radmacher went as far as it could in "endorsing the validity of marital property agreements without an amendment to the statutory framework". It has, therefore, recommended that legislation be enacted to introduce "qualifying nuptial agreements". Such agreements would enable couples to make binding contractual arrangements about the financial consequences of divorce. Where a qualifying nuptial agreement exists, the court could only make orders where the needs of either party or a child of the family required it to diverge from the qualifying agreement.

In SA v PA [2014] EWHC 392 (Fam) the court upheld a Dutch agreement and declined to make a maintenance award on the compensation principle sought by the wife. The parties were found to have freely and validly entered into the agreement. The court was satisfied that they had sufficient advice to enable them to appreciate its implications (even though the wife was heavily pregnant at the time and it was only signed on the eve of the wedding).

A case heard only days later, Luckwell v Limata [2014] EWHC 536 (Fam), further supported the principles put forward in Radmacher. It highlighted that there are considerations, such as the current and likely future needs of a party, which are capable of having the effect that an agreement should not be applied fully. In this case the court held that it would not be fair to implement the agreement reached between the parties in full, due to the ongoing needs of the husband, which would not have been met sufficiently by the terms of the agreement.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

For a marriage celebrated in a foreign jurisdiction to be recognised as valid in England, both:

  • The marriage must be "formally" valid. English law follows the principle of lex loci celebrationis (the law of the place of celebration). A foreign marriage will be recognised if it complies with the formalities of the country in which it was celebrated. Any procedural error which means that the marriage is not properly conducted in the country where it is celebrated will almost certainly mean that it is not recognised in the UK. If an overseas marriage is properly conducted, it will usually be recognised in England, Scotland, Wales and Northern Ireland. It is not possible for individuals to remarry in the UK without the overseas marriage first being dissolved.

  • Each of the parties to the marriage must have "capacity". Capacity to marry is governed by the law of each party's pre-marital domicile. If there is any doubt as to the validity of the marriage, it is possible to ask a court for a declaration of status under section 55(1) of the FLA 1986.

Traditional religious marriages are recognised in the UK if they are valid in the country in which they took place.

Divorces/annulment

The Brussels II Regulation provides a straightforward set of rules for the recognition of foreign divorces in Europe, which in most cases will be automatic.

Divorces, annulments and judicial separations granted in one UK jurisdiction are automatically recognised throughout the UK if they were granted by a court of civil jurisdiction (section 44(1), FLA 1986).

A divorce obtained by means of judicial or other proceedings in a country not a signatory to the Brussels II Regulation will be recognised if both (section 46(1), FLA 1986):

  • The divorce is effective under the law of the country in which it was obtained.

  • At the date of the commencement of the proceedings, either party to the marriage was habitually resident, domiciled in or was a national of that country.

Section 46(2) of the FLA 1986 deals with divorces obtained other than by means of proceedings. These divorces are only recognised if both:

  • The divorce is effective under the law of the country in which it was obtained.

  • At the date on which it was obtained, each party to the marriage was domiciled in that country or either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce is recognised as valid.

In Solovyev v Solovyeva [2014] EWFC 1546 it was held that a Divorce Certificate from the Consulate of the Russian Federation in London was not a valid divorce in the jurisdiction of England and Wales, although it met the requirements of the law of the Russian Federation.

In Met v Hat (No 2) [2014] EWHC 717 (Fam) the court held that the single talaq pronounced by the husband before a judge in his home country (Egypt) was the effective divorce, and was entitled to recognition as a divorce "proceeding" in this jurisdiction.

Civil partnerships

Schedule 20 of the CPA 2004, as amended, sets out the specified overseas relationships which will be specifically recognised as civil partnerships in the UK. The civil partnership is treated as having been formed when the overseas relationship was registered in the relevant country, but it is important to note that no civil partnership can be deemed to have been formed before 5 December 2005. In certain circumstances, partners may apply to the English court for a declaration as to the validity of their overseas relationship.

Same-sex marriage

Since the implementation of the Marriage (Same Sex Couples) Act 2013 in March 2014, couples of the same sex have been able to marry. It is important to note that:

  • A new Schedule A1 has been inserted into the Domicile and Matrimonial Proceedings Act 1973 which confirms that the English and Welsh courts have jurisdiction to hear proceedings regarding same-sex couples.

  • The Brussels II Regulation only deals with divorce of opposite sex couples. The creation of a procedure for divorce of same sex couples is therefore left to individual countries.

  • Same-sex couples who have married outside England and Wales are treated as being married in England and Wales. Therefore it is possible for parties in England and Wales who were validly married in another jurisdiction to petition for divorce in this jurisdiction.

Regulation 2 of the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014 sets out the criteria which a couple must meet for the courts in England and Wales to have jurisdiction in same sex proceedings. The regulations apply to all marriages of same sex couples (including those registered outside the UK) recognised as marriages under the Marriage (Same Sex Couples) Act 2013.

It is now possible to convert a civil partnership into a same sex marriage provided the couple are registered as civil partners of each other in England and Wales. There are five conversion procedures, the two principal being the standard procedure which is purely administrative, and the two-stage procedure where the signing of a conversion declaration can be followed by a ceremony at an approved secular or religious premises. The conversion itself can take place at the approved premises.

Divorce

7. What are the grounds for divorce?

Divorce

The provisions of Part II FLA 1996, which would have introduced no fault divorce, have not been implemented. Therefore, England and Wales remains a fault-based jurisdiction.

A divorce petition cannot be presented to the court before one year from the date of the marriage. It can be issued either at the Central Family Court in London, or at any divorce county court in England and Wales. The sole ground for divorce is that the marriage has broken down irretrievably. This can be established if one of the following five facts is proved:

  • Adultery by the respondent which means the petitioner finds it intolerable to live with the respondent (but note that the new section 1 (6) of the MCA 1973 provides that adultery can only be committed between people of the opposite sex).

  • Behaviour by the respondent which means that the petitioner cannot reasonably be expected to live with the respondent.

  • Desertion by the respondent for a period of two years.

  • Separation for two years and the parties agree to divorce.

  • Separation for five years.

Nullity

A decree of nullity may declare that a marriage is either void from the outset or voidable. Proceedings must be instituted within three years of the marriage. If it is declared to be voidable, the marriage will be treated as valid and subsisting until the decree is obtained. A marriage is deemed void if any of the following apply (section 11, MCA 1973):

  • The parties are too closely related.

  • Either party is under the age of 16.

  • The formalities required for a valid marriage were not adhered to.

  • The marriage is bigamous.

  • Note that the M(SSC) A 2013 repealed section 11(c) of the MCA 1973 with the result that the fact that the parties are not respectively male and female does not make a marriage void.

  • In the case of a polygamous marriage celebrated abroad, one of the parties was domiciled in England and Wales.

If it is decided that the marriage is void, a decree of nullity is not necessary as the marriage is considered never to have existed.

A marriage is voidable in any of the following circumstances (section 12, MCA 1973):

  • There is a lack of consent.

  • Failure to consummate through the incapacity of either party or the wilful refusal of the respondent (but note that non-consummation does not apply to same sex marriages).

  • The mental incapacity of either party.

  • Venereal disease or pregnancy by another at the time of the marriage.

  • That an interim gender recognition certificate under the Gender Recognition Act 2004 has been issued to either party after the marriage or that the Respondent is a person whose gender at the time of the marriage had become an acquired gender under the Gender Recognition Act.

Judicial separation

An application for a decree of judicial separation can be made if one of the five facts listed for divorce exists but the petitioner does not need to demonstrate that the marriage has broken down irretrievably (section 17(2), MCA 1973) (see above, Divorce).

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

The court has a wide discretion in relation to the division of assets on divorce or judicial separation. It has the power to order a party to (sections 22 to 24A, MCA 1973):

  • Make, or arrange, periodical payments to the other party for as long as the court decides is necessary (sometimes known as maintenance).

  • Pay a lump sum or sums to the other party.

  • Make, or arrange, periodical payments for the benefit of any children (known as child maintenance (subject to certain restrictions set out in child support legislation)).

  • Pay a lump sum for the benefit of any children.

  • Transfer specified property to the other party.

  • Make a settlement of specified property (that is, set up in trust, for the benefit of the other party and/or a child of the family).

  • Vary any nuptial settlement or trust made for the benefit of one of the parties.

  • Sell specified property and distribute the proceeds.

  • Share a pension fund.

 
9. What factors are relevant to the exercise of the court's powers?

The court must give first consideration to the welfare of any children under the age of 18. All the factors the court must take into consideration when deciding what orders to make are as follows (section 25, MCA 1973):

  • The financial resources which each party has, or is likely to have in the foreseeable future.

  • The financial needs of each party now and in the foreseeable future.

  • The standard of living enjoyed by the family before the breakdown of the marriage.

  • The age of the parties and the duration of the marriage.

  • Any physical or mental disability of either party.

  • The contributions made by each party to the welfare of the family, including any contribution by looking after the home or caring for the family, and any contributions which either is likely to make in the foreseeable future.

  • The conduct of each of the parties, if that conduct is such that it would be unjust to disregard it (it is very rare for the court to take conduct into consideration unless it has been serious financial misconduct).

The court has a duty, both at the time of making the original periodical payments order and on any subsequent application to vary it, to consider imposing a "clean break" by terminating the maintenance order immediately or on payment of a capital sum. It is only possible to challenge a final order relating to capital in highly exceptional circumstances, specifically if, shortly after the order was made, a totally unforeseen event takes place which completely invalidates a fundamental assumption made by the judge when making the order (for example, the death of one of the parties).

The starting point in respect of costs is that each party should bear their own costs, unless there has been litigation misconduct by one of the parties, in which case the other party may be able to recover the costs directly referable to that misconduct.

 
10. What is the court's current position on the division of assets?

Current position

In White [2000] 2 FLR 981 the House of Lords reviewed the operation of section 25 of the MCA 1973 and considered the way in which the lower courts had been applying the law. The court's objective must be to achieve a fair outcome and, in considering how fairness is best achieved, the House of Lords established two key principles:

  • There should be no bias in favour of the money-earner against the home-maker. Whatever the division of roles between the husband and wife, their contribution to the marriage, and to the family assets, should be seen as having equal value.

  • A judge exercising his discretion pursuant to section 25 of the MCA 1973 should check his tentative views against the yardstick of equality of division and should depart from it only if, and to the extent that fairness requires it. Judges who give a spouse less than half of the matrimonial assets should be able to explain why they have "departed from equality".

In the subsequent cases of Miller/McFarlane [2006] UKHL 24, the House of Lords confirmed the two main principles set out in White, but went much further in exploring the issues facing the courts when making financial orders on divorce. The Lords agreed on three key principles justifying the redistribution of property on divorce, disagreeing to some extent on the detailed application of those principles. When dividing assets on divorce, judges should consider:

  • The needs (generously interpreted) generated by the relationship between the parties.

  • Compensation for any financial disadvantage generated by the relationship.

  • The sharing of the fruits of the matrimonial partnership.

The court should consider all three, being careful to avoid double counting. The ultimate objective of the court is to give each party an equal start on the road to independent living. In Charman [2007] EWCA Civ 1791, the Court of Appeal reviewed the three principles identified in Miller/McFarlane, and discussed how to apply the principles in practice. The court made the general point that in the event of irreconcilable conflict between the principles, the overriding criterion is fairness.

Reasons to depart from equality of division

The reasons to depart from equality of division are as follows:

  • Shortness of marriage (Miller v Miller [2006]).

  • Inheritance (only in cases where there is a surplus of assets required to meet the parties' reasonable needs).

  • Illiquidity (difficulties in borrowing and the nature of assets may justify a departure from equality).

  • Special contribution (to be taken into account, such a contribution must be wholly exceptional).

  • Wealth generated prior to the marriage and after separation (assets brought into the marriage or acquired or created by one party after separation may qualify as non-matrimonial property). This factor will only carry weight in cases where the assets available for distribution exceed the parties' reasonable needs and where the non-matrimonial property can be clearly identified.

  • Needs exceed resources. Equality may be departed from in cases where the parties' needs exceed the assets available for distribution (that is, where most of the capital is required to house the wife and children). In such cases, equality may be deferred by giving the party who receives less an interest realisable at a later date (for example, a share in the family home secured by a charge on the property realisable when the youngest child completes full-time education).

  • In Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam) the court held that a significant departure from equality was justified because of the husband's special contribution in building up vast wealth of US$6 billion, much of which had been donated to two charitable foundations. Between the date of separation and the final hearing, there was a significant increase in the value of the assets due to the husband's "financial genius" and the wife was therefore awarded US$530 million which was 36% of resources totalling US$1.5 billion.

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

As an interim measure, either party can apply at any time until the final hearing for maintenance pending suit (section 22 MCA 1973). Since the insertion of section 22 ZA MCA 1973 by the Legal Aid, Sentencing and Punishment of Offenders Act 2013, the court can include provision for legal costs as part of a monthly maintenance award (legal services payment order).

The court can order either party to the marriage to make periodical payments to the other and to provide that these payments are secured (section 23(1), MCA 1973). An order, which can be backdated to the date of the application, will terminate by operation of law on either:

  • The recipient's remarriage.

  • The death of either party.

  • The making of a further court order.

The court has discretion to fix a term for the making of periodical payments, and in certain circumstances, to bar the recipient from applying to extend the term (section 28(1), MCA 1973).

 
12. Is it common for maintenance to be awarded on marital breakdown?

The courts recognise that both parties require an income. Therefore, it is common for periodical payments to be awarded, particularly to the person who is the children's primary carer and whose earning capacity is temporarily or permanently reduced by childcare obligations.

 
13. What is the court's current position on maintenance on marital breakdown?

The general principle is that the quantum of any order is assessed with reference to the section 25 MCA 1973 criteria (see Question 9), after consideration has first been given to the welfare of any minor children of the family. There is no prescribed formula and each case will be decided on its own facts and circumstances. In fixing the amount, the court has a wide discretionary power but will generally try to achieve a balance between the budgetary needs of the parties and the income resources available to them. McFarlane illustrated that, in cases where there is surplus income, the courts can order maintenance to enable one party to build up capital for the future.

Child maintenance

14. On what basis is child maintenance calculated?

The legal requirement for parents to support their children financially continues after divorce or a separation. Non-resident parents must provide payment to the parent with care in respect of children who are under the age of 16 or under the age of 20 and in full-time secondary education. For parents who cannot agree maintenance arrangements and who are both resident in England and Wales, there is a complex set of laws and regulations commencing with the Child Support Act 1991 and a series of amending statutes and regulations. These have effectively resulted in three child support regimes, the most recent of which is the 2008 regime, referred to as the gross income scheme, which now applies to all new child maintenance applications. Since November 2013, all new cases have been administered by the Child Maintenance Service (CMS) which replaced the Child Support Agency (CSA). The CSA therefore no longer takes on new cases, but still handles existing cases.

The CMS calculates the payments using a fixed statutory formula which works on the basis of the paying parent's yearly gross income using information supplied by HM Revenue & Customs or information about benefits received by unemployed parents. Those who earn GB£100 or less gross per week are charged a flat rate of GB£5 per week. Those who earn between GB£100.01 to GB£199.99 gross per week will pay a reduced rate to that set out below. For those earning over GB£200 gross per week the percentages payable of gross income will be:

  • Weekly gross income over GB£200 and up to GB£800 per week:

    • 12% of gross income for one child;

    • 16% of gross income for two children;

    • 19% of gross income for three or more children.

  • Weekly gross income over GB£800 and up to GB£3,000 per week:

    • 9% of gross income for one child;

    • 12% of gross income for two children;

    • 15% of gross income for three or more children.

If the non-resident parent's gross weekly income exceeds GB£3,000, the parent with care can apply to the court for increased maintenance.

The court can also make orders for the payment of school fees, maintenance for step-children and where the child is over the child support age but has a disability which requires extra financial support.

The figure can be adjusted to take into account the number of nights in excess of 52 a year a child stays with the non-resident parent. Additionally, if the non-resident parent has other children living with them, the figure can be adjusted to take this into account.

The court can also order lump sum payments or the settlement of property for the benefit of a child under Schedule 1 of the CA 1989.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

Part II of The Maintenance Orders (Reciprocal Enforcement) Act 1972 makes provision for maintenance orders made in signatory countries to be registered and enforced in the UK, against a UK resident. Once an application made by the relevant foreign authority is received by the Reciprocal Enforcement of Maintenance Orders (REMO) section at the Department for Constitutional Affairs, it can be registered with the appropriate court and enforced accordingly. The list of reciprocating countries is extensive and is contained in the Recovery Abroad of Maintenance (Convention Countries) Order 1975 (SI 1975/423), as amended. The United States (excluding Alabama, Mississippi, South Carolina and the District of Columbia) are signatories, albeit with some modifications as to the procedure to be followed, by virtue of the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 1995, SI 1995/2709.

Similarly, a UK resident can make use of reciprocal arrangements and enforce maintenance orders made by a UK court in other signatory countries.

The Civil Jurisdiction and Judgment Act 1982, as amended, gives effect to Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) and further allows for the recognition and enforcement of maintenance orders as well as the enforcement of judgments, other than maintenance orders, made in a Brussels II Regulation or EFTA Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988 (Lugano Convention) signatory jurisdiction.

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

Part III MFPA 1984 provides the framework within which an individual can, in certain circumstances, apply through the English courts for financial relief following an overseas divorce.

Permission must be obtained from the court before applying for financial relief. The court has jurisdiction to hear such an application in any of the following circumstances (section 15, MFPA 1984):

  • Either party is domiciled in England and Wales either on the date of the application for permission (leave) or on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country.

  • Either party was habitually resident in England and Wales for one year ending either with the date of the application for leave or with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect.

  • Either or both had, at the date of the application for leave, a beneficial interest in possession in a dwelling-house situated in England or Wales, which was at some time during the marriage a matrimonial home.

Permission to bring Part III proceedings will be granted if there is "substantial ground for the making of an application for such an order" (section 13(1), MFPA 1984). The relevant facts to which the court will have regard are contained in section 16(2) and include the following:

  • The parties' connection to England and Wales.

  • The jurisdiction in which the marriage was dissolved.

  • The ability of the applicant to apply for financial orders in that jurisdiction.

  • The availability of any property in the jurisdiction of England and Wales.

The Supreme Court case of Agbaje [2010] UKSC 13 has confirmed that it is not necessary for the applicant to prove that any financial award made by a foreign court has resulted in a real hardship or serious injustice. At the same time, the court will not intervene merely because one party wants their financial award "topped-up" to the equivalent award that would have been granted under English law.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

Following the breakdown of a marriage or relationship, the parents may decide between themselves the children's living arrangements and the contact they will have with each parent. If the parents do not agree on the arrangements, either may apply to the court under section 8 of CA 1989 to determine the position. Previously, under section 8 an individual (limited to those set out in section 10 CA 1989) could apply to the court for a contact or residence order. Section 8(1) CA 1989 was amended by the Children and Families Act 2014, to replace residence and contact orders with child arrangement orders (CAO). The court may now order that the child lives with one or both parents or spends time with a parent or someone named in the order. Where the order provides for the child to live with both parents in their respective homes, time in each home will not necessarily be equal.

The concept of parental responsibility is defined in section 3 of the CA 1989 as "all the rights, duties, powers, responsibilities, and authority that by law a parent of a child has in relation to the child and his property". The fact that both parents retain parental responsibility gives them, in theory, an equal say in major decisions in the child's life (for example, schooling, religious upbringing and medical treatment). Day-to-day decisions will inevitably be made by the parent with whom the child resides for the majority of the time. It is possible for more than one person to have parental responsibility for a child at any one time. The CA 1989 sets out those who automatically acquire parental responsibility for a child, that is the mother and the father (if married to the mother at the time of the child's birth). Unmarried fathers may acquire parental responsibility if they are named on the birth certificate, marry the mother of the child, or obtain agreement from the mother or a court order. Parental responsibility may be acquired by adoption or the making of a special guardianship order, by agreement with all those people who have parental responsibility for the child or by a CAO providing that a child is to live with a named person.

When making any order under section 8, the child's welfare must be the court's primary consideration. When determining whether an order is in the child's best interests, the court must consider the welfare checklist set out in section 1(3) of the CA 1989. The factors to be considered include the child's physical, emotional and educational needs, and how capable each of their parents is of meeting their needs. The wishes of the child may be taken into consideration if they are of sufficient age and understanding. The court must give consideration to the "delay" and "no order" principles under sections 1(2) and 1(5) CA 1989 respectively. These state that any delay in proceedings is likely to be prejudicial to the welfare of the child and that the court should only make an order if it is better for the child than if no order were made. The recent CFA 2014 (section 11) has inserted into section 1 of the CA 1989, subsections (2A), (2B) and (3). This addition creates a presumption that the involvement of a parent in a child's life will further the child's welfare. However, this is only the case if there is no evidence to the contrary (that is, that the involvement will put the child at risk of suffering harm). The presumption only applies to parents.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

Since the CFA 2014, arrangements relating to contact with a child now fall under the court's power to make CAOs under section 8(1) CA 1989. (see Question 17). Parents can determine arrangements between themselves, with the court able to make an order under section 8 of the CA 1989 if they are unable to reach agreement. In all cases which come before the court, safeguarding checks are undertaken by CAFCASS (Child & Family Court Advisory & Support Service). Where there are allegations of or proven domestic violence, contact may be limited to indirect means such as cards and letters, or may be supervised.

Conditions may be attached to contact (for example, where the parent with care fears abduction, the non-resident parent may have to surrender their passport for the duration of contact).

If a parent is in breach of a CAO order, the other parent may apply for an enforcement order for breach of which there are penalties including a requirement to undertake unpaid work.

As set out in answer to Question 17 when making a CAO, the court must consider the welfare checklist, the "no order" principle and work on the presumption that a parent's involvement will further the child's welfare. Contact is seen as a right of the child and not the parents.

International abduction

19. What is the legal position on international abduction?

England is a party to the Hague Convention which sets out strict rules on the wrongful removal of a child from its place "of habitual residence", or the wrongful "retention" of a child away from its place of habitual residence, in breach of the other parent's "custody rights". The Convention provides that the courts of signatory states will generally return an abducted child to the country it came from, although there is a limited discretion in certain circumstances to allow the child to stay in the new country.

Where the child's country of habitual residence is not a Convention signatory, the English courts will be guided by whether or not the return would be in the child's best interests taking into account such factors as nationality, language, race and how familiar the child is with England. An English parent trying to secure the return of a child from a country which is not a Convention signatory could face substantial difficulties.

Abduction

The Convention sets out strict rules about what constitutes abduction. It occurs where either:

  • A parent takes a child out of the home country without the other parent's permission.

  • The child has been taken out of the home country with the other parent's permission, but is not returned as agreed.

The "habitual residence" of the child is usually straightforward as it is the country where the child lives on a day-to-day basis. If the child was in the process of moving home abroad, this can be more difficult. Abduction will not result in a change in the habitual residence of the child.

Abduction requires the violation of "custody rights" and this term is not well defined. It seems to involve having the right to help make decisions about the care of the child, particularly in relation to determining where the child is to live. As custody arrangements operate differently from country to country, the circumstances of each individual case must be carefully considered. In England and Wales, the question of whether a parent has "parental responsibility" under the CA 1989 is relevant.

Defences

Defences which may prevent the return of a child to a home country include:

  • Clear evidence of consent or acquiescence to the removal of the child.

  • Where there is a real and substantial risk that the return of the child would expose them to physical or psychological harm or otherwise place the child in an intolerable situation.

If a parent seeking a child's return under the Convention applies less than one year after the abduction, the court in the new country must order the return of the child unless one of these defences has been established. If the application was made over a year after the abduction, the new country must return the child unless one of the defences has been established or it is demonstrated that the child is now settled in the new country. The court may refuse to order the return of the child who objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views. In Jan 2015 the Court of Appeal set out a two-part test for the assessment of a child's objections to returning. At the "gateway stage" it is necessary to establish that the child objects to a return and is of an age and degree of maturity at which it is appropriate to take account of his or her views. If these factual matters are established, the court will then proceed to the discretionary stage of assessing whether the child's objections to a return should prevail ((Re MC Republic of Ireland) (child's objections) (Joinder of children as parties to appeal) [2015] EWCA Civ 26)).

The Brussels II Regulation places emphasis on the views of the children but this defence is not often upheld due to the possibility that the child's views have been influenced by the adult with whom they are living. In England and Wales it has historically been very difficult to establish this defence. Since the Supreme Court decision in Re LC (Children) (No 2), the child's state of mind about his or her integration in a family and social environment has become an important test for habitual residence in a particular country. In Re S (A child) (Habitual Residence and child's objections (Brazil) [2015] EWCA Civ 2I the Court of Appeal allowed the mother's appeal in relation to the child's habitual residence but declined to order the child's summary return, relying on the 12 year old child's objections to a return and the judge's exercise of discretion.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

A parent who shares parental responsibility with another parent cannot remove a child from the jurisdiction without written consent of that person or permission of the court.

In contrast to the approach adopted in much of the US, the English approach is generally said to favour the mother who wishes to relocate to a foreign jurisdiction, particularly if she is the sole carer.

Applications for leave to remove are governed by the welfare principle as set out in section 1 of the CA 1989. Most applications for leave to remove are made by mothers (and primary carers of children). The courts have until recently endorsed the approach taken in Payne [2001] 1 FLR 1052 where, as well as considering the welfare of the child and whether the application was genuine, the court looked at the impact of refusing the application on the mother.

This approach has been seen as increasingly out of touch with modern shared parenting arrangements. The decision in MK v CK [2011] EWCA Civ 793 recognised that where shared parenting exists, the role of each parent in the child's life may be "equally important".

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

The key legislation is:

  • The Surrogacy Arrangements Act 1985 (SSA 1985).

  • Adoption & Children Act 2002 (ACA 2002).

  • The Human Fertilisation and Embryology Act 2008 (HFEA 2008).

Surrogacy agreements are currently unenforceable under English law (section 1A, SSA 1985). In addition, there are a number of criminal offences in relation to surrogacy, including advertising for a surrogate mother (section 3, SSA 1985).

Despite this, people still enter into surrogacy agreements. The legal consequences in terms of the parent/child relationship are governed by sections 33 to 42 of HFEA 2008. The surrogate is the legal mother of the child and any husband of hers the legal father. If she is in a civil partnership, her partner will be a legal parent. If the woman is unmarried at the time of the surrogacy, the intended father can be named as the legal father.

Once the child is born, legal parenthood can be transferred from the surrogate (and her husband or partner) to the intended parents. At present, only couples who are married (heterosexual or same-sex), or in civil partnerships or long-term cohabiting can apply to become the legal parents of a surrogate child. The intended parents have six months from the birth of the child to apply for a parental order.

The court must be satisfied that the surrogate mother and any other deemed legal parent give their full and informed consent, that no money or benefits other than "reasonable expenses" have been transferred to anyone involved in the surrogacy arrangement. However, recent decisions have recognised the "reality" of "the legal commercial framework which is driven by supply and demand" (Theis J in Re P-M (Parental Order: Payments to Surrogacy Agency) [2013] EWHC 2328 (Fam) [2014] (FLR 725)) to authorise payments over and above expenses incurred by the surrogate.

With international surrogacy arrangements, the courts have confirmed that English law takes precedence over foreign surrogacy laws (that is, foreign court orders and birth certificates will not be recognised). In Re X (Children) (Parental Order: Foreign Surrogacy) [2008] EWHC 3030 ( Fam) the court granted a parental order despite the parents' payment to a surrogate. This was primarily because the welfare of the child demanded it and the parents had not exploited the surrogate. Similar considerations were applied by Theis J in Re G and M (Parental Orders) [2014] EWHC 1561 (Fam) to make parental orders with respect to twins born to a surrogate in the US State of Iowa. The law of Iowa required the genetic fathers to adopt their civil partner's baby but this was in breach of section 83 of the ACA 2002. The judge decided the fathers had acted in good faith and she made parental orders to ensure "that each child's lifelong welfare needs can only be met by their legal relationship with the applicants being on the securest footing possible".

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

Married people, civil partners, cohabiting couples and individuals can all adopt under English law. The key legislation governing adoption is:

  • The Adoption Act 1976.

  • The Adoption and Children Act 2002 (ACA 2002).

  • The Children & Families Act 2014 (CFA 2014).

Parental consent is required for an adoption (section 19, ACA 2002) but this can be, and often is, dispensed with through section 52 of the ACA 2002 by the court making a placement order.

When making an order which contemplates non-consensual adoption, three key points need to be considered by judges (Re B (A Child) (Care Proceedings Threshold Criteria) [2013] UKSC 33), namely:

  • The child's interests. It is in the child's interests to be brought up by their natural parents (however, this must be countered with any concerns relating to the child's welfare).

  • Every option which is available must be discussed.

  • When determining the natural parents' ability to discharge their responsibilities towards the child, any help or support which they can draw on must be considered.

Once a placement order is granted or consent to adoption is given, a period of prospective adoption is required before an application for a final adoption order can be made. If the child was placed with applicants by an adoption agency or High Court Order, or the applicant is a parent of the child, the child must have had his home with the applicants for the ten weeks preceding the application. The period for which the child must have had his home with the applicants is longer in the case of the partner of a parent of the child (six months), local authority foster parents (one year) or any other individual (three years or more).

Following an application, the court has to consider a number of factors in determining whether to grant an adoption order:

  • The primary consideration is the child's welfare throughout his life. The factors outlined in section 1(4) of the ACA 2002 include the child's needs, any harm they are at risk of suffering and any relationship they have with the birth family.

  • The court must also consider the delay principle (section 1(3), ACA 2002) (that is, whether any delay would jeopardise the child's welfare).

  • The requirement for the court to give due consideration to the child's religious, racial, cultural and linguistic background (section 1(5), ACA 2002) has been repealed by the CFA 2014.

Generally, the effect of an adoption order is to treat the child as if they were born to the adopter(s) (section 67, ACA 2002). Contact with the birth parents may be granted through a contact order, but there is no automatic right to it. The adopted child may choose to make contact with their birth parents once they are 18 years of age.

 

Cohabitation

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

Unlike marriage, no legal or financial responsibility between couples will arise from the simple fact of cohabitation. Despite a common misconception, England and Wales does not recognise the so-called "common-law marriage" (whereby a couple who live as man and wife without getting married acquire legal rights in relation to each other), regardless of the length of their cohabitation. Cohabitants have little legal protection and any claims that arise from the relationship fall into two categories:

  • Claims brought on behalf of children.

  • Claims for an interest in property.

To establish an interest in a property not held in joint names, a cohabitant must rely on property law and the principles of constructive trusts and proprietary estoppel.

Properties held in joint names (a joint tenancy) are generally shared equally on relationship breakdown. If the property is held in unequal shares based on initial contribution to the purchase price (a tenancy in common), each cohabitant will take back their relative share on sale.

To establish a constructive trust, the claimant must show that there was an agreement, arrangement or understanding to own a property jointly. The agreement can be express or inferred from conduct. The claimant must then have acted to his detriment, for example by making financial contributions, on the understanding that he would thereby acquire an interest in the property. Alternatively, the claimant can rely on proprietary estoppel, which has traditionally been applied where the claimant was led to believe that the property would be owned jointly, and acted to their detriment upon that assurance.

While there is growing pressure for change, there are no immediate plans for reform.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

Mediation

Mediation is a form of negotiation using a neutral third party to assist in identifying and narrowing the issues between the parties. Mediators do not provide advice and usually the parties involved rely on their own lawyers for advice.

Collaborative law

Collaborative law is a process whereby the parties and their lawyers negotiate face to face through a series of meetings. The collaborative process requires all the lawyers involved to sign an agreement stating they will not continue to represent the parties if the collaborative approach fails.

Arbitration

Arbitration was introduced in February 2012. It is governed by the provisions of the Arbitration Act 1996 in conjunction with the rules of the Institute of Family Law Arbitrators (IFLA). The process is similar to a final hearing in a court with the arbitrator presiding and making a final award. The IFLA Scheme covers most financial disputes, but not disputes about children.

An arbitration award must be made within a reasonable time after the proceedings have been concluded. The parties must agree to be bound by the arbitral award pursuant to the Form ARB1, in which they must confirm that they have sought advice and understand the implications of the agreement to arbitrate and that they have read the rules of the Scheme and will abide by them. In the case of S v S [2014] EWHC 7 (Fam) the court made certain important findings in relation to arbitration awards, in particular that:

  • The signing of the ARB1 is of importance in binding the parties to the agreement reached and that the order of the court should mirror the arbitral award in the absence of "compelling countervailing factors".

  • Where consent orders are based on decisions reached under an arbitration agreement a judge will check the order to ensure that nothing has gone wrong within the process which would impair the award, the order gives effect to the agreement reached and it is workable.

  • Where a party seeks to argue that an award should not be upheld and this lacks merit the court may make an order reflecting the terms of the arbitral award and provide for its enforcement.

Private financial dispute resolution (FDR)

The parties may opt for a private financial dispute resolution (FDR) hearing. These are "judge-mediated” meetings at which the "judge" will make a recommendation as to the likely range of outcomes if the parties progress their financial dispute to a final hearing. Private judging is normally offered by senior practitioners, many of whom have experience of sitting as deputy judges in family courts. The intention is to focus the minds of the parties and encourage them towards settlement.

Enforceability

Mediation, collaborative law and private FDR hearings do not, by themselves, produce binding decisions. If the parties reach agreement, they must submit consent applications to the court which must judge the fairness of the agreed terms in the light of the parties' summary of their circumstances before sealing the court order.

Although English law does not allow parties to make final agreements as to finances following divorce or separation without the possibility of court review and any arbitration decision must be approved by the court, indications are that the awards will be upheld.

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

Mediation, collaborative law and private hearings do not have any statutory basis under English law.

The FPR contains an "overriding objective" at Part 1 requiring the court to deal with the matter justly and the parties to assist the court in achieving this aim. Dealing with the matter justly includes saving expense and dealing with the case expeditiously. This clearly requires the parties to attempt to settle where possible. Costs may be awarded against a party who takes a wholly unreasonable stance in refusing to negotiate or attempting to settle.

Parties are not compelled to attempt alternative dispute resolution before issuing proceedings. However, they are strongly encouraged to do so. The Family Procedure Rules 2010 introduced the pre-application protocol which has now been reinforced by section 10 of the CFA 2014 and resulting amendments to the FPR in 2014 are needed.

Practice Direction 3A of the FPR 2010 requires parties to attend a Mediation Information and Assessment Meeting (MIAM) before issuing financial and Children Act proceedings. This requires the parties to consider mediation but it does not commit them to the procedure. The amendments to Practice Direction 3A have introduced more stringent requirements which a party must meet in order to dispense with the need to attend a MIAM and as a result it is only rare cases in which proceedings can be issued without attending a MIAM (for example, an emergency application or there has been a failed mediation in the last four months). If parties fail to attend a MIAM and proceedings are issued the judge will take this into account and may put court proceedings on hold until such time as the parties have attended a MIAM.

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

Governed by the CPA 2004, civil partnerships are often said to be civil marriage in all but name, but there remains an important legal distinction between the two institutions. Rayden on Divorce summarises the position: "marriage requires the participation of two persons one a man the other a woman".

Since March 2014, the Marriage (Same-Sex Couples) Act 2013, makes the marriage of same-sex couples lawful in England and Wales. Same-sex married couples will be treated in the same way as opposite sex married couples, except that religious organisations may choose whether or not to opt in to marrying same-sex couples according to their rites and marriage procedures.

Civil partners are now able to convert their civil partnership into a same sex-marriage by way of a simple administrative procedure called a "standard conversion" or the two-stage process of conversion followed by a secular or religious ceremony at a venue where same sex couples are able to marry.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

One issue which continues to be controversial is the removal of almost all legal aid in family matters with effect from 1 April 2013. Legal aid is still available for care proceedings and cases involving domestic violence. Parties, however, have to find alternative ways of funding any other proceedings involving children and any financial disputes. Concerns have been raised that this is denying people access to justice and that an increased number of people are acting as "litigants in person", resulting in a slowing down of the court system. In the case of Tufali v Riaz [2013] EWHC 1829 (Fam), Holman J noted the fact that the "delays and confusion arising" were a direct result of the lack of legal aid available to either of the parties. Similarly in the case of Kinderis v Kineriene [2013] EWHC 4139 (Fam), the final hearing (in respect of an application for return of a child) was delayed beyond the timetable of six weeks required by the Brussels II Regulation because of the mother's lack of representation due to her inability to access public funding.

In February 2014, the Law Commission published its long awaited Report on reform of family law. The Report covered two main issues, the first of which was the extent to which couples should be able to regulate their financial arrangements through pre- or post-nuptial settlements. Secondly, the Report addressed the problems arising from the exercise of discretion in determining the financial needs of divorcing couples and the extent to which one spouse should be required to meet the other's needs following divorce.

The Law Commission recommended that "qualifying nuptial agreements" should become enforceable as contracts. The qualifying requirements were that the agreement should be contractually valid, made by deed and containing a statement signed by both parties that they understood that the agreement was a qualifying agreement which would partially remove the court's discretion to make financial orders. Agreements should be made at least 28 days before the wedding and the parties should have each disclosed material information about their respective financial circumstances before entering into the agreement. Finally, they should receive legal advice at the time the agreement is formed. The government's final response to the report will not be made until after the general election in May 2015.

The Law Commission did not recommend legislation on the determination of needs following divorce but instead proposed that the Family Justice Council (FJC), a body made up of family judges and senior practitioners, should be asked to publish guidance clarifying the meaning of "financial needs" to ensure that courts, lawyers and people without legal representation have access to a clear statement of their financial responsibilities following divorce. The FJC has convened a sub-group chaired by Mrs Justice Roberts which has been charged with the preparation of guidance on financial needs for litigants in person explaining the key principles in financial remedy cases and for judges. At the same time, the government has accepted the Law Commission's recommendation to undertake work to assess the feasibility of developing a numerical formula to make the outcome of financial remedy disputes more predictable.

 

Online resources

British and Irish Legal Information Institute

W www.bailii.org

Description. All Acts of Parliament and Statutory Instruments, as well as case reports referred to in this article can be found on this website.



Contributor profile

James Stewart, Partner

Penningtons Manches LLP

T +44 20 7404 4433
F +44 20 7430 1133
E james.stewart@penningtons.co.uk
W www.penningtons.co.uk

Professional qualifications. Solicitor of the Supreme Court of England and Wales, 1990; Solicitor of the Court of Judicature of Northern Ireland, 2012; Fellow of International Academy of Matrimonial Lawyers (IAML); Member of the Chartered Institute of Arbitrators (MCIArb); Member of the Institute of Family Law Arbitrators (IFLA)

Areas of practice. Private domestic and international family law.

Professional associations/memberships. Law Society of England and Wales, Resolution, American Bar Association (ABA), Chairman of Collaborative Family Law (CFL) and Co-Chairman of Multilaw Family Law and Private Client Practice Group.

Publications. General Editor of Family Law: Jurisdictional Comparisons (first and second editions) and Co-author of International Pre-nuptial and Post-nuptial Agreements – Russian and Ukrainian chapters (Family Law 2011).


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