FAMILY LAW & PRACTICE NOTES
1- Divorce
PREP TASK 1 – DIVORCE PROCESS
Client: Mrs Debbie Purdicue
Ground for divorce: The marriage has broken down irretrievably (s1(1) MCA 1973)
Fact: B- “The respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with the respondent” (s1(2)(b))
Objective test (FAULT BASED)
Ground: The marriage has broken down irretrievably (s1(1) MCA 1973)
Fact: How to prove? How does 6 month rule Are there any
apply? defences?
ADULTERY (A) Adultery; and The petitioner is not entitled
That the respondent has (B) Intolerability. (Not a basis for a to rely on adultery committed
committed adultery and petition to dissolve a CP) by the respondent if the
the petitioner finds it parties cohabit for a period,
intolerable to live with NB: s1(6) MCA 1973 - only conduct or periods together,
the respondent. (MCA between the respondent and exceeding six months after
1973, s 1(2)(a)) person of the opposite sex can the petitioner has discovered
constitute adultery. the adultery (MCA 1973, s
2(1)).
BEHAVIOUR Objective test – value judgment The fact that the petitioner
That the respondent has made by court. and respondent have lived
behaved in such a way with each other for a period
that the petitioner e.g. Physical violence, verbal abuse, or periods not exceeding six
cannot reasonably be cruelty, failure to provide money, months in total after the last
expected to live with the food, affection incident of behaviour relied
respondent. (MCA 1973, ® It does not have to be grave and on must be disregarded in
s 1(2)(b)) weighty behaviour but is must deciding whether the
be something of substance. petitioner can reasonably be
® However, the mere fact that the expected to live with the
petitioner has become bored respondent (MCA 1973, s
with the marriage, or that the 2(3)).
parties are simply incompatible,
will not be sufficient. But court will take length of
cohabitation into account.
DESERTION ® Must be a separation. Can be In considering whether a
That the respondent has two separate households under period of desertion has been
deserted the petitioner the same roof (Hopes) continuous, no account is to
for a continuous period ® Must be intention to desert i.e. be taken of a period or
of at least two years to bring matrimonial union periods not exceeding six
immediately preceding permanently to end. months in total during which
the presentation of the ® P must not consent or agree to the parties cohabited (MCA
petition. (MCA 1973, s the separation. 1973, s 2(5)).
1(2)(c)) ® R must not have a just cause for
leaving.
® Must be continuous.
1
, FAMILY LAW & PRACTICE NOTES
® The desertion must immediately
precede presentation of
petition i.e. date when it is filed.
2 YEARS SEPARATION 1. Separation (2 yrs) s2(5) MCA 1973 applies to the R may apply to
AND CONSENT ® Spouses treated as living continuity of separation in the the court for
That the parties to the apart unless they’re living same way as it does to consideration of
marriage have lived together in same household desertion Therefore, in his financial
apart for a continuous (s2(6) MCA) BUT treated as deciding whether the living position following
period of at least two living apart even if under apart has been continuous, a divorce (s10(2)).
years immediately same roof if living period not exceeding, or Court must
preceding the completely separate lives periods together not consider all the
presentation of the ® Must also be a mental exceeding, six months will be circumstances, +
petition ... and the element ignored. However, they must will not make the
respondent consents to a be added to the total period decree absolute
decree being granted. 2. Respondent’s consent to the of separation so that the time unless satisfied
(MCA 1973, s 1(2)(d), decree that the parties have actually that:
® Consent must be given in lived apart is at least two (a) P should not
writing (FPR 2010, r years. be required
7.12(12). to make any
financial
provision for
R; or
(b) The financial
provision
made is fair +
reasonable,
or best that
can be made
in the
circumstances
(s 10(3)).
5 YEARS SEPARATION After five years’ separation, no need ® Deny the
That the parties to the for petitioner to obtain separation, or
marriage have lived respondent’s consent to the divorce prove grave
apart for a continuous and either party can petition. hardship
period of at least five under s5
years immediately ® Decree may
preceding the petition. be delayed by
(MCA 1973, s 1(2)(e)) R asking for
his financial
position to be
considered
under s 10(2)
of the MCA
1973 (as
above)
2
, FAMILY LAW & PRACTICE NOTES
Reasons:
• Myles is in an intimate relationship with Simon (even though it falls short of sexual acts)
• Emotionally distant since her promotion at work
• Teasing about thinking he’s having another affair – calling her “jealous little Super”
• Having gay pornography in the spare bedroom where the children may have seen or found it
• Unsupportive of her in her career
• Not agreeing to intercourse
When drafting the particulars of behaviour on the divorce petition (N8) remember “first, worst, last”
à avoid inflammatory language
Documents to be filed at court:
- Petition (with copies for service)
- Marriage certificate (original or certified document)
- Certificate of reconciliation
- Fee (£550)
Matters to take into account include: (based on Resolution advice)
- Use conciliatory tone
- Explain why behaviour is being used
- Offering to send particulars copy before filing
- Don’t mention children and finances in same letter
- Advise respondent to get separate legal advice
PREP TASK 2 – JURISDICTION
To decide whether UK/another country has jurisdiction look at s5 of Domicile and Matrimonial
proceedings Act (this incorporates Brussels IIa)
a) both parties habitually resident in England and Wales; or
b) both parties last habitually resident in England and Wales, and one of them still resides
there; or
c) the respondent is habitually resident in England and Wales; or
d) the petitioner is habitually resident in England and Wales and has lived there for at least a
year immediately before the petition is filed; or
e) the petitioner is domiciled in England and Wales and has been residing in England and Wales
for at least six months immediately before the petition is filed; or
f) both parties are domiciled in England and Wales; or
g) if none of (a)–(f ) above applies and no court of another EU State has jurisdiction, either of
the parties is domiciled in England and Wales on the date when the proceedings are begun.
Domicile = permanent home
Habitually resident = centre of interest e.g. car, house etc
A choice on which they could rely….
¨ Claim jurisdiction in E&W under bases D or E
¨ Claim jurisdiction in Germany under base B
*only need to use one in reality!
3
, FAMILY LAW & PRACTICE NOTES
If there’s a choice of jurisdiction (there is here):
- Act quickly (don’t want other party to get in first and make less favourable decision)
- Instruct family lawyer in Germany and check they agree there’s a clear choice of forum to
avoid disputes later on
- Find out type and quantum of financial orders likely to be made in this sort of case
- Any material differences in law, procedure, enforcement proceedings that might affect the
outcome?
- Weigh up pros and cons to make informed decision
4
, FAMILY LAW & PRACTICE NOTES
2. Private Children Law
Section 8 orders:
- Child Arrangement Order (where child will live and who with)
- Prohibited Steps Order (asking judge to stop someone from doing something)
- Specific Issue Order
PREP TASK 1: COURSE OF ACTION/ FUNDING
Father comes over and looks after kids while mother is at work. She drinks a lot and is very bad
tempered.
Father has admitted to sexual relationship with male friend.
1. Courses of action options
• Writing to mother’s solicitors
• Negotiation between solicitors (NOT the parties themselves)
• Mediation (s10 CFA 2014 – requires attendance at MIAM before issuing application
to court)
**Need to always follow Resolution guidance – don’t write with inflammatory language
etc
2. Eligibility for legal aid?
Won’t cover general s8 applications
Have to be specific situations e.g. domestic abuse
CAN get legal aid for mediation – merits and means tested (depends on his finances therefore)
à if eligible for legal aid for mediation and he and Debbie attended, he’d been entitled to help for
mediation, which is limited legal aid funded advice from a solicitor to support mediation
Options:
- Instalment payment
- Insurance
- Loan
- Sears Tooth
à Defer fees until end of case (end of financial proceedings; so you could tack costs onto
those financial proceedings)
à Only useful if you know client will get money in
- Unbundling
à Client care letter needs to make the remit of this service very clear
3. Form for application to court (procedure – pg212)
Applicant sends to the court –
- C100 x 3 (triplicate) – one for the court – one for respondent – one for CAFCASS
- [C1A] – if we had ticked yes box on page 1
- Notice of Acting
- Fee of £215.
Court send to Respondent –
- C100
- [C1A] – if we had ticked yes box on page 1
- Notice of Proceedings
- Acknowledgement of Service – needs to be returned 10 working days prior to the hearing
5
, FAMILY LAW & PRACTICE NOTES
Prep Task 2: CHOICE OF JURISDICTION/APPLICATION FOR LEAVE TO APPLY FOR S8 ORDER
1. Choice of issuing proceedings in E&W or Spain?
Brussels II Revised:
- Art 1: Covers ‘rights of access’
**STRUCTURE: WHERE CHOICE OF JURISDICTION
® Alexia (grandmother) wants to apply for CAO under s8 CA 1989 (just for contact)
o Not clear from facts whether Alexia comes within list of those automatically entitled
to apply without leave (it’s possible but unlikely that children lived with Alexia for at
least 3 years out of last 5 years)
® Jurisdiction:
Start with s2(1) FLA 1986 – need to consider Brussels II Revised for jurisdiction on s8
applications
® Brussels II: Art 8 - Jurisdiction is member state where child is HABITUALLY RESIDENT at
time of application
àChildren are in UK
• Art 9 exception to Art 8 if children moved to another MS, during 3 month period
following move, courts of former habitual residence retain jurisdiction
àAPPLY – is this relevant on the facts??
• Art 10 exception to Art 8 if child wrongfully removed or retained, courts of MS where
child habitually resident immediately prior to wrongful removal/retention retain
jurisdiction
à APPLY – Is this relevant on the facts?
• Art 12 exception to Art 8 if you can prove child has SUBSTANTIAL CONNECTION to
another member state (Art 12(3)) or matrimonial proceedings are ongoing (Art 12(1))
àAPPLY: Here the partner is Spanish so substantial connection to Spain
àChildren have Spanish passports
à So Spain could have jurisdiction despite children residing in UK
BUT with Art 12, all parties need to accept jurisdiction, and mother very unlikely to
agree to proceedings going ahead in Spain here.
2. If issued in E&W, will grandmother require leave?
STRUCTURE: REQUIREMENT OF LEAVE
When applying for s8 order…
**FIRST HURDLE:
1. Do they need leave of court? (pg 203 and pg9 notes)
® If leave required, Alexia needs to file Form C2 and Form C100
® In determining her application for leave, court would apply criteria in s10(9) CA
® S10(9) Childrens Act – Application for leave:
• Nature of proposed application e.g. contact weekly; Skype contact
APPLY
• Applicant’s connection with child e.g. blood, social
APPLY
• Any risk there might be of that proposed application process disrupting the
child’s life to such an extent that he would be harmed by it e.g. process would
create immense distress on mother which would be felt by children and disrupt
their lives
APPLY
6
1- Divorce
PREP TASK 1 – DIVORCE PROCESS
Client: Mrs Debbie Purdicue
Ground for divorce: The marriage has broken down irretrievably (s1(1) MCA 1973)
Fact: B- “The respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with the respondent” (s1(2)(b))
Objective test (FAULT BASED)
Ground: The marriage has broken down irretrievably (s1(1) MCA 1973)
Fact: How to prove? How does 6 month rule Are there any
apply? defences?
ADULTERY (A) Adultery; and The petitioner is not entitled
That the respondent has (B) Intolerability. (Not a basis for a to rely on adultery committed
committed adultery and petition to dissolve a CP) by the respondent if the
the petitioner finds it parties cohabit for a period,
intolerable to live with NB: s1(6) MCA 1973 - only conduct or periods together,
the respondent. (MCA between the respondent and exceeding six months after
1973, s 1(2)(a)) person of the opposite sex can the petitioner has discovered
constitute adultery. the adultery (MCA 1973, s
2(1)).
BEHAVIOUR Objective test – value judgment The fact that the petitioner
That the respondent has made by court. and respondent have lived
behaved in such a way with each other for a period
that the petitioner e.g. Physical violence, verbal abuse, or periods not exceeding six
cannot reasonably be cruelty, failure to provide money, months in total after the last
expected to live with the food, affection incident of behaviour relied
respondent. (MCA 1973, ® It does not have to be grave and on must be disregarded in
s 1(2)(b)) weighty behaviour but is must deciding whether the
be something of substance. petitioner can reasonably be
® However, the mere fact that the expected to live with the
petitioner has become bored respondent (MCA 1973, s
with the marriage, or that the 2(3)).
parties are simply incompatible,
will not be sufficient. But court will take length of
cohabitation into account.
DESERTION ® Must be a separation. Can be In considering whether a
That the respondent has two separate households under period of desertion has been
deserted the petitioner the same roof (Hopes) continuous, no account is to
for a continuous period ® Must be intention to desert i.e. be taken of a period or
of at least two years to bring matrimonial union periods not exceeding six
immediately preceding permanently to end. months in total during which
the presentation of the ® P must not consent or agree to the parties cohabited (MCA
petition. (MCA 1973, s the separation. 1973, s 2(5)).
1(2)(c)) ® R must not have a just cause for
leaving.
® Must be continuous.
1
, FAMILY LAW & PRACTICE NOTES
® The desertion must immediately
precede presentation of
petition i.e. date when it is filed.
2 YEARS SEPARATION 1. Separation (2 yrs) s2(5) MCA 1973 applies to the R may apply to
AND CONSENT ® Spouses treated as living continuity of separation in the the court for
That the parties to the apart unless they’re living same way as it does to consideration of
marriage have lived together in same household desertion Therefore, in his financial
apart for a continuous (s2(6) MCA) BUT treated as deciding whether the living position following
period of at least two living apart even if under apart has been continuous, a divorce (s10(2)).
years immediately same roof if living period not exceeding, or Court must
preceding the completely separate lives periods together not consider all the
presentation of the ® Must also be a mental exceeding, six months will be circumstances, +
petition ... and the element ignored. However, they must will not make the
respondent consents to a be added to the total period decree absolute
decree being granted. 2. Respondent’s consent to the of separation so that the time unless satisfied
(MCA 1973, s 1(2)(d), decree that the parties have actually that:
® Consent must be given in lived apart is at least two (a) P should not
writing (FPR 2010, r years. be required
7.12(12). to make any
financial
provision for
R; or
(b) The financial
provision
made is fair +
reasonable,
or best that
can be made
in the
circumstances
(s 10(3)).
5 YEARS SEPARATION After five years’ separation, no need ® Deny the
That the parties to the for petitioner to obtain separation, or
marriage have lived respondent’s consent to the divorce prove grave
apart for a continuous and either party can petition. hardship
period of at least five under s5
years immediately ® Decree may
preceding the petition. be delayed by
(MCA 1973, s 1(2)(e)) R asking for
his financial
position to be
considered
under s 10(2)
of the MCA
1973 (as
above)
2
, FAMILY LAW & PRACTICE NOTES
Reasons:
• Myles is in an intimate relationship with Simon (even though it falls short of sexual acts)
• Emotionally distant since her promotion at work
• Teasing about thinking he’s having another affair – calling her “jealous little Super”
• Having gay pornography in the spare bedroom where the children may have seen or found it
• Unsupportive of her in her career
• Not agreeing to intercourse
When drafting the particulars of behaviour on the divorce petition (N8) remember “first, worst, last”
à avoid inflammatory language
Documents to be filed at court:
- Petition (with copies for service)
- Marriage certificate (original or certified document)
- Certificate of reconciliation
- Fee (£550)
Matters to take into account include: (based on Resolution advice)
- Use conciliatory tone
- Explain why behaviour is being used
- Offering to send particulars copy before filing
- Don’t mention children and finances in same letter
- Advise respondent to get separate legal advice
PREP TASK 2 – JURISDICTION
To decide whether UK/another country has jurisdiction look at s5 of Domicile and Matrimonial
proceedings Act (this incorporates Brussels IIa)
a) both parties habitually resident in England and Wales; or
b) both parties last habitually resident in England and Wales, and one of them still resides
there; or
c) the respondent is habitually resident in England and Wales; or
d) the petitioner is habitually resident in England and Wales and has lived there for at least a
year immediately before the petition is filed; or
e) the petitioner is domiciled in England and Wales and has been residing in England and Wales
for at least six months immediately before the petition is filed; or
f) both parties are domiciled in England and Wales; or
g) if none of (a)–(f ) above applies and no court of another EU State has jurisdiction, either of
the parties is domiciled in England and Wales on the date when the proceedings are begun.
Domicile = permanent home
Habitually resident = centre of interest e.g. car, house etc
A choice on which they could rely….
¨ Claim jurisdiction in E&W under bases D or E
¨ Claim jurisdiction in Germany under base B
*only need to use one in reality!
3
, FAMILY LAW & PRACTICE NOTES
If there’s a choice of jurisdiction (there is here):
- Act quickly (don’t want other party to get in first and make less favourable decision)
- Instruct family lawyer in Germany and check they agree there’s a clear choice of forum to
avoid disputes later on
- Find out type and quantum of financial orders likely to be made in this sort of case
- Any material differences in law, procedure, enforcement proceedings that might affect the
outcome?
- Weigh up pros and cons to make informed decision
4
, FAMILY LAW & PRACTICE NOTES
2. Private Children Law
Section 8 orders:
- Child Arrangement Order (where child will live and who with)
- Prohibited Steps Order (asking judge to stop someone from doing something)
- Specific Issue Order
PREP TASK 1: COURSE OF ACTION/ FUNDING
Father comes over and looks after kids while mother is at work. She drinks a lot and is very bad
tempered.
Father has admitted to sexual relationship with male friend.
1. Courses of action options
• Writing to mother’s solicitors
• Negotiation between solicitors (NOT the parties themselves)
• Mediation (s10 CFA 2014 – requires attendance at MIAM before issuing application
to court)
**Need to always follow Resolution guidance – don’t write with inflammatory language
etc
2. Eligibility for legal aid?
Won’t cover general s8 applications
Have to be specific situations e.g. domestic abuse
CAN get legal aid for mediation – merits and means tested (depends on his finances therefore)
à if eligible for legal aid for mediation and he and Debbie attended, he’d been entitled to help for
mediation, which is limited legal aid funded advice from a solicitor to support mediation
Options:
- Instalment payment
- Insurance
- Loan
- Sears Tooth
à Defer fees until end of case (end of financial proceedings; so you could tack costs onto
those financial proceedings)
à Only useful if you know client will get money in
- Unbundling
à Client care letter needs to make the remit of this service very clear
3. Form for application to court (procedure – pg212)
Applicant sends to the court –
- C100 x 3 (triplicate) – one for the court – one for respondent – one for CAFCASS
- [C1A] – if we had ticked yes box on page 1
- Notice of Acting
- Fee of £215.
Court send to Respondent –
- C100
- [C1A] – if we had ticked yes box on page 1
- Notice of Proceedings
- Acknowledgement of Service – needs to be returned 10 working days prior to the hearing
5
, FAMILY LAW & PRACTICE NOTES
Prep Task 2: CHOICE OF JURISDICTION/APPLICATION FOR LEAVE TO APPLY FOR S8 ORDER
1. Choice of issuing proceedings in E&W or Spain?
Brussels II Revised:
- Art 1: Covers ‘rights of access’
**STRUCTURE: WHERE CHOICE OF JURISDICTION
® Alexia (grandmother) wants to apply for CAO under s8 CA 1989 (just for contact)
o Not clear from facts whether Alexia comes within list of those automatically entitled
to apply without leave (it’s possible but unlikely that children lived with Alexia for at
least 3 years out of last 5 years)
® Jurisdiction:
Start with s2(1) FLA 1986 – need to consider Brussels II Revised for jurisdiction on s8
applications
® Brussels II: Art 8 - Jurisdiction is member state where child is HABITUALLY RESIDENT at
time of application
àChildren are in UK
• Art 9 exception to Art 8 if children moved to another MS, during 3 month period
following move, courts of former habitual residence retain jurisdiction
àAPPLY – is this relevant on the facts??
• Art 10 exception to Art 8 if child wrongfully removed or retained, courts of MS where
child habitually resident immediately prior to wrongful removal/retention retain
jurisdiction
à APPLY – Is this relevant on the facts?
• Art 12 exception to Art 8 if you can prove child has SUBSTANTIAL CONNECTION to
another member state (Art 12(3)) or matrimonial proceedings are ongoing (Art 12(1))
àAPPLY: Here the partner is Spanish so substantial connection to Spain
àChildren have Spanish passports
à So Spain could have jurisdiction despite children residing in UK
BUT with Art 12, all parties need to accept jurisdiction, and mother very unlikely to
agree to proceedings going ahead in Spain here.
2. If issued in E&W, will grandmother require leave?
STRUCTURE: REQUIREMENT OF LEAVE
When applying for s8 order…
**FIRST HURDLE:
1. Do they need leave of court? (pg 203 and pg9 notes)
® If leave required, Alexia needs to file Form C2 and Form C100
® In determining her application for leave, court would apply criteria in s10(9) CA
® S10(9) Childrens Act – Application for leave:
• Nature of proposed application e.g. contact weekly; Skype contact
APPLY
• Applicant’s connection with child e.g. blood, social
APPLY
• Any risk there might be of that proposed application process disrupting the
child’s life to such an extent that he would be harmed by it e.g. process would
create immense distress on mother which would be felt by children and disrupt
their lives
APPLY
6
