Family Law Preparatory and Workshop Task Notes - Stuvia
Unit 1: Divorce
Preparatory Task 1
1. Consider whether Mrs. Purdicue has grounds for divorce. Which ‘fact’
should she use and why?
! Ground: irretrievable breakdown of marriage
! Fact: B – Behaviour – teasing, failure to provide affection, relations with
others of same/opposite sex
! D will have to prove that M has behaved in such a way that she cannot
reasonably be expected to live with M.
! Can’t use adultery because although Myles had a fling with one of
Summer’s school friends, Debbie and Myles continued to live together as
man and wife. Therefore, the 6 months rule prevents her from using this
instances of adultery to evidence her petition.
! D suspects M has formed a relationship with his friend, Simon, which M
denies. But even if M was having a relationship with S, D couldn’t use
adultery fat because M and S are the same gender.
2. Find a blank petition and notes for guidance using H.M. Court and Tribunal
Service via the Justice website or other means and draft the petition for
Mrs Purdicue.
Part 7.2: Draft brief details in support of D’s application of divorce.
o Important latest example wasn’t more than 6 months before date of
petition or separation. This is due to 6 month rule.
o Although 6 month rule won’t bar the use of Fact B it stands to reason
that if couple have lived together in last 6 months the argument that
D cannot reasonably be expected to live with M is considerably
weakened.
o Make sure behavior cited is serious enough, but not inflammatory.
• Facts in chronological order: When? Where? What? Who?
• Select 4-6 ‘incidents’ using first, worst and last as a basis
• Say how it left the client feeling – unloved, neglected, unwanted, alone,
isolated, vulnerable.
• Try not to be provocative/hostile/inflammatory
• Conclusion – ‘As a consequence of R’s behavior…’
• Always good to tick both boxes for financial provision for petitioner and
children because if P doesn’t tick that box and then re-marries she has no
ability to make a financial claim against R in the future.
• Always recommend that P ticks the costs box in 11.2 (it relates to the cost of
divorce, not the financial order)
1
, Family Law Preparatory and Workshop Task Notes - Stuvia
3. Make a list of the documents you need to file at court with the petition.
o Petition (+ copies for service)
o Marriage Certificate
o Statement of reconciliation
o Fee
4. With reference to the Resolution Guide to Good Practice for Family Lawyers
on Correspondence 2016, make a list of the matters to take into account in
your initial correspondence with Mr Purdicue.
o Use the correct tone – conciliatory not aggressive
o Could get D to check it before its sent to ensure no words are used
that would particularly irritate M
o Explain why the behavior ground is being used (offer to send a copy of
particulars to approve before filing??)
o Avoid mixing up the detail about children and finances in the same
letter
o Must suggest to M that he seeks his own independent legal advice
(preferably a solicitor with a Resolution accreditation)
o Consider any sensitivity around timings, e.g. if letter is due to arrive
on a day when M has the children, it might not be the best.
If sending letter to M’s solicitor our tone would be slightly different but
would still want to set the groundwork for future negotiation. Also just send
a copy of draft petition to solicitor for approval.
Preparatory Task 2
1. Does Sarah have a choice as to whether she can issue divorce proceedings
in England or Germany?
Issue of proceedings in England and Wales:
o English courts have jurisdiction under base D – the petitioner is
habitually resident in England and Wales and has lived there for at
least a year before the petition has been filed.
o Could use base E – the petitioner is domiciled in England and Wales
and has been residing in England and Wales for at least 6 months
immediately before the petition is filed.
Issue of proceedings in Germany:
o German courts have jurisdiction under base B because both
parties were last habitually resident in Germany and one of them
still resides there
o Or could use base C – respondent is habitually resident in
Germany
2
, Family Law Preparatory and Workshop Task Notes - Stuvia
2. If Sarah does have a choice, as to whether the proceedings are issued in
England or Germany, what steps should you take and what information do
you need to advise your client on which is the most appropriate forum?
• Act quickly – don’t want Wilhelm to get in first and make a petition
that is less favourable to S
• Instruct a German lawyer – check that they agree that there is a clear
choice of forum
• Gather information to make an informed decision – type and
quantum of financial orders which are likely to be made in this sort of
case.
• Consider whether there are any material differences in the law, the
procedure or enforcement proceedings that might affect the outcome
• Could be better to start proceedings in Germany because England is
less strict with financial provisions, so could come back to England to
deal with the financial matters.
Workshop Task 1
Please complete the Statement in Support of the petition.
• Q1 – confirm that read petition
• Q2 – tick ‘no’
• Q3 – ‘yes’ all is within D’s knowledge
• Q4 – only complete if there’s been some negative effect on petitioner’s
health, e.g. depression, stress or injuries
• Q5 – Getting at the 6-month rule. No problem here, final incident cited at 4th
Feb and parties separated on 9th Feb
• Q6 – Not applicable here, only use when parties have lived together after the
6 months
• D should identify M’s signature at top of page 3 and then complete the
statement of truth.
o Client must sign it, cannot sign it as a solicitor on behalf of client
*Note: D has agreed not to pursue costs
If court is satisfied with the evidence provided they will give a certificate of
entitlement to a Decree. This sets a date for the announcement of Decree Nisi.
Final step is application for Decree Absolute, which dissolves the marriage. Petitioner
can apply for this 6 weeks after the pronouncement of Decree Nisi. If the petitioner
does not apply, the respondent is allowed to apply 3 months after the petitioner was
at liberty to apply. However, if a respondent applies, it will be on notice and it is
likely that a hearing will be fixed to determine the issue.
3
, Family Law Preparatory and Workshop Task Notes - Stuvia
Unit 2: Private Children Law
Preparatory Task 1
1. What different courses of action would you advise Myles he could take?
• Negotiation between solicitors/writing to Debbie’s solicitors/mediation
• S10 Children and Family Act 2014 requires attendance at a MIAM (mediation,
information and assessment meeting) before issuing an application to the
court
• If court application is necessary, M would be applying for a Child’s
Arrangements Order
2. Will Myles be eligible for legal aid? If not what options are available to him?
• Even if M was financially eligible for legal aid, he doesn’t fall within one of the
categories still available for family matters
• Legal aid is still available for mediation
o This is merits and means tested
• If M has to pay his costs privately, he could look at instalment
payments/insurance/loan
• As there will be financial proceedings to follow it may be possible to enter
into a Sears Tooth arrangement
• Also increasingly common for solicitors to act on an unbundled basis (also
known as fixed fees) where work is undertaken on defined elements of the
proceedings with the client dealing with other elements themselves
3. In the event that an application to court is unavoidable, research what form
is required to make the application. Complete a copy of the relevant form to make
the application (obtainable via the Justice website or other means).
• Form C100
• Note: s5(b) which asks for the reasons for the application
o Keep this brief to avoid antagonising the situation and promote an
early settlement
o “I have always been the children’s main carer as the respondent works
long hours. We separated in February this year and I moved out. Since
then, I have continued to look after the children at the former
matrimonial home. This arrangement is not suitable in the long term,
but the respondent will not agree that the children live with me, and
therefore I seek an order that the children live with me.”
4
Unit 1: Divorce
Preparatory Task 1
1. Consider whether Mrs. Purdicue has grounds for divorce. Which ‘fact’
should she use and why?
! Ground: irretrievable breakdown of marriage
! Fact: B – Behaviour – teasing, failure to provide affection, relations with
others of same/opposite sex
! D will have to prove that M has behaved in such a way that she cannot
reasonably be expected to live with M.
! Can’t use adultery because although Myles had a fling with one of
Summer’s school friends, Debbie and Myles continued to live together as
man and wife. Therefore, the 6 months rule prevents her from using this
instances of adultery to evidence her petition.
! D suspects M has formed a relationship with his friend, Simon, which M
denies. But even if M was having a relationship with S, D couldn’t use
adultery fat because M and S are the same gender.
2. Find a blank petition and notes for guidance using H.M. Court and Tribunal
Service via the Justice website or other means and draft the petition for
Mrs Purdicue.
Part 7.2: Draft brief details in support of D’s application of divorce.
o Important latest example wasn’t more than 6 months before date of
petition or separation. This is due to 6 month rule.
o Although 6 month rule won’t bar the use of Fact B it stands to reason
that if couple have lived together in last 6 months the argument that
D cannot reasonably be expected to live with M is considerably
weakened.
o Make sure behavior cited is serious enough, but not inflammatory.
• Facts in chronological order: When? Where? What? Who?
• Select 4-6 ‘incidents’ using first, worst and last as a basis
• Say how it left the client feeling – unloved, neglected, unwanted, alone,
isolated, vulnerable.
• Try not to be provocative/hostile/inflammatory
• Conclusion – ‘As a consequence of R’s behavior…’
• Always good to tick both boxes for financial provision for petitioner and
children because if P doesn’t tick that box and then re-marries she has no
ability to make a financial claim against R in the future.
• Always recommend that P ticks the costs box in 11.2 (it relates to the cost of
divorce, not the financial order)
1
, Family Law Preparatory and Workshop Task Notes - Stuvia
3. Make a list of the documents you need to file at court with the petition.
o Petition (+ copies for service)
o Marriage Certificate
o Statement of reconciliation
o Fee
4. With reference to the Resolution Guide to Good Practice for Family Lawyers
on Correspondence 2016, make a list of the matters to take into account in
your initial correspondence with Mr Purdicue.
o Use the correct tone – conciliatory not aggressive
o Could get D to check it before its sent to ensure no words are used
that would particularly irritate M
o Explain why the behavior ground is being used (offer to send a copy of
particulars to approve before filing??)
o Avoid mixing up the detail about children and finances in the same
letter
o Must suggest to M that he seeks his own independent legal advice
(preferably a solicitor with a Resolution accreditation)
o Consider any sensitivity around timings, e.g. if letter is due to arrive
on a day when M has the children, it might not be the best.
If sending letter to M’s solicitor our tone would be slightly different but
would still want to set the groundwork for future negotiation. Also just send
a copy of draft petition to solicitor for approval.
Preparatory Task 2
1. Does Sarah have a choice as to whether she can issue divorce proceedings
in England or Germany?
Issue of proceedings in England and Wales:
o English courts have jurisdiction under base D – the petitioner is
habitually resident in England and Wales and has lived there for at
least a year before the petition has been filed.
o Could use base E – the petitioner is domiciled in England and Wales
and has been residing in England and Wales for at least 6 months
immediately before the petition is filed.
Issue of proceedings in Germany:
o German courts have jurisdiction under base B because both
parties were last habitually resident in Germany and one of them
still resides there
o Or could use base C – respondent is habitually resident in
Germany
2
, Family Law Preparatory and Workshop Task Notes - Stuvia
2. If Sarah does have a choice, as to whether the proceedings are issued in
England or Germany, what steps should you take and what information do
you need to advise your client on which is the most appropriate forum?
• Act quickly – don’t want Wilhelm to get in first and make a petition
that is less favourable to S
• Instruct a German lawyer – check that they agree that there is a clear
choice of forum
• Gather information to make an informed decision – type and
quantum of financial orders which are likely to be made in this sort of
case.
• Consider whether there are any material differences in the law, the
procedure or enforcement proceedings that might affect the outcome
• Could be better to start proceedings in Germany because England is
less strict with financial provisions, so could come back to England to
deal with the financial matters.
Workshop Task 1
Please complete the Statement in Support of the petition.
• Q1 – confirm that read petition
• Q2 – tick ‘no’
• Q3 – ‘yes’ all is within D’s knowledge
• Q4 – only complete if there’s been some negative effect on petitioner’s
health, e.g. depression, stress or injuries
• Q5 – Getting at the 6-month rule. No problem here, final incident cited at 4th
Feb and parties separated on 9th Feb
• Q6 – Not applicable here, only use when parties have lived together after the
6 months
• D should identify M’s signature at top of page 3 and then complete the
statement of truth.
o Client must sign it, cannot sign it as a solicitor on behalf of client
*Note: D has agreed not to pursue costs
If court is satisfied with the evidence provided they will give a certificate of
entitlement to a Decree. This sets a date for the announcement of Decree Nisi.
Final step is application for Decree Absolute, which dissolves the marriage. Petitioner
can apply for this 6 weeks after the pronouncement of Decree Nisi. If the petitioner
does not apply, the respondent is allowed to apply 3 months after the petitioner was
at liberty to apply. However, if a respondent applies, it will be on notice and it is
likely that a hearing will be fixed to determine the issue.
3
, Family Law Preparatory and Workshop Task Notes - Stuvia
Unit 2: Private Children Law
Preparatory Task 1
1. What different courses of action would you advise Myles he could take?
• Negotiation between solicitors/writing to Debbie’s solicitors/mediation
• S10 Children and Family Act 2014 requires attendance at a MIAM (mediation,
information and assessment meeting) before issuing an application to the
court
• If court application is necessary, M would be applying for a Child’s
Arrangements Order
2. Will Myles be eligible for legal aid? If not what options are available to him?
• Even if M was financially eligible for legal aid, he doesn’t fall within one of the
categories still available for family matters
• Legal aid is still available for mediation
o This is merits and means tested
• If M has to pay his costs privately, he could look at instalment
payments/insurance/loan
• As there will be financial proceedings to follow it may be possible to enter
into a Sears Tooth arrangement
• Also increasingly common for solicitors to act on an unbundled basis (also
known as fixed fees) where work is undertaken on defined elements of the
proceedings with the client dealing with other elements themselves
3. In the event that an application to court is unavoidable, research what form
is required to make the application. Complete a copy of the relevant form to make
the application (obtainable via the Justice website or other means).
• Form C100
• Note: s5(b) which asks for the reasons for the application
o Keep this brief to avoid antagonising the situation and promote an
early settlement
o “I have always been the children’s main carer as the respondent works
long hours. We separated in February this year and I moved out. Since
then, I have continued to look after the children at the former
matrimonial home. This arrangement is not suitable in the long term,
but the respondent will not agree that the children live with me, and
therefore I seek an order that the children live with me.”
4
