Family Law and Practice 2021

Sabine

Sujets

• Droit et juridique

Informations

• Publié par: College of Law Publishing
• Date de parution: 01 janvier 0001
• Nombre de lectures: 0
• EAN13: 9781913226992
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

FAMILY LAW AND PRACTICE
FAMILY LAW AND PRACTICE
Nancy Duffield BA (Hons), Solicitor
Jacqueline Kempton BA (Hons), Solicitor
Christa Sabine BA (Hons), Solicitor
Published by
College of Law Publishing,
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The University of Law 2021
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher.
Crown copyright material is licensed under the Open Government Licence v3.0.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 913226 87 9
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Tables and index by Moira Greenhalgh, Arnside, Cumbria
Preface
Family law is a dynamic subject, constantly changing, and a challenge to everyone involved with it. We have taken on the challenge in preparing this book. Our main aim has been to prepare a book which provides the legal background for students on the Legal Practice Course. It will be the springboard for students to use to practise the skills learned during the Legal Practice Course. We hope it will also be of use to trainees and newly qualified solicitors who are using these skills for the first time in the real world.
Throughout the book, for uniformity, we have generally referred to the client as ‘he’. In reality, it is usually the woman who initiates proceedings on the breakdown of the relationship.
In the book the terms ‘husband and wife’ or ‘spouses’ should be taken to include civil partners unless the text states otherwise. Similarly ‘matrimonial home’ includes a civil partnership home.
We would like to acknowledge with thanks the contribution made to this book in the past by Jo Theobald. Our thanks also go to our colleagues at The University of Law who have helped us with this book, and to our long-suffering families and friends who have endured its rebirth.
Unless otherwise mentioned, the law is stated as at 1 September 2020.
NANCY DUFFIELD
JACQUELINE KEMPTON
CHRISTA SABINE
The University of Law
Contents
PREFACE
TABLE OF CASES
TABLE OF STATUTES
TABLE OF STATUTORY INSTRUMENTS AND CODES OF PRACTICE
TABLE OF ABBREVIATIONS
Chapter 1 INTRODUCTION: THE FAMILY PRACTICE
1.1 The family client
1.2 The family practitioner
1.3 Support for family clients
1.4 Litigants in person
1.5 The court system
1.6 Human Rights Act 1998
1.7 Family law in the future
1.8 Conclusion
Summary
Chapter 2 FUNDING AND PROCESS OPTIONS
2.1 Introduction
2.2 Legal aid
2.3 Human rights
2.4 Other methods of funding
2.5 Dispute resolution
Summary
Chapter 3 DIVORCE LAW AND PROCEDURE
3.1 Introduction
3.2 One-year rule
3.3 Jurisdiction of the English courts to hear suits for divorce
3.4 The ground for divorce
3.5 Children
3.6 Nullity
3.7 Judicial separation
3.8 Presumption of death and dissolution of marriage
3.9 Divorce procedure
3.10 Defended divorces
3.11 Costs
3.12 Divorce law and procedure in the future
Summary and checklist
Chapter 4 FINANCIAL ORDERS: THE LAW
4.1 Introduction
4.2 The powers of the court
4.3 Income orders
4.4 Capital orders
4.5 Deciding what orders to make
4.6 The clean break
4.7 Pensions on divorce
4.8 Financial cases in the future
4.9 Financial provision during marriage
Summary
Chapter 5 TAX ON MARRIAGE BREAKDOWN
5.1 Introduction
5.2 Tax on marriage breakdown
Summary
Chapter 6 WELFARE AND LOCAL AUTHORITY HOUSING
6.1 Introduction
6.2 Child benefit
6.3 Universal credit
6.4 The benefit cap
6.5 Other help
6.6 Welfare benefits and marriage breakdown
6.7 Local authority housing
Summary
Chapter 7 CALCULATING CHILD MAINTENANCE
7.1 Introduction
7.2 When does the CSA 1991 apply?
7.3 The jurisdiction of the court
7.4 Maintenance agreements and consent orders
7.5 The formula
7.6 Special cases
7.7 Variations
7.8 Default and interim maintenance decisions (CSA 1991, s 12)
7.9 Voluntary payments
7.10 Review
Summary
Chapter 8 MAINTENANCE FOR A SPOUSE
8.1 Introduction
8.2 High income families
8.3 Middle income families
8.4 Low income families
Summary
Chapter 9 DEALING WITH THE CAPITAL ASSETS
9.1 Introduction
9.2 Selling the home
9.3 Retaining the home
9.4 The interests of third parties
9.5 The rented home
9.6 Protecting the capital assets
9.7 Lump sums
9.8 Pensions
9.9 Bankruptcy
Summary
Chapter 10 PROCEDURE FOR OBTAINING A FINANCIAL ORDER
10.1 Introduction
10.2 Public funding
10.3 Overview of the procedure
10.4 Procedure pre-application
10.5 The application
10.6 Filing and service
10.7 Obtaining the evidence
10.8 Court hearings
10.9 Interim orders
10.10 Fast-track procedure
10.11 Costs
10.12 Negotiations
10.13 Consent orders
10.14 Drafting financial orders
10.15 Summary of court procedure
10.16 Procedure following agreement by collaborative law process or by arbitration
10.17 Financial Remedies Courts
10.18 The Financial Remedies Working Group
Chapter 11 ENFORCEMENT, APPEALS, SETTING ASIDE AND VARIATION
11.1 Introduction
11.2 Enforcement of financial orders in the Family Court
11.3 Collection and enforcement by the Child Maintenance Service
11.4 Property adjustment orders
11.5 Appeals
11.6 Setting aside
11.7 Variation
Summary
Chapter 12 PRE-MARITAL AGREEMENTS AND SEPARATION AGREEMENTS
12.1 Introduction
12.2 Pre-marital agreements
12.3 Postnuptial and separation agreements
12.4 Reform
Summary
Chapter 13 CHILDREN
13.1 Introduction
13.2 Parental responsibility
13.3 Section 8 orders
13.4 Welfare principle
13.5 Checklist of factors to be taken into account in applying welfare principle
13.6 The ‘no order’ presumption
13.7 Avoiding delay
13.8 Procedure for s 8 orders
13.9 Protection of children
13.10 Financial provision and property orders for children
Summary
Chapter 14 CHILDREN: PUBLIC LAW
14.1 Introduction
14.2 Local authority support for children and families (CA 1989, Pt III)
14.3 Preventing neglect or abuse
14.4 Care and supervision orders (CA 1989, Pt IV)
14.5 Contact (s 34)
14.6 Discharge of care orders (s 39)
14.7 Effect of a supervision order
14.8 Care or supervision order
14.9 Interim orders (s 38)
14.10 Emergency protection and assessment (CA 1989, Pt V)
14.11 Procedure for care and supervision orders
14.12 Human rights implications
14.13 Compensation for local authority failings
Summary and checklists
Chapter 15 DOMESTIC ABUSE
15.1 Introduction
15.2 Protection under Pt IV of the Family Law Act 1996
15.3 Human rights implications
15.4 Protection from Harassment Act 1997
15.5 Coercive and controlling behaviour
15.6 Forced Marriage (Civil Protection) Act 2007
Summary
Chapter 16 THE COHABITING FAMILY
16.1 Introduction
16.2 Setting up home together
16.3 Breaking up
16.4 Children
16.5 Bankruptcy
16.6 Death
Summary
APPENDICES
Appendix 1 – Legislation
( A) Matrimonial Causes Act 1973
( B) Inheritance (Provision for Family and Dependants) Act 1975
( C) Domestic Proceedings and Magistrates’ Courts Act 1978
( D) Child Abduction Act 1984
( E) Children Act 1989
( F) Child Support Act 1991
( G) Family Law Act 1996
( H) Trusts of Land and Appointment of Trustees Act 1996
( I) Family Procedure Rules 2010 (SI 2010/2955)
Appendix 2 – Code of Practice for Resolution Members
Appendix 3 – Court Forms
( A) Divorce application
( B) Form A (Application for a financial order)
( C) Form E (Statement for a financial order)
( D) Form D81 (Statement of information for a consent order)
( E) Parental responsibility agreement (1)
( F) Parental responsibility agreement (2)
( G) Form C1 (Children Act application)
( H) Form C100 (Application for a s 8 order)
( I) Form C1A (Allegations of harm and domestic violence)
( J) Form C110A (Application for a care or supervision order)
( K) Form FL401 (Family Law Act application)
INDEX
Table of Cases A A (A Child) (Intractable Contact Dispute: Human Rights Violations), Re [2013] EWCA Civ 1104 193 A (Contact: Separate Representation), Re [2001] 1 FLR 715, CA 200 A (Minors) (Parental Responsibility), Re [1993] Fam Law 464 180 A (Section 8 Order: Grandparent Application), Re [1995] 2 FLR 153 190 A and S v Lancashire County Council [2012] EWHC 1689 248 , 250 A Local Authority v YZ and Others [2006] 2 FLR 41 196 A v A [2012] All ER (D) 108 (Dec) 135 A v A [2018] EWHC 340 (Fam) 169 A v N (Committal: Refusal of Contact) [1997] 1 FLR 533 193 A v T (Ancillary Relief: Cultural Factors) [2004] 1 FLR 977 55 A, Re [2009] EWCA Civ 1141 193 AB v CB [2014] EWHC 2998 (Fam) 58 AB v CD (Jurisdiction Global Maintenance Orders) [2018] 2 FLR 150 92 AC v DC [2012] EWHC 2420 (Fam) 117 AC v SC [2015] EWFC B76 132 AD (A Minor) (Child’s Wishes), Re [1993] 1 FCR 573 204 AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 (Fam) 131 , 172 Airey v Ireland (1979) 2 EHRR 305 16 Alireza v Radwan and Others [2017] EWCA Civ 1545 58 Allington v Allington [1985] FLR 586 201 Amin v Amin [2017] EWCA Civ 1114 157 An application by Denise Brewster for Judicial Review, Re [2017] UKSC 8 285 An application by Siobhan McLaughlin for Judicial Review (Child Poverty Action Group and another intervening), Re [2018] UKSC 48 285 Arbili v Arbili [2015] EWCA Civ 542 128 Armes v Nottinghamshire County Council [2017] UKSC 60 250 B B (A Child) (care order: proportionality: criterion for review), Re [2013] UKSC 33 231 B (a child) (residence order), Re [2009] UKSC 5 184 B (Contact Application: Costs), Re [1995] Fam Law 650 193 B (No 2) (A Child) (Welfare: Child Arrangements Order) (Inherent Jurisdiction), Re [2017] EWHC 488 (Fam) 182 B and C (Change of Names: Parental