Family Practice Level 3 CILEx Unit 9

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What is the name of the Act which governs the law of divorce and financial relief?
Matrimonial Causes Act 1973
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Which Act governs same-sex relationships?
Civil Partnership Act 2004
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Where is the law in relation to children found?
Children Act 1989, Child Support Act 1991 (as amended by the Child Support Act 1995), Child Support, Pensions and Social Security Act 2000 and the Child Maintenance and Other Payments Act 2008.
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Which act governs the law relating to occupation of the family home and domestic violence?
Family Law Act 1996.
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What is the DVCVA 2004 and what does it do?
Domestic Violence, Crime and Victims Act 2004 - it makes important changes to family law and especially domestic violence as it amends FLA 1996.
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Explain the effect of TLATA and what it is.
TLATA is the Trusts of Land and Appointment of Trustees Act 1996 and assists cohabitees in proving the existence of beneficial interests in the shared home. It can be used to order or prevent a sale.
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Where are the main rules governing divorce procedure and ancillary matters found?
The Family Procedure Rules 2010.
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Explain the difference between "on notice" and "without notice" orders.
On notice applications means that the Respondent is given notice of the hearing. This is most typically the case. "Without notice" (ex parte) applications are made without giving the Respondent notice of the application.
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What grounds can be used to support a "without notice" application?
(1) Urgent (2) if informing the Respondent would defeat the purpose of the app (3) if matter does not affect the other party.
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Where can the hearing of an application take place and what is the difference?
The hearing can take place in open court or chambers. Members of the public can attend open court whereas it is just parties, judge and legal reps in chambers.
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What SI allows "accredited media representatives" to attend hearings?
Family Proceedings (Amendment) (No 2) Rules 2009 allow accredited media res to attend unless court exercises discretion to exclude them.
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What grounds can court use to exercise discretion of removing media reps from proceedings?
Welfare of child or vulnerable adult or for the orderly conduct of proceedings (eg limitations of the court room).
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What is the difference between "in chambers" and "open court" hearings?
Hearings 2in chambers" are held in private and often are in the judges' chambers. Most family proceedings are, as such, held in chambers. Hearings in "open court" are not private and anyone can attend.
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What is the name of the Act which legalised same sex marriage?
The Marriage (Same Sex Couples) Act 2013.
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What does the M (SSC) Act 2013 allow?
(i) same sex couples ("ssc") can marry in civil ceremonies (ii) ssc can marry in religious ceremonies where org agrees (iii) enables cps to covert CP to marriage (iv) enables married individuals to change their gender without ending marriage.
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When did first same sex marriages take place?
March 2014.
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What area of law did Stack v Dowden relate to?
Division of property owned by cohabitees where no declaration of trust.
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What are the key principles from Stack v Dowden?
(i) equity follows law where ben interests are not declared (ii) if prop in sole name, ct presume owned in sole name (iii) onus on party seeking to rebut presumption higher (iv) if prop conveyed in joint names of couple, presumed joint (v) conduct
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Summarise issues in Oxley v Hiscock [2004]
Couple bought prop in man's sole name. No dec of ben interest & no charge in favour of woman. Prop then sold. Woman wanted half.
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What was outcome?
COA granted 40% proceeds of sale to woman. Once ben interest established, such interest quantified by what ct thinks fair.
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What was the landmark Supreme Court Judgment in Jones v Kernott [2011]?
Each case will turn on its own facts, with weight being given to financial contribs made by the parties in addition to any other factors.
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How can parties to marriage, CP and cohabitees respectively end their marriage (legal formalities)?
Marriage - divorce under MCA 1973; CP - dissolution under CPA 2004; cohab - none.
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What remedy is there for finance to married couples, CPs and cohabitees respectively?
Married couples can apply for financial order under MCA 1973 or order from Mags court under DPMCA 1978. CPs can apply for financial order under CPA 2004. Cohabs have no specific rights or remedies. No right to maintenance etc.
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What legislation impacts upon children for married couples, CPs and cohabs respectively?
All three can commence Children Act proceedings under CA 1989.
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What is the difference between the impact of breakdown of relationship for married couples, CPs and cohabs in respect of Wills/Probate?
Married couples will be treated as having pre-deceased spouse in the Will and once divorced, will not inherit. CP same but substitute divorce for dissolution. Cohab - breakdown of relationship has no impact. No right to inherit under intestacy.
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What remedy is there for domestic violence for married couples, CPs and cohabs?
All three can issue proceedings under the FLA 1996.
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How is the family home treated in the breakdown of a relationship in respect of married couples?
Considered in financial order under MCA 1973. Court will consider MCA 1973 factors. Married couples have "home rights" entitling spouse to live in family home.
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How is the family home treated in the breakdown of a relationship in respect of CPs?
Considered in financial order under CPA 2004. CPs have "home rights".
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How is the family home treated in the breakdown of a relationship in respect of cohabs?
Legal ownership to be checked. If cohab is not legal owner but has contributed to prop, may have ben interest. Think rseulting trust and constructive trust. Disputes dealt with by TLATA 1996
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What is a resulting trust?
A resulting trust is established when a party has contributed to purchase price of the home and the parties' presumed intent is to share property.
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What is a constructive trust?
A constructive trust arises when there is an express or inferred agreement, arrangement or understanding or intention between parties to share home.
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List two circumstances where an application can be made without notice to a court?
1. Where it is urgent; 2. Where doing so would defeat the interests of justice.
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List three differences between legal remedies available to married couples and cohabs when a relationship ends.
1. When the relationship ends, married couples divorce to formally terminate the marriage. No steps are required in respect of cohabs; 2. Married couples can apply for maintenance for themselves, no such right for cohabs; 3. Home rights.
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What Act introduced the funding code and the Legal Services Commission?
Access to Justice Act 1999.
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Name the Act introduced in an attempt to cut by £350m a year from the £2.2 billion legal aid bill.
Legal Aid, Sentencing and Punishment of Offenders Act 2012.
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What was the LSC replaced with under LASPOA?
Legal Aid Agency.
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What areas of family law remain under the scope of legal aid?
1. Public law re protection of children; 2. Private law where evidence of DV; 3. Private law where evidence of child abuse; 4. Child abduction; 5. Rep for child parties; 6. Legal adv for mediation; 7. DV injunction; 8. Forced marriage prot order case
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Which two tests must a client pass for legal aid assuming they have met one of the criterion?
Means and merits. There must be "sufficient benefit" to client.
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Explain Level 1.
Legal help including initial advice.
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Explain Level 2.
Family help lower - work to the issue of proceedings.
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Explain Level 3.
Family help higher - representation in proceedings.
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Explain Level 4.
Preparation for and representation at final hearing.
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What is the effect of s10 CFA
Before making any application in family proceedings, a person must attend a MIAM (Mediation information and Assessment Meeting) unless there is DV.
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Name the different potential types of private funding.
i. obtain loan from family/friends; ii. loan from bank; iii. "Sears Tooth" agreement (client agrees by deed to pay sols fees from settlement at the end of case).
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Can solicitors use no win no fee agreements in family cases?
No.
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What is the ground for divorce?
That the marriage has broken down irretrievably (s1(1) MCA 1973).
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Name the five facts used to prove irretrievable breakdown.
(A) (s1(2)(a) MCA 1973 - adultery AND the App finds it intolerable to live with Resp; (B) s1(2)(b) behaviour; (C) s1(2)(c) desertion for two years; (D) s1(2)(d) two years' separation by consent; (E) s1(2)(e) five years' separation.
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What test was created in Livingstone-Stallard v Livingstone-Stallard [1974]?
The right thinking approach: "Would any right-thinking person come to the conclusion that this H has behaved in such a way that this W cannot reasonably be expected to live with him, taking into account all circs, character and personality of parties
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In an adultery petition, what is meant by adultery?
Consensual sexual intercourse between a man and woman.
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In an adultery petition, must the co-respondent be named?
No, it is good practice not to name the co-respondent.
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Explain the one year bar to divorce/dissolution?
Matrimonial and CP proceedings cannot be commenced in the first ysear of marriage (introduced by MCA 1973) as amended by Matrimonial and Family Proceedings 1984 BUT app can still rely on events in first year in a petition.
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A client is very unhappy in her marriage. She tells you H drinks heavily and is violent towards her and children. She recently had an affair with a colleague at work. Can she divorce and if so, on what fact?
W can apply to divorce on the basis of behaviour s1(2)(b) MCA 1973. She cannot use an adultery petition as one cannot apply for a divorce on the basis of one's own adultery.
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What documents are required to commence matrimonial proceedings?
i. marriage or CP cert; ii. application (petition) with one copy for each person to be served; iii.cert with regard to reconciliation (if sol acting); iv. court fee (or app for fee exemption); v. statement of arrangements for children (if applicable)
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What form is the divorce application made on and what are the first six parts of the form?
Form D8. P1 asks for names, addresses, dobs, occupations. P2 details of marriage/CP. P3 jurisdiction. P4 any other proceedings. P5 states ground then supporting fact. P6 Particulars.
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What ground is usually used to prove jurisdiction?
Habitually resident in the UK for 12 months immediately preceding the presentation of the application. Don't need to be in jurisdiction legally (Marks v Marks (Divorce Jurisdiction) [2004].
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Define domicile and how it affects divorce proceedings?
Domicile refers to where a person is born or chooses to live. You can use it as a ground for jurisdiction.
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What are the remaining parts of the divorce app?
P7 - details of children; P8 - will app need special assistance in attending court; p9 - has app got legal rep? P10 - the prayer. All boxes in the financial order section should be ticked or might have to apply for leave later on to apply for such o
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Does "legal help" permit the solicitor to "act" in court proceedings?
No, the person would be acting in person but receiving advice and support from the solicitor.
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What is the purpose of the cert with regard to reconciliation? What form is it on?
Confirms whether sol has discussed with app possibility of reconciliation and given details of persons who may be able to help (Relate/clergy). The relevant form is D6.
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When must a statement of arrangements for children be filed and what form is it?
It must be filed if there are children under 16 or over 16 but in education/training for a trade, vocation or profession. The form is D8A.
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Who may be eligible for fee exemption?
i. Clients advised under the legal help scheme but must show evidence; ii. those in receipt of certain benefits but must show evidence; clients who can produce evidence of hardship.
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Who serves proceedings and who should be served?
The court serves the Respondent by post. If it is an adultery petition, if a co-respondent is named, they are served too. R must complete AoS and return within 14 days.
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If R does not return AOS what are the options for service?
i. service by court bailiff; ii. personal service; iii. deemed service; iv. substituted service.
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How is bailiff service effected?
Standard form completed along with photo of R. Bailiff will serve and then certify accordingly.
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How is personal service effected and who can effect it?
Personal service is effected by a process server or A's sol (or member of his staff). Proof effected by Affidavit of Service sworn by server.
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Define deemed service.
Where r has not returned AOS but A can satisfy ct he has received application, court may grant order that service is deemed eg R may have referred in letter to receiving service. Evidence indirect.
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Define substituted service.
This is unusual but if granted, service is effected in another way (eg advert of proceedings somewhere R will see). Judge must be satisfied all other methods have failed.
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What happens when service is dispensed with?
This is very rare: a ct would order service dispensed with in exceptional circumstances where A cannot trace R. App made at same time as petition submitted. Ct will require convincing that there have been extensive enquiries which have failed.
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How long does the Respondent have to return the Acknowledgement of Service?
Seven days.
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Who may sign the AoS?
Respondent on their solicitor (if acting).
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What happens if the Respondent ticks the box saying they intend to defend the divorce?
They have 28 days to file an Answer.
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What rights does a Co-Respondent have to defend a divorce?
The same as the Respondent - they have 28 days in which to file an Answer.
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What happens if the Respondent answers no to the question regarding defending the divorce?
The Applicant may proceed with her divorce.
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What happens if the Respondent indicates an intention to defend but does not file an Answer within the requisite time frame?
The Applicant may proceed as if the divorce was undefended.
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When may the Applicant apply for decree nisi?
If Respondent has not given notice to defend and seven days have elapsed after service of petition, the petitioner may apply for DN.
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What is the Petitioner's statement in support of the petition?
This is the statement supplied by the applicant in a statement of truth (D80B).
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After the filing of the statement in support, what happens next?
The judge must review the case to see if the Applicant is entitled to a decree nisi.
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What does the judge check?
i. that R and any Co-R has been properly served; ii. no intention to defend filed; iii. R provided consent in respect of fact D app; iv. adultery admitted/proved in respect of fact A app. J must consider if GROUND proved. Cert of entitlement.
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Should the parties attend for pronouncement of decree nisi?
They can but it is not necessary - it is a purely administrative process.
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How long is the waiting period after DN before app for DA.
Six weeks and a day UNLESS the ct has ordered that DA may be expedited in exceptional circumstances.
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What is the form used to apply for DA?
Form D36.
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What must the court staff check in respect of the application for the DA?
i. that no appeal has been lodged against DN; ii. correct amount of time has elapsed; iii. no children/direction in respect of children holding up decree. Ct staff can then issue DA (D37).
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What does the DA do?
It formally dissolves the marriage. Parties free to remarry. Ability to inherit under Will affected. Prevents party applying for financial order against former spouse.
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What happens if Applicant fails to apply for DA?
R may apply after three months have passed from the earlest dte on which the App could have applied. R must apply in person by appointment at the court.
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Can the Applicant stop the Respondent achieving DA?
Yes, if the App can show that granting the DA would cause prejudice (Re G (Decree Absolute: Prejudice) [2003] - ct stated fact that financial proceedings not yet heard was not sufficient reason to refuse DA.
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What is the effect of Dennis v Dennis [2000] on the Respondent's ability to apply for DA?
Following this decision, courts will not allow R to apply for DA until three months after App could have applied for DA.
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Where are the powers of the courts to deal with financial orders on divorce found?
MCA 1973.
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What legislation covers applications for financial orders on divorce?
Part 9 Family Procedure Rules 2010.
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What is the aim of the pre-application protocol?
To build upon and increase the benefits of early but well-informed settlement which genuinely satisfies both parties to the dispute.
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Are the range of orders available under MCA 1973 available to civil partners on dissolution?
Yes.
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What are the s25 factors?
s25(1) MCA 1973 states that FIRST consideration is the welfare of any minor children of the family. S25(2) provides a list of eight factors to be taken into account.
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List the eight s25(2) MCA factors?
s25(2)(a) financial resources of the parties; s25(2)(b) present and future financial needs, obligations and responsibilities of the parties; s25(2)(c) standard of living before breakdown of marriage; s25(2)(d) age of parties and duration of marriage;
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What did Justice Moor say of Young v Young [2013]?
that it was "one of the most complicated financial remedy cases seen in these courts".
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What was the decision of the Supreme Court in Petrodel Resouces Limited and Others v Prest and Others [2012]
The High Court held held that company assets were property to which H was entitled either in possession or reversion. COA overturned and held assets belonged to company. Supreme Ct restored HC decision.
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What does the term "pierced the corporate veil" mean?
It means the court allowed assets held by a company to be accessed to meet the obligations of an individuall controller of the company.
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What did the court famously hold in Delaney v Delaney [1990]
That there is life after divorce.
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Inn which case did the court hold that the fact the ex-spouse needed more to meet responsibilities towards his new family and that this justified departure from equality?
S v S (financial provision:: Departing from Equality).
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Are marital assets vulnerable to equal division in all cases?
Yes - Miller v Miller [2006].
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In which case did the court emphasise that equal weight should be given to the wife stayng at home to look after the household and the man going out to work?
White v White [2001].
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Card 2

Front

Which Act governs same-sex relationships?

Back

Civil Partnership Act 2004

Card 3

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Where is the law in relation to children found?

Back

Preview of the front of card 3

Card 4

Front

Which act governs the law relating to occupation of the family home and domestic violence?

Back

Preview of the front of card 4

Card 5

Front

What is the DVCVA 2004 and what does it do?

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