An overview of familial disputes and related law.
2nd December 2016
Aston Brooke Solicitors have assisted clients in family law matters for many years and provide the below guide to the key areas of family law and the issues that arise.
Please note that this is not meant to be legal advice that individuals can rely solely upon. Proper legal advice can only be given by a solicitor on an individual basis when all the facts and circumstances are known.
Family Law Basics:
The three most common reasons for seeking legal advice may relate to:
- Money and Property;
- Children; and
- Protection from Domestic Violence.
Each case is dealt with on the basis of its own facts as well as the status of the relationship, for instance:
- Married couples;
- Same-sex couples; and
The remedies for married couples and same-sex couples are almost indistinguishable from each other, although in comparison, the remedies for cohabitees are more limited.
The petitioner is the party seeking a divorce.
The respondent is the party against whom the petitioner has petitioned for a divorce.
Section 3 of the Matrimonial Causes Act 1973 provides that a petition for divorce can only be presented to the court once the marriage has completed one full year. However should either party to a marriage wish to divorce after the end of the one year period, then the actions/behaviour of the other during the first year of marriage can be relied upon to petition for a divorce.
There is only one ground on which a petition for a divorce can be made to the court which is that the marriage has ‘broken down irretrievably’. Although there is no need for there to be a link between the fact and the breakdown of the marriage, the petitioner must be able to satisfy the court that at least one out of the following five facts is present:
- Adultery and intolerability – the petitioner must prove to the court that both elements to this fact are present. If a petitioner seeks to rely upon this fact, they must petition for a divorce within six months from the date of knowledge/discovery of the adultery.
- Behaviour – the court will make a valuable judgement on the effect that the respondent’s behaviour has had on the petitioner. There are a series of cases which provide indications of a variety of behaviours which were decided to be unreasonable. The following two cases are mere examples:
- Birch v Birch – the respondent had a male chauvinistic character which the petitioner resented for many years – a decree absolute was granted under this fact.
- O’Neill v O’Neill – the respondent commenced extensive renovation works in a flat which involved mixing cement in the living room and leaving the toilet without a door for an approximate period of eight months – a decree absolute was granted under this fact;
- Desertion – the following six factors must all be present to rely upon this fact:
- There must be a separation for two years;
- There must be intention to bring the matrimonial union permanently to an end;
- The petitioner must not consent to the desertion;
- The respondent must not have a valid reason for leaving;
- The desertion must be continuous for a period of two years; and
- The desertion must lead to the petition immediately.
- Two year’s separation and consent – a married couple are considered to live apart unless they are living in the same household.
- For a petitioner to petition for a divorce under this fact, the respondent must agree to the divorce. If consent is not provided or alternatively, if consent is withdrawn, then obtaining divorce under this fact may not be successful unless consent is withdrawn after a decree nisi has been granted.
- Five year’s separation – either party to a marriage can petition for a divorce and consent of the respondent is not required under this fact.
Children to a Marriage:
The Children Act 1989 aims to protect the children of a marriage. In a marriage, both parents have joint responsibility of their child/children.
Section 1(1) of the children Act states:
When a court determines any questions with respect to:-
- The upbringing of a child; or
- The administration of the child’s property or the application of any income arising from it,
The child’s welfare shall be the court’s paramount consideration
- In J and Another v C and Others it was confirmed that ‘the child’s welfare is to be treated as the top item in a list of items relevant to the matters in question.’
When a court is faced with a case which involves a child the court has a duty to apply the 7 factors contained in the ‘welfare checklist.’ The core aim of the checklist is to promote a consistent approach by providing a framework.
The Welfare Checklist:
A court shall have regard in particular to—
- the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
- their physical, emotional and educational needs;
- the likely effect on them of any change in their circumstances;
- their age, sex, background and any characteristics of theirs which the court considers relevant;
- any harm which they have suffered or are at risk of suffering;
- how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs; and
- the range of powers available to the court under this Act in the proceedings in question.
‘Domestic abuse’ broadly covers four factors:
- Personal violence;
- Harassment; and
There are two main categories of orders which are available to victims of domestic violence:
- A non-molestation order – provides protection both to a party to a marriage and their children. ‘Molestation’ covers violence, threats of violence and pestering. The court can make an order for a specified period or until a further order.
- An occupation order – this excludes the other party from living in the same property. The provisions relating to this order are somewhat complex and detailed and would differ in each individual case. The duration of this order is dependent on the relationship between the applicant and the respondent.
If you wish to discuss any of the items above or feel that you require legal advice on a family law matter, you are encouraged to contact Aston Brooke Solicitors for a free, non-obligation, initial consultation.
Sonika Patel is a Solicitor in Aston Brooke Solicitors’ Family Law Department. For specific legal advice on your case please contact her on +44 (0)203 475 4321 and she or a member of our team will be able to assist you.
Disclaimer: this article is for general information purposes only. It does not present a detailed statement of the Law and does not constitute as legal advice. This is a summary only, and legal advice should always be sought on an individual case basis.
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