LPC Family Law 2006

by Bond, Tina; Bridge, Jane; Black, Jill M.

• ISBN13: 9780199284849
• ISBN10: 0199284849
• Format: Paperback
• Copyright: 2006-04-13
• Publisher: Blackstone Press

Summary

Family Law offers a guide to the essential law, practice, and procedure that is at the heart of the Legal Practice Course. It provides a concise account of the major aspects of family law which are likely to be encountered by the trainee solicitor in practice, as the relevant law is discussedtogether with appropriate procedure and practice.

Author Biography

Tina Bond is a solicitor and Senior Lecturer in the School of Law at Northumbria University. She is a member of the Law Society Family Law Panel. Dame Jill Black is a High Court Judge in the Family Division. Jane Bridge QC is a Barrister and Family Mediator (UKCFM)

Table of Contents

Preface	xv
Table of Cases	xvii
Table of Statutes	xxi
Table of Secondary Legislation	xxvii
PART I General matters	1	(40)
The first interview	3	(11)
Introduction	3	(1)
Preliminary points	3	(1)
General points	4	(1)
Matters to be covered when taking instructions	5	(5)
Taking action on the client's behalf	10	(3)
Preparing a statement and proof of evidence	13	(1)
Community legal service fund and public funding for family proceedings	14	(27)
Introduction	14	(1)
The Funding Code	15	(1)
The Funding Code---decision-making guidance	16	(1)
The basic structure of the new scheme	16	(8)
Emergency Representation	24	(3)
The issue of a certificate for general family help and/or Legal Representaion	27	(1)
Notification of issue of certificate	28	(1)
Effect of issue of a certificate for general family help and/or Legal Representation	28	(2)
Reimbursement of the Community Legal Service Fund and the Statutory Charge	30	(1)
The statutory charge under s. 10(7), Access to Justice Act 1999	30	(6)
The duty to make the client fully aware of the potential impact of the charge	36	(1)
Minimising the effect of the charge	36	(5)
PART II Divorce: The decree	41	(82)
The ground for divorce and the five facts	43	(13)
Introduction	43	(1)
The ground for divorce	43	(1)
The five facts	43	(1)
Adultery: s. 1(2)(a)	44	(3)
Behaviour: s. 1(2)(b)	47	(2)
Establishing as a matter of fact that the parties are living apart	49	(1)
Desertion: s. 1(2)(c)	50	(1)
Two years' separation and consent: s. 1(2)(d)	51	(1)
Five years' separation: s. 1(2)(e)	52	(1)
The effect of living together in relation to the five facts: s. 2	52	(4)
Bar on presentation of divorce petitions within one year of marriage	56	(3)
Introduction	56	(1)
Absolute one-year bar	56	(1)
Alternative courses of action for the first year of marriage	56	(1)
When the first year is up	57	(2)
Jurisdiction in divorce	59	(5)
Introduction	59	(1)
Jurisdiction for divorce: s. 5, Domicile and Matrimonial Proceedings Act 1973	59	(1)
Habitual residence	60	(1)
Domicile	61	(3)
Drafting a divorce petition	64	(21)
Introduction	64	(1)
General	64	(1)
The contents of the petition	65	(2)
Notes on drafting the petition	67	(18)
Undefended divorce: procedure for obtaining the decree	85	(31)
Documents required	85	(11)
Commencement of proceedings	96	(1)
Fee	96	(1)
Additional matters where the solicitor is acting	96	(1)
Entry in court books	97	(1)
Service of the petition	97	(4)
Return of the acknowledgement of service	101	(1)
When directions for trial can be given	102	(1)
Applying for directions for trial	103	(2)
Directions for trial	105	(3)
Pronouncement of decree nisi	108	(1)
Cases referred to the judge	108	(1)
Consideration of arrangements for the children of the family	109	(3)
Decree absolute	112	(2)
Declaration that the decree absolute is void	114	(1)
Defended divorces	114	(2)
Amended, supplemental, and new petitions	116	(3)
Introduction	116	(1)
Amendment, supplemental petition, or fresh petition?	116	(1)
Procedure for amendment	117	(1)
Supplemental petitions	117	(1)
Fresh petitions	118	(1)
Protection of respondents in separation cases: ss. 5 and 10, Matrimonial Causes Act 1973	119	(4)
Introduction	119	(1)
Section 5, Matrimonial Causes Act 1973: grave financial or other hardship	119	(1)
Section 10, Matrimonial Causes Act 1973	120	(3)
PART III Ancillary relief after divorce	123	(128)
Ancillary relief orders available	125	(17)
Introduction	125	(1)
Maintenance pending suit: s. 22, Matrimonial Causes Act 1973	125	(1)
Long-term orders: ss. 23 and 24, Matrimonial Causes Act 1973	126	(14)
Orders for sale: s. 24A, Matrimonial Causes Act 1973	140	(1)
Interim orders	141	(1)
Procedure for ancillary relief applications	142	(62)
Introduction	142	(1)
The cost of the application	142	(1)
Protecting the applicant pending the making of an order	143	(1)
The Ancillary Relief Procedure	143	(1)
The Pre-action Protocol	143	(2)
The procedure in detail	145	(7)
The first appointment	152	(3)
Interim orders	155	(1)
The Financial Dispute Resolution appointment	155	(2)
Preparation for the final hearing	157	(2)
The hearing	159	(2)
Costs and Calderbank offers (or offers to settle)	161	(3)
Orders in respect of pensions---some additional procedural points	164	(2)
Consent orders	166	(1)
Some points on drafting ancillary relief orders	167	(4)
Appeal	171	(1)
Challenging ancillary relief consent orders	171	(33)
Factors to be considered on ancillary relief applications	204	(23)
Introduction	204	(1)
The s. 25 factors	204	(3)
The s. 25 factors in more detail	207	(10)
The clean break: s. 25A	217	(1)
Other circumstances not specifically referred to in s. 25	218	(2)
Guidelines in fixing the appropriate periodical payments order	220	(1)
Special considerations with regard to particular types of order	221	(5)
Maintenance pending suit	226	(1)
Child Support Act 1991 and subsequent amendments	227	(13)
Introduction	227	(1)
The purpose of the 1991 Act	227	(1)
Some basic definitions	228	(1)
The `qualifying child'	228	(1)
The `non-resident parent'	228	(1)
The `person with care'	228	(1)
The duty to maintain	228	(1)
The calculation of child maintenance	229	(1)
The new calculation	229	(5)
The role of the courts	234	(1)
The benefit case	234	(1)
The non-benefit case	235	(1)
Revisions	236	(1)
Appeals from the maintenance calculation	236	(1)
Collection and enforcement	236	(1)
Child Support Act 1995 and variations under the Child Support Pensions and Social Security Act 2000	237	(3)
Preventing and setting aside dispositions under s. 37, Matrimonial Causes Act 1973	240	(4)
Introduction	240	(1)
Requirement of financial relief proceedings	240	(1)
Orders that can be made	240	(2)
Definitions	242	(1)
Procedure	243	(1)
Collection and enforcement of ancillary relief orders	244	(4)
Introduction	244	(1)
Enforcing orders for the payment of money	244	(2)
The Maintenance Enforcement Act 1991	246	(1)
Registration of periodical payments orders in the family proceedings court	246	(1)
Enforcement of property adjustment orders	246	(2)
Variation of ancillary relief orders	248	(3)
Introduction	248	(1)
The scope of s. 31	248	(1)
What can the court do on a variation application?	249	(1)
Factors to be taken into account on variation application	250	(1)
PART IV Financial provision and property during marriage	251	(22)
Financial provision and property during marriage	253	(16)
Introduction	253	(1)
Domestic proceedings and Magistrates' Courts Act 1978	253	(1)
Summary of main financial sections	253	(1)
Jurisdiction under Part I, DPMCA 1978	254	(1)
Who may apply for an order under sections 2 and 6?	254	(1)
Definition of `party to a marriage' and `child of the family'	255	(1)
Orders under section 2	255	(3)
Agreed orders under section 6	258	(2)
Miscellaneous provisions relating to periodical payments and lump sum orders (duration, orders for children, etc.)	260	(1)
Effect of living together on financial orders under s. 25, DPMCA 1978	261	(1)
Procedure	261	(4)
Enforcement of orders	265	(2)
Variation	267	(2)
Separation and maintenance agreements	269	(4)
Introduction	269	(1)
The difference between separation and maintenance agreements	269	(1)
Likely contents of separation agreements	269	(1)
The form of a separation or maintenance agreement	270	(1)
Effect of a separation agreement	271	(1)
Advantages of a separation or maintenance agreement	271	(1)
Enforcement	271	(1)
Impact of subsisting separation agreement or maintenance agreement on financial arrangements after divorce etc.	272	(1)
The provisions of ss. 34-36, Matrimonial Causes Act 1973 as to maintenance agreements	272	(1)
PART V Taxation	273	(10)
Tax considerations	275	(8)
Introduction	275	(1)
Income Tax	275	(1)
General rules	275	(1)
Tax and maintenance	276	(1)
Other expenses	276	(1)
Inheritance Tax and Capital Gains Tax	276	(1)
Inheritance tax	276	(2)
Capital Gains Tax	278	(3)
Stamp duty	281	(2)
PART VI Welfare benefits	283	(14)
Welfare benefits	285	(12)
Introduction	285	(1)
Income Support and Jobseeker's Allowance	285	(1)
Who can claim?	286	(1)
Calculating the applicable amount	287	(1)
The social fund	288	(1)
How to claim income support	288	(1)
Appeal and review	288	(1)
Statutory duty to maintain other members of the family	289	(1)
The diversion procedure	289	(1)
Tax Credits	289	(1)
Introduction	289	(1)
The Child Tax Credit	290	(1)
The Working Tax Credit	291	(1)
Housing benefit	291	(1)
Who qualifies?	291	(1)
What payments will be made?	292	(1)
Amount of housing benefit	292	(1)
Child Benefit	293	(1)
Child benefit	293	(1)
State Benefits and Marriage Breakdown	294	(1)
Relevance of state benefits in determining appropriate maintenance	294	(1)
Maintenance v state benefits: pros and cons for the recipient	294	(1)
Lump sums and income support	295	(2)
PART VII Occupation orders and non-molestation orders: Part IV of the Family Law Act 1996	297	(62)
Occupation orders and non-molestation orders: Part IV of the Family Law Act 1996	299	(60)
Introduction	299	(1)
The orders available	300	(1)
Getting to grips with the provisions---associated persons and relevant child	301	(3)
Occupation orders---the menu	304	(1)
Position where the applicant is entitled to occupy	304	(4)
Occupation order where applicant is a former spouse or former civil partner with no existing right to occupy	308	(2)
Occupation order where applicant is a cohabitant or former cohabitant with no existing right to occupy	310	(2)
Occupation order where neither spouse or civil partner is entitled to occupy	312	(1)
Position where neither cohabitant nor former cohabitant is entitled to occupy	313	(1)
Ancillary orders where an occupation order is made under ss. 33, 35, or 36	313	(1)
Non-molestation orders	314	(1)
Application by children	315	(1)
Order made without notice to the other party	316	(1)
Undertakings	317	(1)
Enforcement	317	(3)
Variation and discharge of orders	320	(1)
Procedural guide	321	(1)
The procedure in detail	322	(5)
Enforcement of the order	327	(6)
Procedure in the family proceedings court	333	(26)
PART VIII General matters concerning the home and other property	359	(26)
The home: preventing a sale or mortgage	361	(13)
Introduction	361	(1)
The problem	361	(1)
House in joint names	361	(5)
House in sole name of one spouse	366	(4)
Bankruptcy and the matrimonial home	370	(1)
Keeping up with the mortgage or rent	371	(1)
Special provisions of Family Law Act 1996	372	(2)
Establishing an interest in property---section 17, Married Women's Property Act 1882 and the law relating to constructive and resulting trusts	374	(7)
Introduction	374	(1)
Possible applicants	374	(1)
What property is covered?	375	(1)
What orders can be made?	375	(1)
The need to establish a trust	375	(4)
Fixing the size of each party's share in the disputed property	379	(1)
Orders for sale	380	(1)
Procedure	380	(1)
Practical importance of s. 17	380	(1)
The question of wills	381	(4)
Introduction	381	(1)
The need to consider what will happen on client's death	381	(1)
The effect of marriage on a will	381	(1)
The effect of divorce on succession	382	(1)
Steps to be taken	383	(1)
Inheritance (Provision for Family and Dependants) Act 1975	383	(1)
Appointing a guardian for children	383	(2)
PART IX Children	385	(70)
The Children Act 1989---the section 8 orders and general principles	387	(25)
Introduction	387	(1)
Parental responsibility	387	(3)
Section 8 orders	390	(1)
Residence orders	391	(5)
Contact orders	396	(3)
Prohibited steps orders	399	(1)
Specific issue orders	400	(1)
Supplementary provisions and interim orders	401	(2)
Family assistance orders	403	(1)
General principles	404	(6)
Power of the court to order investigation by local authority	410	(2)
Procedures for obtaining a section 8 order	412	(39)
Introduction	412	(1)
The courts---jurisdiction and allocation of proceedings	412	(1)
Applications for a section 8 order	413	(1)
Who can apply for section 8 orders	414	(2)
Procedure for section 8 orders	416	(12)
Financial provision and property adjustment for children	428	(23)
Preventing the removal of a child from the jurisdiction	451	(4)
Introduction	451	(1)
Family Law Act 1986	451	(1)
Removal from the UK	451	(3)
Tracing a lost child	454	(1)
PART X Cohabitants	455	(8)
Cohabitants	457	(6)
Introduction	457	(1)
The meaning of cohabitation	457	(1)
Protection from violence	457	(1)
Inheritance	457	(1)
Status of children	458	(1)
Financial provision and the significance of the Child Support Act 1991	459	(1)
Ownership and occupation of property	460	(3)
PART XI The Human Rights Act 1998	463	(11)
The Human Rights Act 1998 and its impact on family law	465	(9)
Introduction	465	(1)
Qualifications to the operation of the Act	465	(1)
The operation of the Act	465	(2)
Breaches and remedies	467	(1)
Relevance of the Convention to family law	467	(1)
Orders made under Part IV, Family Law Act 1996	468	(1)
Ancillary relief proceedings	469	(1)
Orders in respect of children	469	(4)
Practice Direction	473	(1)
Procedural points	473	(1)
Answers	474	(9)
Index	483