A Practical Approach to Family Law

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

• ISBN13: 9780199264032
• ISBN10: 0199264031
• Edition: 7th
• Format: Paperback
• Copyright: 2004-04-01
• Publisher: Oxford University Press

Summary

A Practical Approach to Family Law provides a full picture of the law and practice relating to family proceedings in all courts. Its breadth of coverage and accessible style has made it an essential resource for students and practitioners alike.The eighth edition has been completely updated to take full account of new statutory provisions, including the Civil Partnership Act 2004, the Adoption and Children Act 2002, the Domestic Violence, Crime and Victims Act 2004 and the Gender Recognition Act 2004, as well as case law, StatutoryInstruments, and Practice Directions. With new advice on library, information, and professional development resources, A Practical Approach to Family Law provides real assistance in dealing with this dynamic area of law.

Author Biography

Jill Black is a High Court Judge of the Family Division Jane Bridge is currently a mediator, a (non practising) barrister Tina Bond, solicitor, is a senior lecturer in family law at the University of Northumbria. She is a member of the Law Society's Family Law Panel.

Table of Contents

Table of Cases	xxiii
Table of Statutes	xxxv
Table of Statutory Instruments	xliii
List of Abbreviations	xlvii
PART I GENERAL MATTERS
The First Interview	3	(12)
Preliminary points	3	(1)
General points	4	(1)
Matters to be covered when taking instructions	4	(6)
Taking action on the client's behalf	10	(4)
Preparing a statement and proof of evidence	14	(1)
Money Laundering	15	(9)
Introduction	15	(2)
The offences	17	(1)
`Criminal property'	17	(1)
The duty to disclose on all persons	18	(1)
The duty to disclose in the `regulated sector'	18	(1)
The problem with privilege	19	(1)
The other defences	19	(1)
`Protected disclosure'	20	(1)
`Tipping off'	20	(1)
Nominated officers (MLROs)	21	(1)
The provision of systems and training	22	(1)
How does this all work in practice?	22	(2)
Community Legal Service and Public Funding for Family Proceedings	24	(55)
Introduction	25	(1)
The Funding Code	26	(1)
The Funding Code---Decision Making Guidance	27	(1)
The basic structure of the new scheme	27	(9)
Emergency representation	36	(3)
The issue of a certificate for general family help and/or legal representation	39	(1)
Notification of issue of a certificate	39	(1)
The effect of the issue of a certificate for general family help and/or legal representation	40	(2)
Reimbursement of the Community Legal Service Fund and the statutory charge	42	(1)
Solicitor to receive moneys due to funded party	43	(1)
The statutory charge under s. 10(7), Access to Justice Act 1999	44	(7)
The duty to make the client fully aware of the potential impact of the charge	51	(1)
Minimising the effects of the charge	51	(28)
Mediation	79	(12)
Meaning of mediation	79	(2)
Public funding for mediation	81	(1)
Family Law Protocol	81	(4)
The mediation process	85	(6)
PART II DIVORCE, NULLITY, AND JUDICIAL SEPARATION: THE DECREE
The Ground for Divorce and the Five Facts	91	(16)
The ground for divorce	92	(1)
The five facts	92	(1)
Irretrievable breakdown	93	(1)
Adultery: s. 1(2)(a)	93	(3)
Behaviour: s. 1(2)(b)	96	(2)
Establishing as a matter of fact that the parties are living apart	98	(2)
Desertion: s. 1(2)(c)	100	(3)
Two years' separation and consent: s. 1(2)(d)	103	(1)
Five years' separation: s. 1(2)(e)	104	(1)
The effect of living together in relation to the five facts: s. 2	104	(3)
Bar on Presentation of Divorce Petitions Within One Year of Marriage	107	(3)
Absolute one-year bar	107	(1)
Bar not applicable to nullity petitions	107	(1)
Alternative courses of action for the first year of marriage	107	(1)
When the first year is up	108	(2)
Jurisdiction in Divorce, Nullity, and Judicial Separation Suits	110	(6)
Jurisdiction for divorce: s. 5, Domicile and Matrimonial Proceedings Act 1973	110	(1)
Habitual residence	111	(1)
Domicile	112	(3)
Recognition of foreign decrees	115	(1)
Public Funding and Undefended Divorces	116	(3)
General Family Help and certificate for Legal Representation not generally available	116	(1)
Certificate available for defended cases	116	(1)
Certificate exceptionally available for undefended cases	116	(1)
Certificates available for proceedings in connection with divorce or judicial separation other than decree proceedings	117	(1)
Legal Help available for decree proceedings	117	(2)
Drafting a Divorce Petition	119	(21)
General	119	(1)
The contents of the petition	120	(2)
Notes on drafting the petition	122	(18)
Undefended Divorce: Procedure for Obtaining the Decree	140	(35)
Documents required	141	(11)
Commencement of proceedings	152	(1)
Fee	153	(1)
Additional matters where the solicitor is acting	153	(1)
Entry in court books	153	(1)
Service of the petition	153	(7)
Return of the acknowledgement of service	160	(1)
When directions for trial can be given	161	(1)
Applying for directions for trial	162	(3)
Directions for trial	165	(2)
Pronouncement of decree nisi	167	(1)
Cases referred to the judge	168	(1)
Consideration of arrangements for the children of the family	168	(4)
Decree absolute	172	(3)
Amended, Supplemental, and New Petitions	175	(4)
Amendment, supplemental petition, or fresh petition?	175	(1)
Procedure for amendment	176	(1)
Supplemental petitions	177	(1)
Fresh petitions	177	(2)
Defended Divorces	179	(4)
General	179	(1)
Public funding for defended divorces	179	(2)
Outline of procedure in a defended cause	181	(2)
Protection of Respondents in Separation Cases: Sections 5 and 10, Matrimonial Causes Act 1973	183	(1)
Section 5, Matrimonial Causes Act 1973---grave financial or other hardship	183	(6)
Section 10, Matrimonial Causes Act 1973	185	(3)
Rescission of the decree nisi in other circumstances	188	(1)
Judicial Separation	189	(1)
What is a decree of judicial separation?	189	(5)
The grounds for judicial separation: s. 17, Matrimonial Causes Act 1973	189	(1)
The application of ss. 6 and 7, Matrimonial Causes Act 1973 to judicial separation	190	(1)
No time restriction on petition	190	(1)
Section 5, Matrimonial Causes Act 1973 not applicable	190	(1)
Section 10, Matrimonial Causes Act 1973 not applicable	190	(1)
The procedure for seeking a decree of judicial separation	191	(1)
The effect of the decree: s. 18, Matrimonial Causes Act 1973	191	(1)
Subsequent divorce: s. 4, Matrimonial Causes Act 1973	192	(1)
Reasons for seeking judicial separation	193	(1)
Nullity	194	(7)
The need for a nullity decree	194	(1)
Void marriages: s. 11	195	(1)
Voidable marriages: s. 12	196	(1)
Bars to relief where the marriage is voidable: s. 13, Matrimonial Causes Act 1973	196	(1)
Procedure	197	(1)
Effect of a decree of nullity	198	(3)
PART III ANCILLARY RELIEF AFTER DIVORCE, NULLITY, AND JUDICIAL SEPARATION
Ancillary Relief Orders Available	201	(20)
Maintenance pending suit: s. 22, Matrimonial Causes Act 1973	201	(2)
Long-term orders: ss. 23 and 24, Matrimonial Causes Act 1973	203	(16)
Orders for sale: s. 24A, Matrimonial Causes Act 1973	219	(1)
Interim orders	220	(1)
Procedure for Ancillary Relief Applications	221	(56)
The cost of the application	222	(1)
Protecting the applicant pending the making of an order	223	(1)
The ancillary relief procedure	223	(1)
The Pre-Action Protocol	223	(3)
The procedure in detail	226	(7)
The first appointment	233	(4)
Interim orders	237	(1)
The Financial Dispute Resolution appointment	237	(2)
Preparation for the final hearing	239	(3)
The hearing	242	(2)
Costs and Calderbank offers (or offers to settle)	244	(3)
Consent orders	247	(2)
Some points on drafting ancillary relief orders	249	(5)
Appeal	254	(1)
Challenging ancillary relief consent orders	254	(23)
Factors to be Considered on Ancillary Relief Applications	277	(25)
Introduction	278	(1)
The s. 25 factors	278	(4)
The s. 25 factors in more detail	282	(6)
The significance of the decision in White v White and subsequent case law developments	288	(4)
Other circumstances not specifically referred to in s. 25	292	(2)
Special considerations with regard to particular types of order	294	(6)
Maintenance pending suit	300	(2)
Child Support	302	(14)
Introduction	302	(1)
The purpose of the 1991 Act	303	(1)
Some basic definitions	303	(1)
The duty to maintain	304	(1)
The calculation of child maintenance	305	(3)
Apportionment of the child support liability	308	(1)
The position where care is shared	309	(1)
The role of the courts	310	(1)
The benefit case	310	(2)
The non-benefit case	312	(1)
Revisions	312	(1)
Appeals from the maintenance calculation	312	(1)
Collection and enforcement	313	(1)
Effect of past capital settlements	313	(1)
Child Support Act 1995 and variations under the Child Support Pensions and Social Security Act 2000	314	(2)
Preventing and Setting Aside Dispositions Under Section 37, Matrimonial Causes Act 1973	316	(4)
Introduction	316	(1)
Requirement of financial relief proceedings	316	(1)
Orders that can be made	317	(1)
Definitions	318	(2)
Collection and Enforcement of Ancillary Relief Orders	320	(3)
Enforcing orders for the payment of money	320	(2)
The Maintenance Enforcement Act 1991	322	(1)
Registration of a periodical payments order in the family proceedings court	322	(1)
Enforcement of property adjustment orders	322	(1)
Variation of Ancillary Relief Orders	323	(8)
The scope of s. 31	323	(1)
What can the court do on a variation application?	324	(2)
Factors to be taken into account on a variation application	326	(5)
PART IV TAXATION
Tax Considerations	331	(12)
Income tax	332	(1)
General rules	332	(2)
Tax on maintenance orders	334	(1)
Inheritance tax and capital gains tax	334	(1)
Inheritance tax	335	(1)
Capital gains tax	336	(4)
Stamp duty	340	(3)
PART V ORDERS UNDER PART IV OF THE FAMILY LAW ACT 1996
Occupation Orders and Non-Molestation Orders	343	(68)
Introduction	345	(1)
The orders available	345	(1)
Associated persons and relevant child	346	(3)
Occupation orders---the menu	349	(1)
Position where the applicant is entitled to occupy	350	(4)
Occupation order where applicant is a former spouse with no existing right to occupy	354	(2)
Occupation order where applicant is a cohabitant or former cohabitant with no existing right to occupy	356	(2)
Occupation order where neither spouse is entitled to occupy	358	(1)
Position where neither cohabitant nor former cohabitant is entitled to occupy	358	(1)
Ancillary orders where an occupation order is made under ss. 33, 35, or 36	359	(1)
Non-molestation orders	360	(1)
Applications by children	361	(1)
Applications by third parties	362	(1)
Orders made without notice	362	(1)
Undertakings	363	(1)
Enforcement	363	(3)
Variation and discharge of orders	366	(1)
Procedural guide	366	(4)
The procedure in detail	370	(5)
Enforcement of the order	375	(5)
Procedure in the family proceedings court	380	(2)
Impact of the Human Rights Act 1998	382	(29)
PART VI GENERAL MATTERS CONCERNING THE HOME AND OTHER PROPERTY
The Home: Preventing a Sale or Mortgage	411	(13)
The problem	411	(1)
House in joint names	412	(5)
House in sole name of one spouse	417	(5)
Bankruptcy and the matrimonial home	422	(2)
Keeping up with the Mortgage or Rent	424	(4)
General	424	(1)
Steps that can be taken	424	(1)
Special provisions of the Family Law Act 1996	425	(3)
The Question of Wills	428	(7)
The need to consider what will happen on client's death	428	(1)
The effect of marriage on a will	429	(1)
The effect of divorce, judicial separation, and nullity on succession	429	(1)
Steps to be taken	430	(1)
Inheritance (Provision for Family and Dependants) Act 1975	430	(1)
Importance of considering succession	431	(1)
Appointing a guardian for children	432	(3)
PART VII CHILDREN
The Children Act 1989: General Principles, Parental Responsibility Orders in Family Proceedings, Section 8 Orders, Guardianship Orders and Family Proceedings, Financial Provision and Property Adjustment for Children	435	(53)
Introduction	437	(1)
General principles	438	(13)
Parental responsibility	451	(6)
Guardianship	457	(1)
Special guardianship orders	458	(1)
Orders in family proceedings	459	(2)
Section 8 orders	461	(5)
Residence orders	466	(7)
Contact orders	473	(6)
Prohibited steps orders	479	(1)
Specific issue orders	480	(1)
Interim orders and supplementary provisions	481	(2)
Settling residence and contact disputes	483	(1)
Variation of section 8 orders	483	(1)
Family assistance orders	484	(1)
Financial provision and property adjustment for children	485	(3)
Procedure for Orders Under the Children Act 1989	488	(26)
The courts---jurisdiction and allocation of proceedings	489	(4)
Procedure	493	(21)
Wardship and the Inherent Jurisdiction	514	(21)
What does inherent jurisdiction mean?	514	(2)
What does wardship mean?	516	(1)
Impact of the Children Act 1989 on wardship	517	(2)
When should wardship be used?	519	(4)
Procedure	523	(6)
The future of the ward	529	(1)
Injunctions	530	(5)
Preventing the Removal of a Child from the Jurisdiction and Tracing a Lost Child	535	(6)
Family Law Act 1986	535	(1)
Removal from the UK	536	(3)
Tracing a lost child	539	(2)
Children in Local Authority Care	541	(51)
Introduction---children and local authorities	542	(5)
The Protocol for Judicial Case Management in Public Law Children Act Cases	547	(12)
Care and supervision orders	559	(31)
Public funding	590	(1)
Appeals	590	(2)
Emergency Protection of Children	592	(11)
Introduction	592	(1)
Child assessment orders	593	(2)
Emergency protection orders	595	(4)
Police protection	599	(1)
Recovery orders	600	(3)
PART VIII FINANCIAL PROVISION AND PROPERTY DURING MARRIAGE
Section 27, Matrimonial Causes Act 1973	603	(7)
Grounds for application	603	(1)
Jurisdiction	604	(1)
Orders that can be made	604	(1)
Factors to be considered on an application under s. 27	605	(2)
Procedure	607	(1)
Interim orders	607	(1)
Variation of s. 27 orders	607	(1)
Section 27 compared with Domestic Proceedings and Magistrates' Courts Act 1978 (DPMCA 1978)	607	(3)
Separation and Maintenance Agreements	610	(4)
The difference between separation and maintenance agreements	610	(1)
Likely contents of separation agreements	611	(1)
What a separation agreement cannot do	611	(1)
The form of a separation or maintenance agreement	612	(1)
Effect of a separation agreement	612	(1)
Advantages of a separation or maintenance agreement	612	(1)
Enforcement	613	(1)
Impact of subsisting separation agreement or maintenance agreement on financial arrangements after divorce, etc.	613	(1)
Section 17, Married Women's Property Act 1882	614	(13)
Introduction	615	(1)
The basic provision	615	(1)
Possible applicants	615	(1)
What property is covered?	616	(1)
What orders can be made?	616	(1)
Ordinary trust principles generally apply in determining disputes	616	(1)
Disputes over land	617	(4)
The ownership of cash and assets other than land	621	(1)
Fixing the size of each party's share in the disputed property	622	(1)
Orders for sale	622	(1)
Procedure	623	(1)
Practical importance of s. 17	623	(4)
PART IX WELFARE BENEFITS
Welfare Benefits	627	(15)
Introduction	628	(1)
Income support and jobseeker's allowance	629	(1)
Introduction	629	(1)
Income support	629	(4)
The social fund	633	(1)
Tax credits	633	(1)
Introduction	633	(1)
The child tax credit	634	(2)
The working tax credit	635	(1)
Housing benefit	636	(3)
Who qualifies?	636	(1)
What payments will be made?	636	(1)
Amount of housing benefit	637	(1)
Council tax benefit	638	(1)
Child benefit	639	(1)
Child benefit	639	(1)
State benefits and marriage breakdown	640	(2)
Relevance of state benefits in determining appropriate maintenance	640	(1)
Maintenance versus state benefits: pros and cons for the recipient	640	(1)
Lump sums and income support	641	(1)
The Local Authority and Housing	642	(4)
The homeless	642	(3)
Secure tenants	645	(1)
Cohabitants	646	(8)
Introduction	646	(1)
Protection from violence	646	(1)
Inheritance	647	(1)
Status of children	648	(1)
Financial provision and the significance of the Child Support Act 1991	649	(2)
Ownership and occupation of property	651	(1)
Cohabitants---the future?	652	(2)
The Human Rights Act 1998 and its Impact on Family Law	654	(15)
Introduction	654	(1)
Qualifications to the operation of the Act	655	(1)
The operation of the Act	655	(1)
Breaches and remedies	656	(1)
Relevance of the Convention to family law	657	(10)
Practice Direction	667	(1)
Procedural points	668	(1)
Index	669