Family Laws in England

The family law system used to refer to the laws, procedures and rules governing family matters as well as the authorities, agencies and groups which participate in or influence the outcome of private disputes or social decisions involving family law. Such a view of family law may be regarded as assisting the understanding of the context in which the law works and to indicate the policy areas where improvements can be made.

The UK is made up of three jurisdictions: Scotland, Northern Ireland, and England and Wales. Each has quite different systems of family law and courts. Family law encompasses divorce, adoption, wardship, child abduction and parental responsibility. It can either be public law or private law. Family law cases are heard in both County Courts and Family Proceedings Courts (Magistrates Court), both of which operate under codes of Family. There is also a specialist division of the High Court of Justice, the Family Division which hears family law cases.

A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute'. Relevant laws are:

Matrimonial Causes Act 1973, which sets out the basis for divorce (part i) and how the courts deal with financial issues, known as ancillary relief (part ii)

Cruelty has been made irrelevant. See Gollins v Gollins [1964] A.C. 644

Family Law Act 1996

Children Act 1989

Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991

Marriage Act 1949

Marriage Act 1994

Gender Recognition Act 2004

Here is a rough outline of the undefended divorce procedure from start to finish:

1.     Filing of Divorce Petition & if necessary Statement of Arrangements for the Children

2.     Documents issued by Court and posted to the Respondent

3.     Respondent returns Acknowledgement of Service to the Court (if he/she does not you will need to consider Bailiff Service, Deemed Service or other options)

4.     Petitioner completes Affidaviti in Support of Petition and Request for directions

5.     A Judge will then consider all the divorce papers and if he/she is satisfied issue a Certificate of Entitlement to a Decree and Section 41 Certificate (confirming he/she is content with arrangements for any children)

6.     Decree Nisi is granted

7.     Six weeks later the application can be made by the Petitioner for the Decree Absolute.

From beginning to end, if everything goes smoothly and Court permitting, it takes around 6 months.

If there are any outstanding financial issues between the parties, most solicitors would advise resolving these by way of a 'Clean Break' Court order prior to obtaining the Decree Absolute.

There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down.

There are however five 'facts' that may constitute this ground. They are:

1.     Adultery

§                    Often now considered the 'nice' divorce.

§                    respondents admitting to adultery will not be penalised financially or otherwise.

2.     Unreasonable behaviour

§                    The petition must contain a series of allegations against the respondent that the Judge considers serious enough that the petitioner cannot be expected to live with the respondent.

3.     Two years separation by consent

§                    both parties must consent

§                    the parties must have lived separate lives for at least two years prior to the presentation of the petition

§                    this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc.

4.     Two years desertion

5.     Five years separation