Acknowledgement of Service
This is the form that must be filed with the court in response to a divorce petition. It must be returned to the court within a short and specified time after service. The form requires the 'Respondent' to the divorce to indicate if they have any intention to defend the divorce, if there is any dispute on or validity of the marriage. The 'Acknowledgement of Service' form is then exhibited to the 'Petitioner's' application for a 'Conditional Order'.
Affidavit
This is a written statement which has been 'sworn' (confirmed as being true before an independent solicitor or court official). The affidavit can be treated as if it is evidence given personally in front of a court after an oath e.g., "I swear by Almighty God that I will tell the truth, the whole truth and nothing but the truth" or "I solemnly and sincerely declare that …". It can be on any religious book. It can be 'affirmed' if the person concerned has no religious belief. Any solicitor can swear a document, often without an appointment. The fee is £5 plus £2 for each accompanying exhibit.
Alimony
This is a colloquial term which refers to spousal maintenance. It is to be distinguished from child maintenance, sometimes known as child support.
Answer
An answer is a defence to a divorce petition. This results in the divorce being defended which is long, costly and are proceedings that take place in public so much thought and care is needed before defending. Since 6 April 2022 there are fewer barriers for defending a divorce application.
Apostille
This is a process by which documents issued in one country have to be authenticated or legalised before they are recognised as valid in another country.
Applicable Law
This is a concept found in a number of European countries where the family courts of a country apply not their own local but the law of another country with which the couple may have a particular connection. England will only ever apply English law.
Applicant
A person who starts legal proceedings or makes an application to the court. For divorce and dissolution applications it is now possible for both spouses / civil partners to apply jointly (i.e., there can be 2 applicants).
Arbitration
A form of independent adjudication which takes place outside the court system and with the opportunity to agree timetables, choice of arbitrator, procedures, location of hearings etc. Arbitration can be used for all issues in a case or just a narrow and discrete point in dispute. It is a binding form of dispute resolution.
Assets
'Property' is all non-income resources of either party to a marriage or civil partnership. It includes homes (as well as second homes and investment properties), bank accounts and investments, pensions, trust accounts, crypto currency, assets held by others on one's behalf, debts, company and business interests and all other resources available to either spouse anywhere in the world now and in the foreseeable future. Whether held personally, in trust or in companies or held by others in their name on one's behalf, all available resources must be disclosed.
Brexit
The withdrawal of the United Kingdom from the European Union, which occured at 11.00pm on 31 December 2019.
Brussels I
Brussels I is an EU Regulation which enables the registration and enforcement of maintenance orders between EU countries simply and quickly.
NB: England is no longer a member of the EU.
Brussels II
Brussels II is an EU Regulation which came into force in March 2001 and was subsequently revised and replaced in 2005. Brussels II harmonises all divorce jurisdiction across Europe. Crucially Brussels II introduced a EU wide law that the first spouse to issue a divorce petition in a country secures jurisdiction there for that spouse. This can be greatly to the disadvantage of the other spouse. Where a couple have a connection with two or more EU countries, very urgent advice is needed about where to issue – and quickly.
NB: England is no longer a member of the EU.
CAFCASS
The Children and Family Court Advisory and Support Service (CAFCASS) are sometimes asked by the court to assist in cases by meeting the parents and children and making recommendations to the court.
Capital Gains Tax
Capital Gains Tax, a tax that is charged when an asset is disposed of and which is linked to the increase in value of the asset during ownership. If it is an issue in your case specialist tax advice may be required, which we can help arrange for you.
Capitalisation
This is a method of working out a lump sum to provide for income requirements in lieu of spousal maintenance, sometimes known as alimony. It is calculated by reference to a range of financial and actuarial assumptions (most commonly the Duxbury assumptions) to provide a stream of income to replace maintenance payments for the rest of the recipient’s life. For example, the stronger financial party might pay a sum of £100,000 to the weaker financial party aged 60 to provide them with an income of about £10,000 a year for the rest of their life. It enables clean breaks in financial matters between spouses.
Cash Equivalent Transfer Value
This is a type of valuation given to a pension fund. Roughly, if the fund were transferred to another pension provider at the given date, it is the figure that the new pension provider would receive. It is often the figure given most weight in the courts and by family lawyers in negotiations; but other approaches to valuations may sometimes be more beneficial or appropriate. When it is agreed or determined that a pension share may be required, it is usual for a pension report to be undertaken by an actuary.
Caution
A notice lodged at the Land Registry to prevent someone selling, transferring or mortgaging a property.
Central Authority
Part of the government which deals with other countries on cross border family law cases including child abduction cases and the enforcement of maintenance orders made abroad.
Central Family Court
The primarty Family Court is based at First Avenue House, 42-29 High Holborn, London, WC1B 6NP (close to Chancery Lane underground station).
Chambers
All family cases are heard in private, known as in Chambers except, for example, defended divorces, granting of decrees nisi and some appeals. However judgments in final hearings can sometimes be publicly reported in the High Court which can be another reason to settle. There is an increasing move towards greater openness and transparency.
Charman
A major Court of Appeal decision in 2008 which provided very good, practical guidance on what the House of Lords was intending to say in the case of 'Miller'. It stated that equality of division was now the principle of English financial provision law. It distinguished matrimonial acquest property, in essence the assets which were acquired during the marriage and cohabitation, and non matrimonial property which includes premarital assets, inheritances and gifts and some post separation assets. Matrimonial acquest property is likely to be divided equally provided reasonable needs are satisfied. Non-matrimonial property starts with equality dividing but it may be possible to show good fairness reasons to depart from equality.
Child Abduction
Parental child abduction arises when one parent takes their child abroad without the consent of the other parent or takes their child abroad for a short time with consent but then retains the child abroad without consent. Many countries have signed up to the Hague Convention in which countries co-operate for the speedy return of abducted children. The parent whose child has been abducted to this country is entitled to free legal representation for proceedings designed to secure the child’s return. Often courts act very fast with substantial powers to locate an abducted child and secure the child's return.
Child Arrangements Orders (CAO)
A Child Arrangements Order is an order that regulates where and with whom a child lives and spends time. It has replaced ‘Residence and Contact’ orders and ‘Custody and Access’ orders. It is possible for a child to live with more than one parent and in two separate locations; when this arrangement is endorsed by the court the court makes a joint ‘Lives With’ order. It does not automatically mean that the child spends equal time with each parent.
An order delineating that a child spends time with a parent can take many forms. It can require the time to be supervised or supported by third parties and may take the form of blocks of days, overnights, daytime visits and individual contact via telephone, letter, cards as well as via digital communication platforms, such as Facetime, Zoom, Skype, WhatsApp etc.
Child arrangements sanctioned by the court are always determined by what is perceived by the court to be in the best interests of the child(ren). The child’s welfare is the court’s paramount consideration.
Child Maintenence Service (CMS)
The Child Support Agency (CSA) is now known as the Child Maintenance Service or CMS. It is a government organisation that govern child maintenance when both parents live in the UK. It is calculated by way of a percentage of the paying parent’s income with discounts if the child(ren) spends overnight time with the paying parent. It does not apply if either parent or child lives abroad.
Child of the Family
A child of either party to a relationship who has been treated as a full child of the family.
Child Relocation
An application by one parent to take a child permanently abroad. The application requires careful preparation before the application is made. The primary test is whether the move is in the best interests of the child.
Choice of Law
Rules which determine which country’s laws will be applied to a particular case. See applicable law. England only ever applies its own local, English law.
Civil Partnership
A state registered relationship between two people of the same or opposite sex. It ends on dissolution, not divorce. In England financial powers for orders on dissolution are similar to divorce but might vary considerably in other countries.
Clean Break
The situation where the court has ended all orders and ongoing obligations that could be made between parties in relation to finances (apart from any ongoing arrangements for the support of children). It is often of psychological advantage to obtain this after a divorce, if it is financially possible. Sometimes it is achieved by capitalisation of maintenance.
Cohabitation
People of the opposite, or same sex, living together without being married or in a civil partnership. The law gives more restricted rights on separation or death than for couples. Accordingly we recommend all cohabiting couples to enter into a 'Cohabitation Agreement' to record their intentions for the future. This is often binding on a court.
Collaborative Law
A form of dispute resolution where specially trained lawyers acting for each party resolve cases via meetings. A condition is that if either party later commences proceedings both must then instruct new lawyers. Some regard this as a fundamental flaw, some regard it as its strength. Only appropriate for some cases where some degree of trust is present.
Conciliation
Was often confused with reconciliation, which it was not, and mediation which it is. Mediation is now the preferred word.
Conduct
Conduct is very bad behaviour which the court will only take into account if it is exceptional and it would be inequitable to disregard it. It is rarely raised and even less rarely successfully argued in cases.
Consent Order
Where both parties agree in writing about terms that are then lodged at court. A court order can often made without anyone attending court. Often needs some disclosure (e.g., Form D81 in finance cases) so that the court can be satisfied it is a fair order. No financial consent order can be applied for in financial remedy proceedings before a ‘Conditional Order’ within the divorce process has been made.
Contact Activity
An innovation introduced in late 2008 to encourage compliance with contact orders. It is a programme intended to facilitate and monitor contact and which either one or both parents may be asked to complete. The activity is free of charge if the parent is publicly funded, but if not, the parent may not have to pay if they can claim financial hardship. When making a contact order, a Court can direct or order that they attend one of the following activities:
Contact Centre
Centres across the country often run by charitable organisations, which provide a neutral and safe meeting place for contact to take place. If there are any anxieties about certain care arrangements for the child, the court can order that contact will take place in a contact centre. It is invariably only short-term. The contact centre staff will not necessarily supervise the contact itself. Handover of contact visits can sometimes take place at a contact centre with contact itself taking place outside the centre.
Counsel
Also known as a barrister.
Counselling
Individuals or couples are supported to explore and clarify personal issues and difficulties and to make / manage any changes in their lives. Counselling is confidential and non-judgemental, enabling people to raise matters of intimate, personal concern in complete safety. Counsellors encourage clients to develop an understanding of their problems and create their own choices regarding further action. They do not tell or advise clients what do to. Counselling can last for a few sessions or can be longer, depending on the individual / couple's needs and circumstances.
CVP
CVP is the bespoke software used by the Family Court for remote court hearings. The court will email all parties and their legal representativr a link shortly before the hearing is due to commence.
Department for Constitutional Affairs (DCA)
Also known as the DCA, formerly Lord Chancellor's Dept, known in most countries and now part of the Ministry of Justice.
Detailed Assessment
The process by which the court decides what sum one party should pay towards the costs of the other.
Disclosure
The provision of information, most often referred to in the context of provision of financial information in order to reach a financial settlement on divorce or other relationship breakdown. In England, disclosure is required of all assets, income and resources whenever acquired and, worldwide, including those held in the name of third parties such as trusts, companies and family members. There are extensive court powers to obtain disclosure. A reliable and fair financial settlement cannot be obtained without reliable and complete disclosure.
Dispute Resolution (DR)
Dispute resolution, refers to all forms of settlement other than a court-based resolution. It includes mediation, directive mediation, negotiations between lawyers, collaborative law, private early neutral evaluations (also known as Private FDRs) and arbitration. It is more challenging within an international context but can work well with webcams and other communication devices.
Dissolution
A termination of a civil partnership. The Procedure in England is broadly the same as divorce.
Divorce
A termination of a marriage.
Divorce Application
The divorce application is the document which starts a divorce. It must state the marriage has broken down irretrievably.
Since 6 April 2022 an application for divorce can be made by both spouses, jointly. However, advice should be sought before selecting which method to adopt, particularly in international cases. It must be lodged at court together with the original marriage certificate and other accompanying documents including a statement setting out the arrangements for the children.
Domicile
Domicile is a legal term referring to the country / state with which a person has the strongest long term connection. It is not necessarily where a person may be living e.g., for employment. It is a question of fact. A person can only have one domicile at any one time. It is not possible to have no domicile or two or more domiciles. It is a stronger connection than mere residence or habitual residence.
A person is born with a domicile of origin which is dependent on the father. The domicile of origin continues unless and until it is displaced or replaced by a domicile of choice. This is a positive choice and decision by someone to make another country their long-term connection, invariably accompanied by an intention of permanent or indefinite residence. It ends the domicile of origin. When a person then permanently or indefinitely leaves that country of their domicile of choice, either they choose a new domicile of choice or, if they do not, the domicile of origin again takes effect. Admitting domicile carries tax and immigration consequences so care is needed. If in doubt, legal advice should be taken.
EU Member States
The most up to date list of EU member states can be found HERE. England is no longer a member of the EU.
Fairly
English law will give substantial weight, or even treat as if in effect binding a marital / civil partnership agreement which was ‘fairly’ entered into. ‘Fairly’ includes an absence of any duress, undue pressure, or misrepresentation. The law expects each to know the financial and other relevant circumstances of the other and what they may be giving up by entering into the agreement, (or actively choosing not to want to know). The law also expects each to have had independent legal advice in all relevant countries to make sure each knows their rights and to overcome possible duress or pressure (or to have actively chosen not to take legal advice). Analysis of the terms of a marital / civil partnership agreement by a court will consider the circumstances in which the agreement was entered.
Fairness
Objective of financial outcome; comprises features of needs, sharing and to a diminishing extent, compensation.
Financial Dispute Resolution Appointment (FDR)
This is the second court hearing in financial remedy proceedings. In advance of the hearing both parties make proposals for settlement. At the FDR appointment the Judge gives a non-binding indication as to the order that may be made at a final hearing. The hearing is designed to encourage the parties to reach a negotiated agreement.
Financial Remedy Procedure
The court process is designed to reduce delay, limit costs and increase the prosects of a party reaching a negotiated settlement. It involves up to three court hearings:
Financial Remedy Proceedings
Court proceedings about financial issues connected with (ancilliary to) divorce proceedings.
First Hearing Dispute Resolution Appointment (FDRA)
Often the first hearing in children dispute cases when the court with a CAFCASS oficer will see what element of agreement cna be reached without further litigation. Usually, children over 9 must attend and they will be spoken to by a CAFCASS officer. FHDRA hearings can sometimes be very successful.
Forced Marriages
A marriage in which one spouse is forced against their will to take part. Force includes actual physical compulsion or emotional and psychological compulsion. A court can make protective orders for those who fear they are about to be forced into a marriage and for those who have already gone through a forced marriage. These orders can include powers of arrest and the setting aside of a forced marriage, and can relate to conduct in England or abroad. Third parties can apply to the court for protective orders for those being forced into a marriage.
The 'Marriage and Civil Partnership (Minimum Age) Act 2022' means it is illegal for any person aged under 18 to marry or enter a civil partnership.
Form A
The form which starts the court based financial procedure. The application is in a fairly standard form (now online) but usually includes all possible forms of financial provision, even though not all may be sought.
Form E
This is the statement of financial circumstances prepared both within court proceedings and other types of negotiation. It is a long and comprehensive document which requires quite a considerable amount of accompanying documents to verify and corroborate the content.
Formalities and Capacity
For a marriage or civil partnership abroad to be recognised by English law there must be two elements namely formalities and capacity.
'Formalities' means that all of the necessary formal requirements for the wedding / civil partnership according to the law of the country where it took place have been satisfactorily complied with. It covers such matters as giving of notice, the formalities of the ceremony itself, the location of the ceremony and the person officiating and other formal arrangements. It does not matter if England would not have the same formalities. If they were complied with where the marriage / civil partnership took place, then England will recognise the foreign marriage / civil partnership.
The capacity of each person to enter into a marriage / civil partnership is decided according to the law of the country with which they had long-term connection, known as domicile, before the marriage / civil partnership. It would cover such matters as consent including any parental permission, age, gender, any family / blood ties, and mental awareness of capacity to enter into a marriage / civil partnership, not being already married or in a civil partnership and similar. It does not matter if England has different requirements of capacity. It is the law of each party's country before the marriage / civil partnership which decides on capacity requirements.
Forum
Refers to the country in which the legal proceedings will proceed. The parties need a certain connection with a country before that country can deal with a case. This may be based on residency, nationality, domicile, an agreement, or other factors. Where there is potentially more than one country that can deal with a divorce, the process of identifying the most advantageous jurisdiction is known as ‘forum shopping’. A dispute between countries about which country should deal with a case is known as a ‘forum dispute’. The decision about where to issue divorce and financial proceedings can be complicated and time sensitive.
Forum Dispute
Proceedings where the same application is made in more than one country, is to decide which country's court should deal with the family's relationship dispute. Between many countries, the criteria is discretionary based on the country to which the parties have the closest connection. Within the European Union it is only which country first receives the proceedings and there is no discretion to consider the closest connection.
Forum Shopping
Where two or more countries may be able to deal with the proceedings it is important to identify the most advantageous jurisdiction. This is known as ‘forum shopping’. There are lots of different factors to be taken into account when identifying where best to divorce, and it is important that early specialist family law advice is taken in both countries, particularly so if there are two or more European Countries with jurisdiction.
Freezing Orders
An injunction order to prevent the use or disposal of assets e.g., bank accounts, properties etc., until the final hearing, including assets held abroad. These orders are often granted when it is feared one spouse will divert assets in order to defeat the other's claim. They have significant financial risks for damages and costs if they are determined to have been unnecessary.
Get
A Jewish divorce. Jewish women in particular require a 'Get' before they legally divorce. (See under 'Talaq' for certain aspects regarding foreign divorces with the religious element).
Habitual Residence
Habitual residence refers to the legal and factual relationship between a person and a country. It is a legal term and it can sometimes be difficult to pin down where a person is habitually resident. Literally it means, where a person resides as a matter of habit.
A person can only have one habitual residence anywhere in the world at any one time. It is the country in which a person has a fixed centre of interest and a settled intent to stay in that country. It should be distinguished from ordinary or simple residence of which a person can have two or more in parallel. Admitting habitual residence can carry tax and immigration consequences so care is needed. If in doubt, legal advice should be taken.
Hague Convention on Child Abduction
This is a Convention entered into by approximately 100 countries to secure the swift return of a child to its country of habitual residence, and without any enquiry into issues of who may be the better parent to care for the child. Its former name is ‘The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’. It is colloquially known as ‘The 1980 Child Abduction Convention’.
Harassment / Coercive Control
Harassing a person includes alarming the person or causing the person distress. The behaviour that causes the alarm or distress must take place more than once. The conduct can be a wide variety of actions that cause alarm of distress but include physical or sexual assault, or psychological torment. Words and phone calls can be classified as harassment.
Inheritance Act
This refers to the Inheritance (Provision for Family and Dependants) Act 1975, which gives spouses, former spouses and children (as well as others) the right to claim capital or monthly sums from the estate of a person who has died. It is invariably based on circumstances where the deceased was maintaining the applicant at date of death. The Act gives the family courts the power to terminate the right to make those claims in the future when hearing the financial claims at the time of divorce.
Inheritance Tax
Inheritance Tax which may be charged on the value of a person’s estate at death. Advice from a specialist tax adviser is needed if this is an issue. We can help and put you in contact with a tax adviser if required.
Injunction
A court order that requires action or prohibits action. Injunctions are often time-limited and accompanied by a penal notice which carries risk of imprisonment for breach.
Issue
The process of making an application, paying a fee, and having it sealed by the court. The application is then referred to as ‘issued’ and is ready to be ‘served’ on the other party. The date of filing and issuing are different, and this distinction can be highly relevant in time-sensitive proceedings particularly within the EU.
Judicial / Other Proceedings
English law recognises foreign divorces or civil partnership dissolutions in two categories: those obtained by judicial and other proceedings and those obtained other than by means of proceedings.
A divorce or dissolution obtained abroad by judicial and other proceedings includes a divorce or dissolution obtained through civil court proceedings in another country. However, this category also includes divorces / dissolutions obtained outside of the civil courts but with the involvement of some state official or officially approved agency as recognised by the law of the country where it was obtained. This may sometimes include a religious body, a local administrative agency or other official, state law approved authorities. Legal advice should be obtained.
'Non-proceedings divorce' or non-proceedings dissolution' have different criteria to satisfy. It can be informal or outside state registered organisations. But there need to be good records and the other party must have a good opportunity to take part. It is harder to obtain recognition of a foreign 'non-proceedings divorce' or 'non-proceedings dissolution'.
Judicial Separation
A mostly historical provision, stating that a couple are separated legally. It is used by some from religious communities. A judicial separation requires the same grounds as a divorce and is not required for tax purposes. A judicial separation cannot provide the same finality of financial settlement, and it is not possible to implement a pension sharing order on a judicial separation.
Jurisdiction
Jurisdiction can be used to refer to a country or federal state but more often refers to the connection a party to proceedings must have with a country to allow that country to deal with those proceedings, or the power to make a particular order. Sometimes more than one country has possible jurisdiction, and there can be big advantages to one spouse to have the proceedings in one country and not another. See 'forum shopping'. This can result in a forum dispute. Where two or more EU countries are involved, Brussels II says that the first to issue secures jurisdiction so speed in issuing is vital.
Jurisdiction Clause
A clause in an agreement such as a pre-marriage or marital agreement stating in which country the couple would want any proceedings to take place. England gives these clauses considerable importance in deciding any forum dispute and greater weight than other elements of the agreement. Sometimes a clause may state which country's laws the couple would want to deal with in any proceedings; England construes this as a jurisdiction clause as to preference for the country to deal with the case.
Lex Fori
The technical term when a country applies its own local law, to be contrasted with applicable law. English courts only apply English Law.
Lis Pendens
The technical term used to refer to the proceedings having been issued first in time and securing priority in that country. As a consequence where more than one country has jurisdiction very urgent advice and action is needed to find out the best place for proceedings which should then be issued very quickly. It is a central feature of cases involving 2 competing EU countries.
Lives With Order
A 'Lives With Order' settles a child's living arrangements. A residence order does not have any effect on the parental responsibility of either parent (except for a non-parent who previously had a residence order in their favour).
More than one person can be granted a residence order and these are called shared residence orders. In these circumstances, the court will determine how much time the child will spend with each parent. It does not automatically mean spending equal time with each parent. In practical terms, a shared residence order is easier to put into effect when the parents live relatively close to each other although distance itself is not an automatic bar to a joint residence order being made.
Local Law
Reference to the law of the country i.e., locality. It is often in the context when a country only ever applies its own law e.g., the United Kingdom.
Maintenance
Internationally it has two separate meanings. First, it is the provision made by court orders or administrative agencies for child support (see CSA / CMS) or for spousal support, often known as alimony. Secondly, in the context of enforcement of maintenance abroad, it means any financial order which provides for a parties’ financial needs. Needs are generously interpreted but specifically does not include fairness and sharing.
Maintenance Pending Suit
This is also known as interim maintenance which is to provide for short term income needs before the final divorce order.
Marital and Non-marital property or Civil-partnership and Non-civil partnership Property
All property and income of either spouse / partner is either marital / civil partnership, or non-marital / non-civil partnership. The law has very different treatment to each category of assets. The law (unhelpfully) does not give a definite definition of either category.
Marital or Civil Partnership Agreements
Sometimes made before or during a marriage or Civil Partnership to provide for what happens on any later divorce, dissolution or relationship breakdown. At present they are not binding on the English courts but they can be highly influential. They predominantly aim to define non-marital / non civil partnership, as well as marital / civil partnership assets.
Marriage
A state registered relationship (which can take place in religious or other public places).
Matrimonial Property
These are resources acquired during the marriage. Matrimonial property excludes pre-relationship assets, gifts, inheritances, some post separation assets, and some business assets. Matrimonial property is often divided equally, subject to the needs of the parties. Non-matrimonial assets are less likely to be shared but will be increasingly brought into sharing with longer marriages, or where they are required to meet the family’s needs.
Mediation
A process of negotiation between a couple, assisted by an independent professional, often a lawyer. It can be used to resolve financial disputes and issues concerning children. Mediation often runs alongside the advice given by lawyers but offers a different way for couples to resolve the issues they face themselves.
Mediation Information and Assessment Meeting (MIAM)
This is a 'Mediation Information and Assessment Meeting'. It is the first meeting with a mediator when a party is able to consider whether issues can be resolved in mediation.
Memorandum of Understanding
This is the document produced at the end of mediation which contains the proposed agreement. It is often then made into a ‘Consent Order’ (as a paper exercise).
Miller
A major House of Lords decision in May 2006 which was heard with the case of 'MacFarlane'. The case stated that fairness was the objective of ancillary relief law on divorce. Fairness was found in needs, sharing and compensation. The case reaffirmed equality as a starting point for the division of assets and the importance of needs in most cases as basis for settlements. It stopped the court taking into account the parties conduct and special contribution in anything but exceptional cases. It was a complex judgment raising more questions than answers and was dealt with a year later by the Court of Appeal in 'Charman'.
Mirror Orders
An order made in one country which reflects the original order made in another country. Mirror orders are often made in circumstances where contact arrangements have been agreed and the child will then be living in another country. The mirror order means that the courts of the country where the child will later be living are aware of the original arrangements and they give protection for the other parent in the country where the child is living.
Mixed or Mingled
The law recognises that during many marriage/civil partnerships the assets of either spouse/partner which are pre-marriage/pre-civil partnership or inherited or gifts are used for the ordinary purposes of combined family life and are sometimes 'mixed and mingled' with resources acquired during the marriage/civil partnership. This can be, for example, through bank accounts, purchasing real property including the family home or paying into pensions. The consequence is that these assets which were originally non marital/non-civil partnership and therefore not automatically shared become marital or civil partnership and therefore shared. The circumstances of mixing and mingling are complex and fact specific. If in doubt, legal advice should be taken.
Needs
'Needs' is unhelpfully not defined in English law but is absolutely central to financial outcomes on divorce or dissolution of a civil partnership. Needs invariably includes income (for self and for any children) accommodation (particularly accommodation for and with children), any relationship generated disadvantage or the recognition of sacrifices and commitments, short-terms items such as cars and furniture, possibly pension (dependent on age), and possibly capitalisation of future income needs. It is often based on the standard of living during the marriage or civil partnership if affordable. There may be other features in particular circumstances.
Needs-based claims are sometimes referred in EU law as 'maintenance', but not to be confused with periodic payments of alimony, Spousal / Civil Partner maintenance.
Notary
A form of lawyer found in some European countries. Unlike lawyers in England who act solely for one party in a potential conflict, the notary acts for both and gives joint information. The notary often prepares ‘pre-marriage’ and other ‘marital’ agreements, without separate representation and often without any financial disclosure. The notary often attends to division of the marital capital, again without separate representation.
Nullity
A decree of nullity is available in circumstances where a marriage is void or voidable. Unlike divorce, it is not necessary to have been married for one year to obtain a decree of nullity.
Occupation Order
An occupation order provides that one party is entitled to occupy a property, often to the exclusion of others, due to domestic violence and issues of threats and safety.
Overriding Features or Fairness Considerations
In order to ensure a fair outcome in each case, the law allows an opportunity to stand back, after carrying out the exercise of sharing and provision for needs, to look at all the particular circumstances to make sure it is fair, including interests of any children.
Pension Sharing
An order sharing a pension on divorce so that the recipient has a share of their former husband or wife's pension which can often be transferred to a pension scheme of their own. Considerable care is needed when reaching settlements in respect of pension schemes nationally, but particularly internationally as commonly a ‘local ’pension sharing order is required for a pension based in another jurisdiction.
Petition
The divorce petition is the document which starts a divorce. It must set out the fact and jurisdiction relied on in order to commence proceedings. It must be lodged at court together with the original marriage certificate and other accompanying documents including a statement setting out the arrangements for the children.
Petitioner
The party who presents the divorce petition at court is known as the Petitioner.
Polygamous Marriages
In certain circumstances polygamous marriages are recognised under English law as valid marriages. It is important to distinguish between actual polygamous marriages where one spouse is already married and potentially polygamous marriages where under the law of the country where the marriage took place permits one party to subsequently take another spouse.
Principal Registry of the Family Division
The primary family court, is based at First Avenue House, 42-49 High Holborn, WC1B 6NP, close to Chancery Lane tube station.
Private Financial Dispute Resolution (FDR)
A Private FDR is similar to a court-based FDR but takes place privately. The benefits including the parties being able to pick their tribunal and the evaluator having more time to consider the papers and give a more informed indication. The settlement rates are very high.
Prohibited Steps Order
A prohibited steps order prevents the taking of certain steps in relation to a child for example removing them from the UK or from the care of a certain person, or changing their name.
Property
'Property' is all non-income resources of either party to a marriage or civil partnership. It includes homes (as well as second homes and investment properties), bank accounts and investments, pensions, trust accounts, assets held by others on one's behalf, debts, company and business interests and all other resources available to either spouse anywhere in the world now and in the foreseeable future. Whether held personally, in trust or in companies or held by others in their name on one's behalf, all available resources must be disclosed.
Questionnaire
A document prepared and filed at court before the First Appointment in which a party seeks additional information or documents from the other party over and above that contained in their Form E. At the First Appointment the Judge will consider whether the questions are proportionate and will order that the questionnaires are answered in advance of the FDR Hearing.
Residence
A concept used significantly by countries to denote a connectedness with a country to form the basis of jurisdiction for proceedings. It should be distinguished from habitual residence.
Residence indicates a simple act of residing in a country even though, under English law, it can be circumstances where there may be illegality of residence or a requirement to leave in the future or only be residing short-term. Admitting residence carries tax implications. A person can have a residence in more than one country at the same time.
Resolution
The organisation of family law solicitors who commit to conducting cases according to a conciliatory and settlement focused code of conduct, and which has been actively involved in encouraging good practice and law reform.
Respondent
Refers to the party in the proceedings who is responding to the application. The term can be used specifically (referring to the Respondent to the divorce proceedings) or more generally when the reference is to the party responding to an application made by another, 'the Applicant'.
Severance of a Joint Tenancy / Tenancy in Common
This is the process by which a ‘Joint Tenancy’ is converted into a ‘Tenancy in Common’. If you are a joint tenant, upon death of one tenant, their ownership passes automatically to the other tenant. By severing the ‘Joint Tenancy’ you each own 50% share, which you can pass to whomever you wish, upon death. Consideration should be given as to whether to sever a ‘Joint Tenancy’ upon separation.
Talaq
An Islamic divorce. Provided there is some official element to the divorce and it is not a transnational divorce, it will often be recognised in England. Advice should be sought to check the validity of a particular Islamic divorce in England.
The Legal Aid Agency (LAA)
The Legal Aid Agency
Transnational Divorce
A divorce commenced in one country and concluded in another. They are not recognised as foreign divorces under English law.
Undertaking
A promise that should be treated as a solemn assurance to the court. The person giving it may be sent to prison or fined if breached.
Variation
‘Variation’ of a financial order can be of two forms.
Welfare Checklist
Section 1(1) of the ‘Children Act 1989’ states that when a court determines any question with respect to the upbringing of a child or the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's first and paramount consideration.
Section 1(3) of the ‘Children Act 1989’ requires the court to have regard to a statutory checklist of factors whenever it is considering, amongst other things, making a s8 order. The checklist comprises of the following factors, which are all considered to carry equal weight, although some will be more appropriate in certain cases than others:
White
A case decided by the House of Lords in November 2000 which radically altered the whole direction of English financial provision law. The case warned against gender discrimination. Said wrong to refer to ‘reasonable requirements’ instead of ‘basic needs.’ Said there must be good reasons to depart from equality, certainly where assets exceed needs. Now showing a bigger contribution by the bread winner rather than by the wife, mother, home maker etc., as a reason to depart from equality will be very difficult. Equality of assets is not always the same as equality of outcome and court takes account of different assets e.g., illiquidity, risk aspects of certain assets etc.
Without Notice Hearing
Formally known as ‘Ex Parte’ hearing. This means a hearing without the other party present. Such hearings are used in matters of emergency and are often followed a few days or so later by a fuller hearing with the other party in attendance.
Without Prejudice Offer
A without prejudice offer ‘may not prejudice the court’ and so it is prevented from ever being shown to the court. This is to encourage the parties to try and reach a negotiated agreement and save the costs of a case proceeding which is why it is effectively secret.
Xydhias
Agreement arises when the general terms of settlement and agreement have been reached. Even if the specific terms of a draft court order cannot be agreed or one party tries to back out, a court may be prepared to make an order in the terms reached and/or decide disputed issues of implementation or minor issues still unresolved.
