Glossary – Family and Divorce

Acknowledgement of Service

In divorce and civil partnership dissolution proceedings, this is the court form the Respondent is required to complete after they have received the issued Petition.

Adultery

In the context of a divorce petition, this is one of the five facts to establish that the marriage has broken down irretrievably and concerns the voluntary sexual intercourse between a man and a woman who are not married to each other but at least one of whom is a married person.

Alternative Dispute Resolution (ADR)

General term used to describe a collection of non-court processes used for the purpose of resolving conflict or disputes voluntarily and confidentially.

Answer

If a Respondent wishes to defend a divorce or dissolution Petition then he/she must file and serve a formal Answer in a prescribed form and within a required timescale.

Applicant

In divorce or civil partnership dissolution proceedings, this is the name given to the party who commences separate financial proceedings to resolve the financial matters between the parties. In private law children proceedings, this is the name given to the party who makes an application for a court order relating to the arrangements for the children.

Assets

Item of property owned by a person or company regarded as having a financial value.

Behaviour

In the context of a Petition for divorce or civil partnership dissolution, this is one of the facts to establish that the relationship has broken down irretrievably. The behaviour must be unreasonable and to the extent that the Petitioner cannot reasonably be expected to continue living with the Respondent.

CAFCASS

The Children and Family Court Advisory and Support Service who will become involved when court proceedings are commenced to resolve disputes concerning the arrangements for children following relationship breakdown.

Child Arrangements Order

A Court Order regulating the arrangements relating to who a child is to live with and/or who a child is to spend time or otherwise have contact with. Replaces residence and contact orders with effect from 22 April 2014.

Child Maintenance

Financial support payable by the non-resident parent for the benefit of children cared for by the other parent. Child maintenance can be paid voluntarily or through the statutory Child Maintenance Options Scheme (formerly the Child Support Agency). In certain circumstances, the court also has the power to order child maintenance. The amount of child maintenance payable depends on the income of the non-resident parent and other factors.

Chronology

In financial proceedings following the breakdown of a marriage or civil partnership, both parties will be required to prepare, in advance of the First Appointment hearing, a chronology setting out the key dates of their relationship.

Civil Partnership

A formal legal relationship between two people of the same sex formed when they register as civil partners of each other.

Cohabitation

Arrangement where two people who are not married or in a registered civil partnership live together.

Cohabitation Agreement

An agreement made by unmarried couples and those not in a registered civil partnership setting out their financial arrangements and responsibilities, including provision for how any property, assets and income will be divided in the event of the relationship breaking down.

Collaborative Law

A relatively modern non-court process used to resolve family disputes in which both parties instruct a specialist and qualified collaborative lawyer to assist them in resolving matters through a series of 4-way meetings.  The purpose of the meetings is to work things out face to face rather than go to court and where the couple and both collaborative lawyers sign a formal agreement to this effect.

Common Law Marriage

There is no such thing.

Conditional dissolution order

The equivalent in civil partnership dissolution to the decree nisi in divorce proceedings. The first formal stage of dissolution which occurs, in undefended proceedings, after the Petition for dissolution has been issued and the Acknowledgement of Service form has been completed.

Consent Order

In cases where the financial arrangements are agreed between the parties involved in divorce or dissolution proceedings, a Consent Order should be drawn up recording the agreement reached and setting out how both parties’ financial claims against one another have been settled. The Consent Order must be signed and lodged at court for approval. Where agreement is reached during contested financial proceedings it is possible to lodge a Consent Order at court at any time before a Final Hearing. If there are no financial proceedings underway then a Consent Order can be lodged at court for approval anytime after the decree nisi/conditional dissolution order has been made.

Decree Absolute

The final court order in divorce proceedings officially ending a marriage, enabling either party to remarry.

Decree Nisi

This is the first formal stage of a divorce which occurs, in undefended proceedings, after the Petition has been issued and the Acknowledgment of Service form has been completed.

Desertion

In the context of a Petition for divorce or civil partnership dissolution, this is one of the facts to establish that the relationship has broken down irretrievably. Rarely used but applies when your spouse or civil partner has deserted you for a continuous period of at least 2 years.

Dispute Resolution Appointment

An intermediate hearing in disputes concerning the arrangements for children which takes place after the FHDRA and before the Final Welfare Hearing.

Dissolution

The formal legal process of dissolving a civil partnership by the court.

Divorce

The formal legal dissolution of a marriage by the court.

Easement

A right over somebody else’s property, for example a right of way over an access way.

Fact Finding Hearing

If there is a question of domestic violence or child abuse, there may first need to be a separate hearing dealing with such matters before the case can continue in relation to the arrangements for the children.

Final Dissolution Order

The final court order in dissolution proceedings officially ending a civil partnership. The equivalent of Decree Absolute in divorce proceedings.

Final Hearing

In contested financial proceedings on divorce or civil partnership dissolution, this is the final court hearing in which the court will impose an Order on the parties in settlement of their case.

Final Welfare Hearing

The final court hearing in disputes over the arrangements for children.

Financial Dispute Resolution Appointment

In financial proceedings on divorce or civil partnership dissolution, this is the second court hearing which usually takes place sometime after the First Appointment hearing. Often abbreviated to FDR, the purpose of the hearing is for the parties to use their best endeavours to reach agreement. In straight forward cases where the issues are limited and where both parties agree, it may be possible to combine the First Appointment with the FDR so as to avoid the cost of two hearings. The FDR will be conducted by a District Judge who will have no further involvement in the case if it does not settle. Any offers lodged at court before or during the FDR will not be retained on the court file if the case does not settle. If settlement is reached then the District Judge will make an appropriate Consent Order. If no settlement is reached then the District Judge may adjourn the case for mediation or other ADR, give further directions, or fix the final hearing.

First Appointment

In contested financial proceedings on divorce or civil partnership dissolution, this is the first court hearing which takes place 12-16 weeks after the Form A is issued. The purpose of the hearing is to define the issues between the parties and make directions for the further progress of the case. In some straight forward cases where the issues are limited and where both parties agree, it may be possible to combine this hearing with the FDR.

First Hearing Dispute Resolution Appointment

Often abbreviated to FHDRA, this is the first court hearing after an application is issued concerning a dispute over the arrangements for children.

Form A

The application form required to start court proceedings for a financial order on divorce, civil partnership dissolution, nullity or separation proceedings. Once issued, the Form A will trigger a court timetable for the resolution of the financial matters.

Form C100

The application form required to start court proceedings to resolve a dispute concerning the arrangements for children. Once issued, the Form C100 will trigger a court timetable for the resolution of such matters.

Form E

The detailed financial disclosure form both parties are required to complete in financial court proceedings on divorce or civil partnership dissolution.

Form H

The court form form which gives details of legal costs and expenses incurred and which both parties are required to complete in financial proceedings immediately before the First Appointment and FDR hearings. If the case proceeds to a final hearing then both parties are required to complete the more detailed Form H1 costs estimate.

Guardian ad Litem

A guardian appointed by the court to represent the interests of children.

Guardianship

The formal appointment of someone to take the place of a child’s deceased parent.

Habitual Residence

In order for the court in England and Wales to have jurisdiction to deal with certain family law matters including divorce/civil partnership dissolution, separation and nullity proceedings, and in relation to children, in particular involving abduction, a person’s habitual residence will be very important. The concept is highly fact-specific and requires a detailed explanation. If this is relevant to your case your solicitor will provide full details.

Interim Order

In children proceedings the court can make interim orders pending final conclusion of the case. For example, to determine the arrangements for the children until the next court hearing date. In financial proceedings, this is more commonly referred to as maintenance pending suit.

Irretrievable breakdown

In order to obtain a divorce or civil partnership dissolution, the Petitioner must establish that their relationship has irretrievably broken down. In order to establish irretrievable breakdown to the court, the Petitioner must rely on one of five facts for a divorce, or one of four facts for civil partnership dissolution.

Joint Ownership of Property

It is very important, particularly when the owners are not married to each other or in a civil partnership, to declare the basis on which a couple own a property in joint names. The court has power, within dissolution proceedings, to look at the big picture and make decisions that achieve, so far as possible, an outcome which is fair to both parties. There is no such power for the court when the owners are not married or in a civil partnership. This is an area fraught with potential problems, and one on which detailed legal advice should be obtained.

Judicial Separation

Judicial separation does not end a marriage but may be an appropriate process when married couples wish to be released from their obligation to live together but have strong religious or cultural reasons for not wanting a divorce.

Leave to remove

An application made by a parent for the court to grant them permission to relocate abroad with their child in circumstances where the other party does not agree to the move.

Legal Aid

Also known as public funding. This type of funding may be available to help cover your legal costs if you have low income or are on benefits but is now generally restricted to people who have suffered domestic violence.

Living Together Agreement

Another term used to describe a Cohabitation Agreement.

Lump sum order

A court order in matrimonial or civil partnership dissolution proceedings requiring one party to pay to the other a “one off” capital sum or sums of money as may be specified.

Maintenance Pending Suit

In matrimonial or civil partnership dissolution proceedings, either party can apply to the court for an interim short term order requiring the other party to provide financial support pending conclusion of the case. This is an income based award.

Mediation

Method of non-court dispute resolution where a third party is used to help both parties come to an agreement.

MIAM

Acronym for a Mediation Information and Assessment Meeting. With effect from 22 April 2014 it is compulsory for anyone wanting to make a relevant family court application to first attend a MIAM with an appropriately qualified mediator to find out about mediation and other non-court options. There are limited exceptions when attendance at a MIAM is not required. However, ordinarily, the court will not issue or otherwise deal with an application if the applicant has not attended a MIAM.

Non Molestation Order

In domestic violence matters, this is an order granted by the court under the Family Law Act 1996 which in effect requires the other party to refrain from molesting the other party or a relevant child. “Molestation” covers a variety of types of behaviour and need not necessarily involve physical aggression.

Nullity

Proceedings for nullity of a marriage are rare and complicated, but may be appropriate where the parties have strong religious or cultural reasons for not wanting a divorce. The proceedings depend on void and voidable marriages. If this is relevant to your case your solicitor will provide full details.

Occupation Order

In domestic violence matters, this is an order granted by the court under the Family Law Act 1996 which deals with removing, restricting or enforcing a person’s right to occupy a property. It will generally only be granted in serious circumstances.

One Year rule

In order to start proceedings for a divorce or civil partnership dissolution, the parties must have been married or registered civil partners for at least one year.

Parental Responsibility

Legal definition given to all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. When parents are married to one another at the time of their child’s birth, both the mother and father will each automatically have Parental Responsibility. They will also each automatically have Parental Responsibility if they marry each other after the child is born. An unmarried father will automatically have Parental Responsibility if he is registered as the child’s father. In other situations an unmarried father can acquire Parental Responsibility by agreement with the mother, or by court order. Third parties can also acquire Parental Responsibility in certain circumstances.

Pension sharing order

A court order in divorce, nullity or civil partnership dissolution proceedings whereby part or the whole of a pension is transferred from one party to the other, giving the receiving party a separate pension fund to be invested in the same pension scheme or in a different external scheme. This does not apply in judicial separation proceedings.

Periodical payments

Applies in matrimonial and civil partnership dissolution proceedings. Also known as “spousal maintenance” and may be payable for a fixed period, for the joint lives of the parties, or until further review by the court. This is an income based award.

Petition

The formal court application form required to commence proceedings for a divorce or civil partnership dissolution.

Petitioner

The name given to the party to the marriage or civil partnership who commences proceedings for divorce or dissolution by filing a Petition.

Post-nuptial agreement

Like a pre-nuptial agreement, but entered into during the marriage rather than before it.

Pre-nuptial agreement

Also known as a pre-marital agreement, this is a written agreement signed by a couple before they marry setting out the details of both the current financial circumstances of each and any property that they may own. The intention of the agreement is to govern how the couple agree to deal with their finances and property in the event that their relationship fails or breaks down.

Prohibited Steps Order

A court order made under section 8 of the Children Act 1989 stating that no step which could be taken by a parent in meeting his or her parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court.

Property adjustment order

In matrimonial or civil partnership dissolution proceedings the court has the power to order property (usually the former matrimonial home but can relate to any property) to be transferred from one party to the other (including property held in the parties’ joint names), for the ownership shares to be adjusted and for a property to be sold, including provision for distribution of the sale proceeds.

Questionnaire

In financial proceedings following the breakdown of a marriage or civil partnership, both parties will be required to prepare, in advance of the First Appointment hearing, a Questionnaire setting out any questions they have in relation to the financial circumstances of the other party.

Replies to Questionnaire

The formal name given to the responses and answers to a Questionnaire in financial proceedings following the breakdown of a marriage or civil partnership.

Resolution

Resolution is an organisation of 6,500 family lawyers and other professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters. Resolution also campaigns for improvements to the family justice system.

Respondent

In divorce or civil partnership dissolution proceedings, this is the name given to the party whose spouse or civil partner has filed a Petition or an application for financial provision. In private law children proceedings, this is the name given to the other party who has not made the application to the court.

Separation

When parties end a relationship and live apart. Parties will be treated as separated and living apart if they are not living in the same household. This means it is possible to be separated whilst living under the same roof provided the parties are not sharing a common life together. In the context of a Petition for divorce or civil partnership dissolution, this applies to two of the facts necessary to establish that the relationship has broken down irretrievably, being 2 years separation with the other party's consent to the divorce/dissolution or 5 years' separation.

Separation Agreement

A written agreement usually entered into by married couples or civil partners whose relationship has broken down and who wish to formalise their separation. Unmarried couples may also wish to enter into these agreements, particularly if they own property together. The agreement will usually deal with the financial arrangements, property and arrangements for the children.

Separation Order

Applies in cases of civil partnership separation when the couple does not wish to have their civil partnership dissolved immediately for religious or other reasons, but who wish to live separately without going through the formal process. The equivalent of judicial separation in a married couple situation.

Specific Issue Order

A court order under section 8 of the Children Act 1989 giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of Parental Responsibility for a child.

Spousal Maintenance

Also known as periodical payments.

Statement of Issues

In financial proceedings following the breakdown of a marriage or civil partnership, both parties will be required to prepare, in advance of the First Appointment hearing, a concise statement of the issues in dispute between them on which the court is being asked to adjudicate.

TOLATA

If you live together but are not married and have contributed financially in some way to the property you live in then it is possible that you may have a claim against the property. This would be classed as a TOLATA claim – a claim under the Trusts of Land and Appointment of Trustees Act 1996. Generally, property disputes between couples who have not been married to each other or who have not been in a civil partnership with each other will be dealt with under TOLATA.

Undertaking

A formal or binding promise to the court to do/not do something. Failure to comply with such a promise may be punished by financial penalty and/or a custodial sentence, on the basis that it is a contempt of court.

Unreasonable behaviour

In the context of a divorce or civil partnership dissolution petition, this is one of the facts to establish that the relationship has broken down irretrievably. The Petitioner must satisfy the court that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.

Variation proceedings

In financial proceedings, it is possible for either party to apply to the court to vary the terms of a Court Order, usually in relation to periodical payments/spousal maintenance.

Welfare Checklist

A list of factors set out in section 1 of the Children Act 1989 which the court must take into account when considering any question relating to a child’s upbringing, particularly in connection with any proceedings relating to a child arrangements order, specific issue order or prohibited steps order.

Welfare Report

In proceedings concerning the arrangements for children, the court may order a report from CAFCASS before making a final order. This is sometimes referred to as a section 7 report and will usually contain a recommendation from CAFCASS as to what arrangement would be in the child’s best interests.

Will

A legal document that allows a person to make decisions about how his/her estate will be managed and distributed following their death.

Xydhias Agreement

A concluded agreement in relation to financial matters, usually in the form of a draft Consent Order which has not yet been approved by the Court, which the parties are bound by and which either can apply to be converted into a Court Order. The agreement is such that neither party can seek to renege on its terms, unless there are substantial vitiating factors such as non-disclosure or a lack of legal advice. Named after the case of Xydhias v Xydhias [1999] 1 FLR 683.

Z v Z [2011] EWHC 2878 (Fam)

The leading case on prenuptial agreements is the Supreme Court decision in Radmacher (formerly Granatino) v Granatino [2011] 1 All ER 373 which established that, provided the prenuptial agreement is fair to both parties and subject to certain safeguards then, in the main, a court should be slow to interfere with the details of the agreement. The case of Z v Z followed Radmacher and involved the Family Division considering that it would not be unfair to uphold, within subsequent financial proceedings issued by the wife, a French marital contract entered into prior to the marriage.