We are thrilled to announce that Walker Family Law has been shortlisted for two awards by the Devon and Somerset Law Society (DASLS).
We have been nominated for the Justice Innovation Award, based on our Resolution Together service and our Divorce Support Club. Our Chartered Legal Executive, Briony Phillips, has been shortlisted for the Rising Star Award based on her resilience, self-motivation and her unwavering commitment to her work.
“Walker Family Law is honoured and proud to be shortlisted for two DASLS awards”, said Ian Walker, Managing Director at Walker Family Law. “This recognition reflects the firms’ dedication to providing new, revolutionary services and exceeding our clients’ expectations.”
“Walker Family Law thanks DASLS for these nominations, the solicitors at the firm who make services like Resolution Together and the Divorce Support Club possible, and of course Briony Phillips for consistently going above and beyond for her clients.” Added Fiona Griffin, Head of Legal at Walker Family Law.
Briony Phillips
The winners of the award will be announced at the awards ceremony on Thursday 19th June 2025 at the University of Exeter.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
In recent years the term ‘parental alienation’ has become commonplace in discussions concerning disputes between separated parents over arrangements for their children. It can be found not just in reports of court cases but also across the media, in all its forms.
But what exactly is ‘parental alienation’, and how is it dealt with by the family courts?
In this article we will provide answers to these questions, and also look at a recent development concerning the evidence that the courts use in cases involving allegations of parental alienation.
‘Parental alienation’ is a much misunderstood term. It is often used to refer to a predetermined course of action by the parent with whom the children are living to turn them against the other parent. It is also sometimes referred to a ‘parental alienation syndrome’, or ‘PAS’, as if it is some sort of medical condition, capable of diagnosis.
But parental alienation is rarely predetermined, and it is certainly not a medical condition.
In fact, there is no single established legal definition of ‘parental alienation’. The nearest thing that comes to it is a definition by the Children and Family Court Advisory and Support Service (‘CAFCASS’), the body that advises the family courts about the welfare of children and what is in their best interests.
CAFCASS do not use the term ‘parental alienation’. Instead, they refer to what they call ‘alienating behaviours’. They use that term to describe “behaviours where one parent or carer expresses an ongoing pattern of negative attitudes and communication about the other parent or carer that have the potential or intention to undermine or even destroy the child’s relationship with their other parent or carer.”
CAFCASS explains that these behaviours “can result from a parent’s feelings of unresolved anger and a desire, conscious or not, to punish the other parent or carer.” “Alienating behaviours”, they say, “range in intensity and their impact on children.”
As to what form the behaviours may take, they are many and varied, but an academic study in 2020 gave an indication when it stated: “These behaviours can include negative attitudes, communications and beliefs that denigrate, demean, vilify, malign, ridicule or dismiss the child’s other parent. It includes conveying false beliefs or stories to, and withholding positive information from, the child about the other parent, together with the relative absence of observable positive attitudes and behaviours.”
Until quite recently there was no uniform approach to how courts should deal with cases involving allegations of parental alienation. The approach taken could vary from one area of the country to another, or even from one court to the next.
In order to address this inconsistency, last December the Family Justice Council, which monitors the family justice system, published guidance “on responding to a child’s unexplained reluctance, resistance, or refusal to spend time with a parent, and allegations of alienating behaviour”.
In a foreword to the guidance the President of the Family Division explained that the purpose of the guidance is “to ensure greater consistency of approach across the courts, to improve outcomes for children and families, and to protect children and victims from litigation abuse”.
The guidance explains that a court would need to be satisfied that three elements are established before it could conclude that alienating behaviours had occurred:
Firstly, that the child is reluctant, resisting or refusing to engage in, a relationship with a parent.
Secondly, that the reluctance, resistance or refusal is not consequent on the actions of that parent towards the child or the other parent, which may therefore be an appropriate justified rejection by the child, or is not caused by any other factor such as the child’s alignment, affinity or attachment.
Thirdly, that the other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with that parent.
The guidance further explains that either or both parent(s) could engage in psychological manipulation which may or may not manifest in reluctance, resistance or refusal on the part of a child.
Importantly, the guidance also points out that research evidence suggests that alienating behaviours which actually impact upon a child’s relationship with the other parent are relatively rare. Therefore, despite an increasing number of allegations being made, findings of alienating behaviours will also be relatively rare.
Allegations of parental alienation are often made by one parent in response to allegations of domestic abuse by the other parent. However, the guidance makes clear that allegations of domestic abuse and ‘parental alienation’ cannot be equated. The risk, relevance and weight attached to ‘parental alienation’ and domestic abuse should not automatically be considered equal.
Having looked at how the courts approach cases involving allegations of parental alienation, we now turn to the practicalities of exactly how the court deals with these cases, including the options available to the court should it find allegations of alienating behaviour to be proved.
When one party makes allegations of parental alienation the court will assess the allegations and decide whether they are genuine or whether, for example, they are simply made to counter allegations of domestic abuse. In particular the court will consider whether the allegations do indicate that alienating behaviours may have occurred – i.e. whether there is evidence of the three elements referred to above.
In many cases the court will fix a separate ‘fact-finding’ hearing at which it will consider the allegations (and also any allegations of domestic abuse). At the fact-finding hearing the court will hear all of the evidence from both parties and any expert witnesses (see below), and decide whether each of the allegations have been proved.
The court’s findings will then be taken into account when it decides what final order or orders it should make. If the court found the allegations of alienating behaviour to be proved then that will obviously have a considerable bearing upon the court’s decision, but exactly what the court decides to do will depend upon the facts of each case.
As always, the court’s decision will be made by reference to what it considers to be best for the welfare of the child. If, for example, the court considers that the child will suffer harm if they remain living with the ‘alienating’ parent then it may order that the child be removed from that parent and live with the other parent. On the other hand, the court may decide that the child’s welfare will be best served by remaining with a parent who has been found to have exhibited alienating behaviours.
As mentioned above, the evidence considered by a court dealing with parental alienation allegations may include that of an expert witness, such as a psychologist. The expert will be proposed by one or both of the parties, and the court will decide whether they should be instructed, and what their remit should be.
But there is a problem with expert witnesses.
Obviously, what an expert tells the court is likely to carry significant weight, and could therefore be a major factor in the court’s ultimate decision. It is therefore essential that an expert has the appropriate skills and qualifications on which to base their expert evidence.
But there have increasingly been concerns about the qualifications of experts used by the family courts, in particular that some of them are not regulated by a professional body, which would ensure their competence to provide expert evidence.
The concerns can be illustrated by a case that was heard by the President of the Family Division in 2023.
In the case the children had been living with the mother and the father had been having contact with them. However, the contact broke down and the father was concerned that the mother was alienating the children from him. He therefore took the matter back before the court.
The court directed that an unregulated psychologist undertake an assessment of the family. The psychologist concluded that the children had indeed been alienated against their father by their mother. Following that conclusion, the court ordered that the children be removed from the mother and live with the father.
The mother appealed, and her appeal was dealt with by the President of the Family Division. The mother claimed that the court was wrong to instruct an unregulated expert. The President dismissed the appeal, but he did highlight the “need for due rigour” in the process of instructing an expert.
The Family Procedure Rule Committee has now considered the matter of unregulated experts, and is proposing that there be a requirement that any expert instructed in family law children proceedings must be regulated (save where no regulated expert is available), and adhere to the standards set by their governing body. The Committee is currently consulting the public for their views upon the proposal, but obviously it may help to ensure the standard of expert evidence in alienation cases.
Parental alienation is often referred to but, as mentioned above, it is actually quite rare for it to be proved. Nevertheless, if you believe that your children may have been alienated against you, or if the other parent has made alienation allegations against you, it is essential that you seek expert legal advice. We can provide you with such advice. To speak to one of our specialist lawyers, complete the form on this page.
When a child’s parents separate arrangements will obviously have to be made for the child to see both of their parents, whether sharing their time between the parents, or by living with one parent and having contact with the other.
But most children do not just spend time with their parents. They will normally also spend time with other extended family members, in particular grandparents. And the separation of the child’s parents may disrupt the time that the child spends with their grandparents.
This can be especially so if the child lives with just one parent, for example the mother. In such a situation the paternal grandparents may find themselves ‘shut out’ of the child’s life, particularly if the father is having little or no contact with them.
But parental separation should not mean the end of a relationship between child and grandparents. After all, grandparents can play a very important role in a young child’s life.
Thankfully, there are steps that grandparents can take to retain contact with their grandchildren after parental separation. In this article we will look at those steps, including the way in which the law can be used to assist grandparents.
We will begin by looking at the practical steps that grandparents can take towards visitation rights, without involving courts.
The first thing is obvious, but may not be easy: discuss the matter with the child’s parents.
There are various scenarios here. The child may live with the parent who is not your child, the child may share its time with both of their parents, or the child may live with your son or daughter.
We will begin with the last of those options. Hopefully you are on good terms with your son or daughter and you can discuss the matter with them. In most cases they will of course be happy for you to see the child and, unless there is any objection by the other parent, that will be the end of the matter. Practicalities of when and where any contact will take place can easily be agreed.
If, on the other hand, you are not on good terms with your son or daughter then obviously things may be different, although you should still attempt to agree matters with them, if possible.
Next is the scenario where the child lives with the parent who is not your child. Again, you should attempt to agree matters with them, if possible. Obviously, there is a possibility that they will not be prepared to speak to you, but it is still worth trying, as agreeing matters can of course save everyone the trouble and stress of having to go to court. You may also be able to see your grandchild when your own child has contact with them.
The third scenario, where the child shares its time with both of their parents, can be slightly trickier, depending upon whether the contact sought impinges upon the time spent by the child with a particular parent. But again, the advice is the same: you should attempt to agree matters with that parent, if possible.
There is of course one other scenario, which we have not yet mentioned: where the child’s parents have not separated, but simply do not agree to grandparents having visitation rights. This can be the most difficult scenario of all, and it may well be impossible to discuss matters with the parents.
In all scenarios, if there is implacable hostility to you having contact with your grandchild then the reason or reasons for that hostility will obviously have to be addressed, whether by direct discussion with the parent(s), through mediation (see below), or within court proceedings.
Even if you cannot agree matters directly with the parent(s), you should not necessarily give up and go straight to court. There are other ways to agree contact with your grandchildren, in particular via mediation.
Mediation is a process whereby you attempt to resolve the matter by agreement, with the assistance of a trained mediator.
Mediation is an entirely voluntary process, and can only therefore take place if the parent (or parents) agree. However, they are more likely to agree if they understand that the alternative could be stressful, and possibly expensive, contested court proceedings. In other words, it is in their interests just as much as yours for the matter to be resolved by agreement.
A grandparent can apply to the Family Court for an order that they have contact with their grandchild in the same way as a parent can apply for a contact order, with one exception: the grandparent will first have to obtain the leave (or permission) of the court to make the application.
In deciding whether or not to grant leave the court will have particular regard to the nature of the proposed application (i.e. what kind of contact the grandparent seeks), the grandparent’s connection with the child, and any risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.
In practice, it is very rare for a court to refuse grandparents leave to apply for visitation rights with their grandchildren, as the law recognises that grandparents can play an important role in children’s lives. The granting of leave will therefore be a formality in most cases.
Once you have got over the hurdle of obtaining leave, your application will be decided by the court using very similar principles as would be used in an application by a parent.
In short, the court will decide what order to make, if any, by reference to what it considers to be best for the welfare of the child. In doing this, it will take into account a number of factors, including:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Accordingly, the older the child is, the more weight the court is likely to give to their wishes.
2. The child’s physical, emotional and educational needs, such as special health needs, or special educational needs.
3. The likely effect on the child of any change in their circumstances – i.e. the change that a contact order would bring.
4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant.
5. Any harm which the child has suffered or is at risk of suffering as a result of the court making, or not making, a contact order.
6. Lastly, how capable the grandparents are of meeting the child’s needs.
The procedure on applying to the court for contact with a grandchild usually comprises the following steps:
1. Before you make the application you will normally first have to attend a Mediation Information and Assessment Meeting ‘MIAM’. The purpose of a MIAM is to see whether the case is suitable for mediation. If the case is not suitable for mediation, or if mediation takes place but is unsuccessful, then you can proceed with the application.
2. Making the application, and applying for leave. These things are normally done simultaneously, as leave is usually a formality, as mentioned above.
3. The court will fix an initial hearing, called a First Hearing Dispute Resolution Appointment, or ‘FHDRA’. If the case cannot be agreed at this hearing the court will give directions as to what should happen next. In some cases the court will appoint a Children & Families Court Advisory & Support Service (‘CAFCASS’) officer to investigate the case and prepare a report, usually including a recommendation as to what order the court should make.
4. There will then be another hearing, called a Dispute Resolution Appointment. The purpose of this hearing is to see if the case can be settled by agreement.
5. If the case cannot be settled by agreement a final hearing will take place, at which the court will hear the evidence, and decide what order to make.
As mentioned above, the law recognises that grandparents can play an important role in children’s lives. The court will therefore normally order that the children have regular contact with the grandparents, unless there is a good reason why the grandparents should not be granted visitation rights.
However, the amount and frequency of contact will not usually be the same as between a parent and child. As usual, there are no hard and fast rules – the contact ordered, if any, will vary from one case to another, depending upon what the court considers to be best for the welfare of the child. It may also depend upon whether the child has contact with the grandparents’ own child, and whether the grandparents see the grandchild during that contact.
As a very rough guide, one might for example expect direct contact between grandparent and child to take place, say, once a month, as against something like once a week between parent and child. There might also be indirect contact, for example by telephone, or text messaging, plus of course the exchanging of cards and presents at Christmas and on birthdays.
The above is of course just a brief outline of the law and procedure regarding grandparents visitation rights. If you are unable to agree contact with your grandchild then you should seek expert legal advice. We can provide you with the advice you need and, if necessary, represent you through the court process. To speak to one of our specialist lawyers, complete the form on this page.
Divorce can obviously be one of the most important events in a person’s life. It can also be one of the most emotional. It is therefore essential that anyone contemplating divorce be fully informed of what it involves, and how to ensure the best possible outcome. In this short guide we will outline the steps involved in getting a divorce in 2025, what other matters need to be considered, how to prepare for the process, and the best ways to achieve the outcome you seek.
We will begin with the process of the divorce itself.
As most people will be aware, we now have a no-fault divorce system in England and Wales. It is not therefore necessary to attribute blame for the breakdown of the marriage, for example by showing that the other party has committed adultery, or behaved unreasonably.
Nor is it necessary to show that you and your spouse have been separated for a certain period of time.
This divorce guide outlines that the basic law in relation to divorce is therefore quite simple: you just have to show that the marriage has broken down irretrievably. And the way that you do that is by filing with the court a statement that the marriage has irretrievably broken down – the court must accept the statement as proof of irretrievable breakdown (if one party states that the marriage has irretrievably broken down the other party cannot challenge this).
There is one other legal point that you may need to be aware of: an application for divorce may not be made before the expiration of one year from the date of the marriage. So if your marriage breaks down soon after the wedding you may have a short wait before you can untie the knot.
This divorce guide explains the three-stage process, comprising the application, the conditional divorce order, and the final divorce order. We will look at each of these in a little more detail.
The divorce application is begun by completing a divorce application form. The application can be made online or by post. The application form includes the statement that the marriage has irretrievably broken down, as mentioned above.
Importantly, the application can be made by one party to the marriage or by both parties jointly. A joint application should always be considered, as this can reduce the chance of unnecessary animosity, which in turn may make it easier to agree matters relating to children and finances. Obviously, a joint application will require both parties to complete and sign the application form.
Once the form has been completed it will need to be filed online or sent to the court, together with the original marriage certificate or a certified copy, proof of your name change if you’ve changed it since you got married, and the fee, which is currently £593. If you are on benefits or have a low income you may be able to get help with the fee.
Once the application has been filed nothing can be done until twenty weeks have elapsed since from the start of the proceedings. The applicant (or applicants, if it is a joint application) may then confirm to the court that they wish the application to continue. The court will then make a conditional divorce order.
After six weeks have elapsed from the conditional order the party or parties in whose favour the conditional order was made may give notice to the court that they wish the conditional order to be made final. When the court receives the notice it will make the conditional order final if it is satisfied that there is no reason not to do so.
The whole divorce process will take about seven months. However, if there are financial matters outstanding (see below) it is usually advisable not to finalise the divorce until those matters have been dealt with.
The divorce itself will often not be the only matter to be considered following a marriage breakdown. If there are dependent children the parties will need to sort out arrangements for them, and if there are financial matters to be resolved they will have to be dealt with.
We will now look at arrangements for children.
Obviously, divorce involves the separation of the parents. They will therefore need to make arrangements as to where the children will live following the separation. The children can live with one parent, or share their time with both. If they live with one parent then arrangements will need to be made for them to have contact with the other parent.
Arrangements may also need to be made regarding other matters relating to the children, such as holiday arrangements and schooling.
The most important thing to bear in mind when making arrangements is that it is far better to sort them out by agreement between the parents, rather than have the court impose arrangements upon the parents and the children.
If the parents are able to discuss matters directly between themselves then they can agree arrangements that way. Otherwise, it may be possible to reach agreement by using non-court dispute resolution, for details of which see below.
This divorce guide highlights that if parents can sort out children’s arrangements by agreement, then it should not be necessary to involve the court at all, but obviously if it is simply impossible to reach agreement then the court can be asked to decide the matter. But such contested court proceedings can be very time-consuming, stressful, and expensive.
The good news regarding court proceedings concerning arrangements for children is that in some areas of the country the courts are now using a new ‘problem-solving’ approach, which puts the children first, and can resolve issues very quickly. It is likely that more courts will be adopting this approach as time goes on.
Financial and property matters will need to be sorted out, usually before the divorce goes through. These can include what is to happen to the former matrimonial home, how other assets are divided, what maintenance arrangements should be put in place, if any, and how pensions should be divided.
Again, the parties should try to resolve these matters by agreement, if necessary using non-court dispute resolution.
But if they can’t agree, then they can ask to court to sort out financial arrangements, by making a ‘financial remedies’ application.
When such an application is made the parties will need to tell the court everything about their finances, including the value of any assets and pensions, their income, their outgoings, and their debts.
And the court will require proof of all of these things, which means that the parties will need to collate many relevant documents, such as payslips, bank statements, utility bills, and so on. The process of gathering these documents should start as soon as possible.
As to how the court will decide what orders to make on a financial remedies application, there is not room in this guide to go into the details. However, there are some general principles that can be stated.
Firstly, there is no formula to decide who has what when it comes to dividing matrimonial assets. The assets will not, for example, automatically be divided equally. The court has a wide discretion as to what orders it may make, having regard to all of the circumstances of the case.
In most cases the most important factor will be the needs of the parties and the children. Needs include in particular housing needs and income needs. Thus, for example, if one party is to look after the children then they will need somewhere for them to live, and it may therefore be appropriate for them to remain in the former matrimonial home, at least until the children are no longer dependent.
If, on the other hand, both parties have similar needs then it may be appropriate for the assets to be divided equally between them.
We have mentioned ‘non-court dispute resolution’ above. Non-court dispute resolution has been available for many years, but in 2025 it is even more important than ever, particularly as the court will now actively encourage the parties to engage in it.
Non-court dispute resolution includes such things as mediation, collaborative law, and arbitration.
There are many advantages to non-court dispute resolution, including getting a quicker and cheaper resolution to matters that cannot be agreed – contested court proceedings can be extremely slow and expensive.
And in the case of mediation and collaborative law, a successful outcome can not only mean avoiding having to go to court but also that you have an outcome that you want, rather than that someone else imposes upon you.
As we said at the outset, divorce can be one of the most emotional events in a person’s life. But it doesn’t have to be driven by confrontation and animosity. By following tips from this divorce guide, such applying for the divorce jointly and using non-court dispute resolution, it can be a far more amicable, and therefore less stressful, experience.
And knowing what to expect will also help make the process as smooth as possible. As with so many things in life, preparation is key. This applies both from a practical and an emotional point of view.
This divorce guide is obviously no more than a brief introduction. In every case, expert legal advice should be sought, at the earliest possible stage. If it is then the parties will not only be better prepared they will also have a better understanding of likely outcomes, making it more likely that they will be able to sort out matters by agreement, thereby avoiding the stress of contested court proceedings.
Many families today have international connections. They may for example have moved from one country to another, they may spend time in more than one country, or they may have assets in different countries.
Whatever the situation, having international connections may considerably complicate the legal situation if the family separate or divorce.
This brief guide will cover some of the most common scenarios where family law has an international element.
Divorce proceedings can usually only take place in a country with which the family has a particular connection. But sometimes a family will have connections with more than one country, meaning that the divorce could take place in more than one jurisdiction.
And this can lead to considerable disputes, particularly as each party may believe that having the divorce take place in a certain country will give them an advantage. For example, it is generally believed that the courts in England and Wales award more generous financial settlements to wives than in many other countries, thus wives often seek to have the divorce take place here, and husbands seek to have it take place elsewhere.
Divorce jurisdiction is often decided simply by who issues the divorce first. Thus if the one party issues the divorce in country A and the other party then issues divorce proceedings in country B, the divorce is likely to proceed in country A. As can be imagined, this can lead to unseemly races between spouses to see who can issue the divorce first.
An example of this occurred in a recent case that took place in the Family Court in London, which illustrates how jurisdiction disputes are dealt with.
The family had homes in several countries and the wife chose to issue divorce proceedings here, in February 2024. In the following month the husband issued proceedings himself in another country. The wife applied to stay the husband’s divorce proceedings, on the basis that her divorce application in England was first in time.
The court had to decide whether there was jurisdiction for the wife to apply for a divorce here and, if so, whether the court should stay the English proceedings in favour of the husband’s divorce proceedings issued later in the other country.
The court held that there was jurisdiction for the wife to apply for divorce here on the basis of her habitual residence here, and that the husband had failed to prove that the other country was a more appropriate forum for the divorce than this country.
Sometimes the courts here are asked whether a marriage entered into abroad or a divorce that took place in a foreign country is recognised under our law. Obviously, if a marriage is not recognised then there can be no divorce here, and if a divorce is not recognised then the parties will not be free to remarry until a recognised divorce has taken place.
Generally speaking most foreign marriages will be recognised by the courts in England and Wales. There are exceptions, however. For example, in a case in 2022 the court here made a declaration that a forced marriage in Bangladesh involving a woman who lacked capacity was not recognised as valid in England and Wales. A subsequent appeal against that declaration by the woman’s mother was dismissed by the Court of Appeal.
Similarly, most foreign divorces will be recognised by the courts here. For example, in 2017 the High Court in London was faced with a case in which the husband obtained a divorce in Dubai in 2012 and the wife subsequently obtained a divorce here in 2016. The husband sought a declaration recognising the Dubai divorce as valid. The judge agreed that the Dubai divorce was valid, and therefore set aside the English divorce.
We said earlier that a party, usually the wife, may receive a less generous financial settlement from the divorce court of another country. However, it is possible for someone who was divorced abroad to make a financial claim in the courts here, provided the foreign divorce is recognised by the courts of England and Wales – see above.
Such a claim can only be made in one of three circumstances:
1. Where either of the parties to the marriage was domiciled in England and Wales on the date of the claim;
2. Where either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the claim; or
3. Where one of the parties has an interest in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties.
Further, before the court decides what order to make it must first be satisfied that it would be appropriate for such an order to be made by a court in England and Wales, having regard to such matters as the connection that the parties have with this country, any financial benefit which the applicant has received in consequence of the divorce, and the extent to which any order is likely to be enforceable (enforcing orders made in this country in the courts of another country is another very important consideration where there are assets abroad, and will obviously depend upon the law of the foreign country).
International considerations can give rise to special issues for same-sex couples.
This is because not all countries have same-sex marriage. And this does not just mean that the couple are unable to marry in a country that does not have same-sex marriage. It also importantly means that the courts of that country may not recognise same-sex marriage at all. This can obviously mean that the couple cannot divorce in such a country, but it may also mean that orders made by a country that does recognise same-sex marriage, for example in relation to finances, may not be enforceable in the country that does not recognise same-sex marriage.
A further problem can arise where the same-sex couple entered into a civil partnership, but later had the civil partnership converted into a marriage. In such cases it is possible that the marriage may not be recognised in another country, even where same-sex marriage is allowed. Obviously, in such a situation it is advisable to check with the authorities of the other country that they will recognise a ‘converted’ civil partnership as a marriage.
We will conclude this guide by looking at two international family law issues relating to children: child abduction, and child relocation to another country.
International child abduction can be one of the most devastating things that can happen to a parent. It occurs when a parent takes a child to, or retains a child in, another country without the consent of the other parent, or the permission of the court.
The law in this country and in many other countries recognises that international child abduction is wrong. Accordingly, there are laws that can require the speedy return of an abducted child to his or her ‘home’ country, whereby the court of the country to which the child has been taken orders the child to be returned. Note that these laws do not decide the long-term future of the child, for example with which parent the child should live and whether the child can be relocated abroad (see below), which are matters for the courts of the home country.
How easy it is to obtain an order for a child to be returned depends upon whether the country to which the child has been taken is a signatory to the Hague Convention on Child Abduction. Most countries in Europe, North and South America and Australasia are signatories. The Convention requires children to be returned in most cases unless, for example, there is a grave risk that the child’s return would expose them to physical or psychological harm, or otherwise place them in an intolerable situation.
Securing the return of a child from a non-Hague Convention country can be more difficult, and may entail taking proceedings in the courts of that country.
For more information on international child abduction and how Walker Family Law can help, see this page.
Sometimes, one parent will wish to relocate with a child to another country. If the other parent does not consent then the parent wishing to relocate may apply to the court here for permission to move the child abroad.
The court will decide such applications in the same way as it will decide any matter relating to a child in this country: by reference to the welfare of the child, taking into account such matters as the ascertainable wishes of the child (considered in the light of the child’s age and understanding), and any harm that the court considers the child might suffer if the application is, or is not, granted.
The law also provides a presumption in favour of both parents being involved in a child’s life, unless that is proved to be contrary to the child’s welfare.
See also this page for the related topic of international child contact.
This guide is just a very brief overview of some of the most commonly-occurring international family law issues. International family law can be a very complex topic. Accordingly, if you have a family law issue with an international element it is essential that you seek expert legal advice, at the earliest opportunity.
Nuptial agreements, until quite recently a rarity in family cases in England and Wales, are becoming ever more popular.
Nuptial agreements are agreements between spouses setting out what should happen to their finances in the event that they should divorce. They take two forms: agreements entered into before the marriage (the ‘prenuptial agreement’, or ‘prenup’ for short), and agreements entered into after the marriage (the ‘postnuptial agreement’, or ‘postnup’ for short).
Whilst there are some differences relating to the formation of prenups and postnups, they are generally treated in the same way by the courts, under the collective name ‘marital agreements’.
There are many reasons why couples enter into marital agreements.
Perhaps the most common scenario is where one of the parties has substantial assets that they acquired prior to the marriage, and wishes to protect those assets, either for themselves, or for someone else, such as their children from a previous marriage. In such a case the agreement may state that in the event of a divorce each party will keep their own assets, and any jointly owned assets acquired during the marriage will be divided equally.
Another common reason has to do with the uncertainty of contested financial remedy proceedings under our law. The law does not specify exactly how assets are to be divided on divorce. Instead, it gives judges a wide discretion as to what order they may make. Whilst this means that judges can tailor their orders to particular circumstances, it also means that couples may not know in advance what will happen to their finances when they divorce. A marital agreement can provide them with certainty.
And another reason to enter into a marital agreement is simply to avoid conflict on divorce, thereby keeping things as amicable as possible, and avoiding possibly huge legal costs.
So what do a couple have to do if they have decided to enter into a marital agreement?
There are in fact few rules governing the making of marital agreements, save that the agreement should be in writing, and signed by the parties.
However, if the couple want the agreement to be enforceable (see below) then there are certain basic formalities that they should follow.
Firstly, each party should disclose to the other full details of their income and assets, before the agreement is entered into. This is to enable each party to make a judgment as to whether the terms of the agreement are reasonable.
Secondly, each party should take independent legal advice before signing the agreement, or at least be given the opportunity to seek such advice. Obviously, the lawyers will want disclosure to take place before they can give advice.
There is one other matter that should be considered when entering into a prenuptial agreement: timing. The agreement should be entered into a reasonable time before the wedding, to avoid the possibility of one or other of the parties feeling pressured to sign it. There is no set time period, but it has been suggested that the agreement should be signed no less than 21 days before the wedding.
The last thing to say about getting a marital agreement is that it really should be drafted by an expert family lawyer. A marital agreement is a complex legal document, which needs the expertise of a lawyer to ensure that it does what it is intended to do. The usual procedure will be for one party’s lawyer to prepare a draft of the agreement, and send it to the other party’s lawyer, who will check it and make any necessary alterations. Only when both parties and their lawyers are satisfied with the contents of the agreement will fair copies be prepared and signed.
This is the big question: will the courts of England and Wales enforce the agreement?
The starting-point is that the courts are not bound by the terms of the agreement, unlike in some other countries.
And until 2010 that was about all that needed to be said. However, in that year a landmark Supreme Court case held that the court should give effect to an agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
Whilst this case did not make marital agreements enforceable in all cases, it did have the effect that the courts now give much greater weight to them, so that marital agreements are now far more ‘useful’ to couples in England and Wales than they were previously. We will look at exactly how the agreement may affect the outcome of the case in just a moment.
There are three important points to the Supreme Court judgment.
The first is that the agreement must be freely entered into. There should be no suggestion of compulsion, or undue influence. This is where the requirements regarding legal advice and timing come into play.
The second is that the parties must fully appreciate the implications of the agreement. Again, legal advice is crucial here, as without it a party may not fully understand how they may be affected by the agreement.
And lastly, the terms of the agreement must be fair. It doesn’t matter whether the formalities have been fully complied with, if the court does not think that the terms of the agreement are fair as at the time it is considering the matter then it will not give effect to the agreement.
We will end by looking at two recent cases, which illustrate the court’s approach to marital agreements.
The first case concerned that issue of fairness.
In the case the parties had been living together for some years, before they were married in 2014. They entered into a prenuptial agreement to protect the wife’s assets, which were worth some £43 million. On a strict reading of the agreement, all that the husband was entitled to was the sum of £112,000, the repayment of a £250,000 loan to the wife, and a further modest lump sum payment.
The parties separated in 2020, by which time the period of continuous cohabitation and marriage was some 18 or 19 years. The husband left the family home and moved into rented accommodation.
Divorce and financial remedy proceedings then took place.
The wife argued that the husband should be bound by the agreement, and the husband argued that it should be disregarded, seeking a lump sum of £8 million, comprising £2 million to £3 million to meet his housing needs, and £5 million to £6 million to meet his income needs.
The judge held that the agreement should not be given full effect. Most significantly, he said, it did not address the husband’s needs fairly. On the sums he would receive under the agreement he could not reasonably be expected to meet his housing nor income needs, in a way which bore at least some relation to the marital lifestyle enjoyed over nearly 20 years.
The judge therefore awarded the husband a total of about £1.9 million, plus £2.5 million to purchase a property that he could occupy for life, whereupon it would revert to the wife.
The judge did however say that if the parties had not entered into the agreement then the husband may have been awarded significantly more – his decision reflected a proper recognition of the limiting consequences of the agreement.
The second case also revolved around the issue of needs.
In this case, the assets were some £50 million, almost all of which were in the husband’s name. The parties had been married for some 5 years, and there were two children, for whom the wife was the primary carer.
The parties had entered into a prenuptial agreement, which purported to severely limit the wife’s financial remedies claims.
The judge found that the wife had signed the agreement with full knowledge of its meaning and consequences, and with the benefit of legal advice. She was aware that her claims on divorce would be heavily restricted. However, the wife would be the primary carer for the children for the rest of their minority, and the fact of marrying and having children had had a significant impact upon her financial circumstances.
The agreement had anticipated the possibility of the couple having children, but all it stated was that the agreement should be reviewed in the event of the birth of children, although this had not happened. The judge felt that this clearly indicated the parties contemplated that it might not be a fair document upon children being born.
In the circumstances the judge awarded the wife some £4 million, to meet her housing and income needs. He also commented that had the parties not signed the agreement, the wife might have received substantially more.
It can be seen from these two cases that marital agreements can have a substantial bearing upon the outcome of a financial remedies case. Indeed, if the terms of the agreement are still considered to be entirely fair, then the court may give effect to the agreement in full. On the other hand, if the agreement is not freely entered into, is entered into without a full appreciation of its implications, or is not considered to be fair, then the agreement may be disregarded entirely, or its terms may not be given full effect.
If you are considering entering into a marital agreement then it is essential that you seek expert legal advice. For further information about marital agreements and how we can help, see this page.
The work of the Family Court is eyed by many with suspicion, if not outright mistrust, or even hostility.
The primary reason for this is quite simple: because of the nature of the work the court is unable to operate completely openly, in particular when dealing with the private lives of vulnerable children. And if the public can’t see what the court does, and why, then it may naturally become suspicious.
Those who work within the family justice system have long been aware of the widespread mistrust of the family courts. Indeed, back in 2013 the then President of the Family Division Sir James Munby indicated his determination to meet the charge that the courts operate a “system of secret and unaccountable justice”.
Sir James met the charge by making the workings of the court more transparent.
This ‘transparency drive’ began with Sir James issuing guidance to judges, requesting them to publish more of their judgments, so that the public could better understand what the Family Court does.
But it didn’t stop there.
Before we move on to look at the latest development in the drive to make the family courts more transparent, we first need to look at the rules governing what can be made public about the work of the Family Court.
The first thing to note is that hearings relating to family matters are generally held in private. This means that members of the public are not allowed to attend the hearings.
However, for a long time accredited media representatives have been allowed to attend most hearings. They are not allowed to attend adoption proceedings, or hearings fixed with the intention of helping the parties reach resolve the matter by agreement, and the court may exclude them from other cases, for example where it is considered necessary in the interests of a child.
But just because the media has been allowed to attend hearings does not mean that have been free to report everything they see and hear. On the contrary, there are strict rules restricting what they can report, especially in cases involving children. In particular, they cannot publish anything that might identify a child concerned in the proceedings, unless the court gives permission for them to do so.
And anyone breaching reporting rules may be subject to legal sanctions. For example, it may be a contempt of court to publish information about proceedings relating to children if a court sits in private. And the Children Act specifically provides that it is a criminal offence to publish information which could identify a child involved in certain proceedings.
All of these reporting restrictions have of course perpetuated the idea in some circles that the Family Court does indeed operate a “system of secret and unaccountable justice”. To address this, in 2021 the present President of the Family Division Sir Andrew McFarlane recommended that accredited journalists and ‘legal bloggers’ (i.e. authorised lawyers) should be able to report on what they see and hear in court, subject to strict conditions of anonymity.
This recommendation was eventually put into practice in January 2023, when courts in Leeds, Cardiff, and Carlisle began piloting new rules allowing reporting in the Family Court, in what became known as the ‘Reporting Pilot’. In January 2024 the Reporting Pilot was extended to 16 further court areas.
The Reporting Pilot was subjected to an independent assessment and was evaluated as a success. Accordingly, on the 27th of January 2025 it was rolled out across all family courts in England and Wales.
So what does this mean for users of the Family Court?
As mentioned above, the new rules apply to accredited journalists and authorised lawyers. An accredited journalist is a journalist who carries a UK Press Card, although the court also has a discretion to allow non-accredited journalists.
The basic principle behind the rules is that accredited journalists and authorised lawyers are allowed to report on what they see and hear in court. This is known as “the transparency principle”. The court may depart from the transparency principle in any case, balancing the family’s right to privacy against the freedom of the press.
All reporting is subject to the principles of protection of the anonymity of any children involved, unless the Judge orders otherwise. This is known as “the anonymity principle”.
So how does it work in practice?
When a reporter attends a hearing, and wishes to report, they should ask the judge to make a Transparency Order (reporters are encouraged to inform the court and the parties in advance of their intention to attend).
The Transparency Order sets out, amongst other things, what may or may not be reported.
There is standard form of Transparency Order, but the court can modify the terms of the standard order as appropriate on the facts of the case. The court may do this of its own motion, or by invitation, for example by one of the parties. The court also retains a discretion to later vary or discharge the Transparency Order, or to direct that there should be no (further) reporting of the case. This discretion may be exercised of the court’s own motion, or on application by a party or a reporter.
The standard Transparency Order states that it remains in place until any child to whom the proceedings relate reaches the age of 18.
The standard Transparency Order provides that, in any reporting about the proceedings, certain matters must not be reported without the express permission of the court, including:
1. The name or date of birth of any subject child in the case;
2. The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;
3. The address of any child or family member;
4. The name of the child’s school;
5. Photographs or images of the child, or their parents;
6. The names of any medical professional who is or has been treating any of the children or a family member;
7. In cases involving alleged sexual abuse, the details of such alleged abuse; and
8. Any other information likely to identify the child.
The court has a discretion to exclude journalists from a particular hearing, or part of a hearing, but this should only be done for specific reasons. The court may also decide that there should be no reporting, or restricted or delayed reporting of all, or part, of the proceedings.
In addition to these restrictions, the Transparency Order will allow the parties to discuss the proceedings with a journalist and, subject to the terms of the Transparency Order, permit the journalist to quote parties in their reporting. It will not, however, permit the parties to themselves publish information from the proceedings where this would be restricted by the contempt law mentioned above, or rules of the court.
The standard Transparency Order will also provide that, on request, reporters are entitled to be provided with copies of, and quote from, certain court documents, including case outlines, skeleton arguments, summaries, position statements, threshold documents, and chronologies. If a journalist wishes to see any other document not permitted to be disclosed by the Transparency Order, they must apply to the court for permission.
Finally, when deciding whether to make, or vary, a Transparency Order the court is required to give careful consideration to certain categories of case. Examples of this include cases where matters relevant to the case are subject to criminal charges, active investigation, or proceedings, where reporting may cause prejudice to those proceedings; urgent applications that are made without notice, where reporting and or/publication of the hearing or facts would cause prejudice to the applicant; and cases where it is particularly difficult to achieve anonymity for the child.
Sir Andrew McFarlane has described the establishment of the open reporting provisions in all family courts in England and Wales as a “watershed moment for family justice.” He said:
“Improving public understanding and confidence in the Family Court is of fundamental importance. Over the last two years there has been a presumption that journalists and legal bloggers can report what they see and hear from pilot courts in England and Wales. The reporting that we have seen has been significant, and includes coverage of issues affecting some of the most vulnerable people in our society, such as: children subject to Deprivation of Liberty Orders; the need to limit parental rights for convicted paedophiles and cases of child neglect or abandonment.
“There have been no known breaches of anonymity of children, and the aims of the pilot, to increase public understanding and awareness of the Family Court, are being realised.”
It should surely be the case that public understanding will be increased, but whether this will be enough to silence the detractors, we will have to wait and see.
It will still be the case that most family cases will not be reported upon, even if the rules allow it. There are only so many journalists and legal bloggers, and they can only cover a small fraction of the quarter of a million-odd new cases that are started in the family courts of England and Wales each year.
And the detractors may feel that the reporting restrictions that still apply will mean that the Family Court is not sufficiently open to justify the removal of the ‘secret justice’ complaint.
As for the users of the courts, obviously nothing will change for those who do not have a reporter present at their hearings, but for those who do they will have to be prepared for the possibility of their private affairs becoming public knowledge, although some may welcome the opportunity of discussing their cases with the press.
The New Year is a time to make resolutions, whether that be one resolution or many, and that goes for those involved in a family law matter, be it relating to divorce, children or finances, just as it does for anyone else.
In fact, the five family law resolutions we set out below are perhaps even more important than many New Year resolutions. Following them can make your family law matter far less painful for all concerned (including any children), and help you to achieve the best possible outcome.
It goes without saying that feelings can run very high after relationship breakdown. And high levels of emotion and animosity will obviously make it much more difficult for important issues such as arrangements for children and finances to be resolved by agreement.
In fact, in many cases the level of animosity will be so great that one party may see the legal process as an opportunity to exact some form of ‘revenge’ upon the other party, with the result that the matter will have to be resolved by the court.
And in other cases one party may feel so aggrieved by what has happened that they just want their “day in court”, when they can seek redress for the wrongs that they believe the other party has inflicted upon them.
But no matter what the situation, court should always be regarded as the last resort. Court proceedings can be extremely stressful and expensive, they can prolong animosity, to the detriment of all concerned, including any children, and often the order that the court makes will not be what either party wants.
In short, every reasonable effort should be made to resolve the matter by agreement, without going to court. And this even goes for the most apparently intractable case. As any family lawyer will attest, many cases where compromise initially seemed impossible are ultimately resolved by agreement.
Now, obviously many couples are unable to agree matters directly between themselves. But their lawyers should endeavour to help them settle the matter by agreement, particularly if the lawyers are members of Resolution, who adopt a non-confrontational, constructive, approach to their cases.
And if agreement is still not possible there are various other ways to resolve matters out of court, including: family mediation, where a trained mediator will help the couple reach agreement; collaborative law, where specially trained lawyers acting for each party endeavour to resolve cases via meetings; arbitration, where the parties agree to appoint an arbitrator to decide their case, and to be bound by the arbitrator’s decision; and Resolution Together, where the parties appoint one lawyer to advise them jointly. For more information regarding all of these services, see this page.
This resolution should go without saying, but sadly it does need saying.
Almost all parents involved in cases concerning arrangements for their children will believe that they are putting their children first. But what they think is best for their children is not necessarily what is really best for them.
All too often one parent will be driven by their feelings towards the other parent, rather than by what is actually best for their children. A classic example of this is where one parent denies the children contact with the other parent because of what the other parent has done to them, rather than because that is what is best for the children’s welfare.
So when considering arrangements for children a parent should always take a step back, put aside their personal feelings, and consider: what is really best for my children? In most cases the answer is that the children continue to have a full a relationship as possible with both of their parents.
And this resolution does not just apply to sorting out arrangements for children. In everything that the parents do they must put their children first. In particular, when a parent prolongs an argument over some other matter, for example relating to financial issues, the animosity that this entails may be picked up by the children, causing them continued harm. Children do not want to see their parents at loggerheads.
For many spouses, receiving divorce papers will obviously be extremely stressful, and may cause them to be resentful. It may even increase animosity, or create animosity where there was none.
Even though it is thankfully no longer necessary for a party initiating divorce proceedings to make allegations against the other spouse, blaming them for the breakdown of the marriage, there can still be an issue for the other spouse when they are told that their marriage has irretrievably broken down, and there is nothing that they can do about it.
And if that does cause resentment or animosity, then that might in turn make it more difficult for the parties to reach agreement on important matters, such as arrangements for children and finances (see Resolution 1 above).
But it doesn’t have to be like this.
One of the many good things brought about by the recent reform of divorce law which brought in no-fault divorce was the introduction for the first time of the possibility of the parties to a marriage making a joint application for divorce.
A joint application is just the same as a sole application, save that is made by both parties, who will sign a joint statement that the marriage has irretrievably broken down. They can also agree to share the court fees involved in divorce proceedings.
The parties can then deal with each step of the divorce together, including asking the court to make the conditional and final divorce orders.
About a quarter of all divorce applications are made jointly. It is clearly a good way to try to keep things as amicable as possible, and should definitely be considered in many cases.
This will come as no surprise, but it really is important.
The law can be complicated. But it can also work in quite different ways than the average layperson may expect. Not knowing the law and how it is likely to apply can very easily lead someone into a far worse situation, and result in a far worse outcome.
And it is important that expert legal advice is sought early – before mistakes are made, and to ensure that a position is protected, for example by ensuring that the other party in a financial case does not dissipate assets before the case gets to court.
Very often a layperson will have their own view of what is relevant to their case. But what they think is relevant and what is actually relevant can be two very different things. Pursuing irrelevant matters can be damaging to a case, and can result in a party running up wasted legal costs.
An expert lawyer will explain what is relevant.
And an expert lawyer will advise as to what they think the likely outcome of the case will be if it were to go to court. As we will see in a moment, this can be very different from the outcome that the client initially expected.
Early legal advice may cost money, but in the long run it can save a lot more.
The last resolution follows from Resolution 4. It applies to all types of family law cases, but perhaps especially to sorting out financial arrangements on separation or divorce.
All too often a party will go into a case expecting to achieve everything they want, because they are so certain of the merits of their case. But it is very rare that they will achieve everything they want.
In relation to arrangements for children one parent may be quite convinced that the children should live with them and have no contact with the other parent. They may, for example, feel that the other parent has behaved so badly that they should have nothing more to do with the children. But it is actually quite uncommon for a court to order that a parent have no contact with their children.
And when it comes to sorting out financial arrangements, it is not at all unusual for one or both parties to have unrealistic expectations of what they are entitled to. A husband, for example, may feel that he should receive the lion’s share of the assets, simply because he was the breadwinner throughout the marriage. But the law does not necessarily work like that.
Obviously, unrealistic expectations can make it much less likely for cases to be resolved by agreement (see Resolution 1 above), and therefore much more likely that the case will have to go to court, with all of the stress and expense that that can entail.
The best way, of course, to avoid the trap of unrealistic expectations is to seek expert legal advice as early as possible (see Resolution 4 above) and, most importantly, to follow the advice of your lawyer. A good lawyer will always tell their client to expect what the court is likely order, rather than tell them what the client wants to hear.
In summary, if you follow the five resolutions above (as far as they may apply) then your family law matter should be far less difficult than it could be, and the outcome is far more likely to be the best that can be achieved.
The law governing how finances should be divided upon divorce has remained essentially the same since 1973, being contained in the Matrimonial Causes Act of that year.
But in the fifty-odd years since many experts have expressed concerns that changes to family law need to be made. A particular concern is that the law, which gives judges a wide discretion as to what financial settlement they may order in each case, is too uncertain, with the result that many couples are unsure as to what the court is likely to order. This in turn makes it more difficult for many couples to agree settlements, rather than go to court.
The law on divorce has of course recently undergone a very significant reform. No-fault divorce was introduced by the passing of the Divorce, Dissolution and Separation Act 2021. As that Act was going through Parliament the Government made a commitment to conduct a review of the law of financial remedies.
In 2023 the Ministry of Justice referred the matter to the Law Commission. The key question that the Commission was requested to answer was whether the current law provides a cohesive framework in which parties to a divorce can expect fair and sufficiently certain outcomes.
In December 2024 the Commission published a ‘Scoping Report’ setting out whether the Commission considers that the law requires reform, and identifying possible models on which reform could be based and what changes to family law can be made.
The Commission concluded that changes to family law do need to be made, but felt that the shape that reform should take is a matter for Government to decide. The Scoping Report did not therefore contain any recommendations for reform.
The Commission considered that the current law does not reflect the significant developments to financial remedies law arising out of judicial decisions over the last fifty years. Combined with the wide discretion contained in the current law, the Commission felt that this means that it is not possible for an individual going through divorce to understand, by reading the statute, how their case will be decided.
And the uncertainty caused by the discretionary nature of the system makes it difficult to negotiate, thereby promoting dispute rather than settlement. Even if a couple seek legal advice, said the Commission, their lawyers may not agree about the appropriate outcome, and for those who do not obtain legal advice, the position is even less clear.
In short, the view of the Commission is that the law does not “provide a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes”.
Whilst it did not make any recommendations, the Commission did identify four models upon which reform of the law could be based.
The four models represent a spectrum of changes to family law, ranging from retaining wide discretion at one end, to creating far more certainty at the other end. The four models are:
Codification – Under which there would be minimal change to the existing law contained in the Matrimonial Causes Act, but the case law that has amended the law over the last fifty years would be codified. Under this model the court would obviously retain a wide discretion.
Codification-plus – Under which the existing law would be codified, and there would also be additional reform to deal with specific areas where the law is not yet settled, for example in relation to nuptial agreements and the effect of a party’s conduct upon the settlement (see below). Under this model the court would retain discretion, but limitations on discretion may be introduced in relation to areas of reform.
Guided Discretion – Under which a set of underpinning principles and objectives would be introduced, which guide the exercise of the court’s discretion. The Commission states that: “A model based on guided discretion retains, to a greater or lesser extent, some judicial discretion, which can then be exercised on a case-by-case basis. However, legislation prescribes how, and when, the discretion can be exercised.”
Default Regime – Under which a ‘matrimonial property regime’ would be created. Such a regime would impose a set of rules which come into effect from the date of the marriage, and which dictate with a high level of certainty the financial outcome when the marriage comes to an end. Under such a regime the court would have very little discretion, and couples would know when marrying how property will be divided on divorce.
As will be seen, there is little in the way of specifics in these four models. However, the Commission did also look at five specific areas where there might be reform, as set out below (although again the Commission did not make any recommendations).
Many couples enter into nuptial agreements, setting out what is to happen in the event that the marriage should break down and there should be divorce proceedings. Nuptial agreements can be made either before the marriage (a ‘pre-nuptial’ agreement), or after the marriage (a ‘post-nuptial’ agreement).
Nuptial agreements are not legally binding in England and Wales, although the Supreme Court ruled in 2010 that the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
The Law Commission essentially suggests that the law on nuptial agreements be reformed in accordance with a recommendation they made back in 2014, i.e. that nuptial agreements should be binding, provided that certain legal safeguards were met (such as the parties having independent legal advice), and provided also that the agreement provided for financial needs (if it did not then the court could make an award to meet those needs).
The next matter that the Commission looked at was whether there is scope for reform of the law to incorporate a maximum term for spousal maintenance.
A number of influential people have argued that there should be a limitation upon the duration of spousal maintenance orders, as they consider that unlimited orders can amount to a ‘meal ticket for life’.
Whilst not making any recommendation, the Commission did point out that lifetime maintenance orders are actually quite rare. It also pointed out that many of the interested parties that they spoke to were concerned about the effect a term limit on maintenance orders could have on vulnerable spouses. And even where they expressed support for a time limit, many supported retaining some discretion, depending on the circumstances.
The Scoping Report also considered whether there should be wider powers for the courts to make orders in respect of children of the family who have already attained the age of 18. Under the present law financial support for children generally ceases when they reach 18 years old.
The Commission says it has been told that the current law is unsatisfactory, as increasingly parents are still providing financial support for children beyond the age of 18. And the financial burden for supporting such a child can often fall on the parent with whom they are living.
The Commission report that interested parties suggested that the court’s powers to order financial provision for children aged 18 and over should be extended. It was suggested that the age at which provision ends by default should be revised upwards, possibly to the age of 21. Alternatively, financial provision could end upon the occurrence of a particular event, such as when the child finishes a first undergraduate degree, or becomes financially independent.
The next specific matter that the Commission considered was whether there is scope for reform in the operation of “conduct” as a factor to which the court must have regard when making a financial award.
At present conduct only has a bearing if it is particularly serious, for example in a case where the husband attempted to murder the wife, who was unable to work as a result.
The Commission says that some commentators suggest that there should be a greater recognition of domestic abuse as conduct, making the point that victim-survivors of abuse suffer poor financial outcomes following divorce, and that the financial consequences of domestic abuse should instead properly fall on the perpetrators
The Scoping Report concludes that it would be beneficial for the law to state clearly: what forms of behaviour will be considered conduct; the impact that conduct will have on a claim for financial remedies; and the process to be adopted when making an allegation of conduct.
The final specific area that the Commission looked at was pensions.
The problem here is that many people have little or no awareness of their spouse’s pension, with a quarter of divorcing individuals not even knowing whether their spouse had a pension.
And pension sharing orders may not be made as often as they should, with many couples preferring an ‘offsetting’ arrangement, whereby instead of a share in a pension, a spouse receives a greater share of other assets. But offsetting can result in unfairness, particularly for women as their longer-term financial wellbeing is ignored in favour of the practicalities of their current financial needs.
The Scoping Report explores suggestions for reform of the law regarding pensions on divorce, including the possibility that equal sharing of pension rights should be a statutory requirement, so that pensions are automatically shared on divorce.
We will now have to wait and see whether the Government agrees that the law should be reformed and, if so, what form that reform should take.
Under a Protocol between the Lord Chancellor (on behalf of Government) and the Law Commission, the responsible Minister will respond to the Scoping Report as soon as possible, and in any event with an interim response within six months of publication of the report, and a full response within a year. Matters should therefore become clearer by the end of 2025, at the latest.
The breakdown of a marriage is of course most often followed by divorce proceedings. However, that does not have to be the case, even if there is no reconciliation.
Many separating couples choose not to dissolve the marriage, at least not immediately, for reasons that we will discuss in a moment.
But the lack of divorce proceedings does not of course mean that there are no matters to resolve. The couple will still need to sort out arrangements for any dependent children and for finances following the separation. And these arrangements will require legal steps to be taken, to ensure that they are properly recorded and, if necessary, enforceable. As we will see shortly, those legal steps may or may not be quite different from what would happen on a divorce.
Understanding the differences between a legal separation and a divorce is vital for any couple trying to decide what route to take.
In order to understand we first need to look at exactly what a divorce does, and what it entails.
It may seem odd to ask what a divorce does, but the answer of course reveals one of the fundamental differences between a divorce and a legal separation. And the answer is not quite as simple as many would expect.
A divorce obviously dissolves the marriage, thereby bringing to an end the legal relationship between the husband and the wife.
But what did that legal relationship actually mean?
There is in fact no ‘official’ list of the legal consequences of marriage, and many of the consequences exist more in legal theory than in practice. In practical terms, perhaps the most important consequences from a family law point of view are the right to maintenance and the right to occupy the matrimonial home.
Marriage gives each party the right to claim maintenance from the other. Divorce does not automatically bring that right to an end, but in most divorces there will be an order made that does bring it to an end.
Marriage also gives a spouse the right to occupy the matrimonial home, if it is owned solely by the other spouse (they would obviously already have the right to occupy if they owned it themselves, either solely or jointly with the other spouse). This right does come to an end on divorce, although it can be extended by the court making an order allowing the non-owning spouse to occupy the property after the divorce.
In addition to these matters, divorce can affect inheritance, as if a spouse dies without making a will then the surviving spouse will automatically inherit part or all of the estate.
There are also taxation consequences of divorce, although we will not detail them here.
So divorce can have legal consequences, beyond simply bringing the marriage to an end, even though in many cases the consequences will be of little or no practical effect.
Having looked at the legal consequences of divorce, we must now look at what getting divorced actually entails.
The procedure of divorce takes place in three stages: the application, the conditional order, and the final order. A divorce can only be applied for after one year has elapsed from the date of the marriage.
The first stage is that one or both parties make an application for the divorce, accompanied by a statement that the marriage has broken down irretrievably. The court must accept that statement as proof that the marriage has indeed broken down irretrievably.
The conditional order is when the court confirms that the applicant is, or the applicants are, entitled to a divorce. It can be applied for after 20 weeks have elapsed since the date of the application.
And the final order, which brings the marriage to an end, can be applied for after 6 weeks have elapsed since the making of the conditional order.
But the divorce is not usually just about dissolving the marriage. In most cases arrangements will also need to be made to sort out property and finances. These may in particular involve sorting out what is to happen to the former matrimonial home and dividing any other assets.
One of the most important other assets will often be pensions, which in many cases will be the most valuable assets, after the matrimonial home. Pensions will often be dealt with by way of a pension sharing order, whereby all or part of one party’s pension will be transferred into a pension belonging to the other party.
And when the court is asked to make a financial remedy order on divorce it is specifically required to consider whether it would be appropriate to make an order such that the financial obligations of each party towards the other should be terminated as soon after the making of the order as the court considers just and reasonable – this is often referred to as a ‘clean break’.
Having looked at what a divorce does and what it entails, we now turn to look at the alternative: legal separation.
There are in fact two types of ‘legal separation’.
The first type is what is known as a ‘judicial separation’. This involves obtaining a judicial separation order from the court.
The second type does not involve court proceedings. In this arrangement the parties simply agree the terms of the separation, and record those terms in a written separation agreement, or deed.
Neither type of legal separation prevents a divorce application being made in the future.
Before we look at the two types of legal separation in more detail we should first consider exactly why a couple might decide upon a legal separation, rather than a divorce.
There are various reasons why the couple choose not to dissolve the marriage, at least not immediately.
They may, for example, have a religious objection to divorce. They may not have been married for a year, so are unable to apply for a divorce. Or they may simply not have reached the point where they are sure that the marriage has broken down irretrievably, and therefore want to leave the marriage in place, while they have a ‘trial separation’.
We will now look at the first type of legal separation: judicial separation.
A judicial separation order does not dissolve the marriage, so what does it do?
The law used to state that judicial separation had the effect that thereafter it shall no longer be obligatory for one spouse to cohabit with the other. But this obviously had no practical meaning, as one spouse cannot force the other to cohabit with them, so this provision in the law was removed.
Judicial separation can affect inheritance, as after judicial separation if a spouse dies without making a will the other spouse will not inherit any of the estate.
But that will not be relevant in many cases, so why apply for a judicial separation at all?
The primary answer is that you can apply to the court for most types of financial remedies within judicial separation proceedings, just as you can within divorce proceedings.
But there is one very important exception.
The court cannot make a pension sharing order in judicial separation proceedings. Accordingly, if you wish to apply for a pension sharing order then you will need to apply for a divorce. You could deal with pensions in another way, for example by an ‘offsetting’ arrangement, whereby the pension-holding spouse keeps the pension but the other spouse receives more of the other assets in compensation. However, that is not always a satisfactory solution, and in any event will not be possible where there are insufficient other assets, as is often the case.
And the ‘clean break’ provision mentioned above does not apply in judicial separation proceedings.
As to the procedure on a judicial separation, this is initially similar to the procedure on a divorce.
Just like with divorce a judicial separation order can be applied for by one or both of the parties to the marriage. They must still file a statement with the court, but instead of it stating that the marriage has irretrievably broken down, it merely states that they seek to be judicially separated from one another.
The next step in the proceedings is simply that the court will make a judicial separation order, upon the application of one or both of the parties. There is no conditional order, just one final order.
Which brings us finally to separation agreements.
As mentioned above, where the parties agree to separate and agree upon arrangements for children and finances they may simply incorporate the agreement into a written separation deed.
The primary purpose of the deed is to record what has been agreed. Whilst the deed is technically a contract, if one party does not keep to the terms of the agreement then the other will not normally sue them for breach of contract.
Instead, the most likely scenario is that they will either apply to the court for a child arrangements order or, in relation to financial arrangements, commence divorce proceedings, and ask the court to make an order in the terms set out in the agreement. The court is not bound by the terms of the agreement, but will take it into account when considering what financial orders to make.
Otherwise, the effect of a separation agreement is similar to a judicial separation, although it will have no effect upon inheritance. Whether you seek a divorce, a judicial separation or a separation agreement, Walker Family Law can help. For more information about our divorce and separation services, see this page.
