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’.

Why have a marital agreement?

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?

What is involved in getting a martial 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.

Are marital agreements enforceable?

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.

How the court deals with marital agreements in practice

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.

Further information

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.

The ‘secret’ Family Courts

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.

Two principles

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?

Transparency Order

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.

A “watershed moment”

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.

1. Settle out of court if you can

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.

2. Always put the children first

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.

3. Consider joint divorce

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.

4. Seek early legal advice

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.

5. Have realistic expectations

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.

Does the law require reform?

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”.

Four possible changes to family law

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).

Nuptial agreements

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).

Spousal maintenance

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.

Children aged 18 and over

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.

Conduct

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.

Pensions

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.

What happens next

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.

What does a divorce do, and what does it entail?

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.

Two types of 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.

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.

Separation agreements

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.

It is claimed by some that January is the busiest month for family lawyers, when more people than ever seek a divorce, following family breakdown over Christmas. And if you find yourself seeking a divorce in January, then that is the perfect time to consider family law mediation as a means of sorting out arrangements for children and finances post-separation.

In fact, it is not at all clear that more people seek a divorce in January than at any other time of the year. However, the simple truth is that whenever a marriage breaks down is the perfect time to consider family law mediation as a means of sorting out children and financial arrangements.

And if your relationship has already broken down and there are still arrangements to be sorted out, why not make a New Year’s resolution to use family law mediation to sort out those arrangements?

But why should you use mediation? What arrangements need to be sorted out, and what is wrong with just going to court and sorting things out in the ‘normal way’?

What arrangements need to be sorted out post-separation?

If there are dependent children then the parents will need to sort out where they will live post-separation. This can be with just one parent, or a shared care arrangement, whereby the children share their time between their parents. And if the children are to live with just one parent then arrangements will need to be sorted out for them to have contact with the other parent.

There may also be other matters to be sorted out regarding the children, such as holiday arrangements and what schools they should attend.

In addition, arrangements will be sorted out as to the payment of child maintenance and school fees, if appropriate, including how much will be paid, and how often.

As to other financial arrangements, exactly what needs to be sorted out depends upon whether the parties were married (or in a civil partnership), or were simply cohabiting.

If the parties were married then all financial arrangements will need to be sorted out, including what is to happen to the former matrimonial home, how any other assets should be divided, and what should happen regarding pensions.

If the parties were not married there may still be property matters to resolve regarding any property that was jointly owned, or where it was owned by one party but the other party claims a share.

And if the unmarried couple have dependent children, then it may be necessary to make financial provision for the children, for example to ensure that they have somewhere suitable to live.

As will be seen, there can be a lot to sort out following separation or divorce!

The importance of resolving matters by agreement

It is absolutely vital that all of these arrangements are sorted out between the parties by agreement, if at all possible.

If they can’t be sorted out by agreement then it will obviously be necessary to have someone else sort them out for you. This will usually mean going to court, but this has serious disadvantages for all concerned, including:

1. Cost – Contested court proceedings are prohibitively expensive. It is far better to preserve precious assets for the family, rather than fritter them away on unnecessary legal costs.

2. Time – Contested court proceedings can take many months, and sometimes even years, to be dealt with, preventing the family from moving on with their lives.

3. Stress – Contested court proceedings can be extremely stressful for all involved.

4. Animosity – Contested court proceedings will often create or exacerbate animosity between the parties, to the great detriment of everyone involved, including any children.

5. Bad outcomes – Lastly, the court will impose a decision upon the parties that they may not agree with.

All of these disadvantages can be removed or reduced if arrangements can be sorted out by agreement.

A better way

It is all very well recommending that separated couples sort out arrangements for children and finances by agreement. But what if they try to do so, whether by speaking to one another directly or negotiating through solicitor, but they are unable to reach agreement?

This is where mediation comes in.

Often, all it needs for the parties to reach agreement is someone to help them in the process of negotiation. Someone who can steer them in the right direction, making sure that both parties approach the negotiation in a reasonable fashion, and that neither party seeks to force their views upon the other.

And that someone is a trained mediator.

So how exactly does mediation work?

What is family law mediation?

Family mediation is a process whereby the parties endeavour to sort out arrangements for children and/or finances, with the assistance of a family law mediator.

Whilst anyone can call themselves a mediator, you should choose one who has undergone professional mediation training, and has a recognised accreditation, for example from the Family Mediation Council.

The mediation process will normally consist of a number of meetings, over a period of several weeks, or a few months. Meetings will typically last about 90 minutes.

If the mediation relates to financial arrangements on divorce then, before the process can begin, the parties will be required to make full disclosure of their means so that everyone, including the mediator, knows what is involved, and can form a view as to what would be a reasonable settlement.

If the parties can reach agreement in mediation then a written memorandum of the agreement will be prepared by the mediator. If the agreement relates to divorce finances, then the agreement will need to be incorporated into a consent court order, so that it is both final and enforceable. The order can usually be obtained without the necessity of a court attendance.

And even if a full agreement cannot be reached, it will often be possible to agree some matters in mediation, thereby reducing the number of issues to be argued before the court.

There is a cost involved in mediation, but this is usually shared between the parties, and will almost certainly be considerably less than the cost of contested court proceedings. Legal aid may be available for mediation, subject to eligibility.

It is important to understand that the mediator cannot provide legal advice to the parties, even if the mediator is legally trained (many mediators are solicitors). The parties should therefore seek their own legal advice as they go through the mediation process (see also Solicitor Inclusive Mediation, mentioned below).

It is also important to understand that mediation is entirely voluntary. This therefore means that both parties will have to agree to go to mediation, before mediation can happen. No one can be forced into mediation, although if there are court proceedings the court may take a dim view of anyone who refuses to go to mediation without good reason, and can even impose costs penalties upon them.

It should also be noted that anyone wishing to make an application to a family court to sort out arrangements for children should first attend a Mediation Information and Assessment Meeting, or ‘MIAM’, unless they are exempt. The purpose of the MIAM is to explain how mediation works, and to assess whether the case is suitable for mediation.

Mediation is suitable for most separating couples, but there are cases in which it will not be suitable, in particular where there has been a history of domestic abuse.

Family Law Mediation works

In the autumn of 2019 the Family Mediation Council conducted a survey to find out whether family mediation works.

The survey involved 122 Family Mediation Council-registered family mediators, who had carried out mediation in 2161 cases over a six-month period. The issues being mediated comprised 46% children arrangements, 25% property and finance arrangements, and 29% all issues (i.e. arrangements for both children and finances).

The survey found that those who participated in mediation succeeded in reaching complete or partial agreement in over 70% of cases, with 50% of people reaching a complete, written agreement, and the remaining 20% reaching an agreement on some issues, or on all issues, but choosing for this not to be written down.

The survey also showed that where both of the people separating go and see a mediator for an initial meeting, three quarters choose to go on to mediate. This is despite the fact that many don’t know anything about mediation, or think their partner is so unreasonable that mediation will never work.

In short, mediation works, certainly in the majority of cases, and often in cases where it initially seems highly unlikely that it will work. Mediation should definitely be considered by all separating couples as a means of sorting out arrangements for children and finances, and January is the perfect time to begin mediation!

How we can help

Walker Family Law offer a range of mediation services, including Child Inclusive Mediation (to ensure that the voices of older children are heard and considered during the mediation process), Solicitor Inclusive Mediation (providing support and guidance to clients with legal representation throughout the mediation process), and Online Mediation, allowing clients to participate from the comfort of a location of their choice.

To find out more about how we can help you with our mediation services, see this page.

There is a stereotype that family lawyers are only interested in conflict, which both increases their fees, and aims to achieve the outcome that their client seeks, whatever the cost.

But whilst some such family lawyers may still exist, most believe that there is a better way to approach divorce and other family dispute resolution.

And many of those lawyers belong to Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way.

All of our family lawyers are members of Resolution

So what exactly is Resolution – how did it come about, and what does it do?

A little history

For lawyers involved in non-family civil litigation their job is simply to do everything they reasonably can to achieve the best possible outcome for their client, largely irrespective of the effect of their actions upon the other party, or anyone else. This can often mean taking a very robust, confrontational, and sometimes even aggressive, stance, which is obviously more likely to result in heavily contested court proceedings.

And until relatively recent times that was the approach that most family lawyers took to their work. Indeed many, and perhaps even most, lawyers who did family work were civil litigators who did not specialise in family law, and therefore used the same techniques for all of their litigation work.

But around the late 1970s and early 1980s some family lawyers began to recognise that, whilst a robust approach may be appropriate in some family cases, for example where there is domestic abuse or the other party is refusing to cooperate, in many family cases there was a better way.

Obviously, an aggressive confrontational approach to family litigation is highly likely to enflame feelings between the parties, which may already be running high. Increasing the animosity in this way may not only be damaging for the welfare of the parties, it may more importantly be damaging for the welfare of any children involved. It will also, of course, make it much more difficult for the issues between the parties to be resolved by agreement, thus increasing the likelihood of contested court proceedings, with all of the stress, time and cost that they entail.

Thus in the early 1980s some enlightened family lawyers felt that it would be better to take a more constructive and less adversarial approach to family disputes.

The initiative took shape in September 1982 when a London based family lawyer, John Cornwell, gathered together a group of 30 family law solicitors who established the Solicitors Family Law Association (‘SFLA’). A Code of Practice (see below) was then drawn up, setting out the approach that all members of the association should take to their work.

Soon after this regional groups of the SFLA were formed in various parts of England and Wales.

In 2005 the name of the organisation was changed to Resolution, a name which it was felt reflected its ethos. It also reflected the fact that membership of the organisation had widened. No longer was it restricted to solicitors – a wider range of family justice professionals were joining the organisation, including barristers, family mediators and financial advisers.

Today Resolution has a membership of more than 6,500 family justice professionals.

Code of Practice

Central to everything that Resolution does is its Code of Practice, to which all members must sign up

The Code aims to promote a constructive approach to family issues, and to consider the needs of the whole family.

To this end, the Code requires that members:

  • Reduce or manage any conflict and confrontation; for example, by not using inflammatory language.
  • Support and encourage families to put the best interests of any children first.
  • Act with honesty, integrity and objectivity.
  • Help clients understand and manage the potential long-term financial and emotional consequences of decisions.
  • Listen to and treat everyone with respect and without judgment.
  • Use their experience and knowledge to guide clients through the options available to them.
  • Continually develop their knowledge and skills (see below).

Alongside the Code, Resolution has created a number of Guides to Good Practice, covering such matters as how members should communicate with others, what should and shouldn’t be contained in their correspondence, dealing with cases involving domestic abuse, and dealing with litigants in person. Members are required to use the Guides in their day-to-day work.

Training and accreditation

A large part of what Resolution does is provide training and accreditation for members.

The training includes conferences, seminars, webinars, online courses and written books and publications, including guidance notes and a bi-monthly member magazine.

The training covers every aspect of family law, and the practice of family law.  Examples of recent training event topics include advocacy, domestic abuse, non-court dispute resolution, and family finance.

More specifically, Resolution provides foundation training for those wishing to become a family mediator.

Resolution also offers training for the new Resolution Together service – see below.

In addition to training, Resolution runs a Specialist Accreditation Scheme, which recognises members who demonstrate skilled expertise in specific areas of family law or family finances, and follow the Code of Practice. Resolution describe their specialist accreditation as: “a mark of excellence in practice, recognised by the public, fellow professionals, the judiciary and the Legal Aid Agency.”

Resolution has accreditation schemes for lawyers and for financial advisors. Lawyer members applying for Specialist Accreditation must demonstrate a thorough knowledge of law, procedure and practice. Their skills, proficiency and experience in specialist areas of family law are also assessed. Specialist areas include such subjects as children law, complex financial remedy cases, domestic abuse, and international cases.

Resolution currently has more than 1,200 accredited specialists, who are recognised for having superior expertise in their given specialism of family law.

Campaigns

Another large part of what Resolution does is campaign for important changes to the law in relation to family justice.

One of Resolution’s longest-running campaigns was for the introduction of a no-fault divorce system. Resolution campaigned for this for many years, lobbying parliament, working with ministers and generally explaining the benefits of no-fault divorce to the public. Happily, the campaign was ultimately successful, when the Divorce, Dissolution and Separation Act was passed in 2020, bringing in the new no-fault system in April 2022.

Another long-running campaign seeks basic financial rights for cohabitees on relationship breakdown. As Resolution explains: “Cohabiting couples may make up the fastest growing family type, but the law doesn’t recognise these couples in the same way as those who are married or in a civil partnership.” Many people in cohabiting relationships do not realise that they do not have the same rights as married couples, often erroneously believing in the myth of the “common law marriage”. As a result, many former cohabitees are surprised to find that they are unable to make any financial claims against their former partners, and suffer severe economic hardship as a result. Resolution’s campaign seeks to put this right, by giving cohabiting couples basic rights on relationship breakdown. The campaign also seeks to raise awareness so that cohabiting couples can take measures to protect themselves, for example by entering into cohabitation agreements.

Another campaign follows Resolution’s ground-breaking recent report on domestic abuse in financial remedy cases. The report found that 80% of family justice professionals believe that domestic abuse, and specifically economic abuse, is not sufficiently taken into account in financial remedy proceedings. Particular concerns include abusers failing to provide full disclosure of their means and failing to comply with final court orders, so as to frustrate the financial claims being made against them. Resolution is calling for a cultural shift from all family justice professionals to better meet the needs of victim-survivors of domestic abuse seeking the resolution of finances on divorce. It has also made a raft of recommendations to policy, legislation and processes in order to identify and improve how domestic abuse is addressed in financial proceedings relating to families and their children.

Resolution also runs an annual Awareness Week, held in the last week of November each year. During the week Resolution will promote the benefits of its constructive approach, and will often campaign on a particular policy issue.

In addition to its campaigns Resolution will often use its expertise to provide responses to proposed changes to the law and procedure relating to family justice. If, for example, the government launches a consultation upon a proposed change in the area of family law, Resolution will consider the proposal and publish its response to the consultation.

Resolution Together

Finally, Resolution has recently developed a revolutionary new way of working with couples jointly through separation or divorce.

Called ‘Resolution Together’, the service enables couples who want to manage their separation together to seek joint legal advice, rather than separate advice, therefore approaching their divorce in as constructive a way as possible, making jointly agreed arrangements for finances and children based on their shared interests.

This keeps costs down, and aims to steer couples away from the adversarial approach, that so often ends up with contested court proceedings.

Walker Family Law offer the Resolution Together service. For more details, see this page.

The term ‘fathers’ rights’ crops up quite frequently in family law discussions, but exactly what ‘rights’ do fathers have, and how do they differ from the rights of a mother?

To answer the question, we must look at two matters: firstly, the issue of parental responsibility, and secondly the question of what arrangements should be made for the child to live with, or spend time with, each parent.

Before we look at the first of those matters, we should say something about the use of the word ‘rights’ in relation to children.

Despite the fact that, as we will see in a moment, the word ‘rights’ does appear in the legal definition of parental responsibility, judges do not in general like to use that term, preferring instead to talk in terms of a parent’s responsibilities towards their child. Parents do not really have ‘rights’ in respect of their children, but they certainly have responsibilities.

Parental Responsibility: What is it?

There is an awful lot of confusion and misunderstanding as to what the term ‘parental responsibility’ actually means.

The legal definition of parental responsibility is: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and [their] property.”

As will be noticed, the definition does not include any list of parental responsibilities. The reason for this is that it would be very difficult to provide a definitive list, particularly as ideas of what may be included are likely to change as society changes.

However, certain things are generally accepted to be included, such as choosing which school the child should attend, making decisions as to the child’s religious upbringing, and making decision regarding the child’s medical treatment.

Obviously, most fathers would want to have a say regarding such matters, and if they have parental responsibility then they will have a say (if a matter is not agreed with the mother then the court can be requested to decide it).

So how does a father acquire parental responsibility?

Parental Responsibility: How is it acquired?

This is the one area where the laws regarding the ‘rights’ of mothers and fathers differ. A mother will always automatically acquire parental responsibility for their child, but a father will not necessarily acquire it without taking certain action.

There are basically four ways in which a father can acquire parental responsibility:

1. Where the child’s father and mother were married to, or civil partners of, each other at the time of the child’s birth, then the father will automatically acquire parental responsibility for the child.

2. Where the child’s parents were not married and the father is named as the father on the child’s birth certificate then he will acquire parental responsibility for the child.

3. Where the child’s mother and father make an agreement (a “parental responsibility agreement”) providing for the father to have parental responsibility for the child.

4. Lastly, where the court, on the father’s application, orders that he shall have parental responsibility for the child. Here, it should be said that in the vast majority of cases the court will award the father parental responsibility. The law takes the view that it will usually be best for the child if both of their parents have parental responsibility, and therefore a father’s parental responsibility application will only be refused if there is a very good reason.

Having parental responsibility is unlikely to make any practical difference to a father from one day to the next. In most cases, the exercise of parental responsibility is only likely to happen on an occasional basis, when some particular matter arises in relation to the child’s upbringing.

But what will make a difference is the arrangements as to how much time the child spends with each parent. If the parents are unable to agree these arrangements then either of them can ask the court to decide the matter, by making a child arrangements order.

Child Arrangements Orders

The term ‘child arrangements order’ is defined to mean an order regulating arrangements relating to any of the following:

(a) With whom a child is to live, spend time or otherwise have contact, and

(b) When a child is to live, spend time or otherwise have contact with any person.

In many cases the order will cover two things: which parent the child should live with, and what contact the other parent should have with the child. However, it is quite possible for the order to state that the child should share its time with both parents, in which case there will be no ‘contact’ element of the order.

So how does the court decide what the child arrangements order should contain?

The first thing to note is that the child’s welfare is the court’s paramount consideration. In other words, whatever decision the court makes will be based upon what it considers to be best for the welfare of the child.

The second thing to note, and this can be of particular relevance to fathers, is that the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare. This does not mean, as is sometimes thought, that each parent is entitled to have the child spend an equal amount of time with them but simply that the child should usually spend time with both of their parents, unless there is a good reason why this should not be so.

And the last thing to note is that, when deciding upon what order to make, the court must have regard in particular to certain specific matters, set out in what is known as the ‘welfare checklist’. Those matters include the following:

1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus with an older child the court is likely to give greater weight to the child’s wishes, and with a teenaged child their wishes may determine the outcome of the case. But this will only apply if the court is happy that they are the child’s genuine wishes – if, for example, the court believes that the child is only saying what the mother has coached them to say, then what the child says may carry little or no weight. There have even been cases where the court has transferred the residence of a child from the mother to the father, following a finding that the mother has sought to alienate the child from the father.

2. The child’s physical, emotional and educational needs. If the child has any special needs then the capability of each parent to meet those needs will obviously be a greater factor – see paragraph 6 below.

3. The likely effect on the child of any change in their circumstances. This refers to the situation where the order is likely to change the child’s circumstances, for example by stating that the child should have contact with a parent for the first time, or after a long period with no contact. Obviously, therefore, if a father has been denied contact by the mother he should seek to have the contact re-established as quickly as possible.

4. The child’s age, sex, background and any characteristics which the court considers relevant. This does not mean, as is sometimes believed, that the court will automatically favour a mother with a very young child, or with a female child, just that the court should take into account these matters, if it considers that they are relevant.

5. Any harm which the child has suffered or is at risk of suffering. Obviously, if the court finds that the child has suffered, or is at risk of suffering, harm at the hands of one parent then this will be a major factor in its decision making. If one party alleges that the child has suffered harm due to the behaviour of the other party then the court will determine the truth of those allegations, usually at a ‘fact-finding’ hearing, before making its final decision. Thus, for example, if a father applies for contact with his child and the mother alleges that the she or the child has been abused by the father, then the court will investigate the mother’s allegations, and decide if they are true. If they are found to be true then the court may, for example, decide that the father should only have supervised contact with the child, or even only indirect contact, for example via email and telephone calls.

6. Lastly, how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.

It will be seen from all of the above that the law in relation to child arrangements orders does not differentiate between mothers and fathers. Both are treated equally. It may of course be that courts more often make orders that children should live with their mothers than with their fathers, but that is simply because it is more common for a court to find that the child’s welfare will be best served by living with their mother.

There is one more important thing to mention before we leave child arrangements orders, and that is that the orders must of course be obeyed. If, for example, a father has an order that he have contact with his child and the mother fails to obey the order then the father should ask the court to enforce the order. The court will normally take enforcement action, unless there are good reasons why the order has not been obeyed.

Fathers’ Rights: Summary

To summarise, most fathers will have exactly the same rights as mothers. The law does not differentiate – it treats mothers and fathers in exactly the same way.

As we have seen, the only difference, and in most cases it is no more than a technicality, relates to the way in which fathers acquire parental responsibility for their children.

But as we have also seen, most fathers will get parental responsibility, and that just leaves the matter of child arrangements, where there is no difference at all between the ways that the law treats each parent.

For more information about child arrangements orders, see this page.

Blended Families and the Law: Navigating Legal Issues with Stepchildren

Until relatively recent times the conventional idea of a ‘family’ was a mother, a father, and their children, all living together in one household.

But these days it is recognised that there are many different types of families apart from this ‘conventional’ type, such as lone-parent families, same-sex partnership families and, the subject of this post, blended families.

Blended families are a very significant family type. In 2022 the Children’s Commissioner stated that about 10% of families in the UK were blended families. The practical and legal issues that can arise with blended families are therefore of considerable importance.

In this post we will look at some of those issues.

But before we do so, we will first consider exactly what is meant by the term ‘blended family’.

What is a ‘blended family’?

As the name suggests, a ‘blended family’ is a blend of two families, where not all of the members of the family unit are linked by blood or personal relationship ties.

A blended family will begin with a lone-parent family, where the children live with just one of their parents, either because their parents never lived together, or because they separated.

Obviously, a lone parent may enter into a new relationship, and form a family with their new partner. We then have what is commonly known as a ‘stepfamily’, with the new partner being a step-parent to the children (who we will call the ‘stepchildren’).

But what if the parent and their new partner then have children of their own? Then we have a blended family: a combination of a stepfamily and a ‘conventional’ family’.

The Cambridge Dictionary defines a blended family as “a family that consists of two adults, the child or children that they have had together, and one or more children that they have had with previous partners”.

It should be noted that the definition does not require that the two adults be married to one another – they just have to be partners.

Having established exactly what a blended family is, we will now look at the issues that can arise with them, beginning with the practical issues.

Practical issues

It is not difficult to imagine that a blended family can bring with it certain practical issues not experienced by a ‘conventional’ family.

Perhaps the most obvious issue is the difficulty that the step-children may have in coming to terms with the fact that they now have siblings who do not share both of their parents. Whilst many children will have no problem adapting to this new circumstance, careful consideration should be given to how both the natural parent with whom the children are living and the step-parent handle the situation, particularly when the step-children are older, but not yet old enough to fully understand.

Another possible issue is the risk of cutting out the other natural parent from the lives of the step-children. It may be tempting to take the view that the blended family is now a ‘complete’ family unit, but the role of the other natural parent must never be forgotten. And if the natural parent and the stepparent decide to marry, it should be made clear to the stepchildren that in doing so they are not intending to cut the other natural parent out of their lives.

And by the same token the step-children may increasingly want to spend their time with their new siblings, especially as they get older, rather than spend time with the other natural parent. Both the natural parent and the step-parent should be alert to this and make sure, for example, that the stepchildren do not miss out on special activities with their siblings, whilst they are having contact with their other natural parent.

Having said that, the other natural parent should be alert to the possibility that their children want to spend more time with their new siblings, and take this into account with future living and contact arrangements.

There are, of course, other practical issues that can arise with blended families, but hopefully these examples will give a flavour of what all three of the adults involved can expect.

These practical issues can, of course, give rise to legal issues, in particular regarding arrangements between the natural parents regarding the time that the children should spend with each of them. Hopefully, the natural parents will be able to sort out arrangements by agreement between themselves, but if they cannot then it may be necessary for one of them to ask the court to resolve the matter.

We will now move on to the other legal issues that can arise with blended families.

Rights and responsibilities of step-parents

Parental responsibility comprises “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”. This will include such matters as making decisions concerning the child’s schooling and medical treatment.

A step-parent will not automatically acquire parental responsibility for the stepchildren, even if they marry the natural parent, and will not therefore be able to have an input in the making of such decisions.

Parental responsibility will normally be shared by the mother and the father. The mother will have acquired it automatically when the child was born, and the father will have acquired it if he was married to the mother, or if he obtained it by agreement with the mother, or via a court order.

Not having parental responsibility for the stepchildren will not normally be an issue for the step-parent, as there are very few occasions in the lives of most children when important decisions arise requiring the exercise of parental responsibility, and most step-parents will simply leave decisions such as what school the stepchild should attend to the natural parents.

But there could be times when it would be beneficial for a step-parent to have parental responsibility for a stepchild, for example when the child is in the sole care of the step-parent and needs emergency medical treatment – there may simply not be time for the step-parent to consult the natural parents.

It is, in fact, possible for a step-parent to acquire parental responsibility for a stepchild, and there are two main ways of doing this.

Firstly, if the mother and the father (assuming he has parental responsibility) agree, then they and the step-parent may enter into a parental responsibility agreement, so that the step-parent will share parental responsibility with them.

Secondly, the step-parent may apply to the court for an order granting them parental responsibility. The court will make the order if it considers that that would be best for the welfare of the child.

But sometimes the step-parent will want to have a much fuller legal relationship with the stepchild, especially in cases where the child has no relationship with the other natural parent. In such circumstances the step-parent can seek to adopt the child.

Step-parent adoption

A step-parent adoption, or ‘partner adoption’ as it is sometimes called, has the effect of making the step-parent the legal parent of the child, and ends the legal relationship between the child and the other natural parent.

A step-parent adoption is actually made jointly by the natural parent with whom the child is living and the step-parent. The application can only be made if the child has been living with both of them at all times during the period of six months preceding the application.

The court will only be able to make the adoption order if the other natural parent consents, or if the court dispenses with their consent.

The court can only dispense with their consent if they cannot be found, they are incapable of giving consent, or the welfare of the child requires their consent to be dispensed with.

In many step-parent adoptions the other natural parent, most commonly the father, cannot be found, in some other cases they will be incapable of consenting, and in some cases they will give their consent.

But sometimes they will oppose the making of the adoption order, in which case an adoption order will only be made of the court considers that it is in the best interests of the child to dispense with their consent.

Inheritance issues

Inheritance issues can arise in blended family situations. These issues can be quite complex, so we will only deal with them very briefly here.

Perhaps the most important point to understand is that if the step-parent does not make a will then the stepchildren will receive no part of their estate. The intestacy rules apply to estates where there is no will, and whilst natural children may inherit under the rules, step-children will not.

It is possible for a stepchild who has not been provided for by their step-parent to make a claim against the step-parent’s estate, but obviously this scenario should be avoided if possible.

Accordingly, if a step-parent wishes to leave all or part of their estate to their stepchildren then they will have to make a will providing for this.

Changing the child’s name

The last legal issue that we will discuss is in relation to the stepchild’s surname.

Obviously, the stepchild will likely have a different surname from the step-parent. And, if the step-parent is the father of any child born to the stepfamily then it is likely that that child will be given his surname, with the result that the children in the blended family will have two different surnames.

It is not unusual that the parents in the blended family will wish to ‘rectify’ this situation, by changing the surname of the stepchild to that of the stepparent.

However, they can only do so with the agreement of the other natural parent, or an order of the court.

The court may agree to make such an order, if it considers that it would be best for the welfare of the child.

However, the courts nowadays do not consider it as important as it once was that all children in a family share the same surname, and the increase in blended families is part of the reason for that. Indeed, in 2016 the Court of Appeal commented that “the increase in blended families means that it is … no longer the universal norm for a family living together all to share the same surname”.

Accordingly, the court may be reluctant to agree to the name change.

Getting help

As will be seen, blended families can raise various legal and practical issues, some of which may entail recourse to the Family Court. If any of the legal issues apply to you then you should ask an expert family lawyer to help you navigate your way through them. To speak to one of our specialist family lawyers, complete the form on this page.

The Impact of Domestic Abuse Allegations on Divorce and Child Arrangements

It is sadly the case that domestic abuse allegations are often raised in the course of family court proceedings.

A victim of abuse can ask the court to grant them protection from the abuse, for example by applying for an order restraining the abuser from molesting them (a ‘non-molestation order’), or for an order requiring the abuser to leave the matrimonial home (an ‘occupation order’).

Such applications are normally dealt with by the court on their own, but domestic abuse can of course be raised in connection with other issues between the parties, such as the divorce (in relation to sorting out divorce finances), and arrangements for any children.

But how exactly do domestic abuse allegations impact upon these issues?

Before we answer the question we first need to look at exactly what ‘domestic abuse’ means, particularly as the term is often mistakenly believed to refer only to physical violence.

What is domestic abuse?

The term ‘domestic abuse’ refers to much more than just physical violence.

The legal definition of domestic abuse says that behaviour of one person towards another is domestic abuse if the two people are each over 16 and are personally connected to each other (e.g. married or in a personal relationship), and the behaviour is abusive.

The definition goes on to state that behaviour is abusive if it consists of any of the following:

(a) Physical or sexual abuse;

(b) Violent or threatening behaviour;

(c) Controlling or coercive behaviour;

(d) Economic abuse (see below); or

(e) Psychological, emotional or other abuse.

Note that it does not matter whether the behaviour consists of a single incident, or a course of conduct.

“Economic abuse” is defined to mean any behaviour that has a substantial adverse effect on the victim’s ability to:

(a) Acquire, use or maintain money or other property, or

(b) Obtain goods or services.

As will be seen, the definition covers a far wider range of abusive behaviours than just physical violence.

And this is very important to know, as often a victim will not realise that their partner’s behaviour amounts to domestic abuse, and will not therefore seek the legal protections to which they are entitled.

So, now that we know exactly what domestic abuse is, we can look at how allegations of abuse can impact upon divorce and child arrangements. We will begin with divorce, although we will first look at a matter that can arise in any kind of family court proceedings where allegations of domestic abuse have been made.

Participation directions

Obviously, a party who has been a victim of domestic abuse can be in a very vulnerable position if they have to face their abuser in court.

Accordingly, the court rules provide special protections for abuse victims, and other vulnerable parties, known as ‘participation directions’

The rules impose a duty upon the court to consider whether a party is vulnerable, and whether it needs to give directions to protect them.

The directions can include such things as having a screen in court to prevent the parties from seeing each other, allowing the vulnerable party to participate in hearings via a live link, and providing for the vulnerable party to participate in proceedings with the assistance of an intermediary.

In addition to these directions, the law states that in family proceedings where one party adduces evidence that they have been a victim of domestic abuse at the hands of the other party, then the other party may not cross-examine the victim in person. And if the alleged abuser does not have a lawyer then the court may appoint a qualified legal representative to conduct the cross-examination in place of the alleged abuser.

We will now look specifically at the impact of domestic abuse allegations on divorce, and financial remedy proceedings connected to the divorce.

Domestic abuse and divorce

The first thing to make clear is that domestic abuse allegations will have no impact upon the legal process of the divorce itself. The behaviour of one party is no longer relevant to divorce proceedings – all that is required to apply for a divorce is a statement that the marriage has irretrievably broken down – the court is not concerned as to why it broke down.

But what of divorce finances (‘financial remedies’)? Can domestic abuse allegations have an impact upon the financial settlement?

The answer is that they can, at least in theory.

When a court considers what financial orders to make on divorce it is required to consider a number of factors, such as the parties’ income, their capital, their needs and their ages.

One of the factors is the conduct of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.

But the law states that conduct will only have a bearing upon the settlement if it is particularly serious. In order to have a bearing it must be “both obvious and gross, so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice.”

What this means in practice is that the conduct must be considerably more serious than the type of conduct that may occur in many divorces. Accordingly, cases in which conduct has a bearing upon the divorce settlement are very rare.

In the circumstances domestic abuse allegations, if proved, could amount to conduct that it would be inequitable for the court to disregard, but the abuse would have to be of a particularly serious nature.

There is however another, indirect, way in which domestic abuse could affect a financial settlement on divorce.

If the abuse has had an effect upon the victim’s financial circumstances having, for example, restricted them from following a career, or been economic abuse (see above), then the victim may be in a worse financial position than they would have been if the abuse had not occurred, and the court may therefore award them a more generous settlement as a result.

We will now finally move on to consider the impact of domestic abuse allegations on proceedings between parents concerning the arrangements for their children.

Domestic abuse and child arrangements

Domestic abuse allegations are unfortunately a common factor in court proceedings between parents concerning the arrangements for their children. It is not at all unusual, for example, for one parent to apply to the court for an order that they have contact with the children, only for the other party to raise allegations of domestic abuse against them.

Clearly, the court will want to know the truth of the allegations.

When a court considers what child arrangements order to make, if any, it must in particular consider a number of relevant matters, set out in what is known as the ‘welfare checklist’. One of those factors, and obviously a very important one, is any harm which the child has suffered, or is at risk of suffering.

If the child has been a victim of the abuse, or has witnessed the abuse, then clearly they will have suffered harm as a result. In fact, it is recognised that merely living in the same home where abuse has taken place is likely to have harmed the child. And if abuse has occurred then there is obviously a risk that the child will suffer harm in the future.

Domestic abuse can therefore have a direct impact upon what kind of child arrangements order, if any, the court will make (we will see an example of exactly how in a moment), and therefore it is imperative that the court first decides whether any abuse allegations are true, before deciding what order to make.

The way in which the court goes about ascertaining the truth of abuse allegations is a matter for the court to decide, but often it will fix a specific hearing for the purpose of considering the allegations. Such a hearing is known as a ‘fact-finding hearing’.

At the fact-finding hearing the court will consider each of the allegations of domestic abuse, hear the evidence of both parties, and decide whether each of the allegations are true. Obviously, it may decide that some of the allegations are true, that they are all true, or that none of them are true. Whatever the findings are, they will be taken into account at any final hearing, when the court decides what child arrangements order, if any, it should make.

We will end by looking at a recent case which demonstrated how findings of domestic abuse may affect what child arrangements order a court makes.

The case related to proceedings between the parents over arrangements for their daughter, who was born in 2020. The parents separated in 2022 and child arrangements proceedings took place. Within the proceedings the father wanted the child, who was then living with the mother, to spend half of her time with him.

The mother made various allegations of domestic abuse against the father, and the court fixed a fact-finding hearing, to determine the truth of the allegations. At the hearing the court found the mother’s allegations to be proved. The father had subjected the mother to physical abuse, emotional abuse, psychological abuse, and coercive control, had subjected the child to emotional abuse, and had exposed the child to his abuse of the mother.

In the light of these findings the court was not prepared to allow the father to have any direct contact with the child. The only contact that he could have was indirect, by way of emails, letters, cards, photographs or presents. In addition, and in order to prevent the father from subjecting the mother and the child to coercive and controlling behaviour in relation to the exercise of parental responsibility, the court ordered that the mother could make all decisions about the child’s education and healthcare without the need for input and consent from the father.

Clearly, allegations of domestic abuse can have a very serious impact upon arrangements for children. Accordingly, if you are involved in child arrangements proceedings involving allegations of domestic abuse it is essential that you seek expert legal advice, at the earliest opportunity. If you or someone you care about is being affected by domestic abuse, please reach out.