Welcome to your comprehensive revision guide for UK Family Law. This guide is designed for law students, particularly those preparing for the SQE, to navigate the complex and evolving landscape of family legislation and case law. We will cover the core topics, including marriage and civil partnerships, divorce, financial remedies, children law, adoption, and domestic abuse.
Marriage and Civil Partnerships
The legal framework governing relationships in the UK has undergone significant transformation. Initially, marriage was defined in common law as the union between one man and one woman, as established in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130. The biological basis of sex for marriage was further reinforced in Corbett v Corbett (Otherwise Ashley) [1971] P 83, which held that a person's legal sex was determined at birth.
Key Legislative Changes
The Civil Partnership Act 2004 was a landmark statute, creating a formal legal relationship for same-sex couples with rights and responsibilities akin to marriage. Subsequently, the Marriage (Same Sex Couples) Act 2013 legalised same-sex marriage in England and Wales. For a time, this created an imbalance, as opposite-sex couples could only marry, while same-sex couples could choose between marriage and civil partnership. This inequality was addressed following the Supreme Court's decision in R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32, which led to the extension of civil partnerships to opposite-sex couples.
Divorce and Dissolution
The process of ending a marriage or civil partnership has been radically simplified by recent reforms aimed at reducing conflict.
The Old vs. New Law
Previously, under the Matrimonial Causes Act 1973, a divorce required the petitioner to prove one of five "facts" to establish the irretrievable breakdown of the marriage: adultery, unreasonable behaviour, desertion, two years' separation with consent, or five years' separation. This fault-based system often led to acrimony, as highlighted in the widely publicised case of Owens v Owens [2018] UKSC 41, where a wife was unable to divorce her husband despite the court acknowledging the marriage was loveless.
The Divorce, Dissolution and Separation Act 2020 introduced the concept of "no-fault" divorce. Now, a couple can obtain a divorce simply by stating that the marriage has irretrievably broken down, without assigning blame. This new process involves a 20-week reflection period from the start of proceedings to the conditional order, and a further 6-week period before the final order can be granted.
💡 Key Takeaway
The move to a "no-fault" divorce system under the 2020 Act is the most significant reform in divorce law for 50 years. It aims to make separation less confrontational, which is particularly important when children are involved.
Financial Remedies
Upon divorce or dissolution, the court has wide-ranging powers to redistribute assets and income. The statutory framework is found in the Matrimonial Causes Act 1973, specifically the section 25 factors, which the court must consider.
The Section 25 Factors and Key Principles
The court's primary consideration is the welfare of any children of the family. The section 25 checklist includes factors such as the parties' income, earning capacity, property, financial needs, obligations, and standard of living. The overarching goal is to achieve a fair outcome.
The landmark case of White v White [2000] UKHL 54 established the "yardstick of equality" as a check against discrimination between the money-earner and the homemaker. Lord Nicholls stated that in the absence of good reason to the contrary, the division of assets should be equal.
This principle was further developed in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, which introduced three strands of fairness: needs, compensation, and sharing. The "sharing principle" applies to all matrimonial property, but the court may depart from equality for reasons such as "special contribution" as seen in Charman v Charman (No 4) [2007] EWCA Civ 503, or the existence of non-matrimonial property.
Pre-nuptial agreements are not automatically binding in England and Wales, but the Supreme Court in Radmacher v Granatino [2010] UKSC 42 held 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.
Types of Financial Orders
| Order Type | Description | Key Case Example |
|---|---|---|
| Lump Sum Order | A one-off payment of capital from one party to another. | Duxbury v Duxbury [1987] 1 FLR 7 (calculation for self-sufficiency) |
| Property Adjustment Order | An order transferring property from one party to another, or ordering its sale. | Mesher v Mesher and Hall [1980] 1 All ER 126 (order to postpone sale until a child reaches a certain age) |
| Periodical Payments (Maintenance) | Regular payments from one party to the other, for a specified term or for life. | SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) (guidance on duration and quantum) |
| Pension Sharing Order | An order to split a pension fund between the parties. | Martin-Dye v Martin-Dye [2006] EWCA Civ 681 (approach to pension sharing) |
📝 Exam Tip
When answering a problem question on financial remedies, always start with the s.25 factors of the Matrimonial Causes Act 1973. Then, apply the principles from White and Miller/McFarlane to structure your analysis around needs, sharing, and compensation.
Children Law
The cornerstone of modern children law is the Children Act 1989. Its paramount principle, found in section 1, is that the child's welfare shall be the court's primary consideration. This is known as the "welfare principle."
The Welfare Checklist and Parental Responsibility
Section 1(3) of the Act provides the "welfare checklist" that the court must consider when making decisions about a child's upbringing. This includes the child's ascertainable wishes and feelings, their physical, emotional, and educational needs, and the likely effect of any change in circumstances.
Parental Responsibility (PR) is defined in section 3(1) as "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." A mother automatically has PR. A father has PR if he is married to the mother at the time of birth or is named on the birth certificate (after 2003). An unmarried father not on the birth certificate can acquire PR by agreement with the mother or by court order.
💡 Key Takeaway
A key principle in the Children Act 1989 is the 'no order' principle (s.1(5)). The court should not make an order unless it is satisfied that doing so would be better for the child than making no order at all. This encourages parents to reach agreements themselves.
Section 8 Orders
These are the main orders a court can make in private law proceedings concerning children.
| Section 8 Order | Description |
|---|---|
| Child Arrangements Order | Regulates with whom a child is to live, spend time, or otherwise have contact. Replaced "residence" and "contact" orders. |
| Prohibited Steps Order | Prevents a parent from taking a specific action without the court's consent (e.g., changing a child's surname or moving abroad). See Re W (A Child) (Illegitimate Child: Change of Surname) [2000] 2 FCR 529. |
| Specific Issue Order | Gives directions for the purpose of determining a specific question that has arisen (e.g., which school a child should attend). See Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233. |
The House of Lords in J v C [1970] AC 668 confirmed that the welfare of the child is the paramount consideration, overriding all other factors, including the claims and wishes of parents.
Public vs. Private Children Law
It is crucial to distinguish between private and public children law. Private law concerns disputes between private individuals, usually parents. Public law involves state intervention, where a local authority has concerns about a child's welfare. Key public law orders under the Children Act 1989 include Care Orders and Supervision Orders, which are only made if the s.31 "threshold criteria" are met, meaning the child is suffering or is at risk of suffering significant harm.
Adoption
Adoption is the legal process that permanently severs the legal ties between a child and their birth parents, creating a new legal relationship with the adoptive parents. The primary legislation is the Adoption and Children Act 2002.
The welfare of the child throughout their life is the paramount consideration for the court (s.1 ACA 2002). An adoption order can only be made if the parents consent, or if the court dispenses with their consent. The grounds for dispensing with consent are that the parent cannot be found or is incapable of giving consent, or that the welfare of the child requires consent to be dispensed with. The Supreme Court case of Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 emphasised that adoption is a measure of last resort and should only be made when "nothing else will do."
Domestic Abuse
The law provides protection for victims of domestic abuse through both civil and criminal law. The key civil remedies are found in the Family Law Act 1996.
Non-Molestation and Occupation Orders
A Non-Molestation Order prohibits a person from molesting another person. "Molestation" is not defined in the Act but has been interpreted broadly by the courts to include harassment, pestering, and violence (Horner v Horner [1982] Fam 90). A breach of a non-molestation order is a criminal offence.
An Occupation Order regulates who can live in the family home. It can, for example, exclude the abuser from the home and the surrounding area. When deciding whether to grant an occupation order, the court must apply the "balance of harm" test, considering the harm to the applicant and any relevant child if the order is not made, versus the harm to the respondent if it is made. Key cases include Chalmers v Johns [1999] 1 FLR 392 and G v G (Occupation Order: Conduct) [2000] 2 FLR 36.
⚠️ Common Mistake
Students often confuse the tests for Non-Molestation and Occupation Orders. Remember that a Non-Molestation Order focuses on prohibiting behaviour, while an Occupation Order deals with the right to occupy the home and involves the more complex "balance of harm" test.
FAQ Section
What is the difference between a civil partnership and marriage?
Since the law was changed, there are very few legal differences between a civil partnership and a marriage. Both provide the same rights and responsibilities regarding tax, inheritance, and financial settlement on separation. The main difference is historical and cultural; marriage is formed by vows, while a civil partnership is formed by signing a register.
Can I get a divorce if we have only been married for 6 months?
No. Under section 3 of the Matrimonial Causes Act 1973, you cannot present a divorce application to the court until you have been married for at least one year.
Is a "common law marriage" recognised in the UK?
No. This is a common myth. There is no such thing as a "common law marriage" in England and Wales. Cohabiting couples do not have the same legal rights as married couples or civil partners upon separation. Their property rights are determined by complex trust and land law principles, as seen in cases like Stack v Dowden [2007] UKHL 17 and _Jones v Kernott_ [2011] UKSC 53.
What happens if my ex-partner stops paying child maintenance?
If you have a private arrangement, you may need to apply to the Child Maintenance Service (CMS). If you have a court order for child maintenance, you can apply to the court to enforce it. The court has various powers, including ordering the sale of assets or attaching earnings.
How does the court decide where a child lives?
The court's only consideration is the child's welfare. It will use the welfare checklist in the Children Act 1989 to guide its decision. The court presumes that involvement of both parents in a child's life is beneficial, but this is just one factor among many. The final decision will be based on the specific facts of the case, as in Payne v Payne [2001] EWCA Civ 166 on relocation cases.