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Glossary Of Terms Used In Family Law

Acknowledgment of service

This is the formal document by which a Court application is acknowledged by a respondent to say that they have received it.

Additional state pension

A top-up state pension designed to supplement the basic state pension. Employees contributed to the additional state pension through payment of class 1 National Insurance contributions (NICs). Originally known as the state earnings-related pension (SERPS) , the additional state pension was reformed in 2002 when the state second pension (S2P) was created. Since the new state pension came into effect on 6 April 2016, employees can no longer accrue any further entitlement to the additional state pension, but those who reached their state pension age before 6 April 2016 will continue to receive pension payments for the remainder of their lives.

Adoption

The legal process by which individuals become a child’s parents, assuming full legal and parental responsibility for the child, despite not being his natural parents.

Adultery

One of the five “facts” in divorce proceedings to prove irretrievable breakdown of a marriage. It involves the voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married. Adultery can only be committed between people of the opposite sex.

Answer

A formal pleading in divorce or dissolution proceedings filed by the Respondent in which he will set out his response to the allegations in the petition and giving reasons why the petition should be rejected.

By filing an Answer the proceedings become defended or contested and a hearing before a judge may be required to determine whether or not the divorce or dissolution should proceed based on the petition presented. Commonly an Answer is filed together with a cross-petition so that the Respondent whilst objecting to or denying the allegations in the petition is of the same view that the marriage of civil partnership is at an end and so invites the court to make an order for divorce or dissolution on the basis of the ground and supporting fact or facts set out in the cross-petition.

Ante-nuptial agreement

See pre-nuptial agreement.

Applicant

A person who starts legal proceedings and. This person then becomes “a party” to the proceedings. Where the application is a petition for divorce, they are referred to as the Petitioner. Once papers are sent to the other person(s) involved or their lawyer, they are referred to as the Respondent (to the application).

Application for a civil partnership order

See petition for the dissolution of a civil partnership.

Arbitrator

An arbitrator is an independent third party who reviews the evidence in the case or a defined issue within the case, and gives a decision that is legally binding on both sides and enforceable in the courts.

Avoidance of disposition order

An order preventing the disposal (whether by gift, sale, lease, charge or otherwise) of assets in circumstances where it is believed that a person may be attempting to do so in order to deprive another of the asset or to remove the assets from the courts’ jurisdiction.

Orders are commonly made under the Matrimonial Causes Act 1973, s 37. These are injunctions to prevent assets being removed or dissipated to defeat a potential claim in respect of such assets.

Bankruptcy order

An order that a court may issue against someone if they cannot pay their debts when they are due. This order takes ownership of the debtor’s property away from the debtor and allows much of the property to be sold. The money raised is divided between the creditors following strict rules.

Barrister

This is a lawyer who spends most of their time arguing cases in court. Barristers also use that experience and knowledge to work with solicitors in advising on possible outcomes. Also known as counsel.

Beneficial ownership

Equitable (as opposed to legal) ownership.

Whilst the legal title may be held in the name of another, the actual owner might not be apparent on the face of the title documents. They would not have legal title but would still have absolute ownership by way of being beneficially entitled.

Bigamy

The offence of marrying while already being married to someone else.

CAFCASS officer

CAFCASS stands for the Children and Family Court Advisory and Support Service. CAFCASS officers are also known as a family court reporter, reporting officer, court welfare officer or a welfare officer. The role of a CAFCASS officer is to investigate and report to the court on issues concerning the welfare of children when there are contested Court proceedings for a child arrangements order. They make a professional assessment of the child’s welfare, sometimes with the assistance of other experts.

Capitalisation

This term has different meanings depending on the context in which it is used:

In the context of family, a method of working out a lump sum to provide for income requirements in lieu of spousal maintenance. It is calculated by reference to a range of financial and actuarial assumptions to provide a stream of income to replace maintenance payments for the rest of the recipient’s life.

Care order

A court order made under section 31 of the Children Act 1989 that places a child in the care of the local authority (LA). The LA will have share parental responsibility for the child with the child’s parents under the order.

Care plan

A local authority compiled document for a care order application. The care plan sets out in detail how the child will be cared for including:

Who the child will live with.

Who the child will have contact with.

What practical, medical or other support the child will have.

The care plan must be approved by the judge before a care order can be made. It is reviewed in looked after child reviews.

CETV

Cash Equivalent Transfer Value in relation to a pension.

The value of the pension fund that could be transferred to another pension scheme at the election of the policy holder or pursuant to an order of the court.

CETV can also be known as: Cash Equivalent Transfer Value

Charge on Property

This can be used as a means of security if one spouse is waiting for the payment of a lump sum from the delayed sale of a property. It works like an extra mortgage, but without interest being paid, and is usually expressed as a percentage of the value of the property. It gives the holder of the charge security because they know that they will be paid out of the proceeds of the eventual sale.

Chattels

Legal term for personal effects, usually personal possessions or house contents.

Child Maintenance Options

A national service that provides free and impartial information and support services to enable parents to make informed choices about different types of child maintenance arrangements.

Child Maintenance Service (CMS)

A government body set up to take responsibility for administering the 2012 new gross income statutory child maintenance scheme. The CMS began accepting a limited intake of new cases under the gross income scheme, where the paying and receiving parent have four or more children together, from 10 December 2012. The phased introduction of the CMS and gross income scheme continued until 25 November 2013. From this date, the CMS became fully operational and began accepting all new applications for statutory child maintenance.

The CMS will replace the Child Support Agency entirely on 31 December 2017, when all existing cases determined under the original and net income schemes will be transferred to the new gross income scheme and the CMS. The transition of these existing cases began on 30 June 2014.

Child Support Agency (CSA)

A delivery body of the Department for Work and Pensions (Child Maintenance Group) in Great Britain and the Department for Social Development in Northern Ireland, following the abolition of the Child Maintenance and Enforcement Commission (CMEC) in 2012. Launched on 5 April 1993, the CSA is responsible for implementing the Child Support Act 1991 and subsequent legislation. It currently administers the 1993 original and 2003 net income statutory child maintenance schemes. The CSA will be replaced by the Child Maintenance Service (CMS) on 31 December 2017, when these existing cases will be transferred to the gross income scheme. The CSA is part of the statutory child maintenance services.

Child abduction

The removal or retention of a child across an international border by a parent or other person that is either in contravention of a court order or is without the consent of the other parent or person(s) who have parental responsibility for the child.

Child arrangements orders

Orders made under section 8 of the Children Act 1989.

Child arrangements orders regulate any of the following:

With whom a child is to live, spend time or otherwise have contact.

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

Child arrangements orders replaced residence orders and contact orders on 22 April 2014.

Child maintenance

Also known as child periodical payments. Regular payments made by a non-resident parent to the person or parent with care of the child to meet the day-to-day living expenses of a child following marriage, civil partnership or relationship breakdown. Child maintenance payments can be agreed between the parents, calculated by the Child Maintenance Service (CMS) or ordered by the court in certain circumstances or where the CSA does not have jurisdiction.

Child of the family

A child who is:

A child of both of the parties of a marriage or civil partnership.

Any other child (but not a child placed with the parties as foster parents by a local authority or voluntary organisation) who has been treated by the parties of a marriage or civil partnership as a child of their family.

Child periodical payments

See child maintenance.

Child protection conference

A conference called by the local authority following investigation of the child’s circumstances. The conference brings together the family members, professionals involved with the child and family and the child (where appropriate). Its purpose is to:

Bring together and analyse, in an inter-agency setting, the information that has been obtained about the child’s developmental needs and the parents’ or carers’ capacity to meet those needs to promote the child’s health and development.

Consider the evidence presented to the conference, make judgments about the likelihood of a child suffering significant harm in the future and decide whether the child is at continuing risk of significant harm.

Draw up a child protection plan detailing what future action is required to safeguard the child from future harm.

Child protection register

A list that local authorities would maintain of all the children who were subject to child protection procedures with a child protection plan (although no longer used). Known more commonly at the time as the CPR, the list recorded the type of significant harm that the child was suffering or likely to suffer. The decision whether a child’s name would be placed on the CPR was made at a child protection conference.

Child support

Regular payments made by a non-resident parent to the person or parent with care to meet the day-to-day living expenses of a child of the family following marriage or relationship breakdown. Unlike child maintenance payments, child support is assessed by applying a statutory formula and is administered by a government agency, rather than the court.

Children’s guardian

Experienced social worker employed by the Children and Family Court Advisory and Support Service. They are appointed by the court to act as an independent advocate for a child in children proceedings and provide the court with an independent opinion on what is in the child’s best interests in relation to care and contact arrangements and other issues as required.

Chronology

A document setting out significant dates that relate to a marriage or civil partnership, to assist the judge at a First Appointment (FA). It is prepared by each applicant and respondent in proceedings for a financial remedy.

Civil partner

An individual who has entered into a civil partnership under the Civil Partnership Act 2004. Only same-sex couples can enter into a civil partnership.

With effect from 13 March 2013, it is also lawful for same-sex couples to marry (section 1, Marriage (Same Sex Couples) Act 2013.

Civil partnership

A legal status acquired by same-sex couples who register as civil partners of each other under the Civil Partnership Act 2004, providing them with similar legal rights to married couples.

Civil partnership agreement

An agreement entered into by a couple before or during their civil partnership that seeks to do one or both of the following:

Regulate the couple’s financial affairs during the relationship.

Determine how their assets should be divided in the event of dissolution or separation.

An agreement entered into before a civil partnership is formed is usually referred to as a pre-civil partnership agreement or a pre-registration agreement 5005) . An agreement entered into during a civil partnership is usually referred to as a post-civil partnership agreement or a post-registration agreement.

Civil partnership proceedings

Also known as dissolution proceedings. Proceedings to end a civil partnership.

Clean break

An arrangement of a couple’s finances that allows the parties to separate without any further financial responsibility for each other. The court has a statutory duty to consider if a clean break is appropriate under section 25A of the Matrimonial Causes Act 1973.

Co-respondent

A person named in a divorce or dissolution petition because he has committed adultery or has had an improper association with the respondent to the petition. It is unusual to name the co-respondent and is considered aggressive and unnecessary.

Cohabitation

A living arrangement whereby a couple who is not married or a couple who is in a civil partnership live together in the same household. The term can apply to opposite sex or same-sex couples. The law gives cohabiting couples fewer rights on separation or death than for civil partners or married couples. At present there is no specific legal definition of what amounts to cohabitation.

Collaborative law

A form of family Alternative Dispute Resolution (ADR) where specially trained lawyers acting for each party resolve family law disputes through a series of four-way meetings attended by the parties and their respective collaboratively trained lawyers. If either party later begins proceedings both must then instruct new lawyers.

Concise statement of issues

Also known as a statement of issues. A document that describes the principal issues between the parties, to assist the judge at a First Appointment ( www.practicallaw.com/2-535-3359) (FA). It is prepared by each applicant and respondent in proceedings for a financial remedy ( www.practicallaw.com/5-535-3433) .

Consent order

A judge-approved order confirming an agreement between the parties. The agreement is legally binding and enforceable.

Constructive trust

A trust that arises by operation of law where it would be unconscionable for a person (A) who holds an asset to deny the beneficial interest of another person in the asset.

For example, a constructive trust may arise where:

A holds funds that he knows have been paid to him by mistake.

A holds an asset that he has obtained by means of fraud.

A and another person (B) share a common intention that B should have a beneficial interest in an asset, and B has acted to his detriment on the basis of that intention. This is known as a common intention constructive trust and is often argued in disputes about the ownership of property occupied by cohabitees, as in the leading cases of Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53.

Contact

Period of time spent by a child with a non-resident parent (NRP) or other named person.

Contact can be direct, that is, face to face, at varying frequencies and for varying periods of hours, days or weeks, including overnight.

Contact can be indirect, that is by: postal message, phone, e-mail, video, voice over Internet protocol, such as Skype.

Contact can be supervised by a named individual or local authority organisation, or may be unsupervised.

Contact centre

A centre often run by a charitable organisation, which provides a neutral and safe place for contact to take place between a child and a non-resident parents (NRP) or another named individual. They are usually only open for specific days in the month and many have waiting lists. If there are any anxieties about contact arrangements for the child, the court can order that contact will take place in a contact centre, usually as a short-term measure.

Contact order

An order made in private children law proceedings before 22 April 2014 requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.

Decree absolute

The final court order in divorce proceedings. It means the marriage is legally at an end, and the parties are free to remarry.

Decree nisi

The first court order in divorce proceedings. It confirms the petitioner has established that the marriage has irretrievably broken down and is entitled to obtain decree absolute to end the marriage.

Decree of judicial separation

A formal marital separation in which marital obligations come to an end. It has three main effects:

The parties are no longer obliged to live together.

The court can make many of the financial orders and children orders that can be made on divorce.

If either party dies intestate, his or her property devolves as if the other party to the marriage were dead. In contrast however to the position on divorce, wills are unaffected. If a party has made provision in a will leaving property to the other then they will benefit despite the judicial separation.

Decree of nullity

Declares a marriage is void or voidable. Unlike divorce, it is not necessary to have been married for one year to obtain a decree of nullity.

Deemed service

When a document or an application is legally treated as having been served on a person, irrespective of whether it actually arrived (Part 6, Family Procedure Rules 2010). If an application for deemed service of a divorce petition is successful, the judge will direct that the acknowledgment of service (shall be deemed to have been served by the respondent.

Desertion

One of the “facts” that can be used to prove the irretrievable breakdown of a marriage or civil partnership and therefore secure a decree of divorce or a dissolution order.

To establish desertion, the petitioner must show:

A separation.

An intention to desert by the respondent.

There was no consent to the separation by the petitioner.

There was no just cause for the respondent to leave.

The desertion is continuous.

The desertion immediately precedes the date the petition is filed in court.

Directions

These are instructions from the court setting out the steps the parties, their lawyers, or any experts should take before the next court hearing often specifying precise dates for compliance.

Disclosure

In financial remedy proceedings, the on-going duty to give full disclosure of all material facts, documents and information relevant to the issues. Form E is the principal document in which disclosure is provided.

Dissolution order

A court order that dissolves a civil partnership on the ground that it has broken down irretrievably (section 37 (1),Civil Partnership Act 2004). The Family Procedure Rules 2010 (FPR) refer to a civil partnership order rather than a dissolution order.

Dissolution petition

See petition for dissolution of a civil partnership.

Dissolution proceedings

See civil partnership proceedings.

Divorce petition

An application for the legal dissolution of a marriage. This is now known as an application for a matrimonial order in the Family Procedure Rules 2010 though most practitioners are still referring to the traditional terminology. There is now one standard petition (in Form D8 ) for divorce proceedings and this petition can be used for all five facts supporting the irretrievable breakdown of the marriage. There are no longer separate divorce petitions for separate facts.

Domestic violence

Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 years or over, who are or have been, intimate partners or family members regardless of gender or sexuality.

This can include the following types of abuse:

Psychological.

Physical.

Sexual.

Financial.

Emotional.

Controlling behaviour is a range of acts designed to make a person subordinate or dependent by:

Isolating them from sources of support.

Exploiting their resources and capacities for personal gain.

Depriving them of the means needed for independence, resistance and escape.

Regulating their everyday behaviour.

Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.

Domicile of choice

A domicile chosen by an individual over 16 years of age. It requires:

Residence in a country other than the domicile of origin.

An intention to remain in the country permanently or indefinitely.

Domicile of dependence

Unmarried children under 16 years of age cannot acquire a domicile of choice and instead acquire a domicile of dependence. This mirrors the father’s domicile if the parents are married or the mother’s domicile if the parents are unmarried or the (married) father has died. If married parents separate, the child acquires the domicile of the parent with whom he lives. If a child with married parents shares his time between the homes of birth parents, he retains the domicile of his father.

Domicile of origin

A person’s domicile at birth. If a child’s parents were married when he was born, it is the father’s domicile. If a child’s parents were unmarried, or his (married) father has died before his birth, it is his mother’s domicile. If a child’s parents marry following his birth, his domicile of origin will not change as legitimacy does not operate retrospectively.

Duress

Occurs when one party exerts improper pressure on another party and that party feels they have no choice but to enter into the agreement or transaction as a result. Duress makes the agreement voidable.

Duxbury fund

A lump sum payment intended to provide an income for a certain number of years, usually for the rest of a recipient’s life, based on predictions and approximations of:

life expectancy, inflation, capital growth, income yield. (Duxbury v Duxbury [1981] 1 FLR 7.)

Equity

Means the net value of a property after mortgages or other charges are paid off.

Edgar agreement

An agreement made when parties separate, in which they agree how their finances should be divided, as if there were a final divorce, with the intention that the terms will be binding on them if they later divorce.

It is likely the court will make an order in the terms agreed in any subsequent divorce proceedings if there has been disclosure, independent legal advice and no duress, misrepresentation, undue pressure, exploitation of a dominant position or unforeseen circumstances overlooked when the agreement was made or mistake.

Expert

Someone who has specific skills or knowledge in a particular field and may be instructed in a case to prepare or give expert evidence for the purpose of court proceedings.

Fact finding hearing

A hearing to establish specific important facts about a case (such as the causation of a child’s injuries or the identification of a perpetrator of those injuries in a care case). It takes place where the court agrees that those facts must be established at an early stage in the proceedings, to enable a final determination to be made more expeditiously. In care proceedings, the result of such a hearing may establish that the threshold criteria are not met and therefore the whole case will be dismissed. The listing of a fact finding hearing is discouraged by the courts (Re S (A child) [2014] EWCA Civ 25).

Family Law Protocol

A statement of best practice in family law matters published by the Law Society.

Family Procedure Rules (FPR)

The Family Procedure Rules 2010 (FPR) (previously Family Proceedings Rules 1991), govern the procedures used in family courts in England and Wales. The FPR were introduced by statutory instrument and are effective from 6 April 2011. The rules are split into 37 parts, together with the practice directions, certain pre-action protocols and a complete set of forms.

Family Proceedings

Business assigned to the Family Division of the High Court and to no other division by or under section 61 of (and Schedule 1 to) the Senior Courts Act 1981 (section 75(3), Courts Act 2003).

Family Proceedings Court

A magistrates’ court where a selected family panel of magistrates sit to hear a case based on family matters.

Family alternative dispute resolution (ADR)

Also known as non-court dispute resolution.

In a family law context, a term that refers to several different methods of dispute resolution, other than litigation, including:

Negotiation through lawyers.

Mediation.

Collaborative law.

Arbitration.

Family-based arrangement

A term used to describe an agreement made between separated parents for the payment of statutory child maintenance, paid by the non-resident parent (NRP) to the person with care (PWC).

FDA

Also known as First Directions Appointment. It’s the first court hearing in proceedings for a financial remedy. A judge decides what information each side should produce, gives directions and timetables the case.

FDR

Also known as a Financial Dispute Resolution appointment or FDR. The second court hearing in proceedings for a financial remedy. It is a without prejudice hearing, providing an opportunity for the parties to negotiate a final financial settlement with the input and assistance of a family judge. The judge will look at all information, including without prejudice offers made by each party, to assist the parties in reaching an agreement.

The judge cannot impose a decision on the parties, but can indicate what he would order at a final hearing. The judge who conducts the FDR can have no further role in the case if it proceeds to a final hearing, other than making directions at the FDR.

Final hearing

In proceedings, a judge will hear evidence and make a decision as to the appropriate outcome between the parties, if they are unable to reach agreement.

Final order

The final court order in the procedure for dissolution of a civil partnership. It means the civil partnership is legally at an end and the parties are free to enter into another civil partnership.

For the equivalent for marriage, see decree absolute.

Financial order

An order of a financial nature that a court may make in proceedings for: divorce, dissolution of civil partnership, nullity or judicial separation.

These include lump sum orders, property adjustment orders, property transfer orders, variation of trusts orders, periodical payments/maintenance and pension sharing orders.

Five-year separation

One of the “facts” or bases for getting a divorce, ie, the couple has lived apart for five years and no consent from the Respondent is necessary.

Form A

The application for a financial order when dealing with financial claims in divorce.

Form E

A financial statement signed by each party in advance of the First Directions Appointment (FDA) in proceedings for financial orders (or financial relief). It requires the parties to set out their financial circumstances in detail with supporting documents.

Form H

The costs estimate that must be produced by each party at every hearing or appointment in proceedings for a financial remedy.

Form H1

A statement giving full particulars of all costs in financial remedy proceedings that have been incurred or will be incurred. The statement must be filed and served by each party 14 days before the final hearing.

Form P

The pension inquiry form that the judge at the FDA may order a pension provider to complete. Form P requires the pension provider to give information about matters such as ill health and underfunding.

Former matrimonial home

The home that a married couple formerly occupied together, as their main home.

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Grave hardship

A defence that is only available to a respondent to a divorce or dissolution based on five years’ separation. The respondent can ask the court not to grant the divorce or dissolution on the grounds that:

It will result in grave financial or other hardship.

It would, in all the circumstances, be wrong to dissolve the marriage.

Guardian

In the context of family law, a person who has been appointed to care for a child where both parents or a person who holds parental responsibility by virtue of a child arrangements order or special guardianship order have died. This assignment of parental responsibility can happen through a parent’s will or by court order (section 5, Children Act 1989).

Habitual residence

The country in which a person has established the permanent or habitual centre of his interests. This is usually the country where the person lives or spends the majority of his time.

Heads of agreement

In a family law context, a document that sets out a settlement agreed between the parties in principle, in the course of negotiations at court. In proceedings for a financial remedy, heads of agreement should be shown to the judge who should be invited to approve them as an order of the court (subject only to drafting). Heads of agreement are evidence of consensus, that may be subject to a notice to show cause application if one party attempts to resile from them, but they do not have the same status as an order.

In private

In the context of litigation, legal proceedings that are not open to the public.

Injunction

An order of the court preventing or requiring action, often made in an emergency.

Interim Maintenance

See Maintenance Pending Suit.

Joint lives order

Periodical payments to a spouse or civil partner that are payable from no earlier than the date of the application until the:

Death of either the payee or payer.

Remarriage or formation of a civil partnership by the payee.

Joint tenancy

A form of joint ownership of property in which both parties share the title. If one party dies, the property will automatically pass to the other and the survivor will own the entire property (the “right of survivorship”).

Judicial separation

A legal separation sanctioned by the court, which enables the court to make orders about money and property but does not actually terminate the marriage.

Legal aid

Also known as public funding. This is state assistance with legal costs, available on a non-means tested basis to parents in public law care proceedings and in a limited range of other family cases (notably where domestic violence is an issue) to those on benefits or a low income.

Lifetime allowance

The total amount of pension saving by an individual within a registered pension scheme that receives favourable tax treatment. The lifetime allowance was introduced by the Finance Act 2004.

Lifetime annuity

An annuity is a lifetime annuity if it is payable by an insurance company to a member of a registered pension scheme until the member’s death or the end of a guaranteed period ending after the member’s death.

Litigant in person

A person acting on their own behalf in Court proceedings without assistance from a solicitor.

Litigation loan

A commercial loan from a bank or other institution to fund legal costs for parties going through litigation.

Lump sum

A financial provision order that can be made on divorce, nullity or judicial separation. The court can make an order that one party pay the other a lump sum or that one party pay the other a lump sum for the benefit of a child.

Lump sum orders are also one of the financial provision orders that can be made for the benefit of children under paragraph 1 of Schedule 1 to the Children Act 1989.

Maintenance

Also known as periodical payments comprises regular income payments to support a former spouse, civil partner, a child or dependant parent.

Maintenance Calculation

A calculation of child maintenance made under the Child Support Act 1991 that includes a default maintenance decision and an interim maintenance decision. This was formerly known as a maintenance assessment under the first statutory child maintenance scheme rules. It is the calculation of the non-resident parent’s (NRP) liability for maintenance under the statutory child maintenance scheme.

Maintenance pending suit (MPS)

Regular income to support a spouse after divorce proceedings start, that continues only until:

The divorce is finalised.

A final adjustment of finances is made between the parties.

Maintenance pending suit aims to maintain the financial status quo of the parties until financial proceedings are concluded between them.

Marital property

See matrimonial property below.

Martin order

A type of settlement of property order similar to a Mesher order. As with a Mesher order, there is a trust of land and the parties hold the property as tenants in common in defined shares. However, in a Martin order the resident party is given an entitlement to occupy the former matrimonial home for life or until re-marriage. It originated in an eponymous case, when the Court of Appeal postponed the husband’s interest from being realised until then, having found that he had no immediate need of a capital sum, and the wife would have had insufficient equity to rehouse herself had the matrimonial home been sold (Martin v Martin [1978] Fam 12).

Matrimonial home

The house that a married couple occupy together, as their main home.

Matrimonial order

Any one of the following:

Decree of divorce.

Decree of nullity.

Decree of judicial separation.

Matrimonial proceedings

Also known as divorce proceedings. Proceedings for ending a marriage or civil partnership.

Matrimonial property

Also known as marital property. Generally speaking, all property acquired by the parties after the marriage or civil partnership, unless it is non-matrimonial property. Non-matrimonial property is usually property inherited by a party or received by that party as a gift, as well as pre-marital property.

Mesher order

A type of settlement of property order in which a trust of land is created and the parties hold the property as tenants in common in defined shares. The power of sale is specifically deferred until after one of specified triggering events. It originated in an eponymous case, when the Court of Appeal permitted the wife to remain in the matrimonial home with one child until the child was aged 17 years or further order of the court (Mesher v Mesher and another [1980] 1 All ER 126).

Molestation

Behaviour by a person that harms, annoys or greatly troubles their children or spouse or partner or associated family member. The behaviour can include:

Physical violence.

Verbal threats.

Written threats.

Non-matrimonial property

Property that is unlikely to be shared between the parties on the breakdown of the marriage or civil partnership unless it is required to meet needs . Generally non-matrimonial property is:

Acquired by one party before the marriage.

Acquired by one party by gift.

Inherited by one party.

Non-molestation order

An order under the Family Law Act 1996 restraining a person from attacking or going near someone associated with them, or otherwise doing what the court has ordered him or her not to do. Any breach of such an order is of itself a criminal offence.

Non-nuptial settlement

A settlement that is not a nuptial settlement and is therefore not subject to the court’s discretionary powers to vary.

Non-resident parent (NRP)

A parent who does not have his or her child living with them. A parent is a non-resident parent (or absent parent) under the statutory child maintenance services , if both of the following apply:

The parent is not living in the same household as the child and

The child has his home with a person who is, in relation to him, a parent with care.

Nullity

A decree of nullity is a legal statement asserting that a marriage is not valid. This is available in circumstances where a marriage is void or voidable. Unlike divorce, it is not necessary to have been married for one year to obtain a decree of nullity. See below for void and voidable marriages.

Nuptial agreement

Also known as a marital property agreement.

An agreement made before or during a marriage or civil partnership that seeks to do one or both of the following:

Regulate the couple’s financial affairs during the relationship and / or

Determine how their assets should be divided in the event of divorce, dissolution or separation.

A nuptial agreement made before a marriage is usually referred to as a pre-nuptial agreement. A nuptial agreement entered into during the marriage is usually referred to as a post-nuptial agreement.

A nuptial agreement made before a civil partnership is usually referred to as a pre-civil partnership agreement or a pre-registration agreement. An agreement entered into during a civil partnership is usually referred to as a post-civil partnership agreement or a post-registration agreement.

Nuptial settlement

A settlement for the benefit of one or both of the parties or their children, created because of the marriage, or referring to the marriage, whether made before the marriage ante-nuptial settlement or after it post-nuptial settlement . A nuptial settlement can be varied

Occupation order

An order determining who should live in a property. One party will be permitted to live in the property or part of the property, the other will be excluded. Such orders are normally limited in time.

One-year rule

The rule that a divorce petition or petition for the dissolution of a civil partnership cannot be presented to the court before the couple have been married or in a civil partnership for a period of one year .

Parenting plan

A written agreement between parents setting out how they are going to manage the care of their children and how they will exercise shared parental responsibility after relationship breakdown.

Paying parent

The parent who does not have day-to-day care of the child and who pays child maintenance to the parent or person who does namely the receiving parent.

Penal notice

A notice endorsed on an order, providing that a respondent may be found to be guilty of contempt of court if he fails to comply with the terms of the order. A penal notice is a warning to the respondent that disobedience to the order may be punishable by imprisonment, a fine or sequestration of assets.

Pension attachment

A court order instructing pension trustees to pay a proportion of a pension to a former spouse when the pension is taken.

Pension sharing

The division of a pension fund between two spouses. On divorce, a proportion of a pension is debited from the pension fund and credited to a pension fund in the spouse’s name.

Periodical payments

A financial provision order. On divorce, nullity or judicial separation, the court can make an order that one party pay the other periodical payments or that one party pay the other periodical payments for the benefit of a child or children of the family . There are equivalent provisions for civil partnerships .

Periodical payments orders are also one of the financial provision orders that can be made for the benefit of children .

Person with care (PWC)

In a statutory child maintenance context, a person is a person with care of the child, if he:

Is a person with whom the child has their home.

Provides day-to-day care for the child (whether exclusively or in conjunction with any other person).

Petitioner

The person who applies for a:

Divorce.

Dissolution .

Annulment.

Judicial separation .

Polygamous marriage

Being married to more than one person at once. In certain circumstances they are recognised under English law as valid marriages. It is important to distinguish between:

Actual polygamous marriages where one spouse is already married.

Potentially polygamous marriages where under the law of the country in which the marriage took place one spouse may subsequently take another spouse.

Post-civil partnership agreement

An agreement made during a civil partnership that seeks to do one or both of the following:

Regulate the couple’s financial affairs during the civil partnership.

Determine how their assets should be divided in the event of dissolution or separation..

Post-nuptial agreement

An agreement entered into by a couple during their marriage that seeks to do either or both of the following:

Determine how their assets should be divided in the event of divorce or separation.

Regulate their financial affairs during the marriage.

Pre-civil partnership agreement.

Also known as a pre-registration agreement . An agreement entered into by a couple before the registration of their partnership that seeks to do one or both of the following:

Determine how their assets should be divided if the civil partnership is dissolved.

Regulate their financial affairs during the civil partnership.

Pre-nuptial agreement

Also known as an ante-nuptial agreement. An agreement entered into by a couple before their marriage has taken place, that seeks to do either or both of the following:

Determine how their assets should be divided in the event of divorce or

Regulate their financial affairs during the relationship.

Prohibited steps order

An injunctive order prohibiting a person from exercising an aspect of their parental responsibility for a child (section 8, Children Act 1989). This frequently involves:

Medical treatment.

Change of name.

An aspect of education, such as a change of school or

To prevent removal of a child from the jurisdiction of the UK court.

Compare “specific issue order .”.

Property adjustment order

An order dealing with property rights (transfer of property, settlement of property and variation of a nuptial settlement) for the purposes of adjusting the financial position of the parties to the marriage and any children of the family on or after the grant of a decree of divorce, nullity or judicial separation .There are equivalent provisions for civil partnerships .

Qualifying nuptial agreement

A term used by the Law Commission to refer to a nuptial agreement which the Law Commission suggests should be enforceable, providing certain conditions and safeguards are met. This means an agreement could oust the court’s discretionary jurisdiction to decide how finances should be divided between a couple on divorce or dissolution of civil partnership. These agreements are not available under the current law.

Relevant non-resident children

A term used by the Child Support Agency (CSA) to refer to children of the non-resident parent (NRP), who do not live with him, and for whom a CSA calculation cannot be made because the NRP is paying maintenance under a maintenance order.

In such a case, the CSA calculation will be reduced to reflect the obligation to that other child in the same way as it would be reduced, on account of apportioning, if the child were the subject of a maintenance calculation. These provisions only apply where there is an order for maintenance, not where there is only an agreement, as in the latter situation it would be possible for a calculation to be made and for the overall liability to be apportioned between qualifying children by the CSA.

Relevant other children

In the context of the statutory child maintenance scheme, children who live with a non-resident parent (NRP) who are not qualifying children for the purposes of the Child Support Act 1991 for whom the NRP or his partner receive child benefit.

Replies to Questionnaire.

Answers to a questionnaire that are normally provided according to Directions given by the judge at the First Appointment.

Residence

Where and with whom a child lives under a child arrangements order (known as a residence order before 22 April 2014).

Residence Order

An order made before 22 April 2014 in private children law proceedings that decides who a child will live with .Residence orders could be made:

In favour of a single named person (also known as a sole residence order).

Jointly in favour of two (or more) persons who live in the same household together, such as a mother and a step-father (also known as a joint residence order).

In favour of two (or more) persons who live in different households (also known as a shared residence order).

Residence orders made before 22 April 2014 and applications for residence orders made but not disposed of before 22 April 2014 are deemed to be orders and applications for child arrangements orders.

Respondent

This term has different meanings depending on the context in which it is used:

In the context of family law, refers to the party in the proceedings who is responding to the application. The term can be used specifically (referring to the Respondent to the divorce proceedings) or more generally when the reference is to the party responding to an application made by another, the Applicant.

Rose Orders.

In proceedings for financial orders where there is insufficient time at court to convert heads of agreement into a consent order, it is customary to return to the court room and explain to the judge the terms reached. The judge usually approves the agreement and makes an order in terms of the agreement. Even though the order itself has not been perfected, it is binding. If a dispute arises in the process of turning the agreement into a formal order, the judge can make rulings.

Scott Schedule

Schedules for use in litigation when the court is being asked to make a finding about disputed allegations or facts.

Scott schedules are commonly used in cases involving factual disputes about:

Domestic violence.

Injuries to children.

The allocation of chattels in financial remedies.

The schedules list the allegations made by one party and the other party’s responses to those allegations.

Search order

A form of court order that requires a respondent to allow the applicant’s solicitors to enter its premises and search for and remove all items covered by the order. The purpose of a search order is usually to preserve evidence or property which is (or may be) the subject of an action, or as to which a question arises in an action.

Section 25 factors

The factors the court considers before exercising its discretionary powers to make financial provision for the parties on divorce .There are equivalent provisions for civil partnerships.

Section 25 Statement.

A narrative statement in proceedings for financial orders setting out a party’s case and referring to the section 25 factors , which the Financial Dispute Resolution judge may order to be filed and served in advance of the final hearing .

Section 37 avoidance of disposition order

An order setting aside a disposition if a party to proceedings for financial relief has made a reviewable disposition with the intention of defeating a claim for financial relief and where financial relief or different financial relief would be granted if such a disposition were set aside.

Section 37 restraint of dealing order

An order restraining a party to proceedings for financial relief from making a disposition (or transferring out of the jurisdiction or otherwise dealing with any property) where the court is satisfied that the party is about to make such a disposition, with the intention of defeating a claim for financial relief .

Section 41 certificate

Before the family justice reforms in April 2014, this was a certificate issued by a District Judge within divorce proceedings about any children of the family.

This is no longer required.

Section 8 order

A short-hand reference to all of the orders that the court can make under section 8 of the Children Act 1989. These include:

Child arrangements orders known as Residence orders and Contact orders before 22 April 2014).

Prohibited steps orders.

Specific issue orders.

Secured periodical payments order

Periodical payments secured by a capital deposit. A secured periodical payment order is a financial provision order .On divorce, nullity or judicial separation , the court can make an order that one party pay the other secured periodical payments or that one party pay the other secured periodical payments for the benefit of a child of the family . There are equivalent provisions for civil partnerships. Secured periodical payments orders are also one of the financial provision orders that can be made for the benefit of children.

Seize

In a family law context, to obtain jurisdiction where there is more than one country where proceedings may take place. Most often referred to in the context of “jurisdiction races” within the EU.

Separation

The informal termination of the relationship between spouses or civil partners living together in the same household. Separation may or may not be followed by, divorce or dissolution.

Separation agreement

An agreement made when a couple are contemplating imminent separation or have already separated. The agreement sets out the agreed financial arrangements for the period of separation and usually sets out how the couple’s finances should be divided on a subsequent divorce or dissolution.

Shared residence order

An order made before 22 April 2014 under section 8 of the Children Act 1989. It names two or more people, who live in different households, with whom a child is to live for periods specified under the order.

As distinct from a residence order.

Shared residence orders were replaced by child arrangements orders on 22 April 2014.

Slip rule

The rule that allows the court to correct accidental slips or omissions in judgments and orders at any time.

Special guardianship order (SGO)

An order appointing one or more people over the age of 18 years to be a child’s special guardian . The order gives the special guardian parental responsibility for the child, which that person may exercise to the exclusion of any other person with parental responsibility. The order is a private law order, which is made where a child cannot return to a parent, but does not need to be kept in care or be adopted.

An SGO may be appropriate where:

A family member is caring for the child and adoption would disrupt the birth relationship.

A child is too old for adoption.

It can only be challenged with the court’s permission. The order does not exclude the natural parents from the child’s life, but enables the special guardian to control their involvement and to provide care, permanence and stability for the child.

Specific issue order

An order made under section 8 of the Children Act 1989 to resolve a particular issue in dispute relating to a child. This could involve disputes about medical treatment, change of name, or an aspect of education, or whether the child can relocate within England and Wales or overseas.

Statement in support of petition

A signed statement that must accompany a petitioner’s application for decree nisi . The statement is in question and answer format and poses a number of questions aimed at ensuring the contents of the petition remain true and correct and there have been no changes in circumstances that may affect the petitioner’s ability to rely on the relevant fact to support the irretrievable breakdown of the marriage.

Statement of arrangements

Also known as “statement of arrangements for children”. Before the family justice reforms in April 2014, the form that had to be completed on divorce or dissolution where there were . The form is no longer required.

Statement of information

The statement summarising the parties’ respective finances provided to the court with a proposed consent order in Form D81 under rule 9.26 of the Family Procedure Rules.

Statement of open proposals

Proposals put forward by each party before the final hearing in financial remedy proceedings, explaining what financial orders the party thinks the court should make .

Statement of truth

This term has different meanings depending on its context:

In the context of litigation, a statement of truth is a statement, to be included in any statement of case, witness statement, expert’s report and certain other documents, that confirms that the facts stated in the document are true.

Statutory child maintenance services

An umbrella term for the Child Support Agency (CSA) and the Child Maintenance Service (CMS) .

Stay of divorce

An adjournment of divorce proceedings pending the determination of an issue. This often happens where parties have issued divorce proceedings in two separate jurisdictions.

Substituted service

Service of a divorce petition upon a respondent at an address alternative to his or her main home.

Term order

Periodical payments that may be made for a limited period. A term order can either be:

Extendable or Non extendable.

Transnational divorce

A divorce commenced in one country and concluded in another. These are not recognised as foreign divorces under English law.

Unreasonable behaviour

Is a fact which may be used to prove the irretrievable breakdown of a marriage or civil partnership and secure a decree of divorce.

Void marriage

A marriage which is not valid and is treated as though it never existed.

Voidable marriage

A marriage that is missing one or more of the normal elements of a marriage. A voidable marriage exists until a decree of nullity is obtained. A respondent may successfully challenge the making of a decree of nullity.

Warning notice

Similar to a penal notice . A statement attached to a contact order , explaining that the instructions contained in the order must be obeyed and warning of the possible consequences of failure to comply.

Welfare checklist

A list of factors set out in SS the Children Act 1989 (CA 1989) that a court has to consider before making, varying or discharging a contested section 8 order or making, varying or discharging a special guardianship order . The factors include:

The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).

Physical, emotional and educational needs.

The likely effect on him of any change in his circumstances.

Age, sex, background and any characteristics of his which the court considers relevant.

Any harm which he has suffered or is at risk of suffering.

How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.

The range of powers available to the court under the CA 1989 in the proceedings in question.

Xydhias agreement

Arises when the general terms of settlement and agreement have been reached in proceedings for financial orders . Even if the specific terms of a draft court order have not yet been agreed and one party tries to back out of the agreement, a court may be prepared to make an order in the terms reached or decide un agreed issues of implementation or minor issues still unresolved.

If you require any further advice please contact our Specialist Team