Selected Family Law Terms

care order - A court order placing a child under the care of a local authority. Under the Children Act 1989 an application for a care order can only be made by a local authority, the NSPCC, or a person authorized by the Secretary of State. The court has the power to make a care order only when it is satisfied that a child is suffering or likely to suffer significant harm either caused by the care (or lack of care) given to it by its parents, or because the child is beyond parental control (the so-called threshold criteria). The phrase "significant harm", as defined in the Children Act, means ill treatment (including sexual abuse and forms of treatment that are not physical) or the impairment of health (either physical or mental) or development (whether physical, intellectual, emotional, social, or behavioural). Once the court is satisfied that the threshold criteria have been satisfied, it must decide whether a care order would be in the best interests of the child. In so doing, it should scrutinize the care plan drawn up in respect of the child. The court may, instead of making a care order, make a supervision order or a section 8 order. Since the coming into force of the Human Rights Act 1998, the court must ensure that the granting of a care order will not be in breach of Article 8 (which guarantees a right to family life); the court must be satisfied that any intervention by the state between parents and children is proportionate to the legitimate aim of protecting family life. A care order gives the local authority parental responsibility for the child who is the subject of the order. Although parents retain their parental responsibility, in practice all major decisions relating to the child are made by the local authority. While the child is in care, the local authority cannot change the child's religion or surname or consent to an adoption order or appoint a guardian. There is a presumption that parents will have reasonable contact with their children while in care; if the local authority wishes to prevent this, it must apply for a court order to limit such contact. A parent with parental responsibility, the child itself, or the local authority may apply to discharge a care order. No care order can be made with respect to a child who is over the age of 16. A local authority can no longer use wardship proceedings as an alternative means of obtaining a care order, nor may it take a child into care through administrative means. Before the Crime and Disorder Act 1998 came into force a care order could only be made if the threshold criteria were met. Now, however, the family proceedings court has the power to make a care order if a child is in breach of a child safety order.

cohabitant - see cohabitation n. Living together as husband and wife. Married persons generally have a right to expect their spouses to live with them. Unmarried people living together as husband and wife (cohabitants) do not usually have the status of a married couple (see also common-law marriage). But under the cohabitation rule the resources and requirements of an unmarried couple living together are aggregated for the purposes of claiming social security benefits under the Social Security Acts even in the absence of a sexual relationship (see income support).

common-law marriage - 1. A marriage recognized as valid at common law although not complying with the usual requirements for marriage. Such marriages are only recognized today if (1) they are celebrated outside England and there is no local form of marriage reasonably available to the parties or (2) they are celebrated by military chaplains in a foreign territory (or on a ship in foreign waters), and one of the parties to the marriage is serving in the Forces in that territory. The form of marriage is a declaration that the parties take each other as husband and wife.

2. Loosely, the situation of two unmarried people living together as husband and wife (see cohabitation). In law such people are treated as unmarried, although recently they have been recognized as equivalent to married persons for purposes of protection against battering and for some provisions of the Rent Acts (such as succession to statutory tenancies).

consummation of marriage - The "completion" of a marriage by an act of sexual intercourse. It is defined for these purposes as complete penetration of the vagina by the penis (although ejaculation is not necessary). A marriage may be consummated despite the use of a contraceptive sheath. If a spouse is incapable of consummation or refuses without good reason to consummate the marriage, these may be grounds for annulment of the marriage. If one of the partners refuses to arrange an additional marriage ceremony (e.g. in a church) without which he knows his spouse will not agree to have intercourse, this may be a good reason for the spouse's refusal to have intercourse. In this case it is the partner who refused to arrange the ceremony who is regarded as not having consummated the marriage, even though that partner is willing to have intercourse.

contact order - see section 8 orders

decree absolute - A decree of divorce, nullity, or presumption of death that brings a marriage to a legal end, enabling the parties to remarry. It is usually issued six weeks after the decree nisi (unless there are exceptional reasons why it should be given sooner). A list of decrees absolute is kept at the Divorce Registry and access to it is open to the public.

decree nisi - A conditional decree of divorce, nullity, or presumption of death. For most purposes the parties to the marriage are still married until the decree is made absolute. During the period between decree nisi and decree absolute the Queen's Proctor or any member of the public may intervene to prevent the decree being made absolute and the decree may be rescinded if obtained by fraud.

equitable interests - Interests in property originally recognized by the Court of Chancery, as distinct from legal interests recognized in the common-law courts. They arose in cases when it was against the principles of equity for a person to enforce a legal right. Originally equitable rights (e.g. a trust, or the equity of redemption under a mortgage) were enforceable against the person with a legal right over property in question. Later, however, those who were given the property by the holder of the legal interests took it subject to equitable interests; later still, anyone who bought property knowing of the equitable interests was bound by them. In the developed law, everyone took property subject to equitable interests except those who bought it and neither knew nor ought to have known of the equitable interests (the doctrine of notice). Since 1925, equitable interests may be protected by the doctrine of overreaching, under the system of land charges, or by notice.

family - n. A group of people connected by a close relationship. For legal purposes a family is usually limited to relationships by blood, marriage, or adoption, although sometimes (e.g. for social security purposes) statute expressly includes other people, such as common-law wives (see common-law marriage). The courts have interpreted the word "family" to include unmarried couples living as husband and wife in permanent and stable relationships. In the past, gay couples have always been excluded from the definition. However, in a recent case the court interpreted the word "family" in the Rent Act 1977 to include the gay partner of a deceased tenant.

family division - The division of the High Court concerned with family proceedings and noncontentious probate matters. Until 1971, it was known as the Probate, Divorce and Admiralty Division. It may hear some appeals (see appellate jurisdiction). The chief judge of the Division is called the President.

financial provision order - An order for periodical payments or a lump sum made for the purpose of adjusting the financial position of the parties to a marriage and any children of the family. Such orders may be made on or after the granting of a decree of divorce, nullity, or judicial separation or when one party to the marriage has failed to provide, or to make a proper contribution towards, reasonable maintenance for the other or a child of the family. On divorce, judicial separation, or nullity, the court also has the power to make property adjustment orders. In determining whether to make financial provision orders, the court has a very wide discretion under section 25 of the Matrimonial Causes Act 1973. It has an overriding duty to give first consideration to the welfare of any child under the age of 18 years and to try to achieve a clean break wherever possible. The Act lists seven matters that the court must take into account as part of the circumstances it is to consider. These include: the financial resources and needs each of the parties has or is likely to have in the foreseeable future; the age of the parties and the length of the marriage; the standard of living enjoyed by the family before the breakdown of the marriage; the contributions that each of the parties has made to the welfare of the family, which include looking after the home or caring for the family; and the conduct of the parties, but only where it would be very unjust to ignore such conduct. A recent landmark case in this area made it clear that the implicit objective of section 25 is to achieve a fair outcome and that there should be no discrimination between husbands and wives and their respective roles (i.e. if one spouse stays at home while the other goes out to work, this fact is immaterial). A starting point should be that assets are equally divided, unless there is a good reason for not doing so. See also maintenance pending suit; property adjustment order.

financial relief: Any or all of the following: maintenance pending suit orders, financial provision orders, property adjustment orders, and court orders for maintenance during the marriage and for the maintenance of children (see child support maintenance). The court has powers to set aside transactions made by a husband or wife with the intention of preventing a spouse from making a claim for financial relief, or to prevent such a transaction from taking place (see avoidance of disposition order). Financial relief provisions for children, other than in matrimonial proceedings, are consolidated in the Children Act 1989; for example, it is possible for unmarried parents and those in whose favour a residence order is made to obtain financial relief. In addition, children over the age of 18 have an independent right to seek financial relief from their parents.

maintenance pending suit - A court order for temporary periodical payments during the hearing of a petition for divorce, nullity, or judicial separation.

matrimonial proceedings - (matrimonial causes) Proceedings for divorce, judicial separation, or nullity of marriage. All matrimonial proceedings must be heard in a divorce county court or the Divorce Registry in London. The proceedings may be transferred from the county court to the High Court, and vice versa, at the court's discretion. See also family proceedings.

mediation - n.1. A form of alternative dispute resolution in which an independent third party (mediator) assists the parties involved in a dispute or negotiation to achieve a mutually acceptable resolution of the points of conflict. The mediator, who may be a lawyer or a specially trained nonlawyer, has no decision-making powers and cannot force the parties to accept a settlement. In family law, for example, mediators assist spouses to resolve disputes that have arisen as a consequence of the breakdown of their marriage by reaching agreement or reducing conflict over future arrangements for children or their finances. Mediation, which is designed to avoid the need to take cases to court, is likely to be extended to many other areas of the law since the publication of Lord Woolf's Access to Justice (Final Report) 1996 and the introduction of the Civil Procedure Rules, in which it is actively encouraged.

2. (in international law) A method for the peaceful settlement of an international dispute in which a third party, acting with the agreement of the disputing states, actively participates in the negotiating process by offering substantive suggestions concerning terms of settlement and, in general, by trying to reconcile the opposing claims and appeasing any feeling of resentment between the parties involved. See also conciliation; good offices.

parental responsibility - All the rights, duties, powers, and responsibilities that by law a parent of a child has in relation to the child and his or her property. The concept was introduced by the Children Act 1989, replacing custody. Parental responsibility is automatically conferred on both parents if married, and on the mother alone if not. An unmarried father can acquire parental responsibility either by agreement with the mother or by applying to court for a parental responsibility order. In determining whether to grant such an order the court must treat the child's welfare as its paramount consideration. Both parents retain parental responsibility on divorce. Other persons may acquire parental responsibility by virtue of being granted other orders. For example, anyone in whose favour a residence order (see section 8 orders) is made acquires parental responsibility for the duration of that order, and a care order or an emergency protection order confer parental responsibility on the relevant local authority. In all these cases, parental responsibility is shared with the parents. See also step-parent.

petition - n. A written application for a legal remedy or relief that is only available if statute or rules of procedure permit it. Examples are a petition for divorce, a bankruptcy petition, an election petition, or a petition for winding up a company (see compulsory winding-up).

prohibited steps order - see section 8 orders

property adjustment order - An order made by the court in proceedings for divorce, separation, or nullity that affects rights of ownership of property belonging to either spouse. Such orders include the transfer of property from one spouse to another, settling property for the benefit of the other spouse or children, varying marriage settlements, or extinguishing rights under such settlements. The courts have exceptionally wide discretion in making property adjustment orders, and each case will depend on its own facts. The general aim of the discretion, and factors to be considered, are identical with those listed in relation to financial provision orders; two other factors to be considered are the need to provide adequate housing for both spouses, and especially for minor children, and the need to allow each spouse a share in the capital value of the family assets, especially the matrimonial home. The courts have power to order the sale of the matrimonial home or to make the home subject to a deferred trust for sale, e.g. until the children grow up. As in the case of financial provision orders, the court must achieve a clean break wherever possible. Property adjustment orders are often awarded in addition to financial provision orders and may only be made on or after the granting of the decree of divorce, separation, or nullity.

residence order - see section 8 orders

section 8 orders - Court orders under the Children Act 1989 that settle practical details concerning the child's care and upbringing in any family proceedings in which the child's welfare is a matter for consideration (such as matrimonial, wardship, or adoption proceedings). Section 8 orders, which replace the old access, custody, and care and control orders, include residence, contact, prohibited steps, and specific issues orders. A residence order settles arrangements about where a child is to live. Such an order is typically made when parents live apart and cannot agree where the child is to live. Residence orders may also be made in respect of nonparents: in such a case, the order would confer parental responsibility on those in whose favour the order is made. A contact order defines the extent and nature of the contact the child is to have with other individuals. A contact order cannot be made in favour of a local authority or while the child is in care. A prohibited steps order prohibits certain specified steps (for example, taking a child abroad) being taken without the consent of the court and can be made against anyone regardless of whether he or she has parental responsibility for the child. A specific issue order deals with any specific issues concerning the child's upbringing, such as education or medical treatment.

Section 8 orders are only necessary when there is a dispute between the parents or others in relation to a child and are usually only made in respect of children up to the age of 16. In determining whether or not to make such an order, the court must treat the child's welfare as paramount.

specific issues order - see section 8 orders

Source: A Dictionary of Law. Ed. Elizabeth A. Martin. Oxford University Press, 2002. Oxford Reference Online. Oxford University Press. 27 October 2004 www.oxfordreference.com

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Oxford University Press, Online Resource Centre, Selected Family Law Terms.

Selected Family Law Terms