A Practical Approach to Family Law,9780199264032

A Practical Approach to Family Law

by ; ;
Edition: 7th
ISBN13: 9780199264032
ISBN10: 0199264031
Format: Paperback
Pub. Date: 2004-04-01
Publisher(s): Oxford University Press
List Price: $95.20

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Summary

A Practical Approach to Family Law provides a full picture of the law and practice relating to family proceedings in all courts. Its breadth of coverage and accessible style has made it an essential resource for students and practitioners alike.The eighth edition has been completely updated to take full account of new statutory provisions, including the Civil Partnership Act 2004, the Adoption and Children Act 2002, the Domestic Violence, Crime and Victims Act 2004 and the Gender Recognition Act 2004, as well as case law, StatutoryInstruments, and Practice Directions. With new advice on library, information, and professional development resources, A Practical Approach to Family Law provides real assistance in dealing with this dynamic area of law.

Author Biography


Jill Black is a High Court Judge of the Family Division Jane Bridge is currently a mediator, a (non practising) barrister Tina Bond, solicitor, is a senior lecturer in family law at the University of Northumbria. She is a member of the Law Society's Family Law Panel.

Table of Contents

Table of Cases
xxiii
Table of Statutes
xxxv
Table of Statutory Instruments
xliii
List of Abbreviations
xlvii
PART I GENERAL MATTERS
The First Interview
3(12)
Preliminary points
3(1)
General points
4(1)
Matters to be covered when taking instructions
4(6)
Taking action on the client's behalf
10(4)
Preparing a statement and proof of evidence
14(1)
Money Laundering
15(9)
Introduction
15(2)
The offences
17(1)
`Criminal property'
17(1)
The duty to disclose on all persons
18(1)
The duty to disclose in the `regulated sector'
18(1)
The problem with privilege
19(1)
The other defences
19(1)
`Protected disclosure'
20(1)
`Tipping off'
20(1)
Nominated officers (MLROs)
21(1)
The provision of systems and training
22(1)
How does this all work in practice?
22(2)
Community Legal Service and Public Funding for Family Proceedings
24(55)
Introduction
25(1)
The Funding Code
26(1)
The Funding Code---Decision Making Guidance
27(1)
The basic structure of the new scheme
27(9)
Emergency representation
36(3)
The issue of a certificate for general family help and/or legal representation
39(1)
Notification of issue of a certificate
39(1)
The effect of the issue of a certificate for general family help and/or legal representation
40(2)
Reimbursement of the Community Legal Service Fund and the statutory charge
42(1)
Solicitor to receive moneys due to funded party
43(1)
The statutory charge under s. 10(7), Access to Justice Act 1999
44(7)
The duty to make the client fully aware of the potential impact of the charge
51(1)
Minimising the effects of the charge
51(28)
Mediation
79(12)
Meaning of mediation
79(2)
Public funding for mediation
81(1)
Family Law Protocol
81(4)
The mediation process
85(6)
PART II DIVORCE, NULLITY, AND JUDICIAL SEPARATION: THE DECREE
The Ground for Divorce and the Five Facts
91(16)
The ground for divorce
92(1)
The five facts
92(1)
Irretrievable breakdown
93(1)
Adultery: s. 1(2)(a)
93(3)
Behaviour: s. 1(2)(b)
96(2)
Establishing as a matter of fact that the parties are living apart
98(2)
Desertion: s. 1(2)(c)
100(3)
Two years' separation and consent: s. 1(2)(d)
103(1)
Five years' separation: s. 1(2)(e)
104(1)
The effect of living together in relation to the five facts: s. 2
104(3)
Bar on Presentation of Divorce Petitions Within One Year of Marriage
107(3)
Absolute one-year bar
107(1)
Bar not applicable to nullity petitions
107(1)
Alternative courses of action for the first year of marriage
107(1)
When the first year is up
108(2)
Jurisdiction in Divorce, Nullity, and Judicial Separation Suits
110(6)
Jurisdiction for divorce: s. 5, Domicile and Matrimonial Proceedings Act 1973
110(1)
Habitual residence
111(1)
Domicile
112(3)
Recognition of foreign decrees
115(1)
Public Funding and Undefended Divorces
116(3)
General Family Help and certificate for Legal Representation not generally available
116(1)
Certificate available for defended cases
116(1)
Certificate exceptionally available for undefended cases
116(1)
Certificates available for proceedings in connection with divorce or judicial separation other than decree proceedings
117(1)
Legal Help available for decree proceedings
117(2)
Drafting a Divorce Petition
119(21)
General
119(1)
The contents of the petition
120(2)
Notes on drafting the petition
122(18)
Undefended Divorce: Procedure for Obtaining the Decree
140(35)
Documents required
141(11)
Commencement of proceedings
152(1)
Fee
153(1)
Additional matters where the solicitor is acting
153(1)
Entry in court books
153(1)
Service of the petition
153(7)
Return of the acknowledgement of service
160(1)
When directions for trial can be given
161(1)
Applying for directions for trial
162(3)
Directions for trial
165(2)
Pronouncement of decree nisi
167(1)
Cases referred to the judge
168(1)
Consideration of arrangements for the children of the family
168(4)
Decree absolute
172(3)
Amended, Supplemental, and New Petitions
175(4)
Amendment, supplemental petition, or fresh petition?
175(1)
Procedure for amendment
176(1)
Supplemental petitions
177(1)
Fresh petitions
177(2)
Defended Divorces
179(4)
General
179(1)
Public funding for defended divorces
179(2)
Outline of procedure in a defended cause
181(2)
Protection of Respondents in Separation Cases: Sections 5 and 10, Matrimonial Causes Act 1973
183(1)
Section 5, Matrimonial Causes Act 1973---grave financial or other hardship
183(6)
Section 10, Matrimonial Causes Act 1973
185(3)
Rescission of the decree nisi in other circumstances
188(1)
Judicial Separation
189(1)
What is a decree of judicial separation?
189(5)
The grounds for judicial separation: s. 17, Matrimonial Causes Act 1973
189(1)
The application of ss. 6 and 7, Matrimonial Causes Act 1973 to judicial separation
190(1)
No time restriction on petition
190(1)
Section 5, Matrimonial Causes Act 1973 not applicable
190(1)
Section 10, Matrimonial Causes Act 1973 not applicable
190(1)
The procedure for seeking a decree of judicial separation
191(1)
The effect of the decree: s. 18, Matrimonial Causes Act 1973
191(1)
Subsequent divorce: s. 4, Matrimonial Causes Act 1973
192(1)
Reasons for seeking judicial separation
193(1)
Nullity
194(7)
The need for a nullity decree
194(1)
Void marriages: s. 11
195(1)
Voidable marriages: s. 12
196(1)
Bars to relief where the marriage is voidable: s. 13, Matrimonial Causes Act 1973
196(1)
Procedure
197(1)
Effect of a decree of nullity
198(3)
PART III ANCILLARY RELIEF AFTER DIVORCE, NULLITY, AND JUDICIAL SEPARATION
Ancillary Relief Orders Available
201(20)
Maintenance pending suit: s. 22, Matrimonial Causes Act 1973
201(2)
Long-term orders: ss. 23 and 24, Matrimonial Causes Act 1973
203(16)
Orders for sale: s. 24A, Matrimonial Causes Act 1973
219(1)
Interim orders
220(1)
Procedure for Ancillary Relief Applications
221(56)
The cost of the application
222(1)
Protecting the applicant pending the making of an order
223(1)
The ancillary relief procedure
223(1)
The Pre-Action Protocol
223(3)
The procedure in detail
226(7)
The first appointment
233(4)
Interim orders
237(1)
The Financial Dispute Resolution appointment
237(2)
Preparation for the final hearing
239(3)
The hearing
242(2)
Costs and Calderbank offers (or offers to settle)
244(3)
Consent orders
247(2)
Some points on drafting ancillary relief orders
249(5)
Appeal
254(1)
Challenging ancillary relief consent orders
254(23)
Factors to be Considered on Ancillary Relief Applications
277(25)
Introduction
278(1)
The s. 25 factors
278(4)
The s. 25 factors in more detail
282(6)
The significance of the decision in White v White and subsequent case law developments
288(4)
Other circumstances not specifically referred to in s. 25
292(2)
Special considerations with regard to particular types of order
294(6)
Maintenance pending suit
300(2)
Child Support
302(14)
Introduction
302(1)
The purpose of the 1991 Act
303(1)
Some basic definitions
303(1)
The duty to maintain
304(1)
The calculation of child maintenance
305(3)
Apportionment of the child support liability
308(1)
The position where care is shared
309(1)
The role of the courts
310(1)
The benefit case
310(2)
The non-benefit case
312(1)
Revisions
312(1)
Appeals from the maintenance calculation
312(1)
Collection and enforcement
313(1)
Effect of past capital settlements
313(1)
Child Support Act 1995 and variations under the Child Support Pensions and Social Security Act 2000
314(2)
Preventing and Setting Aside Dispositions Under Section 37, Matrimonial Causes Act 1973
316(4)
Introduction
316(1)
Requirement of financial relief proceedings
316(1)
Orders that can be made
317(1)
Definitions
318(2)
Collection and Enforcement of Ancillary Relief Orders
320(3)
Enforcing orders for the payment of money
320(2)
The Maintenance Enforcement Act 1991
322(1)
Registration of a periodical payments order in the family proceedings court
322(1)
Enforcement of property adjustment orders
322(1)
Variation of Ancillary Relief Orders
323(8)
The scope of s. 31
323(1)
What can the court do on a variation application?
324(2)
Factors to be taken into account on a variation application
326(5)
PART IV TAXATION
Tax Considerations
331(12)
Income tax
332(1)
General rules
332(2)
Tax on maintenance orders
334(1)
Inheritance tax and capital gains tax
334(1)
Inheritance tax
335(1)
Capital gains tax
336(4)
Stamp duty
340(3)
PART V ORDERS UNDER PART IV OF THE FAMILY LAW ACT 1996
Occupation Orders and Non-Molestation Orders
343(68)
Introduction
345(1)
The orders available
345(1)
Associated persons and relevant child
346(3)
Occupation orders---the menu
349(1)
Position where the applicant is entitled to occupy
350(4)
Occupation order where applicant is a former spouse with no existing right to occupy
354(2)
Occupation order where applicant is a cohabitant or former cohabitant with no existing right to occupy
356(2)
Occupation order where neither spouse is entitled to occupy
358(1)
Position where neither cohabitant nor former cohabitant is entitled to occupy
358(1)
Ancillary orders where an occupation order is made under ss. 33, 35, or 36
359(1)
Non-molestation orders
360(1)
Applications by children
361(1)
Applications by third parties
362(1)
Orders made without notice
362(1)
Undertakings
363(1)
Enforcement
363(3)
Variation and discharge of orders
366(1)
Procedural guide
366(4)
The procedure in detail
370(5)
Enforcement of the order
375(5)
Procedure in the family proceedings court
380(2)
Impact of the Human Rights Act 1998
382(29)
PART VI GENERAL MATTERS CONCERNING THE HOME AND OTHER PROPERTY
The Home: Preventing a Sale or Mortgage
411(13)
The problem
411(1)
House in joint names
412(5)
House in sole name of one spouse
417(5)
Bankruptcy and the matrimonial home
422(2)
Keeping up with the Mortgage or Rent
424(4)
General
424(1)
Steps that can be taken
424(1)
Special provisions of the Family Law Act 1996
425(3)
The Question of Wills
428(7)
The need to consider what will happen on client's death
428(1)
The effect of marriage on a will
429(1)
The effect of divorce, judicial separation, and nullity on succession
429(1)
Steps to be taken
430(1)
Inheritance (Provision for Family and Dependants) Act 1975
430(1)
Importance of considering succession
431(1)
Appointing a guardian for children
432(3)
PART VII CHILDREN
The Children Act 1989: General Principles, Parental Responsibility Orders in Family Proceedings, Section 8 Orders, Guardianship Orders and Family Proceedings, Financial Provision and Property Adjustment for Children
435(53)
Introduction
437(1)
General principles
438(13)
Parental responsibility
451(6)
Guardianship
457(1)
Special guardianship orders
458(1)
Orders in family proceedings
459(2)
Section 8 orders
461(5)
Residence orders
466(7)
Contact orders
473(6)
Prohibited steps orders
479(1)
Specific issue orders
480(1)
Interim orders and supplementary provisions
481(2)
Settling residence and contact disputes
483(1)
Variation of section 8 orders
483(1)
Family assistance orders
484(1)
Financial provision and property adjustment for children
485(3)
Procedure for Orders Under the Children Act 1989
488(26)
The courts---jurisdiction and allocation of proceedings
489(4)
Procedure
493(21)
Wardship and the Inherent Jurisdiction
514(21)
What does inherent jurisdiction mean?
514(2)
What does wardship mean?
516(1)
Impact of the Children Act 1989 on wardship
517(2)
When should wardship be used?
519(4)
Procedure
523(6)
The future of the ward
529(1)
Injunctions
530(5)
Preventing the Removal of a Child from the Jurisdiction and Tracing a Lost Child
535(6)
Family Law Act 1986
535(1)
Removal from the UK
536(3)
Tracing a lost child
539(2)
Children in Local Authority Care
541(51)
Introduction---children and local authorities
542(5)
The Protocol for Judicial Case Management in Public Law Children Act Cases
547(12)
Care and supervision orders
559(31)
Public funding
590(1)
Appeals
590(2)
Emergency Protection of Children
592(11)
Introduction
592(1)
Child assessment orders
593(2)
Emergency protection orders
595(4)
Police protection
599(1)
Recovery orders
600(3)
PART VIII FINANCIAL PROVISION AND PROPERTY DURING MARRIAGE
Section 27, Matrimonial Causes Act 1973
603(7)
Grounds for application
603(1)
Jurisdiction
604(1)
Orders that can be made
604(1)
Factors to be considered on an application under s. 27
605(2)
Procedure
607(1)
Interim orders
607(1)
Variation of s. 27 orders
607(1)
Section 27 compared with Domestic Proceedings and Magistrates' Courts Act 1978 (DPMCA 1978)
607(3)
Separation and Maintenance Agreements
610(4)
The difference between separation and maintenance agreements
610(1)
Likely contents of separation agreements
611(1)
What a separation agreement cannot do
611(1)
The form of a separation or maintenance agreement
612(1)
Effect of a separation agreement
612(1)
Advantages of a separation or maintenance agreement
612(1)
Enforcement
613(1)
Impact of subsisting separation agreement or maintenance agreement on financial arrangements after divorce, etc.
613(1)
Section 17, Married Women's Property Act 1882
614(13)
Introduction
615(1)
The basic provision
615(1)
Possible applicants
615(1)
What property is covered?
616(1)
What orders can be made?
616(1)
Ordinary trust principles generally apply in determining disputes
616(1)
Disputes over land
617(4)
The ownership of cash and assets other than land
621(1)
Fixing the size of each party's share in the disputed property
622(1)
Orders for sale
622(1)
Procedure
623(1)
Practical importance of s. 17
623(4)
PART IX WELFARE BENEFITS
Welfare Benefits
627(15)
Introduction
628(1)
Income support and jobseeker's allowance
629(1)
Introduction
629(1)
Income support
629(4)
The social fund
633(1)
Tax credits
633(1)
Introduction
633(1)
The child tax credit
634(2)
The working tax credit
635(1)
Housing benefit
636(3)
Who qualifies?
636(1)
What payments will be made?
636(1)
Amount of housing benefit
637(1)
Council tax benefit
638(1)
Child benefit
639(1)
Child benefit
639(1)
State benefits and marriage breakdown
640(2)
Relevance of state benefits in determining appropriate maintenance
640(1)
Maintenance versus state benefits: pros and cons for the recipient
640(1)
Lump sums and income support
641(1)
The Local Authority and Housing
642(4)
The homeless
642(3)
Secure tenants
645(1)
Cohabitants
646(8)
Introduction
646(1)
Protection from violence
646(1)
Inheritance
647(1)
Status of children
648(1)
Financial provision and the significance of the Child Support Act 1991
649(2)
Ownership and occupation of property
651(1)
Cohabitants---the future?
652(2)
The Human Rights Act 1998 and its Impact on Family Law
654(15)
Introduction
654(1)
Qualifications to the operation of the Act
655(1)
The operation of the Act
655(1)
Breaches and remedies
656(1)
Relevance of the Convention to family law
657(10)
Practice Direction
667(1)
Procedural points
668(1)
Index 669

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