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Divorce Flashcards

(101 cards)

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1
Q

What is the one-year rule in divorce applications?

A

A petition for divorce cannot be presented before 1 year from the date of the marriage (s3, MCA 1973).

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2
Q

What are the eight situations that give a court jurisdiction to hear a divorce suit?

A
  1. Both parties are habitually resident in England and Wales.
  2. Were last habitually resident in England and Wales and one still resides there.
  3. Are domiciled in England and Wales.
  4. The applicant is habitually resident in England and Wales and has resided there for at least a year before the application.
  5. The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months before the application.
  6. The respondent is habitually resident in England and Wales.
  7. In a joint application, either party is habitually resident in England and Wales.
  8. Either party is domiciled in England and Wales.
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3
Q

What is the only ground for divorce?

A

The parties’ marriage has ‘irretrievably broken down’.

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4
Q

What evidence is required to demonstrate a marriage has irretrievably broken down?

A

A statement confirming that the marriage has irretrievably broken down on the online application form (s1(2) MCA 1973).

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5
Q

True or False: A respondent can defend an application for divorce.

A

False.

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6
Q

Under what conditions can a respondent dispute divorce proceedings?

A
  1. Disputing the validity or subsistence of the marriage.
  2. Disputing the jurisdiction of the court.
  3. Fraud or procedural non-compliance.
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7
Q

What is the difference between a sole application and a joint application for divorce?

A

In a sole application, the applicant declares that the marriage has irretrievably broken down. In a joint application, both parties declare this.

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8
Q

What must the court do upon receiving a statement that the marriage has irretrievably broken down?

A

The court must accept this statement as conclusive evidence that the marriage has broken down and make a divorce order (s1(3) MCA 1973).

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9
Q

What is the presumption of death in relation to divorce?

A

The applicant can apply for a declaration that the respondent is presumed to be dead if the respondent has not been known to be alive for at least the last seven years.

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10
Q

What is the first step in the divorce application process?

A

Conduct the first interview to determine the client’s intentions.

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11
Q

What must a solicitor discuss during the first interview?

A
  1. Whether the client wants a divorce.
  2. Possibility of reconciliation.
  3. General advice on divorce and alternatives.
  4. Financial principles and orders available relating to children.
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12
Q

What is a conditional order in divorce proceedings?

A

The first court order issued confirming that the applicant has established that the marriage has irretrievably broken down.

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13
Q

When can the applicant apply for a conditional order?

A

After 20 weeks from service of the divorce application.

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14
Q

What happens if the acknowledgment of service is not returned?

A

The applicant can apply for:
* Service by a court bailiff.
* Deemed service.
* Service by alternative means.
* Dispensing with service.

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15
Q

What is required for a final order to be made?

A

The court must be satisfied that there is no appeal of the conditional order pending and that the provisions under s10(2)–(4) MCA 1973 do not apply or have been complied with.

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16
Q

Fill in the blank: The marriage will be brought to an end if the court is satisfied that the respondent has _______.

A

[died] or has not been known to be alive for a period of at least the last seven years.

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17
Q

What does the term ‘statutory charge’ refer to in legal aid?

A

A means by which the Legal Aid Agency can recover property that the client receives or preserves during financial proceedings to pay the client’s solicitor’s fees.

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18
Q

What is the role of a non-molestation order under the Family Law Act 1996?

A

It prohibits a wide range of behaviour including protection from violence, harassment, threats, and ‘pestering’.

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19
Q

What must the applicant do after six weeks have elapsed since the conditional order?

A

Give notice to the court that they wish the conditional order to be made a final order (FPR 7.19(1)(a)).

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20
Q

What does a final order do?

A

Dissolves the marriage

A final order is issued by the court once certain conditions are met.

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21
Q

What must the court be satisfied of before making a final order?

A

That there is no appeal of the conditional order pending and that provisions under s10(2)–(4) MCA 1973 do not apply or have been complied with.

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22
Q

What does s10(2) MCA 1973 allow a respondent to do?

A

Apply to have their financial position considered if they are concerned about being prejudiced before the marriage ends.

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23
Q

What must the court consider if an application under s10(2) is made?

A

Either the applicant should not be required to make any financial provision or that the financial provision made is fair and reasonable.

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24
Q

Under what circumstances can the court dispense with the requirements for financial provision?

A

If it is desirable to make the final order without delay and if satisfactory undertaking from the applicant is obtained.

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25
What does s10A MCA 1973 require?
That a final order not be made absolute until parties married under certain religious practices take steps to dissolve the marriage accordingly.
26
When can the court exercise discretion to stay or delay a final order?
Only in special and exceptional circumstances.
27
What happens after the final order is sent to the parties?
The marriage is dissolved.
28
What must a party do to seek a costs order in a standard case?
Make a separate application and file an application notice with evidence.
29
What is required from the respondent regarding a costs order application?
The respondent has the opportunity to oppose by filing a witness statement.
30
In a joint application, how are the parties referred to?
As 'applicant 1' and 'applicant 2'.
31
What must applicant 2 do in the joint application process?
Review the application and confirm that the marriage has broken down irretrievably.
32
What happens if applicant 2 refuses to confirm the application?
The joint application ends and applicant 1 must apply as a sole applicant.
33
What is the last opportunity for parties to amend the application?
Before submission, without requiring permission from the court.
34
What is required from the court once the conditional order has been made?
Notice must be given to the court that the conditional order should be made a final order after six weeks.
35
What must an applicant do if they make a sole application for a final order?
Give the other party 14 days notice and provide a certificate of service.
36
What does the court do after issuing proceedings?
Sends notice to both parties.
37
What must each applicant confirm after receiving notice?
Receipt within 14 days.
38
What are the circumstances under which English courts have jurisdiction over matrimonial affairs?
The English courts have jurisdiction if: * Both parties are habitually resident in England and Wales * Were last habitually resident in England and Wales, and one resides there * Are domiciled in England and Wales * The applicant is habitually resident and has resided there for at least a year * The applicant is domiciled and habitually resident for at least six months * The respondent is habitually resident in England and Wales * In a joint application, either party is habitually resident in England and Wales * Either party is domiciled in England and Wales ## Footnote These conditions are outlined in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.
39
Define 'habitual residence' in the context of English law.
'Habitual residence' is where the 'centre of interests' of a person’s life is located. It must be habitual and stable in character. ## Footnote This definition is supported by case law (Z v Z [2010] 1 FLR 694).
40
What is 'domicile' according to English law?
'Domicile' is broadly defined as a person's 'permanent home.' It can be acquired through: * Domicile of origin * Domicile of dependency * Domicile of choice ## Footnote Domicile can arise at birth based on parents' domicile or can be chosen by individuals over 16.
41
What is the significance of the Brussels II Revised regulation?
Brussels II Revised governs jurisdiction in EU countries, providing guidance similar to section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. ## Footnote It is crucial for determining jurisdiction in divorce proceedings across EU Member States.
42
What steps should be taken when choosing a jurisdiction for divorce proceedings?
Steps include: * Instructing a family lawyer in the non-English jurisdiction * Establishing whether jurisdiction exists in the foreign country * Assessing the pros and cons of using that jurisdiction * Acting quickly to secure jurisdiction in the preferred state ## Footnote The court of the state 'first seised' gains exclusive jurisdiction under Brussels II Revised.
43
What factors should a client consider when selecting a jurisdiction for divorce?
Factors include: * Substantive law considerations * Procedural considerations * Enforcement considerations * Ancillary considerations ## Footnote Each of these categories encompasses various specific legal and practical implications.
44
Fill in the blank: A dependent person has the domicile of the person they are considered to be dependent upon by law, known as __________.
domicile of dependency
45
True or False: A domicile of choice can be acquired by any person over 16 who is not actually resident in the country.
False ## Footnote A domicile of choice requires actual residence in the country.
46
What should clients consider regarding substantive law when choosing a jurisdiction?
Clients should consider: * What law will the foreign court apply? * The type and quantum of financial orders likely to be made * Differences in law that may affect outcomes * Treatment of child maintenance and property * The approach to nuptial agreements ## Footnote These considerations impact the financial and legal implications of the divorce.
47
What are procedural considerations in divorce proceedings?
Procedural considerations include: * How proceedings are conducted * Potential for transferring financial proceedings * Existing proceedings in other countries * The timeline for conclusion * Approach to disclosure and evidence ## Footnote These factors can influence the client’s experience and costs.
48
What are enforcement considerations in international divorce cases?
Enforcement considerations involve: * Recognition of marriage or civil partnership * Enforceability of divorce decrees and financial orders * Availability of enforcement means in the foreign jurisdiction * Possibility of freezing orders ## Footnote These factors determine the effectiveness of legal outcomes across jurisdictions.
49
What ancillary considerations might affect the choice of jurisdiction?
Ancillary considerations include: * Tax or immigration consequences * Impact on wills, inheritances, and forced heirship * Effects on children's welfare and family well-being ## Footnote These factors can have lasting implications beyond the divorce itself.
50
What is a judicial separation order?
An alternative to divorce that ends marital obligations without dissolving the marriage.
51
When can a judicial separation order be sought?
At any time after the marriage, not subject to the 'one year rule'.
52
Who might seek a judicial separation?
Clients with religious or moral objections to divorce.
53
What is the effect of a judicial separation order?
It ends marital obligations but does not dissolve the marriage.
54
What financial orders can the court make in a judicial separation?
The same as in divorce, except for pension sharing or clean break orders, including: * Maintenance pending suit * Periodical payments * Lump sum orders * Property adjustment orders * Pension attachment order * Orders for sale
55
How does judicial separation affect the parties' wills?
Wills remain unaffected; if one dies intestate, property devolves as if the other had died.
56
Can parties remarry after a judicial separation?
No, they cannot remarry until they obtain a divorce.
57
What must the applicant complete to seek a judicial separation?
A statement of judicial separation on application Form D8S.
58
Can both partners jointly apply for a judicial separation?
Yes, it is possible to jointly apply for a judicial separation.
59
True or False: A judicial separation order dissolves the marriage.
False.
60
What is nullity in the context of marriage?
Nullity is the annulment of a marriage, declaring it either void or voidable.
61
What are the two types of nullity?
* Void * Voidable
62
What does it mean for a marriage to be void?
A void marriage is treated as never having existed due to policy reasons prescribed by statute.
63
What does it mean for a marriage to be voidable?
A voidable marriage exists but can be annulled at the option of one party due to defects.
64
What is the consequence of a void marriage?
The marriage is treated as never having existed.
65
What is the consequence of a voidable marriage?
The marriage exists and is valid until a nullity of marriage order is obtained.
66
What grounds can make a marriage void?
* Parties too closely related * Either party under 18 at the ceremony * Either party already lawfully married
67
What are prohibited degrees of relationship?
* Parent and child * Grandparent and grandchild * Siblings
68
What grounds can make a marriage voidable?
* Non-consummation * Lack of consent (duress, mistake, unsoundness of mind) * One party suffering from a mental disorder * Interim gender recognition certificate issued to the respondent
69
Can an applicant obtain a nullity of marriage order if they behaved in a way leading the respondent to believe they would not seek to end the marriage?
No, they cannot obtain the order.
70
What orders can parties to both void and voidable marriages apply for?
* Orders related to children * Orders related to property and finance
71
What are the available orders in relation to children?
* Child Arrangements Orders * Prohibited Steps Orders * Specific Issue Orders
72
What are the available orders in relation to property and finance?
* Orders for maintenance pending suit * Periodical payments orders * Lump sum orders * Property adjustment orders * Orders for sale * Pension sharing orders * Pension compensation sharing orders
73
Under what conditions are children of a void marriage legitimate?
* Both parents believed the marriage was valid * The father was domiciled in England and Wales at the time of birth
74
How does a nullity of marriage order affect a will?
A nullity order has the same effect as a divorce; the ex-spouse is treated as having died on the date of the order.
75
What happens to a will if a marriage is declared void?
The will is not revoked because the marriage is treated as never having existed.
76
What happens to a will if a marriage is voidable?
Any previous will remains valid as if the marriage was valid.
77
What occurs if a will does not specify another beneficiary after a nullity order?
The assets will pass under the intestacy rules.
78
What is non-court dispute resolution (NCDR)?
Methods available to couples to resolve a divorce without going to court.
79
What are the pros of parties negotiating their own agreement?
* Cheapest option * Avoids perception of one party hiring solicitors first.
80
What are the cons of parties negotiating their own agreement?
* Complex divorces may require legal advice * Works best when trust exists between parties.
81
What is solicitor negotiation?
Solicitors negotiate on behalf of each party through correspondence or round table meetings.
82
What are the advantages of solicitor negotiation?
* Better lasting decisions * Cheaper than litigation * Quick and confidential settlements.
83
What are the disadvantages of solicitor negotiation?
* Requires good faith from both parties * Can lead to siloed communication * Protracted negotiations can increase time and costs.
84
What is mediation in family law?
A mediator helps couples resolve issues through negotiated agreement over several sessions.
85
What is a Mediation Information and Assessment Meeting (MIAM)?
A required meeting to assess suitability for mediation before court proceedings.
86
What are the pros of mediation?
* Cheaper than litigation * Can lead to quick, confidential settlements * Helps parties understand unreasonable positions.
87
What are the cons of mediation?
* Not binding * May not be suitable for vulnerable clients * Progress can slow if parties change their minds.
88
What is hybrid mediation?
A model where solicitors have an active role, providing support while parties negotiate separately.
89
What are the benefits of hybrid mediation?
* Suitable for vulnerable clients * Creates a safe space for discussion * Allows time between sessions for consideration.
90
What is collaborative law?
A process where parties attend meetings with collaborative lawyers to resolve issues amicably.
91
What are the advantages of collaborative law?
* Tailored process * Reduces animosity * Involves other professionals if needed.
92
What are the disadvantages of collaborative law?
* Risk of no agreement * Requires new solicitors if the process fails * Not effective with deep mistrust.
93
What is early neutral evaluation?
An evaluator provides a non-binding opinion on the likely court outcome to aid negotiation.
94
What are the pros of early neutral evaluation?
* Narrows issues * Helps parties become realistic about their legal position.
95
What are the cons of early neutral evaluation?
* Non-binding outcome can be ignored * Potential waste of time and costs.
96
What is arbitration in family law?
A process where an independent third party makes a binding decision on the dispute.
97
What are the benefits of arbitration?
* Quicker and more flexible * Confidential * Binding outcomes.
98
What are the limitations of arbitration?
* Not suitable for cases needing court evidence testing.
99
What is the Certainty Project?
A Med-Arb process involving mediation followed by arbitration if necessary.
100
What are the benefits of the Certainty Project?
* Focuses parties' minds on amicable resolution * Confidential and quicker than court * Produces a decisive outcome.
101
What are the potential drawbacks of the Certainty Project?
* Can be costly due to dual processes.

Family Law (2 decks)

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