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Family & Matrimonial Law Explained

Family law and matrimonial law are about families, and matters that affect families and individuals and their relationships. Within the field of family law are all kinds of issues such as marriage, separation, and divorce, as well as child adoption, custody, and access. Matrimonial law is a branch of family law that specifically deals with issues that relate to marriage.

What Defines a Family?

The definition of a family was once very specific and clear-cut: a husband, wife, and children made up the immediate family, and the extended family included grandparents, brothers and sisters, and aunts and uncles. This traditional concept of a family has been turned on its head as society has changed over time, and the legal concept of family isn’t the same as it used to be either.

The legal term “family” used to refer specifically to people who were either blood relatives, or related to each other by marriage. Now, that definition has expanded to include people who are linked in other ways too. For example, a family doesn’t necessarily include a husband and wife pair: it may include two same-sex adults, or two people who are in a long-term relationship but are not married. To account for the modern definition of family, the law now considers other factors such as emotional ties and commitments.

What Kinds of Issues Qualify as Family Law?

Most family law issues relate to marriage and long-term marriage-like relationships, but family law also includes other issues relating to families.

In adoption cases the individual or couple who want to adopt a child must petition the family court for an adoption order. When granted, this order transfers all the rights and responsibilities of parenthood are transferred from the biological parents to the adoptive parents.

When someone is a victim of domestic abuse, the victim can apply for a non-molestation order or an occupation order. The non-molestation order is granted to protect the victim from their abuser, while the occupation order regulates who can and can’t enter the home where the victim lives.

The Court of Protection exists to protect people who for any reason cannot advocate on their own behalf, or make decisions about their own welfare. This court can make decisions on the person’s behalf, or can appoint a guardian or deputy to make decisions.

Public Family Law Cases for Child Protection

Most family law issues are private family law cases, which means they’re disputes between private individuals. However, sometimes cases that involve children can become what are called public family law cases. This happens when the case is brought by a local authority because a child has been neglected or abused, or is in danger of being neglected or abused. Public cases may involve care orders, supervision orders, or emergency protection orders, which provide different levels of protection for a child who is at risk.

Matrimonial Law

The field of matrimonial law covers matters that relate to marriage, separation, divorce, and child custody. Because the law recognises that not all intimate relationships involve marriage, this field of law also covers matters relating to civil partnerships and long-term marriage-like relationships.

  • Marriage, civil partnership, and cohabitation agreements
  • Separation and divorce
  • Property rights, asset distribution, and financial settlements
  • Adoption
  • Parental responsibility orders, for example child maintenance payments
  • Child arrangement orders

What Happens in Family Law Proceedings?

The various types of family and matrimonial law matters differ in many ways, but most share some similarities in terms of the processes that are involved.

In most cases, disputes in family law don’t reach the point where the courts get involved. This is partly because most people prefer to solve their disputes without resorting to the court system, especially when children are involved in the dispute. Another reason that the court doesn’t usually become involved is simply because the law requires that in family disputes, the disputing parties attempt one or more alternative resolution methods before they petition the court.

Alternative Methods of Dispute Resolution

There are two main methods of family dispute resolution that don’t involve court proceedings. They are mediation and collaborative law.

In mediation the parties involved in the dispute meet with a trained mediator. Their solicitors may also be present at the meeting. During mediation sessions the mediator acts as a facilitator to help the disputing parties reach an agreement. This method is useful because it provides a neutral place for the discussion, with the mediator to guide the process and ensure that all parties have the information they need to make good choices.

Mediation agreements are not legally binding, and there are no legal consequences if either party fails to comply with the agreement. To make the decisions legally binding a solicitor must draft legal documents for each party to sign.

In collaborative law the disputing parties and their solicitors have a series of meetings with the stated purpose of reaching a fair agreement that they are both satisfied with. There is no mediator present in this process, so it’s important that both parties work with a solicitor who has collaborative law training.

Once agreements have been reached the solicitors draw up legal documents. Once these have been signed, the agreements are legally binding.

Court Proceedings

Alternative methods of dispute resolution work well for most people, but they don’t work for everyone. When a dispute isn’t solved with mediation or collaborative law, the disputing parties can apply to the court if they want to take the matter further.

In addition, processes like mediation aren’t always the right choice in every situation. For example, in cases of domestic abuse there exists in the relationship a power imbalance that makes it impossible to negotiate a fair agreement. In these cases the mediation requirement is waived and the case can immediately proceed to court.

When the court does become involved, most family and matrimonial law matters are dealt with by the Family Division of the High Court, County Court, or a specialist Family Proceedings Court, which is presided over by a magistrate rather than a judge.

The court process starts when one party applies to the court for a specific order, the nature of which depends on the kind of dispute that’s involved. For example, when a divorcing couple can’t agree on asset distribution or child custody, one party might apply for a financial order or a child arrangement order.

Once the application has been made and received by the court, initial hearing dates are set. The first is an appointment date to ensure all parties involved supply relevant information to the court. The second date is for a final pre-trial hearing, at which a last effort is made to resolve the dispute. If this hearing doesn’t provide a resolution the court then sets a trial date.

At the trial, both parties can give evidence and call expert witnesses to give evidence if they are required. They can choose to hire a family law solicitor to represent them, or may represent themselves. Once all evidence has been given the judge makes a legally binding ruling.

How can a Family Law Solicitor Help?

Family law solicitors can provide help in many different ways, whether or not someone is going to court for assistance with a legal matter. For example, a family law solicitor can:

  • Provide legal advice for someone who is involved in a family law dispute, such as a divorce or child custody dispute.
  • Draft legal documents and complete and file forms pertaining to a family law matter. For example, a marriage agreement or cohabitation agreement.
  • Provide assistance and advocacy for someone who’s going through the mediation or collaborative law process.
  • Represent someone who petitions the court for help resolving a dispute.
  • Help someone negotiate settlement terms after a separation or divorce.
  • Help someone apply for a specific kind of court order, such an injunction or protection order, a financial settlement, or a child arrangement order.
  • Help an individual or couple through the process of adopting a child.

Is Legal Aid Available for Family and Matrimonial Law Matters?

In most family law disputes, legal aid isn’t available, but there are still some special situations in which people can receive legal aid for a dispute that involves family or matrimonial law. For example:

  • Someone who has been a victim of domestic violence or abuse;
  • A case where a child has been threatened or harmed;
  • A person has a disability or a mental or physical health condition that limits their ability to represent themselves in court;
  • The case has a high level of complexity.

Legal aid is also available for people who choose mediation as a method of dispute resolution, even if no special situations apply.