The prospect of divorce or family law proceedings can be daunting in itself. Having to digest legal language on top of everything else can feel even more consuming. We have consolidated some of our archives to bring you one helpful, demystifying, page. This way, you can be confident in the terms that are frequently used by family solicitors when giving legal advice, and in the family courts environment.
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Explore our family law jargon buster
It is in alphabetical order, so scroll to find the term you are looking for!
ADULTERY: Adultery is voluntary sexual intercourse between a married person and someone of the opposite sex who is not their spouse. To rely on adultery in a divorce petition, you must not have lived with the adulterer for a period of 6 months or more after discovering the adultery. Current law does not include homosexual sex within the definition of adultery, so if this is the reason for the marital breakdown, another option such as an unreasonable behaviour divorce petition should be considered. It is possible to name the person with whom the adultery was committed within the petition but generally it is considered good practice not to do so in order to reduce unnecessary acrimony and keep legal costs down.
ALIMONY: This is an American term that often creeps into news articles and discussions here in the UK. Alimony means the payments, often monthly, made from the higher-earning spouse to the other after divorce. In the UK we call this Spousal Maintenance. It is subject to strict guidelines regarding when it is appropriate, how it should be paid and for how long. It has fallen out of favour in many courts over recent years as the merits of a ‘Clean Break’ appeal to many. Spousal maintenance is still appropriate in some cases but the individual circumstances will be taken into account to establish whether there is a requirement for ‘Alimony’.
ANNULMENT: Unlike divorce, this is a legal declaration that a marriage is null and void. It can only be applied for if the marriage was entered into improperly at the time. It is a retrospective declaration. Some examples of situations where a marriage may be annulled are: if it was entered into under duress; one party was already married; or either party is under 16.
ARBITRATION: A term used to describe a process often referred to as private litigation. It involves an independent and impartial arbitrator (in a family law context this is a specialist solicitor, barrister, legal executive, or judge) deciding any issues that opposing parties cannot agree upon. The parties choose the arbitrator between themselves and agree in advance to be bound by the arbitrator’s decision. The process is confidential, as hearings are held in private. It is often hailed as being a quicker and sometimes cheaper process than formal court proceedings. Once a decision has been made, parties will apply to the court to confirm the terms of the settlement. It is only in very rare cases that a court will make an order in terms different to the arbitration award.
CAFCASS: A CAFCASS Officer is a court welfare officer who may be appointed by a judge or the magistrates in cases involving children. The CAFCASS Officer would carry out inquiries on behalf of the court and write a report setting out recommendations of how to deal with the matter in the best interests of the child(ren). The appointment of a CAFCASS Officer is common in cases where it is being argued which parent a child should live with, and in contact cases, particularly where there may be welfare issues.
CHILD ARRANGEMENT ORDERS: These were introduced in 2014 after a legislative change brought about by the Child Arrangements Programme. Previously, the court made a Contact and/or Residence Order setting out the times that a child would spend with or live with each parent. Effectively, the introduction of Child Arrangement Orders reflects a change in terminology rather than in the law itself.
CHILD MAINTENANCE: When a relationship breaks down and there are children who are under 16, under 19 & still in full-time secondary education, or under 18 and waiting to start a youth work or training programme, the parent who is not residing with the children on a full-time basis is liable to pay child maintenance. There is a recognised standard formula for the calculation of child maintenance which derives from the Child Support Agency Regulations. Voluntary maintenance agreements between parents should be encouraged, but where this is not possible an application to the CSA for assessment can be made by either parent. Alternatively, the Court can be invited to rule upon the issue.
COHABITATION: This is an arrangement whereby an unmarried couple live together and carry on a relationship. If the relationship breaks down, the laws that apply to separating married couples in terms of dealing with financial issues, do not apply to unmarried couples. To prevent legal issues arising if the relationship breaks down, some cohabiting couples choose to enter into a Cohabitation Agreement, which specifically sets out how they would like to deal with their assets in the event of separation.
COLLABORATIVE LAW: Some lawyers are specially trained in Collaborative Law, a form of alternative dispute resolution. In other words, it presents an alternative to litigating a family matter through the courts. It is similar to mediation in the sense that it involves the parties sitting around a table to discuss and negotiate matters, with the sole aim of reaching a settlement out of court. However, the difference is, that parties will have their lawyers present.
COMMON LAW MARRIAGE: This is a term often used to describe a relationship where people are living together as husband and wife but have never actually married. However, it is a social term used to describe cohabiting couples and carries no legal rights or responsibilities. A cohabiting couple does not receive the same legal treatment as a married couple upon the breakdown of their relationship. For this reason, the term ‘common law marriage’ is very misleading. An unmarried couple should always consider having a cohabitation agreement setting out how their assets should be divided in the event of relationship breakdown and should take legal advice as to how their assets would be dealt with in the event of their separation.
CONSENT ORDER: Divorcing couples often reach an agreement out of court in respect of their finances, either by negotiation between themselves, with the help of solicitors or through mediation. In order for that agreement to be binding, the terms must be incorporated into a Consent Order. This is then submitted to the court and, if approved, the Judge will seal the order. This renders the order enforceable in the event of a breach and (in most circumstances) will dismiss all other claims that one party has against the other in full and final settlement. This is called a ‘Clean Break’.
CIVIL PARTNERSHIP: A Civil Partnership allows same-sex couples the same property rights and tax benefits as heterosexual married couples. It was introduced by the Civil Partnership Act 2004. There remained certain important differences between marriage and a Civil Partnership, such as spousal pension rights, and campaigners continued to argue for equal rights. Several years later in 2013, the Marriage (Same Sex Couples) Act legalized same-sex marriage. Same-sex couples can now opt for either a Civil Partnership or marriage.
DECREE ABSOLUTE: This is the final order of the court which dissolves the marriage. The court will send a Decree Absolute to both parties and this document replaces the marriage certificate for all legal and formal purposes. The spouse who started the divorce (petitioner) can apply for a Decree Absolute after 6 weeks have passed after the date of the Decree Nisi. Once you have received the Decree Absolute, you are divorced and free to remarry.
DECREE NISI: This is an order of the court that the spouse who started the divorce (petitioner) applies for once the divorce petition has been sent to the other spouse (respondent) and there is proof of this. If the respondent defends the divorce or submits his or her own petition, the court cannot order the Decree Nisi until those issues are dealt with. In a straightforward divorce, the Decree Nisi is pronounced by the court. The petitioning spouse can then apply for the Decree Absolute once a 6 week period has expired. When pronouncing the Decree Nisi, the court will make a costs order dealing with who is to pay the costs of the divorce and will certify whether there are dependent children whose interests need to be considered throughout the proceedings.
DISCLOSURE: The disclosure process requires each party to provide full and frank information and documentation about their respective and joint financial circumstances. This means providing bank statements, mortgage statements, investment portfolio statements and details of liabilities, for example. It also includes providing company information if one person is a director or shareholder. If court proceedings have been issued, the disclosure process is obligatory and the duty of disclosure is ongoing. Where there are no court proceedings, disclosure is a voluntary process, although it would be usual practice for a solicitor to advise full disclosure.
FINANCIAL DISPUTE RESOLUTION: This is the second court appointment when financial proceedings have been issued through the courts. The purpose of the hearing is to encourage parties to negotiate. It is a without prejudice hearing, which means that parties will not later be held to negotiations that have taken place if no resolution is achieved. The Judge will usually offer an opinion as to how he or she would deal with the case if it went to a final hearing. The purpose of this indication is to assist and promote negotiations as much as possible.
FINANCIAL REMEDY PROCEEDINGS: Court proceedings to deal with how a divorcing couple’s assets are divided. They are separate from the divorce process which only deals with ending the marriage. If a couple is unable to reach an agreement about their finances, a judge will make an order at the end of financial remedy proceedings. The order is designed to ensure that each party walks away with a fair share of the “marital pot”. Where there are children, the court’s primary focus will be dividing the pot in a way that ensures their needs are met. Different financial orders can be made by the Family Court, including sale or transfer of property orders, lump sum payments, pension sharing orders and monthly maintenance payments (not to be confused with child maintenance!).
FIRST DIRECTIONS APPOINTMENT: This is the first court appointment when financial proceedings have been issued through the courts. The First Directions Appointment is a procedural hearing. The Judge will make various directions to ensure the smooth running of the case. These directions may include dates for the next hearing, the production of documents and valuation of assets, for example.
Form E: This is a standardised form used in financial proceedings in matrimonial cases. The form is lengthy and requires significant financial detail to be filled in by both parties. The form also requires paper evidence to be appended to the form documenting the information provided. Normally, the paper evidence required should encompass the 12 months prior to the date of the Form E, although it is sometimes necessary to provide more historical evidence, depending on the circumstances. A solicitor can complete a Form E on your behalf so long as they are provided with the relevant information and paperwork.
HABITUAL RESIDENCE: This term is relevant when you are filling in a Divorce Petition. It is not actually defined in the statute books and therefore has created some legal argument in the past. Essentially, to describe yourself as ‘habitually resident’ in England or Wales, you must have a regular physical presence in the country (even if that presence is illegal!). Temporary absences will not prevent habitual residence. If a person is not habitually resident, they should look to see what their ‘domicile’ is. These terms are important when deciding if the court has the jurisdiction to deal with the divorce or whether the divorcing couple actually has a choice as to where to issue divorce proceedings.
INTERIM MAINTENANCE: Payments made during divorce proceedings from one spouse to the other. It is intended to provide financial support to the lower-income spouse until a full and final settlement is reached. Interim maintenance can be paid voluntarily but if it cannot be agreed, one spouse can apply to the court to secure payments.
LEGAL SEPARATION: A legal separation is an agreement between parties who are separating, as to how they will deal with children or money matters. Many people see this as a cheaper alternative to court proceedings. However, obtaining a divorce and a court-approved financial settlement will enable both parties to see a finite end to their marriage with no risk of either party making a further claim in the future. A Legal Separation will not offer this protection.
LIBERTY TO APPLY: These words are often included at the end of a Court Order, particularly in relation to matrimonial finances. The words envisage that either one of the parties to the proceedings may need to come back to court to resolve disputes about interpretation of the order, particularly in light of new circumstances that had not been anticipated at the time that the Order was made. Be warned though, a Liberty to Apply clause at the end of the Order is not an open invitation to have it changed by the court.
LITIGATION FRIEND: In the face of legal proceedings, a person can either apply to become a litigation friend, or the Court can appoint somebody to become one. Someone who is likely to need a litigation friend is an adult who lacks full mental capacity, or a child. A litigation friend can be a parent or guardian, family member or friend, a solicitor, a professional advocate, a Court of Protection Deputy or someone who has a Power of Attorney. If there is no-one suitable, the Court may appoint the Official Solicitor to act as a Litigation Friend. The main duty of a Litigation Friend is to make decisions in the other person’s best interests and explain to them what is going on in the case as far as is possible, establishing their wishes and feelings. They may also be required to get advice from a legal representative on their behalf and pay any costs ordered by the Court.
McKENZIE FRIEND: A person who assists you in court proceedings. A McKenzie friend does not need to be legally qualified and their role is to assist you in proceedings if you do not have a solicitor or barrister representing you. They can assist by taking notes, suggesting questions to raise or things to say to the judge or helping you to organise documents. They would not be there to make representations to the judge in your place.
MEDIATION: This is an out-of-court solution to resolving issues arising out of the breakdown of a relationship. With the assistance of a trained mediator who facilitates discussion and negotiation between the parties, a settlement can be reached in just a few sessions. It is a more pragmatic and cost-effective approach than expensive court proceedings or months of correspondence between solicitors. Where court proceedings are issued in relation to children or finances, it is expected that parties will have at least considered the viability of mediation and should have attended an initial mediation meeting known as a MIAMS.
OCCUPATION ORDER: An Occupation Order can be applied for through the courts under the Family Law Act 1996. If granted, an Occupation Order can entitle one spouse to remain in the family home whilst the other is prohibited or restricted from living there or entering the surrounding area. These orders are usually temporary and are sometimes appropriate in cases where there is domestic violence. The court will weigh up the potential harm that could be caused by there not being an Occupational Order in place when deciding whether to grant it.
PARENTAL RESPONSIBILITY: Parental responsibility means the legal rights, duties, powers, responsibilities and authority that a parent has for a child and their property. A person who has parental responsibility for a child has the right to make decisions about their care and upbringing. The definition is not clear-cut and there have been several cases regarding the meaning of the term ‘Parental Responsibility’ and specifically what the rights and responsibilities entail in practice.
POST-NUPTIAL AGREEMENT: A post-nuptial agreement is very similar to a pre-nuptial agreement in that it’s purpose is the same: to set out a financial settlement that will take place in the event of a future breakdown of the relationship. A post-nuptial agreement is a contract entered into by two people after they have already married. There is guidance that has emerged from case law as to what makes a post-nuptial agreement enforceable. It must be noted, however, that the court has ultimate discretion in this area and as such a post-nuptial agreement can never be guaranteed.
PRE-NUPTIAL AGREEMENT: A pre-nuptial agreement is a contract entered into in contemplation of marriage. The purpose of the agreement is to set out a financial settlement that will take place in the event of a future breakdown of the relationship. There is guidance that has emerged from case law as to what makes a pre-nuptial agreement enforceable. It must be noted, however, that the court has ultimate discretion in this area and as such a pre-nuptial agreement can never be guaranteed.
SHARED RESIDENCE: After separation one of the most contentious issues can be where the children will live. This used to be referred to as ‘custody’ but this is a term which is no longer used. The Children Act 1989 rules that a child’s welfare is paramount and will be given absolute priority before any order is made in relation to that child or children. Shared residence is the term given to an arrangement after separation of the parents whereby the child or children split their time between their parents’ residences. It need not be an even split for it to be termed ‘shared residence’.
UNREASONABLE BEHAVIOUR: This is probably the most common reason cited in a divorce petition for the irretrievable breakdown of a marriage. The person petitioning for the divorce is required to set out examples of their spouse’s behaviour to show why he or she cannot reasonably be expected to live with them. It is considered good legal practice to keep the examples to a minimum and as mild as possible in order to reduce unnecessary acrimony between the parties.