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What Is Family Law

Family law is a field of law that deals with legal matters that affect families, such as separation and divorce, dissolution of civil partnerships, adoption, child contact and residence. Most people consider their families to be very high priority — if not the highest — which makes family law very important both to individuals and to society as a whole.

Family Law Defined

While there is no single legal definition for the field of family law, it can be roughly defined as the body of law that governs relationships between individuals, including adults and children: for example, relationships between children and their parents or guardians, and relationships between adults through marriage or civil partnership.

Who is Family Law For?

Family law is of course for families, but what is a family? The traditional “husband, wife, and children” definition is no longer the standard, nor is it even considered desirable for a large number of people — and in fact that legal definition of what constitutes a family has changed in the last several decades.

While the law once considered the term “family” to specifically mean individuals linked by genetic relationships or marriage, this definition is now wider, in recognition of the fact that families can include individuals who aren’t linked by either of these means. For example, an adult couple who are in a long-term relationship but are not married adults in a civil partnership.

Because there is no single legal definition for what constitutes a family or defines family relationships, matters that involve people not linked by marriage, civil partnership or blood are taken on a case-by-case basis in terms of determining whether they are a family in the eyes of the law.

So, family law is for people who are linked by marriage, civil partnership or blood, and also for people who are linked by close emotional ties, mutual interdependence, support, and commitment.

How can a Solicitor Help?

Family law solicitors can provide help for individuals and families in a number of different ways, many of which don’t necessarily involve going to court. A solicitor can also provide advice, and perform services such as drafting legal agreements. For example:

  • Providing legal advice during the separation or divorce of a couple who are either married or in a civil partnership, or the separation of an unmarried couple
  • Drafting legal documents such as marriage, civil partnership and cohabitation agreements
  • Helping an individual apply for a financial order for the distribution of assets following a break up
  • Helping victims of domestic violence apply for an injunction or protection order
  • Helping an individual or couple apply for an adoption order
  • Providing advice during mediation or the collaborative law process

Examples of Family Law Matters

Most family legal disputes relate to adult relationships — in particular, separation and divorce, and related matters such as financial settlements, division of assets, and residence and contact issues — but there are many other aspects of family law.

Adoption: When the family court grants an adoption order, the rights, duties, and obligations of the biological parents of the child are removed and transferred to the adoptive parents. In the eyes of the law, the adoptive parents are the child’s sole parents for all legal purposes, with few exceptions.

Marriage & Civil Partnership: The family courts can end a marriage or civil partnership with a decree absolute, or a decree of nullity in respect of a divorce and a final order in respect of a civil partnership. In the case of a divorce, the court decrees that a valid marriage is ended and in the case of a civil partnership the final order dissolves the civil partnership. When the decision is a decree of nullity, the courts decide that the marriage or civil partnership was not valid. For example, if either party to the union is under 16 or is already married or in a civil partnership, the relationship can be declared legally invalid.

Domestic violence: A court can grant two types of orders to protect people who are victims of domestic violence. The non-molestation order is granted to protect a victim from their abuser’s violent or threatening behaviour. An occupation order defines or regulates who can visit or live in the home. For example, it might order an abusive partner to leave the home, and prevent them from coming within a certain distance of the home.

The Court of Protection: The function of this specialist court is to protect people who lack capacity to deal with their affairs. The Court of Protection has the authority to decide whether a person is capable of making a specific decision for themselves.

Public versus Private Family Law

When family law involves children, legal matters can be split further into two categories: public and private.

Public family law cases are those which are brought by local authorities. For example, supervision orders, care orders, and emergency protection orders, which are brought by local authorities when a child is in danger of neglect or abuse, or where the local authority wants to supervise a child’s progress to ensure they are not being neglected or abused.

Private family law cases are brought by individuals. These most often involve the separation or divorce of a child’s parents, and are brought to settle matters pertaining to residence, contact, guardianship, and financial responsibility. Before the court will hear these private cases, the parent who wishes to make an application to the court must attend a mediation information and assessment meeting (MIAM).A MIAM will consider if the issues can be resolved through the mediation process. Matters don’t need to be resolved at this meeting but it should occur first and prior to any court proceedings.

Legal and Court Processes

Matters of family law are dealt with by a Family Court. However, many family disputes don’t ever reach the courts. Instead, they’re resolved with the help of solicitors, who facilitate negotiation between the parties involved in the dispute.

For most family disputes—particularly the financial arrangements of a marriage or civil partnership dissolution—the law requires that the parties involved attend a meeting to discuss the possibility of resolving the dispute via mediation and other alternatives to court processes. If mediation is rejected as a method of resolution, or if mediation fails to settle the dispute, the parties are then allowed to apply to the court for resolution.

In this process, one or both parties must apply to the court for the orders they are seeking. Once the application is received the court issues directives to all the parties involved, and sets dates for two appointments: the first to ensure that both parties supply and receive all relevant information, and the second to make a final attempt at resolution before setting a trial date. If the dispute can’t be resolved at this point, a date is set for the trial.

At the trial, both parties are allowed to give evidence, and expert witnesses may also be required to give evidence. Once both parties and their witnesses have given evidence, the Judge makes a ruling.

Alternatives to the Family Court System

It’s often much less disruptive for families—especially those with children—to avoid the courts system, and instead seek alternative methods of solving legal problems. This is particularly the case when a marriage or civil partnership is ending, as court involvement tends to put more pressure on the divorcing adults. Alternative methods of resolving family disputes include mediation and collaborative law.

Mediation: A trained mediator helps the disputing parties negotiate an agreement that works for them both. The mediator doesn’t actually make decisions, but they help to ensure that both parties have access to all the information they need to understand their rights and responsibilities, and to make the best choices for themselves and everyone else involved in the dispute.

Mediation ensures that both parties have a neutral forum for discussion, with a mediator to guide the process. Ideally, each party involved in the mediation also has their own independent legal adviser to provide advice and assistance during this process.

Collaborative law: This process is somewhat similar to mediation, but it doesn’t include a trained mediator. Instead, this process involves a series of meetings between the parties and their solicitors, with the express purpose of avoiding court and reaching an agreement that is fair for everyone concerned.

Collaborative law, like mediation, is designed to facilitate communication, particularly important because many family disputes—in particular the end of a marriage or civil partnership—involve a breakdown in communication. The solicitors help by guiding the process, ensuring that discussions remain civil and productive, and by providing legal advice. Note that this process requires that both parties engage solicitors who are trained in collaborative law.

While alternative methods of dispute resolution are preferred by most people as well as by the courts, there are reasons why it’s not the right choice in every situation. For example, alternative methods are not suitable for disputes that involve domestic abuse, because the power imbalance in the relationship between the abuser and their victim makes fair negotiation impossible. In cases of domestic abuse, the requirement that couples try or consider mediation first before applying to the court is waived.

Legal Aid for Family Law Disputes

For the most part, matters pertaining to family law no longer qualify for legal aid,however there are some exceptions. Depending on the financial circumstances of an individual, legal aid may still be available for:

  • People who are victims of domestic violence, in cases where there has been a recent incident of abuse to a parent or child, or where there have been threats or harm to a child.
  • Solving family disputes via mediation.
  • Those at risk of losing their home or of homelessness.

Any party seeking legal aid would need to find a legal firm or solicitor to represent them that also offers legal aid.

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