Leducate Explains: Family Law
Hint - key terms are defined. Just click on the bold blue words to see their definitions!
In this article, we take a look at what we mean when we say ‘family law’ and the areas it covers. We also look into the recent law reform that has drastically changed divorce law.
What is family law? As a generalisation, it is split into two sub-categories: public and private law. Although both can overlap, generally, private law involves interactions between private citizens, whereas public law involves the state and its citizens.
Family law can involve issues surrounding:
divorce/separation;
domestic violence;
children;
abduction;
care.
For example, if a couple is divorcing, there are often two arguments: children and money. Who will the children live with? How much money should each party receive from the divorce? These are questions that the parties sometimes cannot agree on between themselves. As such, the court usually becomes involved to help deal with these issues.
Divorce, Dissolution and Separation Act 2020
Prior to 2020, if a party wished to obtain a divorce, they had to prove that their marriage had irretrievably broken down. In order to prove this, that party had to rely on one of five “facts”:
adultery;
behaviour which the applicant cannot be expected to live with;
desertion;
the parties have lived apart for two years and they consent to a divorce;
the parties have lived apart for at least 5 years.
However, there were three major problems with the old law.
Relying on one of the five “facts” above effectively places blame on one party. This can cause animosity, which if the parties have children together, can cause harm to children.
The old law could and was used as a way to control partners as they were allowed to contest the divorce.
There are some cases where someone seeking a divorce cannot immediately rely on one of the five facts. Without consent, or a being able to rely on facts 1 - 3 above, the party seeking divorce would potentially have to wait 5 years to obtain a divorce.
Consequently, as of 25 June 2020, the Divorce, Dissolution and Separation Act 2020 received Royal Assent – it is now the law in England and Wales. The aim of this Act was to remove blame in divorce cases. The reforms involved:
Removing the requirement for a party to rely on one of the above facts. Under the new law, only a statement to the effect that the marriage has irretrievably broken down is required. This is the first time that parties can petition for divorce in a joint petition. The change in the law allows couples to come together and decide to end their marriage. This helps shape a positive outlook for the couple’s future. If couples can come together and harmoniously agree to a divorce, it creates a positive atmosphere for the parties to make other decisions, for example deciding where children will live.
There is no longer the opportunity to contest the divorce. Instead, a statement that a marriage has irretrievably broken down will be conclusive evidence. This is reasonable given that a marriage takes two to work. If one party no longer believes in the marriage, it seems only best that they should be allowed to leave it.
Increasing the time frame. Under the old law, on average, it took 4 - 6 months to finalise the divorce. The new law now imposes a minimum timeframe of 6 months from the initial application stage to the granting of a divorce. This offers couples additional time to reflect. Not only is it beneficial for the couples, but also for the children. The additional time allows for couples to best agree on important arrangements for children, like how to best support their children.
As can be seen from the above, the Divorce, Dissolution and Separation Act has significantly changed the law surrounding divorce. Not only has it delighted many lawyers, but more importantly, it will help parties going through a divorce to have an easier, less acrimonious court case. And the less anger in the world, the better.
Written by Sarah Hayward
Glossary box
Public Law - This is an area of law that involves public bodies, such as central and local government
Private Law - This is law around relationships between private citizens, like yourself.
State - This is a nation under one government.
Joint Petition - In this context, where two people apply to get divorced together, they are petitioning the court together.