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Legal terms explained

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Access

This is now called contact.

Acknowledgment of service

A standard form (sent by the court with the divorce petition/matrimonial order application) that the respondent (and any co-respondent) must sign and return to the court to confirm that they have received the petition/matrimonial order application and saying whether or not they agree to the divorce.

Adjournment

In a family law context, this generally means a hearing is postponed to a later date.

Adultery

Sexual intercourse that takes place during the marriage between a spouse and someone of the opposite sex who is not their husband or wife. This is one of the five facts or bases for getting a divorce.

Alimony

See maintenance.

Appeal

The process of asking a higher court to change the decision of a lower one.

Applicant

The person applying to court for an order.

Ancillary relief

This is now called financial proceedings or financial remedy application.

Answer

This is the formal defence to a divorce petition/matrimonial order application, rebutting the evidence. This may be necessary if there are allegations that are unnecessarily offensive, or if those allegations might prejudice discussions about parenting or finances if unchallenged. It is very rare for divorces to be defended.

Arbitration

An alternative to a judge deciding the case introduced in early 2012. The parties can choose an arbitrator to rule on all or just some of the issues in dispute. The arbitrator’s decision (called an award) is then made into a binding court order.

Barrister

This is a lawyer who spends the majority of his or her time arguing cases in court. Barristers also use that advocacy experience to work with solicitors in advising on possible outcomes. Also referred to as counsel.

Cafcass

This is the Children and Family Court Advisory and Support Service. A Cafcass officer assists the court with matters relating to children and, in disputed cases of contact or residence for example, may be asked to prepare a report for the court on what orders or action would be in the children's best interests.

Child abduction

The wrongful removal or wrongful retention of a child from his or her place of normal, day-to-day residence in breach of one parent's rights of custody.

Child maintenance

An amount that the parent not living with their child pays to the other parent in order to support the child.

CEV

A cash equivalent value (CEV) is the value of the rights accrued within a pension scheme (previously called cash equivalent transfer value).

Charge on property

This is sometimes used as a means of security if one spouse is awaiting payment of a cash lump sum on a delayed sale of a home. It works like an additional mortgage, but without interest being paid, and is usually expressed as a percentage of the value of the property. It gives the holder of the charge security because they know that they will be paid out of the proceeds of the eventual sale.

Chattels

Legal term for personal effects, usually house contents or personal possessions.

Circuit judge

In the family law context, this is a senior judge who deals with the more complicated cases in the county courts. Appeals from a district judge's decision are heard by a circuit judge.

Civil partnership

The Civil Partnership Act 2004 came into operation on 5 December 2005 and enables a same sex couple to register as civil partners. Being civil partners enables the couple to have equal treatment to a heterosexual married couple in a wide range of legal matters, including on the breakdown of the relationship.

Clean break

An order of the court barring any further financial claims between the divorcing couple. A clean break settlement cannot include spousal periodical payments/maintenance (it can include child maintenance though). A clean break is only effective if the financial agreement is confirmed within a court order. The court has a duty in all financial proceedings to consider whether a clean break is possible.

Cohabiting/cohabitation

An arrangement in which an unmarried couple lives together in a committed personal relationship.

Collaborative law

An approach to dealing with family law issues such as finances on divorce and children arrangements built on mutual problem solving where the couple and their lawyers pledge to work together to negotiate an agreement without going to court.

Committal to prison

Sending a person to prison for breaching a court order.

Common law husband and wife

This is a common misconception; there is no such thing as a common law marriage. The rights and responsibilities of a couple who live together but are not married differ greatly to those of a married couple.

Consent order

A court order made by a court giving effect to the settlement terms that have been agreed between a husband and wife.

Contact

This was previously known as access. It usually refers to the arrangement for a child to visit or stay with the parent with whom they no longer have their main home. This can be by an order of the court in a contact order or by agreement between the parents. Indirect contact means the exchange of letters, telephone calls or presents. Contact orders can also be made in favour of others, such as grandparents.

Contact orders

Orders requiring the person with whom a child mainly lives to allow the child to visit or stay with the person named in the order. See also contact.

Co-respondent

A person with whom the respondent is alleged to have committed adultery. A person should not be named in a matrimonial application unless the applicant believes that the respondent is likely to object to the making of an order.

Counsel

Another name for a barrister.

Counselling

Specialist counsellors, with the right background, are able to help adults or children who are going through a separation. Other help can be provided by psychologists, therapists and family mediators with specialised training in working with adults or children within the family context. These professionals can be referred to as family consultants.

Family consultants can be brought into the collaborative law process to help spouses work out and articulate what they want, and to help and advise on ways to improve communication. Further support can help reduce conflict, help develop coping strategies for dealing with the emotional issues that may affect the family now and in the future and help everyone to move on with their lives following the divorce. Family consultants may also work with children, seeing them separately in appropriate cases, helping them to voice their thoughts, feelings, needs and concerns.

Court

The courts handle all types of family law disputes. There are different levels of courts. Most family law disputes are heard in either the county court (by a district judge or a circuit judge) or the family proceedings court, which is a specialist magistrates' court that deals only with family cases. The High Court deals with especially complicated cases.

Court fees

These are the fixed administrative costs paid to the court when making an application. Fees vary depending upon the type of application. If you are in receipt of public funding (legal aid), then the court fees are generally exempt.

Cost order

The court can order one spouse to pay the legal costs of the other. During a divorce, it is quite common for the respondent to contribute towards the applicant's costs. In most financial proceedings, there is a general presumption that each person will pay their own legal fees although costs orders can be made where there is “litigation misconduct”, for example a person is dishonest about his or her financial position or ignores court orders.

Child Support Agency (CSA)

Part of the Child Maintenance and Enforcement Commission (CMEC). Its role is to make sure that parents living apart from their children contribute financially to their upkeep by paying child maintenance. There is a child support calculator on the CSA website.

Custody

This is now called residence.

Decree absolute

The final order of the court, which terminates the marriage.

Decree nisi

The interim decree or order of divorce indicating that the court is satisfied that the marriage has broken down irretrievably. Six weeks and one day after decree nisi has been made, the applicant/petitioner can apply to the court to make decree nisi absolute (decree absolute) and the marriage is then terminated.

Directions order

A court order directing how the case will proceed (eg what evidence needs to be filed and what the timetable to trial is going to be).

Disclosure

This is the process of providing complete financial details about a person's capital, income, assets and liabilities. This is either done voluntarily or the court can order it. It is a necessary first step in any discussions about finance, even in mediation or in collaborative law. This is usually done by filling in a Form E.

District judge

A judge who sits in the county court. Most family disputes that end up in court are dealt with by a district judge.

Divorce

This is now called matrimonial order proceedings. This is the process which leads to the termination of a marriage. There are two orders: decree nisi and decree absolute.

Domestic violence/abuse

This has many forms including threats of and actual physical aggression, sexual abuse, emotional abuse, controlling or domineering behaviours, intimidation, stalking or passive/covert abuse such as neglect.

Divorce.co.uk

The most comprehensive free resource on the web, provided by the family lawyers at top 50 UK law firm Mills & Reeve. The information provided on the site aims to help families manage their way through relationship breakdown. Find out more at www.divorce.co.uk.

Duxbury calculation

Duxbury calculations are made to assist the decision as to whether or not a clean break is possible. The calculation produces a figure of what level of lump sum payment the recipient needs in order to spend the rest of their life at a certain amount of expenditure each year.

Equity

Refers to the net value of a property after mortgages or other charges are paid off.

Ex parte

This is now called without notice. It most commonly refers to emergency hearings that are conducted with only the applicant present at court. If the court makes an order at the without notice hearing, the judge will ensure that another hearing can be held quickly afterwards in order to hear the respondent's case and then make a final order. Often without notice hearings are used to deal with injunctions.

Family proceedings court

The name given to the division of the magistrates' court that deals with family law matters.

FDA

First directions appointment: this is the first court appointment in financial cases and tends to be mainly administrative (family lawyers sometimes refer to it as a "housekeeping" hearing). The judge will consider what information is needed from both sides in order to progress the case. If the couple is able to agree the directions prior to the FDA then it may be possible to treat it as a financial dispute resolution (FDR).

FDR

Financial dispute resolution appointment/hearing: the second court appointment under the standard procedure in financial proceedings. This is an opportunity for the parties to negotiate on a without prejudice basis and with the assistance and guidance of a judge. Importantly, the judge who deals with the FDR cannot take any further part in the case if it does not settle at that hearing, other than to give directions for progressing the case to a final hearing. The FDR can, in more simple cases, sometimes be combined with the first appointment (FDA) to save costs and speed up progress.

FHDRA

A first hearing dispute resolution appointment: the first court appointment in a private law children application.

Final hearing

The trial and the final court appearance in all proceedings. A judge will hear the parties and any experts give evidence and will make a binding court order as a result. In limited situations there are grounds for appeal.

Financial proceedings

See financial remedy application. These are generally the court proceedings following a divorce to reallocate the income and capital of a family.

Financial remedy application

This used to be called ancillary relief. This is the application to the court for financial orders following a divorce. The court can make a variety of orders about the finances of a divorcing couple. These are lump sum orders, property adjustment orders, property transfer orders, variation of trusts orders, periodical payments/maintenance and pension sharing orders.

Five-year separation

One of the five "facts" or bases for getting a divorce, ie, the couple has lived apart for five years (no consent needed).

Form A

The application form sent to the court that begins the process of dealing with the financial claims on a divorce. It puts in place a court led timetable for financial disclosure and also sets a court date, which will either be an FDA or an FDR depending upon how much can be done beforehand.

Form E

This is the court form setting out a person's financial circumstances (called financial disclosure) as well as details about what orders are sought. It is about the same size – and as much fun – as a tax return. It is obligatory to complete and confirm the truth of this form in court led proceedings. It is often also used as a checklist for voluntary financial disclosure and in those cases where the parties are able to come to a financial agreement without needing the help of the court, directly or through mediation or collaborative law.

Form G

This is a simple form sent to the court before the FDA confirming whether or not it is possible to combine the FDA and the FDR hearing.

Forms H and H1

These are forms filed before each court hearing, which provide details of each party's costs and what has been paid towards them.

Former matrimonial home

The house in which the divorcing couple were living together before they separated. If it is owner occupied, it is often one of the biggest assets that has to be dealt with on divorce.

Injunction

An order of the court preventing or requiring action, usually made in an emergency.

Interim maintenance

See maintenance pending suit.

Joint tenancy

A form of joint ownership of land in which both parties share the whole title to the property. If one party dies, the survivor will own the entire property (the "right of survivorship").

Judicial separation

A formal separation sanctioned by the court, which enables the court to make orders about money and property but does not actually terminate the marriage.

Leave to remove

An application to the court for permission to remove a child permanently from England and Wales. This is now called permission to remove.

Legal Services Commission (LSC)

This is a government funded agency providing legal funding or help to those individuals who both apply and qualify for help. The LSC works in partnership with solicitors and not-for-profit organisations to help over two million people each year to access legal advice, information and help. However, severe cuts to this funding in family cases have been approved by Parliament and will take effect in 2013.

Litigant in person

A person acting on their own behalf without assistance from a solicitor.

Lump sum order

A fixed sum of money paid by one person to another. It may be payable in one go or in instalments. This is one of the financial orders open to the court to make when deciding a financial settlement on divorce.

McKenzie friend

An individual who assists a litigant in person in the courtroom.

Maintenance

A regular payment of money by one spouse to another under a court order or following an agreement. Spousal maintenance refers to maintenance paid from one spouse to another. It is possible to capitalise spousal maintenance by the payment of a lump sum to achieve a clean break. Maintenance can be secured on the assets of the paying party if there is a risk that the order may be breached. Those assets can then be sold to ensure the recipient's claim is satisfied. Those orders are rare. See also child maintenance.

Maintenance pending suit

In financial proceedings, a person can apply for interim periodical payments/maintenance, which is payable on a temporary basis while the proceedings are ongoing and before they are concluded. It is sometimes called interim maintenance or MPS. This is particularly useful if the financial proceedings are going to take some time to conclude.

Matrimonial order application

This used to be called a divorce petition. This is the document that starts the divorce proceedings. It sets out the basis for the divorce, ie, whether it is based on unreasonable behaviour or adultery or a period of living apart.

MPS

See maintenance pending suit.

Mediation

The process through which independent mediators try to help a couple reach agreement about the arrangements to be made for children and/or finances following their decision to divorce or separate. It is sometimes wrongly thought to be a discussion about the relationship and whether a reconciliation is possible.

Mediation information assessment meeting (MIAM)

Before court proceedings can be issued – either about children or about finance – you will usually be expected to attend a meeting about mediation to ensure you have information about the process. This is called a mediation information and assessment meeting (MIAM). This meeting can be a useful way of finding out more about mediation, although it is better to have explored the option of mediation before you decide that you want to start court proceedings.

MIAM

See mediation information assessment meeting.

Mid-nup

A mid-nuptial agreement: an agreement made during the marriage. See post-nup.

Mirror order

A court order obtained in a foreign court, which reflects exactly the terms of an English court order. Mirror orders are generally obtained to enforce the terms of an English order outside England and Wales.

Mortgagee

This is usually a bank or building society, but it can be anyone who lends you money to buy a property on the security of the property.

Mortgagor

This is the borrower who obtains a mortgage.

Non-molestation order

An order prohibiting a person from molesting another person. The order usually prohibits one person from using or threatening violence or intimidating, harassing or pestering another person. The order can include the protection of children. Once a respondent is aware of a non-molestation order, breaching it is a criminal offence that is punishable by either a fine or a term of imprisonment. This often goes hand-in-hand with an occupation order or orders relating to the children.

Occupation order

An order regulating the occupation of the family home. A person can be excluded from the family home or from a certain part of it for a set period of time. If the respondent breaches an occupation order, if a power of arrest has been attached to the order, the police can arrest the respondent and bring them back to court.

Offer to settle

Offers to settle may be "open". This means they can be referred to, openly, in court and especially at any final hearing. Offers to settle may also be without prejudice, which means it is not possible to refer to them openly in court except at the FDR and especially not in any final hearing.

Order

A direction by the court that is legally binding and enforceable.

Parental responsibility

If the parents are married, or if the child was born after 1 December 2003 and the father is named on the birth certificate, both parents of a child have joint parental responsibility for that child before, during and after divorce or separation. This term describes all of the rights, duties and responsibilities which, by law, a parent of a child has in relation to that child. Aspects of parental responsibility include decisions about a child's religion, education, name and medical treatment.

Particulars

If a matrimonial order application for divorce is based on unreasonable behaviour or adultery, it has to set out details. This can be upsetting and, in some cases, offensive. It is best to try and agree the particulars before the matrimonial order application is sent to the court.

Pension

Cash and/or an income paid by the Government or a private company or arrangement on a person's retirement. Pension funds can be extremely valuable and may be an important part of any financial settlement, especially after longer marriages. There are three ways of resolving issues around pensions and provision on retirement.

  • Pension earmarking is arranging that, when a pension comes to be paid, a proportion of it is paid to the other party
  • Pension offsetting is offsetting the value of the pension against some other asset such as the marital home
  • Pension sharing is the splitting of the pension at the time of divorce, giving both parties their own pension fund

Periodical payments

The technical phrase for maintenance or alimony.

Permission to remove

An application to the court for permission to remove a child permanently from England and Wales. This used to be called leave to remove.

Petition

See matrimonial order application.

Petitioner

Now called an applicant. This is the person applying for the divorce in the petition/matrimonial order application.

Post-nup

The aim of a pre-marital agreement is usually to protect the wealth of one or both spouses and, if prepared properly, should be binding. If you are considering a pre-nup you should seek specialist advice immediately. You can also take steps to protect your position after the wedding, which may involve a post-nup/mid-nup. These are the same as a pre-nup, but made at any time after the marriage ceremony.

Power of arrest

This allows the police to arrest a person who ignores or breaks an order of the court. If your partner breaks the order and you call the police, they will ask to see a copy of the order to see if it has a power of arrest. Once the police have arrested that person they must bring them back to court within 24 hours. A power of arrest can only be attached to an occupation order and not a non-molestation order because a breach of a non-molestation order is automatically considered to be a criminal offence.

Prayer

The section of the petition that asks the court to make orders in favour of the petitioner.

Pre-nup

A pre-nuptial agreement (also known as a pre-marital agreement or contract) is made in contemplation of marriage, most commonly setting out the terms which are to apply between the spouses in the event of separation or divorce. Sometimes they can deal with arrangements during the marriage, upon separation/divorce and upon death.

Parent with care

A term used by the Child Support Agency for the parent with whom the child has his or her main home.

Privilege

The right of a person to refuse to disclose a document or to refuse to answer questions on the ground of some special interest recognised by law.

Process server

This is someone employed to serve court papers. To prove that the papers have been served, the process server will normally swear an affidavit, which will be sent to the court.

Prohibited steps order

An order used to prohibit something being done to a child, for example, changing a child's surname or taking the child out of England and Wales.

Property adjustment order/property transfer order

The court's power to change the ownership of an asset. Usually, but not always, this will be in relation to property.

Questionnaire

A list of questions asking for further details about a person's financial circumstances. This is usually made in response to any gaps or omissions in someone's Form E in financial proceedings.

Relevant child

A child of the marriage, either aged under 16 at the time of decree nisi or aged between 16 and 18 and in full time education or training. A disabled and dependent child of any age will always be considered a relevant child.

Residence

This describes where and with whom a child lives on a day to day basis, or has their primary home. Previously termed custody although the legal consequences are different.

Residence order

An order dealing with the arrangements regarding with whom a child is to live.

Request for directions for trial

A specific application to the court which asks for the decree nisi to be made.

Respondent

The person who receives the divorce petition/matrimonial order application or some other application to court, such as in financial proceedings.

Sale of property order

Where a court makes an order for secured periodical payments (see maintenance), lump sum or property adjustment, it may make a further order for the sale of property to satisfy the earlier order.

Seal

A mark or stamp that the court puts on documents to indicate that they have been issued by the court.

Separation agreement

A contractual document that deals with the arrangements between a couple after their separation. Sometimes this is used when a divorcing couple are waiting for the two years' separation to elapse.

Service

The process by which court documents are formally sent to, and received by, the party to whom they are addressed.

Set aside

Cancelling a judgment or order.

Solicitor

A lawyer who advises a client and prepares a case for court. Specialist family law solicitors may also be trained as mediators, collaborative lawyers or arbitrators.

Special procedure

When divorce/matrimonial proceedings are undefended, the decree nisi and decree absolute can be issued without either spouse having to appear at court. Although called "special", in fact this is the normal procedure for most divorces. This is sometimes called a "quickie divorce" by the tabloids.

Specific issue order

An order determining a specific issue relating to a child, for example, which school a child is to attend.

Section 8 order

An order under section 8 of the Children Act 1989: namely a residence order, a contact order, a prohibited steps order and a specific issue order.

Section 25 factors

The checklist of criteria upon which financial remedy applications are decided.

Statement in support of petition

A formal statement sworn on oath to be true by the person making it, usually in support of an application to the court. See also swear.

Statement of arrangements

The document that has to be sent to the court with the petition/matrimonial order application if the divorcing couple has children. It sets out the current and proposed future arrangements for the children following the divorce and is intended to satisfy the court that there are no serious problems that need to be dealt with. Ideally, these arrangements should be agreed by the husband and wife in advance.

Statement of truth

A statement or other document containing facts verified as being true by the person making the statement. If the document is false, proceedings for contempt of court may be brought against the person who made the false statement.

Stay

To place a stop or a halt on court proceedings.

Strike out

The court ordering that written material or evidence may no longer be relied upon.

Swear

To declare on oath that what is being said or what is contained in a document is true. This is usually administered by a solicitor, notary public or a member of court staff. It sometimes incurs a small fee.

Term order

Maintenance/periodical payments for a specified period of time. The term (or length) of the order can either be capable of being extended to cater for something unexpected happening or, alternatively, the court can order that the term cannot be extended.

Tenancy-in-common

This is one way of owning property jointly. The separate shares are agreed (usually when the property is purchased). If one of the owners dies, their share will form part of their estate and will not automatically belong to the survivor, unlike joint tenancy.

Two-years separation

The divorcing couple has lived apart for two years and the other spouse consents to divorce. This is one of the five facts on which a divorce can be based.

Undertaking

An undertaking is a promise given to the court or to the other party. Once an undertaking has been given to the court, it has the same effect as a court order. This means that, if it is broken, it will be seen as contempt of court and (in extreme cases) an application can be made for the person who has broken the undertaking to be committed to prison.

Unreasonable behaviour

This is one of the five facts on which a divorce can be based. Particulars of the behaviour have to be set out in the petition/matrimonial order application.

Without prejudice

Correspondence or documents that are marked "without prejudice" cannot be shown to the court. The purpose of allowing this is to encourage discussions about settlement. The only time a court can see without prejudice proposals is in the FDR hearing because this is a without prejudice hearing.