The Family Law Protocol

The Protocol covers private proceedings, which means cases between individuals rather than cases brought by local authorities involved in child protection work (known as public law cases). There is a separate protocol for public law cases involving children.

Divorce proceedings, financial proceedings between couples (whether married or unmarried) and disputes between parents or other carers or relatives concerning arrangements for children (except for public law cases) are governed by the Protocol.

The main aims are:-

to try and deal with disputes in a way that is constructive and conciliatory . This is seen as a way to put the interests of the children at the forefront of your mind and to try and preserve the long-term relationships within the whole family unit.
to see what can be done to narrow issues in dispute and to bring disputes to a timely and effective conclusion
to try and minimise any risks to the parties and/or the children. Safety is a primary concern
to try and deal with cases in a cost effective way.

We also support the Resolution (formerly the Solicitors Family Law Association) Code of Conduct.

Divorce

This is the process used to end a marriage. One of the first questions you will be asked in your first interview will be if this is a step you really wish to take at this stage. We are often asked if we can write to the other spouse to explain our client is reluctant to end the marriage but problems have to be addressed. We are very happy to do this and to suggest how problems can be tackled.

If however, it is clear your marriage is at an end then we can advise whether a divorce is appropriate at this stage or if you wish to consider a separation.

Separation:-

We can assist you in agreeing arrangements for living apart particularly where there are no immediate grounds for divorce. This can be the most amicable way of resolving matters and a document known as a Separation Agreement can be drawn up setting out the agreed terms. This is not a process which involves the court but ideally both parties should be independently advised by their own solicitor as it is intended to be a binding contract.

Judicial Separation:-

This is not a divorce but involves similar court processes to a divorce. It is usually used where there are personal or religious views against ending a marriage by divorce but recognises in a very formal way your wish to separate. You have to rely on the same facts as you would for a divorce petition – see the notes below.

The Basis For Divorce:-

A client who wants a divorce usually tells us that the marriage is over. Irretrievable breakdown is the sole ground for divorce but has to be supported by one out of the following five facts

Your spouse’s adultery
Your spouse’s unreasonable behaviour
Desertion – where your spouse has left you for a period exceeding 2 years and this was not a separation you wanted
Two years separation and your spouse agrees to a divorce
Five years separation – your spouse’s consent to a divorce is not required.

So the only immediate facts for a divorce are “fault” based – you have to allege the other party has had an affair or behaved in such a way it is not reasonable for the marriage to continue. Where appropriate we will try to agree the terms of a divorce with your spouse or their solicitor in accordance with a code of conduct known as the Family Law Protocol which the family courts ask us to try and follow wherever possible.

If you are not married then a divorce is not necessary and you are referred to the section headed co-habitees for further information

Cohabitees

Unmarried couples who live together are known as cohabitees. Please be aware there is no such thing as a “common-law” husband or wife.