LPC Family Law 2006,9780199284849

LPC Family Law 2006

by ; ;
ISBN13: 9780199284849
ISBN10: 0199284849
Format: Paperback
Pub. Date: 2006-04-13
Publisher(s): Blackstone Press
List Price: $72.80

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Summary

Family Law offers a guide to the essential law, practice, and procedure that is at the heart of the Legal Practice Course. It provides a concise account of the major aspects of family law which are likely to be encountered by the trainee solicitor in practice, as the relevant law is discussedtogether with appropriate procedure and practice.

Author Biography


Tina Bond is a solicitor and Senior Lecturer in the School of Law at Northumbria University. She is a member of the Law Society Family Law Panel. Dame Jill Black is a High Court Judge in the Family Division. Jane Bridge QC is a Barrister and Family Mediator (UKCFM)

Table of Contents

Preface xv
Table of Cases
xvii
Table of Statutes
xxi
Table of Secondary Legislation
xxvii
PART I General matters
1(40)
The first interview
3(11)
Introduction
3(1)
Preliminary points
3(1)
General points
4(1)
Matters to be covered when taking instructions
5(5)
Taking action on the client's behalf
10(3)
Preparing a statement and proof of evidence
13(1)
Community legal service fund and public funding for family proceedings
14(27)
Introduction
14(1)
The Funding Code
15(1)
The Funding Code---decision-making guidance
16(1)
The basic structure of the new scheme
16(8)
Emergency Representation
24(3)
The issue of a certificate for general family help and/or Legal Representaion
27(1)
Notification of issue of certificate
28(1)
Effect of issue of a certificate for general family help and/or Legal Representation
28(2)
Reimbursement of the Community Legal Service Fund and the Statutory Charge
30(1)
The statutory charge under s. 10(7), Access to Justice Act 1999
30(6)
The duty to make the client fully aware of the potential impact of the charge
36(1)
Minimising the effect of the charge
36(5)
PART II Divorce: The decree
41(82)
The ground for divorce and the five facts
43(13)
Introduction
43(1)
The ground for divorce
43(1)
The five facts
43(1)
Adultery: s. 1(2)(a)
44(3)
Behaviour: s. 1(2)(b)
47(2)
Establishing as a matter of fact that the parties are living apart
49(1)
Desertion: s. 1(2)(c)
50(1)
Two years' separation and consent: s. 1(2)(d)
51(1)
Five years' separation: s. 1(2)(e)
52(1)
The effect of living together in relation to the five facts: s. 2
52(4)
Bar on presentation of divorce petitions within one year of marriage
56(3)
Introduction
56(1)
Absolute one-year bar
56(1)
Alternative courses of action for the first year of marriage
56(1)
When the first year is up
57(2)
Jurisdiction in divorce
59(5)
Introduction
59(1)
Jurisdiction for divorce: s. 5, Domicile and Matrimonial Proceedings Act 1973
59(1)
Habitual residence
60(1)
Domicile
61(3)
Drafting a divorce petition
64(21)
Introduction
64(1)
General
64(1)
The contents of the petition
65(2)
Notes on drafting the petition
67(18)
Undefended divorce: procedure for obtaining the decree
85(31)
Documents required
85(11)
Commencement of proceedings
96(1)
Fee
96(1)
Additional matters where the solicitor is acting
96(1)
Entry in court books
97(1)
Service of the petition
97(4)
Return of the acknowledgement of service
101(1)
When directions for trial can be given
102(1)
Applying for directions for trial
103(2)
Directions for trial
105(3)
Pronouncement of decree nisi
108(1)
Cases referred to the judge
108(1)
Consideration of arrangements for the children of the family
109(3)
Decree absolute
112(2)
Declaration that the decree absolute is void
114(1)
Defended divorces
114(2)
Amended, supplemental, and new petitions
116(3)
Introduction
116(1)
Amendment, supplemental petition, or fresh petition?
116(1)
Procedure for amendment
117(1)
Supplemental petitions
117(1)
Fresh petitions
118(1)
Protection of respondents in separation cases: ss. 5 and 10, Matrimonial Causes Act 1973
119(4)
Introduction
119(1)
Section 5, Matrimonial Causes Act 1973: grave financial or other hardship
119(1)
Section 10, Matrimonial Causes Act 1973
120(3)
PART III Ancillary relief after divorce
123(128)
Ancillary relief orders available
125(17)
Introduction
125(1)
Maintenance pending suit: s. 22, Matrimonial Causes Act 1973
125(1)
Long-term orders: ss. 23 and 24, Matrimonial Causes Act 1973
126(14)
Orders for sale: s. 24A, Matrimonial Causes Act 1973
140(1)
Interim orders
141(1)
Procedure for ancillary relief applications
142(62)
Introduction
142(1)
The cost of the application
142(1)
Protecting the applicant pending the making of an order
143(1)
The Ancillary Relief Procedure
143(1)
The Pre-action Protocol
143(2)
The procedure in detail
145(7)
The first appointment
152(3)
Interim orders
155(1)
The Financial Dispute Resolution appointment
155(2)
Preparation for the final hearing
157(2)
The hearing
159(2)
Costs and Calderbank offers (or offers to settle)
161(3)
Orders in respect of pensions---some additional procedural points
164(2)
Consent orders
166(1)
Some points on drafting ancillary relief orders
167(4)
Appeal
171(1)
Challenging ancillary relief consent orders
171(33)
Factors to be considered on ancillary relief applications
204(23)
Introduction
204(1)
The s. 25 factors
204(3)
The s. 25 factors in more detail
207(10)
The clean break: s. 25A
217(1)
Other circumstances not specifically referred to in s. 25
218(2)
Guidelines in fixing the appropriate periodical payments order
220(1)
Special considerations with regard to particular types of order
221(5)
Maintenance pending suit
226(1)
Child Support Act 1991 and subsequent amendments
227(13)
Introduction
227(1)
The purpose of the 1991 Act
227(1)
Some basic definitions
228(1)
The `qualifying child'
228(1)
The `non-resident parent'
228(1)
The `person with care'
228(1)
The duty to maintain
228(1)
The calculation of child maintenance
229(1)
The new calculation
229(5)
The role of the courts
234(1)
The benefit case
234(1)
The non-benefit case
235(1)
Revisions
236(1)
Appeals from the maintenance calculation
236(1)
Collection and enforcement
236(1)
Child Support Act 1995 and variations under the Child Support Pensions and Social Security Act 2000
237(3)
Preventing and setting aside dispositions under s. 37, Matrimonial Causes Act 1973
240(4)
Introduction
240(1)
Requirement of financial relief proceedings
240(1)
Orders that can be made
240(2)
Definitions
242(1)
Procedure
243(1)
Collection and enforcement of ancillary relief orders
244(4)
Introduction
244(1)
Enforcing orders for the payment of money
244(2)
The Maintenance Enforcement Act 1991
246(1)
Registration of periodical payments orders in the family proceedings court
246(1)
Enforcement of property adjustment orders
246(2)
Variation of ancillary relief orders
248(3)
Introduction
248(1)
The scope of s. 31
248(1)
What can the court do on a variation application?
249(1)
Factors to be taken into account on variation application
250(1)
PART IV Financial provision and property during marriage
251(22)
Financial provision and property during marriage
253(16)
Introduction
253(1)
Domestic proceedings and Magistrates' Courts Act 1978
253(1)
Summary of main financial sections
253(1)
Jurisdiction under Part I, DPMCA 1978
254(1)
Who may apply for an order under sections 2 and 6?
254(1)
Definition of `party to a marriage' and `child of the family'
255(1)
Orders under section 2
255(3)
Agreed orders under section 6
258(2)
Miscellaneous provisions relating to periodical payments and lump sum orders (duration, orders for children, etc.)
260(1)
Effect of living together on financial orders under s. 25, DPMCA 1978
261(1)
Procedure
261(4)
Enforcement of orders
265(2)
Variation
267(2)
Separation and maintenance agreements
269(4)
Introduction
269(1)
The difference between separation and maintenance agreements
269(1)
Likely contents of separation agreements
269(1)
The form of a separation or maintenance agreement
270(1)
Effect of a separation agreement
271(1)
Advantages of a separation or maintenance agreement
271(1)
Enforcement
271(1)
Impact of subsisting separation agreement or maintenance agreement on financial arrangements after divorce etc.
272(1)
The provisions of ss. 34-36, Matrimonial Causes Act 1973 as to maintenance agreements
272(1)
PART V Taxation
273(10)
Tax considerations
275(8)
Introduction
275(1)
Income Tax
275(1)
General rules
275(1)
Tax and maintenance
276(1)
Other expenses
276(1)
Inheritance Tax and Capital Gains Tax
276(1)
Inheritance tax
276(2)
Capital Gains Tax
278(3)
Stamp duty
281(2)
PART VI Welfare benefits
283(14)
Welfare benefits
285(12)
Introduction
285(1)
Income Support and Jobseeker's Allowance
285(1)
Who can claim?
286(1)
Calculating the applicable amount
287(1)
The social fund
288(1)
How to claim income support
288(1)
Appeal and review
288(1)
Statutory duty to maintain other members of the family
289(1)
The diversion procedure
289(1)
Tax Credits
289(1)
Introduction
289(1)
The Child Tax Credit
290(1)
The Working Tax Credit
291(1)
Housing benefit
291(1)
Who qualifies?
291(1)
What payments will be made?
292(1)
Amount of housing benefit
292(1)
Child Benefit
293(1)
Child benefit
293(1)
State Benefits and Marriage Breakdown
294(1)
Relevance of state benefits in determining appropriate maintenance
294(1)
Maintenance v state benefits: pros and cons for the recipient
294(1)
Lump sums and income support
295(2)
PART VII Occupation orders and non-molestation orders: Part IV of the Family Law Act 1996
297(62)
Occupation orders and non-molestation orders: Part IV of the Family Law Act 1996
299(60)
Introduction
299(1)
The orders available
300(1)
Getting to grips with the provisions---associated persons and relevant child
301(3)
Occupation orders---the menu
304(1)
Position where the applicant is entitled to occupy
304(4)
Occupation order where applicant is a former spouse or former civil partner with no existing right to occupy
308(2)
Occupation order where applicant is a cohabitant or former cohabitant with no existing right to occupy
310(2)
Occupation order where neither spouse or civil partner is entitled to occupy
312(1)
Position where neither cohabitant nor former cohabitant is entitled to occupy
313(1)
Ancillary orders where an occupation order is made under ss. 33, 35, or 36
313(1)
Non-molestation orders
314(1)
Application by children
315(1)
Order made without notice to the other party
316(1)
Undertakings
317(1)
Enforcement
317(3)
Variation and discharge of orders
320(1)
Procedural guide
321(1)
The procedure in detail
322(5)
Enforcement of the order
327(6)
Procedure in the family proceedings court
333(26)
PART VIII General matters concerning the home and other property
359(26)
The home: preventing a sale or mortgage
361(13)
Introduction
361(1)
The problem
361(1)
House in joint names
361(5)
House in sole name of one spouse
366(4)
Bankruptcy and the matrimonial home
370(1)
Keeping up with the mortgage or rent
371(1)
Special provisions of Family Law Act 1996
372(2)
Establishing an interest in property---section 17, Married Women's Property Act 1882 and the law relating to constructive and resulting trusts
374(7)
Introduction
374(1)
Possible applicants
374(1)
What property is covered?
375(1)
What orders can be made?
375(1)
The need to establish a trust
375(4)
Fixing the size of each party's share in the disputed property
379(1)
Orders for sale
380(1)
Procedure
380(1)
Practical importance of s. 17
380(1)
The question of wills
381(4)
Introduction
381(1)
The need to consider what will happen on client's death
381(1)
The effect of marriage on a will
381(1)
The effect of divorce on succession
382(1)
Steps to be taken
383(1)
Inheritance (Provision for Family and Dependants) Act 1975
383(1)
Appointing a guardian for children
383(2)
PART IX Children
385(70)
The Children Act 1989---the section 8 orders and general principles
387(25)
Introduction
387(1)
Parental responsibility
387(3)
Section 8 orders
390(1)
Residence orders
391(5)
Contact orders
396(3)
Prohibited steps orders
399(1)
Specific issue orders
400(1)
Supplementary provisions and interim orders
401(2)
Family assistance orders
403(1)
General principles
404(6)
Power of the court to order investigation by local authority
410(2)
Procedures for obtaining a section 8 order
412(39)
Introduction
412(1)
The courts---jurisdiction and allocation of proceedings
412(1)
Applications for a section 8 order
413(1)
Who can apply for section 8 orders
414(2)
Procedure for section 8 orders
416(12)
Financial provision and property adjustment for children
428(23)
Preventing the removal of a child from the jurisdiction
451(4)
Introduction
451(1)
Family Law Act 1986
451(1)
Removal from the UK
451(3)
Tracing a lost child
454(1)
PART X Cohabitants
455(8)
Cohabitants
457(6)
Introduction
457(1)
The meaning of cohabitation
457(1)
Protection from violence
457(1)
Inheritance
457(1)
Status of children
458(1)
Financial provision and the significance of the Child Support Act 1991
459(1)
Ownership and occupation of property
460(3)
PART XI The Human Rights Act 1998
463(11)
The Human Rights Act 1998 and its impact on family law
465(9)
Introduction
465(1)
Qualifications to the operation of the Act
465(1)
The operation of the Act
465(2)
Breaches and remedies
467(1)
Relevance of the Convention to family law
467(1)
Orders made under Part IV, Family Law Act 1996
468(1)
Ancillary relief proceedings
469(1)
Orders in respect of children
469(4)
Practice Direction
473(1)
Procedural points
473(1)
Answers 474(9)
Index 483

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