Family Law Act 1996

The Family Law Act 1996 has four parts and ten schedules. Part I sets out the principles underlying parts II and III of the Act. Part II deals with divorce and separation. Part III deals with legal aid for mediation and the relationship between it and the provision of conventional legal services. Part IV deals with occupation of the family home and domestic violence. Parts I and III of the Act came into force on 21 March 1997, however part III was repealed by the Access to Justice Act 1999 and the provisions governing the way in which public funding for mediation and related legal advice is available are now to be found in the Community Legal Service Scheme.

Objectives for Reform

The former government stated that it had a number of objectives reforming the law of divorce and these included support for marriage, offering practical steps to avoid breakdown, ensuring the parties understand fully the implications of divorce and, where divorce is inevitable, minimising the bitterness and hostility between the parties and reducing the trauma for children.

Part I: General principles underlying Parts II and III:

As with the Children Act 1989 the 1996 Act begins with a statement of general principles, which set out the philosophy of the legislation and apply to Part II. The principles, which are self-explanatory, are as follows:

(a) That the institution of marriage is to be supported;

(b) That the parties to a marriage, which may have broken down are to be encouraged to take all practical steps, whether by marriage counselling or otherwise, to save the marriage;

(c) That a marriage, which has irretrievably broken down and is being brought to an end should be brought to an end:

a. With minimum distress to the parties and to the children affected;

b. With questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as in possible in the circumstances; and

c. Without costs being unreasonably incurred in connection with the procedures to be followed in bringing the marriage to an end;

(d) That any risk to one of the parties to the marriage, and to any children of violence from the other party should, so far as reasonably practical, be removed or diminished. These principles construct a framework, within which the court and all others who use the Act must operate.

Part II: Divorce:

Proceedings for decrees of divorce or judicial separation will be deal with in part II of 1996 Act and become divorce and separation orders respectfully. The divorce order dissolves the marriage, the separation order provides for the separation at the parties to the marriage (S. 2). The order comes into force on being made. The separation order remains in force (1) while the marriage continues, or (2) until cancelled on the joint application of both parties.

Part III

Ancillary relief after divorce, nullity, and judicial separation.

Consideration of arrangements for the children of the family

The Children Act 1989 brought significant procedural changes to the method by which the court considers and approves arrangements for the children on divorce. The Family Proceedings Rules 1991, r. 239 now place the main burden of ‘considering’ those arrangements upon the district judge, whereas under the old law the judge used to hear the ‘children’s appointments’. The new version of S. 41 Matrimonial Causes Act 1973 requires that in any proceedings for divorce, judicial separation, or nullity the court must consider, at the date on which the court considers the arrangements:

(a) Whether there is any child of the family who has not reached the age of 16, and;

(b) Whether there is a child who has reached 16 in respect of whom it should direct that S. 41 should apply.

In practice, the district judge in special procedure cases will usually carry out this duty where there is no application for an order under the Children Act 1989 pending in respect of a child of the family.

Mediation

So what is Mediation?

Family Mediation, which was introduced by the Family Law Act 1996, offers divorcing or separating couples a way to resolve difficulties when making new arrangements for children, home, finance, and possessions. Couples reach their own mutually acceptable agreements rather than negotiating through solicitors or courts.

How does mediation work?

Couples may be referred through a solicitor, other agencies, or self-referral. An initial meeting with a mediator is arranged to discuss suitability. This may be alone or with your partner. A series of meetings will then follow, each lasting one and a half hours, with an average of 3 to 6 meetings needed. At the end of the process the Mediator draws up a Memorandum of Understanding, this is not a legally binding document but can be used as the basis of a legal agreement. The mediation meetings are confidential unless it appears that a child or third party is at risk. The meetings are legally privileged; this means that whatever is said in mediation cannot be used elsewhere. If financial issues are included full, financial disclosure is required thus both parties have full knowledge and control over future arrangements. Mediation is not a substitute for legal advice and clients are encouraged to consult a solicitor throughout the mediation process.