English Family Law

Sources of English Family Law

English family law is derived principally from statute, supplemented by the inherent jurisdiction of the High Court and by an extensive body of case law developed by the Family Division. The foundational statutes are the Matrimonial Causes Act 1973, governing divorce and financial relief; the Children Act 1989, the principal legislation on parental responsibility, child arrangements, and local authority intervention; the Family Law Act 1996, which provides remedies for domestic violence and reformed divorce procedure; the Marriage Act 1949, which consolidated the law on the formalities of marriage; and the Marriage (Same Sex Couples) Act 2013, which opened marriage to same-sex couples. The Human Rights Act 1998, incorporating the European Convention on Human Rights into domestic law, requires courts to interpret family legislation compatibly with Convention rights, including Article 8 (right to respect for private and family life) and Article 12 (right to marry).

Marriage

The requirements for a valid marriage in England are set out in the Marriage Act 1949 (as amended) and the Marriage (Same Sex Couples) Act 2013. The parties must be at least sixteen years of age (eighteen in Scotland without parental consent), not within the prohibited degrees of relationship, not already married or in a civil partnership, and must be of the male sex and female sex respectively for opposite-sex marriages (though the 2013 Act provides that the sex of a person who has acquired a gender recognition certificate under the Gender Recognition Act 2004 is their acquired sex). The prohibited degrees cover relationships of blood and affinity, including parent-child, sibling, grandparent-grandchild, aunt/uncle-niece/nephew, and certain relationships created by marriage or adoption.

The Marriage (Same Sex Couples) Act 2013, which came into force on 13 March 2014, permits the marriage of same-sex couples in England and Wales. The Act provides that same-sex marriage is a civil marriage — no religious organisation is obliged to conduct same-sex marriages, and the Church of England and the Church in Wales are expressly prohibited from doing so without further legislative authorisation. Civil partnerships remain available under the Civil Partnership Act 2004; the Supreme Court in R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32 held that denying opposite-sex couples access to civil partnerships was incompatible with Article 14 read with Article 8, and the Civil Partnership (Opposite-sex Couples) Regulations 2019 extended civil partnerships to opposite-sex couples.

The formalities for marriage are strict: a marriage must be solemnised in a registered building (for religious ceremonies), on approved premises (for civil ceremonies), or at the register office, before a superintendent registrar and a registrar, in the presence of two witnesses, and following the giving of notice and the issue of a marriage schedule. A marriage celebrated without compliance with these formalities is void, though the courts have developed a narrow saving provision under section 25 of the Marriage Act 1949 for marriages that have been consummated and where the defect is merely technical.

Dissolution of Marriage

The sole ground for divorce under section 1(1) of the Matrimonial Causes Act 1973 is the irretrievable breakdown of the marriage. Unlike the no-fault systems of most American states, English law has required proof of breakdown through one of five facts: (i) adultery by the respondent, which the petitioner finds intolerable; (ii) unreasonable behaviour by the respondent, such that the petitioner cannot reasonably be expected to live with the respondent; (iii) desertion by the respondent for a continuous period of at least two years; (iv) two years’ separation with the respondent’s consent; or (v) five years’ separation without consent.

This structure was long criticised for encouraging fault allegations and exacerbating conflict between separating spouses. The Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022, introduced a no-fault divorce system. Under the reformed law, a spouse may apply for a divorce solely by making a statement that the marriage has irretrievably broken down, without alleging any fact and without the requirement of separation. The application may be made jointly or solely, and the respondent need not consent. A minimum period of twenty weeks must elapse between the start of proceedings and the application for the conditional order (formerly the decree nisi), followed by a further six weeks before the final order (formerly the decree absolute). The 2020 Act also replaced the terminology of petition, decree nisi, and decree absolute with application, conditional order, and final order.

Financial Orders on Divorce

The court’s power to make financial orders on divorce is governed by section 25 of the Matrimonial Causes Act 1973, which sets out a comprehensive list of factors to which the court must have regard: the income, earning capacity, property, and financial resources of each party; the financial needs, obligations, and responsibilities of each party; the standard of living enjoyed by the family before the breakdown; the ages of the parties and the duration of the marriage; any physical or mental disability; the contributions made by each party to the welfare of the family; the conduct of the parties if it would be inequitable to disregard it; and the value of any benefit that a party will lose the chance of acquiring.

The House of Lords in White v White [2001] 1 AC 596 transformed the approach to financial orders by introducing the yardstick of equality. Lord Nicholls held that there was no place for discrimination between husband and wife in their respective roles, and that the court should check any proposed award against the yardstick of equality to ensure that any departure from equality was justified. The House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 further refined the law by identifying three rationales for financial relief: need (the financial needs of each party generated by the relationship), compensation (for relationship-generated disadvantage), and sharing (the equal division of the marital assets). The principle of the clean break, introduced by the Matrimonial and Family Proceedings Act 1984, encourages the court to achieve a final settlement that minimises continuing financial dependence between former spouses, particularly where there are no young children and the marriage was of short duration.

Children

The welfare of the child is the paramount consideration in any proceedings concerning the upbringing of a child under section 1(1) of the Children Act 1989. The welfare checklist in section 1(3) sets out the factors the court must consider: the child’s ascertainable wishes and feelings; the child’s physical, emotional, and educational needs; the likely effect of any change in circumstances; the child’s age, sex, background, and any characteristics the court considers relevant; any harm the child has suffered or is at risk of suffering; the capability of each parent to meet the child’s needs; and the range of powers available to the court.

The no order principle (section 1(5)) provides that the court shall not make an order unless doing so would be better for the child than making no order at all. The Act also establishes the concept of parental responsibility under section 3, defined as all the rights, duties, powers, responsibilities, and authority that by law a parent of a child has in relation to the child and his property. Mothers automatically have parental responsibility; fathers whose name appears on the birth registration since 1 December 2003 also acquire it automatically, as do a mother’s civil partner or spouse (including same-sex spouses). Unmarried fathers not on the birth certificate must acquire parental responsibility by agreement with the mother or by court order.

Private law proceedings concerning children are now governed by child arrangements orders under section 8 of the Children Act 1989, replacing the former terminology of custody, care and control, and access. A child arrangements order regulates with whom a child is to live and with whom the child is to spend time or otherwise have contact. In contested proceedings, CAFCASS (the Children and Family Court Advisory and Support Service) appoints a children’s guardian to represent the child’s interests independently. The court is directed to have regard to the general principle that any delay in determining a question concerning a child’s upbringing is likely to prejudice the child’s welfare — the prohibition on delay under section 1(2).

Domestic Violence

Part IV of the Family Law Act 1996 provides civil remedies for domestic violence. A non-molestation order prohibits the respondent from molesting the applicant or a relevant child; molestation is broadly defined to include violence, threats, harassment, and pestering. An occupation order regulates the right to occupy the family home, potentially excluding the respondent from the home irrespective of property rights. The court must apply a two-stage test: first, whether the applicant is a person entitled to occupy the home by virtue of a beneficial estate or interest or contract; and, in determining whether to make the order, the court must have regard to the balance of harm test and the significance of the home for the health, safety, and well-being of the parties and any children. Since 2014, the offence of coercive and controlling behaviour under the Serious Crime Act 2015, section 76, has provided a parallel criminal sanction.