By Emma Nash
Words can be tricky, especially when it comes to legal matters, which is why our Family Partner Emma Nash demystifies some of the language used in Family Law.
Why are the words important?
As society and the law evolves, so the language we use in law does too. A term or phrase once used in family law several years ago, may no longer be relevant or appropriate today.
The way in which we interpret and attribute meaning to certain words can influence our understanding of the law and the outcome of a specific legal case.
In family law, problems can arise when people's understanding of the words used are incorrect, outdated or are influenced by similar language in other jurisdictions and countries. This can lead to confusion, especially when it comes to the perception of what rights people have in this country, and can cause problems when these issues arise in legal proceedings. Matters can be made worse when these terms are mis-used by the press and media as people rely on that information when making decisions about their own lives.
Getting the language right
Anyone who is faced with the uncertainty around a family law dispute, needs to feel confident that they understand the terminology that is being used and that their legal team is using the correct, most appropriate language. We also need to remember the impact the language used might have on all those involved in the proceedings, including children. So, what words and phrases are the most commonly misunderstood, or used incorrectly in family law? What do they really mean, and what are the correct terms? Emma explains...
Many people talk about 'custody' when discussing matters relating to children. It is not uncommon to hear, "I want to have full custody of my children", or "I'm in a custody battle with my ex."€ Yet you might be surprised to know that the word custody is not part of family law in England and Wales. The word was removed in 1991 because it conveyed a possessive, parent focussed message. It gave the impression that one parent, the parent with custody, was in some way more important than the other.
The current terminology, which is set out in the Children Act 1989, refers to 'child arrangements'. This can be broken down into 'lives with' orders and 'spends time with' orders. The language is far more positive and puts the focus very firmly on the child. Child arrangement orders can specify that a child 'lives with' both parents. It removes the perception that one parent has achieved a greater status, something which can often create conflict. This is appropriate when, for example, there is a shared care arrangement where the child spends a significant amount of time with each parent.
The term primary carer is used in disputes relating to children to describe a parent who takes on the vast majority of the care. Straight away this term causes conflict. Even before separation, parents may compete to be the 'primary carer', believing it will give them the upper hand in any future dispute. There is often the idea that the 'primary carer' will be viewed more favourably by the courts; that he or she will have control over the child and the amount of time they will spend with the other parent. Sadly, the notion of primary care can also be used as leverage in any financial disputes.
Ultimately, this term puts parents at odds with each other, with both parents fighting over who comes out on top, instead of concentrating on what is best for the child going forward.
Such an approach is not child focussed. The focus of the parents should always be on what arrangements will best meet the needs of a child going forward. We must always start with the assumption that it will benefit children if both parents play meaningful roles in their lives. This assumption is enshrined in law. Any arrangement which significantly limits the role of one parent is only likely to be approved if there is incredibly good reason for this. It means parents may have to accept that compromises will need to be made. Life after separation could look significantly different, and for some families, there will be no 'primary carer'.
A 'joint lives spousal maintenance' order requires a spouse to make periodical payments to the other until either party passes away or the recipient remarries. The Family Court can make this order to help settle financial disputes between divorcing couples, although they are becoming less common as they are harder to justify. Instead, the focus is on encouraging financial independence within a realistic timeframe and to ultimately achieve a clean break between the parties.
The term 'joint lives', however, can be deceptive. It can be varied, and even if such an order is made, the expectation usually remains that the recipient will strive to achieve financial independence although the timescale is uncertain. The reality is that there will be very few cases where a true 'joint lives' order will be made. Those will be cases where the court can say with certainty that the recipient has no chance of ever achieving financial independence in the future.
A joint lives order can also be made when there is too much uncertainty as to when a spouse may achieve financial independence. But it is important to remember that the expectation is still there. A former spouse can apply for joint lives payments to be brought to an end. If they do that and the recipient has not taken steps to increase their earning capacity, there is the risk of further financial difficulties if the Court decides that the payments should be brought to an end. In these circumstances it might be better to refer to an 'indefinite' order rather than a 'joint lives order' so as to avoid any misconceptions and people thinking that have a "meal ticket for life" when in reality that is not the case.
Common Law Wife / Husband / Marriage
There is no concept of 'common law marriage' in the law of England and Wales. If you hear this term being used, then it is wrong. It perpetuates a myth that someone is entitled to something they are not. The consequences are that people can be left in a dire financial position if their relationship ends. While the Court can make financial orders in limited circumstances, cohabitees do not have the same rights or legal protection as those who are married.
Emma Nash is a Partner in our Family Law Department, specialising in all aspects of family law, having particular expertise in matters with an international element. Emma has worked previously on complex financial disputes, private children cases, cases involving allegations of domestic abuse, paternity disputes, and paternity fraud.
Contact Emma at Emma@fletcherday.co.uk.