Family Law Comparative Guide

1 Legislative framework

1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children's matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

The legal system of England and Wales is founded on common law, without a codified system. Family law is detailed in Acts of Parliament and interpreted by the Family Court to establish legal precedents.

The Matrimonial Causes Act 1973 governs divorce and financial proceedings. The Children Act 1989 is the main statute concerning children's upbringing and welfare.

Other significant laws include:

• the Domicile and Matrimonial Proceedings Act 1973, which addresses jurisdiction disputes within related jurisdictions of England and Wales, Scotland, Northern Ireland, Jersey, Guernsey, Alderney, Sark and the Isle of Man;
• the Matrimonial and Family Proceedings Act 1984, Part III, which relates to financial relief in England and Wales following an overseas divorce;
• the Family Law Act 1986, which focuses on jurisdiction and recognition of orders;
• the Child Support Act 1991, which relates to statutory child maintenance;
• the Family Law Act 1996, Part IV, which relates to family homes and domestic violence;
• the Civil Partnership Act 2004, which allows same-sex couples to form registered civil partnerships;
• the Marriage (Same Sex Couples) Act 2013, which allows same-sex couples to marry;
• the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, which allows opposite-sex couples to enter into civil partnerships;
• the Divorce, Dissolution and Separation Act 2020, which introduced no-fault divorce; and
• the Domestic Abuse Act 2021, which relates to domestic abuse and protection of victim survivors.

1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?

The United Kingdom left the European Union on 31 January 2020 and is no longer an EU member state. Consequently, the Brussels IIbis Regulation (EC) 2201/2003 and the Maintenance Regulation (EC) 4/2009 have been repealed in the United Kingdom.

The United Kingdom has ratified several international family law conventions, including:

• the Hague Child Abduction Convention 1980;
• the Hague Child Protection Convention 1996; and
• the Hague Maintenance Convention 2007.

The United Kingdom is not a party to the Lugano Convention 1988. After Brexit, the United Kingdom's application to join the Lugano Convention was blocked by the EU.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

On 22 April 2014, the Single Family Court replaced the previous three tiers of court structure (Family Proceedings Court, County Courts, High Court).

The Family Court handles all family cases except for:

• cases invoking the inherent jurisdiction of the High Court, whether related to:
• • children (wardship); or
  • incapacitated or vulnerable adults; and
• international cases involving certain applications for relief under either:
• • the Hague Child Abduction Convention 1980; or
  • the Hague Child Protection Convention 1996.

The judiciary of the Family Court consists of:

• High Court judges;
• circuit judges;
• recorders;
• district judges (including district judges of the magistrates' court);
• magistrates; and
• legal advisers (justices' clerks).

The family jurisdiction of the Court of Appeal and Supreme Court remains unchanged.

1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?

The English courts typically enforce foreign judgments and orders and decline to do so only in exceptional situations.

Foreign judgments can be enforced by the English courts through various methods, depending on which country the judgment comes from. If both countries are part of a bilateral or multilateral enforcement treaty, a simplified registration regime may apply – for the United Kingdom, this mainly means:

• the Hague Convention on Choice of Court Agreements 2005;
• the Administration of Justice Act 1920; and
• the Foreign Judgments (Reciprocal Enforcement) Act 1933.

However, if no such regime applies, a foreign judgment can be enforced under common law rules.

Once a judgment or order is recognised in England and Wales, further action is often then required to enforce the judgment or order. Similar to judgments originating in England and Wales, the judgment or order still needs to be enforced. There are several enforcement mechanisms available depending on the circumstances, including:

• third-party debt orders (often used against bank accounts);
• charging orders over property;
• seizure of goods; or
• initiation of insolvency proceedings.

2 Jurisdiction

2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?

Divorce: The court can deal with divorce proceedings only where one or more of the following criteria applies (section 5 of the Domicile and Matrimonial Proceedings Act 1973):

• Both spouses are habitually resident in England and Wales;
• Both spouses were both last habitually resident in England and Wales and one of them continues to reside there;
• The respondent is habitually resident in England and Wales;
• On a joint application, either spouse is habitually resident in England and Wales;
• The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application is made;
• The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application is made;
• Both spouses are domiciled in England and Wales; or
• Either spouse is domiciled in England and Wales.

Same-sex marriage: The jurisdictional criteria for bringing divorce proceedings for same-sex couples are set out at:

• paragraph 2, Schedule A1 of the Domicile and Matrimonial Proceedings Act 1973; and
• Regulation 2 of the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014 (SI 2014/543).

The criteria are virtually the same as for opposite-sex divorce, except that "either spouse is domiciled in England and Wales" is not included.

If none of the jurisdictional criteria under the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations applies, the courts of England and Wales may still have jurisdiction if:

• either spouse is domiciled in England and Wales on the date on which the divorce proceedings begin in court; or
• the couple married each other under the law of England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.

These residual grounds of jurisdiction can be used by same-sex couples who may be habitually resident in a country that does not recognise their relationship, meaning that they cannot divorce there.

Civil partners: The jurisdictional criteria for bringing proceedings to dissolve a civil partnership are set out at:

• Sections 219 and 221 of the Civil Partnership Act 2004; and
• Regulation 4 of the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 (SI 2005/3334).

The criteria are virtually the same as for opposite-sex divorce, except that "either spouse is domiciled in England and Wales" is not included.

However, if none of the jurisdictional criteria under the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations applies, the courts of England and Wales may still have jurisdiction if:

• either civil partner is domiciled in England and Wales on the date on which dissolution proceedings begin in court; or
• the couple are registered as civil partners of each other in England or Wales and it appears to the court to be in the interests of justice to assume jurisdiction.

This last ground covers the situation where civil partners who are originally from another country registered their civil partnership in England and Wales when living in the jurisdiction and then moved to a country where civil partnerships are not recognised.

Property: For married couples, the court's ability to hear a financial claim depends on whether it has jurisdiction to hear an application for divorce (section 24 of the Matrimonial Causes Act 1973).

For unmarried cohabiting couples, claims can be brought under the Trusts of Land and Appointment of Trustees Act 1996 for:

• an equitable share in property owned solely by one party; or
• a declaration of the respective interests of co-owners where these are not expressly stated in title documents.

Claims are principally made either by:

• a person who is a trustee of land; or
• a person who has an interest in property subject to a trust of land.

For those looking to apply for financial provision for children (aged under 18) under Schedule 1 of the Children Act 1989, jurisdiction is predominantly based on the habitual residence or domicile in England and Wales on the date of the application of:

• a parent of the child;
• a guardian or special guardian of the child;
• a person named in a child arrangements order as a person with whom the child is to live; or
• the child.

Finally, for the court to hear financial claims after a foreign divorce under Part III of the Matrimonial and Family Proceedings Act 1984, broadly the application must meet one of the following requirements:

• Either party is, on the date of the permission application, or was, on the date on which the foreign divorce, annulment or legal separation took effect in the overseas country, domiciled in England and Wales;
• Either party was habitually resident in England and Wales throughout the period of one year ending with:
• • the date of the permission application; or
  • the date on which the foreign divorce, annulment or legal separation took effect in the overseas country;
• Either party has, at the date of the permission application, a beneficial interest in possession in a dwelling-house in England or Wales that was at some time during the marriage a matrimonial home of the parties.

Children: In relation to children proceedings, the jurisdictional criteria are principally governed by:

• the Family Law Act 1986; and
• the Domicile and Matrimonial Proceedings Act 1973.

Free-standing children applications (ie, those not connected to divorce or dissolution proceedings) under section 8 of the Children Act 1989 can be brought if the 1996 Hague Convention does not apply but:

• the child is either:
• • habitually resident in England and Wales; or
  • present in England and Wales and not habitually resident in any other part of the United Kingdom; and
• there are no matrimonial or civil partnership proceedings continuing in a court in Scotland or Northern Ireland in respect of a marriage or civil partnership of the parents of the child concerned

2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?

Since Brexit, all jurisdiction disputes are determined by the forum non-conveniens principle. This means that the court will assess which is the most convenient and appropriate court to hear the case. While the jurisdiction dispute is ongoing, the legal proceedings in both countries should be stayed pending the outcome of the dispute.

The English court has very wide discretion and takes into account a variety of factors when making its decision, including:

• the parties' nationalities and domiciles;
• the location of their current family home;
• where the parties have lived and worked during the marriage;
• the location of their assets;
• their cultural backgrounds;
• where the children were born and where they are or will be educated;
• where the parties' extended family live;
• where the parties plan to retire;
• the existence of and stage reached in existing proceedings;
• future legal costs; and
• the availability of witnesses and documents.

3 Relationships and co-habitation,

3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?

No.

3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?

Unlike marriage, no legal or financial responsibility between couples arises from the simple fact of cohabitation. England and Wales does not recognise common-law marriage and has no means to formalise a cohabiting relationship; as a result, cohabitants have limited legal protection. Any claims that arise from the relationship fall into two categories:

• claims brought on behalf of children; and
• claims for an interest in property.

Jointly owned properties are generally shared equally upon relationship breakdown. If the property is held in unequal shares based on initial contribution to the purchase price (a tenancy in common), each cohabitant will take back their relative share on sale. In the event of a dispute where the beneficial ownership does not align with the legal ownership, the burden is on the person seeking to show that the parties intended their beneficial interests to differ from their legal interests and in what way.

To establish an interest in a property not held in joint names, a cohabitant must rely on:

• property law; and
• the principles of constructive trusts and proprietary estoppel.

To establish a constructive trust, the claimant must show that there was an agreement, arrangement or understanding to own a property jointly either when it was purchased or later. The agreement can be express or inferred from conduct (which includes their whole course of conduct in relation to the property). Financial contributions are relevant but many other factors enable a court to decide what shares were intended or fair. Alternatively, the claimant can rely on proprietary estoppel, which has traditionally been applied where the claimant was led to believe that the property would be owned jointly and acted to their detriment on that assurance.

3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?

No. There is no mechanism in England and Wales to formalise a cohabiting relationship. Couples entering into a civil partnership (whether same-sex or opposite-sex) have the same status as married couples regarding inheritance, tax and financial provisions upon relationship breakdown.

For couples wishing to cohabit, it is highly recommended that they have a cohabitation agreement, which is similar to a prenuptial agreement. It is a legal document that allows the couple to formally record:

• the terms on how they plan to live together; and
• what will happen if the relationship breaks down.

3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?

In England and Wales, foreign civil partnerships and same-sex marriages will be recognised provided that:

• the civil partnership or marriage ceremony was properly performed in the country in which it took place (and is valid in that country); and
• the couple had the capacity to enter into that relationship.

This can be quite complex, but the practical reality is that many foreign civil partnerships and same-sex marriages will be recognised in England and Wales.

4 Marriage

4.1 What is considered a legal and valid marriage in your jurisdiction?

In order for a marriage carried out in England and Wales to be valid, a number of formalities must be complied with:

• The couple must be two individuals who:
• • are over 18;
  • are not in an existing marriage or civil partnership; and
  • are not closely related to each other (eg, adoptive parent and adoptive child, siblings).
• The couple must give notice of their intention to marry. The process for doing this varies depending on the type of wedding.
• Whether the marriage is religious or civil, the ceremony must be carried out by or in the presence of a person authorised to register marriages
• Broadly, the venue where the marriage ceremony is being held must be an approved premises (although this can get quite complicated for religious marriages).
• The formalities of the ceremony must be followed.
• After the ceremony, the marriage register must be signed.

4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?

No.

4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Foreign marriages: The validity of a marriage entered into overseas is governed by both:

• the law relating to formal validity (lex loci celebrationis) (the legal requirements of the country in which it was entered into); and
• the law of essential validity, regarding:
• • the pre-marital domicile of the parties;
  • the law governing capacity to marry in the place of domicile pre-marriage; and
  • the lex loci celebrationis of the place where the parties intended to have their marital home.

If there is any doubt as to the validity of the marriage, it is possible to ask a court for a declaration of status under section 55(1) of the Family Law Act 1986.

A polygamous marriage that is valid under the lex loci celebrationis of the place of marriage will be recognised as a valid marriage unless there is strong reason to the contrary. A polygamous marriage entered into abroad will be void if, at the time of the marriage, one of the parties was domiciled in England and Wales. It is not possible for individuals to remarry here without an overseas marriage first being dissolved.

Overseas same-sex marriages are recognised in England and Wales subject to capacity to marry and validity in the country of celebration under the Marriage (Same Sex Couples) Act 2013.

Religious marriages: Religious marriages celebrated abroad will generally be recognised in England and Wales provided that they meet the legal requirements of the country in which they were celebrated (lex loci celebrationis).

Customary marriages: Each case will be unique and the domestic laws and traditions of the country where the marriage took place will need to be investigated. Generally, the key elements that will be looked at are:

• negotiation (eg, provision of a dowry);
• consent (eg, a special ceremony or spokespeople representing each family); and
• ceremony (eg, whether the ceremony was conducted in a language that both parties understood).

A customary marriage contracted outside England and Wales is governed by the law of the country in which it was celebrated (the lex loci). If the marriage is recognised in that country, it will usually be recognised in here.

4.4 Does a specific marital property regime apply in your jurisdiction?

No.

5 Pre- and postnuptial agreements

5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?

Nuptial agreements are not binding in England and Wales. The parties to a nuptial agreement cannot override the court's broad discretion to decide how to redistribute their assets and income on divorce. When considering an application for financial remedy, the court must, however, give appropriate weight to a nuptial agreement as a relevant circumstance of the case when considering the factors set out in section 25 of the Matrimonial Causes Act 1973. It may be that a nuptial agreement should be given decisive weight. This will depend on the circumstances of the case.

In its landmark decision in Radmacher v Granatino [2010] UKSC 42, the Supreme Court held that a nuptial agreement should be upheld by the court if:

• the parties entered into it:
• • freely; and
  • with a full appreciation of its implications; and
• it is fair to uphold the agreement in the circumstances prevailing.

The legal status of a nuptial agreement in England and Wales is the same whether the agreement is made in England or in a foreign jurisdiction, as the English court will apply English law, irrespective of any foreign connection. What is less certain is whether the English court will give different weight to an agreement made in a jurisdiction other than England.

5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?

Following the Supreme Court guidance in Radmacher v Granatino [2010] UKSC 42, the following safeguards should be taken into account when drafting a nuptial agreement:

• The desirability of entering into a nuptial agreement should be raised well in advance of the wedding, ceremony or planned signing date.
• Both parties should take independent legal advice (from a specialist family lawyer) sufficiently in advance of the wedding, ceremony or planned signing date to allow time for proper negotiations. How long this should be will depend on the complexity of the agreement being drafted.
• There should be contemporaneous evidence showing that each party understands the implications of the nuptial agreement. A warning notice on the front of the nuptial agreement in clear language can also assist in evidencing the fact that the parties intended to enter a binding agreement
• Try to ensure equal bargaining power. Neither party should be pressurised into signing the agreement and there must be no evidence of duress, undue influence, fraud, misrepresentation or mistake.
• Each party must disclose their financial position (including any expected inheritances and interests under trusts). Financial disclosure should be appended to the nuptial agreement. Each party must receive all information and documentation material to their decision to sign the nuptial agreement.
• The nuptial agreement must not prejudice the needs of any existing or future children.
• The nuptial agreement should include a review clause providing for the terms to be renegotiated on a significant change in circumstances during the marriage or civil partnership (eg, the birth of a child) or after a specified time has passed.
• The nuptial agreement must be 'fair' in accordance with the principles established in:
• • White v White [2000] UKHL 54; and
  • Miller v Miller, McFarlane v McFarlane [2006] UKHL 24.
• Broadly this means the agreement must ensure that:
• • both parties' financial needs are met;
  • no substantial hardship is caused;
  • any potential compensation claim is addressed; and
  • any property argued to be non-matrimonial and not subject to the sharing principle is clearly defined in the agreement.

Nuptial agreements are signed as deeds.

In terms of content, the following cannot be included in a nuptial agreement:

• anything illegal or that encourages divorce;
• decisions around practical arrangements for children (eg, schooling);
• child maintenance and waivers of child maintenance;
• personal and lifestyle provisions (eg, who is going to do which household chores); and
• different outcomes depending on the reason for the divorce.

5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?

In cases with an international element, to ensure that a client fully understands the implications of the agreement, it is vital that the client receives early advice about the effect of the agreement not only in England and Wales, but in the other jurisdictions that may be relevant to the parties. Evidence of such advice may help to demonstrate whether the agreement is fair if this is later questioned.

Some considerations for international clients include:

• whether the terms of the agreement will be recognised or enforceable in the foreign jurisdiction and what is to happen if they are not;
• whether there are any provisions that should be included in the agreement that would make the agreement more likely to be enforced or given increased weight in the foreign jurisdiction;
• whether there should be a single agreement that is compliant with the law of each relevant country or multiple or mirror agreements;
• whether there should be a jurisdiction or choice of law clause;
• the sort of financial provision that is likely to be made in the foreign jurisdiction in the particular circumstances of the case and how the proposed financial provision in the nuptial agreement is likely to be viewed by the foreign jurisdiction;
• whether there should be different financial provision depending on where any divorce takes place; and
• whether to separate out maintenance and non-maintenance elements in the agreement.

5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Yes.

5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?

A separation agreement is a legal agreement made between individuals who are contemplating imminent separation or have already separated. Most couples entering into a separation agreement will be married or in a civil partnership, although cohabiting couples may also wish to enter into a separation agreement. The agreement usually sets out the agreed financial arrangements during the period of separation, typically on the basis of how the couple's finances should be divided in the event of a subsequent divorce or dissolution.

Separation agreements are often confused with nuptial agreements. A nuptial agreement is an agreement made between two married individuals who intend to stay married and sets out how they wish their assets to be divided between them if they later separate or divorce. Some postnuptial agreements also detail how the couple currently arrange their finances and how this will continue or change during the marriage following the execution of the agreement. The difference is that a separation agreement contemplates imminent separation, whereas the parties to a nuptial agreement do not usually wish or expect to separate in the near future (a postnuptial agreement often records that the parties wish the marriage to continue). By contrast, a separation agreement is usually drafted closer in time to and so in contemplation of the breakdown of the relationship.

A separation agreement does not end a marriage. If a couple wish to divorce, one of the parties will need to start divorce proceedings.

6 Divorce

6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?

The Family Court can deal with divorce proceedings only where one or more of the following criteria applies (section 5 of the Domicile and Matrimonial Proceedings Act 1973):

• Both spouses are habitually resident in England and Wales;
• Both spouses were both last habitually resident in England and Wales and one of them continues to reside there;
• The respondent is habitually resident in England and Wales;
• On a joint application, either spouse is habitually resident in England and Wales;
• The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application is made;
• The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application is made;
• Both spouses are domiciled in England and Wales; or
• Either spouse is domiciled in England and Wales.

6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?

The Divorce, Dissolution and Separation Act 2020 came into force on 6 April 2022. The new law means that divorcing couples no longer need to assign blame to be granted a divorce. Divorce proceedings that were commenced before the Act came into force will continue under the previous fault-based regime for divorce.

6.3 How does the divorce process typically unfold and what is the general timeline?

An application for a matrimonial order leading to divorce cannot be presented to the court before one year from the date of the marriage. The application must be commenced in the Family Court and is generally completed online. The sole ground for divorce is that the marriage has broken down irretrievably. There is no scope to provide reasons or evidence as to why the relationship has irretrievably broken down. The statement of irretrievable breakdown is conclusive evidence. A divorce application can be made either:

• solely, where one party initiates the process and the other party responds to it; or
• jointly, where both parties take the steps required to prepare and file their application together.

Whether the divorce application is brought on a sole or a joint basis, there is a compulsory minimum waiting period of 20 weeks from the issuing of the divorce application before an application for the first divorce order – the conditional order – can be made. The conditional order confirms that that court agrees that the marriage should be dissolved. It is an important stage to reach because at this point, the court has jurisdiction to make the financial order. However, it is usual to wait until all financial matters have been resolved before proceeding to the final divorce order.

There is then a further compulsory minimum waiting period of six weeks and one day from the pronouncement of the conditional order before the final divorce order can be applied for. The final order is the final decree of the divorce and it is at this point that the marriage is formally ended.

6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?

Yes; however, family lawyers will advise their clients not to apply for the final divorce order until the finances have been settled. There are several reasons for this, including the following:

• Until a financial order is obtained from the court, financial claims arising from the marriage or civil partnership continue to be live even after the divorce or dissolution has been finalised. This means that an ex-spouse can bring claims regardless of how many years have passed since the divorce.
• Without a financial order, a party may also be liable to fall into the 'remarriage trap'. This is where someone who has remarried after getting divorced but before finalising a financial settlement may lose the right to claim assets to which they were otherwise entitled.

6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?

No.

6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Foreign divorces: If the foreign divorce was granted in a country which is a signatory to the 1970 Hague Divorce Recognition Convention, it will be automatically recognised.

For all other foreign divorces, since 1 January 2021, the validity and recognition of foreign divorces have been governed by the Family Law Act 1986.

A foreign divorce obtained by means of judicial or other proceedings will be recognised if both:

• the divorce is effective under the law of the country in which it was obtained; and
• at the date of the commencement of the proceedings, either party to the marriage was habitually resident, domiciled in or a national of that country.

A foreign divorce obtained other than by means of proceedings (non-proceedings) will be recognised only if all of the following apply:

• The divorce is effective under the law of the country in which it was obtained;
• At the date on which it was obtained:
• • each party was domiciled in that country; or
  • either party was domiciled in that country and the other party was domiciled in a country under whose law the divorce/annulment/legal separation is recognised as valid; and
• Neither party was habitually resident in the United Kingdom for a period of one year immediately preceding the date of the foreign order.

The most common reasons for refusing to recognise a foreign divorce are as follows:

• There was no subsisting marriage to dissolve;
• A party had no opportunity to participate in the divorce proceedings and recognising the divorce would be contrary to public policy; or
• There is no official document certifying the divorce and recognition would be contrary to public policy.

Transnational divorces – where the divorce is started in one country but completed in another – are not recognised.

Religious divorces: Religious divorces are not always recognised. The Family Court will need to consider whether the divorce has been conducted through proceedings or non-proceedings (as set out above).

6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?

Annulment: A marriage that is either invalid (void) or defective (voidable) can be annulled by a nullity of marriage order. A civil partnership can be annulled in the same way as a marriage. However, a civil partnership between a same-sex couple cannot be terminated by nullity due to non-consummation of the relationship. Usually, proceedings are started within three years of the marriage.

Annulment ends a marriage, like divorce. There are different grounds for annulling a marriage depending on whether the marriage was void or voidable. Characterising a marriage as void or voidable is important, as it will entitle an applicant to an order declaring the marriage void or voidable, and certain financial remedies will be available.

Void marriages are marriages that were never valid and therefore are treated as if they never existed – for example, because:

• the parties were too closely related; or
• the marriage was bigamous.

Voidable marriages are marriages that are valid but the parties have the option to annul the marriage – for example, because:

• the marriage was never consummated; or
• there was lack of valid consent.

For both void and voidable marriages, the court can make a wide variety of financial orders; the factors the court takes into account are the same as those on divorce (section 25 of the Matrimonial Causes Act 1973).

Some ceremonies, even though they are, or purport to be, marriage ceremonies, will not be sufficient to create even a void marriage. Ceremonies that are not within the scope of the Marriage Act 1949 and the Matrimonial Causes Act 1973 are commonly referred to as 'non-marriages' or 'non-qualifying ceremonies'. There is no definition or test for non-marriages, but a Hindu marriage ceremony and an Islamic marriage ceremony which made no attempt to comply with the requirements of the Marriage Act 1949 created a non-marriage. If a marriage is a non-marriage, no financial relief is available to the parties under the Matrimonial Causes Act 1973.

Judicial separation: Judicial separation is formal marital separation where marital obligations come to an end. A judicial separation order has two main effects:

• The court can make certain financial orders; and
• If one party dies intestate, their property devolves as if the other party to the marriage had died, so the surviving spouse will not benefit. Thus, if a will leaves property to the other party, that party will benefit despite the judicial separation.

Judicial separation does not end a marriage. Parties who are judicially separated are still married. Judicial separation proceedings follow a similar format to divorce proceedings, but the court does not consider whether the marriage has irretrievably broken down, given that the marriage continues. Judicial separation remains rare and is most often used:

• by those who have religious or cultural objections to divorce; or
• where a couple have not been married for one year and therefore cannot yet divorce.

A party seeking judicial separation can apply for most of the same financial orders as a party seeking divorce, except they cannot apply for a pension sharing order or a clean break (because the marriage is technically continuing).

Civil partners can also apply for judicial separation.

6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?

The process below sets out service as it applies to sole applications for divorce.

Since 2020, the divorce process has largely been digitised, meaning that many applicants (or their legal representatives) will use an online portal to apply for the divorce.

The court currently allows 28 days from the date on which the divorce application is issued for the respondent to be served with the paperwork. Where the respondent lives within England and Wales, Scotland or Northern Ireland, the court will in many cases effect service on the applicant's behalf by both first-class post and email, unless the applicant specifically requests otherwise.

If the applicant specifically requests that the court not arrange service on their behalf, they will need to make suitable arrangements themselves – for example, by serving the documents using first-class post. Importantly, the applicant cannot hand over the application directly to the respondent. They can, however, arrange for a third party – most likely a process server – to personally serve the respondent. If the respondent is proving tricky to track down, an application can be made to request service by an alternative method such as WhatsApp, Facebook or email only.

Where the respondent has a legal representative, service can be effected directly on their legal representative if they have agreed in advance to accept service.

Where the respondent lives overseas, the court will not deal with service, so either the applicant or their solicitor will need to deal with this. There are broadly three options:

• If the respondent lives in a country which has signed the Hague Convention 1965, the paperwork will be served in accordance with that convention via the designated central authorities in each country.
• If the respondent lives in a country which has not signed the Hague Convention 1965, service can be effected through the Foreign and Commonwealth Office.
• In either case, the applicant also has the option to serve the application directly on the respondent, as long as the method of service chosen complies with the law in which the document is being served.

In many cases, the last option above is usually the quickest method and is most likely to meet the requirement that service take place within 28 days of issue (although an extension can be applied for).

7 Finances

7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?

The Family Court expects parties in court proceedings to make a serious effort to resolve their dispute outside of the courtroom where possible. See answer to this question "What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?"

Within court proceedings, a financial dispute resolution hearing is a key stage. It is a negotiation-focused hearing facilitated by a judge, with the aim of reaching a settlement rather than a court-ordered outcome. The judge will give an indication of how they think a court would split the finances if the case were to continue to a final hearing and the parties are given time to negotiate. These hearings are conducted on a "without prejudice" basis, meaning that any indications made by the judge or settlement offers made by the parties cannot be referred to in later court hearings. Significantly, the judge who deals with the financial dispute resolution hearing cannot play any further part in the proceedings.

7.2 Spousal and child maintenance: (a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated? (b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard? (c) When do spousal and child maintenance expire? (d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt? (e) Which bodies are responsible for issuing child support orders in your jurisdiction? (f) Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)? (g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances? (h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections? (i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?

Child maintenance: Within England and Wales, child maintenance can be arranged in one of three ways:

• agreed between the parents (a family-based arrangement), which can either be informal or be incorporated in a consent order approved by the court;
• calculated by the Child Maintenance Service (CMS); or
• ordered by the court in certain circumstances outlined in law or where the CMS does not have the power to make a child support assessment.

When the CMS calculates the amount of maintenance payable, it uses a fixed statutory formula which works on the basis of the paying parent's yearly gross income using information supplied by His Majesty's Revenue and Customs. It will then consider other things which may impact the amount of maintenance such as:

• any other children whom the paying parent supports in their household; and
• pension payments.

It will then apply one of five rates.

Even if the CMS is not being asked to calculate the amount of child maintenance payable, many parents (as well as the court) use the fixed formula to work out their own arrangements. This is because a court order reflecting an agreement that parents have come to over child maintenance is only effective for 12 months; once the court order is a year old, either parent can go to the CMS and ask it to make a child maintenance calculation, thereby ousting the court order.

The Family Court only has limited powers to make child maintenance orders where:

• the CMS does not have jurisdiction (most commonly, where the paying parent lives overseas and does not work for a British organisation such as the armed forces or civil service);
• the parents agree a child maintenance order; or
• the order is of a certain type, including:
• • orders to meet a child's educational expenses;
  • orders for costs attributable to a child's disability;
  • top-up child maintenance orders; and
  • orders against the parent receiving the child maintenance.

The fixed formula limits the amount of a paying parent's income which can be considered for the purposes of a child support calculation to £156,000 gross a year. Where the CMS calculates the amount of child maintenance payable based on this maximum level of assessable income, the court has the power to 'top up' – that is, make an order requiring the paying parent to pay child maintenance over and above the fixed formula. This does not extinguish or replace the CMS calculation; rather, a top-up order is payable in addition to a CMS child support calculation.

Historically, it was widely considered that the starting point to calculate a 'top-up' award was simply to apply the same formula used by the CMS to the paying parent's income over £156,000 and up to £650,000 gross a year. However, this approach was criticised. Since 2023, an 'adjust formula methodology; has been used to produce a starting point. The methodology takes into account deductions for things such as school fees.

There is no obligation on courts to apply the methodology, but its introduction has been broadly welcomed. Those who earn over £650,000 gross a year remain subject to greater discretionary powers.

Spousal maintenance: An application for a spousal maintenance order (also called periodical payments) will be dealt with by the court:

• making a substantive order for periodical payments;
• making a nominal order for periodical payments;
• adjourning the application generally; or
• dismissing the application.

The court has a duty to consider a clean break, which is where the financial obligations of each party towards the other terminate as soon as is just and reasonable after the making of the final divorce order. Where there is a clean break:

• there may be no spousal maintenance; or
• the payments may be limited for a term.

Maintenance orders are unlike lump-sum and property adjustment orders, which are one-off final orders, in the following ways:

• They are capable of being varied;
• A party can make any number of applications for periodical payments, subject to a direction preventing further applications; and
• Pending resolution of the parties' financial claims, they may be paid as:
• • maintenance pending suit before the final matrimonial order; or
  • interim periodical payments if the final order has already been made.

There is no absolute entitlement to spousal maintenance. Whether it is awarded – and how much – will depend upon the circumstances; but commonly, where one party has a higher income than the other who cannot meet their reasonable financial commitments, this will be a good basis for a successful application.

How spousal maintenance is calculated is not straightforward and there are several factors which influence the amount, including:

• the income and earning capacity of the parties;
• their ability to make payments and meet expenses;
• the standard of living which they enjoyed during the marriage;
• the length of the marriage;
• the contributions which they made during the marriage; and
• anything else which is relevant – for example, whether one party has not progressed their career or income earning ability so as to care for children and assist the other party to pursue their career.

The weight attached to these factors varies from case to case.

If the court decides that spousal maintenance should be awarded, a further consideration is whether those payments should be capitalised – that is, whether it is preferable and possible to have an arrangement in which there is a one-off capital payment to the recipient so that all future spousal maintenance claims are dismissed. Capitalisation cannot happen in all cases, often due to there being insufficient funds to finance the capitalisation.

If there is to be a one-off payment to capitalise maintenance, the calculation of the amount to be paid needs careful consideration. Reference will be made to Duxbury calculations. These can be complex, particularly when forecasting the income and income needs of the parties in the future. This can be affected by the expected dates on which each party may be able to draw down on pensions, (both private and state) and other factors.

(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?

See question 7.2(a).

(c) When do spousal and child maintenance expire?

Child maintenance: Typically, child maintenance is paid until the child reaches the age of 16, or up to 20 if they are still in full-time secondary education. It may be paid for longer if the child has a disability. However, the amount of child maintenance may vary or be stopped prior to the child turning 16 or 20 (if in full-time education) – for example, because there has been a significant change in the paying parent's income.

It is also open to parents to agree between themselves to continue paying child maintenance beyond secondary education.

Spousal maintenance: When spousal maintenance comes to an end depends upon how the maintenance award has been structured. However, in all cases where either the payer or recipient dies or the recipient remarries, the maintenance will typically come to an end.

Joint lives maintenance: Exceptionally, maintenance can be for 'joint lives', which means that the payments continue until one party dies or the recipient remarries. These orders are less common than they used to be.

Term maintenance: Often, spousal maintenance lasts for a stated period, which may be for some years (known as a 'term maintenance order'), to enable the recipient to re-establish themselves and become independent. The length of the order may reflect:

• the recipient's childcare responsibilities; and
• their ability to achieve or increase their own income.

Term maintenance orders can be extended if there are good grounds to do so. However, a court order can state that the term cannot be extended under any circumstances.

Nominal maintenance: The court can order nominal spousal maintenance. The intention is that the person's right to claim spousal maintenance in the future is kept alive, so that there is the possibility to reapply for a substantive amount in the future if needs dictate.

(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?

Child maintenance: If child maintenance is being paid under a court order (ie, not through the CMS), those payments will cease on the death of the paying parent. The only way in which the payments can continue is if the payments were drafted as 'secured periodical payments'. Often, the paying parent will give an undertaking to enter into a deed of covenant to make financial arrangements in the event of their death during the subsistence of the child maintenance order.

Where child maintenance is being paid through the CMS, the assessment will come to an end on the death of the paying parent. The CMS does have the power to request the payment of arrears from the deceased's estate.

It is also possible for a claim to be made on the child's behalf under the Inheritance (Financial Provision for Dependants) Act 1975 against the deceased parent's estate for their maintenance going forward.

If the paying parent is made bankrupt:

• any arrears of child maintenance will still have to be paid (ie, the debt is not cleared); and
• ongoing child maintenance payments will still have to be paid.

Spousal maintenance: In the event of the payer's death, the spousal maintenance payments usually come to an end unless something different has been specifically agreed – for example:

• provision for ongoing maintenance has been made in the deceased's will; or
• life assurance has been taken out to protect the maintenance claim on the payer's death.

If the payments do just simply come to an end, it might be possible for the recipient to make a claim under the Inheritance (Financial Provision for Dependants) Act 1975 against the deceased's estate.

If the payer is made bankrupt:

• any arrears of maintenance will still have to be paid (ie, the debt is not cleared); and
• ongoing maintenance payments will still have to be paid.

However, the ability to enforce their payment may be compromised and the payer may seek to decrease the amount of maintenance payable on the basis that that there has been a change in their financial circumstances (bearing in mind that the trustee in bankruptcy can seek an order for the bankrupt's surplus income to be paid into the bankrupt's estate).

(e) Which bodies are responsible for issuing child support orders in your jurisdiction?

See answer to 7.2(a). The government-run Child Maintenance Service can arrange child maintenance including assessing the amount to be paid, arranging actual payment and taking enforcement action were necessary. The Family Court has limited powers to make child maintenance orders.

(f) Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?

No.

(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?

In some cases, it may be appropriate for a child to apply for financial provision for themselves. A child over the age of 18 years can apply to the court for maintenance or a lump sum from one or both parents, provided that:

• the child is receiving, or intending to receive, instruction at an educational or training establishment; or
• there are special circumstances such as a disability or illness.

However, this is a particular complex area.

(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?

The CMS can usually order a parent to pay child maintenance only if both parents and the child live in the United Kingdom. However, there are a few exceptions if the paying parent is working abroad:

• for the UK government (eg, as a civil servant or a diplomat);
• for the armed forces;
• for a company that is based in the United Kingdom; or
• on secondment for certain organisations, such as a local authority

If none of these exceptions applies and a private agreement cannot be reached with the other parent about how much child maintenance they should be paying, the recipient will need to apply to the Family Court for a court order, setting out what child maintenance payments should be paid.

If the paying parent refuses to pay the maintenance that has been ordered, the next step is to apply to enforce the court order in the country where they live. The Family Court in England and Wales has entered into a reciprocal agreement with over 100 countries, which means that a court order made in England and Wales will be recognised and can be enforced in any of those countries.

If the child and receiving parent move abroad, child maintenance through the CMS will come to an end because the CMS lacks jurisdiction to deal with maintenance where the child and receiving payments live overseas. Instead, the recipient may be able to apply for a child maintenance order in the country in which they are now living. This will depend on the laws of that country.

If a parent does not pay child maintenance that has been ordered abroad and the country that made the child maintenance order has entered into a REMO agreement with England and Wales, the receiving parent will be able to apply to court in England and Wales to enforce the foreign court order. The English and Welsh courts can then take steps to enforce payment of child maintenance – for example, by deducting any arrears of child maintenance from payslips at source.

(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

Where the CMS has made a maintenance calculation, it has a range of powers to collect unpaid maintenance. However, the recipient must sign up to the Collect and Pay service, which is a fee-paying service. The options available to the CMS include:

• making deductions directly from the paying parent's pay, pension or benefits;
• taking money directly from their bank account; and
• getting a liability order from the court.

Obtaining a liability order opens up another set of enforcement options, including seizing the paying parent's property.

Where the child maintenance is embodied within a court order, non-payment and arrears of maintenance can be enforced through the court. The options include:

• making deductions direct from the paying parent's wages;
• taking money directly from their bank account; and
• even imprisoning the paying parent, where it can be shown that they have, or had, the means to pay but refused or neglected to do so.

If child maintenance has been agreed informally between parents and the CMS is not involved and there is no binding court order, it is not possible to enforce the agreement.

7.3 Asset division: (a) What orders can the court make in relation to the division of assets on divorce or judicial separation? (b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard? (c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce? (d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)? (e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how? (f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation? (g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach? (h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold? (i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

(a) What orders can the court make in relation to the division of assets on divorce or judicial separation?

The Family Court has wide powers to make orders in relation to the division of assets on divorce or judicial separation, including ordering a party to:

• make or arrange periodical payments (maintenance) to the other party for as long as the court decides is necessary;
• pay a lump sum or sums to the other party;
• make or arrange periodical payments for the benefit of any children (child maintenance), subject to certain restrictions set out in child support legislation;
• pay a lump sum or sum for the benefit of any children;
• transfer specified property to the other party;
• make a settlement of specified property (ie, set up a trust for the benefit of the other party and/or a child of the family);
• vary any nuptial settlement or trust made for the benefit of one of the parties;
• sell specified property and distribute the proceeds; and
• share a pension fund.

The court can take all assets in which the parties have a legal or beneficial interest (including trusts, companies or property interests, even where the legal title is held in third-party hands) into consideration when calculating the assets available for distribution and division.

(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?

There is a wealth of case law regarding financial orders made on divorce and dissolution. However, the court must:

• have regard to all the circumstances of the case; and
• give first consideration to the welfare of any children under the age of 18.

The statutory factors that the court must take into consideration when deciding what orders to make (set out in the checklist at section 25 of the Matrimonial Causes Act 1973) are:

• the financial resources which each party has, or is likely to have, in the foreseeable future;
• the financial needs of each party now and in the foreseeable future;
• the standard of living enjoyed by the family before the breakdown of the marriage/civil partnership;
• the age of the parties and the duration of the marriage/civil partnership;
• any physical or mental disability of either party;
• the contributions made by each party to the welfare of the family, including:
• • any contribution by looking after the home or caring for the family; and
  • any contributions which either is likely to make in the foreseeable future;
• the conduct of each party, if that conduct is such that it would be unjust to disregard it (it is very rare for the court to take conduct into consideration unless it has been serious financial and/or litigation misconduct); and
• the value to each of the parties of any benefit that, by reason of the divorce/dissolution, either party will lose the chance of acquiring.

In a divorce, nullity or dissolution (but not judicial separation) case, the court has a duty to consider whether a clean break can be achieved so that there are no ongoing financial ties between the parties.

While the court has wide discretion as to the division of assets under section 25, in White [2000] 2 FLR 981 the House of Lords established two key principles:

• There should be no discrimination in favour of a money-earner against a home-maker. Their contribution to the marriage, and to the family assets, should be seen as having equal value; and
• The court should depart from the "yardstick of equality" only if and to the extent that fairness requires it.

In subsequent cases, those principles have been expanded further, meaning that judges must consider the following when dividing assets on divorce:

• the needs (generously interpreted) generated by the relationship between the parties – in most cases, this will be the starting point and the end point;
• compensation for any financial disadvantage generated by the relationship; and
• the sharing of the fruits of the matrimonial partnership.

The court should consider all three, being careful to avoid double counting. The ultimate objective of the court is to give each party an equal start on the road to independent living. In the event of irreconcilable conflict between the principles, the overriding criterion is fairness.

The reasons for which the court may depart from equality of division include:

• short marriages, especially where both parties have their own careers and have kept their finances separate;
• non-matrimonial property, which can include inheritance (whenever received) and wealth generated prior to the marriage and/or after separation. This factor will carry weight only in cases where:
• • the assets available for distribution exceed the parties' reasonable needs; and
  • the non-matrimonial property can be clearly identified;
• illiquidity (difficulties in borrowing and the nature of assets may justify a departure from equality);
• special contributions (in order to be taken into account, the contribution must be wholly exceptional) – this is rarely successfully argued; and
• needs exceeding resources. Equality is commonly departed from in cases where the parties' needs exceed the assets available for distribution (ie, where most of the capital is required to house the children and their main carer).

(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?

The Family Court is extremely reluctant to examine the causes of a marital breakdown. Conduct will be taken into consideration only if, in the opinion of the court, it would be inequitable to disregard it (section 25(2)(g) of the Matrimonial Causes Act 1973). In practice, conduct – especially non-financial conduct – is relevant only in a small minority of cases. Although the requirement that the conduct must be "gross and obvious" has been repealed, in practice there is still a very high hurdle to overcome before conduct is likely to be relevant.

There are rare cases of personal misconduct where the court has found that it would be inequitable to disregard the relevant conduct, with the effect that an order has been made for a smaller amount than would otherwise have been made. In practice, in all reported cases where conduct has been successfully pleaded, there has been a financial consequence to the conduct.

Conduct may also include financial conduct, making false statements or wilful non-disclosure during proceedings. This can be broken down into the following:

• wanton and reckless dissipation of assets leading to the dissipated assets being 'added-back': It is not enough to complain that one party has simply spent more than the other on, for example, housing costs or general living expenses. Examples of reckless spending include drug or alcohol misuse, unprecedented gifts, gambling and expensive lifestyles of new partners. Reckless spending post-separation is capable of being taken into account, but the position is less clear-cut if the reckless spending occurs while the parties are together. Indeed, where the reckless overspend was a long time ago, the parties have moved on from it and the marriage continued in spite of it, there is less chance of successfully arguing that it should be taken into account;
• litigation misconduct leading to a costs order; and
• non-disclosure leading to inferences being drawn about the extent of the assets.

(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?

As part of the disclosure process, it will often be necessary to obtain expert evidence regarding the valuation of properties, businesses and other assets (eg, jewellery, antiques or pension benefits). However, such evidence should not be obtained automatically; and although an expert may be instructed by a party to financial proceedings without the permission of the court, the court's permission must be obtained before expert evidence may put before the court (in any form). The rules restrict expert evidence to that which, in the opinion of the court, is necessary to assist the court to resolve the proceedings.

(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?

Both parties on divorce usually have a strong claim to share (equally) in all matrimonial property built up during the marriage. They will or may have a much less strong claim to share in non-matrimonial property such as:

• pre-acquired assets;
• assets brought into the marriage from an external source by one of the parties (without any contribution from the other); and
• wealth which is the product of their sole endeavour.

The family home sits in a special category. Even if the family home is non-matrimonial property, it will typically be treated as matrimonial property.

(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?

The court takes into account the financial resources that the parties have or are likely to have in the foreseeable future. If a party to a marriage or civil partnership is a beneficiary or potential beneficiary under a trust, their interest may be regarded as a financial resource. The court's approach will depend on:

• the nature of their interest; and
• the broader circumstances of the case.

The court also has the power to vary a trust if it is found to be a nuptial settlement.

The court has three main methods of approaching trusts on divorce:

• treating trust income or assets as a resource available to either party (or declining to do so);
• exercising its power to vary a nuptial settlement; and
• determining issues of trusts or property law if:
• • the validity of a trust or transfers into it are challenged; or
  • it is alleged that the trust is a sham.

(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?

The rules governing enforcement of financial orders in family proceedings are complex and there are a variety of different methods, including the following:

• Attachment of earnings: An order directing the paying party's employer to deduct a portion of their wages and pay this into the court, before it is then paid to the recipient. This method of enforcement is only suitable when the paying party is employed.
• Third-party debt order: An order directed at someone other than the paying party, so that third-party funds owed to the paying party are paid to the recipient instead. For example, if the paying party has a bank account with a positive balance or they are due to receive moneys, the order can be made over these sums.
• Warrant of control: An order to authorise bailiffs to seize money or goods from the paying party to be used for payment to the recipient.
• Charging order: A charging order is applied to the paying party's property so that if the property is sold or remortgaged, the recipient will be paid from the proceeds. In some cases, the court can also make an order for sale.
• Judgment summons: An order which could lead to imprisonment if the paying party continues to default on the terms of the order. This order does not in itself secure payment but is a good incentive to get them to pay.

Which is the right option will in part depend on what part of the financial order has been breached.

The applicant need not decide which method of enforcement they want to use – they can ask the court to decide which method of enforcement is most suitable.

(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?

Many parties reach agreements on how to divide their finances without the input of the court. However those agreements are reached, it is preferable that they are then embodied in a binding court order. Broadly, this is because an agreement for the compromise of a financial remedies application does not give rise to a contract enforceable in law.

(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

Yes. The basis for an application for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 is an overseas divorce, annulment or legal separation granted outside England and Wales. The purpose of the act is to help a party who has received no or inadequate financial provision in a foreign court in a case where there are substantial connections to England and Wales. There are two stages to an application under Part III:

• The court must first grant permission (being satisfied that there is a substantial ground for making an application); and
• It must then hear the substantive application.

The court has jurisdiction to hear such an application in any of the following circumstances:

• Either party is domiciled in England and Wales (on the date of application or foreign decree);
• Either party was habitually resident in England and Wales for one year prior to the application or foreign decree; or
• There is a matrimonial home situated in England or Wales.

If permission is granted, the Matrimonial and Family Proceedings Act 1984 sets out a (broad and non-exhaustive) list of factors to which the court must have regard, similar to those considered on a domestic divorce.

At both stages (permission and substantive hearing), the court must also:

• consider whether it is appropriate to make an order in England and Wales; and
• if it is not satisfied, dismiss the application.

The court will take into account:

• the relative strengths of the parties' connection to England and Wales and the foreign jurisdiction(s);
• the jurisdiction in which the marriage was dissolved;
• the ability of the applicant to apply for financial orders in that jurisdiction and compliance with that order;
• the availability of any property in the jurisdiction of England and Wales;
• the extent to which any English order is likely to be enforceable; and
• any delay since the foreign divorce (especially if such delay is seen as 'tactical').

The court has wide discretion as to the level of provision it makes, but the emphasis is on fulfilling the parties' needs. If the court makes an order, it has the power to make any or all of the principal orders available in a domestic divorce, save in circumstances where the court's jurisdiction is based solely on the existence of a beneficial interest in a former matrimonial home. In those circumstances the court's power is limited to making a lump-sum or sums order or a property adjustment order in relation to that asset.

Although it is not necessary for the applicant to prove that any financial award made by a foreign court has resulted in a real hardship or serious injustice, at the same time, the court will not intervene merely because one party wants their financial award 'topped up' to the equivalent award that would have been granted under English law.

8 Child custody

8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?

Following the breakdown of a marriage or relationship, the parents may decide between themselves on:

• the children's living arrangements; and
• the time (contact) they will have with each parent.

If the parents do not agree on the arrangements, either can apply to the court under section 8 of the Children Act 1989 for a child arrangements order to determine the position. Before issuing an application, a prospective applicant must attend a mediation information and assessment meeting (MIAM) and invite the other parent to attend, unless an exemption applies. At the MIAM, a mediator will discuss the dispute with each party and assess whether other forms of dispute resolution (eg, family mediation, collaborative practice or arbitration) can assist in resolving the dispute.

Previously, under section 8, an individual (limited to those set out in section 10 of the Children Act 1989) could apply to the court for a contact or residence order. However, section 11 of the Children and Families Act 2014 introduced the concept of continued parental involvement into the Children Act 1989 (section 1(2A)). The amendments mean that when the court is considering an application regarding a child's living and contact arrangements, it must presume that involvement of both parents in the life of the child will further the child's welfare (unless the contrary is shown). The court may order that the child live with one or both parents or spend time with a parent or someone named in the order. Where the order provides for the child to live with both parents in their respective homes, time in each home will not necessarily be equal.

Unless it is to vary or discharge an existing child arrangements order, applications for child arrangements orders must be sought before the child reaches the age of 16 (unless the court is satisfied that the circumstances are exceptional). A child arrangements order stipulating with whom a child is to live ends automatically when the child reaches the age of 18. A child arrangements order stipulating with whom the child is to spend their time usually ends when the child reaches the age of 16.

Other orders are also possible, such as:

• indirect contact (involving letters, cards or video calls);
• supervised contact; and
• supported contact.

Conditions and directions can be made to manage the scope and practicalities of the contact. Contact can be ordered between the child and wider family members such as grandparents and siblings.

When making any order under section 8 of the Children Act 1989, the child's welfare must be the court's primary consideration. When determining whether an order is in the child's best interests, the court must consider the welfare checklist set out in section 1(3) of the Children Act 1989. The factors to be considered include:

• the child's physical, emotional and educational needs; and
• how capable each parent is of meeting their needs.

The wishes of the child may be taken into consideration if they are of sufficient age and understanding. The court must give consideration to the 'delay' and 'no order' principles under sections 1(2) and 1(5) of the Children Act 1989 respectively. These state that:

• any delay in proceedings is likely to be prejudicial to the welfare of the child; and
• the court should make an order only if it is better for the child than if no order were made.

8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?

Yes.

8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?

The Family Court expects parties in court proceedings to make a serious effort to resolve their dispute outside of the courtroom where possible. See answer to this question "What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?"

Within court proceedings, a dispute resolution hearing is a key stage which allows time for those involved to negotiate and see if an agreement can be reached.

8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?

There is no definition of an 'expert'. The chief characteristic is that the person has the ability to give evidence as to facts and opinion on the issues in the case.

Within children proceedings, the duty of the expert is to help the court with matters within their expertise. Expert evidence will be permitted only "if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly". Section 13(7) of the Children and Families Act 2014 sets out the factors to be considered by the court when deciding to give permission, which includes any impact on the welfare of the children concerned that any examination or assessment will likely have.

There is a requirement for the expert to comply with certain standards and the issue of experts' qualifications has been a hot topic. The president of the Family Court has made it clear that:

• the court will adopt a rigorous approach to ensure that experts are properly qualified; and
• pseudo-science (which is not based on any established body of knowledge) will be inadmissible.

This year may see further changes to the law meaning that only regulated experts (eg, experts regulated by a UK statutory body) will be able to give evidence in children proceedings (subject to certain exceptions).

Wherever possible, expert evidence should be provided by a single joint expert instructed by both parents.

8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?

A parent who shares parental responsibility with another parent cannot remove a child under the age of 16 years from England and Wales without either:

• the written consent of that person; or
• permission of the court.

The rules and procedure differ depending on whether a child arrangements order is in place. An unmarried father without parental responsibility can apply to prevent the removal of a child by making an application for a prohibited steps order under section 8 of the Children Act 1989.

Regarding temporary removals, where there is a child arrangements order in place, a person named as a person with whom a child lives can take the child out of England and Wales for a period of up to one month. This allows for holidays without the need to seek permission of the court or the consent or any other person. This is not the case if there is no 'live with' order in force. If the trip is for more than one month, the person with whom the child lives under the child arrangements order needs:

• the consent of anyone else with parental responsibility in writing; or
• the permission of the court.

The destination of any trip will be a significant factor in the court's decision making, and it may be harder to persuade a court to permit temporary removal where:

• the destination country is not a Hague Child Abduction Convention state; or
• there are no methods for recognition/enforcement of its orders.

Applications for permanent leave to remove are governed by the welfare principle as set out in section 1 of the Children Act 1989. Until recently, the courts had endorsed the approach taken in Payne [2001] 1 FLR 1052 where, as well as considering the welfare of the child and whether the application was genuine, the court looked at the impact of refusing the application on the mother making the application. However, in K v K (Children) (Removal from jurisdiction) [2011] EWCA Civ 793, the Court of Appeal held that the only principle to be extracted from Payne is that the child's welfare is to be afforded paramount consideration. Since then, in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, the Court of Appeal has clarified that the court must:

• undertake a "global holistic evaluation" by weighing up all relevant factors;
• look at the case as a whole; and
• determine the course that best meets the need to give paramount consideration to the child's welfare.

8.6 What regime applies to the international abduction of children in your jurisdiction?

The United Kingdom is a party to the Hague Child Abduction Convention, which is concerned with the return of children under the age of 16 who are wrongfully removed from or retained away from their place of habitual residence in breach of the other parent's "custody rights". The Hague Child Abduction Convention provides that the courts of signatory states will generally return an abducted child to the country where they are habitually resident, although there is a limited discretion in certain circumstances to allow a child to stay in the new country.

The United Kingdom is also a party to the Hague Child Protection Convention, under which a return order can be obtained in England and Wales and enforced.

If a child is abducted to a non-convention state, the inherent jurisdiction of the court will need to be invoked to make the child a ward of court. Once made a ward of court, no important decisions about the child's life can be made without the consent of the High Court.

9 Surrogacy and adoption

9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

The key laws on surrogacy agreements are:

• the Surrogacy Arrangements Act 1985;
• the Adoption and Children Act 2002; and
• the Human Fertilisation and Embryology Act 2008.

9.2 Are surrogacy arrangements legal in your jurisdiction?

It is legal to enter into a surrogacy agreement but those agreements are currently unenforceable under English law (section 1A of the Surrogacy Arrangements Act 1985). Despite this, people still enter into surrogacy agreements. In addition, there are a number of criminal offences in relation to surrogacy, including:

• advertising for a surrogate mother; and
• carrying out commercial surrogacy arrangements in the United Kingdom (section 3 of the Surrogacy Arrangements Act 1985).

9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?

The legal consequences in terms of the parent/child relationship are governed by sections 33 to 42 of the Human Fertilisation and Embryology Act 2008. The surrogate is the legal mother of the child and any husband of hers is the legal father. If she is in a civil partnership, her partner will be a legal parent. If the woman is unmarried at the time of the surrogacy, the intended father can be named as the legal father.

Once the child is born, legal parenthood can be transferred from the surrogate (and her husband or partner) to the intended parent(s). Since 2016, it has been possible for one person to apply for a parental order (as well as two people).

Where the application for a parental order is made by two people, the applicants must be:

• married;
• civil partners; or
• living as partners in an enduring family relationship (ie, as if they were married/civil partners).

The intended parent(s) has/have six months from the birth of the child to apply for a parental order. However, in Re X (A Child: Surrogacy: Time Limit) [2014] EWHC 3135, the then president of the Family Division, Sir James Munby, in criticising this limit, confirmed that the court had the discretion to accept late applications.

All parental orders are recorded in a parental order register.

The court, when considering whether to make a parental order, must be satisfied that:

• the surrogate mother and any other deemed legal parent have given their full and informed consent; and
• no money or benefits other than "reasonable expenses" have been transferred to anyone involved in the surrogacy arrangement.

With international surrogacy arrangements, the courts have confirmed that English law takes precedence over foreign surrogacy laws (ie, foreign court orders and birth certificates will not be recognised).

9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

In England and Wales, adoption involves the transfer of parental responsibility to the adoptive parents. Once adopted, the child loses their legal ties to their birth family and becomes legally recognised as part of their adoptive family. Married people, civil partners, cohabiting couples and individuals can all adopt under English law, provided that they:

• are over 21 years old; and
• have lived in the United Kingdom for at least a year.

The key pieces of legislation governing adoption are:

• the Adoption Act 1976;
• the Adoption and Children Act 2002; and
• the Children and Families Act 2014.

The framework of the Adoption and Children Act is intended to:

• simplify the adoption process;
• make the child's welfare a paramount consideration in decisions on adoption;
• avoid delay; and
• make provision for the process of adoption and the conditions for the making of adoption orders.

9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Yes.

10 Dispute resolution

10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?

There are a wide variety of ADR options available, including:

• mediation;
• collaborative law;
• arbitration; and
• private financial dispute resolution and early neutral evaluation.

None of these is mandatory, but they are strongly encouraged and the court will expect parties to engage with ADR before or alongside court proceedings.

10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?

Before making many family law applications, the prospective applicant must attend a mediation information and assessment meeting (MIAM), unless an exemption applies. Prospective respondents are also expected to attend a MIAM.

A MIAM is a meeting conducted by an authorised family mediator that will:

• provide information about mediation and other non-court dispute resolution (NCDR) processes;
• explain the potential benefits of mediation and other NCDR processes for resolving the dispute;
• assess whether there has been or is a risk of domestic abuse;
• assess whether there has been or is a risk of harm by a prospective party to a child that would be a subject of the application; and
• indicate which methods of NCDR may be suitable for resolving the dispute, explain why and provide information about to how pursue them.

At every stage in the proceedings, the court must consider whether NCDR is appropriate. There is guidance for the judiciary about NCDR which was updated in 2024 to reflect the tightening up of the MIAM process, If the court so requires (and it is compulsory in many private law children proceedings), a party must file a statement setting out their views on using NCDR. When considering whether it is appropriate in a relevant family application, the court must consider whether:

• a MIAM took place;
• a valid MIAM exemption was claimed and, if so, it continues to be applicable; and
• the parties attempted mediation or another NCDR process and the outcome.

If an applicant claims a MIAM exemption, the court will enquire into whether the exemption was validly claimed when the case is allocated or at the first hearing, depending on the nature of the application.

The requirement to attend a MIAM is not a requirement to participate in mediation or other NCDR processes. In 2023, making mediation mandatory was consulted on by the government, but following the responses received to the consultation, it was ultimately rejected. Recent changes to the MIAM process still have not given the court the power to compel parties to engage in NCDR, but they are a clear push towards better engagement in NCDR.

For example, in financial remedy proceedings, the court may consider a party's failure to engage in NCDR or a MIAM as a matter of conduct when determining costs orders. In family proceedings more generally, a failure to engage in NCDR may result in a costs order (paragraph 10E, PD 3A FPR 2010). For example, in children law proceedings, a costs order was made against a mother who had failed to participate in mediation (AM v RF [2024] EWFC 288 (B)).

The court has wide case management powers to encourage and facilitate the use of NCDR in family proceedings generally. At any time during the proceedings, if the court considers that NCDR is appropriate and if the timetabling of proceedings allows sufficient time, the court may give directions to the parties – either on an application or of its own initiative – to:

• obtain information about and consider using NCDR; and
• encourage parties to undertake NCDR.

In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, a civil case, the Court of Appeal held that the court has the power to stay proceedings and make an order compelling parties to participate in any suitable form of NCDR process at whichever stage of the proceedings it considers this appropriate, provided that this is compliant with Article 6 of the European Convention on Human Rights. While this is not currently the position in family proceedings, it is arguable that family proceedings are merely one step away – particularly given the remarks of Knowles J in Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam), in which she stated that it would be unwise to assume that the decision in Churchill v Merthyr Tydfil was irrelevant to family proceedings (at paragraph 15).

10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?

For couples with international connections, the most important consideration will be in which country to get divorced as this can have serious repercussions for the outcome.

Assuming jurisdiction is not an issue, there are various things to take into account which include:

• procedural considerations such as how long the couple will need to wait before they can divorce or the timescale itself of the divorce process. For example, in England and Wales a couple must have been married for at least a year before seeking a divorce but there are no other time requirements. In 2014, the High Court voided 180 divorces obtained by Italian couples with no link to England, who had fraudulently used an English PO Box address on their divorce petitions. This situation came about because of their desperation to circumvent the Italian divorce process, which at that time was taking several years on average to complete, whereas the English divorce process (excluding dealing with financial and children matters), was significantly faster (less than a year in most cases)
• how the courts' approach financial settlements and what law is applied. For example, because the English courts apply a principle of non-discrimination when it comes to parties' contributions to a marriage, England is widely described as the jurisdiction of choice for financially weaker parties as it is seen to make more generous provision for them than most other countries. The English courts also have more rigorous financial disclosure requirements than many other jurisdictions and take attempts to hide money or assets extremely seriously.
• how will a financial settlement be enforced? It is a pyrrhic victory a favourable jurisdiction is selected but then there is no way to enforce the final order made.
• practical considerations which can be as wider ranging as whether submitting to a particular jurisdiction will have implications for tax to what language will proceedings take place in. Legal costs – and how they will be funded – will be an important consideration in many cases.

11 Domestic violence

11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?

Where there have been incidents of domestic abuse, a party can seek the court's protection with an application for a non-molestation order and/or an occupation order under the Family Law Act 1996.

A non-molestation order prohibits a person (the respondent) associated with the applicant from molesting them or a relevant child (section 42 of the Family Law Act 1996). 'Molestation' is not defined in the Family Law Act 1996; but in practice, non-molestation orders are used to protect a party from violence, harassment and threats. The order can cover a wide range of behaviour and is generally used to offer additional protection to victims of domestic abuse.

These orders are specifically for applicants who are 'associated' to the perpetrator (eg, spouses, ex-spouses, partners and ex-partners who lived together, relatives, civil partners). The duration of the order is at the judge's discretion and breach of a non-molestation order is an arrestable criminal offence.

An occupation order grants the applicant the right to occupy a dwelling-house. The court can decide who should or should not reside in all or part of the home. Occupation orders can also exclude the other person from an area around the home. When in force, an order can additionally deal with practical matters of occupation, including:

• who bears responsibility for payment of the rent or mortgage on the property; and
• whether the occupying party should pay rent to the other person.

The duration of an occupation order can vary but is typically between six and 12 months.

As with non-molestation orders, the victim must:

• be an 'associated' person to the perpetrator to apply for an occupation order; and
• meet specific criteria regarding rights to the home.

The court then has a duty to consider:

• the balance of harm on all parties if the order were made or not made; and
• all other circumstances of the case.

In addition to making the order, the court can attach a power of arrest if it is satisfied that the perpetrator has used or threatened violence against the survivor or a child. This means the perpetrator can be arrested without a warrant if they breach the order. If no power of arrest is attached, the applicant can apply for a warrant if the order is violated.

Domestic violence protection notices (DVPNs) are issued by the police to provide immediate short-term protection for survivors following a domestic abuse incident, giving them 48 hours to seek further support. A DVPN can stop the perpetrator from entering the property and prohibit contact. Within this period, police can apply for a domestic violence protection order which extends these protections for 14-28 days. Breach of a DVPN will lead to an arrest and breach of a domestic violence protection order (DVPO) is a criminal offence which can lead to imprisonment and/or a fine.

Following the Domestic Abuse Act 2021, DVPNs and DVPOs are being replaced by domestic abuse protection notices (DAPNs) and domestic abuse protection orders (DAPOs). DAPNs and DAPOs aim to:

• protect survivors from all forms of domestic abuse, including non-physical abuse and coercive control; and
• force perpetrators to seek behavioural support.

A pilot scheme for DAPNs and DAPOs was launched in November 2024.

11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?

No.

11.3 How are these orders enforced and by whom?

If an occupation order to which a power of arrest has been attached is breached, the perpetrator can be arrested without the need to obtain a warrant. This requires the applicant to report any breach to which a power of arrest is attached to the police. If a power of arrest has not been attached, the applicant can apply for the issue of a warrant for the arrest of the perpetrator. An occupation order will often have a penal notice attached to it, meaning that a breach is also capable of being enforced in the Family Court as contempt of court.

The breach of a non-molestation order is a criminal offence as well as contempt of court. In practice, criminal proceedings will take precedence on public policy grounds.

11.4 How soon will the party's application be dealt with in these circumstances?

Typically, these types of applications are dealt with relatively quickly and especially where there is a need for immediate protection.

11.5 Does the court have inherent jurisdiction to make a child a ward of court?

Yes. Orders can be made pursuant to the court's inherent jurisdiction without the child being made a ward of court.

The High Court's inherent jurisdiction in relation to children, including making a child a ward of court, reflects its extensive powers to protect children in areas where statutory remedies are inadequate. It is often used or considered in complex cases, although there is no limit to the issues which can be addressed by the court in this way, as long as they link to a child's welfare. Common situations in which the inherent jurisdiction is invoked to make a child a ward of court include:

• child abduction;
• disputed medical treatment cases;
• children in need of protection where the Children Act 1989 does not apply; and
• disputes about children's remains after death.

Wardship should be used sparingly – that is, where:

• the question that the court is determining in relation to the child's upbringing or property cannot be resolved under statute in a way that secures the child's best interests;
• the child's person is in a state of jeopardy from which the child can only be protected by giving them the status of a ward of court; or
• the court's functions need to be secured from the effects of external influences (eg, intrusive publicity), and conferring the status of wardship would prove to be a more effective deterrent than the ordinary sanction of contempt of court.

12 Trends and predictions

12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Family law in 2025 is expected to continue to evolve to reflect the dynamic nature of society and the increasing influence of technology. Technological integration is becoming more pronounced, with the rise of AI presenting new challenges. Increasingly sophisticated tools are enabling parties to generate deepfake audio clips, photographs and messages, with a real risk of such material being introduced into court proceedings. With the court having the power to appoint a digital forensics expert to produce a report on the authenticity of evidence, we are likely to receive judicial guidance on this growing area.

Laws have been updated to recognise and protect the rights of non-traditional families, including those formed through:

• surrogacy;
• adoption; and
• same-sex partnerships.

Measures include clearer guidelines on parental rights and responsibilities. In 2023, the Law Commission stated that the UK surrogacy laws were in need of reform. We will need to wait and see whether any of the recommended reforms are enacted; meanwhile, the number of surrogacy cases is expected to continue to increase this year.

The Law Commission published a scoping report in December 2024 with a view to a possible reform of the law relating to finances on divorce which would also include reform of the law relating to nuptial agreements. The report sets out potential models for reform and we are now awaiting the government's response to see whether a full investigation is needed by the Law Commission.

The Victims and Prisoners Act 2024 will amend the Children Act 1989 to provide that where one parent has tragically killed the other parent and has parental responsibility for the children, a prohibited steps order will be put in place preventing the offender from exercising their parental responsibility.

Cohabiting couples are the fastest-growing family type in the United Kingdom, with around 3.6 million couples living together. Many people still believe in the myth of 'common law marriage' and are unaware of the lack of legal protection should they separate. The Labour Party committed to giving cohabitants greater rights and protections before the election in 2024; they have recently announced they will be looking at starting work on reform later this year.

Transparency within the Family Court has been high on the agenda for some time and will continue to be so in 2025. Increased reporting of cases will likely see more families using non-court dispute resolution (NCDR), particularly where privacy is important.

2024 brought a focus on NCDR and the consequences to parties of failing to engage properly with it. As the Family Court continues to be overwhelmed with a significant backlog of cases, it is likely that there will be increased uptake of the various NCDR processes to reduce the number of cases being referred to court.

13 Tips and traps

13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?

Recommendations on what to do:

• Be child focused in your decision-making. Children undoubtedly cope better with a separation when their parents are not in conflict and can see a joined-up approach to their parenting.
• Actively engage with NCDR where possible.
• Try to keep communications open, honest and, most importantly, constructive.

Recommendations on what not to do:

• Don't be disrespectful – don't share private information online, don't involve your children in adult arguments and do not threaten or harass your ex.
• Don't ignore the benefit of early legal advice.
• Don't intentionally ignore court orders, fail to provide full financial disclosure when asked or try to hide property and assets.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.