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Glossary of Legal Terms

We set out below a list of family law terminology to try and assist you in better understand what lawyers are talking about and some of the specific terms used. This glossary provides general information only. Specialist professional advice should always be taken and we cannot accept any liability for reliance on it.

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C

CAFCASS

The Children and Family Court Advisory and Support Service (CAFCASS) are sometimes asked by the court to assist in cases by meeting the parents and children and making recommendations to the court.

Capital Gains Tax

Capital Gains Tax, a tax that is charged when an asset is disposed of and which is linked to the increase in value of the asset during ownership. If it is an issue in your case specialist tax advice may be required, which we can arrange for you.

Capitalisation

This is a method of working out a lump sum to provide for income requirements in lieu of spousal maintenance, sometimes known as alimony. It is calculated by reference to a range of financial and actuarial assumptions to provide a stream of income to replace maintenance payments for the rest of the recipient’s life. For example, a husband might pay a sum of £100,000 to his wife aged 60 to provide her with an income of about £10,000 a year for the rest of her life. It enables clean breaks.

Cash Equivalent Transfer Value

This is a type of valuation given to a pension fund. Roughly, if the fund were transferred to another pension provider at the given date, it is the figure that the new pension provider would receive. It is often the figure given most weight in the courts and by family lawyers in negotiations; but other approaches to valuations may sometimes be more beneficial or appropriate.

Caution

A notice lodged at the Land Registry to prevent someone selling, transferring or mortgaging a property.

Central Authority

Part of the government which deals with other countries on cross border family law cases including child abduction cases.

Chambers

All family cases are heard in private, known as in chambers except, for example, defended divorces, granting of decrees nisi and some appeals. However judgments in final hearings can sometimes be publicly reported in the High Court which can be another reason to settle.

Charman

A major Court of Appeal decision in 2008 which provided very good, practical guidance on what the House of Lords was intending to say in the case of Miller. It stated that equality of division was now the principle of English financial provision law. It distinguished matrimonial acquest property, in essence the assets which were acquired during the marriage and cohabitation, and non matrimonial property which includes premarital assets, inheritances and gifts and some post separation assets. Matrimonial acquest property is likely to be divided equally provided reasonable needs are satisfied. Non-matrimonial property starts with equality dividing but it may be possible to show good fairness reasons to depart from equality

Child Abduction

Taking a child aboard without the consent of both parents; primarily one parent taking abroad without the consent of the other parent. Also includes taking a child abroad for a short time with consent but then retaining the child abroad without consent. It is a criminal offence. Many countries have signed up to the Hague Convention in which countries co-operate for the speedy return of abducted children. The parent whose child has been abducted is entitled to free legal representation. Often courts act very fast with substantial powers to locate an abducted child and secure the child's return.

Child of the family

Includes a non natural child of the relationship who has nevertheless been treated as a full child of the family.

Child Relocation

An application by one parent to take a child permanently abroad. The application requires careful preparation before the application is made.

Choice of Law

Rules which determine which country’s laws will be applied to a particular case. See applicable law. England only ever applies its own local, English law.

Civil Partnership

A state registered relationship between two people of the same sex. Is not a marriage which can be only of two people of opposite sex. It ends on dissolution, not divorce. Financial powers for orders on dissolution are similar to divorce.

Clean Break

The situation where the court has ended all orders and ongoing obligations that could be made between parties in relation to finances (apart from any ongoing arrangements for the support of children). It is often of psychological advantage to obtain this after a divorce, if it is financially possible. Sometimes it is achieved by capitalisation (see above) of maintenance.

Co-Respondent

The person of the opposite sex with whom the "Respondent" to a divorce has had a sexual relationship, thus forming the basis for an adultery petition. Co-Respondent's are now rare given that it is considered good practice not to identify such persons by name.

Cohabitation

People of the opposite, or same sex, living together without being married or in a civil partnership. The law gives more restricted rights on separation or death than for marrieds. Accordingly we recommend all cohabiting couples to enter into a "cohabitation agreement" to record their intentions for the future. This is often binding on a court.

Collaborative law

A form of alternate dispute resolution where specially trained lawyers acting for each party resolve cases via meetings. A condition is that if either party later commences proceedings both must then instruct new lawyers. Some regard this as a fundamental flaw, some regard it as its strength. Only appropriate for some cases where some degree of trust.

Conciliation

Was often confused with reconciliation, which it was not, and mediation which it is. Mediation is now the preferred word.

Conciliation Appointment

Often the first hearing in children dispute cases when a District Judge with a CAFCASS officer will see what element of agreement can be reached without further litigation. Children over 9 must attend and they will be spoken to by a CAFCASS officer. Conciliation hearings can sometimes be very successful.

Conduct

Conduct is very bad behaviour which the court will only take into account if it is exceptional and it would be inequitable to disregard it. It is rarely raised and even less rarely successfully argued in cases.

Consent order

Where both parties agree in writing about terms that are then lodged at court. A court order can often made without anyone attending court. Often needs some disclosure (e.g. Form M1 in finance cases) so court can be satisfied it is a fair order.

Contact Activity

An innovation introduced in late 2008 to encourage compliance with contact orders. It is a programme intended to facilitate and monitor contact and which either one or both parents may be asked to complete. The activity is free of charge if the parent is publicly funded, but if not, the parent may not have to pay if they can claim financial hardship. When making a contact order, a Court can direct or order that they attend one of the following activities:

  • Information/Assessment Meeting about Mediation, A one-off session to provide information and/or assess suitability of mediation.
  • Parenting Information Programmes, Typically two, two-hour group work sessions intended to encourage safe and beneficial contact by providing support through information on parenting after separation, how parents and their children can be affected and ways to change things for the better.
  • Domestic Violence Perpetrator Programmes, Intensive sixty hours' intervention aimed at challenging and addressing abusive behaviour of the participants. Victims and any current partners may also be involved.
Contact Centre

Centres across the country often run by charitable organisations, which provide a neutral and safe meeting place for contact to take place. If there are any anxieties about certain care arrangements for the child, the court can order that contact will take place in a contact centre. It is invariably only short-term. The contact centre staff will not necessarily supervise the contact itself. Handover of contact visits can sometimes take place at a contact centre with contact itself taking place outside the centre.

Contact Order

A contact order is made under section 8 of the Children Act 1989 and requires the person with whom the child is living to allow the child to visit or stay with another or to allow to child to have other contact or communication with another. (This was formerly known as "Access".) There may be more than one contact order made in respect of a child.

The contact may be overnight contact when a child stays with one parent overnight. This is sometimes also referred to as staying contact.

There can be indirect contact such as opportunities to telephone, write cards and letters and use web cams or SKYPE. This may be when it is not yet appropriate for direct face-to-face contact or it may be supplemental to direct contact or used when a child is in another country.

There can be supervised contact and contact at a contact centre. This may arise when there are anxieties for the child, for any parental meeting surrounding contact and sometimes when anxieties about the parent who is having contact. It is invariably hoped that such contact will move in time to unsupervised and direct face-to-face contact.

Contact arrangements always depend on the best interests of the child and are affected by matters of geography, travel arrangements, work commitments and similar. There is no one contact arrangements for everyone.

Counsel

Also known as a barrister.

Counselling

Individuals or couples are supported to explore and clarify personal issues and difficulties and to make/manage any changes in their lives. Counselling is confidential and non-judgemental, enabling people to raise matters of intimate, personal concern in complete safety. Counsellors encourage clients to develop an understanding of their problems and create their own choices regarding further action. They do not tell or advise clients what do to. Counselling can last for a few sessions or can be longer, depending on the individual/couple's needs and circumstances.

CSA

The Child Support Agency which has a set formula to calculate child support. 15% of net income if one child, 20% if two and 25% if three or more. The court can only make child support orders by consent. CSA assessments are affected by the level of contact. It is a flat formula which disregards the resident parent's resources. It does not apply if either parent or child is abroad.

 

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