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English family law concerns thelaw relating to family matters inEngland and Wales.Family law concerns a host of authorities, agencies and groups which participate in or influence the outcome of private disputes or social decisions involvingfamily law. Such a view of family law may be regarded as assisting the understanding of the context in which the law works and to indicate the policy areas where improvements can be made.
The UK is made up of three jurisdictions:Scotland,Northern Ireland, andEngland and Wales. Each has quite different systems of family law and courts. This article concerns only England and Wales. Family law encompassesdivorce,adoption,wardship,child abduction andparental responsibility. It can either bepublic law orprivate law. Family law cases are heard in theFamily Justice System of England and Wales in both theCounty Court and infamily proceedings courts (magistrates' court), both of which operate under codes ofFamily Procedure Rules. There is also a specialist division of theHigh Court of Justice, theFamily Division which hears family law cases.
UK law recognises both marriages and civil partnerships, both of which can be entered by couples of any gender. Traditionally, marriage was only available between a man and a woman, according to decisions in cases includingHyde v Hyde andCorbett v Corbett, as well as the wording of theMatrimonial Causes Act 1973, the legislation which primarily dealt with divorce.
TheCivil Partnership Act 2004 introduced the ability for couples of the same sex to obtain legal recognition. TheMarriage (Same Sex Couples) Act 2013 allowed same sex couples to legally marry. The fact that same sex couples could get a marriage or a civil partnership, but opposite sex couples were precluded from civil partnerships led to a legal challenge in the UK Supreme Court—R (on the application of Steinfeld and Keidan) v Secretary of State for International Development.[1] The inequality of treatment between opposite and same sex couples created by the introduction of civil partnerships as a stepping stone towards marriage equality was considered a breach of Articles 8 and 14 of theEuropean Convention on Human Rights, and the court issued adeclaration of incompatibility. Parliament then passed theCivil Partnerships, Marriages and Deaths (Registration etc) Act 2019 to extend civil partnerships to all.
TheMatrimonial Causes Act 1973 was, until 2020, the legislation governing divorce (and dissolution of civil partnerships). It set out five "facts" which were necessary before a divorce (or dissolution) could be granted. These were adultery, behaviour which the petitioner could not reasonably be expected to live, desertion for over two years, separation for two years with consent, or separation for five years. An attempt to reform the divorce procedure was included as part of theFamily Law Act 1996, but it did not take effect.
A legal challenge to the five facts was brought to the Supreme Court inOwens v Owens by a woman who was denied a contested divorce petition due to failure to prove one of the five facts. The court expressed considerable sympathy but found against her. Parliament reformed the procedure with theDivorce, Dissolution and Separation Act 2020.
The procedure for seeking a divorce takes the form of two parts: seeking adecree nisi, followed by adecree absolute six weeks later. TheDivorce (Religious Marriages) Act 2002 allows the court to make the issuance of thedecree absolute conditional on the receipt of an order of a religious authority—for example, aget issued by a Jewishbeth din.
When the court has to decide on orders for the appropriate care for children following a divorce, it does so using the jurisdiction of theChildren Act 1989.
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Decisions of the Court of Appeal may be issued orally, in which case no report is usually made available to the public. Important or difficult decisions, however, are published on the internet both by the Court Service and by theBritish and Irish Legal Information Institute. The cases cited here provide examples.
Statutory Instruments contain the rules that lay down court procedure. They frequently cross-reference each other, though many refer to theoriginal 1991 rules, which came in with the Children Act 1989. The list below contains many of the Statutory Instruments that have a bearing on family law, which are available from theOffice of Public Sector Information.
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