Grounds for Divorce

From 6 April 2022, the divorce process has been streamlined considerably. The singular ground for divorce has not changed – it remains the case that a party must show that their marriage has irretrievably broken down. However, it is no longer necessary, as used to be the case in the majority of instances, to allege that this is a result of your spouse’s behaviour. For many this is seen as the recognition of a more modern relationship dynamic, in which it is accepted that relationships do not necessarily end because one person is to blame. Similarly, since 2022 it has been possible for parties to submit a joint application for divorce.

An almost identical process applies in the case of same-sex marriages and civil partnerships. The term divorce will be used here to refer interchangeably to these additional scenarios unless otherwise specified.

Process

In the absence of a jurisdiction dispute or difficulties with service, therefore, the divorce process is the easy part. An application can be made by either party (or jointly) once 12 months have passed from the point of marriage. It is primarily a tick-box exercise confirming a wish to end the marriage and is often done by the parties themselves even when they have lawyers acting for them.

The court will typically issue the application within a week or two and, in the case of a sole application, will ask the other party to confirm service and acceptance that this is the correct jurisdiction. The parties then have a “cooling off” period of 20 weeks before they can apply for the middle stage of proceedings, known as the Conditional Order (“decree nisi” in old money). At that stage the court is confirming that the parties are entitled to finalise their divorce should they wish to.

Once that middle stage is granted, the parties must wait a further six weeks before they are entitled to apply for a Final Order which, once made, would formally dissolve the marriage. Typically, parties do not make this application until they have finalised their financial arrangements due to the risks associated with no longer being married before the finances have been resolved; most commonly in the event of one party’s untimely passing. If either party seeks to finalise the divorce it is potentially open to the other party to object on specified grounds.

Neither party is invited to attend the court during this process unless there is a contested hearing. Save for the limited circumstances in which a party can seek to obstruct a divorce process, the individuals can commit their focus (and indeed budget) to the wider consequences of their separation in the context of finances and children.

Service

Service of a divorce application is typically dealt with by the court. When the application is made, the respondent’s address is provided and the court will send out a copy of the materials via email and/or post. The respondent is invited to create digital login and to confirm service of the application via that route.

It will sometimes be necessary (or preferable) to serve a party manually, and the rules differ depending on whether the respondent is in the jurisdiction or elsewhere. If the respondent is in the jurisdiction then the applicant may:

• send it via first-class post;
• serve it via a solicitor who has confirmed they will accept service;
• personally serve the application via a third party (typically a “process server”); or
• send it via email but only if the respondent’s address is known such that confirmation can also be sent by way of first-class post.

If a respondent is outside the UK then, broadly speaking, the rules of service shall be governed by the jurisdiction in which the party is being served. A careful analysis will be required of the local rules in these cases. 

If service cannot reasonably be effected under the rules or the respondent refuses to confirm service, it is possible to apply to the court to use an alternative method of service, to “deem” that good service has been provided, or indeed to dispense with the need for service altogether.

Religious Marriages

Whether or not a religious marriage ceremony taking place in the jurisdiction will create a legally binding marriage will depend on whether it has complied with the provisions set out in the Marriage Act 1949. For a non-religious civil ceremony, this includes the giving of notice, the use of an approved venue and witnesses, as well as the use of an authorised registrar.

There are exceptions to elements of the requirements set out for a civil ceremony in the case of some (but not all) religious ceremonies. Marriages conducted under the Church of England must be conducted by a clergyman. Quaker and Jewish marriages may be conducted according to religious principles without the use of a registered building; the same does not apply to other religions.

For example, an Islamic Nikah ceremony conducted in the jurisdiction will not create a valid marriage absent compliance with the requirements for a civil ceremony. By contrast, if a couple undertook the same ceremony in another country, it can create a valid marriage (including in the eyes of this jurisdiction), provided that it was validly held according to the rules in the host country.

Many couples will therefore undertake a religious ceremony and then go on to register the marriage at a separate civil ceremony for that reason.

Annulment and Judicial Separation

The courts of England & Wales offer an alternative to divorce in limited circumstances; a marriage can be annulled on the basis that a marriage is either void or voidable. Perhaps confusingly, both are distinct concepts from a marriage that never took place at all because, for example, a religious ceremony did not qualify.

A void marriage is treated as never having existed, whereas a voidable marriage is treated as having lasted until annulment is obtained.

The most common example of voidable marriages are those which are not consummated either because of one party’s wilful refusal to do so, or because a party lacked the capacity. An example of a “void” marriage would be because the parties were too closely related or one party was already married.

A further alternative to divorce is the concept of judicial separation. Parties may wish to avoid the stigma associated with the term divorce, whether that be social or religious. Great care must be taken before choosing this path, as it has significant consequences upon the range of ancillary financial orders that are available to the court.

Grounds for Jurisdiction

The jurisdictional grounds for divorce in England and Wales centre around the concepts of residence, habitual residence and domicile. A party may bring an application for divorce when:

• both parties to the marriage are habitually resident in England and Wales;
• both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
• the respondent is habitually resident in England and Wales;
• in a joint application only, either of the parties to the marriage 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 was 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 was made;
• both parties to the marriage are domiciled in England and Wales; or
• either of the parties to the marriage is domiciled in England and Wales.

The court can also deal with an application made by same-sex couples who were married in this jurisdiction but live in a country which does not permit same-sex marriages where it is in the interests of justice for the court to do so.

Residence

Residence is contrasted by habitual residence. A party can, as a matter of fact, reside in multiple places at once, whereas someone can only be habitually resident in one place at a time.

Habitual Residence

Determination of habitual residence depends on the prevailing fact pattern. It is commonly thought of as referring to a person’s centre of interests. The court can consider all factors in determining a person’s centre; whether someone’s living situation is permanent or stable is one of the foremost questions. Other examples include: where a person’s assets are located, where they receive medical treatment, and whether they send their children to school in a given location.

The court will draw together all the available information to form an objective conclusion.

Domicile

By contrast, the concept of domicile is a uniquely British and relatively inflexible legal concept in determining someone’s permanent home. As with habitual residence, a person may only be domiciled in one place at a time, based on three potential options:

• domicile of origin;
• domicile of choice; and
• domicile of dependence.

A person is born with a domicile of origin, based on the domicile of their parents. Which parent will depend primarily upon whether their parents are married, still alive and still together. Most commonly a child’s domicile of origin will be the country in which they are born.

A person retains their domicile of origin unless and until they acquire another domicile. A domicile of choice can be acquired by someone over the age of 16 living in a new jurisdiction with the intention to make that place a home permanently or at least indefinitely. In assessing someone’s intention, the court will, similarly to habitual residence, be concerned with piecing together the prevailing factual matrix to form an assessment of the individual’s intention.

A domicile of dependence is acquired when the domicile of a child’s father changes, for example when a family relocates. Which parent’s domicile is acquired (or retained) by a child will again depend on the circumstances of the parents.

Contesting Jurisdiction

The remaining reason why a divorce may be contested is jurisdiction, in the absence of some issue of procedure or validity.

Where a party has more than one option, careful consideration will need to be given to choosing where to apply for divorce, and indeed whether to accept a jurisdiction opted for by their partner. The choice can have very significant consequences as the divorce and financial processes and outcomes can vary enormously between different jurisdictions.

Staying Proceedings

There are circumstances in which multiple jurisdictions may have jurisdiction to hear proceedings. As a member of the EU, the question was essentially one of who got there first. Now that the UK has left the EU, the court shall be concerned not only by the timing of the application but rather with which is the more suitable forum more generally.

Where the competing jurisdiction is a non-UK country, the court has discretion as to whether or not to grant an application for a stay of proceedings of this jurisdiction to allow matters to proceed in an alternative jurisdiction.

The court will consider which jurisdiction, on the balance of fairness, is the more suitable forum to hear the application. There are two potential stages. The first question is which is the more natural forum for the dispute: ie, where is the centre of the parties’ relationship and in which location would it be more convenient, proportionate and effective to conduct any contested hearings.

The second question is, notwithstanding that another jurisdiction may be the more natural forum, should proceedings go ahead here because justice requires it. The question is not merely whether someone would achieve a “better” outcome in these courts. Rather, the issue is whether there are special circumstances indicating that there would be something akin to substantial injustice if these courts did not deal with matters.

Jurisdictional Grounds

There is no distinction in the jurisdictional grounds for financial remedy proceedings as opposed to the divorce process. That is because the financial elements are ancillary to, and flow from, the existence of the divorce process. Where the courts of England and Wales deal with a divorce application, so too shall they be entitled to make financial orders.

It follows that any party who wishes to contest the jurisdiction of the finances would need to do so via challenging the location of the divorce.

Financial Claims After Foreign Divorces

It is possible for someone who divorced in a foreign jurisdiction to bring a financial claim in the courts of England and Wales. This is known as a Part III Application because the jurisdiction typically stems from the third part of the Matrimonial and Family Proceedings Act 1984 (MFPA). The application seeks redress in circumstances where the applicant has received inadequate or no financial provision from another jurisdiction.

The courts shall have jurisdiction to hear an application under Part III where:

• either party was domiciled in England and Wales on the date of the application or on the date on which the previous divorce took effect;
• either party was habitually resident in England and Wales throughout the period of one year immediately prior to the date of the application or the date the previous divorce order took effect; or
• either party has or had at the date of the application an interest in property in England and Wales, which has acted as the parties’ family home during the marriage (though under this limb their claim would be limited to this property).

An applicant must obtain the court’s permission to bring the claim. A “substantial ground” must be shown. Section 16 of the MFPA sets out the factors which a court will consider, including:

• any delay in bringing the application;
• the parties’ connection to this (as against other) jurisdiction; and
• the financial remedies available to the party (or a child of the family) in the alternative jurisdiction, including the prospects of enforcing an order which is made.

The court also has a broader discretion to consider any other factors which are relevant to whether the applicant has a “good, arguable case” in seeking additional financial relief.

If the applicant is granted permission to make the application, then the orders available to the court are the same as if the divorce had taken place in England and Wales, though that does not mean that the court will consider it to be a clean sheet application such that it would make the same provision that it would have done under typical circumstances.

Service of Financial Proceedings

The process for service of financial proceedings is similar to, but distinct from, the process for service of a divorce application. As in divorce proceedings, typically the court will effect service on a respondent by way of email.

In circumstances where the applicant wishes to carry out manual service, the method will vary depending on the jurisdiction in which the respondent resides. This is relevant where it is anticipated that the respondent will refuse to engage in proceedings, or where the timing of service is critically important.

Timeline of Proceedings

There are three main stages of proceedings, colloquially known as:

• the homework hearing;
• the settlement hearing; and
• the final hearing.

Before the homework hearing, known as the “first appointment”, the court will order the parties to complete comprehensive financial disclosure and to raise any questions that they have in respect of the other’s financial circumstances. There may be other issues such as whether there should be an expert appointed to value a party’s assets. Any contested issues will be considered by the court at the hearing, the primary function of which is to prepare parties for the next stage of the process. Parties are often able to avoid the first hearing by agreeing in advance what their “homework” should be and proposing a set of directions to the court by consent.

The next stage is known as a “financial dispute resolution” appointment. It is a form of early neutral evaluation in which a judge is appointed to consider a summary version of the parties’ respective cases. The judge, whom parties will often appoint privately, offers an indication of the likely outcome. The onus is then on the parties to see if a settlement can be reached voluntarily, assisted by that indication.

If the parties cannot reach settlement at this stage, then they will be directed to prepare the matter for a final hearing at which both parties will give evidence, and a judge will make a binding decision.

The private equivalent to this process is arbitration. Parties remain able throughout the process, and indeed are encouraged, to settle matters without attending a final hearing (or indeed any hearing at all).

Division of Assets

Financial outcomes in England and Wales are notoriously discretionary. The law provides that the outcome should be “fair”, guided by the factors set out in Section 25 of the Matrimonial Causes Act 1973. These are subject to the welfare of any children of the family and include: the assets and earning capacity available to the parties, their needs, and the standard of living enjoyed during the marriage.

Around that single anchor point, considerable case law has developed. Broadly speaking the court will first quantify the assets available to the parties, divided between those assets which are fruits of the partnership and those which are not.

In the first instance, the court will consider whether both parties’ reasonable needs (including their needs in retirement) are met by an equal division only of the marital element of the assets. If that is not achieved, then the court will consider a departure from that position – either allocating a greater portion of marital assets to one party, or indeed “invading” assets which are not matrimonial in nature. The most common example would be to provide more “cash” to a party who has taken a step back from their career and diminished their mortgage capacity, to allow them to purchase suitable housing for them and any children. Children should not feel like one parent is the poor relation when spending time between their parents’ households.

Quantification

The court has various tools at its disposal if the value (or ownership of an asset) is disputed. A court will often appoint an expert to advise the court and the parties jointly on the value of various assets such as pensions or businesses. This can be of particular use when an asset may be considered to have both matrimonial and non-matrimonial elements, for example where an asset is owned prior to the marriage but accrues value during the relationship as a result of one or both parties’ endeavour. A typical example might be a business or a pension.

When a court believes that a party is seeking to obfuscate their financial position, it can seek to compel disclosure. For example, it can order that an individual be made available to provide evidence and to be cross-examined, or that a third party, such as a bank, provide disclosure directly.

If ultimately the court considers that it does not have adequate disclosure available to it, then it can still make a final decision and indeed can draw an adverse inference as to why a party has failed to provide that information.

Orders Available to the Court

The court can make a wide range of orders in order to effect a fair financial outcome, including but not limited to:

• the sale of property and distribution of its sale proceeds;
• the sharing of pension assets; and
• periodical payments by one party for the benefit of the other or for a child of the family (commonly known as spousal and child maintenance, respectively) – it can include the payment of school fees.

Trusts

Unlike some jurisdictions, the courts of England and Wales can and will consider assets held within a trust structure even when they are not held in either party’s legal name. The court has broad powers to vary the terms of a trust to achieve a fair outcome (subject to the law which applies to trusts more generally) providing that the trust is determined to be a nuptial settlement.

The question of whether a trust is nuptial is considered in broad terms, looking at whether the trust is connected to the marriage such that it makes (or has made) ongoing provision for either party to the marriage. It is worth noting that the question of whether a trust is nuptial is distinct from consideration of whether the assets of a trust are matrimonial (versus non-matrimonial) for the purposes of the above division exercise. 

Property Regimes

There is no delineation between property regimes upon parties in England and Wales entering into a marriage. If a couple wishes to impact the court’s discretion, then they would need to enter into a pre- or postnuptial settlement, more on which below.

Attitudes to Spousal Maintenance

England and Wales, and particularly London, has a reputation as a candidate for divorce capital of the world. It is perceived to be one of the most generous to a financially weaker party. That reputation is in no small part a result of the court’s perceived approach to spousal maintenance.

There was a time when joint lives maintenance orders were relatively common: an order that one party would pay maintenance to the other for the duration of their life. There has been a considerable change of momentum, which has precipitated several parties to revisit those orders and to seek their premature termination or variation downwards.

As for more recent cases, it is not unusual to see maintenance orders made (if at all) for a fixed period: commonly between two and five years in the absence of special circumstances. Both parties are assessed on the basis that they shall maximise their earning capacities moving forward, and the terms of payment are often pinned to milestones in the children’s education.

Interim Maintenance

Pending an overall outcome, there is an expectation that parties shall maintain, to the extent they reasonably can, the financial status quo which existed prior to the breakdown of the relationship, including their support of one another’s living costs.

There will be times when a party withdraws, or fails to provide, financial support in a way that is unreasonable. It is open to a party in those circumstances to seek an order that there should be a level of interim maintenance pending the final outcome of proceedings.

Such applications will need to be approached carefully as the costs involved in bringing the application can outweigh the benefit, sometimes providing a potential Catch 22 situation for the party suggesting they do not have enough money to live on.

Test for Maintenance

There is no entitlement for a party to share in their ex-spouse’s income. Rather the question is whether a period of spousal maintenance is required to allow someone to adjust to financial independence without undue hardship.

While the question of “hardship” is elastic and will be evaluated by reference to the standard of living enjoyed during the relationship, it is notable that some level of financial hardship is considered acceptable.

Quantification

The quantification of spousal maintenance is notoriously discretionary and hard to predict, even more so than the division of capital assets. There is no prescribed formula as to the amount which the court will award.

In cases of more limited resources, the amount will often be driven by a relatively simple division of the remaining disposable income between two parties whose fixed outgoings may differ significantly if, for example, one is expected to take on a significant mortgage. There is a level of acceptance in such cases that funding two households will require an element of financial sacrifice on all sides. 

In cases where there is greater surplus income, the court will place more emphasis on the schedules of income needs which the parties complete during the financial disclosure process, known as a budget. Their budget will set out a summary of their own outgoings and spending needs, as well as costs that they incur on behalf of the children, whether directly or indirectly. The court will consider the reasonableness of that expenditure to arrive at a total figure for a party’s need, again by reference to the previous standard of living. It is a subjective exercise, and no two judges are likely to arrive at precisely the same answer. Against that need will be offset their own income (or capacity to earn income), including any maintenance which they may be due for the benefit of the children. Child maintenance is considered at 3.2 Living/Contact Arrangements and Child Maintenance.

This is an example of when having local, experienced representatives can be enormously valuable. A practitioner’s instinct, based on experience of their local courts and judges, can be as predictive of the court’s approach as the case law itself.

Enforceability

Nuptial agreements can be entered into by parties before or after their marriage. While it is not possible completely to oust the court’s discretion, parties should only sign such an agreement if they are prepared to be bound by its terms.

The enforceability of the agreements currently flows primarily from a case decided by the UK Supreme Court in 2010, known as Radmacher v Granatino. The court concluded that it should “give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

Development of Approach

Prior to that case, there was a general perception that nuptial agreements would have little impact on a court’s discretion. Since the decision, the courts have shown an increasing willingness to give significant weight to nuptial agreements which meet certain requirements:

• each party must enter into it of their own free will without any undue influence;
• each party should have the benefit of legal advice and the necessary financial disclosure to inform their decision; and
• the effect of a nuptial agreement should not be to leave either party in a predicament of real need.

In February 2014, the Law Commission published a report in which it recommended that Parliament should legislate the use of nuptial agreements. The recommendations were broadly a codification of the case law which had developed since the Radmacher case.

Provided it did not represent a total abdication of responsibility to meet a party’s financial needs, the report recommended that a nuptial agreement should be enforceable provided that, in addition to the above elements, it must:

• be a valid contract;
• be made by deed;
• contain a statement signed by both parties stating that they understand the court’s discretion will be largely removed; and
• be made at least 28 days prior to the wedding.

It is perhaps surprising that the position on nuptial agreements remains a matter of judge-made law and not statute. In any event, practitioners would be wise to ensure that the above elements are taken into account in any agreements.

Approach to Separation in Unmarried Couples

The court’s approach to the division of assets between unmarried couples is significantly more limited, particularly in the absence of children. Unlike other jurisdictions, there is no concept of “common law marriage” or any other protective financial regime which springs into existence upon the parties cohabiting or taking joint financial decisions.

An unmarried party is, broadly speaking, limited to the same claims which anybody would have against another person, whether they were in a romantic relationship with them or not.

Capital Assets

Save as set out below, the court’s involvement is limited to the clarification of pre-existing property rights. A party can apply to the court if an agreement cannot be reached as to who owns what proportions of a property. A common example is when one person has purchased a property in their sole legal name, and their partner later occupies that property and contributes to it financially. Has that person acquired a financial stake in that property?

The principles which apply are the same ones that would be invoked between a parent and their children, or indeed between friends, where one had made contributions to the other’s property. In the absence of an express agreement, the primary question is whether or not the parties had a common intention that the contributor would acquire an interest. It is important to note that the mere fact of someone’s occupation, or indeed their financial vulnerability as a result of decisions taken jointly, does not give rise to rights of ownership absent other factors.

Children in Unmarried Couples

If there are children of the relationship, then a party is able to bring claims on behalf of a child: for child maintenance and limited claims in connection with capital. These applications are known as a Schedule 1 Application because they arise primarily out of Schedule 1 to the Children Act 1989.

The main limitation on capital claims is the way in which the courts approach housing: given that provision is being made for the benefit of the child and not the parent, an order is generally made on a reversionary basis. A party may be ordered to purchase a home for the other party and their child to live in, and indeed to contribute to the property’s running costs, but the benefit of that property will revert to the payer upon the child’s maturity.

Courts can order a party to make further capital provision, but again through the lens of benefiting the child. Although this has been interpreted broadly to include provision for such things as home furnishings or cars, it pales in comparison to the financial provision that might be made available on divorce.

Methods of Enforcement

If a party fails to comply with a financial order, an application for enforcement can be made to the court. An applicant can specify the method of enforcement which is sought or leave the method open to the court. The court can require a respondent to give evidence about their financial circumstances to determine the factual background to any breach, and make a number of different types of orders in seeking to compel compliance, including:

• that money is deducted directly from someone’s income;
• that someone’s property should be sold or charged such that the property may not be sold without making payment;
• that money held on their behalf, for example by a bank, should be paid directly to the applicant by that third party;
• that a court bailiff take control of a person’s property; and
• ultimately, a court can send a respondent to prison for contempt of court, though this is not a power exercised lightly.

Enforcement of International Orders

The enforcement of international orders is a dense and complex area of the law with overlapping provisions of international agreements and common law principles.

The first question is whether the order was made by a jurisdiction under a treaty to which both the UK and that other jurisdiction are signatories, and whether the nature of the enforcement sought is provided for under that agreement. In such circumstances it will be a matter of applying the terms of the relevant treaty.

More broadly, the courts of England and Wales will be able to enforce orders made by a foreign court provided that:

• the foreign court is competent, and the order was made subject to certain safeguards;
• the judgment is for a definite sum of money; and
• the order is final and conclusive, including the expiry of any periods of appeal.

It may also be possible to make an application for a mirror order under a Part III application (see 2.1 Choice of Jurisdiction in Financial Proceedings), providing that the relevant eligibility criteria are satisfied.

Transparency within the family court system has been a topic of significant recent interest and consultation. In October 2021, the President of the Family Division published a report which concluded that a “major shift in culture and process” was required to improve public access and transparency. Various pilot schemes were trialled and have been progressively expanded across the court system. The aim is to improve public confidence in the family justice system.

From January 2025, accredited journalists and legal bloggers have been entitled to attend court and to report on proceedings, provided that a transparency order is granted by the presiding judge. There is a presumption that a transparency order shall be granted and shall protect the anonymity of the children and parties unless there is a legitimate reason otherwise.

It is a matter of the court’s discretion, rather than a decision of the parties, as to whether details of a case are required to be anonymised, though there is a presumption that this will be ordered.

ADR/NCDR

Alternative Dispute Resolution, now known as Non-Court Dispute Resolution (NCDR) encompasses a wide range of alternatives to a traditional court process. These can be relatively minor departures such as attending private versions of court hearings, or more radical; the most common example of an alternative setting is that of mediation. The courts are increasingly encouraging parties to consider alternatives and solicitors will advise clients on which (if any) of the options may be suitable for them.

Parties are procedurally required, unless exceptional circumstances apply, to attend a meeting at which NCDR alternatives are considered before an application to the court can be made.

In the summer of 2022, a process known as “one couple, one lawyer” was introduced. The model allows a sole solicitor to advise both parties to a divorce. This is different from a mediator who does not advise but rather facilitates agreement. Solicitors must have undergone training and there are various safeguards in place to deal with the inherent risk of conflict. It remains to be seen whether there will be widespread uptake among both the legal profession and clients but there is an obvious logic to the idea for the right case.

Practice Direction 9A

In April 2024, the pre-action protocol provisions of Practice Direction 9A concerning financial applications were amended with a fresh emphasis on NCDR. While the use of NCDR is frequently a welcome balm, elements of the new provisions have caused some among the profession to wonder whether the balance has tipped too far away from proper access to justice.

For those parties that do proceed with a court process, they are required to produce a form, known as an FM5, in which they explain why they are not taking advantage of an NCDR option.

The court is required actively to consider whether the timetabling of matters allows sufficient time for NCDR options to be explored, and indeed the court is empowered to stay proceedings and compel NCDR to be explored where appropriate. Examples of this power being exercised have been observed in practice, albeit sparingly.

Failure to Engage

A failure by a party to engage, without good reason, in NCDR is expressly cited as a reason to depart from the typical cost provisions in financial remedy proceedings (in which parties are generally required to meet their own legal fees absent bad behaviour), in the same way that the court may be invited to consider costs on the basis of a parties’ litigation misconduct.

Settlements Outside Court

Most cases do settle prior to a judge making a decision at a final hearing. An agreement between parties can never oust the jurisdiction of the court, and any agreement will always be subject to the court’s overriding responsibility to ensure that it is a fair outcome in the circumstances of the case. That is a separate question from whether it is an outcome which any given judge would have imposed, particularly in circumstances where the parties have entered into a nuptial agreement. In practice, it is rare that the court will refuse to endorse settlement terms, particularly terms informed by legal advice on both sides, but it is possible.

Where an agreement has been reached in “open” (as opposed to without prejudice) correspondence, particularly between two solicitors, it would be difficult for a party to seek to resile from that agreement. In those rare circumstances, it is open for a party to apply to the court to ask that the other party show good reason why they should not be held to the terms of the original agreement.

Where agreement is reached in mediation, a summary of the agreed terms will typically be circulated on a without prejudice basis; it will not bind the parties until they have received legal advice on its terms and reaffirmed their agreement openly.

Jurisdiction and the Hague Convention 1996

Most commonly, the courts will have jurisdiction to deal with children matters on the basis that a child is habitually resident in England or Wales. Otherwise, there are complex rules determining jurisdictional grounds, which have been impacted by the UK’s departure from the EU. In the first instance, the courts will look to the 1996 Hague Convention. It is worth noting that there is more than one “Hague Convention” – references to the convention in this section shall refer specifically to the 1996 Convention.

The Convention provides a set of articles to which various countries have subscribed, to provide the mutual protection of children as well as enforcement and recognition of orders. The first question to determine jurisdiction under the Convention is whether or not a child is habitually resident in a signatory country.

If the answer is not found via the Convention, ie, because a country is not signatory to it, then consideration will turn to the provisions of the domestic Family Law Act 1986. The Act will also consider whether or not a child is habitually resident in England or Wales. If that is not the case, and the matter is not dealt with via any exceptions set out under the Convention, then Section 2(1) of the Act provides that the court may make certain orders in respect of a child if the order arises in connection with divorce or civil partnership proceedings between that child’s parents and/or the child is present in England and Wales (but not necessarily habitually resident) and is not habitually resident in another part of the UK. In circumstances where there are no local divorce or civil partnership proceedings in England and Wales, then it is a requirement that there are not equivalent proceedings in Scotland or Northern Ireland.

In rare instances, the High Court may exercise its inherent jurisdiction to make an order in respect of a child, notwithstanding that it fails to find jurisdiction under the above provisions. In Re M (A Child) (Exercise of Inherent Jurisdiction), the Court of Appeal referred to a need to exercise it as a protective form of jurisdiction only in circumstances which are “sufficiently compelling”.

Contesting Habitual Residence

Of course, there may be instances in which the parties disagree as to where a child is habitually resident – particularly where one parent has removed a child from the jurisdiction without the other parent’s consent. The courts will apply a factual examination of all the available evidence and there is no one factor that will be determinative. Guarding against delay can be vital in such circumstances.

Domicile, Residence and Nationality

Article 8 of the Convention provides for a situation in which a court, notwithstanding that it may have jurisdiction to hear a case, considers that another jurisdiction may be better placed to do so:

• the other jurisdiction must also be a signatory to the Convention;
• the child must be a national of that country;
• property of the child must be located there;
• the country must have a divorce application for the child’s parents; or
• the child must have a substantial connection – this is a term that is seen in other places within the Convention.

That other jurisdiction may then assume jurisdiction if it considers that it would be in the child’s best interests. When evaluating whether a child has a “substantial connection” to a jurisdiction, the court will consider all relevant factors. Where a child is a national, where they are domiciled and where they reside shall all be relevant factors weighing in that decision.

Making a Court Application

If a child’s parents do not agree as to the contact arrangements that will be in the child’s best interests, then either of them may make an application to the court. In considering the application, the court’s paramount consideration will be the welfare of the child.

A welfare checklist, guiding the court’s discretion, is set out at Section 1(3) of the Children Act 1989. It is mandatory to consider the checklist when the court is making certain orders and remains a valuable reference point in all children applications. The checklist provides the following non-exhaustive factors:

• the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
• their physical, emotional and educational needs;
• the likely effect on them of any change in their circumstances;
• their age, sex, background and any characteristics of theirs that the court considers relevant;
• any harm that they have suffered or are at risk of suffering;
• how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs; and
• the range of powers available to the court.

Parental Responsibility and Contact Arrangements

Parental responsibility refers to the rights, duties, powers, responsibilities and authority that a parent of a child has. Common examples include the ability to determine where a child should live, the name of that child, as well as decisions regarding their schooling and medical treatments.

A child’s mother shall automatically obtain parental responsibility upon a child’s birth. In the case of a father, it is commonly acquired by marriage to the mother (before or after the birth), or upon being named as the father on the child’s birth certificate. It is also possible to assign parental responsibility by way of an agreement between the parents or by an order of the court. Such an order must be made when a court makes an order that a child shall live with (as opposed to spend time with) a father who did not previously have parental responsibility.

There exists a presumption in deciding contact arrangements that, unless the contrary is shown, the involvement of both parents in the child’s life, whether that is direct or indirect contact, will further that child’s welfare. That presumption has been the subject of recent criticism on the basis that it risks promoting the furtherance of abusive relationship dynamics.

In October 2025, the Ministry of Justice published a review of this presumption in which it concluded that there were several cases in which courts were ordering direct contact notwithstanding indicators of risk. Thus, the presumption, or at least the way it was being applied in practice, risked causing harm to children’s welfare by reducing focus on the individual circumstances of each case. The report therefore recommended that the presumption be removed.

Restrictions on the Court’s Power

A court’s powers to make orders with regards to contact arrangements are restricted to “children”. A court cannot make an order relating to contact arrangements after a child has reached the age of sixteen unless there are exceptional circumstances. It is possible for an order that a child lives with a parent to extend until the age of eighteen, but no order may extend beyond that.

Child Maintenance

In many cases, jurisdiction for child maintenance lies with the Child Maintenance Service (CMS). A prescribed formula is applied to provide an amount that the parent with whom the child spends less time shall pay to the other parent. A CMS calculator applying the formula can be found easily online and parties are often able to reach a voluntary agreement without the formal involvement of the CMS.

There are circumstances in which the court retains jurisdiction to deal with orders of child maintenance payments. The most common examples are when a parent resides outside the jurisdiction or earns in excess of £156,000 gross per annum. The CMS may also refuse jurisdiction when parents have precisely equal care arrangements (though in practice there seems to be a considerable desire to bend over backwards to establish that one parent is in fact the non-resident parent, even when an order has been made providing for equal care arrangements).

The 2023 case of James v Seymour offered up its own formulaic approach to be applied to incomes of between £156,000 and £650,000 per annum. While it is a helpful guide (which has been widely adopted), the court retains the discretion to consider a party’s income needs and to arrive at a figure that would be fair in all the circumstances of the case.

It is also possible for the court to endorse an agreement between parties as to what the level of child maintenance should be, notwithstanding that those parties would normally fall within the jurisdiction of the CMS. However, such orders will only oust the jurisdiction of the CMS for a period of 12 months.

Schedule 1 Applications

Applications made under Schedule 1 to the Children Act 1989 (see also 2.6 Cohabitation: Division of Assets Between Unmarried Couples) can be made by a parent on behalf of children for both periodical payments and (restricted) capital provision. It is possible for such orders to extend beyond a child’s 18th birthday, a common example being payment of maintenance until a child completes university education.

However, once a child has turned 18, any new applications would need to be made by the child on their own behalf. The court would consider whether the child has ongoing educational or vocational expenses, or whether there are other special circumstances that would justify the making of such an order.

Specific Children Issues

The court has the power to determine specific issues that may arise between parents in connection with the exercise of their parental responsibility. Common examples include which school a child should attend, changing a child’s surname, or relocating with a child inside or outside the jurisdiction. As above, the court’s paramount consideration will be the position that would best promote the child’s welfare.

Parental Alienation

Parental alienation, or rather the display of alienating behaviours as it is currently known, has long been a vexed issue within the family courts. There is a perception that it can be an effective and all too common method of obfuscation deployed by abusers in response to any allegations made by the other parent. On the other hand, a party may legitimately believe that a parent is involving a child in a narrative of abuse which is not true. 

The court does not presently recognise any formal definition or diagnosis of a child having been subject to alienating behaviours, which are, broadly speaking, actions that are intended to undermine a child’s relationship with their parent.

A court will carefully consider whether or not it is necessary and proportionate to determine the truth of any allegations. If so, the court can hold a special hearing, known as a “fact-finding hearing”, in which both parties will be called to give evidence and the court shall make a factual determination of whether, based on the balance of probabilities, the allegations are true. It is also possible for the court to join a child to proceedings on the basis that they will be represented by a guardian and a solicitor.

Provision of Evidence by Children

A child’s view is typically sought outside the court environment by a neutral professional or court assistant and relayed by way of a report. In rare circumstances, a child may be called to give evidence in court.

There is no minimum age required for a child to give evidence. Section 96 of the Children Act 1989 sets out the circumstances under which a child’s evidence may be admissible. The broad question is whether a child understands that they must speak the truth and whether or not they have sufficient understanding of the circumstances, in order to justify their evidence being heard.

The court will carefully weigh any decision to call a child to give evidence. While there is no formal presumption against calling a child, a court will be slow to do so given the considerable potential for harm.

ADR/NCDR in children proceedings is subject to much the same considerations and procedural requirements as those in financial remedy proceedings. Please see the information provided at 2.9 ADR in Financial Matters.

Reporting on Children Cases

Broadly the same rules are currently applied in the majority of private children proceedings as in the context of financial proceedings. The details of the transparency pilot scheme, which is presently extended to all courts, are considered at 2.8 Media Access and Transparency in Financial Proceedings. Any reporting of a case involving children will be subject to a greater emphasis on ensuring that any transparency order protects the identity of those children.

The identities of children will be anonymised, and the court will be concerned to ensure that any additional information which might indirectly identify the children will be carefully reviewed.