The definitions in this glossary are intended to be a general guide only and may not be exhaustive. If you need an authoritative definition it is recommended that you seek legal advice.
Access - This technically no longer exists as a term since the Children Act came into force and has been replaced by the term Contact.
Ancillary Relief - A general term used to describe the various financial orders that a court can make following or at the time of a divorce or decree of judicial separation. These are maintenance pending suit (money support payments whilst the divorce is going on), periodical payments, a lump sum order, a transfer of property order or an order relating to pensions.
CAFCASS - This is theChildren and Family Court Advisory and Support Service that safeguards and promotes the welfare of children involved in family court proceeedings. It employs Family Court Advisors who work in the court preparing welfare reports and often dispute resolution meetings with parents unable to agree.
Child Support - These are payments of money on a regular basis, usually weekly or monthly, for the support of a child or children. Usually made to the parent with whom the child lives most of the time by the other parent. It is intended to assist in the general support of the child not just food and clothing but towards housing costs, heating, lighting and other general expenditure from which the child benefits. It can be agreed or ordered by the Child Support Agency.
Clean break - This is a term used by lawyers and others to describe an order made on divorce which finalises financial matters between the parties and cannot later be changed even if there is a change in circumstances. It cannot include any provision for periodical payments. It can include provision for things to happen at a later date provided it is clear from the order what will happen and when it will happen. If there are children there can be no clean break in respect of child support.
Consent Order - Consent Order is an order made by the court on divorce or judicial separation where the terms have already been agreed by the parties making that agreement binding on them both.
Contact - This is the time which the parent with whom the child does not live most of the time gets to spend with their child.
Custody - This technically no longer exists since the Children Act came in to force in the early 1990s. Used to be thought to refer to the person looking after the child but in fact had a more general meaning similar to the present Parental Responsibility.
Decree Absolute - This is the final order dissolving a marriage. If there is a change of mind before the divorce has been made absolute the decree nisi can be rescinded by agreement between the parties (it involves an application to the court to do this). After the Decree Absloute the marriage has finally ended.
Decree Nisi - Literally decree "unless" is the order made by the court on divorce confirming that the judge is satisfied that the petitioner (the person bringing the divorce) should be granted a divorce after a certain length of time unless reason is shown within that time why the divorce should not be finalised. The standard time before the decree nisi can be finalised or made absolute is six weeks.
Divorce - The dissolution of a marriage. The only ground for divorce in English law is irretrievable breakdown but this must be "proved " by one of five factors, two fault based and three time based. The two fault grounds are adultery and unreasonable behaviour. The three time based are two years desertion, two years separation with both parties agreeing to a a divorce, and five years separation.
Judicial Separation - An order of the court proved by one of the same five factors as divorce. The parties remain married. Sometimes used if there is a religious objection to divorce. Allows the court to exercise the same powers to resolve financial matters between the parties as on divorce
Legal advice and Mediation -
Any mediation client who is eligible for public funding can also have some free legal help from a solicitor (if the solicitor is contracted to the Legal Aid Agency) at the completion of mediation. This is known as 'Help with Mediation' and can include the writing up of any agreement. (It does not pay for the solicitor to be involved in negotiations directly.) Some solicitors will also offer initial advice either free or for a fixed price.
........NEWS....May 2013....Legal Aid is still available for free mediation.....................................................................
Maintenance - See periodical payments.
Memorandum of Understanding - One of the two documents produced at the end of mediation concerning financial issues. It sets out the jointly agreed proposals that the couple have reached and although not legally binding can be made so by the solicitors. The other document is the Open Statement of Financial Information which comprises all the finances including assets, liabilities and future budgets of the couple.
Open Statement of Financial Information - One of two documents produced at the end of mediation concerning financial issues. This sets out all the finances of the couple including all assets, liabilities and future budgets. The information it contains is termed "open" because it can be used in any subsequent court proceedings, unlike the Memorandum of Understanding the second of the documents produced at the conclusion.
Parental Responsibility - This is a term for the complex mixture of rights and responsibilities that a parent or legal carer can exercise in relation to a child. It is given automatically to every mother and, where the mother is married to the father, to the father. In the case of unmarried parents the father can acquire it by being present when the birth is registered or by a formal agreement called a Parental Responsibility Agreement or by order of the court. Other carers may acquire it if a court orders that a child should live with them. It gives those who have it a right to a say in decisions relating to the child anything from decisions on medical treatment to religious upbringing, from schooling to moving home. Generally it does not include day to day things like bedtimes or mealtimes but the boundary is a delicate one and, where the parents do not live together, often one that can lead to friction. It is not intended to be used to interfere or create difficulties in the other parent's life.
Pension Earmarking - On divorce the court has power to make an earmarking order. This differs from a pension sharing order in several respects. The fund itself is not split; it is an order that the pension provider pays to the beneficiary of the order a percentage of the pension when it starts making payments to the pensioner. It is classed as periodical payments so cannot be used where the parties want a clean break. Because it is classed as periodical payments it stops being paid when the pensioner dies or if the beneficiary of the order remarries. The beneficiary has no say in when payments are to start so the pensioner can defer taking pension if he/she chooses. Contributions to the pension fund after the divorce by the pensioner increase the overall size of the fund and therefore the amount the beneficiary will receive.
Pension Sharing - On divorce the court has power to make a pension sharing order. This is an order that a particular pension in the name of one of the parties to the marriage should be divided into two funds, one in each name. The shares may be equal or unequal and are described in percentage terms. Once such an order has been effected each party has their own fund for pension purposes (it cannot be used in any other way) which they may be able to move to another pension provider, add to and decide when to draw on subject to the usual rules of the pension provider.
Periodical Payments - Also sometimes referred to as maintenance are payments of money on a regular basis, usually weekly or monthly, by one party to a marriage or former marriage to the other.
Residence - Means where a child or children live most of the time. Confusingly however it does not mean the place but the person with whom the child lives so that person can change address without having to ask the court to make another order. Residence can be shared by parents as long as that is thought to be in the best interests of the child (not of the parents).
Separation - This is a matter of fact rather than law and involves partners, whether married or not, living apart whether by agreement or not. It is possible to be seen as living apart and therefore separated whilst living in the same house.
Separation agreement - An agreement, usually in writing, between separated partners either married or unmarried confirming any arrangements they have agreed between themselves. These may cover anything from division of assets to financial support, from how they share care of their children to arrangements for a future divorce and occupation of the family home. Generally they are contractually binding, that is to say they can be enforced as a contract, but they can be over-ridden by a court at the time of a divorce or judicial separation.
Without Prejudice - This is a term used to indicate that the user does not intend to be legally bound by what is said or written. If discussions are "without prejudice" generally they cannot be referred to in court proceedings.