English law - Wikipedia
Common law is the basis of the legal system of England and Wales. . Where parties are cohabiting, upon breakdown of a relationship, claims. The United Kingdom (UK) comprises four countries: England, Scotland and Wales and . The Laws in Wales Acts – annexed the legal system of Wales to England to create the .. What links here · Related changes · Upload file · Special pages · Permanent link · Page information · Wikidata item · Cite this page. document that describes the relationship. The UK Following the death of the last native Prince of Wales Llewellyn II in , Wales was ruled by legal union with England was only completed by the 'Acts of Union' (more accurately, 'Acts of.
Current Law Statutespublished annually by Sweet and Maxwell from onwards, contains acts as originally passed. Each act has an introduction and annotations, but these do not give details of amendments. Current Law Statutes Annotated is of particular value for finding the background to legislation and tracing the official documents reports, white papers and so on and parliamentary debates which preceded an act.
Statutory Instruments Statutory instruments, or SIs, are rules, regulations and orders made under the authority of an act of Parliament. They are numbered sequentially within each year, for example: They often provide the detail required for the application of the act and some contain provisions for the commencement coming into force of legislation.
SIs are published individually by The Stationery Office and they cumulate annually into bound volumes.
Electronic Sources of Legislation See the sections on Scotland, Wales and Northern Ireland, belowfor sources of devolved legislation. From onwards, all acts are available on the site with one or two exceptions and a large selection of older acts is also provided. There is a full set of statutory instruments from onwards, together with a large amount of earlier secondary legislation.
Acts are available in both the original and revised versions, but note that the revised versions are not as up-to-date as those on subscription databases.
It also provides historical versions of acts. There is an email request service for historical versions of acts. Law Reports Cases of legal significance from the higher courts and tribunals are reported in numerous series of law reports.
Untilcase reporting was done by private court reporters; the resultant publications are called the nominate reports, because they are usually known by the name of the reporter.
The nominate reports have been gathered together in a volume collection called the English Reports -which makes them relatively easy to find. Too many judges were either partial or incompetent, acquiring their positions only by virtue of their rank in society. Thus, a standardised procedure slowly emerged, based on a system termed stare decisis which roughly means "let the decision stand".
The doctrine of precedent which requires similar cases to be adjudicated in a like manner, falls under the principle of stare decisis. Thus, the ratio decidendi reason for decision of each case will bind future cases on the same generic set of facts both horizontally and vertically in the court structure.
The highest appellate court in the UK is the Supreme Court of the United Kingdom and its decisions are binding on every other court in the hierarchy which are obliged to apply its rulings as the law of the land. The Court of Appeal binds the lower courts, and so on.
Overseas influences[ edit ] Map of the British Empire under Queen Victoria at the end of the nineteenth century. Reciprocity[ edit ] England exported its common law and statute law to most parts of the British Empireand many aspects of that system have survived after Independence from British rule, and the influences are often reciprocal. In the United States each state has its own supreme court with final appellate jurisdiction, while the US Supreme Court has the final say over federal matters.
Courts of final appeal[ edit ] After Britain's colonial period, jurisdictions that had inherited and adopted England's common law  developed their courts of final appeal in differing ways: Transfer specified property to the other party.
Vary any nuptial settlement or trust made for the benefit of one of the parties. Sell specified property and distribute the proceeds. Share a pension fund. What factors are relevant to the exercise of the court's powers? 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 must give first consideration to the welfare of any children under the age of 18 years. 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 MCA and mirrored for civil partners in Schedule 5, Part 5, paragraph 21 of the CPA are as follows: 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.
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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. 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.
What is the court's current position on the division of assets? Current position While the court has wide discretion as to the division of assets under section 25 of the MCAin White  2 FLR the House of Lords established two key principles: There should be no discrimination in favour of the money-earner against the home-maker and their contribution to the marriage, and to the family assets, should be seen as having equal value.
The court should depart from the "yardstick of equality" only if and to the extent that fairness requires it. The Lords agreed on three key principles justifying the redistribution of property on divorce, disagreeing to some extent on the detailed application of those principles. When dividing assets on divorce, judges should consider: The needs generously interpreted generated by the relationship between the parties.
Compensation for any financial disadvantage generated by the relationship. 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. The court made the general point that in the event of irreconcilable conflict between the principles, the overriding criterion is fairness. Reasons to depart from equality of division Some reasons where the court may depart from equality of division are as follows: Shortness of marriage, especially where there are no children and where both parties have their own careers and have kept their finances separate Sharp v Sharp  EWCA Civ This factor will only carry weight in cases where the assets available for distribution exceed the parties' reasonable needs and where the non-matrimonial property can be clearly identified.
Illiquidity difficulties in borrowing and the nature of assets may justify a departure from equality. Special contribution in order to be taken into account, the contribution must be wholly exceptional.
In Cooper-Hohn v Hohn  EWHC Fam the court held that a significant departure from equality was justified because of the husband's special contribution in building up vast wealth, through his "financial genius". Equality is commonly departed from in cases where the parties' needs exceed the assets available for distribution that is, where most of the capital is required to house the children and their main carer.
How does ongoing spousal maintenance operate following marital breakdown? Since the insertion of section 22 ZA into the MCA by the Legal Aid, Sentencing and Punishment of Offenders Actthe court can include provision for legal costs as part of a monthly maintenance award legal services payment order. Maintenance in a final order The court can order either party to make periodical payments also known as maintenance or alimony to the other for such term as may be specified in the order and to provide that these payments are secured section 23 1MCA The power to do so is contained in section 23 1 a of the MCA for marriages and Schedule 5, paragraph 2 1 a of the CPA for civil partnerships.
In deciding whether a periodical payments order is appropriate, the court will have regard to the checklist of factors in section 25 of the MCA or Schedule 5, Part 5 of the CPA as applicable.
Although there is no presumption in favour of a clean break between the parties, the court is under a statutory duty to consider whether it would be appropriate to exercise its powers to terminate the financial obligations of the parties towards each other.
Any periodical payments order can be backdated to the date of the application and will terminate by operation of law on either: The death of either party. The making of a further court order. The court has discretion to fix a term for the making of periodical payments, and in certain circumstances, to bar the recipient from applying to extend the term section 28 1MCA ; Schedule 5, Part 10, para 47 5CPA Is it common for maintenance to be awarded on marital breakdown?
Therefore, it is common for periodical payments to be awarded, particularly to the person who is the children's primary carer and whose earning capacity is temporarily or permanently reduced by childcare obligations.
What is the court's current position on maintenance on marital breakdown? There is no prescribed formula and each case will be decided on its own facts and circumstances.
However, there have been marked shifts in social and gender expectations since the legislation governing periodical payments was debated more than 44 years ago. However, the Family Court maintains a highly discretionary approach tailored to the specific facts of each case so that joint lives maintenance orders such as awarded in Murphy v Murphy  EWHC Fam continue to be possible if the circumstances require it.
There is no formula for calculating periodical payments. Quantum is decided by the courts by applying the discretionary checklist set out in MCA and CPA as applicable.
In broad terms, periodical payments are calculated by balancing the income or earning capacities of the parties against their needs. What financial claims are available to parents on behalf of children within or outside of the marriage? Transfer property to a child. An unmarried parent may be able to apply to court for financial provision for a child from the other parent under Schedule 1 of the CA Under Schedule 1, the court can order: For example, for provision of a car or for school fees.
The transfer of property in trust for the benefit of a child until a certain event occurs. This is usually the child reaching age 18 years, finishing full-time secondary education or finishing tertiary education. When the trigger point is reached, the property is then transferred back to the parent who provided it or it is sold and the proceeds of sale are provided to the parent who purchased it.
On what basis is child maintenance calculated? The courts retain jurisdiction to make or vary orders for child maintenance in the following circumstances: Where there is already a court order in force which pre-dates 3 March Where there is a court order that post-dates 3 March and it has been in place for less than 12 months.
Where the parties have agreed a maintenance figure and want that agreement made into an order in most cases, this means that child maintenance has been provided in a consent order to be submitted to the court for approval and sealing. To meet expenses in connection with instruction at an educational establishment or training for a trade, profession or vocation even if the child is in gainful employment.
If the child has expenses attributable to a disability there is no age limit. If the child continues in full-time secondary education and is over the age of 20 years.
What is the duration of a child maintenance order up to the age of 18 years or otherwise? Non-resident parents must provide payment to the parent with care in respect of children who are under the age of 16 years or under the age of 20 years and in full-time secondary education.
For parents who cannot agree maintenance arrangements and who are both resident in England and Wales, there is a complex set of laws and regulations commencing with the Child Support Act and a series of amending statutes and regulations.
Can a child make a claim direct against their parents? In some cases it may be appropriate for a child to apply for financial provision for themselves.
A child over 18 can apply to the court for maintenance or a lump sum from one or both parents as long as the child is receiving or intending to receive instruction at an educational or training establishment or if there are special circumstances such as a disability or illness.
Reciprocal enforcement of financial orders What is the legal position on the reciprocal enforcement of financial orders? International enforcement is a complex area involving a variety of conventions and regulations as well as domestic statute and statutory instruments. Depending on the jurisdiction involved, there may be one route to enforce, no rules available to do so or a range of options. The Law Commission report: Enforcement of Family Financial Orders Law Com contains a number of recommendations for reform of this area.
Where a concession has been made that a company or trust assets can be treated as assets of the debtor, the court may consider making an order for enforcement directly against such assets.
The aim of the Regulation is to avoid parallel proceedings in other member states and to ensure that a maintenance order made in one member state is directly enforceable in another without recourse to further proceedings.
The definition of "maintenance" as interpreted by the Court of Justice of the European Union is wide and the provisions apply to spouses, civil partners and children but also could apply to an order for cohabitant maintenance which the UK courts would have to enforce despite such an order being unobtainable in England and Wales.
The procedure for enforcement depends on whether the application is incoming or outgoing and upon the requirements of the relevant central authority. An EEO can be used to enforce lump sum orders for maintenance, periodical payments and to recover costs orders. Non-EU enforcement Various legislative provisions apply to international enforcement in non-EU countries.
The main provisions are: Maintenance Orders Facilities for Enforcement Act Foreign Judgments Reciprocal Enforcement Act Civil Jurisdiction and Judgments Act Hague Maintenance Convention, which came into force on 1 April As there are more countries included than excepted, this is the main statute for non-EU cases. The Hague Maintenance Convention has far reaching potential scope, as it was adopted by 57 members including Russia, China, Japan and Iran. As at Novemberit applies to a limited number of countries: The Convention needs to be ratified by various parties before it can extend its international reach as intended.
Until then, there are jurisdictions without any reciprocal enforcement arrangements for enforcement with England and Wales.
- Family law in the UK (England and Wales): overview
- The 1536 Act of Union
- Law of the United Kingdom
It may be possible to enforce in England and Wales using common law principles. Conversely, it may be possible to enforce an order made in England and Wales in another jurisdiction in accordance with the law in that country.
Financial relief after foreign divorce proceedings What powers are available to the court to make orders following a foreign divorce?
The court's permission is required prior to any application. The court has jurisdiction to hear such an application in any of the following circumstances section 15, MFPA Where either party is domiciled in England and Wales on the date of application or foreign decree. Where either party was habitually resident in England and Wales for one year prior to the application or foreign decree. Where there is a matrimonial home situated in England or Wales.
If permission is granted, section 18 MFPA 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 relevant facts to which the court will have regard are contained in section 16 2 and include the following: 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.