The Family Court Practice 2022

The Family Court Practice 2022 (Red Book) is designed to offer authoritative guidance to those who undertake work in the England and Wales Family Court (the Court), including the whole range of ‘family business’ conducted there. It also covers the retained jurisdiction of the Family Division of the High Court; for example, in relation to the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act).

It is important that both private client lawyers and contentious succession practitioners know where to find and how to navigate this useful volume. This brief review will illustrate the breadth of its remit and value as the first port of call for a synopsis of the relevant law. At the commencement of this 30th edition, the chronology sets out important statutes, case law and the major societal changes that affect the modern‑day family unit.

The structure of the book

This is a practitioner’s book and so begins with a series of procedural guides, designed for its core audience. Thereafter, in alphabetical order, it takes the relevant statute and provides a short commentary on each section of the legislation. If litigation is on the horizon, then the guides on procedure provide helpful tables detailing the steps to be taken.

Divorce, Dissolution and Separation Act 2020

The Red Book incorporates the changes in the divorce legislation with effect from 6 April 2022, as a result of the Divorce, Dissolution and Separation Act 2020. This radical piece of legislation removes all fault‑based concepts in proceedings for divorce or dissolution of civil partnerships in England and Wales. The amendments are incorporated into the Matrimonial Causes Act 1973 (the 1973 Act) and the Civil Partnership Act 2004. There is now only one ground, which is the irretrievable breakdown of the marriage or civil partnership. In the event of this being established, there will now be a conditional order (replacing the old decree nisi) and a final order equating to the old decree absolute.

Review of the principles under the 1973 Act

Where there is a spouse or civil partner and a will is being drafted or there is a review of succession after death, it will be important to have an overview of the principles that would have been applied upon a lifetime application for a financial remedy order on the dissolution of a marriage under the 1973 Act. This is because of the divorce cross‑check under s.3(2) of the 1975 Act, whereby the court will have regard to the provision that would have been made had the marriage been terminated by divorce, as opposed to by reason of death.

The relevant considerations under the 1973 Act are addressed in the Red Book in the notes to s.25 of the 1973 Act. The three central principles are sharing of matrimonial assets, financial needs and compensation.

These principles and their application in achieving a fair and non‑discriminatory outcome have been developed through extensive case law, and the Red Book contains a valuable round‑up of the relevant cases. The principles are clearly set out and a summary given of the leading cases. This section provides the ideal amount of detail for identification of the relevant law and directs the reader as to whether they need to do further research.

Where at the inception of the marriage the assets owned by one party to the marriage are substantial, there may be a prenuptial agreement in existence. There is a synopsis of the recognition of personal autonomy post‑Radmacher,^[1] but this is tempered by the Court’s supervisory role. This is an area of increasing crossover where the prenuptial agreement seeks to cover the position on death as well as divorce.

Another important area for the private client lawyer relates to the interplay between a divorcing spouse and the existence of trusts on either side. The trustees may find themselves embroiled in matrimonial litigation under the 1973 Act, on the premise that the trust is a financial resource under s.25(2)(a) of said Act. Guidance as to the procedural aspects of involvement is to be found in the notes to the Family Proceedings Rules 2010.^[2]

There is a comprehensive section on the Trusts of Land and Appointment of Trustees Act 1996 (the 1996 Act). Although the 1973 Act provides an exclusive code for the property spouses, there may be third parties whose property rights have to be determined as a preliminary issue prior to the financial remedy proceedings under the 1973 Act between the spouses being undertaken. The position of any cohabitee falls to be dealt with under the 1996 Act and the piecemeal case law. In October 2022, the UK government rejected recommendations of the Women and Equalities House of Commons Committee’s report The Rights of Cohabiting Partners. Therefore, this section of the Red Book will continue to be necessary for many years to come.

The 1975 Act

The notes in relation to the 1975 Act are relatively extensive and a useful resource. There is detailed guidance as to the necessary characteristics of each class of applicant. This is particularly helpful in the vexed area of ‘when is a marriage not a marriage?’. It covers the qualification of a marriage as a void marriage that engages the jurisdiction of the court under s.25(4) of the 1975 Act. This contrasts with a non‑qualifying ceremony. This section contains a review of all the recent cases relating to non‑marriages and customary marriages.

The Red Book is particularly helpful in outlining difficulties as to qualification as a child of the deceased. There may be an issue as to paternity and the same is determined by scientific tests in the Court. Recent cases have determined that post‑death, pre‑existing DNA samples can be tested.^[3] Another area giving rise to some complexity relates to assisted reproduction and this is addressed in detail in the very comprehensive notes on the Human Fertilisation and Embryology Act 2008.

There is a substantial section on reasonable financial provision. This covers both the provision for the surviving spouse and for the maintenance class of applicants. There is much case law to cover under both headings. The layout of these passages could be made more digestible by adding some headings to help the reader navigate through the dense case law. However, in terms of substance the review of the recent 1975 Act cases is comprehensive and provides a valuable starting point for further reading.

The family and private client department share their differing expertise and resources. The private client lawyer should enjoy ready access to the Red Book.

ISBN: 978-1784734909

Price: GBP670

Publisher: Jordan Publishing