Prawo rodzinne
Małżeństwo, rozwód, opieka nad dziećmi, adopcja i ochrona przed przemocą domową.
Wprowadzenie
Prawo rodzinne obejmuje stosunki prawne w obrębie rodziny, w tym małżeństwo, rozwód i dobro dziecka.
Podstawowe zasady
No-Fault Divorce — The Divorce, Dissolution and Separation Act 2020 replaced the requirement to prove one of five 'facts' with a simple statement of irretrievable breakdown. There is a minimum 20-week reflection period and a 6-week period from conditional to final order.
Financial Orders on Divorce — The court has wide discretion under the Matrimonial Causes Act 1973 (ss.23–25) to divide assets, considering factors including needs, resources, standard of living, age, duration of marriage, contributions, and conduct. The yardstick of equality applies (White v White [2001]).
The Welfare Principle — In all decisions concerning a child's upbringing, the child's welfare is the court's paramount consideration (Children Act 1989, s.1). The welfare checklist (s.1(3)) guides the court's assessment.
Child Arrangements Orders — Under the Children Act 1989 (as amended), the court can make 'lives with' and 'spends time with' orders (replacing residence and contact). There is no presumption of equal time, but s.1(2A) presumes parental involvement benefits the child unless the contrary is shown.
Parental Responsibility — Defined as all rights, duties, powers, and responsibilities a parent has in relation to a child (s.3 CA 1989). Mothers have PR automatically; fathers acquire it through marriage, being named on the birth certificate (post-1 Dec 2003), or by agreement/court order.
Domestic Abuse Protection — The Domestic Abuse Act 2021 introduced a statutory definition of domestic abuse (including controlling and coercive behaviour), Domestic Abuse Protection Notices and Orders, and a ban on cross-examination by abusers in family courts. Non-molestation and occupation orders are available under the Family Law Act 1996.
Adoption — The Adoption and Children Act 2002 governs adoption in England & Wales. The child's welfare throughout their life is paramount. Parental consent is required unless the court dispenses with it on welfare grounds. An adoption order extinguishes parental responsibility of the birth parents.
International Child Abduction — The Child Abduction and Custody Act 1985 implements the Hague Convention. A child wrongfully removed from their country of habitual residence must generally be returned promptly, subject to limited exceptions.
Kluczowe ustawy
Children Act 1989
Matrimonial Causes Act 1973
Divorce, Dissolution and Separation Act 2020
Domestic Abuse Act 2021
Adoption and Children Act 2002
Wiodące orzeczenia
Miller v Miller; McFarlane v McFarlane
[2006] UKHL 24
Re B (A Child)
[2013] UKSC 33
Re H-N (Children)
[2021] EWCA Civ 448
Typowe scenariusze
Applying for divorce under the new no-fault system
Since 6 April 2022, either spouse (or both jointly) can apply for divorce by filing a statement of irretrievable breakdown — no need to allege adultery, unreasonable behaviour, or separation. After a 20-week reflection period, the applicant can apply for a conditional order, then a final order 6 weeks later.
Disagreement over where children should live after separation
Either parent can apply for a Child Arrangements Order under s.8 Children Act 1989. The court applies the welfare principle (s.1) and welfare checklist, considering the child's wishes and feelings (in light of age and understanding), physical and emotional needs, the likely effect of any change, and any risk of harm.
Partner is controlling and threatening
The Domestic Abuse Act 2021 recognises controlling and coercive behaviour as domestic abuse. The victim can apply for a non-molestation order (protection from violence/harassment) and/or occupation order (regulating who lives in the family home) under the Family Law Act 1996. Breach of a non-molestation order is a criminal offence.
Dividing assets in a high-value divorce
The court applies the s.25 MCA 1973 factors. Following White v White [2001] and Miller/McFarlane [2006], the court considers needs, compensation for relationship-generated disadvantage, and the sharing principle. Pre-nuptial agreements are given weight but are not automatically binding (Radmacher v Granatino [2010]).