Useful Terms

You may find the following A-Z list of terms that are commonly used in the divorce process useful.

Adversarial

The presently accepted mode of practice in English courts in which each party with their own lawyer competes to present the most attractive argument before a judge hearing evidence and cross-examination

Alternative dispute resolution

Various ways in which a dispute may be settled other that through the conventional legal proceedings and including arbitration and mediation as well as collaborative law

Bad faith

Acting in any way so as to intend to deceive especially by concealment or without the genuine wish to reach a collaborative settlement

Coaches

Third parties who may assist the parties to participate in the collaborative law process by supporting them personally in various ways

Collaborative

Non-adversarial or competitive in approach but co-operative both as between the lawyers and their clients

Collaborative Practice

The practice of law in a collaborative manner between lawyers who are appropriately trained and have entered into a participation agreement

Confidentiality

The duty of a lawyer not to disclose what a client has told the lawyer without their authority to do so whether express or implied

Conflict of interest

A situation in which a professional person is caught between duties to more than one person and is therefore unable to act

Debriefing

The process by which following round table meetings the lawyers share with their clients their assessment of the meeting

Disclosure

The duty of clients to give full relevant disclosure of their situation and circumstances to the other party and their lawyer

Disqualification

The inability of a collaborative lawyer to act for their client in conventional court proceedings having entered into a participation agreement

Four-way meetings

Round-table meetings attended by both parties and their lawyers to explore common solutions

Full Disclosure

The commitment to provide promptly and voluntarily all documents and other information you have that a reasonable person would need in order to make an informed decision on an issue.

Hearsay Evidence

A fact reported to a witness, as opposed to being known by the witness; second hand knowledge; hearsay evidence can be accepted by the court in family proceedings.

Injunction

Order by the court telling someone what he or she must do or must refrain from doing; the penalty for disobedience can be imprisonment.

Intestacy

Dying without a valid will.

Legal Aid

Government funded scheme which was administered by the Legal Aid Board based on financial eligibility and merits of case. Now called "Community Legal Service Fund" administered by the Legal Services Commission (Scottish Legal Aid Board in Scotland).

Liable Relative Proceedings

Proceedings taken by the Department of Social Security against the person legally responsibility for maintaining wife or husband and/or children who has failed to do so; usually predates the Child Support Act 1991.

Maintenance pending suit

Temporary maintenance pending finalisation of the divorce.

Matrimonial Home Rights

Rights of occupation of a family home (or a home intended to be occupied as a family home) which last until decree absolute - to be introduced by the Family Law Act 1996.

Mesher Order

If this is granted, then the court can order that the sale of the property can be deferred for a certain period of time, for instance until the children are no longer dependent.

Mediation

An alternative form of dispute resolution over issues arising in the wake of separation or divorce. Comprehensive mediation covers problems over both the children and finances; other mediation (or conciliation) services may deal with child related disputes alone. Mediation may be offered by lawyer mediators or family mediators alone or both together.

Minutes of Order

Draft terms of agreement placed before the Court with a request that a consent order be made in those terms.

Nominal Order

An order for a nominal amount of maintenance made if, at the time an order for maintenance was made, payment could not be made or was not needed. This is done so that if circumstances change, there is an order on the court's file which can be reviewed and increased.

Non-Molestation

Order to prohibit one person from assaulting, harassing or interfering with another.

Notice of Application

Forms on which applications to the court are made, beginning with the words 'take notice that' and containing full details of what is applied for.

Occupation Order

Order excluding one spouse from the matrimonial home (or from a part of it).

Parental Responsibility

The bundle of rights and duties that parents have towards their children; mothers and married fathers have parental responsibilities automatically, while non-married fathers may acquire it by formal Parental Responsibility agreement or court order; others (such as guardians) can also acquire parental responsibility by being named as the father on the birth certificate of a child born from 1st December 2003 onwards.

Parent with Care

A term in the Child Support Act 1991 to mean the parent with whom the child has his or her home and who usually provides day to day care for the child as opposed to the 'absent parent' with whom the child does not ordinarily live.

Penal Notice

A warning endorsed on a court order, notifying the recipient that he or she is liable to committal to prison for breach of the order

Pending Suit

While the divorce is still continuing (i.e. before decree absolute)

Periodical payments

Maintenance either for a spouse or children.

Petitioner

The person who initiates divorce proceedings by filing the petition

Pleadings

Formal statements or documents containing a summary of the issues in the case

Prayer

A formal request in the petition, or answer, for the court orders which the petitioner or respondent seeks; for example, dissolution of the marriage, orders under the Children Act, costs, financial relief

Prohibited Steps Order

Court order under the Children Act restricting a person's exercise of parental responsibility (e.g. preventing a parent from removing a child from the country without the other parent's consent or court permission)

Property adjustment order

An order that a husband or wife should transfer property to the other.

Qualifying Child

A term from the Child Support Act 1991 to mean a child under 16 or under 19 and in full time non advanced education - one of his or her parents must be an 'absent parent'

Questionnaire

List of questions delivered by one spouse to the other requiring further information and/or documentation about finances, in accordance with that person's duty of disclosure; also referred to as 'request under rule 2.63', the Family Court rule permitting such a questionnaire

Recovered or Preserved

Gained or retained (money or property) in the course of legal proceedings which may be significant to a publicly funded party in giving rise to the statutory charge to pay legal costs for their lawyer that would otherwise be covered by payment from the Legal Aid fund.

Relevant Child

Child of the family under 16 years of age at the date of the decree nisi or between 16 and 18 years of age receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (or up to any age if disabled or dependent)

Reply

Document filed by the petitioner in response to an answer and/or a cross petition from the respondent, containing the petitioner's defence

Request for directions for trial

Application to the court for a decree nisi.

Reserved Costs

When decision on amount of costs to be awarded is deferred until a later hearing

Residence Order

An order under the Children Act which settles the arrangements about with whom a child will live; residence orders can be shared, e.g. in favour of a parent and step parent

Respondent

The other spouse upon whom the divorce proceedings are served.

Rule 2.61

The Family Court rule relating to the statement of information which has to be supplied to the court for a financial consent order to be made

Sealing by the Court

The court's stamping of a document when it is filed at the court office or for an order or decree when it is issued

Section 41 Appointment

Or 'Children's appointment' - this is a short hearing before a judge for a certificate of satisfaction in respect of arrangements for any relevant children before decree nisi can be pronounced.

Secured Provision

When some income producing asset of the payer is put under the control of the Court or trustees and the income diverted to the payee to provide maintenance

Separation Order

An order which provides for the formal legal separation of the spouses

Service

The method by which the petition, notices of application, orders and decrees are supplied to the parties concerned; certain documents need to be served personally, others are served through the post, some by or on behalf of the person issuing them and some by the court

Special Procedure

In an undefended divorce, the decree can be issued without either petitioner or respondent having to appear (or be represented) at the court; the facts submitted by the petitioner in the petition and verified on affidavit are considered by the District Judge. When he or she is satisfied that the facts in the petition are proved and the grounds for a divorce exists, he or she issues a certificate to that effect and fixes a date for the formal pronouncement of the decree nisi by the Judge. A copy of the decree is sent through the post to both husband and wife by the court office

Specific Issue Order

An order under the Children Act resolving some particular dispute about the children's upbringing

Statement of Arrangements

Form which has to be filed with the petition if there are relevant children of the family, setting out arrangements proposed for them in the future; this should be agreed with the respondent and countersigned if possible before the divorce is started

Statutory Charge

The amount payable by a legally aided person out of any property or cash that was recovered or preserved in the proceedings, where contributions to the legal aid fund or costs recovered from the other party are not sufficient to meet the legal costs of the case

Summons

Demand issued by a court for a person against whom a claim or complaint has been made to appear at the court at a specific time

Undefended Divorce

Where the dissolution of the marriage and how it is to be achieved are not disputed (even if there is a dispute about related matters such as finances or children)

Undertaking

Promise to the court to do or not to do something which is outside the court's powers to order but is incorporated within a court order so that it is enforceable; the court has no power of its own to vary an undertaking but a party may be released upon application to the Court or otherwise by expiry of the time period for which the undertaking is specified.

Unfunded Scheme

A pension scheme where the employee has a right or expectation to a pension benefit secured only by an undertaking from the employer, for example in a contract of employment; no advance financial provision is made via a trust fund or other insurance contract out of which payment can be made.

Without Prejudice

Phrase used to attach privilege to communications between the parties to prevent communications in the negotiation process being made known to the court if those negotiations fail to produce agreement. However, Calderbank offers and responses to them which are without prejudice can be disclosed to the court in evidence over costs once a decision is made over the issues in the case.