Commonly misunderstood terms in Family Law

Knowledge is power, and having this essential tool is a key factor when it comes to family law.

The language involved can often seem intimidatory and can leave people feeling confused, frightened, and even excluded from their own negotiations. Having a clear grip on the language of family law will help you through the process and leave you feeling more in control.

The language of the law has evolved over many years, changing the terms and phrases that are used. This can sometimes lead to confusion as people believe that they understand the terms that are used, so it is important to arm yourself with as much understanding as possible in order to have realistic expectations and the ability to follow the proceedings properly.

The language of the law

Certain words of phrases may have changed over time in order to remove negative connotations that some of the terms conjure up, or to change them to be terms which better describe their purpose.

They can also vary from country to country, as some terminology used in the law in England and Wales is different from that which is used in Scotland or abroad. Some terms are also often popularised in the media, causing many people to believe that they are a matter of law when in fact they are not.

Using the correct language is not only useful during formal proceedings and between partners, but also in dealing with the children involved. Much of the language used now considers the impact it will have on all that will hear it, in order to keep things constructive. Therefore, understanding how they are now used can avoid unnecessary confusion and pain.

Primary Carer

Primary carer is a term which often causes conflict between parents as it refers to the parent who takes on the majority of childcare duties. Many parents are aware of this and it is a status that they compete for even before separation as they believe it gives them some sort of special status in the eyes of the courts.

It is commonly felt that this gives one parent more control over the child than another and the amount of time that they spend with the other parent. It has been shown that the idea of being a primary carer has also been used in financial disputes.

This approach tends to make the arrangements more about the parents than the child, who is more likely to benefit from both parents playing a significant role in their life.

This helps parents to accept that compromises will have to be made on both sides and can change life significantly after the separation is complete. Arrangements limiting the role of one parent are unusual and often only occur when there is a very good reason for it.

Custody

Custody is frequently used when deciding where children will live after a divorce, but it is not actually part of family law in England and Wales. Parents will talk about having full-time custody of a child or being embroiled in custody battles, but the reality is that this is no longer a term that is used in the legal world.

It was thought that the word gave too much importance to the parent who had custody, as it suggested a form of possession when it came to the child, adding to the conflict involved in the negotiations, and so it was removed in 1991.

We now talk about more positive terms such as ‘child arrangements’ instead, and this is often split down into ‘lives with’ or ‘spends time with’ orders. This allows parents to feel that the arrangements are more balanced and better reflects the reality of their living arrangements.

Family law situations often mean that emotions are fraught, and this can be exaggerated when misunderstandings take place. Having a full and thorough understanding of the legal language means that can avoid much of the heartache involved, allowing you to concentrate on getting the best result for your family.

Common Law

Common law marriage is a term that is used frequently but does not actually exist in the legal terms of England and Wales. It is based on the theory that cohabitees have the same legal protection as a married couple, but this is not the case.

Couples who believe this to be the case can often find themselves in financial difficulties when the relationship ends. A court can make particular financial orders in some circumstances, but this is unusual.

Joint Lives

Depending on the financial situation of a couple, a ‘joint lives spousal maintenance’ order may be implemented during a divorce. This requires one partner to make regular payments to the other until death or remarriage occurs.

These arrangements are not easy to justify and are therefore being awarded much less than they used to be. Courts now prefer to encourage financial independence in order for a clean break to be achieved for both parties.

Even when a ‘joint lives’ order is made; it is only intended as a short-term solution until that same financial independence can occur. A true ‘joint lives’ order is only made in cases where the court can be certain that future financial independence will never be achieved by one of the parties involved.

Due to the type of arrangement that ‘joint lives’ orders are based around; a former partner can apply to bring it to an end. However, a court may decide to make this order indefinite if there is evidence that the recipient could be at risk of further financial difficulties.

A break down in a relationship is always an emotional thing, and when tensions are running high it is important that all involved understand what is happening around them. This will help them to feel in control of their own situation and hopefully avoid unnecessary conflict which can then impact on the wellbeing of both the partners and the children.