The words we use
are important. This is especially so in the world of family law.
The interpretation
and meaning attributed to certain words can influence the outcome of a specific
case as well as how the law is understood by the public and implemented
generally by the judiciary.
Words can be
tricky. This is one of the reasons why we have rules for interpreting statute so
that the Courts are not held to the strict ‘letter of the law’ if the result would
be absurd or clearly not what was intended by Parliament. Some words are more
important than others and, as the law and society evolve, so too does the
language of the law.
People’s understanding
of words used in family law can be influenced by similar language from other
jurisdictions. This can lead to confusion about rights in this country
particularly when engaging in legal proceedings. The problem can be compounded
when these terms are mis-used in the press and media.
Below are a few
examples of the importance of certain terms in family law and how sometimes they
are not used correctly.
CUSTODY
Many people talk
about ‘custody’ when they discuss matters relating to children. They say “I
want to have full custody of my children” or “I’m in a custody battle
with my ex.” Yet the word custody is not part of family law in England and
Wales. It was removed in 1991 because it was considered that the term conveyed
a possessive, parent focussed message that gave the impression that one parent,
the parent with custody, was in some way more important than the other. Custody
was initially replaced the terms ‘residence’ to describe with whom the child
would live with and ‘contact’ to describe the time that child spent with the
non-resident parent. These terms
themselves eventually became subject to similar scrutiny and criticism.
The current
terminology, set out in Section 8 of the Children Act 1989, refers to ‘child
arrangements’ which can be broken down into ‘lives with’ orders and ‘spends time
with’ orders. This language puts the focus very firmly on the child which is
certainly a positive development. In addition, a child arrangements order can
specify that a child ‘lives with’ both parents removing the perception that one
parent has achieved a greater status which can create conflict. This could be appropriate
when, for example, there is a shared care arrangement where the child spends a
significant amount of time with each parent.
PRIMARY CARER
The term primary
carer in children proceedings is used to describe a parent who undertakes the majority
of care. It can be problematic with parents vying for this coveted status even
before separation as they believe that it will give them the upper hand in any
dispute. They may think that the ‘primary carer’ will be viewed more favourably
by the courts and this will ensure that they will have control over the child
and the time they spend with the other parent. It can sadly be perceived as
leverage in financial disputes. Witness
statements can include detail about how involved that parent is in a child’s day
to day routine and, conversely, how limited the role of the other parent has
been. This approach creates conflict,
with parents fighting about who comes out on top rather than on what is best
for the child going forward. It would seem that ‘primary carer’ may have become
the new ‘custody’.
Such an approach
is not child focussed. The focus of the
parents should be on what arrangements will best meet the needs of a child going
forward. This could be very different from the status quo during the
relationship. The court is obliged to start with the assumption that it will
benefit a child if both parents play a meaningful role in that child’s life and
so an arrangement which significantly limits the role of one parent is unlikely
to be approved unless there is a good reason for this. This means that parents
may have to accept that compromises will need to be made life after separation
may look very different. It may be that,
for some families, there will be no ‘primary carer’.
JOINT LIVES
A ‘joint lives
spousal maintenance’ order is where one spouse must make periodical payments to
the other until one of them passes away. It is an order which the court can make
in financial remedy proceedings. Such orders used to be more common although
these days they are becoming much harder to justify with the focus shifting to
encouraging financial independence within a specified time-frame and thus achieving
a clean break.
The term can be
deceptive. This is because it can be varied and, in fact, the expectation that
that spouse will strive to achieve financial independence remains even if such
an order is made. In reality, there will be very few cases that justify a true
‘joint lives’ order being made. Those will be cases where the court can say
with certainly that the receiving party has no chance of achieving financial
independence in the future.
A joint lives
order can also be made when there is too much uncertainty as to when a spouse
may achieve financial independence. It is, however, important to remember that
the expectation is still there and, if a party does not take sufficient steps
to increase their earning capacity then they could find themselves in financial
difficulty if their former spouse applies for the payments to be brought to an
end. It these circumstances, might it be better to refer to an ‘indefinite’
order rather than a ‘joint lives order.’
COMMON LAW WIFE/HUSBAND/MARRIAGE
There is no concept
of ‘common law marriage’ in the law of England and Wales. If you hear this term being used then it is
wrong. If you are using this phrase then
please stop! It perpetuates a myth that someone is entitled to something they
are not and can leave people in a dire financial position if their relationship
ends. Whilst
there are still powers for the Court to make financial orders in limited
circumstances, there is no codified regime of cohabitee rights akin to that
available on marital breakdown.
Further
thoughts:
·
Do you agree with the above?
·
Are there any other family law terms which you
consider are being misunderstood or should be reviewed?
