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Compromise in Family Law
Law and PracticeFROM £75.00
Providing the busy practitioner with a comprehensive guide, bringing together in one place the myriad rules relating to how settlements are reached, approved and re-opened in all types of family law cases.
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The book provides the busy practitioner with a comprehensive guide, bringing together in one place the myriad rules relating to how settlements are reached, approved, and re-opened in all types of family law cases. The main focus is on financial remedies cases, dealing with the status of agreements, converting those agreements into court orders, and the grounds and procedure on setting aside those orders.
In addition this book addresses compromise agreements in cases concerning children, including private law children, care, adoption and surrogacy, as well as in family injunction cases.
Part 1: Introduction
Part 2: Compromise of Particular Family Law Disputes
Agreements relating to children
Agreements relating to other family law disputes
Part 3: Compromise of Financial Remedy Disputes
Financial remedy compromises: formation & effect
The terms of the compromise: structure & drafting
The terms of the compromise: content
The terms of the compromise: construction
Agreements for financial provision for children
Part 4: General
Variation of compromise
Compromise and ADR
Part 5: Family Property Disputes
Compromise of family property disputes
Part 6: Impeachment of Compromise
Grounds for impeachment of compromise
Procedure for impeachment of compromise
Senior Courts Act 1981 s 17
Matrimonial and Family Proceedings Act 1984, ss 31A-F (extracts)
Matrimonial Causes Act 1973, s 31
Children Act 1989, Schedule 1, para 1
Extracts from parts 30, 33 and 37 of FPR 2010
Draft rule FPR 9.9A and from PD to those parts
Arbitration Rules (extract) and ARB1
C: Family Orders Project
Financial remedy omnibus
The Importance of Compromise
It is only in the last 20 years or so that we have starting to speak of a ‘family justice system’. This system, now centred on the family court, provides one method by which individuals can resolve family law disputes. It also provides the legal authority for the compulsory removal of children into local authority care and for the adoption of children. Many of the disputes that come before the family court are bitterly contested and consume considerable amounts of judicial resources. But the vast majority of the cases that come before the family court do not go to a full trial: instead, they are settled. Without such compromises, the family justice system would grind to a halt. Examples of such compromises include:
a respondent to a divorce petition agreeing not to defend the divorce proceedings;
spouses or civil partners agreeing how to deal with their financial affairs on separation or divorce;
parents agreeing that one of them or a step-parent shall have parental responsibility for a child;
parents agreeing the arrangements for the care of their child;
parents agreeing the basis on which the ‘threshold criteria’ are met in care or supervision order proceedings;
parents agreeing to or not opposing the making of an adoption order or a parental order.
The nature of compromise
In very general terms, the essential elements of a compromise ofan ordinary civil claim are:
Dispute:the parties must have an actual or potential dispute between them, which may or may not have resulted in the issue of legal proceedings.
Agreement:the parties must have reached an agreement as to how they wish to resolve their dispute (whether or not the parties have agreed on every aspect of the details of the settlement terms).
Resolution:the agreement will bring to an end or resolve the whole or part of the matters in dispute between the parties. The compromise will therefore be final and binding between the parties.
Release:the compromise will be an effective discharge of existing claims between the parties, and release them from future claims, within the scope of the compromise.
In the context of family law, as explained below, many compromises have no legal effect. Other compromises may provide a resolution of an existing dispute, while not protecting against future claims. In other circumstances, a compromise may resolve matters for the present, but the nature of the dispute may mean that the compromise is always subject to future variation ...
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