The Language Of Family Law

Published date31 March 2021
Subject MatterFamily and Matrimonial, Family Law
Law FirmFletcher Day
AuthorEmma Nash

Words can be tricky, especially when it comes to legal matters, which is why our Family Partner Emma Nash demystifies some of the language used in Family Law.

Why are the words important?

As society and the law evolves, so the language we use in law does too. A term or phrase once used in family law several years ago, may no longer be relevant or appropriate today.

The way in which we interpret and attribute meaning to certain words can influence our understanding of the law and the outcome of a specific legal case.

In family law, problems can arise when people's understanding of the words used are incorrect, outdated or are influenced by similar language in other jurisdictions and countries. This can lead to confusion, especially when it comes to the perception of what rights people have in this country, and can cause problems when these issues arise in legal proceedings. Matters can be made worse when these terms are mis-used by the press and media as people rely on that information when making decisions about their own lives.

Getting the language right

Anyone who is faced with the uncertainty around a family law dispute, needs to feel confident that they understand the terminology that is being used and that their legal team is using the correct, most appropriate language. We also need to remember the impact the language used might have on all those involved in the proceedings, including children. So, what words and phrases are the most commonly misunderstood, or used incorrectly in family law? What do they really mean, and what are the correct terms? Emma explains...

Custody

Many people talk about 'custody' when discussing matters relating to children. It is not uncommon to hear, "I want to have full custody of my children", or "I'm in a custody battle with my ex." Yet you might be surprised to know that the word custody is not part of family law in England and Wales. The word was removed in 1991 because it conveyed a possessive, parent focussed message. It gave the impression that one parent, the parent with custody, was in some way more important than the other.

The current terminology, which is set out in the Children Act 1989, refers to 'child arrangements'. This can be broken down into 'lives with' orders and 'spends time with' orders. The language is far more positive and puts the focus very firmly on the child. Child arrangement orders can specify that a child 'lives with' both parents. It removes the perception that one parent has achieved a...

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