Separation & Divorce Jargon Buster

ADR (Alternative Dispute Resolution)

A mediation procedure that has, since 1999, been encouraged by the courts to avoid cases taking up the courts' time when they could be settled. An unreasonable refusal to mediate may result in the winning party to an action being unable to recover their costs. See also Mediation.

Affidavit or Affirmation

A written statement of fact made on oath and signed in the presence of an authorised person (e.g. a solicitor).

Ancillary relief

During divorce there may be a need for the court to settle disputes over money or property. The court can make a financial order. This is known as Ancillary Relief and may deal with the sale or transfer of property, maintenance payments, lump sum payments and/or pension sharing or attachment orders.

Annulment

Invalidity; especially a declaration that a marriage has never existed in law because of some basic defect like bigamy.

Barrister

A lawyer who has been called to the Bar and has the right to represent clients in court. As a general rule, barristers cannot take instructions direct from the public who must first instruct a solicitor. The full title is barrister-at-law, commonly referred to as Counsel.

Chambers

A judge is said to "sit in Chambers" when they are hearing a case in private, as opposed to open court. Almost all divorce proceedings are heard in this way. The word "chambers" can also mean the offices in which barristers work and "a set of Chambers" describes a group of barristers who have agreed to share certain facilities and services. Barristers are not allowed to enter into partnership together.

Clean break

A final settlement of financial and property matters between the parties to a marriage, so that neither party is dependent on the other. Virtually impossible if there are dependant children of a marriage.

Compromise

An agreement between two or more persons to settle their differences without recourse to the court.

Conciliation

A method of settling a dispute with the aid of an independent person or body (e.g. ACAS). Also see Mediation.

Contempt

Contempt of court is committed either by obstructing the administration of justice or by disobeying orders or other processes of the court. Suppose someone gives an undertaking to the court not to do something, like contact a particular person, and then breaks that undertaking; or a defendant goes on shouting in court when the judge orders them to stop. The court can imprison the culprit until the contempt has been "purged" by an apology and/or undertaking not to repeat the offence.

Co-respondent

The person with whom the respondent in a divorce case is alleged to have committed adultery.

Costs

The legal cost of litigation, including the fees of solicitors, barristers and expert witnesses and the court fees. Normally the loser is ordered to pay the winner's "taxed" costs. That means that the winner's costs bill must be scrutinised and approved by a Taxing Master who is an officer of the court.

Cross petition (cross-action in Scotland)

A petition by a respondent in a divorce proceeding alleging different reasons for the divorce.

Cross-examination

Questioning a witness for the other side with the aim of extracting information or admissions helpful to one's own side. An advocate has a right to cross-examine but the judge may limit it if they feel that the right is being abused.

Decree absolute

The final order of a court dissolving a marriage.

Decree nisi

A provisional order dissolving a marriage, which does not become final until a further application is made by the petitioner (at least six weeks and one day after the decree nisi) and a decree absolute is granted.

Directions

Court orders laying down procedural steps to be taken by the parties.

Divorce

The ending of a marriage because it has irretrievably broken down. To establish irretrievable breakdown in England and Wales, it is necessary to prove one or more of the following (the 'Five Facts'): 1. Adultery, 2. Unreasonable behaviour, 3. Desertion, 4. Two-year separation with the consent of the other party (no fault), and/or 5. 5-year separation when no consent is needed. In Scotland, there are two ways to get divorced - using the 'simplified divorce procedure' or the 'ordinary divorce procedure'.

Judicial separation

A decree of the court, which declares the parties to be legally separate, without dissolving the marriage. It can include a financial settlement.

Litigant-in-person

Someone who runs their own case and represents themselves, rather than hiring a lawyer.

Litigation friend

Someone who represents a child (or patient) in litigation.

Mediation

The use of a mediator to help reach a settlement in a dispute. Mediation differs from arbitration in that a mediator will not come down on one side or the other and make an award. The aim of mediation is to persuade the parties to reach agreement and not to impose a ruling that has to be obeyed. Some County Courts now operate mediation schemes, which can be very effective and may avoid the expense of solicitors. See also ADR.

Periodic payments ('periodic allowances' in Scotland)

Financial support given by one party to the other. It can be in the form of regular payments (e.g. monthly, yearly) or a lump sum. Maintenance of children is almost always assessed by the Child Support Agency.

Prayer ('crave' or 'craves' in Scotland)

The application at the end of a petition asking for a marriage to be dissolved and financial relief ordered.

Quickie divorce

Informal name for the special procedure for undefended divorces based on the facts of adultery or unreasonable behaviour (99 per cent of divorces are achieved this way).

Section 8 orders (Section 1 orders in Scotland)

These relate to children and deal with residence and contact orders, among others.

Service of process

The act of delivering documents to the other party.

Tenancy in common

The joint beneficial ownership of property in specified (not necessarily equal) shares where, if one tenant in common dies, their share passes to their heirs. Although called a tenancy, this has nothing to do with leases.

Without prejudice

A statement made by a party in, or in contemplation of, litigation, which is "off the record". To encourage the parties to engage in open discussion about settlement, such statements cannot generally be made known to the court. If they are expressed to be "without prejudice save as to costs", they may be disclosed after the court has decided the case when it comes to argument about who should pay for it. Without prejudice is often confused with "subject to contract", but the two are completely different.