Separation and divorce raise many serious and often complex issues with decisions needing to be made about the children, housing and finance. If you need help to guide you through a difficult family situation, our family law team can provide constructive and sensible advice with particular focus on the wellbeing of children.
Our family law services include:
- Child arrangements
- Pre and Post nuptial agreements
- Domestic abuse
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The Need for Financial Order
A divorce brings an end your marriage and it does not bring an end to the financial claims between you and your spouse. Only a separate Court Order can do this, by expressly recording what is to happen to the assets of the marriage and dismissing all future claims. These financial arrangements are usually dealt with alongside the divorce proceedings.
Even if there are no assets of the marriage, or if you do not wish to claim any of your spouse’s assets, we would normally advise you to still obtain an Order to dismiss any possible future claims. If not, then there is the possibility that your spouse could make a claim in the future and against any assets you may then have, for example, an inheritance or other windfall.
How do you obtain a Financial Order?
You can do so by either reaching an agreement between you, which if approved by the Court is binding on both of you and is enforceable by the court if necessary (known as a Consent Order), or by asking the Court to decide what is to happen. There are advantages in reaching agreement between you, as you could incur substantial legal costs if you go to Court and you may be unhappy with the decision reached by the Court.
In either eventuality both of you will need to provide full financial disclosure. This requires each to disclose to the other details of their assets, liabilities, income and pension information and to provide a full picture of the matrimonial finances. The Court will need this if is to decide what is to happen and, if it is your intention to reach an agreement between you, then this enables both of you to do so in the knowledge that the agreement reached is based upon all the relevant facts. Failure to provide full financial disclosure may result in any Order being set aside (overturned) at a later date.
How do we go about reaching an agreement between us?
There are different ways that you can seek to do so. In all cases it is strongly recommended that you seek legal advice from an experienced Family Law solicitor. By doing so you have the advantage of knowing that what you may be agreeing to is reasonable and fully protects your position. The solicitors (assuming your spouse has one as well) can then draw up the agreement reached in a way that reflects what has been agreed and which is more likely to be acceptable to the Court. Whilst we would always advise if you are able to do so that you should agree as much as you can between you, we do strongly advise that you seek legal advice before reaching a binding agreement and to help draw up that agreement in a way that is binding and does not leave any unresolved issues for a later date.
So what are the different ways of reaching an agreement?
The following is a summary of what is available and if you follow the links on this page you will find more detailed guides should you wish to learn more.
This involves both you and your spouse agreeing to meet with a qualified, impartial Mediator who will guide you through financial disclosure and facilitate your negotiations to reach an agreed financial settlement. Mediation is a voluntary process and any agreement you reach is not legally binding until you both choose to make it binding with the help of your solicitor.
Gill Wright, is a member of the Law Society Family Mediation Panel.
This process involves both of you represented by your own independent solicitors, meeting together in a four way meeting to negotiate a settlement. The process requires that both solicitors are trained in Collaborative Law. If the Collaborative process fails to resolve matters and it is necessary to apply to the Court, then both solicitors will withdraw from acting and you will need to appoint new legal representatives. Gill Wright, is a trained collaborative lawyer.
Negotiation can take place directly between your solicitors if you do not wish to use one of the above alternatives. Each will seek to protect your best interests and it is important that you instruct an experienced Family Law solicitor that specialises in these matters. Not all solicitors do.
What if we are unable to reach agreement and have to go to Court?
It is not always possible to reach an agreed financial settlement and sometimes, particularly if your spouse is uncooperative, then you may need to issue Court proceedings, known as an application for financial relief. Just because you have done so does not mean that it is inevitable that the matter will have to be decided by the Court, as the process of doing so may make your spouse more cooperative and both of you will be encouraged by the Court to try and reach an agreement.
The Court sets out a timetable and will give directions for resolving the issues between you. In the absence of agreement there will be a hearing and we would usually advise you to be represented at that hearing by a specialist barrister that we will recommend and instruct on your behalf.
Please note that we do not offer legal aid.
Working Together to Reach an Agreement
The collaborative process is a way that you can work with your solicitors to reach the best solutions for you and your family when your relationship breaks down and without going to Court. Collaborative lawyers are committed to helping you reach agreements about your children, your finances and minimising the pain of family breakdown.
Both you and your former partner, with the help of your own solicitors, will work together as a team to resolve the issues arising from the breakdown of your relationship to achieve the best solutions for you and your family without going to court.
Circumstances may arise where you wish to consider changing your name or that of your child, possibly on divorce or separation.
If you are an adult
Our family team can draft a change of name deed which will meet your specific requirements, and can provide you with the certified copies you will need to send to the various agencies to change your name on any official documents such as passports or driving licences.
If you wish to change the name of a child
A child’s name can also be changed by way of a change of name deed, provided that everyone with parental responsibility agrees. Changing a child’s name is a much more complex process, and we will be happy to assist you to ensure that the correct legal procedure is followed.
Deciding on the arrangements for your children on the breakdown of a relationship is a complex issue. We can assist you in working out the arrangements for your children in their best interests and in working out a parenting plan. Where appropriate, we seek to encourage agreement between the parents, and family members through mediation. However, in some circumstances a court order may be necessary.
Our family team are able to offer you that specialist help.
Every situation and every family is different and the nature and route by which a dispute is decided will depend on the individual circumstances of your case.
If you do find yourself experiencing difficulties then your first step should be to make an appointment to see us. We will be able to discuss with you your circumstances and advise you of the options available, the procedures involved and the likely costs.
Child maintenance and financial provision
Child maintenance is generally calculated by reference to the Child Maintenance Service’s calculator which can be accessed by clicking here
In certain circumstances it may be appropriate to seek financial support over and above the Child Maintenance Service rates. We can help you with an application for financial provision for your children.
When divorce proceedings are commenced, the court has power to make a financial order which directs what is to happen to the matrimonial assets. The court order is binding and enforceable if necessary. Before divorce proceedings are commenced, all financial claims between you and your spouse remain open and either party may make a claim on the capital assets (including property) income and pensions belonging to the other party and at any time. This remains the case even if you are divorced and no financial order has been made by the court. Consequently there is no certainty and finality in respect of financial arrangements until such time as the court seals a financial order.
If you do not wish to take divorce proceedings at this time but have agreed with your spouse what is to happen to the matrimonial assets, it is possible to enter into a deed record what has been agreed and known as a Separation Agreement.
It is still possible for either of you to make a subsequent application to the Court for financial relief following divorce proceedings and in that case the Court has a duty to consider all the circumstances of the case as they may then be in deciding whether to alter what has been agreed. The Court must consider a number of statutory factors and any change in circumstances since the date of the Separation Agreement.
The statutory factors the court must consider are as follows:
- The Income Earning Capacity Property and other financial resources which each of you has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which would be in the opinion of the Court reasonable to expect a person to take steps to acquire
- The financial needs, obligations and responsibilities, which each party has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- The ages of each of you and the duration of the marriage
- Any physical or mental disability of either of you
- The contributions which either of you has made or is likely to make in the foreseeable future of the welfare of the family including any contribution by looking after the home or caring for the family
- The conduct of each party if that conduct is such that it would be in the opinion of the Court inequitable to disregard it
- The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring (most usually pension provision)
If the circumstances warrant it, the Court can then alter the terms of the Separation Agreement. Therefore, separation agreements cannot achieve the same degree of finality as a court order. However, provided both parties have taken independent legal advice prior to signing the Separation Agreement, and have fully disclosed their finances and any other relevant circumstances, then it is as watertight as you can make it and less likely to be altered by the Court.
Failure to disclose any relevant information may result in the agreement being set aside by the other party or overturned by a court.
A Realistic Alternative to Court
Mediation is a voluntary process offering an alternative to going to court and the opportunity for separating couples to work out what arrangements best suit them and their children. The mediation process enables couples to consider the options available to them and helps them reach joint decisions to resolve the issues that arise on the breakdown of their relationship.
Mediation is constructive and forward focussed, it enables people with the help of an impartial third party to take responsibility and work out solutions that best suit their family, taking into account what matters to them on the breakdown of a family relationship. It provides a calm and safe place for couples to talk about what is important to them and helps children if parents are able to work out arrangements together.
It is far better than having to air your family situation in a Court and between a Judge whom you and your children have never met before make decisions about your children and family.
Family mediation can help reduce conflict and misunderstanding; it can be cost effective and assist in better future communication, which is especially important where there are children.
Gill Wright is an accredited family mediator and a member of the Law Society Family Mediation Panel. For further information please contact Gill.
Don’t Suffer in Silence
Domestic abuse is not confined to physical abuse and can take many forms. Domestic abuse is not acceptable and should not be tolerated. The first step is to protect your own safety and that of any children that may live with you. If you are concerned for your safety or that of your children, you should call the police at any time of day or night.
Our highly experienced solicitors can provide you with the help you need and can advise you of your legal rights so that you are better informed and know what options are available to you.
There is a common misconception that there is a legal relationship known as the ‘common law husband and/or wife’. In fact, the law of England and Wales does not recognise the ‘common law spouse’. The law merely distinguishes between married couples (or those same sex couples in a registered Civil Partnership) and unmarried couples.
Why does it matter which of these two groups my relationship falls into? The rights and responsibilities of unmarried couples are very different to those of married couples.
On the breakdown of a marriage, both spouses will have an interest in the assets and income of the other and the court has a wide discretion to transfer and distribute those assets to either party as it deems fair and appropriate.
Unmarried couples, on the other hand, are not afforded those same rights. The rights of unmarried/cohabiting couples are largely determined with reference to the law of property and trusts which concentrate very firmly on what was agreed/who contributed what. As a general rule the Court is only normally concerned with financial contributions and this is a problem if there is a marked disparity between the incomes/assets of each party and/or where there are children and one party may play the major role in looking after them at the expense of their own career and earning potential. Consequently, if they later separate, one party may find themselves in a difficult financial position.
What steps can unmarried couples take to protect themselves?
There are a number of ways that you can do so and one of the most important is to consider taking appropriate legal advice at the beginning and before any problems. That advice will include advising you as to:
- How you own any property that you may purchase. Particularly if you are contributing unequally, then you will be advised to enter into a declaration of trust which is a document that sets out how you are to own the property and what will happen if you separate.
- Entering into a living together agreement and which is a document that sets out in advance what your responsibilities are and how they are to be shared.
- Keeping careful written records of any significant financial contributions that you make and particularly towards any property.
- Making a will.
If you have children then these matters become particularly important and you may be interested in our guide to arrangements for children.
Whether you are considering living with your partner, or if you are already cohabiting or in the event of breaking up, our family team can advise you of your rights and responsibilities. For further information please contact us.