Family
Law

Judicial separation does not bring a marriage to an end like divorce, but does allow a spouse to use the powers of the Court to obtain financial orders such as dealing with the Family House or the rights of their spouse to inherit on their death.

Applications for judicial separation are relatively rare, but we will advise you if this procedure may be appropriate in your case.

Annulment is a declaration by the Court that the marriage was not valid. The procedure is similar to that for a divorce, but attendance at Court is required to obtain the declaration.

Applications to the Court for annulment can be made to the Court if the marriage is void where the parties are for example too closely related, one party is under sixteen years old or one was already married or in a civil partnership.

The marriage is defective or voidable on grounds where the marriage was not consummated or consented to, namely one party was incapable at the time of marriage or forced into it. If one party failed to disclose they had a sexually transmitted disease or a woman is pregnant by another man when the parties married, it is also voidable.

Civil partnerships were introduced in 2005 to give same sex couples rights enjoyed by married couples of the opposite sex. If a civil partnership has broken down irretrievably, an application can be made to the Court to dissolve the partnership if it has lasted at least twelve months. Like the divorce procedure there are various grounds, one of which must be proved to obtain a dissolution of the partnership save that adultery does not apply.

In addition to making a dissolution order to end the civil partnership, the parties are also able to use the Court’s powers to make orders in respect of financial matters, including orders relating to property, payment of a lump sum or maintenance if appropriate, or if there are issues relating to children, orders concerning contact with children and with whom they will live.

How is a financial settlement achieved when parties divorce?

Settlement involves reaching an agreement between parties and then making it binding in law. Solicitors have to operate under a Family Law Protocol whereby they act in the best interests of their client, but in a way to encourage an amicable and fair settlement between parties.

Agreement can be reached involving the negotiation of the parties and their solicitors, through a process of mediation if required, and if these steps are unsuccessful, in cases where parties cannot agree, the final method is a contested Court procedure requiring both parties to attend Court.

What circumstances need to be considered to arrive at a fair financial settlement?

Various factors influence what makes a settlement fair and these may include the needs of any children, the parties’ available capital, income and other resources, their age, financial needs and standard of living before the marriage broke down and the length of their marriage is important.

In some cases, the parties’ health, contributions and in extreme cases bad behaviour can be taken into account. Due to the factors to be considered it is always wise to consult a solicitor for advice upon financial matters arising from a divorce and we give initial free advice for this purpose.

Do I need advice from a Solicitor if we are agreed? What is a “clean break” Order?

A Solicitor’s role is not to make decisions for you or to stop you doing something you think is right, but there are three reasons why seeking advice is in your best interests:

1. When he has all the details a solicitor can advise you on all options which may include some you have not considered, before you commit yourself to a cause of action.
2. Any agreement with your spouse upon which they may have not had legal advice or is not embodied in a Court Order may well not be legally binding. Apart from the effect of a possible future remarriage which may not occur, only an Order made by the Court can dismiss any future claims during the parties lifetime or on their death. This Order is commonly referred to as a “clean break” Order.
3. We will give you initial advice on financial matters at our Office at a free interview.

How much will a financial settlement cost?

Unlike the cost of the divorce procedure which is fairly predictable for an uncontested divorce, the costs of reaching a financial settlement will vary according to the circumstances and complexity which is why advice from a solicitor should be sought when an estimate can be given.

A financial settlement includes all work required to obtain by agreement or otherwise a Court Order concluding financial claims. In straightforward financial cases this could be £500.00 to £600.00, but where there is more negotiation it may be in the region of £1,000.00 to £2,000.00. Most cases settle within these cost limits, but a small proportion of cases are contested at Court and parties can accrue legal costs of £5,000.00 to £10,000.00 or higher depending on the length of the dispute.

We will always give you an estimate of costs and review this during the case. We ensure we bill you regularly so you know where you stand financially and monthly instalment payments can be arranged.

Could I claim maintenance from my spouse in a Divorce?

Whilst spousal maintenance is not appropriate in most cases where financial ties are severed by a financial order that gives a clean break on all financial claims, there are cases where such a claim is appropriate.

The length of the marriage, disparity between the parties’ earnings and their potential earning capacity in the future, their financial needs and those of any dependent children, contributions made to the marriage and the parties standard of living are some of the factors which will determine whether a spousal maintenance claim is appropriate.

What will happen to the Family House?

The starting point for all matrimonial settlements is that there should be an equal division of assets which may mean if one party cannot purchase the other party’s interest in the Family House it may have to be sold and the proceeds divided. However, there may be other assets that could be transferred to the other spouse to offset the value.

The needs of children are very important and may mean that any sale of the Family Home is postponed if children need to live there until they complete their education, but if the party who leaves is entitled to a share of the property they should still receive their share when the children are no longer dependent, although the parent who remains in the Family Home may require a greater share of its equity.

If you are divorcing you should strongly consider making a Will. If you jointly own the Family Home or other property with your spouse it is important to ensure that you do not hold the property as a joint tenant otherwise if you die the property will automatically pass to your spouse on your death, whereas if the property is held under a tenancy in common you can leave your share of the property under your Will. However, if you have no Will and you die before the divorce concludes, your spouse may still inherit the Family Home on your intestacy as your next of kin.

It is very important to seek advice from a Solicitor on the benefits of making a Will as soon as you decide to proceed with a divorce, to protect the interests of those you care about.

The legal rights of cohabiting partners are very different from those of married couples.

In marriage, the parties’ financial claims can be enhanced by the length of their time together, but although people refer to common law husband or wives this has no basis in law and parties can live together for long periods without establishing any financial claim or right to share in a property if the relationship ends.

Cohabitees have no right to claim maintenance from each other save for the statutory right for the main carer of any children to claim child support or maintenance and generally parties can retain their own individual savings and investments and items that they have exclusively purchased.

Property of Unmarried Couples

Any property purchased will usually continue to be held in shares stated at that time and each party has a right to insist on a sale to obtain their share if required unless it is necessary to postpone such a sale where the property remains a house for the dependent children. If one partner alone owns the parties’ house, the other party has no automatic right to any share in the property just by virtue of their relationship even if it is a long one.

Where a party claims a share of a property which does not appear on the deeds which would usually involve financial contributions adding value to a property, such as works carried out, or payment of the mortgage, they would need to establish this was sufficient to establish a trust of the property entitling them to a share or greater share of the value in the property.

This is a complex area of law for which the advice of a Solicitor should be sought.

With regards to family matters, where parties to a relationship disagree on important issues relating to their separation or divorce, either involving finances, property or children, one or the other party or both can refer their case to a trained mediator to try and resolve their dispute and to reach an agreement.

Unlike marriage counselling, mediation covers disputes arising from the parties separating and is not concerned at mending or dealing with the reasons for the breakdown of the relationship. The mediator is totally independent and mediation is voluntary and not legally binding, so that if one party refuses to enter or leave the mediation process it ends. If the parties agree however, this can form the basis of a binding written agreement or in certain cases lead to an agreed Order to be made by the Court confirming the arrangements.

Mediation may not be suitable where one party might be a threat to or try to intimidate the other, but subject to certain reasonable exceptions, if issues relating to finances and children cannot be agreed between the parties, there is a requirement in most cases to attempt to mediate before making application to the Court.