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.

Parties can attempt to regulate their future rights and responsibilities with their partners as to financial issues or the needs of children or other relevant issues by means of a formal agreement. These agreements can be legally binding if properly worded with both parties having fully disclosed to each other their financial position and any other relevant information and both parties having taken legal advice. In England and Wales however, it is important to note that in all cases, the Court has ultimate jurisdiction, namely it has the power to consider other factors and if there is very good reason, depart from the agreement if the Court considers it just.

Unmarried opposite sex couples can enter into a written cohabitation agreement with their partner which can include provision to regulate their property and possessions and same sex couples can enter into pre-partnership agreements on a similar basis.

Those wishing to marry may beforehand enter into a pre-nuptial agreement and if they separate after the marriage, but do not immediately wish to divorce, a separation agreement can be prepared.

We can advise and prepare the appropriate form of agreement for you.

Parental Responsibility

This is the legal phrase for the rights that parents have in respect of their children and also their duties. The rights include having the care of or contact with the child, being involved in decisions relating to the child’s name, education, religion and health and medical care. The duties include responsibility for the safety, maintenance and behaviour of the child and the child’s financial support.

Who has Automatic Parental Responsibility?

The child’s natural mother automatically has parental responsibility. A child’s father will also have parental responsibility automatically if he is married to the mother at the time of the child’s birth, and if he is unmarried, if he is the named father on the child’s birth certificate.

How does a father acquire Parental Responsibility?

If a father does not have automatic parental responsibility, he can obtain it in the following ways:

• A written parental responsibility agreement with the mother’s consent.
• A Parental Responsibility Order made by the Court.
• An Order that the child lives with the father.
• Appointment as a guardian of the child.
• Marriage to the child’s mother.

Arrangements for children between parents who may be separating should as far as possible be agreed on a voluntary basis between the parties based upon what is in the childrens rather than the parties’ best interests.

Courts will only make orders relating to children if it is necessary in the interests of the children and arrangements agreed between the parties are much more likely to work well than orders imposed upon the parties by a Court.

If parties have difficulty in making suitable arrangements themselves, they can seek advice from us on how to proceed and resolve any issues, and we can also advise upon the referral of your case to a Family Mediation Service which may help an agreement to be reached.

If arrangements for children then cannot be reached, it is possible to apply to the Court to determine various issues.

1. Residence
   Application can be made to the Court for an Order that a child reside with one parent, if that is necessary for the child, such as cases where this is in dispute or the parent with care has concerns that the other parent may not return the child. Usually if one parent has a Residence Order, the other will be given a Contact Order, either to see the child when agreed or at defined times. Less often it may appropriate for residence of children to be shared where movement between two homes is not disruptive to children.
2. Contact
   • Parents
     It is in the interests of children to have contact with both their parents regularly. If possible, parents should make regular arrangements so that children have a settled pattern of parenting. There is no set rule as to how much time each parent can expect to see their child, but we can advise upon parties’ individual circumstances if asked.Where agreement has been attempted but cannot be reached, a parent has an automatic right to apply to the Court for contact to their child and contact orders can set out arrangements for contact in the week or at weekends, and overnight or extended contact for holidays if appropriate. In difficult cases where unsupervised contact may not be in the children’s interests, orders can be made for contact to take place at designated contact centres or for a parent to exercise limited contact by telephone or written communication.
   • Grandparents
     Grandparents have no automatic right to see their grandchildren, although the Courts recognise it is usually in the best interests of children to see their grandparents, it is always subject to what is in the best interests of the child. As with parents, grandparents should always try to reach a voluntary agreement with the parents as to how often they see their grandchildren and where there are difficulties, consider mediation before applying to the Court, although attendance at mediation has to be voluntary. If this fails, grandparents applying to the Court have to show they should have permission to proceed which involves consideration of the relationship they have established with the children, and we have an experienced Family Solicitor who can advise you. If you are given leave to proceed, the Court can grant you a Contact Order setting out when you can see the child or children and the parents must adhere to any arrangements ordered which would ensure you have regular contact.
3. Parental Responsibility Orders
   Please see the section under the heading ‘Children – Rights and Responsibilities’.
4. Specific Issue Orders
   An application can be made to the Court to decide upon an important issue relating to a child, relating to matters such as the child’s education, religion or name.
5. Prohibited Steps Order
   This is an Order preventing a parent from taking particular action in respect of a child, the most obvious example of which is a parent who is seeking to take a child abroad without the other parent’s consent.

All parents have a legal duty to financially support their children. This duty is entirely separate to whether or how often they see their children. If a child lives with one parent for all or the majority of the time that parent can claim child maintenance from the other parent.

How do I obtain child maintenance and how much should it be?

The calculation of and enforcement of maintenance is now carried out by the Child Maintenance Service which has taken over the role from the Child Support Agency. An online calculator is available on a gov.uk website to help work out the appropriate amount, taking into account the number of children, the income of the payer and whether he or she has the children for overnight stays. Separated parents who are amicable can use this figure as the basis for regular voluntary payments and it is likely most maintenance for children is paid in this way. In those cases where there are problems with payments, a parent with care can apply to the Child Maintenance Service who will calculate and notify the non-paying parent of the sum that is payable and has procedures for enforcement if those payments are not made.

Can the Courts make child maintenance orders?

The introduction of the Child Support Agency removed the requirement to apply to the Court to obtain maintenance from a non-paying parent, drastically reducing the Court’s involvement and in most cases ending any need for application to the Court. Parents involved in divorce proceedings who have agreed a financial settlement to be embodied in a Court Order can include in the Order provision for payment to children if this is agreed between both parties.

If child maintenance is not agreed, it is possible either in divorce proceedings or under the 1989 Children Act to apply to the Court for child maintenance and other limited financial remedies, but these applications tend to be complex and expensive to pursue.

Those who have been subject to domestic violence or abuse can find remedies through both the criminal and civil law. In emergency situations, the police have powers to arrest a violent partner and offer protection to their victim by the commencement of criminal proceedings often imposing conditions upon the bail of an offender so that they have to keep away from the victim or their home and not harass or molest them.

It is also possible to instruct a Solicitor to apply for a similar remedy by way of injunction to the Court against a violent or abusive partner. The Court has power to make orders as to the Family Home and who should live there, called an Occupation Order, which may require their partner to leave, and a Non-Molestation Order can be made that the abusive partner cannot contact or try to harm or harass you or encourage other persons to do so against the other party.

Although Legal Funding, previously called Legal Aid, is no longer available for most family issues, it can still be available for cases of violence, although only a small number of solicitor’s firms are contracted to provide a Legal Funded Service and this does not include ourselves.

Therefore, unless you have Legal Expenses Insurance to cover your legal costs, we would provide you with an estimate of the cost of carrying out any work required.

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.

Provided you are eighteen years of age you can change your name as long as you are not doing so with the intention of defrauding or deceiving someone else. There is no legal requirement for a change of name to be in a written document and telling everyone your new name would be sufficient. However, it is sensible to have the change recorded in a Deed as there are various official bodies such as the Passport Office, who may require written proof.

We can prepare a Change of Name Deed for you, if you wish to change your forenames or surname. We charge £90.00 inclusive of VAT for the preparation of a Deed for any adult to change their own name. Full details of your old and new names and address are required for us to prepare the Deed, and you will need to attend our Office to produce proof of your identity (by means of a Passport or Driving Licence) and recent proof of address (by way of utility or other bill) and make payment when you attend an appointment to sign the Deed. Changing a child’s name requires the consent of all parties who have parental responsibility for the child and is more involved and consequently more details are required to estimate the cost.

It is also possible, but not necessary to enrol your new name on the public record at the Royal Courts of Justice if you wish it to be centrally recorded. Details of the fee involved and method of application are available on the gov.uk website for Change of Name Deeds. We can assist you if you wish to make this application which will incur additional expense. If you do not enrol your Change of Name Deed, it is important that you retain your original Deed and we will supply you with certified copies of the Deed, as if you lose all evidence of the Deed, it may be expensive for replacement documentation to be prepared to prove when your name was changed.