The A-Z of Family Law29/05/2014
With changes to legal aid and the general expense of everyday living, there is an increasing amount of people acting in person in family law matters. Strictly speaking, you do not have to have a lawyer to deal with a family law matter on your behalf; however, you may be risking all sorts of problems in the future if you do not seek some advice.
It is important to ensure that what you are doing is fair, certain and guaranteed. Even if you have an amicable divorce, you need to ensure that what you have agreed in relation to finances covers all possibilities and is finalised in a legally biding Court Order which will provide certainty and ensure that it can be relied upon in relation to any potential disputes in the future.
Seeking early advice is invaluable. At Mincoffs, we are happy to see any new clients to provide some initial advice for thirty minutes free of charge.
As it stands, the only two immediate grounds for divorce are ‘fault based’ grounds – adultery or unreasonable behaviour.
Bad behaviour is only relevant to a financial settlement if it is so extreme that it is outside the range of normality. A great number of spouses have a complaint against the other during a marital breakdown, but only a small minority will have behaved in such a way that the Court is required to consider it in the financial settlement. Financial misconduct in divorce proceedings (e.g. concealing assets) may however lead to a financial penalty.
The value of a business will need to be taken into account in working out how to reach a financial settlement following divorce or dissolution, even if only one party has been solely responsible for building it up and even if the value cannot be immediately realised. Frequently, an independent valuation by an accountant will be needed to assist with settlement discussions.
A Consent Order is the legal document that records an agreement and finalises financial matters following divorce. A Consent Order provides finality and certainty. Without it, you are vulnerable to future claims. Rights to claim maintenance or property etc do not diminish over time. There are no limitation periods as in other areas of law and therefore in some cases, a former spouse can bring a claim many years after a divorce – even after their ex-spouses death. We advise all clients to obtain a Consent Order at the time of the Divorce, no matter how simple it may seem and how unlikely you may think it is that your spouse would make a future claim against you or your estate.
All family matters can be dealt with outside of the Court and indeed that is the primary aim at the outset of every case wherever possible.
The expression ‘common law husband or wife’ seems to have invented itself in the mind of the British public and many have a common misconception that if a couple live together for long enough there are certain legal consequences that arise. That is simply not true. Cohabitation gives no general legal status to a couple.
Decree Nisi and Decree Absolute
The Decree Nisi is the first stage of the Divorce. Six weeks and one day after the pronouncement of the Decree Nisi, the Petitioner can apply for the Decree Absolute which is the final Decree of Divorce and dissolves the marriage.
A party to matrimonial proceedings is required to give full and frank disclosure of his/her finances. This can be done in a number of ways, most commonly by completing a Form E which is a Court Form and deals with all income, assets, liabilities and pensions that a party may have.
There are all sorts of emergency provisions available in Family Law proceedings for if you need to act fast. This may be to provide protection to you or a child from physical or verbal abuse, to exclude your ex-partner from your home and prevent them returning or to avoid financial transactions which are intended to prevent or reduce money available following marital breakdown.
Dealing with matrimonial matters does not have to be expensive. An undefended divorce, in general terms, costs in the region of £1000 including a Court fee of £410. Where parties tend to spend money on lawyers’ fees is in relation to money and children and disagreeing about who gets what.
It is surprising how often Facebook now crops up in Divorce Petitions!
First Appointment/Financial Dispute Resolution/Final Hearing
These are the three Hearings that follow issuing an application in relation to finances following divorce. It is possible to settle a case at any stage of the process.
The sad truth is that Grandparents do not have an automatic right to see their grandchildren. However, whilst grandparent’s rights are limited, they can apply to the Court for permission to apply for an Order to regulate when they may be able to see their grandchildren.
A Get is a divorced document, which according to Jewish Law, must be presented by a husband to his wife to effect their Divorce.
Both husband and wife have a right to occupy the family home until the marriage is ended by divorce, even if the property is owned in the sole name of one of them. It may however be possible to agree that only one party occupies the family home while the financial settlement is worked out. The family home does not always have to be sold when there is a divorce or dissolution. However, a sale may be necessary if there are insufficient assets available to avoid a sale.
The extent to which the Court will have regard to inherited wealth will depend on the individual circumstances of the case such as the other financial resources of the marriage, the nature of the inheritance and how finances have been dealt with in the marriage along with the length of the marriage and a consideration of the parties’ needs.
Irretrievable breakdown of marriage
The only ground for Divorce is that the marriage has broken down irretrievably, i.e. there is no going back. This must be proved to the Court by relying on one of five factors; adultery, unreasonable behavior, parties have separated for at least two years and they both consent to a Divorce, desertion and parties have separated for five years or more.
Owning a property as Joint Tenants means that the property belongs to both parties in equal, undivided shares. If anything happens to either party, the interest in the property will pass automatically to the other owner and not in accordance with a Will. It is very important to understand the implications of a Joint Tenancy, particularly for an unmarried couple.
If you are found to be in contempt of Court and in breach of Court Orders – this is the ultimate punishment!
When a couple separate it is a stressful time, particularly when there are children involved. Most couples are able to agree who the children should live with following the separation and how often they should see the other parent. However, where couples cannot agree it is advisable to seek early advice. There are many options available to facilitate an agreement such as Mediation for example. If a couple are still unable to agree, a last resort would be an Application to the Court.
With effect from 1st April 2013 the scope of services covered by legal aid was significantly reduced and legal aid funding has now been withdrawn in relation to family disputes, save for in limited circumstances.
To deal with financial matters within the course of divorce proceedings, each party must be open and honest about their finances and must provide full and frank disclosure of their financial position. Failure to do this may result in the Court taking a very dim view on the spouse seeking to conceal assets and in doing so, possibly awarding a larger share of the assets to the other. The Court may also make a costs order against the person who has not been completely open.
MIAM (Mediation Information Assessment Meeting)
From April 2014, before an application can be made to court in relation to family law matters, (save for in limited circumstances) everybody will be required to attend a MIAM (Mediation Information Assessment Meeting) to consider with a trained Mediator whether mediation could be used to resolve any difficulties, rather than making an application to the Court.
We have a specialist Family team at Mincoffs with a wealth of experience and expertise to assist you in relation to any family law matter that you may have. We offer a free thirty minute initial appointment to all new clients.
If following divorce you wish to revert to your maiden name a change of name deed is recommended. In relation to children, all parties with Parental Responsibility must consent to a change of the child’s name. if there is not full consent, it is possible to make an application to the Court.
Negotiation is key to resolving financial matters in divorce. This can be done by way of correspondence or face to face discussions in round table meetings or at Court.
When considering a fair financial settlement following Divorce, the Court is required to consider the reasonable needs of both parties and those of any children. This will include housing and income needs.
This is one of the injunctive orders that the Court can order in certain circumstances which can require one party to vacate the family home.
Pre-nuptial agreements are becoming increasingly popular. They are entered into by a couple prior to a marriage and seek to regulate the financial affairs in the event that the marriage breaks down. There are a number of requirements that must be dealt with in order for a pre-nuptial agreement to hold any weight and therefore seeking independent legal advice is invaluable.
Parental Responsibility (PR) is ‘all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property’. People with PR are entitled to make important decisions in a child’s life such as where they go to school, what name they have and where they live etc…
A child’s mother automatically has PR. A father married to the child’s mother automatically has PR or can acquire it by marrying the mother after the child’s birth. Father’s named on a child’s birth certificate after 1 December 2003 also have PR even if they are not married to the child’s mother. In other circumstances a father’s PR can be obtained by agreement or by Court Order.
In financial proceedings, once parties have exchanged their financial disclosure, it is possible for each party to raise a Questionnaire to request additional information and/or documents arising from the initial disclosure. The purpose of the Questionnaire should be to enable the parties to have a clear picture of each other’s financial position.
Removal of child from UK
No parent may remove a child from the UK without the written consent of the other parent and/or any other person who has PR, or the permission of the Court unless they have a Residence Order or Special Guardianship Order in their favor. If parents cannot agree, then an application should be made to the Court for permission to take the child abroad either temporarily or permanently.
Range of Court’s powers
In any final hearing, there will be a range of orders that a Court can make which can all be described as ‘reasonable’. Judges have a very wide discretion as to how to apply the law and five different Judges hearing the same case could all come up with five different answers which would not be appealable.
Resolution is an organisation committed to constructive resolution of family matters. It has over 6000 members who are family lawyers and other professionals that deal with family law matters and abide by a code of practice which promotes a constructive and non-confrontational approach, with a particular emphasis on the interests of the children in a case.
One of the factors that the Court will take into account when considering an appropriate financial settlement is the length of the marriage. In short, childless marriages for example, it is unlikely that a 50/50 split of the assets will be ordered, particularly where one party to the marriage contributed to the assets far more than the other.
Statement of Information
When parties are able to agree the terms of a financial settlement, the terms will need to be set out in a Consent Order and sent to the Court for a Judge to consider. A Judge will approve the agreement to make it final and legally binding if they think it is fair and reasonable in all of the circumstances of the case. To assist the Judge in determining what is fair, both parties are required to complete a Statement of Information which is a form requiring details of the parties’ assets, liabilities, pensions and income.
Schedule 1 Application
It is possible, in certain circumstances, to make an application under Schedule 1 of the Children Act to the Court in respect of children for maintenance payments, a lump sum payment and settlement of property and/or transfer of property. The application can be made by the parent of a child or, in limited circumstances by the child themselves if over 18.
TOLATA (The Trusts of Land and Appointment of Trustees Act)
This Act gives the Court certain powers to resolve disputes about the ownership of land such as who is to occupy a property and the nature and extent of the ownership. This Act may be a remedy for cohabiting couples who do not have the same financial remedies available to them as a married couple.
Three key questions
In financial matters, the three key questions are…what is there, what is it worth and how should it be divided…and in that order !
There may be tax implications arising from a financial settlement reached in divorce proceedings, particularly if there are multiple properties, companies and businesses. it is important to consider what the tax implications of any settlement will be and ensure that this is fully accounted for in any agreement reached.
It is possible in certain cases to vary orders that are reached in relation to finances in Divorce. By way of example, if one spouse is paying the other maintenance and their earnings decline significantly to the extent that the maintenance payments are no longer affordable, it may be possible to apply to vary the level of the payments.
Wishes of children
In matters relating to children, the wishes and feelings of the children will always be considered as a priority and any final order will be based on what is in the best interests of the children – not the parents.
It is important to review your Will, particularly following Divorce. Any mention of your ex-spouse in a Will will fail and Divorce may also affect any guardianship appointment in a Will.
Christmas is usually the most important time of the year for children. It can sometimes be difficult for a separated couple to agree on arrangements for children over Christmas and where that is the case, assistance from a Solicitor and/or mediation can help parents to discuss the emotive issue in a more constructive and conciliatory manner.
You must be married one year before you can issue Divorce Proceedings.
Unfortunately sleepless nights are common for most people dealing with a family law matter. Seeking early legal advice can hopefully help to ease the burden and stress…and assist with a good night’s sleep!