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At Aston Knight solicitors, we understand that a relationship breakdown can be an extremely stressful and challenging time for all those involved. As a result, we are focused on offering the very best legal advice to get you the best possible outcome. For many facing divorce, separation or issues concerning children, a trusted family lawyer plays a big part in helping to sort out what can be complex and difficult issues involving the family, children, the home and finances. Our family law team specialise in providing our clients with sympathetic advice and assistance to help you through this difficult time whilst ensuring you are aware of the options available to you. Every case is different but from the outset our specialist solicitors are on hand to advise and guide you through the process ensuring your issues are handled in the most efficient and cost-effective manner. Our experienced solicitors demonstrate both technical knowledge and a sympathetic approach. We promote results through problem-solving and encourage the use of alternatives to court whenever possible but possess the advocacy skills to represent your interest at court hearings when necessary. At Aston Knight Solicitors we offer advice and representation in all aspects of family law. The areas we cover include:
Contents of Family Law
If you need help with a family matter, child protection case, divorce or other related matter, then our Family solicitors are here to help. Please contact us on 0800 999 6661 for a free appointment to discuss your case and the options available.
Divorce and Dissolution of Civil Partnerships
At Aston Knight solicitors we have a team of divorce solicitors who can help you deal with the process. We understand that every case is different and take great care in listening to our clients. We understand that money is an important aspect of divorce proceedings. Our clients can benefit from a fixed fee structure so that they are fully aware of the legal costs before commencing divorce proceedings. If they prefer they can ‘pay as you go’ or pay by instalments. Divorce is a relatively straightforward legal procedure provided there are no unforeseen circumstances. The average timescale for completion is four to six months.
- The Steps to Divorce
- The Petition
- The Acknowledgement of Service
- Decree Nisi
- Decree Absolute
The Petition The petition allows you to apply for divorce by asking for the Court’s permission. There is one ground for divorce and this is that the marriage has irretrievably broken down. The Petitioner (the person applying for the divorce) must satisfy the Court of one or more of the five facts, which are set out in the Matrimonial Causes Act 1973: The respondent (the other party) has committed adultery and the petitioner finds it intolerable to live with him or her;
- The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him or her;
- The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- Both parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
- Both parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
The Acknowledgement of Service Once the petition is sent to the court, you will be issued with an Acknowledgement of Service form. This form is sent to the respondent (i.e. your spouse), along with the petition, and will inform them that you have requested a divorce. They will be asked to fill out some questions about when they received the form as well as the reason for the divorce. This process enables your spouse to contest the divorce if they object to it. Decree Nisi The Court will send the completed acknowledgment of service to you and you must complete the application for the Decree Nisi, and a statement in support. The Court will issue a certificate of entitlement indicating that you are entitled to the divorce and setting a date for the Decree Nisi. You are still married after the decree-nisi – it is simply confirmation that the court accepts that a divorce should take place. Decree Absolute Six weeks and one day after the date of the decree nisi, you can apply to make the divorce final and obtain the decree absolute. This is the legal document which officially terminates the marriage. It is usual to delay applying for the decree absolute until the terms of the financial settlement have been resolved. Dissolution of a civil partnership The procedure for applying for dissolution of a civil partnership is almost identical, apart from some of the terms are different, for example instead of divorce, you apply for a dissolution, and instead of a decree nisi you apply for a conditional order, and instead of a decree absolute you apply for a final order. Unlike in divorce, adultery cannot be relied upon as reason to dissolve a civil partnership.
As the marriage rate in England and Wales continues to fall, the number of unmarried but cohabiting couples is on the rise. However, there is currently no law in England and Wales which recognises the needs of a cohabiting couple if their relationship breaks down as there is with divorce. This means that if you decide to separate you don’t automatically have the right to share in each other’s finances and property. In the event of a property dispute, trust and land law is applied instead. The key difference between married and cohabiting couples is the financial provisions the court can make for the other party when they separate. These are much more limited for cohabiting couples. The breakdown of a relationship or the death of one party can be a financial disaster for a dependent cohabitee. You are not legally recognised as a couple, making it very difficult to share in the family home or your partner’s finances if you split. There is no automatic entitlement to make property, capital or pension claims and there is no maintenance. The children of such relationships may also be left at a financial disadvantage. Whether you are moving in together or just planning a future, it is a good idea to seek legal advice as there are certain steps you can take to give yourself certainty and avoid potential unfairness. We can help you and your partner put together a Cohabitation Agreement. This clarifies:
- Who owns what, including your home, joint bank accounts and possessions
- How payment of household bills is to be divided
- Maintenance payments for any children, including school fees and payments for housing.
Cohabitation agreements are legally binding and enforceable, giving you peace of mind and security for the future. If you would like to know more about Cohabitation or would like advice concerning a Cohabitation Agreement please contact our specialist team of Family Law Solicitors on 0800 999 6661 or email firstname.lastname@example.org for further help and guidance.
Unmarried Couples Legal Rights
Increasingly is the case that in modern society more and more couples are purchasing homes jointly without being married or in a civil partnership. Whilst society has caught up with the times and views this as socially and morally acceptable, the law sadly lags behind. There is, surprisingly, no actual codified set of rules from Parliament for how to divide properties when unmarried couples decide to separate and one or both wants to realise their investment in the property. In the absence of a prescribed set of rules the law has instead slowly evolved but is still largely unclear and uncertain. In some cases there may not be much to worry about; say a property was purchased with relatively equal contributions and from that point both parties contributed broadly equally, division is then simple i.e. just divide the sale proceeds equally (or one party could buy the other out for an equal share if they want to remain in the property). In many instances however the position is far from certain; respective initial contributions may be unequal but then one party may pay more during the period of shared occupation, such as paying most of the mortgage, or for an extension which increases the property value; in other cases one party may move out and only years later wish to realise their investment. In the absence of guidance or intervention from the Government, the courts have stepped in and attempted to set out a number of factors to be considered, being as follows: (1) The starting point is that equity follows the law and they are joint tenants both in law and in equity. What this basically means is that if the official legal ownership is set out as a specific percentage, then that is what the court should follow when looking at “equitable ownership.” What “equitable ownership” means is somewhat akin to “what is fair, even if it is different to what is on paper.” So the Land Registry’s record could show both parties as equal owners but this does not stop a court from ruling that the sale proceeds should be divided unequally: with unmarried couples the sale proceeds or net equity in the house is what is being divided and that division will follow what the court decides what the “equitable ownership” is. To explain further, when people purchase a property together they will be given two options: (a) Own as “beneficial joint tenants.” This means you both own 100% of the property; think of it as both overlapping. If one of you dies, the other automatically owns 100%. Here the legal ownership is equal i.e. 100% each and so the court’s starting position is that the equitable ownership should be 50:50 i.e. the net equity should be divided equally; (b) Own as “tenants in common.” This means you each own a specific percentage of the property. Purchasing couples can agree whatever percentage split they want, it is up to them. The percentage split agreed will be recorded and that can then be shown to the court as evidence of what the legal ownership is (and, therefore, what the “equitable ownership” should be as well). The solicitor who deals with the house purchase should ask any couple who wishes to purchase as tenants in common in what percentages they wish to own it and then that should be recorded clearly. If no specific percentages are agreed the court will assume the legal ownership was 50:50 and, therefore, the starting point will be that the equitable ownership should also be 50:50. (2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change. So, although the starting point is that the net proceeds should be divided in line with what the agreed legal ownership is, one party can seek to persuade the court that that is not how they intended the net equity to be divided, either at the start or if their intentions changed as time went on, say if one party left the home and bought another property. (3) Their common intention is to be deduced objectively from their conduct. The court will look at how the parties conducted themselves during their shared ownership in order to try to work out what their real intention was. (4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. If it cannot be worked out what the intention was regarding ownership of the net equity, the court will decide what is fair. (5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended or fair. Every case will be different with numerous factors to be considered. So what type of things will the court consider when trying to work out what the parties’ common intention was? These include: a. Any advice or discussions at the time of the transfer which cast light upon their intentions then; b. The reasons why the home was acquired in their joint names; c. The purpose for which the home was acquired; d. The nature of the parties’ relationship; e. Whether they had children for whom they both had responsibility to provide a home; f. How the purchase was financed, both initially and subsequently; g. How the parties arranged their finances, whether separately or together or a bit of both; h. How they discharged the outgoings on the property and their other household expenses, but note this does not simply come down to a mathematical comparison: the parties may have contributed as much as they could, based on say their earnings, and in such cases the court can find that they intended to contribute equally even if the actual amounts were very different; Practical advice Despite the list of factors the courts will consider, they nevertheless always tend to emphasise that the starting point is what the official legal ownership is. So, if you are buying a property it is very important to consider carefully with your solicitor how the two of you will own the property legally, in what percentages and to ensure that a clear record is kept. A trust document can be created which specifies precisely how the equitable ownership will be divided and the court will have to follow that provided it was executed properly, so that is the safest method of protection. If you already own a property and there is ambiguity about the legal ownership and/or no trust document for the equitable ownership then unless both parties contributed equally throughout and things are amicable, there could be somewhat of a battle ahead and as such it will be important to have in mind the above factors and preserve any evidence that may assist in arguing for the highest possible share of the net equity. The sooner the legal process has begun the sooner the issue will be resolved. These days parties are under an obligation to consider ADR or “alternative dispute resolution” which means things like mediation in order to reach an amicable settlement without the need for the time and expense of court proceedings. Need help or further advice? Feel free to get in touch on 0161 399 1231 or email@example.com. We offer a free confidential and no-obligation 30 minute initial consultation and will be pleased to meet to discuss things further.
Prenuptial and Postnuptial Agreements
What is a Prenuptial Agreement? A premarital or prenuptial agreement (also known as a pre-nup) is a formal, written agreement between two partners prior to their marriage or civil partnership. It can be a measure of securing their assets before marriage. It sets out ownership of all their belongings (including money, assets and property) and explains how it will be divided in the event of a breakdown of their marriage or civil partnership. This agreement is beneficial for those who have pre-marriage assets. What is a Postnuptial Agreement? A postnuptial agreement (also known as a post-nup) is similar to a prenuptial agreement; the difference being the contract takes place after marriage or civil partnership. The agreement is drawn up during a marriage or a partnership allowing both parties to distribute their assets in the event of a divorce or separation. It gives couples the autonomy to choose what their marriage will look like going forward, and what will happen should it come to an end. Why should I have a Prenuptial or Postnuptial Agreement? Judges in England and Wales have a huge discretion on divorce when dealing with finances. Courts can transfer property and cash sums between spouses and award substantial maintenance to be paid. Prenuptial and postnuptial agreements should be considered in the following types of cases:
- If you would like to be clear about what the financial arrangements will be in the event of a divorce
- If you wish to protect your business interests, trust interests, inherited wealth or assets owned before your marriage
- If you wish to reduce the likelihood of incurring significant legal fees in the event of divorce.
Pre-nups can be particularly useful for those starting a second marriage where for example they want to protect assets brought into the marriage from an earlier relationship, or ensure that such assets can be passed on to children from that relationship. If you are worried about the future of your marriage, postnups can provide financial security, allowing you to focus wholly on working on your relationship. What can be included in a Pre and Post Nuptial Agreement? Both pre-nups and post-nups usually deal with what will happen to the parties’ finances if the relationship were to break down, but it can include anything you want it to, such as who will start the divorce or dissolution proceedings and when. Common things covered in the agreement are:
- What would happen to property either of you brought into the marriage.
- What would happen to the family home
- What would happen to any property given to you or inherited during the marriage
- What would happen to joint assets
- What would happen to your pensions
- How would you deal with debts
- Would either of you pay or receive any maintenance and, if so, for how long
Are Pre and Postnuptial Agreement Legally Binding? As the law currently stands, neither a prenuptial or postnuptial agreement is legally binding in England and Wales. However, the attitude of the Court towards them has changed considerably over the years. If done properly these agreements should be upheld in the future. The Courts in the ground-breaking Supreme Court case of Radmacher v Granatino , found that provided certain factors are met, pre-nuptial agreements should now be considered as virtually determinative. The factors the court will look at are the following:
- The agreement must be freely entered into;
- The parties must have a full appreciation of the implications of the agreement; and
- It must not be unfair to hold the parties to their agreement in the circumstances prevailing.
How can we help? If you are considering entering into a pre or postnuptial agreement it is important to obtain independent legal advice from a family lawyer. In the first instance, we can advise you as to whether it is advisable to have a pre-nup or post-nup and suggest suitable provisions which could be made for your spouse/partner in the event of the breakdown of the marriage or partnership which would be likely to satisfy the court’s requirement. We will then help you to collate and present your financial disclosure and draft the agreement. We are also able to advise the financially weaker party on the effect of a pre-nup instigated by their future spouse on their rights; whether it is to their advantage, financially or otherwise, to enter into the agreement and whether the provisions of the agreement are fair. If appropriate we can negotiate on your behalf with the other party’s solicitor to improve the proposed terms. If you would like to know more about Pre or Postnuptial Agreements or would like advice concerning a Pre or Postnuptial Agreement please contact our specialist team of Family Law Solicitors on 0800 999 6661 or email firstname.lastname@example.org for further help and guidance.
At Aston Knight solicitors we are aware that there are people who are subjected to domestic violence in their homes on an all-too regular basis. Domestic abuse can take the form of emotional, psychological or physical. It can be verbal abuse, harassment, domination and control as well as physical and sexual violence. We also recognise those people who have been subject to allegations of domestic violence and we are able to assist in providing expert legal advice. Whatever your situation, our experienced and dedicated team are able to assist. We assist victims of domestic abuse in quickly obtaining the protection from their partners or ex-partners. If you have been a victim of domestic abuse you may be entitled to apply to the court to prevent any further violent incidents Our experienced family law team are committed to handling matters sensitively and can advise you on:
- What steps should be taken before court proceedings are started
- Action that can be taken by the police
- Urgent with or without notice court applications
- An application to the court for a non-molestation order to prohibit the other party from using or threatening violence, approaching the victim within a certain perimeter of the victim’s home or communicating with the victim.
- An application to the court for an occupation order to exclude the perpetrator from returning to the family home or prohibit the perpetrator from returning to a shared property in the event the parties have already separated, and harassment and/or abuse is continuing post separation.
- Enforcement of court orders
Our team of experienced solicitors will work with you to ensure you feel safe enough to make an application for an Order of the court. We offer appointments on an emergency basis. If you have been the subject of domestic violence or the subject of allegations of domestic violence and have concerns, please contact one of our specialist lawyers to discuss your options on 0800 999 6661.
Marriage and Civil Partnership
What is marriage? Marriage is a formal contract voluntarily entered into between two persons to live together in a relationship for life to the exclusion of all others. Both heterosexual and homosexual couples can get married. It creates obligations on each party to financially support the other. Each spouse also gets home rights to their property. A father who is married to the mother of his child automatically acquires Parental Responsibility for the child whether he marries before or after the child is born. For more information, see our section on Parental Responsibility. A marriage can only be ended by divorce or annulment – for more information see our page on Divorce and Separation. What is civil partnership? Civil partnership is a legal relationship which can be registered by two people of the same-sex who aren’t related to each other. This grants rights, responsibilities and obligations similar to those of married couples. The law is contained in the Civil Partnership Act 2004. Once you have registered a civil partnership, it can only be ended if one of you dies, or by applying to court to bring the partnership to an end. You cannot apply to bring a civil partnership to an end until it has lasted for at least one year. Who is eligible for a civil partnership? In order to enter into a civil partnership:
- both parties must have the capacity to consent;
- both parties must give their true and genuine consent;
- both parties must be of the same sex;
- neither party can already be a civil partner or lawfully married;
- both parties must be over the age of 16, and if under 18, written parental consent is required;
- the parties must not be close blood relatives;
- both parties must have lived in England and Wales for at least seven days.
How do you register a civil partnership? There are two steps to register a civil partnership: 1) give notice of your intention to register a civil partnership to the local register office in person; 2) register the partnership after 28 days and within 12 months of giving notice. You will need to pay a fee to give notice of your intention to register a civil partnership and a registration fee. The fee depends upon where you want to register your civil partnership. You will receive a civil partnership certificate when you register. What is a ‘Civil Partnership Agreement’? Same sex couples can enter into a civil partnership agreement which is the equivalent of an engagement to marry. It is often used to make financial arrangements if the relationship ends. However, the civil partnership agreement does not have contractual effect and parties will not acquire the same rights, responsibilities and obligations as entering into and registering a civil partnership. What rights do civil partners get? Once a civil partnership is entered into and registered, civil partners acquire the same rights and responsibilities as married couples. Civil partners have a mutual duty to maintain each other. A civil partner who is not the biological parent of a child can apply for parental responsibility for the child either by entering into a Parental Responsibility Agreement with the person(s) with parental responsibility or getting a Parental Responsibility Order from the court. For more information see our section on Parental Responsibility. Civil partners can also apply to adopt a child. Civil partners have a duty to provide maintenance for any child of the family and a partner can apply for financial support for a child. Can you convert a civil partnership into a marriage? From 10 December 2014, if your civil partnership has been registered in England and Wales you can convert the civil partnership into a marriage. This can be done through either a standard conversion or a conversion followed by a ceremony. What is a cohabitation agreement? A cohabitation agreement is a written signed document between people living together as a couple which agrees on key matters such as:
- who owns (and owes) what, at the time of the agreement;
- how you will pay for bills, the house and other expenses while you are living together; and
- how property, assets and income should be divided if you split up.
It is advisable to seek independent legal advice when drawing up a cohabitation agreement so that it can be used in any future court proceedings upon relationship breakdown. If you would like legal advice, please do contact one of our experienced Family Law Solicitors on 0800 999 6661.
What is Parental Responsibility? Parental Responsibility in family law is a legal status derived from the Children Act 1989. It is defined in s3(1) Children Act 1989 as being: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. The term ‘Parental Responsibility’ attempts to focus on the parent’s duties towards their child rather than the parent’s rights over their child. If you have parental responsibility for a child or children your most important roles are to:
- Provide a home for the child
- Protect and maintain the child
- Support the child financially
If you have parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them; but the other parent still needs to keep you updated about their well-being and progress. Who has Parental Responsibility?
- Mothers automatically have Parental Responsibility and will not lose it if divorced.
- Married fathers automatically have Parental Responsibility and will not lose it if divorced.
- Unmarried fathers do not automatically have Parental Responsibility.
- Step-fathers and Step-mothers do not automatically have Parental Responsibility.
- Grandparents do not automatically have Parental Responsibility.
How can unmarried fathers obtain Parental Responsibility? An unmarried father can obtain Parental Responsibility by:
- marrying the mother of the child;
- jointly registering the child’s birth with the mother (for births after 1 December 2003) you will automatically gain parental responsibility. It is the date of registration, not the date of birth which is important in determining whether the father has parental responsibility.
- Re-registering the birth for pre December 2003 registrations, to add the father’s details, you will automatically gain
- parental responsibility.
- entering into a Parental Responsibility Agreement with the mother;
- obtaining a Parental Responsibility Order from the court;
- having obtained a Residence Order prior to 22/4/2014;
- being named as the resident parent under a Child Arrangements Order;
- becoming the child’s guardian on the mother’s death.
How can I apply for Parental Responsibility? You will need to be connected to the child/children in some way. This could be as a father, grandparent, step-parent or second male or female parent in a same sex relationship. The easiest way if you are the father wanting to get Parental Responsibility and the mother agrees, is to sign a Parental Responsibility Agreement. Our team of Family Law Solicitors can help you to complete the application form and get it signed off and witnessed at the Family Court. If an agreement cannot be reached, we suggest you contact us for initial legal advice so we can help you apply to the Court to obtain Parental Responsibility. Can I lose Parental Responsibility? If you automatically have Parental Responsibility for a child or children, this cannot be taken away from you unless your child is adopted. However, if you got Parental Responsibility because of a Court Order, your Parental Responsibility will end when the Order is discharged by the Court. If you have any concerns or issues concerning Parental Responsibility, please contact our specialist team of family law solicitors on 0800 666 9991 for further help and guidance.
Child Custody/Child Arrangements Orders
When a relationship breaks down one of the key issues to decide is which parent a child will live with. When parents do not live together, the child will usually live with the mother or father. The parent who has the child live with them most of the time is called the resident parent and the other parent is called the non-resident parent. When the child spends equal time with both parents then the parents are said to have shared residence of the child. If possible, custody should be agreed between both parents. A child can live with either parent after they separate, depending on the child’s best interests. How do we decide where the child shall live? When a child is born the mother and the father (if married or named on the birth certificate registered after 1 December 2003) automatically have Parental responsibility. See our information page on Parental Responsibility for further details. However, Parental Responsibility does not give an automatic right to have a child live with you. Parents should try to decide together which parent the child will live with and how often the non-resident parent should have contact with the child. If parents can decide between themselves then there is no need to take the matter through the court to formalise arrangements. Unmarried parents Ideally parents will agree together where the child is to live. It may be that an unmarried father does not have Parental Responsibility; if this is the case it is advisable to obtain it. Please see our page on Parental Responsibility for more information. Married parents If parents are married but are in the process of divorcing, there is a provision in the divorce proceedings which discusses the arrangements for children called the Statement of Arrangements for children although it is not mandatory to submit this. It is important to be aware that the Statement of Arrangements is not legally binding in the sense of being enforceable in court and parents can agree to vary the living arrangements. It is evidence of intention. Whether the parents were/are married has no relevance to where a child should live. However it may have a bearing on whether the father has Parental Responsibility (see our page on Parental Responsibility). Child Arrangements Orders Child Arrangements Orders replaced Residence and Contact Orders. If the parents cannot agree things between themselves, they can apply to the court for a child arrangements order. An order usually lasts until the child is 16 or exceptionally 18 years old. A child arrangement order decides:
- Where your child lives
- When your child spends time with each parent
- When and what other types of contact take place (phone calls, for example)
Who can apply for a Child Arrangements Order? Anyone with parental responsibility can apply to the court for a child arrangements order. Other people, such as grandparents, may need the court’s permission if they want to apply for an order. The court will decide whether the circumstances justify the potential upset to the child. You can apply for a child arrangement order if you cannot agree child custody and contact rights from the outset. You can also apply for an order if the other parent isn’t complying with a previous agreement or order – for example not allowing you the agreed contact with your child. Specific Issue Order In addition to Child Arrangements Orders, parents may apply under the Children Act 1989 for the Court to decide any specific issue about the child – a Specific Issue Order. A Specific Issue Order is used to look at a specific question about how the child is being brought up, for example:
- What school they go to
- If they should have a religious education
- Whether it is in the child’s best interest to change their surname
- Whether a child should undergo specific medical treatment
A parent may also apply for an order preventing the other parent from taking a particular course of action in relation to the child – a Prohibited Steps Order. Prohibited Steps Order A Prohibited Steps Order may be made against anyone, regardless of whether they have parental responsibility. Prohibited Steps Orders have been used to resolve disputes such as:
- preventing the other parent from removing the child from his or her home
- preventing the other parent from removing the child from his or her school
- preventing the other parent from removing the child from the jurisdiction without consent
- preventing a parent from changing the child’s surname
- stopping a parent from allowing the child to associate with a particular person
It is of course always best to try to avoid court proceedings because the judge can only make an order, but cannot oversee the time a child spends with each parent. It is important to take specialist legal advice in respect of all issues in relation to children. Please contact one of our specialist family law solicitors on 0800 999 6661 or email email@example.com for advice on your specific circumstances.
A child has a right to spend time and have contact with both parents. Contact is the right of the child and not the parent. What is contact? When a relationship breaks down parents will need to reach an agreement on the arrangements for the children. They will need to decide who the child will live with and how often the other parent will see the child. The time the non-resident parent spends with the child is known as contact. Contact between a parent and child can be direct, face-to-face contact, which can include contact during the day or overnight. Contact may also be indirect, such as telephone calls, video phone, emails, letters and gifts. Contact may also be supervised by a named person or in a contact centre. Child arrangement orders A court can regulate contact by way of a child arrangements order. The amount of contact will depend on the child’s age and the practical arrangements. An interim order can be made by the courts pending agreement or final order. This type of contact arrangement is usually on a temporary basis until the matter is settled at a full court hearing. Failing to comply with a child arrangement order amounts to a breach and could result in imprisonment or fine. Who can apply for a child arrangement order? In all contact matters those able to apply are the child’s parents or step-parents, those with Parental Responsibility and the child’s Grandparents. A Child Arrangement Order (previously known as a Contact Order) is a legally binding agreement that specifies:
- Who the child lives with (resident parent)
- Who will have contact with the child
- How often and for how long the contact visits will be
The court will only make an Arrangements Order where they believe it would be better for the child to do so. The family will be allocated a Children and Family Court Advisory and Support Service (Cafcass) officer. The Cafcass officer will work with the family to assess any risks to the children and consider whether a decision can be made through mediation. It is important to take specialist legal advice in respect of all issues in relation to children. Please contact one of our specialist family law solicitors on 0800 999 6661 or email firstname.lastname@example.org for advice on your specific circumstances.
Divorce Financial Matters
In the vast majority of divorce matters the parties will have to deal with financial matters. Sometimes the parties can reach agreement and if so they could agree a draft court order to send to the Court to be looked at by a judge. As long as the judge thinks the draft order is fair to both parties, considering in particular any children and their needs, he or she may approve the order. Although this can sometimes be a cost and time effective way of dealing with the financial matters, on many occasions the parties cannot reach agreement and on some occasions one party will not co-operate or discuss the matter whatsoever, leaving the other with no choice other than to commence legal proceedings in order to resolve this element. It is in fact possible to deal with the financial matters after being legally divorced, if that is the parties’ preference. There are certain risks though in doing this which are a little too detailed for this guide and which we would be happy to advise upon over the telephone or in person, tailored to your individual situation. There have instances in which couples have dealt with the financial matters years after being divorced though in our view this is not to be advised. How judges make their decision if the parties cannot reach agreement: The Court is required to consider the following factors when making a financial order: a) The income, earning capacity, property and other financial resources (irrespective of whose name it is in) which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; c) The standard of living enjoyed by the family before the breakdown of the marriage; d) The age of each party to the marriage and the duration of the marriage; e) Any physical or mental disability of either of the parties to the marriage; f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; g) The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be unfair to ignore it; h) Anything a party will lose by no longer being married (rarely an important factor). Solicitors will refer to the above points in arguing for the best possible settlement for the party they act for. The Process Firstly a court application is made to resolve the financial issues. After the court application the court will list the first court hearing – the “First Directions Appointment” (“FDA”). Before the First Directions Appointment certain steps must be undertaken, such as filing of the “Form E”. Both parties must send a Form E to both the court and each other. Each Form E will list all of each party’s finances, in significant detail. The parties are required to exchange Form Es before the FDA, which means there is then a chance to scrutinise the other party’s document to ensure it is fully complete. If there are parts we are not satisfied with we can prepare a questionnaire to tease out potentially concealed assets. Normally the First Directions Appointment will be used to set a timetable leading up to a Final Dispute Resolution hearing (“FDR”). At the FDA the court will consider what further evidence or information is needed to get to the FDR, such as a property valuation, pension calculation etc. At the FDR hearing the judge will give guidance as to what the most appropriate settlement appears to be in his or her view. Both parties will be encouraged to negotiate a settlement in order to avoid a final court hearing. If for whatever reason an amicable agreement cannot be reached the court can either set a further timetable or simply just a final hearing. It might sound a little odd to think of a judge discussing potential settlement with the parties but remember that some divorces can be very complex with multiple properties, both in the UK and abroad, children (potentially from previous marriages), and many other high value assets. It can therefore help to have the views of an experienced judge. If the parties still cannot reach settlement though then the matter will instead proceed to a Final Hearing. The Final Hearing is a court hearing in which the parties will argue their cases as to what they should receive and why. The hearing is heard by a different judge than the FDR, as the judge at the Final Hearing cannot know what the previous judge’s views were. Due to the time and costs involved not many cases reach a Final Hearing but if they do, a judge will hear all the evidence and then apply the criteria listed above. The decision will be binding, so there is always risk that the judge will make a decision worse for you that can be negotiated, which is why the majority of cases are settled without a Final Hearing, as a Final Hearing can often prove to be an expensive way of reaching an agreement the parties could have reached themselves. Remember, cases can settle at any time, even on the day of a court hearing. What if one party will not co-operate? This happens from time-to-time. In situations of total non-co-operation what sometimes happens is that at the FDA hearing (the first court hearing which should be used to consider each party’s list of financial assets and then agree a court timetable) the judge will give the un-co-operative party one last chance to complete and send their Form E (detailed list of financial assets and liabilities – please see above) and order that the party may actually be sent to prison if they do not co-operate. This threat is often enough to force the other party to start co-operating and things can then get back on track but sometimes not even that is enough and so if the matter comes back to the rescheduled FDA hearing, and the other party has still not co-operated (whether they have been imprisoned or not), the judge will sometimes use that hearing as a Final Hearing and simply make a final decision. The un-co-operative party still has a chance to appeal, as they may find the judge makes an order they consider to be unfair to them, but they must act quickly or the chance will be lost. It is therefore crucial to comply with court orders at every stage of the process or a party might find themselves facing a division of the assets they consider to be very unfair to them. Although in divorce proceedings the general rule is that each party will pay their own legal fees, the court can consider the actions of both parties during the case and if one party has not co-operated the judge may order that party to pay the other’s legal fees. A clean break versus ongoing payments Aside from child maintenance, which is dealt with via Government agencies, and which the Court does not usually involve itself with, one party may require ongoing payments from another. Say for example a mother gave up work and with it a pension, for many decades, whilst the father/husband continued to progress in a good job reaping increasing benefits such as salary, pension and others, would it be fair just to divide the current assets such as the family home? Probably not – whilst one party could take a larger share, being so far behind the other leaves the party who gave up work facing a difficult future: how long will the money they have last? Why should they struggle for potentially many years on a state pension whilst the party who remained in work enjoys a generous private pension and can perhaps retire earlier, with a much greater standard of living? For this reason it is always crucial to consider not just a division of current assets, such as the house, cars etc but both parties’ likely futures and the need to ensure they can both enjoy an equal future (remember, equality is the starting point for many judges). Pension sharing orders can be made therefore together with ongoing maintenance payments (apart from child maintenance which does not form part of the court process generally (there are some exceptions which are beyond this guide)). However, there are still occasions, say where parties have not been married long, where they both want a total and final separation with no ongoing liabilities to the other; this is known as a “clean break”. Judges will often question a clean break to ensure both parties are aware they may be giving up substantial future monies from the other, and some law firms in the past have been held to be negligent for not adequately advising their clients about the risks in giving up part of the other party’s pension. How much will it cost? This is always tricky as no two matters are the same: financial proceedings with practically no assets and not much room for disagreement may cost only a few thousand pounds in total, including court fees and the barrister. Proceedings with multiple properties and high value assets generally, and many areas of dispute, can cost tens of thousands of pounds. In most cases the parties are expected to mediate first which is a form of formal negotiation, to try to reach a settlement early without going into court proceedings. This can therefore provide an opportunity to reduce costs but if there are high value assets, and one party will not adopt a reasonable stance, then it may then be overall worthwhile to begin court proceedings as the settlement reached will be permanent so it is critical a fair outcome is reached. Why Aston Knight Solicitors? Aston Knight Solicitors are a niche specialist litigation firm who have strong ties with the leading barristers and expert witnesses in the legal industry. Whilst the traditional approach of most law firms is to practise as many areas of law as possible – the “high street” model – our approach rather has always been to focus only upon a handful of areas of practise but to do so at the very highest level nationally. We fight our clients’ cases robustly and pride ourselves on the settlements we recover for clients and the continued recommendations and repeat instructions this yields. Despite our specialist approach, we maintain competitive and fair fees for the work we do. Want to know more? The process can often sound like a daunting one and we appreciate it often comes at one of the most difficult periods of a client’s life. Remember that we are always on your side and here to help you along the journey. We are always happy to discuss matters informally at the outset and so please feel free to telephone us on 0800 999 6661 or use our secure contact form