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My husband and I are separated. He continually texts and calls me. When I do not reply he calls my work, family and friends. Can I do anything to stop this behaviour? |
You may consider applying for a non-molestation order. A non-molestation order stops the person
against whom the order has been taken out (the respondent) molesting a person who is associated with the respondent, or a relevant child. The order can be applied for by someone associated with the respondent.
You are associated with the respondent if any of the following circumstances apply:
1. You are or have been married;
2. You are or have been civil partners;
3. You are cohabitants or former cohabitants;
4. You live in the same household (other than by reason of tenant, lodger, border, employee);
5. You are relatives;
6. You have agreed to marry or form a civil partnership;
7. You have had an intimate relationship of significant duration;
8. You are both the parent of a child; or
9. You are parties to the same family proceedings. Molestation is not specifically defined but has been interpreted very widely by the Court, so that it
encompasses a range of behaviours from violence and threats to nuisance calls. It is essentially any behaviour capable of annoying, harassing or pestering a person.
The Court will grant a non-molestation order if, having regard to all the circumstances of the case, it judges that an order should be made. This includes the need to secure the health, safety and well-being of the applicant or any relevant child.
The health of the applicant includes both the physical and mental health of the applicant. It is,
therefore, likely that you would be able to secure a non-molestation order against your husband.
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My ex-partner has made several threats of violence towards me and has told me he will come to my house tomorrow with a knife to hurt me. I don’t want to make a Court application because I think that will make him even angrier. What can I do? |
You can make an emergency application for a non-molestation order. This will mean that your ex-partner is not told of the application (it is called a without notice application). The Court may make a non-molestation order in any case where it considers it just and convenient to do so.
In determining whether or not to make an order, the Court will have regard to all the circumstances of the case, including the following:
1. Any risk of significant harm to the applicant or relevant child, attributable to the conduct of
the respondent if the order is not made immediately;
2. Whether it is likely that the applicant will be deterred or prevented from pursuing the
application if an order is not made immediately; and
3. Whether there is reason to believe the respondent is aware of the proceedings and evading
service.
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What protection will a non-molestation order give me? |
The respondent will be prevented from carrying out the behaviour described in the non-molestation order. Usually, the order is worded widely – for example, preventing the respondent from ‘harassing, pestering or molesting’ the applicant. It is now a criminal offence to breach a non-molestation order. Therefore, if the respondent does do something that constitutes pestering, harassing or molesting you, he will be arrested immediately. However, this is only the case if the
respondent knows of the order. For this reason, if an order is granted ‘without notice’, it is
important that it is served on the respondent as soon as possible.
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What happens if my spouse refuses to agree to a split of the finances? |
Unfortunately, it is not always possible to agree on the division of the finances. This happens in
approximately 15% of our cases. In these cases, an application is made to the Court, which sets
down a timetable leading up to a first hearing (the first appointment). These directions include the exchanging of financial disclosure by way of a financial statement (form E) and setting out the
issues in dispute.
At the first appointment, the judge determines what else needs to be done before the case proceeds to trial. They may give a preliminary indication on the merits of a spouse’s adopted stance and may also seek to mediate the impasse or ask the parties to retire to an adjacent room to negotiate.
Usually, at least one further hearing will be necessary before the trial (the final hearing) can take
place.
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My partner is threatening to take our children to another country. How can I prevent it? |
If your partner wishes to remove your child from the country, the Court’s permission must be
obtained unless everyone with parental responsibility for the child consents to the removal. If you
are afraid that your partner may simply take the child, you should apply for a prohibited steps order.
A prohibited steps order prevents someone with parental responsibility from taking decisions about
their child’s life and can be used to prevent them removing the child from the country. The child
must be under 16 and the person applying for the order must have parental responsibility. A
prohibited steps order can be applied for on its own or in conjunction with a contact or residence
order. If a prohibited steps order is made, you may also require the passport agency not to issue a
UK passport for the child. If your partner holds your child’s passport, the Court can require that
they surrender it. If you believe that your child is in imminent danger of being removed, you may
issue a port alert. If the police are satisfied that the danger is real, the child’s name and details are
circulated on a stop list to all airports and ferry ports. The child’s details will remain on the list for 4
weeks.
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What is a divorce? |
A divorce is the legal dissolution of a marriage. It does not include an order for the split of the
matrimonial finances, nor does it include arrangements for the children. The divorce suit merely
cancels the marriage.
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I have been married for 6 months, can I get a divorce? |
Unless the marriage is void or voidable, it is not possible to obtain a divorce if you have been
married for less than a year.
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Can I start the divorce? |
The divorce starts when a divorce petition is issued. The spouse who issues the petition is known as
the petitioner. The spouse who receives the petition is known as the respondent. To petition for
divorce, you will need to show that the marriage has irretrievably broken down. There are several
‘facts’ a petitioner can use to demonstrate this. These can effectively be split into ‘non-adversarial’
and ‘adversarial’ facts.
To petition on a non-adversarial basis a spouse must show that they have been separated from their
partner for at least two years immediately before the petition is presented to the Court. This ground
requires the consent of the other spouse. If, however, the respondent refuses to give consent, the
petitioner is left with the choice of either proceeding with the divorce on an adversarial basis or
waiting for a 5 year period. The second non-adversarial fact that can demonstrate that the marriage
has broken down irretrievably is that the petitioner has been separated from their partner for at least
5 years immediately before the petition is presented. This does not require the spouse’s consent.
To petition on an adversarial basis, the petitioner must provide evidence either that their spouse has
committed adultery and that the petitioner finds it intolerable to continue living with them or that
the marriage has irretrievably broken down due to the unreasonable behaviour of the respondent.
To petition on adultery, either the petitioner must provide evidence that their spouse has committed
adultery or their spouse has to admit it. A petitioner cannot rely on their own adultery.
To petition on the ground of unreasonable behaviour, the petitioner must show that the marriage has
irretrievably broken down due to the actions of the respondent. Unreasonable behaviour is widely
defined and can include a breakdown of communications, lack of marital relations, no longer living
together and causing illness and general upset. As a general rule, the petitioner must provide
between 1 and 6 examples of the respondent’s unreasonable behaviour. These would generally
include the first, worst and last examples, although each case turns on its own particular facts.
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If my spouse does not want a divorce but I do, can I still petition for divorce? |
Protocol in divorce cases suggests that the petition be agreed before it is lodged with the Court.
Usually, we would advise sending a draft petition to your spouse or their solicitor before instigating
divorce proceedings. This complies with the Family Proceedings Rules. If no response is received
within 14 days, you can commence divorce proceedings, irrespective of agreement being reached.
The reasoning behind attempting to agree the divorce petition beforehand is to reduce the chance of
surprises and of the divorce being defended.
It is possible to petition for divorce without first warning your spouse. However, there are potential
cost consequences in taking such unilateral action, and the reasons for failing to adhere to the
Family Proceedings Rules should be discussed with your lawyer first.
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What is the divorce process? |
The process from beginning to end follows a strict sequence of events. The petition is lodged with
the Court, which forwards it to the respondent. As well as the petition, the respondent receives a
divorce pack including an acknowledgment of service form, which is completed with the aid of a
lawyer and then returned to Court. On receipt, the same form is sent to the petitioner, who drafts
and swears an affidavit confirming that the contents of the petition are true and files the affidavit
with the Court, together with a request for the decree nisi to be pronounced.
6 weeks after the pronouncement of the decree nisi, the petitioner can apply for the decree absolute
and finalise the divorce. The respondent cannot apply for the decree absolute until 4 ½
months have passed from the date of the decree nisi, and then only with the Court’s permission.
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How long does it take to get a divorce? |
Without obtaining an order for the matrimonial finances, it usually takes between 6 and 9 months to
obtain a divorce. The speed with which you arrive at the decree absolute depends on the workload
of the Court as well as the time it takes for the spouses to deal with potentially difficult issues.
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Do I have to go to Court to obtain a divorce? |
To obtain the divorce itself, it is highly unlikely that you will need to go to Court, provided the
divorce is not defended and you each have legal representation.
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How much does it cost? |
Each divorce is different. At Davies Solicitors, we do not operate on a one size fits all basis. As a
consequence, each client’s fee will depend on the unique circumstances of their case.
To help our clients, we operate fixed fee representation, hourly rate representation and monthly
payments.
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Am I eligible for legal aid? |
Please click the link to go through to the Community Legal Services calculator.
Unfortunately we are a not a “legal aid” practice and will be unable to assist you should you need public funding.
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How much child support do I need to pay? |
Please click the link to go through to the Child Support Agency child maintenance calculator.
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Do I need to obtain a financial order as part of my divorce? |
Whilst it is not necessary to deal with the matrimonial finances in order to obtain a divorce, we
strongly advise that you do so. If a couple fail to obtain an order in respect of the matrimonial
finances, either party could have a future claim against the other for the rest of his/her respective
life. Indeed, on the first death, the surviving party could make a claim against the estate of the
deceased. If you remarry, you may lose your chance to claim against your ex-spouse.
Furthermore, it is far easier to deal with the finances at the time of the divorce rather than trying to
piece together what the financial position may have been should either spouse go on to seek a
financial order at a later stage. Indeed, the Court will take the starting point for any financial order
as the state of the finances at the time the Court is called upon to make the order. This means that if
you were to seek a financial order some ten years after obtaining the decree absolute, the Court will
take into account all the earnings and financial developments that have occurred during that extra
10 year period when making the order. This means that if, for example, you won the lottery in the
intervening years, your ex-spouse might be able to claim a proportion of your winnings, despite the
fact that they were no longer married to you at the time.
Usually, therefore, a divorce also includes the division of the matrimonial assets to provide a financial ‘package’ for each spouse.
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What am I potentially entitled to as part of a financial order? |
The division of the matrimonial assets is governed by Section 25 of the Matrimonial Causes Act
1973. When considering how matrimonial assets should be divided, it is necessary to take account
of all the facts of the particular circumstances.
Matters that the Court may have regard to in approving the consent order include the following:
1. The income, earning capacity, property and financial resources of the parties, both at the
time of the order and in the foreseeable future, and any earning capacity that the Court feels
it would be reasonable to acquire;
2. The financial needs, obligations and responsibilities of the parties;
3. The standard of living enjoyed by the family;
4. The duration of the marriage and age of the parties;
5. Any physical or mental disabilities;
6. The contribution made by both parties during the marriage including looking after the home,
caring for children and paid employment;
7. The conduct of each of the parties, if that conduct is such that, in the opinion of the Court, it
would be inequitable to disregard it;
8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties
to the marriage of any benefit which, by reason of dissolution of annulment of the marriage,
that party will miss the chance of acquiring (such as a share of pension rights).
The circumstances of a particular case will determine which of the above factors will take priority.
The Court is under a duty to consider whether it is appropriate to exercise its power such that a
clean break can be achieved as soon as is just and reasonable. This also requires the Court to
consider whether it is appropriate to order periodical payments only for a specified period, to enable
the recipient to adjust to the breakdown of the marriage without undue hardship.
Everything that each of the parties owns or is entitled to individually or jointly, whether acquired
before the marriage or during it, forms part of the matrimonial pot. The fact that an asset is in a
party’s sole name will not prevent it from potentially forming part of the financial settlement.
It is not possible at the beginning of a case to provide any detailed advice with regard to the division
of the matrimonial assets between spouses. Only once full disclosure has been received will this be
possible. With the emphasis being on the children, the outlook can be quite bleak for non-resident
parents.
Each spouse is asked to complete a financial statement (form E). This is exceptionally lengthy and
detailed and forms the basis of the disclosure between the spouses. The form serves as a good
prompt of all the areas that the Court will need to consider if the matter cannot be agreed. Indeed,
the completion of this form is obligatory if the matter is to be placed before the Court. The form
provides a comprehensive account of each spouse’s income and outgoings and is therefore the basis
of any sensible agreement. It also provides an opportunity for either spouse to challenge the other’s
needs and outgoings.
The guiding principle set out in the 2000 case of White v White is that matrimonial assets should be
equally divided on divorce. Like any presumption, however, the principle of the equal division of
assets is capable of rebuttal and we will be able to discuss this with you. However, it is important to
note that when considering offers made by spouses in settlement of the matrimonial finances on
divorce, the Court will make its decision on the basis of ‘needs’ not ‘wishes’. The Court aims to
preserve the lifestyle of each spouse as far as possible, but this is rarely achievable. It is an
unfortunate fact of divorce that the assets that previously supported one household must now
support two households, and this tends to involve a drop in the living standards of both spouses.
There is also the issue of general maintenance, which may be payable by one spouse to the other.
Provided there are sufficient assets for each spouse to support themselves independently, the Court
is obliged to consider a clean break and will encourage couples to agree to this whenever possible.
A clean break order puts into legally binding effect the terms of the financial agreement between
the parties and usually involves the payment of a lump sum by one party to the other. If one party is
willing to agree to a financial arrangement but the other is not, this can affect the settlement that the
unwilling party will be awarded. The Court places great emphasis on settlement in the legal process
generally, and particularly in divorce. As a general rule, therefore, a spouse who unreasonably
refuses a settlement offer and is subsequently awarded a lesser financial ‘package’ in a final hearing
may be required to contribute to the other party’s costs. There are specific rules governing the
payment of these costs; a successful party at Court may typically expect to be reimbursed between
60% and 80% of their costs, but not the full 100%. In the event that an agreement can be reached,
however, spouses may be able to agree costs. In most cases, each party will agree to bear their own
costs in a negotiated settlement.
A financial order related to divorce usually takes effect from the date of the decree absolute and not
before, although arrangements may be made for the interim period in exceptional circumstances.
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What is parental responsibility? |
Parental responsibility is defined as all the rights, duties, powers, responsibilities and authority
which by law a parent of a child has in relation to the child and their property. In reality, this means
that you are responsible for important decisions in the life of your child - for example those
concerning education, religion and medical care as well as day-to-day decisions.
Fathers are not automatically entitled to parental responsibility unless they were married to the
mother at the time of the child’s birth or after the birth of the child or, in the case of not being
married at that time, they signed the birth certificate. More than one person can have parental
responsibility and s.2(7) of the Children Act 1989 provides that each person with parental
responsibility may act alone or without the other in meeting that responsibility.
The only restrictions placed on parental responsibility are that one parent cannot remove a child
from the United Kingdom without the consent of the other parent or person with parental
responsibility and the agreement of all parties must be obtained before a child can be placed for
adoption, were this situation ever to arise. Furthermore, it has been held by the Court of Appeal in
Re G (Parental Responsibility: Education) [1994] that every parent with parental responsibility
must be consulted before any other person with parental responsibility makes an important decision
regarding the life of the child - for example, changing schools.
There are also a small number of decisions where, if there is a disagreement between the parties, the
matter must be referred to the Court. Such situations include irreversible medical treatment, change
of name and change of habitual residence.
A person who has parental responsibility for a child will not cease to have responsibility simply
because someone else acquires it - for example, in the case of a step-parent. Parental responsibility
will only cease on the child attaining the age of 18 or being adopted.
Parental responsibility has nothing to do with where the child lives. Furthermore, it has nothing to
do with whether a father or mother has contact with the child. Parental responsibility enables
parents to know important things about their children’s welfare and education as well as being able
to have an input into the child’s life. This does not mean that the person’s input has to be acted
upon. It does mean, however, that in the event that a parent’s input is not acted upon and he or she
feels sufficiently strongly about it, that parent can ask the Court to intervene to decide what the
correct course of action should be.
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If both parents agree the arrangements for their children, does the Court need to be involved? |
Provided the Court is able to see that the arrangements are not in dispute, the Court will not
interfere in the current contact arrangements unless these place an undue burden on the child. This
is because the Court approaches contact from the point of view that no contact order should be
made unless it is strictly necessary - i.e. the Court will not make an order unless it considers that
doing so will be better for the child than not doing so. Therefore, the presumption is that no contact
order shall be made unless it is necessary and in the best interests of the child.
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My circumstances have changed and I need an increase in maintenance from my ex-spouse. Is this
possible? |
Section 31 of the Matrimonial Causes Act 1973 provides that an order for periodical payments may
be varied.
The factors that the Court will take into account when considering whether to vary an order are set
down in section 31 (7) of the Matrimonial Causes Act 1973. In exercising the powers conferred by
this section, the Court shall have regard to all the circumstances of the case, with first consideration
being given to the welfare of any child of the family. The Court will also have regard to all the
factors which it was required to consider when making the order, such as the financial needs and
obligations of the parties and the income, outgoings and any financial liabilities the parties may
have in the foreseeable future.
The application must follow the prescribed format of form D11 and be accompanied by a statement
of evidence in support of your application, as well as by a draft of the order you wish the Court to
make.
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How do I enforce a financial order? |
Provided the financial order states that the parties have liberty to apply with regard to the
implementation and timing of the terms of the consent order, you can apply to bring the matter back
to Court.
A judge will consider the application and supporting evidence given in the prescribed format of
form D11. The judge will then decide whether, from the evidence presented with your application, a
hearing is required. The vast majority of applications will require a hearing. The application in the
form and the supporting evidence will then be served upon the ex-spouse and a date for a hearing, if
one is required, will be set down by the Court.
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I can’t get legal aid and my spouse will not give me any money for a divorce. How can I finance my divorce? |
There is the possibility of making an application for maintenance pending suit. If this is successful,
your spouse will be ordered to pay a set amount to you each month for such a term as the Court
thinks reasonable. In order to apply for maintenance pending suit, a specific need in the form of a
budget will need to be demonstrated.
The budget and other such documentary evidence is submitted to the Court. The judge will not only
have regard to this evidence but also to whether it would be fair and reasonable to make the order.
If the judge decides in your favour, they will set the period for which you are to receive
maintenance and the sum that you are to receive.
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What is a MIAM? |
Since April 2011, couples wishing to divorce cannot simply issue Court proceedings. They must
first attend a mediation information and assessment meeting (MIAM). Their case is then assessed
for its suitability for mediation. Only if their case is found to be unsuitable for mediation will they
be able to issue Court proceedings.
During the MIAM, you will discuss with the mediator whether your case is suitable for mediation.
Your case will not be suitable if your spouse is refusing to attend.
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Why mediate? |
Mediation is a voluntary process in which both the parties enlist the help of a mediator to assist
them to resolve areas of dispute between them. The mediator, usually a lawyer, is neutral and
merely facilitates the agreement. The mediator does not decide whether anyone is right or wrong
and will not put forward ideas.
During family mediations, the parties’ lawyers are not present. Several mediation sessions of about
1 hour in length usually take place over a month or two. Once agreement has been reached, this is
documented and given to the parties’ lawyers to advise on.
Mediation can result in amicable agreements being reached at lower cost than would otherwise have
been the case. It is not suitable, however, in circumstances where there is abuse or a very dominant
partner. In view of the fact that lawyers are not present and the mediator is unable to make
suggestions or say what a Court would award if asked, there is the possibility that an unfair or
inappropriate agreement could be reached. Whilst lawyers are involved at the end of the process to
give advice on the terms of the agreement, it is difficult to unpick an agreement to make it fair after
it has been reached, because one party inevitably feels highly aggrieved. Consequently, we suggest
that advice is taken from a lawyer before you enter into the mediation process, and between
mediation sessions.
Mediation can be undertaken for any dispute. Usually it is useful in the areas of resolving financial
disputes and disputes involving children.
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What is collaborative law? |
Collaborative law is a voluntary dispute resolution process originally developed by family law
practitioners in the USA who had become disenchanted with the traditional style of litigation.
Often, Court battles became so bitter and destructive that wounds between the parties never healed.
Whilst we have developed a more conciliatory approach to the divorce process in England and
Wales, it is acknowledged that whenever a family dispute ends up in Court, everyone involved is
likely to suffer, including the children.
In an effort to alleviate the emotional scars and financial hardships of divorcing couples insofar as
possible, the collaborative process was born. Alternative Dispute Resolution Group believes the
same principles that have preserved the integrity and dignity of families can also bring relief to
individuals and/or entities having legal disputes in other areas of the law, particularly in the civil
and commercial sectors.
The purpose of collaboration is not to take advantage of the other party but to resolve a dispute in a
manner that is beneficial to all concerned. It is not about scoring points but about resolving matters
fairly and amicably.
In this collaborative process, the family lawyers and their clients enter into a written agreement to
reach settlement without Court involvement, and to treat each other with respect throughout the
process. They agree to work together to resolve issues relating to children and financial issues
arising out of the separation. In addition, they may enlist other experts, such as child specialists, as
part of the team. Utilising their skills in client representation, negotiation and problem-solving,
collaborative family lawyers help their clients shape a fair agreement.
Relationship breakdown will inevitably involve financial and emotional costs. The benefits of
collaborative family law help to minimise those costs for all concerned.
The collaboration process is as follows:
• You and your partner agree with your lawyers to resolve issues without going to Court;
• Settlement is reached in '4-way' face-to-face meetings (2 of you and 2 lawyers). Breaks are
taken in the meetings as required by either party;
• All information and disclosure is provided in the collaborative process; and
• You remain in control of the process but with your lawyers present throughout to provide
legal advice and guidance.
If no settlement can be reached, new lawyers will have to be instructed for Court proceedings.
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What is a deed of separation? |
Some couples prefer not to obtain a divorce immediately after the break-up of their marriage and
prefer instead to merely separate. Separation is a purely voluntary arrangement, not a formal legal process. Legally, you remain married and you cannot have a Court order to determine your finances during this period unless the order also deals with arrangements for children.
If a couple is merely wishing to separate and not divorce, or waiting for a period before obtaining a divorce so as not to have to cite one of the adversarial grounds for divorce, we advise entering into a deed of separation. This establishes the ‘point of separation’ for any future divorce petition based on separation, and any financial arrangements contained in the deed of separation take effect from the date the deed is signed. A date of separation itself can also be ‘backdated’ to a point agreed between the spouses provided it can be proven if challenged by the Court.
Whilst a deed of separation is not legally binding unless all the criteria set out in the 2010 case of
Radmacher v Granatino have been adhered to, in the event that you do later divorce, it will usually be regarded as persuasive – that is, something the Court may take into account if it is called upon to decide the divorce settlement. A deed of separation also sets out who owned what property at the time of separation, so in the event, for example, that you do decide to divorce and your spouse appears to have disposed of property referred to in the deed of separation, it may persuade a Court to order your spouse to account for the property. You should also note that the Court can disregard the deed of separation completely. The deed may also form the basis of a financial order if you and your spouse agree a financial settlement upon divorce.
You cannot force a deed of separation upon your spouse. If you want to force a split of the marital
assets, you will need to petition for divorce. In the event that you cannot come to a financial
arrangement with your spouse, you will have to rely on the judgment of the Court, with no
guarantee that it will find in your favour.
A divorce will ultimately provide you with more protection than is afforded by separation alone and is the only way to force a disclosure and division of the marital assets.
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My spouse owns our home in his sole name. I am worried that he may attempt to sell/remortgage it without my knowledge. Can I do anything to protect myself? |
Yes. The Family Law Act 1996 gives you a means of protecting your rights of occupation in respect of your matrimonial home. If your home is, was or was intended to be the matrimonial home and your spouse is entitled to reside their as the sole owner, your rights take effect as a charge on your spouse’s interest in the home. This can be done by registering a restriction against the property at the land registry. This is known as a matrimonial home rights notice. This notice ensures that a potential mortgagee or purchaser cannot force you out of your home. The way in which you protect your interest will differ depending on how your spouse owns your home and whether it is registered. You must find this out before registering a notice. If the notice is improperly registered, it will not protect you.
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How long will it take to obtain the decree absolute in my divorce? |
The decree absolute is the final decree and legally terminates your marriage. The length of time it
takes to obtain a decree absolute varies in each case. In a straightforward divorce with no issues
regarding children or finances, it can take as little as 6 months. If there is any dispute regarding
children or finances, it is more likely to take 18 months.
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I have been living with my partner for more than 10 years, but we are not married. Do we have the same rights as a married couple? |
No. There is a persistent myth that once a couple have been living together for a period of years
they gain the same rights as a married couple. This is often referred to as a ‘common law marriage’. There is no such thing as a common law wife or husband. You must be married before home rights accrue or a financial order can be made with regard to assets such as pensions and savings or a right to maintenance. You may have rights under property or trust law, but this is complex, uncertain and can be expensive to litigate.
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Will I need to attend Court to obtain a divorce? |
Ordinarily, you will not. The divorce process is usually a paper based exercise. You may, however,
be required to attend Court if your spouse wishes to defend the divorce, or if you are seeking the
costs of the divorce from your spouse and they oppose this.
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Will I need to attend Court to obtain a financial order? |
Not necessarily. If it is possible for you and your spouse to agree the split of the matrimonial
finances through methods such as negotiation or mediation, you can embody this agreement in a
consent order. So long as the judge approves the consent order (which they are likely to do if both
parties have had independent legal advice and are aware of the consequences of making the order)
there is no need to attend Court.
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My children live with me and see my ex-partner every other weekend and one day during the week.
We are all happy with this arrangement, but I am worried that my ex-partner will not stick to it. Is
there anything I can do now? |
When it comes to issuing court orders regarding children, the Court has a ‘no order principle’. This
means that there must be something in the order itself or in the operation of the order that will
improve the child’s life, otherwise no order will be made. Consequently, if the arrangement is
working well at the moment, a Court will not interfere. You may wish to consider something called
a parenting agreement. This is an agreement which embodies the arrangements parents have come
to with regard to the care of their children. It is not legally enforceable, but does give the parents
something to adhere to. If the arrangements break down in future, it can also be used to show the
parents’ intentions with regards to the care of their children.
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My ex-spouse and I are currently arguing over where our child should live. The child wishes to stay
with me. At what age are the child’s views taken into account? |
With issues such as this, the best interests of the child are paramount. The child’s best interests
include where they want to live. Therefore, the child’s wishes and feelings will always be taken into
account. The child’s view will be given more or less weight by the Court in light of their age and
understanding. The child’s views tend to have a significant weight on the Court’s decision from the
age of 11. This is, of course, dependant on the individual child.
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What factors will the Court take into account when deciding the split of the matrimonial finances? |
The judge will look at the welfare of any minor child of the family and all the circumstances of your
case, specifically the factors set out in section 25 of the Matrimonial Causes Act 1973. These are:
1. The financial resources, income and earning capacity of each party;
2. The financial needs, obligations and responsibilities;
3. The contributions of both parties;
4. The age of both parties and the duration of the marriage;
5. The standard of living;
6. Any physical or mental disability;
7. Conduct; and
8. The value of any benefit that each party will lose due to divorce.
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What factors will the Court take into account when deciding who my child will live with? |
The factors the Court will take into account are as follows:
1. The ascertainable wishes and feelings of the child in light of their age and understanding;
2. The educational, physical and emotional needs of the child;
3. The age, sex and background of the child;
4. Any potential harm to the child;
5. The ability of each of the parents to the meet the child’s needs;
6. The likely effect of change on the child; and
7. The range of powers available to the Court.
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What types of order are available on divorce? |
The types of order available are set out in the Matrimonial Causes Act 1973 sections 23 - 25 and
include:
1. Property orders (transfer of matrimonial home from one spouse to another, sale of
matrimonial home etc.);
2. Lump sum payment orders;
3. Periodical payments; and
4. Pension sharing and attachment orders.
It is also possible for a Court to make child maintenance orders, although this is now largely dealt
with by the Child Support Agency. A Court will usually only make such an order if it is agreed by
the parties.
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My husband and I got married abroad. Can we get divorced in England? |
It does not matter where you got married or what nationality you and your husband are. You will be
able to get a divorce in England if you habitually reside in England or Wales. This means that you
are settled living in England or Wales.
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Can I change my children’s surname without my ex-partner’s consent? |
Any application to change a child’s (person under the age of 18) surname by deed poll must be
supported by the written consent of every person with parental responsibility for the child or by
leave of the Court. Parental responsibility refers to the rights, duties, powers, responsibilities and
authority that by law a parent has in regard to a child. All mothers are automatically awarded
parental responsibility at the birth of their child. All married fathers are also automatically awarded
parental responsibility. Unmarried fathers gain parental responsibility if they are named on the birth
certificate and their child was born after 2003. If your ex-partner will not agree to a change of your
children’s surname, you must make an application to the Court. The Court views the change of a
child’s surname as a very profound matter and will therefore require good evidence as to why a
change is necessary.
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Who will pay my legal fees if my case goes to trial? |
If you are not eligible for legal aid, you will pay your own fees if your case goes to trial. It may be
possible to apply to the Court for maintenance pending suit, whereby the other party pays a
contribution towards your costs. You would need to show the Court that you had a need for the
maintenance by means of a budget and other documentary evidence. The judge then makes a
decision, based on all the evidence, as to whether or not it is fair and reasonable to grant
maintenance. You may also be able to seek to recover some of your costs from the other party at the
conclusion of your final hearing. However, it is not guaranteed that you will be awarded any of your
costs; and if you are, it is very unlikely you will be awarded your full costs.
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My ex-partner will not let me see my children. What can I do? |
There are several ways in which you can facilitate contact with your child. It if often found that a
contact agreement entered into by the parties rather than imposed on them works better. For this
reason, the Court prefers and continually encourages the parents to reach an agreement over contact
arrangements without the involvement of the Court. You may arrange contact via a mediator, if
your partner is willing to attend mediation. You may also come to an agreement regarding contact
through negotiations between solicitors. If neither of these approaches work, you may make an
application to the Court for a contact order. It is viewed as the right of the child to have contact with
both parents. It is, therefore, very likely that you will be awarded some type of contact with your
children. Both you and your ex-partner, as well as both of your solicitors if you are represented, will
need to attend Court. It is only if the parties cannot agree at this stage that the Court will get
involved, usually setting some contact which is then reviewed in 3-6 months.
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My spouse is divorcing me. What can I do? |
Your spouse does not need your consent to obtain a divorce. According to pre-action protocols
surrounding divorce, your spouse should attempt to agree the contents of the petition with you
before it is filed at Court. If you cannot agree or do not wish to divorce your spouse, you can defend
the divorce or cross petition. Defending a divorce is very rare nowadays. If you are in agreement
that the marriage is over, there is little point in defending the divorce as it is both time consuming
and costly and success will only produce a result which you do not want - i.e. you will still be
married. Cross petitioning also complicates matters. It is often more effective to agree to the divorce
but dispute the truth of the grounds stated in the petition. The petition is a private document. Only
you, your spouse, your solicitors and the judge need ever see it.
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My partner is refusing to leave the home and it is upsetting the children. |
If your partner refuses to leave the family home, you may apply to the Court for an occupation
order. An occupation order can exclude a person who has a legal right to reside in the home from
entering it. You must be associated with the person against whom the occupation order is made (if
you are co-habitants or married then you are associated). The home must also be, have been at any
time or have been intended to be the home of you and the person you are associated with. Normally,
you or your partner must also have a right to occupy the home - e.g. be the owner or tenant,
although in exceptional cases it is possible to apply for an occupation order where neither party has
the right to occupy the home.
Due to the fact that the Court will be removing a legal right of a person, there are strict tests that
have to be met before an occupation order is granted. These tests differ depending on what rights
you have to occupy the home. However the Court will always consider the following:
1. The housing needs and housing resources of both parties and any relevant child;
2. The financial resources of each party;
3. The likely effect of any order, or decision not to make an order, on the health, safety and
wellbeing of the parties or relevant child; and
4. The conduct of the parties.
The Court applies what is known as ‘the balance of harm test’. If it appears to the Court that failure
to grant an order is likely to result in the applicant or any relevant child suffering significant harm
attributable to the conduct of the person against whom the order is sought (the respondent), the
Court will make the order unless:
1. The respondent or any relevant child is likely to suffer significant harm; and
2. The harm likely to be suffered by the respondent or the child in that event is as great as, or
greater than, the harm attributable to the conduct of the respondent that is likely to be
suffered by the applicant or child if the order is not made.
In circumstances where the respondent would have nowhere else to reside and the children were
simply unhappy, it is unlikely that the Court would grant an occupation order.
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My relationship is breaking down and I need someone to talk to. |
When a relationship breaks down, it can be a very difficult time both for you and your family.
Davies Solicitors are here to help you through this difficult time. We work with a network of
professionals who can provide you with every type of advice and support you need. This includes
family and relationship counsellors. Please get in touch.
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How do I get a pre-nuptial agreement? |
Pre-nuptial agreements are agreements entered into prior to marriage designed to govern the
financial consequences of the marriage coming to an end. Traditionally, they are not enforceable in
the U.K. However, following the recent case of Radmacher v Granatino, it can be seen that they
may be enforceable if the points set down in Radmacher are adhered to. Each party must enter into
the agreement with free will and there must be no undue influence placed on either party. The Court
will look at the emotional state of both parties entering into the agreement and whether the marriage
would have gone ahead without the agreement. If one party stated that they would not enter into the
marriage without the pre-nuptial agreement, this can be deemed to be undue influence. Both parties
must be aware of the consequences of entering into the agreement, which include knowing and
understanding how the finances are likely to be dealt with by a Court if the pre-nuptial agreement is
not entered into, and both parties must have received independent legal advice in connection with
all aspects of the agreement. It is also highly desirable for both parties to disclose their current
financial situation to the other. This includes all assets, investments, property, savings, income and
any other capital, as well as liabilities and financial responsibilities. An agreement drawn up by a
solicitor after you have followed the above points should be given weight by the Court, provided it
is fair and reasonable. No agreement can oust the Court’s jurisdiction to make a financial order on
divorce. The agreement is more likely to be seen as fair if it deals with assets in existence at the
time it is made but does not attempt to divide future assets. An agreement will also not be adhered
to by the Court if it prejudices any children.
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What is a separation agreement? |
A separation agreement is a contract between your former spouse/partner and you. It records that
you are living apart and can include terms about children, property, money and maintenance. There
are very few limits to what the parties to the agreement can include if they are agreed upon the
terms. The agreement should be comprehensive and realistic. For this reason, both parties must
receive independent legal advice upon the terms of the agreement, so that all aspects of what you
wish to include can be considered. There also needs to be a full and frank disclosure by both parties
of all assets and liabilities. The agreement is not final. It does not exclude the Court’s jurisdiction,
so either party may apply to the Court for a financial order at any time. It is also a contract and so
enforcement procedures are governed by contract and not family law. Separation agreements can,
therefore, be expensive and difficult to enforce.
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I am not married but want to leave my partner. What is involved and will I have to go to Court? |
There is no specific legal process required to end a cohabiting relationship. There are also no
specific rights or remedies when it comes to dividing your finances. There is no right to
maintenance for either spouse. If you own your home jointly or the home is owned under the sole
name of your partner, you can apply to the Court under the Trusts of Land and Appointment of
Trustees Act 1996 (TOLATA) to either force the sale of the home or ask the Court to decide what
percentage of the home each of you own. If you take this route, both you and your partner will
attend Court. This can be very complicated and costly. If you wish to split any other assets, this is
usually done through negotiation and agreement, which a solicitor will help you with. If you wish to
avoid Court and believe you can come to an agreement with your partner (using either negotiation
through solicitors or mediation), you may record this agreement in a deed of separation. You will
need to have received independent legal advice on the terms and consequences of the deed and each
party must disclose their relevant financial details. The deed is a contract between the parties and
can be enforced using contract law. If the deed states that it is in full and final settlement, you and
your partner relinquish any future claims on the other’s assets.
With regard to any children of the relationship, both parties have a duty to maintain the child. You
can apply to the Child Support Agency for your partner to pay child support. Either you or your
partner can apply to the Court for a contact or residence order at any time. If you do apply for an
order, you and your partner will have to attend Court. If you can agree contact arrangements
between yourselves, the Court does not have to be involved.
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I want our children to live with me but my partner/spouse disagrees. What can I do? |
If you and your partner/spouse cannot agree on where the children will live, you can apply to the
Court for a residence order. In this case, the Court will decide where the child lives. The Court will
try to disrupt the child’s life as little as possible, so will look at who has been the primary carer up
to this point. Depending on the child’s age, the Court will ask who they would rather live with.
Taking into account the child’s physical, emotional and educational needs, the Court will consider
the following:
1. Which parent can better provide for them?
2. Which parent helps the child with their homework, cooks for them and cleans for them etc.?
3. Which parent knows the friends and teachers of the child etc.?
4. Factors such as whether one parent works long hours, making it impossible for them to care
for the child;
5. The likelihood of potential harm to the child; and
6. The likely effect on the child of the order.
A Court will often take the view that a very young child needs its mother. A Court will not split up
siblings unless it is clear in all the circumstances that this is best for the individual child. In some
cases, a Court may make a shared residency order. This is where the child will divide their time
between both parents’ homes. The child does not have to spend exactly 50% of its time in each
home, but a Court will make such an order if it judges it appropriate in the circumstances.
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My circumstances have changed and I now find that I need a larger lump sum than that originally
agreed with my former spouse. The amount was agreed and sealed in a consent order. Can I change
it? |
No. Once a lump sum amount is agreed and embodied in a consent order or a lump sum settlement
amount is ordered by the Court, there is no power to vary it.
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How do I select a lawyer? |
OK, so you’ve identified a handful of solicitors who may be able to help you with your case. You’ve looked online and even searched the Yellow Pages. How do you know which lawyer would be best suited for your matter? Although price is certainly a consideration, it is rarely wise to choose a lawyer based solely on the rate(s) offered. Here are several questions to consider in selecting a solicitor.
Experience
Has the lawyer handled similar cases? When was the last time the lawyer handled a similar case?
Ask to hear about cases like yours that the lawyer may have handled. Remember: age may have nothing to do with the lawyer’s ability to help you. A lawyer who has practiced for 20 years may have less experience with your type of problem than a lawyer who is three years out of law school.
Has the lawyer been investigated or disciplined? If so, for what?
What types of resolutions has the lawyer had in similar cases? How did those resolutions come about? Settlement? Negotiation? Mediation? Arbitration? Trial?
Availability
Who will work on your case? Will the lawyer do all of the work or will legal assistants, paralegals, or other associates do the work?
Does the lawyer have a large caseload or upcoming Trials that could affect his availability or attention to your case?
Communications
Can the lawyer explain the legal aspects of your case – and the process you should expect – in a way that makes sense to you? If the lawyer cannot explain things to you properly in an initial meeting, there is no reason to believe that he or she will be able to make a convincing presentation on your behalf.
Do you feel that the lawyer listened to you and was interested in your matter?
Did the lawyer (or someone from the lawyer’s office) respond promptly to your initial contact?
Has the lawyer told you both the strengths and the weaknesses of your case?
Can the lawyer give you an estimate on overall costs and time? Are there any alternative courses of action? If so, what are the advantages and disadvantages of each one?
How often will you need to meet with the lawyer? How often will the lawyer call or write to give you updates on the case? Will the lawyer provide you with copies of relevant documents?
Comfort Level and Other Intangibles
A lawyer-client relationship requires trust and confidence. Has the lawyer been able to inspire your trust and confidence?
Do you feel comfortable in revealing to the lawyer all of the relevant information – not simply the "good" facts?
Is the lawyer assertive enough – or conciliatory enough – to make you feel comfortable with his or her approach to your matter?
Has the lawyer explained the nature of the lawyer-client relationship? As the client, you have the right to make the final decisions in your case on most issues. The lawyer should provide you with options, guidance, and recommendations, but also respect your wishes as to how to proceed.
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