Family Law in Partnership - Page 4

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Why TOLATA is a Necessary Safety Net for Modern Relationships
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Why TOLATA is a Necessary Safety Net for Modern Relationships

Published on
Gary Hall
Gary Hall
Litigation Solicitor
Clough & Willis

When relationships end, property disputes have a way of cutting deeper than just financial loss; they strike at security, fairness, and dignity. For unmarried couples, this reality is especially stark. Unlike divorcing spouses, who benefit from a robust framework under family law, cohabiting partners are left to navigate the cold, often unforgiving provisions of the Trust of Land and Appointment of Trustees Act 1996 (TOLATA).

TOLATA was designed to provide clarity but in practice it often highlights just how outdated our legal approach to modern relationships really is. Cohabitation is now one of the most common living arrangements in the UK, yet the law continues to treat these partners as legal strangers once the romance fades.

On the surface, the Act gives people a route: apply to the Land Registry, unearth dusty transfer documents (TR1/TP1), argue about whether property was held as Joint Tenants or Tenants in Common, and if no agreement can be found then let the courts decide. There is logic here, yes, but also an uncomfortable rigidity. The law presumes fairness based on technical ownership structures, rather than lived reality. Did you pay the mortgage single-handedly after your partner moved out? Did you invest in renovations to increase the property’s value? TOLATA can, through equitable accounting, adjust the balance but this is not guaranteed, and the process is far from simple.

And then there’s the elephant in the room: cost. While mediation is encouraged, the truth is that many disputes end up in court. Formal proceedings mean solicitors’ fees, valuations, mortgage statements, and the stress of disclosure. For ordinary people, this can feel like justice is accessible only if you can afford it.

In my view, the Act functions as a necessary safety net, but it is not a true reflection of the way we live today. The fact that someone can share years of their life, pour money into a shared home, and still walk away empty-handed because their name isn’t on the title deed is not just a legal technicality, it’s an injustice.

It’s time to ask whether we need more than TOLATA. Shouldn’t the law recognise the reality of cohabitation more fairly, without forcing people to piece together claims from constructive trusts and equitable accounting? Relationships may end, but fairness should not.

Until reform comes, TOLATA remains both a lifeline and a warning: if you live together but remain unmarried, your legal rights are fragile, and you must take steps like signing a Declaration of Trust before love clouds the paperwork.

About Gary Hall

Gary joined Clough & Willis in January 2025. He brings with him over 28 years experience working as a solicitor and previously as a Director at Rothwell and Evans solicitors. He has also headed up teams as Head of Litigation Wills and Probate.

His areas of work include:

  • Wills, Trust & Probate Litigation
  • Company & Partnership Law including Shareholder, director and partnership disputes.
  • Contract Disputes – Disputes arising from commercial contracts and between private individuals from what may appear a relative small sum to the multi-million pound claim
  • Property Disputes including landlord & tenant, boundary disputes, possessory title and rights of way.
  • General Litigation –Insolvency, Bankruptcy and Winding Up
  • Applications under the Trusts of Land and Appointment of Trustees Act 1996.

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Divorce & Disabled Children: Why a Child’s Needs are Paramount
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Divorce & Disabled Children: Why a Child’s Needs are Paramount

Published on
Sarah Whitelegge
Sarah Whitelegge
Legal Director
Myerson Solicitors

Why a child’s needs are the paramount consideration on divorce

On divorce, the court will consider a list of factors under section 25 of the Matrimonial Causes Act 1973 when deciding how assets are to be divided.

Section 25 (1) provides that the court must give first consideration to the welfare of a child of the family who has not attained the age of 18.

The Matrimonial Causes Act 1973, Section 52 (1) defines a child of the family as:

  • A child of both parties; and
  • Any other child who has been treated by both parties to a marriage as a child of their family (not including a foster child placed with the parties as foster parents by the local authority or voluntary agency).

The court will have regard to the child’s housing and day to day income needs and such needs may take on a greater significance in comparison with the other factors to which the court must have regard to in cases where the assets and means of the parties are limited.

Factors the court will consider

The court must have regard to all the circumstances of the case and will look at all the relevant issues that are not specifically address in the Matrimonial Causes At 1973 Section 25(2) checklist.

 The Section 25 factors considered by the court on financial provision include the following:

  • The income, earning capacity and other financial resources each party has or is likely to have in the foreseeable future.
  • The financial needs, obligations and responsibilities each party has or is likely to have.
  • The standard of living enjoyed by the family before the breakdown of the marriage.
  • The age of each party and the duration of the marriage.
  • Any physical or mental disability of either party.
  • The contributions each party has made or is likely to make to the welfare of the family.
  • The conduct of each party.

The weight given to each factor depends on the particular facts and circumstances of each case. The objective is to achieve a fair outcome. An equal division of the marital assets may be appropriate where there is sufficient capital to house both parents. In cases where the assets are more limited, the needs of the child may override issues of equal sharing.

Dividing assets in a divorce is rarely straightforward but when a child has significant physical or learning disability, the question of housing is important. If the family home has been adapted with ramps, hoists, widened doorways or sensory safe spaces, it may be impractical ad unsafe to move a child to a new property that is not set up to meet the needs of the child.

Consideration will need to be given as to whether the adapted property should remain with the parent who is the primary carer.

The court will consider expenses associated with the child’s accommodation and basic expenses such as the cost of food and clothing. The court will also have regard to the standard of living of the family and all the circumstances of the case, including how the children are educated.

Section 25(2) above refers to the financial needs, obligations and responsibilities each parent has in relation to a child, but these responsibilities will not disappear when a child turns 18 particularly if a child has lifelong needs.

If a child has a disability, this may constitute special circumstances that may allow a financial provision order to be made that extends beyond their 18th birthday. Additionally, the court may make a maintenance order to meet expenses attributable to the child’s disability provided the criteria set out in CSA 1991, Section 8 (8) are fulfilled.

The court will wish to ensure that adequate provision is made for children with a disability and it may consider making periodical payments order or lump sum order to meet capital expenditure if, for example, any special equipment is required.

Child support for children with special needs

The court has jurisdiction to make orders for maintenance in respect of a child with special needs, notwithstanding the general restrictions upon making periodical payments for the benefit of a child who falls within the jurisdiction of the Child Maintenance Service. The court can make these orders regardless of whether an application for a maintenance calculation has been made.

Nesting arrangements

If separated parents feel that it will be of benefit to their child to provide some consistency, consideration may be given to a nesting arrangement. This involves separated parents taking it in turns to look after their children in the family home while the other parent temporarily lives elsewhere. This means that the child can stay in one home while parents rotate in and out of that home.

For a disabled child, this can be a helpful arrangement as it avoids moving equipment that the child may need and ensures the child remains in a familiar adapted space.

However, what may suit the child’s welfare may not be financially sustainable for the parents long-term and nesting may be a temporary measure rather than a permanent solution.

Planning for transition

Many parents of disabled children will find that support that was available through children’s services may fall away and for separated parents in divorce proceedings this presents an added dimension: financial settlements and child maintenance orders often assume that support for children ends at adulthood, but for many young disabled people their needs remain lifelong.

The Care Act 2014 provides when the local authority has carried out an assessment, information should be provided about whether the young person or child’s acer is likely to have eligible needs for care and support when they turn 18.

The Care Act 2014 sets out when the local authority has a responsibility to meet someone’s care and support needs. The act gives local authorities a legal responsibility to provide a care and support plan (or a support plan in the case of a carer). The personal budget must be included in the plan, and this adds to a person right to ask for a direct payment to meet some or all their needs.

The Children and Families Act creates a birth to 25 years Education, Health and Care Plan for children and young people with special educational needs and offers families personal budgets so that they have control over the type of support they receive.

Practical tips for separating parents of disabled children

On separation it is important to consider the following questions:

  • Should child maintenance or financial provision extend beyond 18 where a disabled young adult cannot support themselves
  • Can any settlement include provision for long-term care, sometimes structured through a trust
  • How should parents balance their own retirement planning against the knowledge that their child may always need financial and practical support

Read more articles by Sarah Whitelegge.

Read more articles by Myerson Solicitors.

About Sarah Whitelegge

Sarah Whitelegge is a Legal Director at Myerson Solicitors, Altrincham, Cheshire. She advises on a wide range of family matters including divorce, dissolution of civil partnerships, financial settlements, separation, co-habitation, pre and postnuptial agreements, disputes regarding children and domestic violence.

She is particularly experienced in matters concerning complex children matters and has experience of dealing with applications for child arrangement orders, prohibited steps orders, specific issue orders, and special guardianship orders.

She has significant advocacy experience, having regularly appeared in the Family Courts representing clients in relation to private law children matters, financial order proceedings and domestic violence matters.

Sarah is a committed member of Resolution and has achieved specialist accreditation in private children law and domestic violence.

For more information about Myerson Solicitors and its Family Team, visit: https://www.myerson.co.uk/personal/family-law

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Landmark Judgement Has Major Implications for Divorcing Couples
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Landmark Judgement Has Major Implications for Divorcing Couples

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Rayma Collins
Rayma Collins
Partner & Head of Family Law
Furley Page LLP

An eagerly anticipated landmark judgement from the Supreme Court will have major implications for divorcing couples, according to Rayma Collins, head of Family Law at Furley Page.

The judgement on Standish v Standish was handed down by the Supreme Court on 2 July, following earlier decisions in the High Court and the Court of Appeal.
Mr Standish (72) and Mrs Standish (57) married in 2005 and subsequently had two children. Mr Standish was a successful investment banker who had accrued substantial wealth prior to the marriage. He retired in 2007. From the time of their marriage until he retired, Mr Standish earned around $US 40 million, and there had been no material increase in his wealth since retirement.
The couple moved to England in 2009, where Mr Standish was deemed domiciled but Mrs Standish was of non-domiciled status. During 2017 and 2018, Mr Standish took tax advice and pursuant to that, he transferred £77 million to his wife (the 2017 assets) with an intention to place the monies into trust. However, before the trust was established, Mrs Standish applied for divorce.
The case went before the High Court, where Mrs Standish submitted the marriage was a ‘partnership of equals’, so fairness dictated a 50:50 sharing of the marital assets and that upon transfer of the 2017 assets, they became hers. Mr Standish argued he never intended to share ownership of the 2017 assets, and that the court should not deem the assets to have been ‘matrimonialised’, because they were the product of his pre-marital career the division should remain non-matrimonial and not be subject to equalisation.
The judge, Justice Moor, found that by transferring the asset to his wife, Mr Standish had matrimonialised the property, but because the vast majority of the money had been earned before they were married, the 2017 assets should be shared unequally in favour of Mr Standish (34%/66%).
Both parties appealed the decision to the Court of Appeal; the wife sought the 2017 assets as her seperate non-matrimonial property and the husband asserting that his actions in generating the wealth should be the deciding factor in attributing him with a greater share.
The Court of Appeal rejected the wife’s separate property claim, describing it as ‘nonsense’. The Court also determined that the division was unjust. They determined that the 2017 assets should be attributed as 75% non-marital and 25% marital property, the latter to then be added to the overall pot of assets to be shared equally.
Mrs Standish subsequently appealed the Court of Appeal decision to the Supreme Court, which has now handed down its judgement. The Supreme Court unanimously dismissed her appeal, upholding the decision of the Court of Appeal that 25% of the 2017 Assets had been matrimonialised whilst 75% remained non-matrimonial and not therefore subject to the equal sharing principle.
Rayma Collins said: “This decision will not just affect divorce cases of the ultra-wealthy as its principles will apply to all divorce cases in England and Wales. It clarifies that a transfer of assets between spouses with an intention to, for instance, save tax and irrespective of the time period involved, will not normally constitute matrimonialisation of that asset”.
“The Supreme Court has reviewed the sharing principle in this case and ruled that (a) there is a conceptual difference between non-matrimonial property and matrimonial property (b) that Courts will recognise that the sharing principle only applies to matrimonial property (c) the starting point in sharing matrimonial property is equality and (d) non-matrimonial property may become matrimonialised in certain circumstances depending on the reason for any transfer and/or how the asset has been treated by the parties over time”.
“This judgement provides clarity about the relatively new concept of matrimonialisation which the Supreme Court accepted whilst new to the English language, was useful shorthand to describe the process by which non-matrimonial property becomes matrimonial property for the purpose of sharing on divorce. For these reasons, it is even more important to take legal advice before making any substantive changes to how assets are held by spouses, to be certain you understand the potential implications of any such change beforehand”.

Read more articles by Furley Page.

About Rayma Collins

Rayma has been working in family law for over two decades, specialising primarily in resolving financial issues between spouses on family breakdown.

She works tirelessly to help her client’s separate with dignity and to ensure, for the sake of any children involved, that relations between separating couples remain as amicable as possible.

If and when required, Rayma has access to experts who can assist such as Trust Lawyers, accountants, financial planners and therapists. She will quickly gather together a bespoke team of specialists to ensure individual needs of each client are met, and every angle of a case is covered.

Furley Page Solicitors

Furley Page was established in 1725 and celebrates its 300th anniversary in 2025. The firm has offices in Canterbury, Chatham and Whitstable, with specialist partner-led teams offering clear, practical and cost-effective advice across wide-ranging practice areas in commercial and private client law. Furley Page is authorised and regulated by the Solicitors Regulation Authority and our Costs Lawyer is regulated and accredited by the Costs Lawyer Standards Board. For further details visit www.furleypage.co.uk. You can also follow the firm on LinkedIn.

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Breaking Up is Hard to Do: Separation, Finances and Children for LGBTQ+ Families
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Breaking Up is Hard to Do: Separation, Finances and Children for LGBTQ+ Families

Published on
Joe Ferguson
Joe Ferguson
Family Law Solicitor
Myerson Solicitors

The end of a relationship is never easy, but for LGBTQ+ couples, navigating the legal and emotional aspects of separation can come with distinct challenges. For LGBTQ+ families knowing your rights is vital – particularly if your family has been formed through surrogacy, adoption or other routes that can carry additional legal considerations.

In this article, we explore how separation works for same-sex and LGBTQ+ couples, how financial matters are resolved, and what options are available when children are involved.

Ending the relationship: divorce and civil partnership dissolution

LGBTQ+ couples have had the legal right to marry since 2013 in England and Wales, and civil partnerships continue to be recognised. Both marriage and civil partnerships can be formally ended through the family court – divorce or dissolution, respectively – and the process is now based on a no-fault system. This means that neither party needs to prove wrongdoing for the legal process to begin.

Whether it is a divorce or a dissolution the procedure is the same: an initial application, followed by a conditional order, and finally, a final order to formally end the marriage or civil partnership.

But while the legal framework is the same for all couples, LGBTQ+ individuals may face different questions when it comes to resolving finances and parenting arrangements, particularly when their relationship pre-dated legal recognition.

Financial matters: reaching a fair outcome

Financial settlements can be one of the most emotive and difficult topics to brooch following separation. Like opposite-sex couples, same-sex spouses and civil partners are entitled to a full range of financial remedies. These can include:

  • Lump sum payments
  • Spousal maintenance
  • Property transfers or sales
  • Pension orders
  • A clean break, ending future financial ties

The court will assess the financial resources, needs and contributions of each party amongst other factors, and aims to reach an outcome that is fair and meets the needs of the parties and any children involved.

However, there can be added complexity when considering assets that were acquired before marriage – especially for couples who lived together for many years. Determining whether these assets are “marital” or “non-marital” can become a key issue, particularly where significant property, pensions or savings are involved. Cohabitation alone does not automatically give rise to legal rights, though it is typically taken into account that any period of seamless cohabitation prior to the date of the marriage or civil partnership when determining the length of the marriage. Accordingly, timelines and clear evidence of cohabitation is often required. It should be noted of course that many LGBTQ+ couples were unable to enter into marriage or civil partnership previously owing to the lack of provision within the law for them. Accordingly, these arguments can be important as evidence of the enduring relationship between the parties. 

Children: supporting parenthood in all its forms

For LGBTQ+ families, parenting often involves a range of routes – from adoption and surrogacy to donor conception. These arrangements can create additional legal considerations during a separation.

The starting point is to establish parental responsibility: the legal authority to make decisions about a child’s health, education, and welfare. Biological and adoptive parents usually have parental responsibility automatically, but others (such as non-birth parents in a surrogacy arrangement) may need to apply for parental orders, declarations of parentage or child arrangements orders. 

If both parents are legally recognised, they may choose to agree parenting arrangements voluntarily. Options include:

  • Mediation: This process can help couples reach agreement on how children will be cared for, where they will live, and how contact will work. Mediation is not legally binding but can lead to a more amicable, cost-effective solution.
  • Collaborative law: This process enables separating couples to work together with trained professionals to resolve disputes without going to court. Everyone agrees to work together as a team to resolve disputes without going to court. 
  • Negotiation: working with solicitors, with the benefit of independent legal advice, to work out what would be best for their family, avoiding costly and potentially acrimonious court proceedings.

If agreement cannot be reached, the family court can make a Child Arrangement Order which is legally binding and sets out the child’s living and contact arrangements. The court’s priority is always the child’s welfare.

Planning ahead for a smoother separation

While the legal system provides equality on paper, LGBTQ+ families may still encounter unique issues when relationships end. The reality is that the law in this area is continues to evolve but has not caught up to the social realities of life as an LGBTQ+ person and the unique family dynamics which are increasingly commonplace. The key to navigating these challenges is early advice and a tailored, bespoke approach that reflects the structure of your family, the history of your relationship, and the complexities involved.

If you are an LGBTQ+ individual facing the challenges associated with separation and need assistance, the team at Myerson Solicitors are here to support you with clarity, empathy and practical expertise.

Read more articles by Myerson Solicitors.

About Joe Ferguson

Joe Ferguson is a solicitor in the Family Law team at Myerson Solicitors. He specialises in divorce, financial remedy proceedings, and complex children matters, with particular expertise in supporting LGBTQ+ clients through family law issues with sensitivity and pragmatism.

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Right to Flight: Warning Issued Over Parental Holiday Permission
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Right to Flight: Warning Issued Over Parental Holiday Permission

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Natasha Aspinall
Natasha Aspinall
Family & Matrimonial Solicitor
Brindley Twist Tafft & James LLP

A growing number of parents with children from previous relationships incorrectly assume they have an automatic right to take the whole family on holiday, warns leading law firm Brindley Twist Tafft & James.

A couple planning to take a stepchild on a break may not realise they need the other biological parent’s consent if both parents share Parental Responsibility, a legal term surrounding the rights, duties, powers, responsibilities, and authorities a parent has in relation to a child under the law.

All mothers will automatically have Parental Responsibility together with fathers who are registered on the birth certificate. They will not lose it if they are divorced or the civil partnership is dissolved.

The issue is growing in importance with the increase in the number of ‘blended’ families, where each partner has children from a previous relationship. Roughly 1.1 million children in England and Wales live in blended families, according to UK Government figures.

Family & Matrimonial Solicitor, Natasha Aspinall at leading law firm Brindley Twist Tafft & James, says there is a common misconception that those who hold Parental Responsibility in relation to their child or children automatically have a right to take their child abroad.

“This is incorrect,” she said. “The term Parental Responsibility attempts to focus on the parents’ duties toward their child rather than the parents’ rights over the child.

“The general day-to-day decisions should be made by the parent with whom the children reside without interference from the other parent, subject to any additional provisions.  Important decisions regarding a child, such as taking a child abroad for an extended stay for example, need to be made by everyone with Parental Responsibility for the child.

“If a blended family wants to go on a break, it’s generally necessary to obtain the other parent’s agreement. If the biological parent doesn’t agree, you might need to apply to the court for permission. No one wants to discover this when the bags are waiting by the doorway and the airport taxi is booked.

“What time each parent is to spend with a child is to be agreed between the parties and if an agreement cannot be reached then either party will need to make an application to the court for a Child Arrangements Order (CAO).”

A CAO is a legally binding court order in the UK that specifies where a child will live, who they will spend time with, and the nature of that contact. The court will expect the parties to have engaged in mediation before the application is made.

“CAOs let each parent, as well as their new partners, know where they stand and prevent misunderstandings and disagreement, leading to more stability for the child,” Natasha adds. “It also helps ease any uncertainty for the parent that does not live with the child by alleviating any anxiety they may have about feeling like the ‘lesser’ parent.”

Read more articles by Brindley Twist Tafft & James Solicitors.

About Natasha Aspinall

Natasha qualified as a Solicitor in 2003. She joined Brindley Twist Tafft & James LLP in our Family & Matrimonial department in November 2022, based out of our Balsall Common office. Natasha joins us from a local Solicitors firm where she worked as Head of the Family Law department for the last 5 years.

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Thinking About A Prenup? Divorce Solicitor Answers Your Most-Googled Questions
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Thinking About A Prenup? Divorce Solicitor Answers Your Most-Googled Questions

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Sophia Yau-Rosher
Sophia Yau-Rosher
Director
Beecham Peacock LLP

The celebrity world is abuzz with yet another high-profile divorce case. Billionaire and former record executive, David Geffen, has filed for divorce from his 32-year-old dancer husband, David Armstrong. The marriage only lasted two years, and despite the 82-year-old being worth a reported $8.7 billion, the couple did not sign a prenup.

Although the majority of us won’t have anywhere near as much wealth to protect, it’s important to protect your future, ensuring that your assets remain protected in the event of a divorce. The first three months of 2024 alone saw 27,908 divorce applications, with 21,662 final orders also granted.

With more and more engaged couples entering into marriage with a realistic viewpoint, prenups are becoming more commonplace than ever. The popularity of prenups has risen by 60% in recent years, with postnup agreements seeing an increase of nearly 185%.

If you – like 31% of couples who now have a prenup – are anxious around the concept of tying your assets to your relationship, you will likely have some questions. Expert divorce solicitor Sophia Yau-Rosher – from Newcastle-based divorce solicitors Beecham Peacock – answers the top ten most-Googled prenup questions per month, helping you stay informed ahead of your marriage.

1. What is a prenup?

“Put simply, a prenup is a legal document that two parties agree to before they marry, or enter a civil partnership,” Yau-Rosher explains.

“The document sets out the financial responsibilities of both parties and allows for the protection of certain assets, including property, investments, inheritance and more in the event of a divorce. It also outlines which party is responsible for specific debts and other financial issues, should the marriage or civil partnership come to an end.

“A prenup can provide protection and offer clarity for both parties in the event of a difficult or contentious divorce.”

2. Can you change a prenup?

“Ahead of your marriage, you can make as many changes to your prenup as you like,” Yau-Rosher assures. “As long as both parties have sought independent legal advice and feel comfortable with the changes, there is no reason why amendments cannot be made to the document before it is signed.

“However, after you are legally married, you cannot change or modify your prenuptial agreement. If your financial or emotional circumstances change during the course of your marriage and the prenup is no longer relevant, you can consider a postnuptial agreement – or postnup – which carries the same kind of legal weighting.”

3. Are prenups legal in the UK?

“Your prenup is not legally binding in either England or Wales. A court will not automatically enforce the terms of your prenup in the event of a divorce. However, a prenup that both parties have freely entered into will likely add weight to any court arrangements.

“If both parties concerned have disclosed their full financial situations and received independent legal advice pertaining to the prenup, the court will usually give considerable legal weight to the agreement during any financial disputes.”

4. What does a prenup do?

“Essentially, a prenup safeguards any assets that you or your partner bring to the marriage, protecting your interests in the event of a divorce. It also deals with the financial impact of any inheritance, dependents – such as current or future children – and any shifts in earning potential.

“Your prenuptial agreement provides you and any children from previous relationships with financial reassurance in the case of divorce,” Yau-Rosher explains. “It is not a sign that either party is unsure about the marriage, but rather a sensible step in future financial planning.”

5. Can you write your own prenup in the UK?

“As prenuptial agreements are not legally binding documents, you can pen your own in the UK. However, in order for the court to take your prenup seriously in the event of a divorce, it needs to be prepared in a specific way.

“I always advise my clients to seek professional legal assistance in drafting their prenup, as DIY agreements often don’t stand up in court,” Yau-Rosher counsels. “This way, you can ensure that the document is put together in a way that will protect and benefit both parties, if it is required in the future.”

6. What cannot be included in a prenup UK?

“There are a number of strict rules regarding what can and cannot be included in a prenuptial agreement in the UK. If these rules are not obeyed, it could lead to your prenup losing all legal weight in court.

“Your prenup should not include any personal or lifestyle issues, references to child support, visitation rights or child custody, or discussion of matters that could be deemed ‘unfair’ for one or both parties. A family law solicitor can help you draft a prenup that adheres to these rules.”

7. How much does a prenup cost?

“The cost of a prenup varies, but the majority of professional solicitors in the UK will charge £2,000–£5,000. The more complex your financial situation and the larger your wealth, the more your prenuptial agreement is likely to cost.” Yau-Rosher explains.

8. How do I get a prenup?

“The first step in securing a prenup is always to seek professional legal advice from a family law specialist. Both parties should seek their own independent legal counsel. You will then be required to provide your chosen solicitor with a full run-down of your current financial situation, along with any information about debts, income and inherited wealth. The solicitor can then draft the document.

“Once both parties are satisfied, the prenuptial agreement can be signed in the presence of the solicitors and independent witnesses. Ideally, the prenup should be signed at least 28 days prior to the signing of your marriage or civil partnership certificate.”

9. Can you cancel a prenup?

“Cancelling a prenup is a complex process, but can be achieved under specific circumstances. For example, if the prenup is deemed unconscionable at the time of signing, due to a lack of legal advice or due to one party being under pressure or duress to sign.

“If you can prove that your partner has committed fraud or deliberately misrepresented their finances, this constitutes another reason for cancellation of the prenup,” Yau-Rosher says. “A prenup may also be deemed invalid if the financial situation of one or both parties has changed significantly, making the original agreement unfair.”

10. What is a postnuptial agreement?

“A postnuptial agreement is very similar to a prenuptial agreement, aside from the fact that it is drafted and signed after the marriage or civil partnership, rather than before.

“You can opt for a postnup instead of a prenup, or mutually agree to replace the original agreement with a postnup if your or your partner’s financial situation changes significantly after you marry or enter into a civil partnership.

“Due process must still be followed and both parties must still seek independent legal advice to ensure that the postnup holds a similar legal weighting to a prenup if required in court.”

“If you are considering entering into a prenuptial or postnuptial agreement, seeking independent legal advice is always the best first step. Communicate your intentions and any concerns with your partner to ensure that you both enter the agreement with shared goals and a realistic outlook when it comes to your finances.”

Read more articles by Beecham Peacock Solicitors.

About Sophia Yau-Rosher

Sophia Yau-Rosher is a Director at Beecham Peacock Solicitors. Beecham Peacock Solicitors are a trusted divorce solicitors based in Newcastle Upon Tyne, and they know how important it is for your divorce settlement to be treated with the utmost respect and care.

They have countless experiences handling intricate divorce proceedings, so they understand that the process needs to be quick, smooth and respectful for both parties involved.

If you are getting a divorce, ending your civil partnership or even just agreeing to the terms of a separation, their talented divorce lawyers will make sure you are supplied with the most current and prudent advice to deal with the money, assets and property belonging to both parties.

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Common Financial Mistakes to Avoid During and After Divorce
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Common Financial Mistakes to Avoid During and After Divorce

Published on
Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers

Sponsored post by Jones Myers.

The fear of starting all over again and all the financial worry that can bring with it can understandably have a profound effect on many people going through divorce or separation.

This fear can be particularly acute for those who have not had to deal with financial practicalities such as tax, standing orders and direct debits during their relationship.

If you are going through divorce or contemplating it and are concerned about future finances, this article will help to keep you on the right financial track throughout your divorce and beyond.

Be Open and Honest

Not sharing financial information during a relationship can contribute to problems during divorce proceedings.

One spouse may have no idea where the budget line is – or even where it should be drawn – and may have unrealistic expectations of what they are entitled to, or what is a realistic and affordable.

One spouse may have hidden savings or income from the other or scrutinised the other’s spending without being transparent about their own. On divorce, there is nowhere to hide. It is fundamental that both spouses fully and frankly disclose everything they have to each other as a starting point for an informed negotiation.

The Importance of Financial Disclosure

In every divorce, separating couples must provide to the other full details of their assets, income, pension and liabilities.   This is known as financial disclosure.

Financial disclosure ensures that both spouses can make fully informed decisions about what they consider to be a fair settlement. A failure to disclose anything material to the settlement can in some cases lead to an agreement being set aside. Lawyers and judges know every trick in the book and will ask questions if they suspect that money has been concealed. They may even employ forensic accountants to track down missing assets.

Don’t be tempted to hide money in offshore banks. These still have to be disclosed.  If you do not provide everything that is necessary to understand the financial position, family courts have the power to question your accountant, your financial advisor and even your bank manager.

Setting up a new business shortly before separation may well be seen as suspicious or even a deliberate attempt to hide assets.  Taking steps designed to put money beyond the reach of your spouse could lead to injunctions being made against you, freezing assets, or ordering the return of monies from third parties.  In the long run, actions such as these are highly unlikely to succeed and will almost certainly damage your credibility in the eyes of the court.

The Penalties of Concealing Assets

If it later comes to light that you have withheld material financial information during the financial disclosure process, your spouse might be able to ask the court to set aside the Financial Consent Order and relook at what would be a fair order – taking into account all the assets, including those not previously disclosed.

The court can also make an order that you pay your ex’s legal costs. In the worst-case scenario, deliberately withholding financial information in breach of a court order can amount to a contempt of court for which a range of penalties (including ultimately imprisonment) could be imposed.

Include Pensions in Financial Settlements

Frequently overlooked in financial settlements, pensions are frequently one of the most valuable assets of a marriage. They often make up the second highest- value asset in a divorce settlement after the family home – or sometimes the highest.

It is key that information about pensions is made available in the financial disclosure process which must include details of all pensions, including state pensions – and the value of each one.

The most common way in which a disparity in pensions is addressed in a divorce settlement is pension sharing.  Pension sharing splits the pensions immediately and provides a clean break

As an alternative, in some cases ex-spouses prefer to take a greater share of the equity in the family home or other capital, as a trade-off for a share of the other’s pension.

Some divorces may involve several pension arrangements so it is important to consider which arrangements should be shared, and to what extent.  Pensions are complex and, save in very straightforward cases with pensions of limited value, it is important to get specialist advice about them before agreeing a settlement.

The pension share may be internal (when the recipient becomes a member of the scheme) or external when the share must be invested in an existing or new arrangement of the receiving party. Care should be taken to obtain details of the cost of any transfer.

In deciding what is best for them, the couple need to consider how their respective financial needs will be met and what other assets are available for distribution.

Consider Financial Planning

It can be helpful to have financial advice during settlement negotiations.  Many financial advisers use cashflow modelling, which can be a valuable way of how different settlement options might pan out in the future. In processes such as collaborative practice or mediation, it is quite common to bring a financial adviser into the process as a neutral to help the discussions.  Further financial advice can then be taken on an individual basis when settlement terms are clear.

Get a formal Financial Order

Once a financial settlement is agreed, it is almost always best for the terms agreed to be made final and binding in a court order. This is a legally binding document which details the main assets owned by divorcing couples and sets out the financial arrangements agreed between them. The terms of an order are binding and can be enforced through the courts if there are any problems putting those terms into effect.

It is important to understand that the divorce process itself does not dismiss financial claims which  can be pursued many years after the divorce has been finalised provided the person bringing the application has not remarried. Putting off the conversation at the time of separation can sometimes just be kicking the can down the road.

Try to avoid exceeding your budget

I am not a financial adviser, but these are some pointers which might be useful to think about:

  1. Create a ‘to do’ list of all things financial (bills etc) and an aspirational list to set goals for enjoyable things such as treats and breaks
  2. Consider having two bank accounts – one for day-to-day expenses for the house, food, car and associated expenses, direct debits, standing orders and credit card payment. The second is for setting aside some savings for exceptional expenses such non-essential clothing, holidays, and house repairs.
  3. Set out the absolute and exact payments needed every month for your house and family
  4. Know when your maintenance payments arrive and budget accordingly. Ensure standing orders don’t go out before your monthly payments are due in
  5. Apply to your Council for a 25% council tax discount. The concession applies if you are on your own or have younger children
  6. Expand your support network if you’re on your own or have children. Now is an ideal time as the country emerges from lockdown
  7. Take professional advice on preparing and budgeting for your own retirement
  8. Make a will. If you have a pension or life assurance, ensure it includes your chosen beneficiaries and is updated. Review it every few years.
  9. Stay healthy in body and spirit – try new things. You could also consider engaging a life or Divorce coach who specialises in helping people in your situation prepare for their new future

Spousal Maintenance and Child Maintenance

Remember that Spousal Maintenance will usually be paid for a period of time to enable you to adjust to financial independence or when your financial needs are reduced, for example, when your children finish school or university, or leave home.

Be aware that your spousal maintenance will stop if you remarry or enter into a civil partnership or if either of you dies. It could also be affected if you meet a new partner and move in together

It is also important to plan for when child maintenance – which is mandatory for both parents for children under sixteen and youngsters under twenty who are still in full time education – comes to an end.

As part of our holistic approach, Jones Myers advises and guides our clients through the stages of divorce during and after their divorce.

A champion of non-confrontational divorce and resolving issues in a spirit of collaboration and cooperation, our extensive expertise includes alternative to avoid courts which include mediation and collaborative family law.

Our pre-divorce and post- divorce support includes helping them to stay on the right financial track as they embark on the next chapter of their lives.

Read more articles by Nicki Mitchell.

About Nicki Mitchell

With extensive experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

A skilled Mediator, Child Inclusive Mediator and Collaborative Family Lawyer, Nicki champions Alternative Dispute Resolution processes which avoid a lengthy court process and can lead much more quickly and cost effectively to a successful resolution.

Her exceptional track record also includes advising clients on the more traditional methods of resolving issues surrounding family breakdowns.

Direct Dial: 01904 202553 or email  Nicki.mitchell@jonesmyers.co.uk. Website: www.jonesmyers.co.uk

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Child Maintenance and Spousal Maintenance: Understanding the Differences
Photo by Dimitri Karastelev on Unsplash
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Child Maintenance and Spousal Maintenance: Understanding the Differences

Published on
Nicki Mitchell
Nicki Mitchell
Partner
Jones Myers Family Law

Sponsored article by Jones Myers Family Law.

In the countdown to the festive season, concerns over finances can understandably escalate – especially for those divorcing and separating who have children but do not have their own income streams.

The aim of this article is to provide key insights into Child Maintenance and Spousal Maintenance.

While they are often believed to be inextricably linked, they are two very distinct issues.

Child Maintenance Support

How do divorcing/separating couples work out Child Maintenance?

Child Maintenance is something which needs to be considered whenever separating couples have children, regardless of whether they were married or not and whatever their financial circumstances.

The Child Maintenance Service (CMS), a stand-alone government body,  provides a formula for parents to calculate child support.

Most separated couples will use the formula as a basis for agreeing the level of child support to be paid and make informal arrangements for this to be paid directly.

Divorcing couples have the option of including their agreement on child support in the order (often known as a consent order) which sets out their agreement as to how their assets, debts, pensions etc will be divided.

Which parent is responsible for paying the support?

The parent with whom the children spend less time will be responsible for paying child support to the other parent.  Where the children’s time and the child care responsibilities are shared equally between the parents then no child support is usually payable.

If there is any dispute between the parents about whether this is the case then the CMS will generally assume the primary carer to be the parent who receives Child Benefit and assess child support accordingly.

For how long does Child Maintenance continue?

The paying parent is obligated to provide child maintenance until the child completes “qualifying education” which is generally full-time secondary education but can include other forms of ongoing study such as some apprenticeships. No child support is payable after the child attains the age of twenty.

What happens if parents cannot agree on the level of support?

If the parents are unable to agree then either one of them can make an application the Child Maintenance Service (CMS) for a calculation.

The CMS will calculate the support payable using a six-step process.

The various stages include determining the paying parent’s yearly gross income. The relevant parent usually provides this. However, the CMS can obtain the information from HM Revenue and Customs (HMRC) if the parents do not supply this.

Factors, such as pensions and school fees, which could change the paying parent’s financial situation, are also assessed before converting the yearly gross income into a weekly figure.

Key criteria the calculator draws on includes the number of children receiving the income and the level of what is called ‘shared care.’ This is based on how much time the child/children of the paying parent spends with them and includes overnight stays.

What happens if the paying parent loses their job?

Either parent can let the CMS know of a change in circumstance. The Agency will then re-evaluate and reduce the level of support the paying parent needs to provide based on the calculator system.

What happens if the paying parent refuses to pay?

The receiving parent can contact the CMS which would then take appropriate enforcement measures such as applying for a court order to take legal action.

What happens if the paying parent dies during the support period?

CMS payments would cease on the death of the paying parent. State benefits, such as Universal Credit, may be available to the surviving parent, depending on their circumstances at the time.

Are there any other options besides the CMS for parents to agree Child Maintenance?   

Agreements between parents can be negotiated with support from experienced family law experts such as Jones Myers.

Our specialist services include mediation, a non-confrontational option for parents to reach a solution in a spirit of co-operation which puts their children’s best interests first.

As a qualified Mediator and Child Inclusive Mediator I regularly see at first hand the  benefits of the mediation process for parents, children and the wider family.

Spousal Maintenance

Divorce does not automatically bring an end to the financial obligations between divorcing and separating couples.

Significant income disparities between spouses may require ongoing financial support to prevent undue hardship, especially when considering the well-being of any children involved.

What is Spousal Maintenance?

Spousal Maintenance is a payment made by one party to the other as part of the financial settlement on their divorce or separation.

Usually, it is paid every month and can last for either a defined period or, in increasingly rare cases, until one of the former spouses dies.

Spousal Maintenance is different from Child Maintenance, which is statutory. It is not an automatic  entitlement and only applies to divorcing couples.

How is the amount and duration agreed?

There is no set formula for working out Spousal Maintenance payments. How much is paid and for how long can be settled through mutual agreement between a spouse and their ex during divorce proceedings.

Information is exchanged about each spouse’s income and their monthly outgoings. If one spouse has insufficient income to meet their needs and the other can afford to make up or contribute to that shortfall then Spousal Maintenance may be appropriate.

Interim Spousal Maintenance can be agreed or ordered in the initial stages of separation to ensure that the spouse who is weaker financially can manage their basic monthly outgoings.

Does getting Spousal Maintenance involve going to Court? 

If the couple are unable to come to a mutual agreement, the Court can decide whether Spousal Maintenance should be paid.

In every case the Court must consider the possibility of a Clean Break Order – which severs all financial ties between the couple.

If a Clean Break Order is not appropriate immediately, the court will order what the Judge considers to be a reasonable level  of Spousal Maintenance – and for how long this must be paid.

The court will have before it detailed information about the income available and each party’s income needs. Spousal Maintenance is usually only ordered for a fixed period of time, long enough to enable an adjustment to independence.

How can couples reach a solution without going to court?  

More couples are turning to non-confrontational options, which allow them to retain control of decisions which affect them, put their children’s best interests first and avoid costly and destructive court battles.

They include negotiation, mediation or collaborative practice where couples and their lawyers commit to find a positive solution without going to court and sign a binding agreement to that effect. Our specialist lawyers at Jones Myers have extensive experience in advising couples in these areas.

In what circumstances is Spousal Maintenance terminated?

When Spousal Maintenance ends will be set out in the court order.  Typically this will be when the spouse receiving the payments has had time to adjust to independence or when their financial needs are reduced. For example, when the children finish school or university, or they leave home.

Spousal Maintenance will cease when one of the spouses dies or if the recipient of the maintenance gets married again or enters into a civil partnership.

What happens if the parties situation changes?   

If the circumstances of the spouses alter significantly after a Spousal Maintenance Order has been made, they can agree to change the payments ordered and send an agreed order to the Court which supersedes the original order.  If agreement is not possible then either of them can apply to the Court to vary the terms of the order.

The Court will consider factors such as changes in income, employment status or financial needs to assess if a variation is appropriate.

For vital areas of law such as Child Maintenance and Spousal Maintenance, I cannot emphasise enough the importance of consulting experienced family lawyers like Jones Myers.

Offering expert legal advice to our clients, we help them to understand their legal position and options.

Providing legal guidance and representation with child maintenance disputes, we support clients to ensure that the child maintenance arrangements are fair and reasonable.

Our approach prioritises resolving disputes in a non-confrontational manner, allowing us to assist couples in reaching voluntary agreements for child maintenance.

We can also assist in negotiating Spousal Maintenance agreements to reach a fair and mutually acceptable solution. If an agreement cannot be reached through negotiation, we can represent clients in court proceedings to seek a Spousal Maintenance Order or to vary an existing order.

Read more articles by Nicki Mitchell.

About Nicki Mitchell

With three decades experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.

A skilled mediator, child inclusive mediator and collaborative family lawyer Nicki champions Alternative Dispute Resolution processes which avoid a lengthy court process and can lead much more quickly and cost effectively to a successful resolution.

Her exceptional track record also includes advising clients on the more traditional methods of resolving issues surrounding family breakdowns. Direct Dial: 01904 202553 or email  Nicki.mitchell@jonesmyers.co.uk  www.jonesmyers.co.uk

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Financial Disclosure: How to Gather Information

Published on
Vikkie Chetcuti-Gee
Vikkie Chetcuti-Gee
Associate
Burgess Mee

If you are filing a divorce application, you will also need to think about the financial aspect of your separation and how your assets will be divided between you. Although the two are (legally) separate processes, they go hand in hand and should be considered at the same time.

As part of figuring out how to financially separate from one another, it is likely that you and your spouse will need to exchange financial disclosure. In this jurisdiction (England and Wales), you have a duty to be full and frank with each other, which means you must both disclose all of your assets, liabilities and income wherever they are in the world.

What is financial disclosure?

If you are attending mediation with your spouse the mediator may have their own procedure and bespoke forms for you to complete. However, ordinarily, you will both need to complete a ‘Form E’, a long document which asks you to set out your financial position in detail. The purpose of the form is to allow each of you to have a clear picture of what the other has and says they will need so that you can make informed decisions about how the finances should be divided (or if they should be divided at all).

Once you have exchanged financial disclosure, you will both have the opportunity to ask questions about the information provided if further evidence or clarity is required. For example, if you are aware that your spouse has another bank account that they have not listed in their Form E, you can ask about this in your questionnaire. If, after receiving the answers to your questions, you are still not sure you have a complete picture, you can raise further questions in a document called a ‘schedule of deficiencies’. This is not an opportunity to ask new questions but to focus on the questions you originally asked that have not been answered properly.

If court proceedings have already been issued then you will both be required to complete the Form E as a formal court direction and it will be referred to in the proceedings and seen by the judge(s) who hear your case. If you are exchanging Forms E voluntarily but proceedings are issued later on (which may require you to complete the form again if it is sufficiently out of date or circumstances have changed) it is important to bear in mind that the court can see your original form.

What documents and information do I need to provide?

The Form E is divided into numerous different sections to enable you to provide information on:

  • Any property in which you have an interest.
  • The sums held in your bank accounts and any investments you may have. Also, the value of any life insurance policies.
  • The value of debts that are owed to you (for example, if you have loaned money to a friend that you are expecting to be repaid), any cash held in excess of £500 and any belongings worth more than £500.
  • Any liabilities you have, such as credit cards or bank loans and any CGT you would have to pay if any property or other asset you have is sold.
  • Business assets and directorships.
  • Pensions (excluding the state pension but it will not hurt to obtain a valuation online for this so that you are aware of any potential shortfall that may need to be addressed as part of the settlement), other assets and income (from employment, self-employment, partnership, investments, state benefits and any other income).

The form also asks you to confirm your income and capital needs (i.e. how much you need to meet your outgoings and to house yourself) and any other information you would like the court to take into account. This includes, but is not limited to, any significant changes in assets or income in the last 12 months or that you expect in the next 12 months. Finally, you can confirm what orders you would like the court to make. Even if you are not in court proceedings and are completing the form voluntarily it can be a good idea to complete this section to ensure your spouse has a clear picture of what you would like to happen. If you have a solicitor, they can advise you how to complete these sections.

You are also required to provide documents in support of the information you have provided. There is an extensive list on the final page of the form; depending on your circumstances, these may include:

  1. A recent mortgage statement (if applicable) and any valuations obtained in the last 6 months for any properties or land in which you have an interest.
  2. For each of your bank accounts, statements for the last 12 months (this is usually one of the most cumbersome tasks in preparing your disclosure).
  3. The latest statement for any investments.
  4. The surrender value for any life insurance policies.
  5. The last two years’ accounts and any other documents on which you base your valuation of your interest in any business.
  6. A statement confirming the cash equivalent value (or ‘CEV’) of your pension(s) and confirmation of your state pension entitlement.
  7. Your last three payslips, most recent P60 and P11D if you are employed.
  8. A copy of your last tax assessment (or a letter from your accountant confirming your tax liability) if you are self-employed and management accounts if your net income for the last financial year and estimate income for the next 12 months is significantly different.

You can also provide additional documents where necessary to explain or clarify any of the information you have supplied in the form.

Common mistakes people make when completing their disclosure

Providing your disclosure can be a protracted and cumbersome task so start gathering this information as soon as possible. It’s not unusual for mistakes to be made but these can lead to avoidable questions being asked at the questionnaire stage, which can increase the time spent on exchanging full disclosure and, if you have a solicitor, will increase your costs.

A common mistake is failing to list bank accounts because they are inactive or have a nil/negligible balance. Even if you no longer use the account, it must still be listed and bank statements provided (evidencing the zero balance). Another mistake is not calculating the total figures correctly. The form provides for all of your assets (less any liabilities) and income to be set out so that your spouse has a clear snapshot of your financial situation. Miscalculations can lead to further mistakes down the line if the figures are used in, for example, an asset schedule.

Finally, it is really helpful all round if the documents attached to the form are in a coherent and clearly labelled order. When putting your disclosure together you should aim to provide as much information clearly and as concisely as possible to avoid further questions. Bank statements are often numbered so it can be easy to see where there is a missing page. Likewise, provided there is a clear run of chronologically-dated entries, there is no need to include the superfluous pages often sent by banks.

What happens if you and your spouse agree not to exchange financial information?

It is possible for you and your spouse to agree not to exchange full disclosure via Form E. This might arise where the situation is amicable between you and you have already agreed how to resolve the financial aspect of your separation (which will need to be jointly filed with the court in a consent order). In that case, the court still requires you to provide some disclosure, but in a much shorter form called a ’Form D81’. This is simply a summary of your finances that shows the net effect of your agreement without providing full details or documentary evidence in support.

If you and your spouse have agreed the above, your solicitor (if you have one) is unlikely to be able to advise you properly about whether or not the agreement you have reached is fair and in line within the bracket of outcomes that a court may have ordered. To do this, they will need to see full disclosure by way of the process set out above. It is not uncommon for solicitors to ask clients who wish to proceed this way to sign a waiver confirming that they understand they are entitled to see full and frank financial disclosure from their spouse, that they wish to proceed without it, and that they accept the inherent risk that there may be unknown assets (or liabilities) of which they have no knowledge. It can be extremely difficult to revisit once concluded so advice should always be sought and caution exercised as to any potential unknowns. Your solicitor is not trying to be difficult. Instead, use this point as a moment to pause and reflect as to whether you are entirely content with the agreement you have reached and whether there is anything else you wish to know.

Conclusion

The main thing to remember when preparing your Form E is to start it early (don’t leave it until the week before you are due to exchange) and be as thorough as possible. It is one of the most important documents you will need to prepare during your separation and will be referred to often. Your case could be delayed if it is not completed correctly or insufficient information has been provided. It is also an opportunity for you to take stock of your own financial situation, obtain a much clearer understanding of your family’s overall finances and help you plan for the future.

Read more articles by Burgess Mee.

About Vikkie Chetcuti-Gee

Vikkie Chetcuti-Gee handles a range of family law cases, including complex financial proceedings frequently involving family trusts, significant business structures and forensic disclosure requests. She specialises in pre- and post- nuptial agreements for a range of clients from all walks of life, often for high net worth clients with a focus on sports personalities and their families. She also has a wealth of experience in private children law matters, particularly involving allegations of domestic violence and abuse, and where the other party involved is particularly intransigent. Vikkie is a member of Resolution and is committed to resolving cases in a non-confrontational way where possible.

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Agreeing Living Arrangements for Autistic Children When Separating
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Agreeing Living Arrangements for Autistic Children When Separating

Published on
Rina Mistry
Rina Mistry
Senior Associate & Solicitor
Nelsons Solicitors

According to statistics, there is an increased risk of separation between parents of children with autism due to the challenges posed by the condition placing an additional strain on the relationship.

Agreeing on living arrangements for autistic children when parents are separated can be a complex and challenging process. Rina Mistry, senior associate from Nelsons solicitors is outlining some of the steps and considerations that may help in such situations.

Child’s best interest

First and foremost, it is vital that the child’s well-being and best interests are prioritised over and above personal differences. Parents must consider the child’s unique needs, routines, and preferences when deciding on living arrangements. This must be made a priority; the focus is the children’s best interests and not the interests of the parents.

Open communication

Parting couples need to maintain an open, respectful, and constructive communication with the other parent. Discussing the child’s needs, strengths, challenges, and potential living arrangements should be carried out in a calm and constructive manner. This does not necessarily need to be in person, and it is now very common for parents to use court-approved apps as an effective way of co-parenting.

Parents need to acknowledge and respect the other parent’s role in their child’s life. A positive relationship between the child and both parents should also be encouraged.

Consistency and routine

Children with autism often display repetitive behaviours and interests, meaning that they benefit from having a strict routine in place. One way in which to do this would be for the parents to remain living in the family home together. However, this might not be practical in the circumstances and could certainly present difficulties.

Nesting or birdnesting is becoming increasingly popular among separating parents and can provide a short-term solution to the arrangements for the children while long-term plans are being made. The advantage of a nesting arrangement is that the children will remain in the family home (the nest), while the parents leave and return to the property sequentially.

At the very least, parents need to aim for consistency and stability in their child’s living environment and routines. This could include creating a schedule that allows the child to adapt comfortably between both parents’ homes.

Collaborative decision-making

Parents should seek to collaborate on and agree on a detailed parenting plan that includes the child’s specific needs and care requirements and the living schedule, including weekdays, weekends, holidays, and vacations.

The parenting plan should address how both parents can support the child’s therapies, schooling, medical appointments, and any other important decisions that need to be taken and agreed upon.

Flexibility and adaptability

It is important to be flexible and willing to adapt the living and contact arrangements as the child’s needs change over time. Parents are also advised to maintain a cooperative approach, allowing adjustments when necessary.

Professional input

Based upon the circumstances, advice from therapists, educators, or healthcare professionals who understand your child’s needs may need to be obtained. Their insights and recommendations can provide guidance in creating suitable living arrangements.

Documentation

Separating couples should keep records of all agreements and modifications made regarding their children’s living arrangements. Written documentation can help prevent misunderstandings and serve as a reference if conflicts arise.

Self-care

Finally, take care of yourselves as parents. Managing a child’s needs, especially one with autism, can be demanding. Ensure you have a support system and take time for self-care to manage stress effectively.

Remember, each situation is unique, and what works for one family may not work for another. Flexibility, empathy, and a child-centred approach are key in finding suitable living arrangements that meet the needs of an autistic child in a separated family.

Guidance and advice from a specialist family law solicitor can be instrumental in navigating these challenges and can ensure clarity and enforceability in the arrangements made.

Read more articles by Nelsons Solicitors.

About Rina Minstry

Rina qualified as a Solicitor in 2013 and joined the expert Family Law team at Nelsons in December 2020 as a Senior Associate, following its acquisition of Glynis Wright & Co.

Rina advises on a wide range of family law work, including divorce, civil partnership dissolution, finances, separation agreements, child arrangements, parental responsibility, cohabitation/living together agreements, Prohibited Steps and Specific Issues Orders, child relocation, parental alienation and domestic violence.

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What About the Dog? Pet Custody and Divorce
Photo by James Barker on Unsplash

What About the Dog? Pet Custody and Divorce

Published on
Karis Nafte
Karis Nafte
Founder
Who Keeps the Dog

Imagine this scenario, if you or someone you know hasn’t already been in it: You and your ex have decided to go your separate ways. Whether a divorce or a breakup of a long-term partnership, the relationship is over and now you are faced with the horrible question no one wants to even consider: “Which one of us is keeping the dog?” If your separation is peaceful, or relatively peaceful, your first impulse might be to agree to share your dog. After all, you both love Rover and you are reasonable people, right? Here are some things to consider if you are thinking about sharing your dog with your ex.

As a Certified Dog Behaviour Consultant and pet custody mediator, I work with people going through divorce to navigate, and resolve, what will happen with their pets. Some have just decided to separate and want to resolve the question of their dog in the most fair and peaceful way possible, or they have children and want to come up with a plan for their dog that will allow the dog to move with the children between homes that will keep the dog’s routine consistent and happy for them. Others realise that, while they both want the dog, they do not want the decision to come from court where a judge decides for them.

My most heartbreaking type of clients are people who have already tried to share their dog and it is no longer sustainable, either for them or for their dog. The initial intention may have been made as a kind-hearted compromise, while for others it was the best way to pacify an angry ex who was making threats about fighting over the dog. By the time these people reach out to me it has sometimes become so stressful for the dog that they have become highly anxious or sick. Or things have become so toxic between the people they can’t rationally talk to each other anymore or worse, when it has become clear their ex is using the dog to keep tabs on them and force them to stay in their life.  Sometimes their ex has simply taken the dog and moved away in secret.

What people may not recognise initially is that sharing the dog with your ex may keep the wound of your relationship open for months or years, not allowing for the space that is needed to heal or move forward.  Without realising it, fighting over the dog can be a way to keep the relationship going with their ex. Constant conflict about the dog can be easier than simply saying goodbye. The connection over the dog has been described to me as “the last thing that is keeping us together”, “the final nail in the coffin”, “the symbol of everything that was good about us”, “they took my heart with them, I can’t let them have the dog too.” etc. Keeping the dog may feel like a victory, allowing your ex to have the dog means you are the looser. This can feel especially harsh when there were issues of infidelity, or if one of you moved quickly into a new relationship while the other has not.

If you are thinking about sharing your dog with your ex, ask yourself the following questions:

  • Will you be able to move on and heal from the divorce if you are in regular contact with your ex for as long as your dog is alive?
  • Do you want to know when they are in a new relationship and with whom or vice versa? How will it feel when you do have a new relationship for your ex to still be a constant presence in your life?
  • What if either of you have children, or buy a new house, do you want to have to share all those details of your life with them?
  • What if you decide to move to a new city because of a job promotion? (Imagine driving for hours to visit your dog.)
  • And the most important question of all – if your dog starts to become stressed or anxious by moving between two homes, do you love them enough to accept that one of you will have to say goodbye to allow your dog to live with one of you?

People, deliberately or not, may use a dog as a weapon against their ex for revenge, for power, or as a sneaky way to keep close tabs on their ex because they refuse to let go of the relationship. Carol called me in tears and told me an all too familiar story. When she asked for a divorce, her ex-husband agreed Carol could keep Charlie, her beloved dog. He would pay for their dog’s expenses for the rest of Charlie’s life provided he could come visit the dog when he wanted to. At the time, Carol was so relieved that he didn’t fight to keep Charlie that she signed the agreement as part of their divorce. Four years later Carol is trapped, emotionally she can’t move on from her divorce because her ex keeps dropping in to “visit Charlie”, often with a new girlfriend or fresh from an expensive exotic vacation. For Carol, the visits to Charlie feel like an assault. “He was never that interested in Charlie when we were together. It always feels like he is using Charlie as an excuse to punish me for leaving him. I never want to see him again, but I know that as long as Charlie is alive, I have no way to keep him out of my life.”

Carol is too scared to tell him to stop the visits because she is worried he will try to get custody of Charlie is she broke the agreement she signed. He has the money to pay for a lawyer, she doesn’t.  She was constantly anxious / and on edge / about this. “If I had only known what I was setting myself up for I never would have granted permission for this man to stay in my life in this way. I just want to move on with my life.”

Now, let’s talk about the biggest missing piece of this conversation and the reason I started doing the challenging, but necessary, job I do. The dogs themselves. The first question when people are considering sharing their dog should be “will this be good for the dog?” When I ask my clients if they think their dog is happy moving between houses, most feel that it would be easier on the dog if they only had one home.  I hear things like, he seems to tolerate the transitions okay, it only takes a few days for her to settle down, she seems to get used to the routines. And upon reflection, most of my clients tell me they wished they had never agreed to share the dog in the first place, that the dog would be much more content in one home, but they need help to work though the emotional entanglements to figure out a way forward.

Some dogs show their stress about moving homes in subtle ways, skipping meals, sleeping more than normal, avoiding people they are normally engaging with. For some it is much more obvious, becoming destructive, running away from the car if they know it is transition day, peeing inside or even nipping out of fear.

Peter was distraught. After months of fighting with lawyers, a judge in California ordered his dog, Daisy, an elderly girl with some health issues, be shared 50/50 with his ex-wife living one week with him, and one week with her. His ex-wife was not a stable person and had never spent much time caring for Daisy. After her first week with his ex-wife, Daisy hid in the closet for two days and refused to eat. She then wouldn’t leave Peter’s side unless he tried to get Daisy to go in the car, and every time he did, she ran back to hide in the closet. When he was forced to take Daisy back to his ex she panted and howled the entire way to her house and had to be dragged out of the car.

Can shared custody work?

Yes, it can, with the right dog and the right people. Certain genetic backgrounds for dogs, those bred for protection or herding work, will make it harder for them to move between homes because their heritage means they bond very strongly with one primary person. Dogs who are anxious or don’t cope well with change will also struggle. Whereas very easy going, mellow, curious and confident dogs can manage home transitions better. Every dog has to be looked at honestly as an individual.

Verbal agreements may be doomed to fail, so if you want to give it a fair shot, get professional help to write up a plan with clear boundaries and fair mechanisms to change the agreement if the dog is not coping, becomes sick or when they become too elderly to continue. To force a dog to remain in a shared custody beyond fairness to the dog is not ethical or fair. Our dogs deserve enough love and caring from the people in their lives that, even if it means one person has to give up the dog, their happiness is the most important thing.

About Karis Nafte

Karis Nafte, CDBC founder of Who Keeps the Dog, Pet Mediation is the worldwide pioneer in pet custody mediation and the first dog behaviour expert and mediator teaching in this field with more than 25 years experience working with dogs and families.

As well as seeing her own clients, Karis teaches professional development courses in pet custody for divorce professionals, mediators, coaches, collaborative practitioners, attorneys and judges. She has taught all over the world, including for the American Bar Association, the South Africa Association of Family Mediators, the Ontario Association of Family Mediators, The Kentucky Bar Association and many others.

Her book, Who Keeps the Dog? Navigating Pet Custody During Divorce available from Dogwise Publishers.

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Top Tips To Consider When Preparing For Divorce
Photo by Wesley Tingey on Unsplash

Top Tips To Consider When Preparing For Divorce

Published on
Emma Davies
Emma Davies
Partner
Nelsons Law

Going through a divorce is a stressful time that can cause conflict between both parties. Specialist family lawyer and qualified collaborative practitioner Emma Davies shares her top tips with us to ensure as smooth a transition as possible into the next chapter of your life.

Understand your financial situation

One of the important things you will need to consider is the distribution of financial assets. Estimating the value of the marital pot will help give you an idea of what you may be entitled to as the Court’s starting point is equal sharing of matrimonial assets.  Giving consideration to your housing needs and what you would need to purchase your own property taking account of your mortgage capacity is a helpful starting point as the Court has the discretion to depart from equality depending on the needs of the parties and their dependent children.  We’d always recommend keeping a budget of your income and expenses as this will help in determining whether you would be entitled to spousal maintenance and, if so, the appropriate amount.

Collate the paperwork

Gathering together all of the relevant financial documentation is at an early date will save a lot of time moving forward and vastly aid in your preparation. Some of the documents you need to ensure you have are:

  • All bank and building society account statements for the last 12 months;
  • Up to date credit card statements;
  • Redemption statements for loans;
  • Details and documentary evidence of investments;
  • Cash Equivalent Transfer Values for pensions
  • Mortgage redemption statements; and,
  • Property Title information.

You will also need your most recent P60 and payslips if you’re employed, or two years of accounts if you’re self-employed.

Look to the future

It can be very easy to get bogged down in the present and focus only on the current proceedings. However, it’s important to consider if it is possible to become financially independent from your spouse after your divorce and whether it is possible to undertake further training or a change of job to improve your position. While the Court can make an order providing you with spousal maintenance if you cannot meet your income needs,  it will work towards the financial independence of both parties and achieving a clean break focussing on what both parties earning capacity is.

Entitlement to child maintenance is,  in most cases, determined by the Child Maintenance Service.  The online child maintenance calculator on the gov.uk website serves as a useful starting point to ascertain the appropriate amount that should be paid by the non-resident parent.

Document your valuables

Keep a full record of possessions with photographs if possible – this includes the contents of your house, vehicles, jewellery etc.–  if anything goes missing, this provides proof of its existence. Try and agree an amicable division of these chattels as often, the legal cost in doing so are disproportionate to the value of those items.

Don’t act in haste

It can be tempting to make quick decisions such as moving out of the marital home., Take legal advice before making any decisions of this magnitude. Once such decisions are made, going back on that choice can often be far more difficult and could also have an adverse effect on your case.

Seek expert advice

The most important thing to do before starting a divorce is to seek legal advice. Having a solicitor put a strategy in place to help you navigate your way through proceedings will drastically ease stress during what we know can be an overwhelming and emotive time. Solicitors can give you a good indication of where you stand and how divorce will affect you financially. Every case is different, and it’s important you seek advice tailored to your specific circumstances.

About Emma Davies

Emma is a partner and head the family law team at Nelsons. She qualified as a Solicitor in 2008 and has been at Nelsons since 2009.
Emma advises on divorce and financial settlements which involve complex issues and substantial assets. She also advises on pre and post nuptial agreements and separation agreements along with private law Children Act disputes. Emma is a qualified collaborative practitioner.
Emma’s areas of expertise include divorce, civil partnership dissolution, financial provision, collaborative law, pre-nuptial agreements, post-nuptial agreements, separation agreements, parental responsibility, child arrangements, and prohibited steps orders and specific issue orders.

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