Family Law in Partnership - Page 6

Sadly, we work with many clients who, along with their children, are victims of domestic abuse.

Some flee the spousal home with little more than the clothes they stand up in while others stay and suffer in silence – because they fear losing any legal rights they may have.

It is vital that you know there are injunctions you can take out which entail the Court making an order protecting you and your children from abuse or harassment by your partner/spouse and prevent them from living in your home.

Non-Molestation Order

An FL401 form enables you to apply for a Non-Molestation Order, which forbids your spouse/partner from:

• Coming to, or near, your home
• Using or threatening violence against you and your children

• Intimidating, harassing, or pestering you and your children
• Going to places such as schools that you and your children visit regularly.
• Send/engage in threatening communication through letter, telephone, text message, or other means of communication (including social media).
• Not to instruct or encourage a third party to do any of the above on their behalf.

Occupation Order

The same form can also be used to apply for an Occupation Order, where the court decides who should live in, or return to, the home or any part of it.

Depending upon your circumstances, you can apply for a non-molestation order, an occupation order – or both.

The application does not require court fees. If a family lawyer assists you with the application, you pay for their fees. Legal Aid is available for applications of this nature provided the required thresholds for qualification are met.

Key Factors the Court Will Consider 

• The housing needs/resources of you and your spouse/partner and children

• Your respective finances
• Your behaviour to each other
• The likely impact of a Court order/decision not to exercise its powers, on the health/safety/wellbeing of you, your spouse/partner and your children.

Considerations for Married Couples

If you were married and have no existing right to occupy the property, the Court will also examine:

• The length of time since you last lived together.

• How long ago your marriage was dissolved.
• If any current legal proceedings exist between you for a financial order following your divorce, or for an order under Schedule 1 Children Act 1989 for financial relief or relating to the legal or beneficial ownership of the property.

Considerations for Cohabitees

If you are living with your partner and have no existing right to occupy the property, the Court will examine:

• If you have any children together or if you have, or have had, parental responsibility for any children (stepchildren, godchildren etc)

• If an Order is made in your favour, it could be for a specified period – often six months – or until another Court Order is made. In some situations, the Order can be renewed for another six months.

The protection the court offers is available to married, divorced, cohabiting and former cohabiting couples along with those in civil partnerships.

Domestic abuse occurs in all levels of society – regardless of race, gender, wealth, or age.

In confidential consultations highly skilled and sensitive family law specialists like us who have extensive expertise in helping victims of victims of domestic violence, discuss all your options and advise on the way forward. This includes court applications for an injunction as outlined above.

We can also suggest other organisations who can help you outside the legal process.

For more information on the FL401 form, visit the Government website.

Click here for more articles by Anthony Parrish

About Anthony Parrish

Anthony’s extensive experience in family law spans over two decades, during which time he has developed specialisms in matters relating to children law.

A member of Jones Myers internationally renowned Children’s Department, he deals with issues relating to children, teenagers, parents (including those represented through their official solicitor) and local authorities.

His expertise also encompasses international child abduction cases and same sex relationship issues.

2022 has been a landmark year for family law, with the introduction of the ‘no-fault’ divorce law coming into effect on 6 April removing the need to prove a relationship has broken down.

Meanwhile, many couples across the country are still waiting to tie the knot following Covid-related postponements and delays to their wedding day.

Although a pre-nup may appear unromantic on the surface, I discuss why now is the time for these couples to consider putting one in place.

What are pre-nuptial agreements?

A pre-nuptial agreement, or pre-marital agreement, is an agreement made by a couple before they marry or enter into a civil partnership. It sets out how they wish their assets to be divided should they divorce or have their civil partnership dissolved.

Pre-nuptial agreements are not automatically enforceable in English and Welsh courts.

Commonly associated with the rich and famous, pre-nuptial agreements can often be sensationalised by news stories. This has led to widespread belief that the agreements are unfair, worthless and unromantic, when in fact they can be a sensible, fair and transparent way to discuss financial matters and agree the outcome in the event of separation.

What does the court say?

In 2010, the Supreme Court held that courts should give effect to a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

The ruling does not make pre-nuptial agreements binding in all cases, but the fairness of upholding any particular agreement will be considered by the court on a case-by-case basis.

However, some pre-nuptial agreements will now have effect in the absence of circumstances, which would make this unfair.

In February 2014, following consultation, the Law Commission published its final report, Matrimonial Property, Needs and Agreements.

Among other things, it recommended the introduction of “qualifying nuptial agreements” as enforceable contracts, which would enable couples to make binding arrangements for the financial consequences of divorce or dissolution.

These agreements, which would have to meet certain requirements, would not be subject to the court’s assessment of fairness. Couples would not be able to contract out of meeting the financial needs of each other and of any children.

Growing in popularity

While not everyone will want to contemplate the end of a marriage or civil partnership before it has even begun, pre-nuptial agreements are certainly gaining in popularity as a good way of helping couples decide what should happen in the event of a divorce.

The creation of a pre-nuptial agreement also requires that certain formalities are observed, which can help provide further peace of mind for both parties. For example:

• The agreement must be entered into by both parties without any pressure from one party on the other;
• An agreement signed within 21 days before the marriage or civil partnership is generally regarded as inappropriate;
• Both parties must fully appreciate the implications of entering into the agreement. Before any agreement is signed, each party must be fully aware of the financial position of the other;
• Individuals should both take independent legal advice before entering into the agreement from a specialist family lawyer;
• The agreement must be fair, making provision for any children and future children. It must meet the needs of the parties and any children;
• Reviewing the pre-nuptial agreement if there are any changes in circumstances, such as the birth of any children.

Three golden rules

As with any formal paperwork relating to relationships, the prospect can be somewhat daunting.

However, there are three simple and easy-to-follow pieces of advice that we recommend couples follow when deciding to get a pre-nuptial agreement:

1. Don’t leave it until the last minute

Explore the topic early on and don’t wait until the week before the wedding to discuss a pre-nuptial agreement. You will have enough to worry about as your big day approaches, so plan ahead.

2. Think with your head and not with your heart

It is difficult to talk about a loving relationship as if it were a business arrangement. You and your partner need to think logically, rather than emotionally about the preparation of a pre-nuptial agreement.

3. It’s not just about protecting the “wealthier” partner

Traditionally, a pre-nuptial agreement determines the fate of assets that each party brings to the marriage. But the agreement can also address debt obligations, future inheritance and gifted financial resources from outside of the marriage. Both of you stand to benefit from having the agreement in place.

A pre-nuptial agreement does not have to be an unromantic, daunting or depressing task. An agreement can often help couples better understand exactly where they stand at the start of or during a marriage or civil partnership and in the event of divorce.

Hopefully, the agreement will never be needed, and a couple will spend many happy years together.

Click here for more articles by Nelsons

About Layla Babadi

Layla is a Legal Director at Nelsons. She qualified as a solicitor in 2005 and joined the Family Law team in 2015.

Layla specialises in divorce and separation, with a particular emphasis on international divorce law. She also advises on pre and post nuptial agreements and separation agreements.

Many areas of life that are usually dealt with in person have been conducted online during the pandemic – and divorce proceedings are no exception.

As the COVID-19 restrictions ease, however, and near-normal service starts to resume, will digital divorces become the way forward or will clients return to their solicitors’ offices and courtrooms?

Are more divorcing couples now having digital divorces?

Most mediators only offer virtual meetings, while court hearings take place via phone and video. Divorce proceedings had been heading online before the pandemic but that change had only just come in for solicitors. Coronavirus has accelerated the decision to go digital.

What are the advantages of taking divorce online?

When it comes to the mediation aspects of divorce, some people feel more comfortable doing it over Zoom or Teams because they don’t have to be in the same room as their ex-partner. Mediators do have ways of getting around that potential issue though without going online.

For people handling their own divorce, taking the digital route means they can do it after normal working hours as the internet is available to them at any time. Of course, their application won’t be processed by the court until the working week begins, but it can be uploaded after hours. Digital divorces are quicker; during the pandemic court offices have been working remotely.

Are there any disadvantages?

Some aspects of the divorce process are definitely not best dealt with online. Couples who try to manage their own divorce proceedings online can find that the process moves more quickly than they anticipate and then find themselves at a disadvantage being divorced without first having sorted out their finances.

A good solicitor will advise their clients that they can use the court’s digital portal to reduce the costs on divorce, but that they are most unwise to ever consider not seeking the advice of a lawyer on where they stand financially before starting the divorce process online.  This is because some rights, for example spouses pensions, are lost at the moment the divorce is finalised.

Advice is also necessary because many people fail to appreciate that just because they are divorced that in itself doesn’t bring to an end the financial claims of their former spouse.  Further steps are needed in order to finalise those claims which otherwise remain open, potentially forever.

Also, some divorces produced online don’t look quite as official as paper ones. There have been occasions where clients haven’t been sure if they’ve received their court papers or not.  A solicitor can quickly clarify the position.

Do digital divorces save couples time and money?

Online divorce proceedings are designed for processing the divorce as opposed to settling the couple’s finances. If it’s a straightforward divorce, it can save parting spouses money as they only have the court fee to pay and not the solicitor.

Other than the fixed legal time limits, it can also save them time as the digital paperwork can be turned around much more quickly than the paper documents.

Solicitors also have access to the court’s digital portal and utilise the facility where they can to speed up the process for their clients where this is possible and appropriate.

Using the digital process without first seeking proper legal advice can mean that couples can lose out financially.

Will digital divorce continue once the pandemic is over?

With regard to processing divorce documents, the online option will continue. It is highly unlikely that the courts will backtrack on this now as removing the need for paperwork must save them a lot of time and money. Well before the pandemic, it was always the courts’ intention to go digital wherever possible. The outbreak has served to hasten this development.

Divorce hearings will continue to be held in court to some extent despite the digital revolution. Some hearings don’t work well online. Many people find them less than satisfactory, so in an ideal world, they will go back to face-to-face. On the other hand, directions hearings are procedural so may continue to take place either by video or phone, as they can be dealt with quite efficiently in this way.

Furthermore, financial consent orders work really well digitally. They can be uploaded to the court portal and dealt with rapidly, within a maximum time scale of four weeks.

Pre-pandemic, these orders were taking three to four months, so going digital has really speeded things up.  However, it is important that clients get independent legal advice on finances before considering applying for a consent order so that they are aware of all of their rights and understand the implications and consequences of the terms of the proposed order.

Hopefully, those hearings where final decisions are made with regard to the children of divorcing couples will no longer be held remotely – that way people can feel more confident that these important and emotional aspects have been dealt with properly.  The courts are already moving towards listing these hearings in a courtroom.

Body language can’t be read as accurately over a video call as it can in person. Video links can be disjointed – people start talking at the same time, especially on phones when there are no visual clues, or they can be cut off. Mobile signals at home can be unreliable and, as many of us have witnessed during the pandemic, there can be delays getting people on the line. While these are all challenges with technology that we’ve come to expect, it adds to what is already a highly-stressful time.

Some hearings are already going back to being held in courtrooms, so clearly, the intention is there. I imagine they’ll increase as social distancing regulations ease, making it easier to use more courtrooms at the same time.

Bearing all of this in mind, ideally, there should be a hybrid approach to divorce proceedings as we emerge from the pandemic.

Click here for more articles from Nelsons’

About Angela Maxfield

Angela qualified as a solicitor in 1985 and joined Nelsons’ expert family law team in December 2020 as an associate. Angela specialises in family law and advises on divorce, dissolution of civil partnerships, finances and private children disputes.

For more information on divorce and separation, please visit www.nelsonslaw.co.uk/divorce-and-separation or call 0800 024 1976.

After couples spent more than a year being cooped up in lockdown due to the coronavirus pandemic, it is perhaps unsurprising that there has been an increase in enquiries from spouses who are wanting to split from their partners.

However, making the decision to divorce is not one that should be made lightly. It is crucial to think through and obtain legal advice from the outset, so that you are prepared for the proceedings before initiating.

Whether amicable or acrimonious, going through a divorce is a stressful time that can cause conflict between both parties if not properly managed and prepared for. That’s why preparation is key when it comes to these kinds of proceedings, to ensure as smooth a transition as possible into the next chapter of your life.

Understand your financial situation

Alongside the divorce, one of the important things you will need to consider is the distribution of the financial assets. Therefore, estimating the value of the marital pot will help to give you an idea of what you may be entitled to as the court’s starting point is an equal sharing of matrimonial assets.

The court has discretion to depart from equality and this is determined by numerous factors. We’d always recommend keeping a budget of your income and expenses, because this documentation may be required when determining the amount of maintenance that may be awarded. 

Collate the paperwork

We understand that the sheer volume of paperwork required for divorce can seem overwhelming, which is why we recommend gathering all the relevant information as your first port of call. Doing this 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 statements and/or evidence for:

• All bank and building society accounts
• Credit cards
• Loans
• Investments
• Mortgages
• Title information

It’s also beneficial to have your most recent P60 and pay slips 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 incredibly important to try and provide for yourself and any children after your divorce, so you may want to consider further training or a change of job to improve your position.

While the court can make an order in providing you with maintenance, it also has a duty to consider the financial independence of both parties moving forwards.

Document your valuables

We would also advise our clients to keep a full record of possessions, with photographs if possible – this includes the contents of your house, vehicles– as, if anything goes missing, this provides proof of its existence. If you have particular concerns that your spouse may damage or take your belongings during proceedings, you may also consider storing valuable items and documents elsewhere for safety.

Don’t act in haste

It can be tempting to move out of the marital home, but any decision of this magnitude should only be made once legal advice has been sought. Once the decision to move out has been made, going back on that choice can often be far more difficult and could also have an adverse effect on finances or the relationship with your children, if you have any.

Seek expert advice

As previously mentioned, the most important thing to do before going through 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 stressful time.

Solicitors can also help to 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 Rupa Parekh

Rupa Parekh qualified as a solicitor in 2017 and joined Nelsons’ family law team in October 2020.

She specialises in divorce and financial settlements, with an expertise in civil partnership dissolution, pre-nuptial, post-nuptial and separation agreements. She also advises on various disputes concerning children and domestic violence, specifically complex high net worth cases.

For more support when it comes to divorce and separation or any other aspect of family law, please visit  nelsonslaw.co.uk.

In the UK, at present, if you want a “no-fault divorce”, then you need to wait at least two years. You may have to wait up to five years. If you want to divorce quickly, then you need to show that you have been the victim of adultery, desertion or “unreasonable behaviour”.

Unreasonable behaviour – the theory

In theory, there are three questions which need to be answered in order to decide if behaviour can be legally deemed unreasonable. These are:

• What did the person do?
• What impact did that have on the petitioner?
• What does the court think of this in the context of the history of the marriage?
• Unreasonable behaviour – the practice

In practice, the court’s job is to determine whether or not a marriage has irretrievably broken down. This means that they generally take that view that “unreasonable behaviour” is whatever the petitioner says it is unless the other party contests it.

What’s more, the law allows both parties and the courts a little room to manoeuvre. The respondent can choose to state that they disagree with the allegations against them but will not contest the divorce. For the most part, this allows divorce claims to progress in the same way as they would have if the respondent had accepted the allegations.

Presenting a claim for unreasonable behaviour

As a rule of thumb, you want to cite four to six examples of behaviours you consider to be unreasonable and their impact on you. In principle, these examples can relate to any behaviour which makes you feel like it is not feasible for you to continue in the marriage. In practice, it’s likely to be in your best interests to choose “no faults” reasons.

Basically, you want to cite behaviours which highlight mutual incompatibility rather than personal failings. For example, you could cite your spouse working long hours, spending long periods socializing without you or being excessively absorbed in a hobby they practice without you. None of these are personal criticisms, just indications that you should go your separate ways.

You generally want to resist the temptation to make any serious allegations especially anything involving children. Firstly, they may rile your spouse. Even if this doesn’t cause them to contest the divorce, it may cause them to be less cooperative about it. Secondly, it may give the judge the impression that you are weaponizing your children.

For clarity, piling on the examples of unreasonable behaviour will not (usually) increase either your chances of getting custody of your children or the value of any divorce settlement. In fact, once a judge is satisfied that the married is, effectively over, the reasons for its ending are generally completely ignored. They are also sealed off from the general public.

Completing the divorce process

It is absolutely permissible to cite unreasonable behaviour as grounds for divorce but still present the judge with a mutually-agreed settlement arrangement. In fact, it’s highly encouraged, particularly when there are children involved.

Keep in mind, however, that judges will look carefully at these settlements to make sure that they are legally sound. If a judge is unhappy with what they see, they can and will reject the proposal.

Resolving their objections may simply be a matter of making some minor amendments. The issue is that the need to make changes may push the divorce case back to the end of a long queue. This is a particular concern at the moment due to the ongoing impact of COVID19.

It is therefore very advisable to have divorce settlements checked by a mediator and/or a lawyer before presenting them to a judge.

Going forward

If you and your partner are not in a rush to divorce, you may wish to consider waiting until the UK implements “no-faults divorce”. This is currently scheduled for autumn 2021, although this is subject to change.

Click here for more articles by Kerry Smith

Author Bio

Kerry Smith is the head of Family Law at K J Smith Solicitors and are experienced in all matters relating to divorce, civil partnerships, cohabitation disputes and collaborative law.