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Budget 2025: What Families Need to Know When Planning Separation or Divorce
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Budget 2025: What Families Need to Know When Planning Separation or Divorce

Published on
Emma Davies
Emma Davies
Partner
Nelsons Law

The 2025 Autumn Budget brings several tax and financial reforms that could significantly affect separating couples, especially those with complex assets.

Emma Davies, partner and family law specialist at Nelsons, highlights that these updates make it even more important for families to plan ahead. Below Emma outlines the key changes and what they mean for those preparing for separation or divorce.

November’s Budget introduced a series of reforms that will shape how families manage their finances going through separation or divorce, some of these changes carry significant strategic implications.

While many headlines focused on support for lower-income families, the Budget also introduced reforms to the taxation of wealth, property income and investments. These shifts mean that separating couples, particularly those with complex assets, should take specialist advice earlier and plan their financial arrangements with even greater precision.

  1. Increased tax focus on wealth and asset income

A central theme of Budget 2025 is increased taxation on income derived from assets, including investment portfolios, rental properties and other passive income streams.

Why this matters during divorce

  • Asset-related tax liabilities can directly influence the value of a settlement.
  • Transfers of investment assets or property between spouses, traditionally tax-neutral, may now carry more considerations around future tax exposure.
  • Individuals with diversified portfolios will need to evaluate the tax efficiency of keeping or trading certain categories of assets, especially where maintenance obligations are involved.

The opportunity

This is the time to revisit tax planning, both before and during a divorce. With specialist advice and careful planning it is possible to preserve value and reduce future tax exposures.

  1. Property and investment portfolios require new strategy

Reforms affecting property income and the broader taxation of asset-derived wealth mean that real estate portfolios, buy-to-let interests and investment properties require closer evaluation during a divorce.

Potential impacts

  • Rental income may attract different tax treatment, affecting affordability of ongoing financial commitments.
  • Timing of asset disposals, particularly high-value properties or shares, becomes more important.
  • Practical takeaway

During negotiations, it’s no longer just about who gets what, but who can most efficiently hold a particular asset class going forward and it will be important to work in tandem with your family lawyer and other professional advisers.

  1. Pension and long-term wealth planning take centre stage

The Budget includes reforms to pensions and savings support including caps on salary sacrifice pension contributions which means these schemes will become less tax advantageous.  In turn, this affects long-term financial planning during divorce as the ability of divorcing couples to rebuild their pensions post-divorce needs to be considered and may affect how settlements are structured.

For individuals with substantial pension wealth, this means:

  • Greater scrutiny on how pensions are shared or offset.
  • Increased importance of actuarial valuation to ensure fair outcomes.
  • More strategic use of pensions as part of overall settlement structuring.

Given the complexity, specialist advice is highly recommended when reviewing pension division and post-divorce retirement planning.

  1. Tax threshold freezes: A slow-burning impact

Personal tax thresholds remain frozen, effectively pulling more individuals into higher tax bands over time (“fiscal drag”).

For some individuals, this means:

  • Increased exposure to higher tax rates on both earned and investment income.
  • Potential increases in effective maintenance obligations.
  • More need for forward-thinking cash-flow planning post-divorce.

This change subtly but meaningfully affects long-term affordability and financial planning for both parties.

  1. Changes to family benefits: Relevance for blended and larger families

Although primarily aimed at lower-income families, the abolition of the two-child limit for Universal Credit and related child benefits has indirect implications for separated parents, blended families and households with childcare responsibilities split between homes.

For clients with more wealth, the relevance is twofold:

  • It may affect negotiations where one parent has significantly lower income or earns irregularly (e.g. entrepreneurs, directors, or individuals with fluctuating asset income).
  • Where school fees, childcare, and lifestyle expectations are high, these changes may form part of broader discussions about child maintenance and living arrangements.

  1. The landscape is more complex – early planning is essential

The Autumn Budget 2025 creates a more complicated financial environment for separating couples, particularly those with:

  • High-value property portfolios
  • Significant investment income
  • Businesses or shareholdings
  • Trust structures
  • International assets
  • Large pension pots

Strategic advice at the earliest stage is crucial. The way assets are valued, shared, or retained now carries different long-term consequences than it did even a year ago.

Emma emphasises that, despite the added complexity, with the right advice families can still make informed and confident decisions about their future. If you’re considering separation or are in the early stages of divorce, Nelsons’ family law team can help you navigate the Budget’s implications and protect your long-term financial position.

To find out more about Nelsons’ family team, please visit: https://www.nelsonslaw.co.uk/personal-legal-services/family-law-solicitors/

For more information, please contact Huma Mian or Niamh Tracey at Cartwright on 0115 853 2110.

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.

About Nelsons: 

Nelsons was established in 1983 and provides support to businesses, individuals and families with their legal and investment needs. Nelsons’ experience and depth of resource has also enabled them to offer services to other solicitors through Fusion Legal – a mutually-beneficial referrals and support network for law firms. The firm is recognised by the leading, independently researched Legal 500 and is recommended by them in more than 20 practice areas. The firm is recommended by Chambers and Partners and also features in The Lawyer’s UK 200 Annual Report of the UK’s largest 200 law firms. Nelsons has offices throughout the East Midlands in Nottingham, Leicester & Derby

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Family Mediation Week: All the Ways Mediation Can Help During Divorce

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Gayle Rowley
Gayle Rowley
Partner, Solicitor & Mediator
Nelsons Solicitors

This Family Mediation Week (27th Jan – 31 Jan), partner and specialist family lawyer Gayle Rowley is discussing why mediation has become such a popular choice and the benefits it can bring to separating couples.

Although mediation has been around for years, with celebrities such as Tom Cruise, Britney Spears, Jude Law, and Adele all having opted for mediation to resolve their marital disputes, in recent years there has been a rise in using this option to preserve relationships between couples and their wider families.

Gayle, who last year received a full accreditation with the Family Mediation Council, recognising her specific training and commitment to this area of non-Court dispute resolution (NCDR), said: “Every January marks the renewal of discussion around divorce day, with headlines citing ‘the surge in marriage breakdowns’ or ‘the top reason for splitting up’. Headlines like these don’t always tell the whole story, and it’s important to focus on how divorce and separation can be handled in a more positive way.

“Mediation offers divorcing couples a chance for a win-win resolution that involves spending less time and money – allowing them to feel truly empowered in their decisions.

“We have seen an influx of mediation enquiries recently and mediation has certainly become more popular and a way to avoid costly and stressful court proceedings in the right circumstances.”

Family Mediation Week aims to raise awareness of the benefits of mediation and encourage separating couples to think of mediation as a way of helping them to take control, make decisions together and build a positive future for their family.

Mediation allows more open and honest discussions, as proposals put forward during sessions cannot be revealed in Court.

For many, mediation is often recommended when children are involved, to ensure couples are prioritising the wellbeing of their children during this time.

Gayle added: “Mediation is better for children. The process can be significantly less traumatic than for couples who end up in court as it promotes better communication and reduces conflict, while prioritising what is best for the whole family. It also helps avoid larger legal bills, which will be vitally important for most families.

“Courts are still exceptionally busy. Clients can expect a divorce and financial proceedings to take anything from six months to 18 months or more, whereas mediation can help to bring a resolution in as little as a few months.

“Perhaps most importantly, mediation puts the control into the clients’ hands. Going down the litigation route eventually leads to a decision from a judge, meaning one or in fact both parties may end up with an outcome that they do not want, having spent a considerable amount in legal fees.”

About Gayle Rowley

Gayle is a Partner, Solicitor and FMC Accredited Mediator at Nelsons Solicitors. She qualified as a Solicitor in 1997 and worked in our team from 2001 to 2013, and then re-joined the team in December 2020, following our acquisition of Glynis Wright & Co.

Gayle specialises in family law, advising and mediating divorce and separation cases, often involving complex financial settlements. Gayle also advises and mediates in relation to private children law matters, including the resolution of children arrangements, parental responsibility and specific issue orders, and prohibited steps orders

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Grandparents' Rights: What Happens When Your Grandchildren's Parents Divorce?
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Grandparents’ Rights: What Happens When Your Grandchildren’s Parents Divorce?

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

When two parents decide to divorce, there is of course a ripple effect on other members of the family, including children and grandparents. Rina Mistry, senior associate specialising in family law at leading East Midlands law firm Nelsons discusses the legal rights of grandparents, and the challenges that can come up during a parental divorce.

Grandparents play an important role in their grandchildren’s lives – they often act as secondary guardians, they may be involved in special occasions like birthdays and family events, and they can be a link to a grandchild’s traditional culture or religion.

Separation and divorce in any family is an unsettling and uncertain time, with potentially new living arrangements and changes to routines for children and other relatives.

There is often an assumption that grandparents have automatic rights to see their grandchildren, when unfortunately, this is not the case. The law does not give grandparents (maternal or paternal) any automatic rights to be in their grandchild’s lives. This means that if parents choose to keep their children away from grandparents, they are free to do so. This can have a significant impact on the grandparent-grandchild relationship.

Challenges

Grandparents may face a number of hurdles when navigating their grandchildren’s parents’ divorce. Communication may become more challenging, particularly between ex-spouses, which can make it hard to keep contact with grandchildren – especially those that are very young.

In more serious situations, there can be the issue of parental alienation – usually this happens when one parent intentionally tries to damage the relationship between the other parent and the children by speaking badly about them or enforcing negative views. This can also happen with grandparents, which can be traumatic for grandchildren who may have had a close bond previously.

Talking it out

Despite not having automatic rights, grandparents still have options available to them. The first and usually the most effective is to try resolving all issues between the adults, whether it is directly or via the mediation process.

The situation can vary from case to case; it may be that the relationship between the adults has broken down or the grandparents are concerned for the children, and in an attempt to intervene they are denied any further time with the grandchild.

If legal advice is needed, grandparents will always be asked whether or not they have attempted to speak with the parents of the child to try and resolve the issues and further consideration will be applied as to whether correspondence from solicitors may assist to resolve the issues amicably.

If an agreement cannot be reached and a referral to mediation has not yet been made, this will be the next step. Mediation is not only a better option to try and resolve the issues but also far more cost-effective than making an application to Court. Compulsory attendance will be needed at a Mediation Information and Assessment Meeting (MIAM). There are exemptions available, for example if the grandchild is at significant risk of harm, but in most cases, the Court will expect grandparents to attempt to resolve issues through mediation. 

Court application

If mediation is considered inappropriate or is refused by the other party, then the only available option is making a formal application to Court to resolve the child arrangements. This is the last option most solicitors would advise, however, this may be the only available option if all else has failed.

As grandparents hold no parental responsibility, they will need to first ask the Court for permission before being able to make an application for a Child Arrangements Order. If the Court grants permission, then a formal application for a Child Arrangements Order can proceed. However, if the Court does not grant permission, progress would go no further.

Like all applications, the Court will consider each matter individually but must take into account the following:

  • The nature of the application
  • The applicant’s connection with the child
  • Any risk of the proposed application disrupting the child’s life to the extent that they would be harmed by it.

If Court is the only option available, then it is highly recommended that you seek independent legal advice regarding your position and next steps.

Maintaining relationships

Whatever course of action is taken, respectful communication is highly encouraged throughout the process between not only parents but all family members. Not only does this support a more efficient process, but it limits the emotional impact on children and paves the way for better relationships in the future.

Grandparents should take the same approach to not speak negatively about either parent in front of their grandchildren and instead look to focus on their best interests and ensuring they feel cared for and supported.

For more information on grandparents’ rights during a parental divorce, please contact the expert family law team at Nelsons, by visiting www.nelsonslaw.co.uk/personal-legal-services/family-law-solicitors/children-law

About Rina Mistry

Rina Mistry is a Senior Associate in Nelsons’ expert Family Law team, specialising in complex Private Children Law and focusing on several niche areas. These include parental alienation, cross-border jurisdictional disputes, and cases involving serious allegations of harm. She also handles matters related to internal and external relocation, whether temporary or permanent and international child abduction. Additionally, Rina is experienced in private children matters where a child or parent is neurodiverse, surrogacy, applications on behalf of grandparents, and same-sex parenting cases.

Rina takes a client-focussed approach and aims to achieve the best possible outcome for all her clients, considering and tailoring her advice to each individual set of circumstances, whilst always ensuring that the children’s best interests remain at the forefront.  Rina can support her clients in direct negotiations concerning arrangements, issuing a Court application or using alternative dispute resolution, such as mediation or arbitration.

Alongside children-related matters, Rina is also experienced in advising on all matters arising out of divorce and separation.

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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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Top Tips To Consider When Preparing For Divorce
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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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Why Court Should be the Last Resort When Divorcing

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Lisa-Marie
Lisa-Marie Leanders
Partner
Nelsons Solicitors

At the beginning of 2022, it was predicted that divorce rates could surge by more than 50% in the UK. The impact of pandemic lockdowns, pressures due to the cost of living increases and changes in legislation such as the no-fault divorce, could all be contributing factors to this.

A top judge has recently raised the issue that around one-fifth of divorces are wrongly ending up in court, which results in a lengthy legal process that could be harmful for those involved. Here, we discuss how the courts can be avoided when obtaining a divorce.

Going to court can be a grizzly affair that can leave both parties worse off than if they avoided it altogether. And contrary to what might seem typical, there are other, better ways to facilitate separation from a spouse than by ending up in the courtroom. Here are some top tips to avoiding the courts during divorce proceedings:

Explore the other options open to you

Family mediation has the aim of encouraging separating couples to sit down together, work out solutions to the financial and/or children-based issues that can arise as part of a divorce, and reach an amicable agreement that suits both parties.

Other processes that can be used to avoid court are collaborative law, where each party selects a specialist family solicitor and engages in a series of four-way meetings to try to reach an agreement. Another process is arbitration, which involves the couple agreeing to put their case to an arbitrator who is appointed to settle the matters in dispute, much like a judge.

There are a number of advantages to pursuing alternative dispute resolution methods and keeping matters out of court. Firstly, it can help all members of the family unit – including, most importantly, the children – move on to the next stage of their lives more quickly.  Secondly, it is not as adversarial as court processes can be, meaning it’s more likely that the parties will be able to maintain important family relationships after the divorce is concluded.

Communication is key

It is normal to feel intense emotions when going through a divorce, but it is important to try and keep these out of the proceedings. Clear communication throughout helps to ensure court can be avoided in order to reach an amicable and swift separation agreement.

Shortening the process also means there’s less time and opportunities for unpleasant feelings to develop and grow, making it easier to move on from the divorce and keep a level of civility which is particularly important for any dependents..

Be realistic

It’s important to understand that by avoiding court, it is the parties who achieve their own settlement. As such, this offers couples peace of mind that, from the very beginning of the process to the conclusion, they are in charge and retain an element of control over the outcome.

However, it is also important for the client to have realistic expectations of what they are entitled to during divorce proceedings, to ensure a swifter agreement is reached, without needing to take it to court. If you are unsure of what to expect, it can be a good idea to talk to a legal professional before the divorce proceedings or any financial negotiations start.

Ultimately, avoiding litigation can help to settle differences without the hostility that can be brought about by court proceedings, which is especially important if there are children involved, as well as providing a quicker process to help the couple move forward with their lives.

Click here for more articles by Lisa-Marie

About Lisa-Marie

Lisa-Marie is a Partner and Solicitor. She qualified as a Solicitor in 2003, was part of the Nelsons’ expert Family Law team from 2010 to 2016 and rejoined the team in December 2020.

Lisa-Marie specialises in family law and advises on divorce and financial settlements which involve complex issues and substantial assets. She also advises on pre and postnuptial agreements, separation agreements and cohabitation agreements along with private law Children Act disputes. Lisa-Marie is a qualified collaborative practitioner.

 

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Is a pre-nup enforceable
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Is a pre-nup enforceable?

Published on
Layla Babadi
Legal Director
Solicitor
Nelsons

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.

  1. 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.

  1. 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.

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Child Arrangement Orders: the solution to navigating acrimonious separation
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Child Arrangement Orders: the solution to navigating acrimonious separation

Published on
Gareth Protheroe, Nelsons
Gareth Protheroe
Legal Director and
Family Law Solicitor Nelsons

More than five million households in the UK currently consist of a couple with dependent children, according to Statista.

However, with 42% of marriages ending in divorce, according to the Office for National Statistics, this landscape is constantly changing and separating parents across the country are having to learn how to navigate co-parenting while going through what can be an incredibly stressful period in their lives if the split is acrimonious. , explains how child arrangement orders can provide a solution to divorcing parties who are unable to agree on living arrangements for their children.

A child arrangement order, found under section eight of the Children Act 1989, is designed to regulate contact and living arrangements concerning children when the separating parties can’t agree on how much time will be spent with each parent. In these circumstances, the court has the power to make the decisions and specify:

  • Where the child(ren) lives;
  • When and where the child(ren) will see their other parent; and,
  • Other specific matters relating to the child(ren)’s welfare and well-being.

What’s the process?

When making child arrangement orders, the court is required to attach a ‘warning notice’, the purpose of this is to encourage the parties to comply with the order and warn of the consequences of failing to do so.

The child arrangement order must contain the warning notice for an enforcement order to be made. In other words, the person who is in breach of the order must know of the existence of the warning notice. This could be by having a copy of the child arrangement order with the warning notice attached or being otherwise informed.

When a parent fails to comply with the contact arrangement, as prescribed in the order, a party may decide to make a further application to court if they need to enforce it.

If there is a breach in the child arrangement order, the court must consider whether an enforcement order is needed. Before this, the court must first be satisfied that making the order is necessary and proportionate to the seriousness and frequency of the party breaching the order.

Before the court decides to force action, they will consider:

  • The reasons for the non-compliance;
  • The effect of non-compliance on the child concerned;
  • The welfare checklist;
  • Whether advice from Cafcass is required on an appropriate way of moving forward; and,
  • If the parties should attend any dispute resolution programmes.

How are child arrangement orders enforced?

In cases where the court is satisfied beyond reasonable doubt that a person has failed to comply with a child arrangement order, it has the power to enforce it in several ways. These include:

  • Referring the parties to a Separated Parents Information Program (SPIP) or mediation;
  • Variation of the child arrangement order, which could include a more defined order or reconsideration of the child’s living or contact arrangements;
  • An enforcement order or suspended enforcement order;
  • An order for compensation for financial loss;
  • Committal to prison; or,
  • A fine.

What happens if someone breaches a child arrangement order?

Any breach of an order is taken incredibly seriously and the court will often impose sanctions. For example, it can impose a requirement to undertake between 40 and 200 hours of unpaid work or make an order for the person in breach to pay the applicant compensation.

Therefore, if you do not agree with the stipulations set out in the order, it is better to take advice and make an application to vary the order rather than placing yourself in a situation where you may breach it and face the consequences.

Top tips:

  • Think of what’s best for the children: In such a complicated, and often emotional, situation, it can be easy to get wrapped up in the proceedings, therefore it is crucial to consider how your actions will affect your children.
  • Be open and willing to compromise: This is paramount in order for all parties involved to craft the best solution for you and your children.
  • Find a family lawyer who specialises in children’s law: If you have a child arrangement order in place and a party to that order is failing to comply with the terms, then your first port of call is to try to resolve the issue privately. If this is not possible then you may wish to seek mediation or an application to a court for enforcement.

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About Gareth Protheroe

Gareth qualified as a solicitor in 2014 and joined Nelsons in 2016. He specialises in children law, including care proceedings.

For more information on child arrangements please visit www.nelsonslaw.co.uk/children-law/child-arrangements/  

 

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Divorce and bankruptcy
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Divorce and bankruptcy: Double trouble

Published on
Layla Babadi
Legal Director
Solicitor
Nelsons

Divorce and bankruptcy have been two big topics in recent times.

The impact of Covid-19 has resulted in companies going under, leaving employees without a job, and couples being cooped up in lockdown together – but what happens when these two, already stressful, situations happen at the same time?

Bankruptcy

Bankruptcy is a legal process through which people, or other entities, who cannot repay debts to creditors may seek relief from some or all of their debts.

The bankruptcy application process must be followed very carefully and the application submitted, after completing the necessary form and paying the fee (currently £680) to become bankrupt. At this point, it’s over to the adjudicator to make a decision.

The adjudicator has 28 days to decide whether to make a bankruptcy order or to reject the application. On the basis that the adjudicator decides to make the bankruptcy order, it is at that stage that you are officially declared bankrupt and your bank or building society accounts will be frozen immediately.

Divorce

You can get divorced in England and Wales if all of the following apply:

  • You have been married for more than a year;
  • Your relationship has permanently broken down;
  • Your marriage is legally recognised in the UK; and,
  • The UK is your permanent home or the permanent home of your husband or wife.

When you apply for a divorce, you need to prove that your marriage has broken down irretrievably and prove one of the following five facts:

  • Adultery;
  • Unreasonable behaviour;
  • Desertion;
  • Two-years separation with the other party’s consent; or,
  • Five years separation without the other party’s consent.

The Government’s Divorce, Dissolution and Separation Act 2020 will reform the divorce process introducing no-fault divorce. The new legislation, which is due to come into force on 6 April 2022, will replace the five facts with a new requirement – to provide a statement of irretrievable breakdown, remove the possibility of contesting the divorce, and introduce an option for a joint application.

In order to get a divorce, there is a court fee of £593, although some applicants will be eligible for help with fees, and a separate application can be made in this regard.

Has Covid-19 had an impact on divorce and bankruptcy rates?

Bankruptcy rates

Figures from the Insolvency Service Official statistics show that, during 2020, there was a 25% reduction in people going bankrupt compared to 2019. Quarter three of 2021 has also seen a fall of 33% compared to the same quarter in 2020.

The decrease in the number of bankruptcies in quarter three of 2021 has almost certainly been assisted by an increase in the number of people starting a Debt Relief Order (DRO). A significant relaxation of the DRO qualification criteria from June 2021 has made this cheaper alternative more accessible.

That being said, the total number of bankruptcies and DROs is still likely to be lower overall than during 2020. This suggests mass financial hardship predicted by some at the beginning of the pandemic may have been avoided.

Divorce rates

The Family Court’s quarterly statistics, published on 25 March 2021, show that:

  • Between October and December 2020, 28,672 divorce petitions were filed, which was up five per cent on the equivalent quarter in 2019.
  • There were 23,810 decree absolutes, the legal document that ends a marriage, granted in October to December 2020, a decrease of 24% from the same period last year.
  • Annually, there were 111,996 divorce petitions filed and 97,068 decree absolutes granted throughout 2020, down four per cent and 11% respectively from 2019.

Despite the news seemingly reporting a rise in divorces during the pandemic, it seems that, according to the statistics, the annual figures don’t coincide with this and divorce rates are pretty similar to pre-pandemic levels.

However, with Covid-19 not going away anytime soon, and with continued restrictions putting a strain on both business and homelife environments, discussion around dealing with bankruptcy and divorce could become more frequent in the months ahead.

What is the process of divorce and bankruptcy?

When a property, or any other type of asset, is owned jointly by a divorcing couple and one of the parties has been declared bankrupt, the property or asset cannot be transferred to the other party as part of the financial settlement in the divorce proceedings without the consent of the trustee who is dealing with the bankruptcy.

The trustee is responsible for handling all the assets and income of the party that has been declared bankrupt. They deal with the assets in a variety of ways in order to pay the creditors of the bankrupted party. This will be the main consideration of the trustee.

What happens if one party is declared bankrupt during a divorce?

What happens with regard to finances depends largely on whether and when the bankruptcy petition has been filed.

Prior to a bankruptcy petition being filed, the court retains its full power and discretion with regards to finances and divorce. For example, debts need to be taken into account and consideration should be given to options such as negotiating a reduced lump sum towards the debt or instalments to repay the debt and financial orders are binding upon trustees in bankruptcy

Thought should also be given to the financial position if a party is made bankrupt. This is particularly the case if the debt is in one party’s name and is more than the value of the assets in their name or joint names. Sometimes, bankruptcy is the best option as it addresses the debt while preserving what is left of the matrimonial assets.

Ideally an agreement will be reached as to a division of the assets, but, if the parties are unable to reach an agreement, the court may make a final order in financial remedy proceedings. This can result in an unequal division of the matrimonial assets if, for example, it is necessary to meet needs. I

f that order provides for a property to be transferred to a spouse, either outright or on the basis that it will be subject to a chargeback payable at some point in the future, that order will take effect upon pronouncement of decree absolute, the final order that concludes the divorce process.

The impact of a bankruptcy order

Once the bankruptcy order is made, the court has no jurisdiction to make a subsequent property adjustment order transferring or ordering a sale of a matrimonial property. If a property adjustment order has already been made but not implemented before the bankruptcy order, it is still binding on the trustee, as long as the decree absolute has been pronounced to make the order effective under section 24(3) of the Matrimonial Causes Act (MCA) 1973.

Lump sum orders (an order that one party pay a certain amount to another, are a provable debt in a person’s bankruptcy meaning that a spouse can prove in the bankruptcy as a creditor and will be entitled to participate in any distribution of the bankruptcy estate. Other financial obligations are not provable but survive.

The court does have the discretion to release a party from lump sum obligations post-bankruptcy under section 281(5) of the Insolvency Act 1986, which it may do in circumstances where there is no likelihood of satisfying it. For example, if there is a lapse of time since the order was made and where it may be used as a source of harassment to the discharged bankrupt.

Financial provision and property adjustment orders under the MCA 1973 are valuable rights conferred and recognised by law, whereby one spouse will give and the other will receive consideration.

A negotiated agreement to settle an application for financial provision is not a disposition because it is subject to the court’s discretion in deciding whether accord has been reached. The agreement only becomes effective when the order is made.

A court order comprising an application for financial provision and property adjustment is a disposition by the individual and not the court. The order has the effect of vesting beneficial ownership in the recipient and section 284 will apply if the disposition is at the relevant time.

In the case of Robert v Woodall [2016], the trustee in bankruptcy sought to set aside a consent order under section 284.

A petition was presented against the husband on 9 March 2009, the consent order was signed on 5 June and approved by the court on 16 July. The husband was made bankrupt on 7 July, therefore the court held that the provisions in the order for periodical payments from the husband to the wife and the children were void under section 284.

The right under section 24D of the MCA to apply for financial relief constitutes consideration and, therefore, once a court has made an order or approved a consent order, the trustee cannot seek to challenge it under section 339 of the Insolvency Act unless there has been collusion or fraud, mistake or misrepresentation.

In the case of Sands v Singh [2016], the husband bought a property in 2006 for £976,000 and married two years later in 2008. The husband then spent £200,000 on building work and, apparently, owed a further £913,719 plus VAT. In January 2009, the husband charged the property to secure a £500,000 loan from his father. In July 2009, the wife instructed divorce lawyers and registered home rights under the Family Law Act 1996.

In April 2010, the husband charged the property in favour of his sister for the sum of £70,000.

A divorce petition was issued on 17 September 2010 with both parties signing a consent order in December 2010. The terms stated that the husband would put the matrimonial home on trust for the children, pay £375 per child per month, be responsible for the mortgage, pay a lump sum of £50,000 and have the rights of occupation. The wife moved into the property and decree absolute was granted in February 2011. £50,000 was received in June 2011 and the husband was adjudged bankrupt in September 2011.

It was held that the trustee in bankruptcy had made out his case was a sham as no evidence had been provided that there had ever been a loan; there was no evidence of collusion or that the husband’s sister was aware of her husband’s financial difficulties.

The negotiations took a long time to conclude as the husband did not agree to the wife’s proposals immediately. The court, therefore, could not conclude that a matrimonial court would not have made the consent order and, as such, that it would be set aside as a transaction at an undervalue.

What happens to the assets?

When a property, or any other type of asset, is owned jointly by a divorcing couple and one of the parties has been declared bankrupt, the property or assets cannot be transferred to the other party as part of the financial settlement arising from the divorce proceedings without the consent of the trustee who is dealing with the bankruptcy.

As long as no bankruptcy petition was filed before the decree absolute, the order will be binding even if the property has not yet been transferred. If the spouse transferring their interest is subsequently adjudged bankrupt, the trustee in bankruptcy is also bound by the order.

In the event that a bankruptcy petition is filed before the decree absolute is pronounced by the court, then the entirety of the bankrupted party’s estate will rest in the trustee in bankruptcy, and the court is unable to make a property adjustment order without the validation of the bankruptcy court.

What about bankruptcy after a divorce settlement?

Subsequent bankruptcy can also cause issues with regard to lump-sum payments that have yet to be paid. While these debts can be sought through bankruptcy, unlike other debts, the spouse is not released if they are not paid when they are discharged from bankruptcy.

Other orders that are made in matrimonial proceedings include pension sharing or attachment orders, which are not affected by bankruptcy, and maintenance but the payer’s ability to pay can be restricted if they are required to pay an element of income to the creditors.

Can the non-bankrupt spouse apply to annul the bankruptcy order?

If the one party made themselves bankrupt on their own petition and it appears that they did so in order to defeat a family finance order, the other party may, in some circumstances, apply to annul the bankruptcy under section 282 of the IA 1986 on any grounds existing at the time the order was made that mean it shouldn’t have been. The court may annul a bankruptcy order whether or not the bankrupt has been discharged from bankruptcy.

However, a court will only be prepared to annul the bankruptcy when it can be shown that the individual was not insolvent on either a cash flow or balance sheet basis at the time of the bankruptcy order. It is immaterial what the motivation was for presenting the petition.

The evidential burden of demonstrating insolvency will shift, if the other party can show that assets exceed liabilities. The individual will then need to prove they were unable to pay the debts as they fell due.

Don’t forget

When it comes to bankruptcy and divorce, it is important to remember the outcome is dependent on when the bankruptcy and divorce have been filed.

There are also numerous other factors that need to be taken into consideration such as property, matrimonial assets and financial provisions, as well as being able to annul the bankruptcy in certain circumstances.

In an ideal world, divorcing parties should reach a financial settlement prior to either party being declared bankrupt. However, separation, divorce and the issues concerning breakdown in relationships are often complex. For this reason, it’s always advisable to consult a specialist family solicitor at the earliest opportunity in order to discuss these matters, take the appropriate advice and necessary action.

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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.

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Pension during divorce
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Pensions during divorce: The forgotten factor

Published on
Layla Babadi
Legal Director
Solicitor
Nelsons

In recent years, January has come to be unofficially known as ‘divorce month’ due to the number of couples looking to separate once the festive period is over and the new year arrives.

However the process can be a daunting prospect, as divorce brings with it a number of factors to be considered, and one of these that is commonly over looked is pensions.

According to a survey carried out by Which? in December 2021, just 15% of divorcing couples included pensions in their financial settlements.

The largest asset

Pensions are, usually, the biggest asset for divorcing couples, making up 42% of household wealth – according to the Office for National Statistics (ONS) – followed by property, which makes up 36%.

Therefore, the importance of discussing pensions as part of divorce proceedings is paramount to ensuring that neither party is left with a lower income.

Sections 25(2)(h) and 25B(1)(b) of the Matrimonial Causes Act 1973 (MCA 1973) requires the court to have regard to the benefits under a pension arrangement that, by reason of dissolution of annulment of the marriage, a party to the marriage will lose the chance of acquiring.

The considerations

It is important to understand the full range of options available when dealing with pensions, and the implications involved. It is essential to understand the nature and value of pension rights, the ways in which the rights can be apportioned and the ensuing implications for the parties.

Where pension funds are a material part of the assets, consideration should be given to:

  • The nature of the pension fund(s);
  • The uses to which the pension fund(s) can be put;
  • The manner in which the court’s powers can be used to fit the future needs of the parties; and,
  • The appropriate use of experts – for example, independent financial advisers and/or pensions experts – to gather relevant information, interpret that information and consider the effect of the exercise of the court’s powers on the parties.

Often, parties may wish to equalise their retirement provision by sharing the available pension resources. A party may intend to draw a tax-free lump sum at retirement, which represents capital, and, usually, the rest of the pension fund will be accessed as deferred income. If a pension is already in payment, it can be treated as current income.

50:50?

Unsurprisingly, every single case is different and there’s no one size fits all approach when it comes to dividing up assets.

Splitting the pension 50:50 will not necessarily produce equal pension income on retirement. This can be for a number of reasons, not least the respective ages and life expectancies of the parties, and the commercial reality of what the pension credit will buy the pension recipient in terms of income on retirement.

Another approach can be to provide the pension recipient with a percentage split that will equalise pension benefits on retirement.

In many divorce cases, an equal sharing of pension rights will not produce a fair result because of the parties’ needs, ages, length of the marriage or because the pension rights are non-matrimonial assets.

To that end, there are several different options available to separating couples when it comes to splitting pensions.

Pension offsetting

Pension offsetting is the process whereby the value of the pension resources is set against the value of other assets held between the parties. Offsetting does not involve the court making any pension orders. The pension rights remain with the pension member. It works by adjusting the distribution of non-pension assets to take into account that one party will have a less valuable pension provision.

It can often be used in cases when one party wishes to retain the family home at the expense of future pension provision. It is also an option where the pension rights cannot be shared, for example an overseas pension.

Pension sharing

Pension sharing is the method by which an existing pension arrangement is split and divided between the parties following divorce, nullity or dissolution proceedings.

A pension sharing order transfers a part or the whole of a pension from one party to the other, giving the recipient a separate pension fund that can be invested in the same scheme, or in another external scheme, subject to the relevant scheme rules.

Pension attachment orders

A pension attachment order requires the person responsible for a pension arrangement to pay a percentage of the pension income, and/or pension commutable lump sum, and/or death benefits available to one party when a pension becomes payable to the other party. In this way, the recipient attaches to the existing pension arrangement.

When it comes to pensions and divorce there are numerous outcomes that need to be considered and it’s for this reason that it’s always advisable to consult a specialist family solicitor at the earliest opportunity to discuss these matters and ensure the best resolution for all involved parties.

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.

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Kate Griffiths’ solicitor comments on latest judgment in MP’s case
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Kate Griffiths’ solicitor comments on latest judgment in MP’s case

Published on
Melanie Bridgen
Melanie Bridgen
Leading Partner
Nelsons

December 2021 saw a landmark decision made by the Court of Appeal when it gave permission for the press to publish findings made in family proceedings in relation to the physical abuse, emotional abuse, rape and coercive behaviour that Kate Griffiths, MP for Burton upon Trent and Uttoxeter, experienced at the hands of her ex-husband Andrew Griffiths.

On Thursday, 20 January the latest Court of Appeal judgment was handed down stating that Ms Griffiths will not have to make a financial contribution towards supervised contact between the child she shares with Mr Griffiths.

Speaking after the judgment, Ms Griffiths said: “I am pleased that the judge has set aside the order in my appeal. Following this, there is now a strong presumption against victims paying the perpetrator’s costs of contact.

“The judge has also set aside an interim order for direct contact between my child and my rapist. I have long been a supporter of changing the presumption of a right of contact with children for a perpetrator of domestic abuse. I know from my work with constituents and victims of domestic abuse that all forms of abuse are insidious and corrosive and can have a long-lasting impact.”

This is another very important decision that will no doubt be influential for other cases and, hopefully, inspire victims of abuse to come forward, assert their legal rights and have their voices heard.

I am honoured to be the solicitor for such an inspiring woman who has continued to speak out against her abuser and instigate even more change. Her commitment to get this onto the statute books is heartening to each and every victim of abuse sitting at home, suffering in silence while appearing to have the perfect life.

I am advising a number of women, just like Kate Griffiths, across the country and together we are seeing some great results.  The courts take abuse seriously and it is no longer brushed under the carpet.

It should never be the case that a victim of rape or domestic abuse is forced to contribute towards the costs of contact, which enables the abuser to see the children the victim is trying to protect, and it is important that the courts properly assess the serious risk of harm caused to children and victims from contact orders.

I’m glad that the court has acknowledged this, for both Kate Griffiths and her child, and hope that this judgment goes towards protecting other individuals who are going through a similar experience to that of Ms Griffiths.

The findings are set out in the judgment that can be found here.

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About Melanie Bridgen

Melanie is a leading Partner in our expert Family Law team. She is a fearless, powerful solicitor who strives to empower and achieve the best outcome for her clients.

Melanie also acts for influential, prominent individuals and ex-patriates in complex cases including divorce, child arrangements orders, international relocation, child abduction, domestic abuse, parental alienation, care proceedings, adoption placement breakdown, deprivation of liberty and habitual residence jurisdiction.

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Is getting divorced online the way forward
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Digital divorce: Is getting divorced online the way forward post-pandemic?

Published on
Angela Maxfield
Angela Maxfield
Solicitor in Family Law Team
Nelsons’

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.

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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.

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