civil partnerships - Page 2

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.

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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.

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.

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.

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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.