Family Law

Family Law

When a marriage or relationship breaks up, it can be physically and emotionally draining. There are often many factors to consider, from how to manage or divide property and savings, who will be responsible for paying bills and mortgage payments going forwards and childcare arrangements if you have children. If the breakdown is irretrievable then you might be considering divorce or separation.

What is the difference between a Separation Agreement and Divorce?

Unlike a divorce, a separation agreement allows you to live apart but remain married and to reach a voluntary agreement with your spouse in regards to property, investments and children. You can incorporate this into a separation agreement or deed of separation to formalise the decisions you have made jointly.

Finances after a Divorce

There are likely to be a number of financial matters that need resolving if you are in a relationship which breaks down or you get divorced, from what will happen to the family home, assets and your pensions to what financial support there will be for any children you have.

Whether you are going through a divorce, separation, relationship breakup or the dissolution of a civil partnership, we can help you in settling your financial issues with your former partner and come to an amicable and legally binding agreement.

Finances are usually dealt with separately to divorce proceedings but can be handled at the same time.

Financial matters can usually be resolved through negotiations between the couple, collaborative law or mediation. If your case does go to court, an agreement is often reached before the final hearing and our family team have considerable experience in the court process.

There are various options available for securing your finances, depending on whether you are divorced, separated, or have just entered into a relationship, that we can advise and assist you with. 

Where possible we will suggest alternative dispute resolution methods such as collaborative law, mediation, negotiation or arbitration to reach an agreement and avoid litigation costs.

Where court is unavoidable we will be on hand throughout to support and guide you.

We can also assist with child arrangements after a divorce or separation.

We can assist with injunctions such as non-molestation orders and occupation orders in cases of domestic violence.

We can also advise on any business or commercial issues that may arise from divorce or separation.

Divorce and Dividing Assets

Dividing assets upon divorce is not as straightforward as you might expect, and the court has a large discretion in deciding how the assets should be split.

There are many factors that will be taken into consideration, which are outlined in Section 25 of the Matrimonial Causes Act 1973. These include:

1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. The standard of living enjoyed by the family before the breakdown of the marriage;
4. The age of each party to the marriage and the duration of the marriage;
5. Any physical or mental disability of either of the parties to the marriage;
6. The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
7. In the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
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The first factor the court and your solicitors will consider in determining how matrimonial assets are divided is the welfare of any dependent children under 18.

In addition, the Court will also factor in the idea that marriage is a partnership and therefore the results of that partnership should be shared, as well as whether one spouse should be compensated for the way financial affairs were managed during the marriage, which could have resulted in them missing out on the chance to accrue assets, income or pension provision.

Protecting your Business During Divorce

If you own a business then you will naturally want to protect it if you are going through a divorce, however it will not aid your case if you try to avoid future claims by moving assets or shareholdings.

If you are the sole owner of a business then if you get divorced the business will be treated by the courts like any other asset, in which case it may be divided and shared.

During divorce proceedings the business may be valued, the outcome of which could influence discussions in court. Your business may be scrutinised and its liquidity looked at to assess whether it can be used to meet the claims of the family.

We would always suggest seeking advice early so that you can best prepare yourself and gain an understanding of how the court process works and what you might plan to do to avoid an outcome you don’t want.

We will work with you to gather information on your financial position and that of your former spouse’s.

If you are a business owner we can advise on drawing up a pre or post-nuptial agreement to limit the claims your spouse can make against the business if you get divorced.

We can advise you on keeping your business assets and your private assets separate and draw on the experience of our commercial teams We can also advise on Matrimonial Home Rights which prevent a spouse from being evicted from the matrimonial home by the spouse who is legally entitled to occupy the property.

What is a Clean Break Consent Order?

While getting a divorce officially ends your marriage, it does not tie up the financial aspects of the marriage. As a result, in order to record how your assets will be divided following your divorce, you need to draw up a formal agreement, or a type of consent order.

A consent order can be used to outline the financial agreement you have reached with your former spouse. It can include information on property, money, investments, pensions, savings and spousal maintenance or child maintenance payments. In order to become financially independent of each other and prevent your former spouse from making a claim for a share of your assets, property, income or pensions in the future, you will need to draw up a clean break order.

Once a consent order has been drafted and is approved and signed by both parties, it will be submitted to the court for their approval and will become a legally binding document when the Decree Absolute is granted in divorce proceedings.

We will discuss your situation with you to decide if a clean break consent order is appropriate.

We can help you with the process of filing a consent order with the court in conjunction with initiating divorce proceedings.

We can check over the financial agreement you have reached with your former spouse and make sure all clauses are fair to put it into legal terms before the judge.

We can advise you where a consent order has been breached and needs to be enforced.

If you need to go to court we have significant experience in supporting clients through the court process.

Pre-nuptial Agreements

If you are planning to enter into a marriage or civil partnership you might consider making a pre-nuptial agreement to protect your individual assets, which states decisions you and your partner have jointly made regarding the division of property and support from your spouse in the event of the marriage breaking up, divorce, separation or the dissolution of your civil partnership.

Pre-nuptial agreements are not currently binding under English law but are now being given increased recognition by the courts.

Post-nuptial Agreements

A post-nuptial agreement can be made once you are married, or if you have entered a civil partnership, you can draw up a post-partnership agreement.

Both you and your partner will need to fully disclose your finances and include information in the agreement about income and expected future income; property you own together and separately; pensions; possessions owned jointly or individually, loans, bills and debts and your Will arrangements.

Pensions

Pensions can be one of the most valuable assets in a marriage, so they are taken into account as part of the financial settlement on divorce and when dividing assets fairly between parties.

If you are divorcing your spouse and one party has considerably more valuable pension rights, we can advise on a pension sharing order, offsetting or earmarking.

A pension sharing order enables a percentage of one party’s pension to be transferred into a pension for the other party. In comparison offsetting is where one party retains their pension and the other party is compensated by receiving a greater share of other assets from the marriage, such as property.

Different rules apply if the pension is already in drawdown.

Cohabitation Agreements

If you live with your partner but are not married or in a civil partnership and want a document in place that sets out what happens to your assets and finances if you split up, you might consider creating a cohabitation agreement.

A cohabitation agreement, also known as a Living Together Agreement, outlines what you and your partner want to happen to your family and its assets if you split up. The agreement can include what will happen to any property you own, who will take custody of any pets, and who will care for any children you have, as well as stating how you will manage your current finances including mortgage or rent payments and bills.

While a cohabitation agreement is not a legally binding document, couples who are cohabiting do not have the same legal rights and protection as married couples and it is a myth that living together for a long time make you “common law” husband and wife. Having a cohabitation agreement in place can avoid unnecessary disagreements and the stress of having to work out each partner’s assets and finances, and provided it is fair to both sides, the court will follow its instructions.

What can I include in a Cohabitation Agreement?

• What legal share each partner has in any property (including where there is a Declaration of Trust involved)
• How any property acquired during the relationship will be owned
• The payments of a mortgage/occupation rent and other property costs
• The care and financial support of any children
• The custody of family pets
• What will happen to your car/s
• How debts will be settled or dealt with
• The division of shared savings and other wealth

Injunctions

An estimated 2.4 million adults aged 16 to 74 years experienced domestic abuse or domestic violence in the last year. Many people believe that the police are the only authority that are able to offer protection from such abuse. However, in certain circumstances the family court also have the power to grant protective Orders, more commonly known as injunctions, to prevent perpetrators of domestic violence from contacting or abusing the victim further.

Breach of such orders is a criminal offence, meaning that the perpetrator can be immediately arrested if they were to breach the Order.

There are two types of injunctions that the family court can order under the Family Law Act 1996:

• A non-molestation order – this can prohibit your partner, former partner or associated person from being violent or threatening violence to you or any children. It can also prohibit that person from contacting you directly or indirectly and/or prohibit them from coming within 100 metres of any property where you might be living.
• An occupation order – this allows the court to decide who should live, or not live, in the family home. It can exclude a person from the family home and/or the area surrounding the home. An occupation order can also grant you permission to return to the home even after you have fled the house due to the abuse.

If you find yourself in a position where you think you need an injunction, our experienced family team will be on hand to help you make that application and represent you at court hearings. Equally, if you find out that somebody has applied for an injunction against you, we can advise you on your options and represent you throughout the proceedings.

We can apply for an injunction on an urgent basis to ensure your protection as soon as possible. If we feel it is appropriate, we are able to make an application to court to seek an ex-parte (without notice) Order without your abuser even knowing. This can then protect you until the court can decide to grant an injunction in the longer term.

We are able to represent you throughout the court hearings as well as preparing the application and statements, ensuring you get the continuity and support you need.

We are able to advise on any children matters that may arise as a result of the injunction application to ensure that your children are also protected.

We are also able to defend respondents (alleged perpetrators of abuse) within injunction proceedings to ensure you an Order isn’t unjustly made against you.

We can help you with:

• Divorce and separation
• Separation agreements (Deed of separation)
• Civil partnership dissolution
• Financial settlements
• Cohabitation Agreements
• Prenuptial Agreements
• Postnuptial Agreements
• Property Arrangements
• Clean Break Consent Order
• Domestic Violence Advice
• Injunctions
• Non-molestation Orders
• Occupation Orders

We are members of Resolution (first for family law) https://www.resolution.org.uk/ and follow a Code of Practice to always try to help you deal with your issues as amicably as possible even when court proceedings are involved.