Family Law FAQs
Here are just some of the questions we’ve been asked about divorce and family law. If you have any other queries, we’d be more than happy to discuss them with you over the phone or face to face.
Divorce Procedure
We will discuss with you at the beginning of your case how your legal fees will be paid. The usual rule is that each party has to pay for the costs of their own lawyer for negotiating the financial settlement. However, as part of the settlement it is possible to agree that your spouse should pay some or all of your legal fees. Sometimes friends or family members are prepared to assist if you do not have any savings or income available to pay your legal fees. If it is not possible to agree with your spouse that they should pay your legal fees, and there are no other options open to you, then we have contacts who may be able assist you with a loan so that they can be paid as you go along.
There are two elements to any divorce. The first element is the work involved in getting a divorce itself, i.e. the process involved in obtaining the final decree of divorce called the Final Order. This is usually straightforward as most cases are not disputed by the other party, so we can provide you with a fixed fee quotation for this. Getting a divorce does not, however, mean that your spouse has no further financial claims against you. In order to sort out the financial settlement, further work will be required. The cost will depend on your particular circumstances. We will speak with you so that we understand precisely what those circumstances are at the beginning of your case. We will also take time to understand your aims and objectives. We will then provide you with a clear written estimate of what this will cost. We can also provide fixed fee options to give you certainty and peace of mind.
It is very rare for the reason for the divorce to affect the financial settlement. The court is able to take very bad behaviour into account, which may then have an effect on the financial settlement. The typical scenarios where this might be relevant are if one party has been reckless or deliberate in squandering or wasting assets or in very serious domestic violence cases.
A quickie divorce is a bit of a myth. Nowadays, the vast majority of divorces go through on an undefended basis where effectively both parties agree that there should be a divorce. In these cases there is a quicker procedure than if the case is defended by one of the parties who tries to block a divorce. Most cases, therefore, follow this quicker procedure.
No. Irreconcilable differences is an American expression. English law has now changed so that it does not require one party to blame the other for the breakdown of the marriage to get a divorce where you have not been separated at least two years.
In order to get a divorce, you need to have been married for 12 months before you start the divorce process. However, if you have separated before then, there are still steps you can take to protect your position, such as having a Separation Agreement. This may give you protection against your spouse making claims for financial provision from you when you divorce in the future.
In short, yes. Although it is possible for you to complete the divorce paperwork yourself, it is certainly not advisable. You should take family law advice before starting any proceedings because it can have serious consequences for you. Some of the problems you may run into are:
- Rejection of the divorce by the court. If there are any errors in the paperwork, then the divorce will either be rejected and returned to you when the papers are sent off the court to start the process or worse, rejected at the Conditional Order Stage (we discuss this later) and you will have to repeat key stages again.
- Impact on financial settlement. The contents of the divorce documents may affect your financial settlement. Inaccurate and misleading information, or the way in which information is presented in the divorce papers, can mean that you receive a smaller settlement than you should. For example, the separation date mentioned in the papers may be important if assets have recently been sold/gifted) as it may be argued that you should not be able to claim against those assets.
- Controlling the process. It may be important that you are the person asking for the divorce (called the Petitioner) so that you control the process and timescales. This might be very important if remaining married until the financial settlement has been concluded may be favourable to you, such as you being entitled to death in service or pension benefits on your spouse’s death.
- Technical legal reasons. The “prayer” at the last page of the Divorce Petition has very important implications not only for divorce proceedings but financial proceedings. Ensure you seek legal advice early to make sure this is completed to suit your situation to place you in the best position going forward.
- Connections outside England and Wales. Some couples are able to apply for divorce in more than one country. Different countries have different rules on divorce and you may get a better financial settlement by starting proceedings in one country as opposed to another. If you have any connection outside England and Wales, it is essential to consider in which country you should ask for a divorce, and to act fast. If, for example, you or your spouse live or have lived outside England and Wales, have assets outside England and Wales or different citizenship, either of you may be able to start proceedings in more than one country. It’s essential you seek advice and act fast and as this is a complex area of law which can have major financial consequences.
- Getting financial claims dismissed. Your divorce will not bring to an end any financial claims your spouse may have against you. The Final Order does not bring an end to any such claims. You need a court order known as a consent order to stop your ex-spouse making claims for money or property from you in the future. We can help you in getting a consent order.
It is possible to get a divorce within six months, although it can take considerably longer than this. Typically it will take between six and twelve months for the financial settlement and divorce to be concluded. In extreme and complex cases, particularly those that are acrimonious or involve high value or international assets, it can take years for a settlement to be reached.
No. Although many people still assume that seeing a solicitor means their case will inevitably end up in court, this simply isn’t the case. More than 95% of our cases are settled out of court because a fair settlement is reached by negotiation
Divorce & Money
In general terms, there is now a presumption that assets will be divided equally if this is fair. However, there are many different factors can affect whether or not this would be a fair outcome. There are many circumstances in which a 50:50 division might not be appropriate. This may not be fair, for example, if:
- Your marriage is very short in duration
- You don’t have any children
- Either of you had brought a lot of assets into the marriage
- Either you or your spouse has inherited or been gifted money during your marriage
- One of you has serious health concerns
Perhaps most importantly of all, it is vital to understand whether the assets in your case have been valued fairly. There are many different ways to value certain types of assets and it is crucial that you instruct a specialist solicitor so that you can understand whether the assets have been valued by your spouse correctly. If this is not done, you may be working on incorrect values and this may mean that you receive a much smaller divorce settlement than you are entitled to.
It very much depends on your situation. There are two kinds of maintenance. The first kind is maintenance for the benefit of any children of the family – this is known as “child maintenance”.
The second type is maintenance for the benefit of a spouse – this is known as “spousal maintenance”.
The starting point for child maintenance is to look at what the parent with whom the children does not live for most of the time (known as the “non-resident parent”) must pay to support the children. We will look at what the Child Maintenance Service (CMS) (which replaced the CSA) calculates the non-resident parent should pay based on their income before tax. Further payments may, however, be required over and above the CMS formula. Whether you have to pay, or are entitled to receive, spousal maintenance will depend on the circumstances of your case. Relevant factors are likely to be:
- Whether you have children under 18
- The financial needs, assets and ability to earn an income of you and your spouse
- The standard of living you had before your marriage broke down
- How old you are and how long you have been married
- Any special needs you may have, such as health issues
- Any particular contributions you may have made to the welfare of the family
We will be able to advise you as to the amount of any child or spousal maintenance and for how long this should be paid.
Divorce & The Home
The most important consideration for couples with children is the welfare of the family as a whole. Children should be put through as little upheaval as possible and may need to remain close to school and childcare facilities. Consider your own needs too, in relation to accessibility to work, maintaining contact with children and keeping in touch with family and friends. The other main consideration is affordability in terms of what your other assets are, what your respective incomes are and what alternative properties are likely to cost so we can work out what your viable options are. However, it will all depend on what your family and financial circumstances are, so it is vital that you get legal advice so that you can understand your particular situation.
Your options are likely to be:
- One person can buy the other out and keep the house in return for other assets
- The property can be sold and the proceeds divided – but not necessarily equally
- Another option is to agree to defer any sale of the property until the children have grown up and left home. The problem with this it can be difficult for the departing spouse to obtain a new mortgage for another property. There can also be tax issues.
The fact that a house is in your name after divorce is unlikely have any bearing on who gets the house. Properties are treated in exactly the same way as pensions and savings accounts – in other words, your property is considered to be part of your marital assets. Divorce settlements are worked out by looking at the total value of these assets, which includes all assets in either joint or sole names. However, if a property was brought to the marriage by one spouse, it can have a bearing on the financial settlement. Similarly the terms of a pre-nup may also affect whether you get to keep the house.
Domestic Violence – If there has been violence or abuse from your spouse towards you or your children then a court can order your spouse to leave the house. Come and talk to us immediately if this is the case and we will advise you of the most appropriate course of action – Andrew Meehan is a Resolution-accredited specialist in domestic abuse cases.
Children – The other main consideration tends to be when children are involved. Couples often agree to allow one parent to remain in the family home with the children in the short-term to ensure that the children are protected from conflict. However, you should not move out without having had legal advice first because this can set a precedent and make it more difficult for you to see the children as much as you might like in the future.
Tempting as it may be to change the locks to prevent the other person gaining access to the home, you can’t change them if the property is jointly owned. Tensions can quickly escalate which is why negotiations should be progressed through a solicitor so that agreement can be reached rather than resorting to extreme measures.
If the property is jointly owned then both parties are entitled to live there but in reality it can be extremely difficult to live under the same roof while you’re going through a divorce. Even if the house is owned in your sole name or your spouse’s sole name, both of you are still likely to have rights of occupation of the house. However, it may be possible for us to negotiate that your spouse should leave the home or for us to get a court order requiring them to do so. Please speak with us so that we can discuss the options available in your case.
Not necessarily. Every case is different and it completely depends on your own circumstances, those of your family and also your financial position. The first thing to consider is what is likely to be in the interests of your children. For example, if you have a child going through their GCSEs, then their interests may mean that it is not a good idea to sell the house and disrupt their education.
Financial considerations also play a large part. Although there is a starting point in divorce cases that assets are divided equally, it is very common for one party to receive more than half of the assets, such as if they have the care of the children for most of the time or if they have lower earnings meaning that they can raise less by way of mortgage. Sometimes, if most of the assets are being used to house you and the children, this can mean that there is a provision included in the agreement which requires the house to be sold at some point in the future and the sale proceeds split at that point. For example, if you agreed that your children should be able stay in the house until they finished their A levels, then the house might be sold at that point and the proceeds divided. However, it will all depend on what your family and financial circumstances are, so it is vital that you get legal advice.
It depends on your particular circumstances. Generally speaking, the court has to reach a fair financial settlement. Whether you can retain the home will usually depend on whether you have children living with you and also what other assets you have between you and your spouse.
The welfare of the children means that they need a home where they can live with the parent who will continue to look after them. If you have enough assets, it may be possible for the children to remain in the family home whilst the other parent buys another property to move into. If there are fewer assets, the home might have to be sold or it might mean that the parent living with the children retains a larger share of the assets than the other parent to allow them to remain in the home. In other cases, a sale of the house might be postponed until a date a few years in the future. It is important, therefore, for you to get legal advice so that you can understand your particular situation.
Children
No. There is no standard or automatic frequency of contact. That said, the court in many cases orders child contact to take place on alternate weekends, to ensure that the children get to spend time with both parents. The pattern of contact will depend on what the best interests of your children are. The practicalities – such as how close the parents are in terms of distance between where they each live and how old the children are – will also need to be considered. If you live close to your ex, then this will increase the likelihood of mid-week contact after school. If you live a long way away, then there might need to be different arrangements put in place.
It very much depends because each case and every family are different. In general terms, it is presumed that the parent that doesn’t live with the children should have involvement with and have regular contact with the children. However, there aren’t any set rules to determine the amount and frequency of contact. The test is always what is in the children’s best interests, and the court would take into account a checklist of different factors in reaching a decision. There are also practical issues to consider such as how close in distance the parents are – if you live a long way apart, then different arrangements are likely compared to if you live a mile apart. Another example is the age of the children – very young children or babies may be more affected by spending a long period apart from the person who provides their day-to-day care, whereas a 10 year old might not.
No. The court will look carefully at which parent is best able to meet the child’s day to day physical and emotional needs, both now and in the future. The work commitments of one parent may make it more realistic and practical for the other parent to have primary care of the children. In the past, this tended to mean that mothers would have primary care of the children, but increasingly this will not be the case. Even where the children live primarily with one parent, the other parent is still likely to retain “parental responsibility”, so will still have a key role to play in the children’s life. Just because the children may spend more time with one parent than the other does not mean that either parent is more important in the eyes of the law or can make important decisions about the children’s upbringing unilaterally.
Yes. This is known as “shared residence”. This can be arranged either by agreement between the parents or by a court order. It does not mean that the children have to spend exactly the same amount of time with each parent. Instead, the thinking behind it is that this reassures both parents that the law sees them as equals. It is also used to show them that neither parent is in control of the children and that neither should marginalise the other.
The very first thing to do is to get legal advice from an expert family law solicitor. The law now presumes that each parent’s involvement in their child’s life will benefit them. However, the child’s best interests are always the priority of the courts, so the other parent may try to show that contact isn’t in their best interests. Your lawyer will usually get in touch with the parent denying contact, or with his or her solicitor, to determine if a resolution can be reached. Your solicitor will give you advice about the alternatives to court and, if necessary, tell you how to make a court application.
When a child is born, his or her mother automatically has “parental responsibility”. This means she can make important decisions in a child’s life. This can include making decisions on issues such as health, education and welfare. However, not all fathers have parental responsibility automatically. Whether they do will depend on them being listed on the child’s birth certificate, or married to the child’s mother. If you don’t have parental responsibility, it is possible to get a parental responsibility order from a court. A parental responsibility order gives you the same responsibilities as your child’s mother. You can also come to an agreement with the child’s mother outside of court and get this written up into a parental responsibility agreement which then has to be correctly registered.
Yes. If you have “parental responsibility”, you will have a right to a say in how your children are brought up. If you cannot reach agreement with your ex-spouse about a particular issue concerning your children, you can apply to the court for a “specific issue order”. Eg: if you cannot agree about where they should be educated or whether they should follow a certain religion. The court’s decision will always be based on what is in the child’s best interests.
The most important consideration is what is in the child’s best interests. When a court decides an issue about the upbringing of a child, the child’s welfare will be paramount. The court will take into account various things (these are known as the “welfare checklist”), including:
- The child’s own wishes (but these depends on how old they are and their understanding)
- Their physical, emotional and educational needs
- The likely effect on them of any change in his circumstances
- Their age, sex, background and any of their characteristics that the court considers relevant
- Any harm which they have suffered or are at risk of suffering
- How capable each of their parents are of meeting their needs
Wealth Protection
Ideally, a pre-nuptial agreement should be discussed and agreed well before your marriage takes place. You and your future spouse should each have the benefit of legal advice and disclose details of your respective financial positions to each other. The pre-nup should also be signed well before your wedding day – we recommend that it’s signed off at least 6 weeks before the wedding date, if possible.
A post-nuptial agreement (also called a post-nup) is designed to decide what should happen to each spouse’s assets on divorce, just like a pre-nup. However, a post-nup is entered into by you when you are already married, whereas a pre-nup is done before the wedding. A post-nup can be a good thing to consider if you have previously separated but have decided to give the marriage another go and you want to avoid uncertainty if things go wrong again.
It may be important to keep your pre-nup under review. It may well specify in it that the agreement needs to be looked at every few years or if there any changes in circumstances – for example, if you have a child or if one of you falls ill. Reviewing the pre-nup is likely to be an effective way of ensuring that the agreement is likely to stand up when it needs to. This makes the agreement more flexible and able to adapt to the unexpected twists and turns which can happen in life but which could not be predicted when you first entered into the pre-nup.
The cost of a pre-nup will depends on various factors, such as:
- How complex the pre-nup is likely to be in terms of what types of asset you are trying to protect
- The complexity of your asset base – if there are trusts or business assets then expert help may be needed in the form of trust law advice or valuation of a business
- Whether the agreement has international elements, requiring advice from a foreign lawyer
- How much work is likely to be needed to negotiate the terms of the pre-nup, including how many emails etc need to be sent and the number of meetings needed to finalise the agreement
- Whether a barrister needs to be involved to assist you with the details of the agreement
All of these factors affect how easy or hard it is likely to be to reach agreement on the terms of the pre-nup and, therefore, the cost. We will, however, give you clear information at the beginning of your case as to how much your pre-nup is likely to cost.
Resolving Disputes
Mediation is a way of sorting out the issues when you separate. A mediator is a neutral, independent person who will help you identify and resolve any issues. They will try to make sure that your discussions with your spouse are constructive and that each of you is able to have your say. A mediator cannot give you any legal advice so it is important that you take advice from your own solicitor before and during mediation. Once you have reached an agreement, the mediator will draw up a “Memorandum of Understanding”, setting out the agreement proposed. You can then take that to your solicitor, who can draw up and advise you on the legal paperwork required to get the agreement ratified by a court so that it is binding.
When you separate, emotions can run high and it is all too easy to let these cloud your decision-making process. It is important to get legal advice so that you understand what the issues are, what your rights are, and how best to sort things out. You will be unlikely to have experienced divorce before and will be unaware of the many pitfalls you can fall into which can cost you time, money and stress. Your solicitor on the other hand will have experience of countless divorce cases and will be able to use this experience and knowledge of the law to guide you through the process. Even if you think that you have managed to agree everything with your spouse, you should still get some legal advice to make sure that you have thought of everything and to get the agreement formally drawn up and ratified by a court so that it is binding. The last thing you want in your new life is for your ex-spouse to be able to make a financial claim against you in the future which can happen even years after the divorce has taken place if it has not been formalised properly.
Family arbitration is a fairly new kind of dispute resolution suitable for divorce cases and is an alternative to court proceedings. It involves providing a neutral person (called a “family arbitrator”) with the relevant facts, evidence and the views of you and your spouse as to what you each think the outcome should be. The arbitrator, who is a specially trained lawyer, will then make a decision as to what they think the result should be. Like a judge’s decision in court, the arbitrator’s final decision (called an “award”) is binding. Asking an arbitrator to make a decision can be quicker than waiting for a court hearing to be allocated.
No. For many people mediation can be the right approach, but it is not suitable for everyone. You have to trust your spouse or partner to be open and honest, especially in producing financial information. You also have to feel safe in the mediation process, so it is rarely appropriate if there is any domestic abuse or too much of a power imbalance in the relationship. Before court proceedings can be issued – either about money or children – you will usually be expected to attend a meeting about mediation to ensure you have information about the process. This is called a MIAM (Mediation Information and Assessment Meeting). However, we will usually have discussed whether mediation is right for you at the beginning of your case, long before you decide that you want to start court proceedings. In some situations a MIAM is not needed, such as if proceedings need to be started urgently or if there has been domestic abuse.
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