Private-Family Matters
Emma Briggs
Partner
emma.briggs@osg.co.uk
01524 846846
Christina Franklin
Solicitor
christina.franklin@osg.co.uk
01524 846846

Family Matters

Family Matters

We understand that relationships have the potential to cause more stress and pain than almost anything else. You may have reached the point where you know you cannot go on, and this is the point when you need our help.

Our family solicitors will take real care of you. They will never judge or disapprove – with their years of experience they have seen it all before and nothing will surprise them.

We always aim to give a very personal service. The solicitor handling your case will take the time to understand the details of your particular situation and deal with it sensitively. They will need to understand the facts but will then guide you carefully and thoroughly through the legal minefield, explaining your options and outlining what steps you can take.

We know that the breakdown of a relationship can be emotionally charged and whilst always acting on your behalf, we will try to work in a conciliatory way with the aim of reaching a settlement that suits everybody involved.

The following sections will give you more information so that you can think things through before coming to see us:

 

Separation

If you would prefer to separate rather than start divorce proceedings then it is possible to enter into a Separation Agreement. A Separation Agreement will confirm the date that you have separated, can include details of the future arrangements for any children and it will also confirm the details of any financial settlement that you have negotiated. A Separation Agreement is a legal and binding document between the two of you, but it is not binding upon the Court. However, the Court will uphold an agreement when it is fair to do so. There should be full and frank financial disclosure exchanged between the parties and there needs to be evidence that this has taken place. This may be done by attaching a schedule of assets, liabilities, income and pensions to the Separation Agreement. Each party also needs to take independent legal advice.

If there is any possibility of the parties reconciling then a Separation Agreement can easily be revoked by preparing a Deed of Revocation and the parties remain married. If, however, there is no reconciliation then there will probably be divorce proceedings at some point in the future. The terms of the financial settlement negotiated for the Separation Agreement are then usually incorporated into a Court Order to ensure that all financial claims that each party has against each other are dismissed.

If it is not possible to negotiate the Separation Agreement and if it would not be appropriate to issue divorce proceedings then an Application to the Court for a Decree of Judicial Separation could be considered as an alternative. These proceedings are relatively unusual. The Court does not have to consider whether the marriage has irretrievably broken down for a Judicial Separation Petition though it must still be satisfied as to one or more of the five facts to be proved in the same way as for a divorce.

A Divorce Petition can only be issued once the parties have been married for at least 12 months. However, there is no such time limit for a Judicial Separation Petition. The procedure is very similar to the divorce procedure save that there is no Decree Absolute and the parties remain married.

The Court has the power to make an Order in relation to financial matters in connection with judicial separation proceedings. However, the Court cannot make an Order for a clean break and they cannot dismiss any claim that each party may have against each other under the Inheritance (Provision for Family and Dependents) Act 1975.

 

Divorce

There is only one ground for divorce and that is that the marriage has broken down irretrievably. However, in order to satisfy the Court that the marriage has broken down irretrievably, you must satisfy the Court of one or more of 5 different facts as follows:

  1. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
  2. That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
  3. The Respondent has deserted the Petitioner for a continuous period of at least 2 years.
  4. That the parties to the marriage have lived apart for a continuous period of at least 2 years and the Respondent consents to a decree being granted.
  5. That the parties to the marriage have lived apart for a continuous period of at least 5 years.

Procedure

The parties must be married for a period of at least 12 months before a petition for divorce can be presented.

Once the Divorce Petition has been issued it must then be served upon the Respondent. The Respondent must then acknowledge receipt of the papers and confirm whether they have any intention to defend the Petition or not. If the Petition is not defended then the Petitioner will apply to place the proceedings in the Special Procedure List. This essentially means that the divorce will proceed by way of a paper exercise. The District Judge will then consider the papers and if he is satisfied that the Petitioner is entitled to a Decree of Divorce will fix a date for the pronouncement of the Decree Nisi. The District Judge must also consider the arrangements for any children of the family and will also issue a certificate to confirm whether the Court will need to intervene in the arrangements for the children. The Decree Nisi is the first Decree in the divorce proceedings.

The Petitioner can apply for the Decree Nisi to be made Absolute 6 weeks and 1 day following the pronouncement of the Decree Nisi. If the Petitioner fails to apply for the Decree Absolute then the Respondent is entitled to apply for the Decree Absolute 3 months after the time that the Petitioner could make an application.

Occasionally, there are difficulties in serving the Respondent with the divorce proceedings and it may then be necessary to apply for an Order that the Respondent is deemed to have received the papers, or that service be dispensed with or substituted elsewhere.

It may be possible for the Petitioner to bring a claim for the costs of the divorce proceedings against the Respondent. If there is no agreement reached with the Respondent then the decision as to who should be responsible for the costs will be at the discretion of the District Judge, and he will make his decision upon the pronouncement of the Decree Nisi.

If the Respondent chooses to defend the Divorce Petition then they will file an Answer to the Petition and they may also file a Cross-Petition themselves. The procedure for the divorce is then very different. The Court will list the matter for a Hearing and fix a timetable for dealing with the proceedings. This will involve the parties preparing statements and filing evidence in support of their positions and the matter will eventually be listed for a Final Hearing at Court.

The parties are at liberty to reach an agreement with regards to the proceedings at any stage and are encouraged to do so. Defended divorce proceedings are relatively rare.

A divorce which falls within the special procedure list will usually take 4 to 6 months, provided that there is no difficulty with the service of the documents. If a divorce is defended or there is a Cross-Petition then the procedure could take 12 months.

 

Civil Partnership

A civil partnership is a relationship between two people of the same sex which has been registered pursuant to the Civil Partnership Act 2004. A civil partnership can be dissolved upon the ground that it has broken down irretrievably. A civil partnership cannot be dissolved within the first year of the civil partnership. The Court must be satisfied of one or more of the following facts:

  1. That the Respondent has behaved in such a way that the Applicant cannot reasonably be expected to live with the Respondent.
  2. That the Applicant and the Respondent have lived apart for a continuous period of at least two years and the Respondent consents to a Dissolution Order being made
  3. That the Applicant and the Respondent have lived apart for a continuous period of at least 5 years.
  4. That the Respondent has deserted the Applicant for a continuous period of at least two years.

If the parties do not wish to dissolve the civil partnership then they can apply for a Separation Order and must satisfy the Court of the same facts as for dissolution. However, the Court does not need to be satisfied that the civil partnership has broken down irretrievably.

The effect of a Separation Order is that if either civil partner dies intestate, i.e. without a Will, whilst the Separation Order is in force and the separation is continuing, then the property of the deceased person will pass as if the other civil partner had died before them.

Upon the dissolution of a civil partnership, the Court also has the power to make an Order in relation to financial matters. The Courts can make an Order for financial provision for one party against the other, i.e. the payment of maintenance or a Lump Sum Order and it can make an Order for the transfer or sale of property and can also make a Pension Sharing Order, i.e., where one party’s pension is apportioned between the parties.

 

Children

We understand that making the best arrangements for your children will be foremost in your mind. We will try to help you achieve the solution that is best for you.

The Children Act 1989 abolished the concept of ‘custody’. The Law states that married parents both have parental responsibility for a child and will share decision-making.

The central principle is that the welfare of children is paramount. The Court will only make an Order if it considers it would be better for the child than making no Order.

When parents cannot agree over arrangements for the upbringing of their children, the following applications can be made under the Children Act 1989:

  • Residence Order – this determines the parent with whom children will live.
  • Contact Order – this determines what contact children will have with the parent with whom they are not living and sometimes other family members.
  • Prohibited Steps Order – this is an Order preventing certain things happening to children, for example, an Order preventing them from being taken abroad.
  • Specific Issue Order – the Court will decide important issues regarding children’s upbringing - education, religion or change of surname.

There is a set procedure when one parent makes one of these applications about the future of their children. There will be a Preliminary Hearing before the Court. If agreement cannot be reached at that time, the Judge will make directions requiring each party to file statements detailing their side of the case. This may involve referral to CAFCASS for investigation and the preparation of a report by a Child and Family Reporter.

If, after further investigation, an agreement cannot be reached, a Court will then consider all the evidence together with the report and make a decision after a Full Hearing.

Special rules apply to people other than parents who wish to apply for an Order relating to children.

Child Maintenance

Child maintenance is payable by a parent to the parent who has the care of any child who is under the age of 17 years or still in school education. However, this obligation can be extended to include anytime that the child is in further education or training. In many cases, the Court does not have the jurisdiction to deal with the child maintenance as an application must be made to the Child Support Agency (CSA). Alternatively, a new system has been launched known as the Child Maintenance and Enforcement Commission (or C-MEC).

The difference is that the Child Support Agency is the statutory child maintenance service. As an alternative C-MEC encourages parents to make their own maintenance agreements. The Government are hoping that the services of C-MEC will be used for the majority of child maintenance cases, reserving only the most difficult cases for the Child Support Agency.

The website details for the CSA and C-MEC are as follows:

www.csa.gov.uk

www.cmoptions.org

The Court continues to have the jurisdiction to resolve the issue of child maintenance but only in circumstances when the CSA cannot undertake an assessment, or where there is a need to apply to the Court to top up the CSA assessment. If there is an existing Court Order for child maintenance, then the Court’s continue to have the jurisdiction. However, either party is entitled to apply to the Court to stay the payment of child maintenance under a Court Order, once it has been in force for a period of twelve months, and to go to the CSA instead.

Private Children Act Proceedings

Details are available in this downloadable document  (PDF Reader Required)

 

Financial and Property Matters

When your assets and finances have been jointly held, it can feel like an insurmountable task to divide them to everyone’s satisfaction. We will help to make it more straightforward.

You and your spouse may be able to reach agreement regarding financial arrangements arising from divorce or separation, including maintenance and how property and other assets may be divided. If this is the case, the agreement that has been reached can be recorded in an a Deed of Separation or in an Order to be made by the Court with your consent, and it will generally not be necessary for you to attend Court.

If no agreement can be reached, applications can be made to the Court for payments (i.e. maintenance), lump sums, property adjustment orders and orders in relation to pensions.

The Court procedures require each party to file a Financial Statement detailing their property, assets, income and financial needs; there will be Hearings before the Court, including a Financial Dispute Resolution Hearing where the possibility of resolving matters through negotiation will be investigated.

If an agreement cannot be reached, a full Court Hearing will take place before a Judge who will decide what represents a fair division of your finances. When making any decision relating to financial matters, the Court will take account of each party’s circumstances and put the welfare of any children first.

We will advise you about Court procedures including the preparation of Financial Statements, valuation of any properties, documents that must be disclosed and representation in Court if you are required to attend.

Various Orders can be made regarding the family home which include:

Transfer from the names of both spouses to just one name.

This may involve one spouse making a lump sum payment to the other.

Sale and division of the proceeds of the home.

Any division would need to reflect the needs of each party to be adequately re-housed.

Deferred sale

Division of the proceeds may be scheduled for when the spouse remaining in the home re-marries, cohabits, or the children have ceased full-time education.

Maintenance

Maintenance can be awarded if one party (usually the wife but not always) cannot adequately support themselves without payments from the other. It can be awarded for a set term or for life. The amount depends on what is seen as reasonable measured against a lifestyle that the recipient could expect and against the payer's income. It can vary from time to time. It comes to an end if the receiving party re-marries. Often a claim for maintenance is settled off in exchange for a lump sum settlement.

Pensions

Pensions are an important part of a family's financial security, and English law provides for pensions to be shared when a relationship breaks down.

On divorce, Orders can be made in relation to pensions. A Court will take into account any pension benefits that either party may have and benefits that either party may lose the chance of acquiring by reason of divorce.

A Pension Sharing Order will result in the transfer of a percentage of the value of a pension held by one party to a fund in the other party’s name.

A Pension Attachment Order is a deferred Order whereby a percentage of benefits will be paid to the party without pension benefits on the other party’s retirement.

 

Cohabitation

If an unmarried but cohabiting couple separates then there is currently no legislation that specifically relates to the financial arrangements arising between them.

In particular, neither party has any claim against the other for income, i.e. maintenance or for pensions.

If the parties own property together then there will need to be a detailed investigation in relation to that property. This is a complex area where the law of trusts is applicable.

The first step is to determine whether there is an express declaration of trust. This when each party’s share is expressly stated at the time of the purchase of the property, usually in the transfer deed at a Declaration of Trust. If there is no expressed declaration of trust then we must consider the law of implied trust. This will include looking at resulting trust, i.e. when considering the amount that each party has contributed towards the purchase price of the property, and also constructive trust, i.e. when one party has acted to their detriment upon the belief and understanding that they would acquire an interest in the property.

If there are children from the relationship then in some circumstances it may also be necessary to issue an application for financial provision under Schedule 1 of The Children Act 1989 for the benefit of the child. This could include applying for an Order for the settlement of property, and lump sum payments in addition to the payment of child maintenance.

There will usually need to be detailed investigation to prepare a case before the issue of any Court Proceedings. There will also usually be correspondence between the parties to try to negotiate a settlement and to set out each party's claim fully, before issuing proceedings at Court. Once proceedings have been issued the Court will then deal with the appointment of any experts to undertake valuations, for the filing of statements and any other evidence required. If the parties are unable to negotiate an agreement during the course of the proceedings then the matter will be listed for a Final Hearing at Court.

Cohabitation Agreement

If an unmarried couple are living together then they may wish to enter into a Cohabitation Agreement. However, it must be remembered that although the parties can reach an agreement together, they cannot do anything that would take away the powers of the Court.

An agreement is most likely to cover the situation that may arise upon the breakdown of the relationship. This could include matters such as the ownership or the sale of property and the occupation of the property.

 

Pre-nuptial Contracts

Pre-nuptial contracts are unusual in England and, because of this, they have to be drafted carefully. It is worth having an initial interview with us before making a decision as to whether a “pre-nup” is right for you.

English law does not allow for such contracts and courts can, of course, ignore them. However, where it is felt that a contract is fair and that it reflected the genuine intention of both parties when it was drawn up, we are increasingly seeing court rulings that reflect the terms in pre-nuptial agreements.

Pre-nuptial Agreement

A Pre-nuptial Agreement is not binding upon the Court, however, in recent years, the Court has given more weight to Pre-nuptial Agreements that have been made.

It is important that the parties each have independent legal advice, that there is an absence of duress and that there full and frank financial disclosure.

It is unlikely that a Pre-nuptial Agreement will be upheld if it is made within 21 days of the marriage, if a child has been born during the marriage or it intends to bind an independent third party. It would be most appropriate for a Pre-nuptial Agreement in cases where one party already has substantial assets or may receive inherited wealth.

 

Collaborative Law

A cool, calm and collected approach to resolving relationship and family breakdown is proving to be an effective way of finding the best solution.

This approach is for couples who genuinely want to seek a fair solution and reduce the pain of family splits. Emotions usually run high in such situations and, in some cases, are extremely raw, causing so many more problems than they solve.

Collaborative Law works on the theory that ‘buy in’ by all parties involved and reaching a solution together is far more likely to determine an agreeable, brighter future/route.

What exactly is Collaborative Law?

Usually when a relationship breaks up, a couple will each seek advice from their own specialist family lawyers to try and reach an agreement over assets and responsibilities including children. Collaborative Law provides a calm and constructive alternative.

You and your former partner sit down and, with the help of your own solicitors, altogether in the same room, you work it all out face-to-face. So rather than dealing ‘through’ your solicitors, you work with them to reach the best solutions.

What is the Collaborative Law route for?

• Divorce and resolving financial settlements
• Pre and Post-Nuptial agreements
• Separation of cohabiting couples, including property disputes
• Child disputes – residence (custody) and contact (access), both for parents and other family members
• Dissolution of civil partnerships and financial settlements
• Cohabitation or “living together” agreements
• Financial settlements for children that do not involve the CSA

What does it need to make it work?

• The right people with the right frame of mind
• A genuine desire to make it work
• A willingness to disclose fully and honestly all assets
• Skilled and highly trained solicitors who are practised in this new collaborative way
• An agreement that you will reach a solution without going to court

Why does it work?

• You have your own legal advisor
• You are in control
• There is no threat of court proceedings hanging over you
• You set the agenda
• You set the pace – you are not governed by court dates and appearances
• You maintain contact with your former partner – understanding each other and finding the right solutions
• The key decisions for your future are made by you - not a stranger in a courtroom
Collaborative Law, which has strict codes of practice, originated in the USA. It was introduced to the UK by Resolution, a national organisation of family lawyers.

Fixed Fee

Oglethorpe, Sturton and Gillibrand currently have a fixed fee offer of £100 plus VAT (£120) for one hour of advice at the initial meeting. Please call OSG for more details but, essentially, all you have to do is take along your ID and payment to the first meeting.

Partner at OSG Emma Briggs is a Resolution-accredited specialist collaborative lawyer.

To speak to Emma please call 01524 846846.
 

Domestic Abuse

Firstly, in the event of any violence or threat of violence then the Police should be called straight away.

In an emergency situation, Court Proceedings can be issued for a Non-Molestation Order under The Family Law Act 1996. If there is a pattern of harassment that can be established then you may be able to issue proceedings under The Protection from Harassment Act 1997. However, the Police also have the power to issue proceedings under The Harassment Act 1997.

The meaning and effect of a Non-Molestation Order is to prevent the reoccurrence of any violence or any threat of violence. Once the Non-Molestation Order has been made then a Power of Arrest will be attached. The Order will be served upon the Police and in the event of a breach of the Non-Molestation Order then the Police will enforce the Order.

It may also be possible to apply to the Court for an Occupation Order which will regulate the occupation of the family home. This would restrict or exclude one party from the property or from part of the property. If there is a breach of an Occupation Order then this is enforced in the County Court rather than in the Criminal Courts.

In an emergency situation it may be possible to obtain an Order without giving notice to the other party. The matter will then return to the Court shortly afterwards once the Respondent has been served with the proceedings and given notice of the application. It is very rare for the Court to make an Occupation Order without first giving notice to the Respondent. If an Order is obtained without notice, then the Respondent must be served personally with the papers.

 

What We Do

  • We take instructions.
  • We advise upon the legal position.
  • We correspond and negotiate with other parties.
  • We collate all relevant information.
  • In financial matters we prepare Schedules of Assets.
  • We advise upon the need for the instruction of experts - we may need to instruct experts to advise upon medical issues, to obtain valuations of assets and businesses, to appoint accountants and/or actuaries and specialist pension advisors.
  • We prepare the instructions to the experts.
  • We advise upon proposals for settlement.
  • We draft Court Documents and issue proceedings or respond to the proceedings.
  • We instruct Counsel to advise and represent where appropriate.
  • We report throughout to the client.
  • We will implement the terms of agreements or Court Orders.
  • We draft statements on behalf of the clients.
  • We review and monitor files regularly.
  • We work together as a team.
  • We will advise upon the procedure and the estimated costs of the proceedings and timescales.
  • If necessary we will make emergency applications as appropriate.
  • We listen carefully to the needs of the client and the goals that they wish to achieve.
  • We give clear, realistic and practical advice upon how to deal with the matter cost effectively and if possible, avoiding confrontation.
  • We comply with the Resolution Code of Practice which encourages a conciliatory approach wherever possible.
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