Frequently Asked Questions

June 2016

Divorce

How do I get Divorced?

You can get divorced if you have been married for at least a year, have a marriage that is legally recognised in the UK and have a permanent home in England and Wales. The three main steps to getting divorced are:

  • Filing a Divorce Petition – You have to apply to the Court for permission to Divorce. You have to show the Court the reasons your relationship has permanently broken down (i.e. adultery, unreasonable behaviour, 2 years’ separation) (please see our website for further information on the grounds for divorce);
  • Apply for Decree Nisi – The Court will consider the contents of your Petition and decide whether you are entitled to a Divorce;
  • Apply for Decree Absolute – this legally ends your marriage. You have to wait 6 weeks from Decree Nisi before you can apply for Decree Absolute.
How much will it cost?

The Court fee to issue a Divorce Petition is currently £550. You may be exempt from paying the Court fee if you are of low income or in receipt of benefits. When you send your Divorce Petition to the Court you can apply for exemption from paying the fee. The Court will assess your income. You will need to send the Court up to date evidence of your income, i.e wage slips or your benefit entitlement letter.

Please refer to our website for our fixed fees for representing clients in respect of their Divorce.

How long will it take?

The average straight forward divorce can take four to eight months, provided that both parties deal with the Court paperwork promptly.

We are already separated – can I use adultery?

Adultery does not have to be the cause of the breakdown of the marriage. If you are separated and one party has a sexual relationship with a member of the opposite sex, this is adultery and can be used as a reason for the breakdown of the marriage.

Does the cause of the breakdown of our relationship affect our financial settlement or the arrangements for the children?

Generally, no. Whatever the cause of the breakdown of your marriage, does not affect your ability as a parent or your financial needs.

Civil Partnership – We are separating – what can we do?

Dissolving a civil partnership is the same as obtaining a Divorce except that adultery relates to heterosexual couples only and so adultery cannot be cited as the reason for dissolving a civil partnership, although being unfaithful would instead be unreasonable behaviour.

Children

“Custody” and “Access”

The Children Act 1989 changed the arrangements relating to custody, care and control and access, as they used to be called, introducing new arrangements, namely Residence, Parental Responsibility and Contact.

The Children Act has now been changed by the Children and Families Act 2014 which introduces the new Child Arrangements Order. This is an Order determining where the child will live and with whom the child will have contact.

What happens if we cannot agree who our child/children should live with?

When it comes to arrangements for your children, reaching an agreement is best for all involved. The Court will only make a formal Child Arrangements Order if there is a dispute – otherwise no Order will be made. There is a presumption that the Court should not intervene unless it is in the best interests of the child. The Court’s paramount consideration is the welfare of the child.

The Court will also have regard to:

  • the ascertainable wishes and feeling of the child concerned (considered in the light of the child’s age and understanding);
  • the child’s physical, emotional and educational needs;
  • the likely effect on the child of any change in his/her circumstances;
  • the child’s age, sex, background, and any other characteristic which the court considers relevant;
  • any harm which the child has suffered or is at risk of suffering;
  • how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  • the range of powers available to the court under the Children Act in the proceedings in question.
What is Parental Responsibility?

Parental Responsibility encompasses all the rights, duties and responsibilities a parent has towards their child. In simplistic language this means that any person with Parental Responsibility has a duty and responsibility to take part in the major decisions affecting their children’s life, such as naming the child and agreeing to any change of name, looking after the child’s property, agreeing to child’s medical treatment and choosing and providing for the child’s education. If you have Parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them – but the other parent still needs to keep you updated about their well-being and progress.

How do you get Parental Responsibility?

Parental responsibility is shared jointly between all married parents, even after divorce, so long as the child is under 18. Unmarried fathers can acquire parental responsibility either by agreement with the mother of the children or by Order of the Court, and now, if the father’s name is on the birth certificate of the children.

Finances

Do we need to deal with our matrimonial finances when we get divorced?

No, but it is sensible to do so. If you reach an agreement about the division of your assets, this can be approved by the Court as part of the Divorce Proceedings and made into a “Financial Order” to make the agreement binding. No agreement can be considered final, unless it is approved by the Court.
If you do not deal with the matrimonial finances, either of you could have potential claims against the other in the future, even after divorce, including claims against the other’s estate after you die.

The Court takes various matters into account, giving first consideration to the welfare of any children of the family under the age of 18. What is also relevant is the parties’ income and earning capacity, as well as the ages of the parties, the standard of living enjoyed by the family prior to marriage breakdown and any physical or mental disability of each spouse.

Unmarried Couples

I don’t own the house – am I entitled to anything?

Contrary to popular belief “common law” husband and wife status does not exist in law. Cohabiting couples do not have the same rights as married couples.There is very little protection for the weaker party and cohabiting couples find themselves in real difficulty when they separate. Despite the arrangements in place throughout the relationship, one party could end up with nothing. Cohabiting couples have no right to maintenance or a share of the assets, including property and inheritance.

Where cohabiting couples jointly own their home, it is automatically divided 50:50 (unless a deed of trust was entered into at the time of purchase clearly setting out each party’s share). If one wishes to challenge the presumption of the 50:50 split in Court it will be costly and there is no guarantee they would win. If your name is not on the title deeds, you do not own the property. The only protection available would be a Cohabitation Agreement to regulate the parties’ property rights and arrangements for mutual financial support.

What is a cohabitation agreement?

A Cohabitation Agreement regulates the parties’ property rights and arrangements for mutual financial support.

A Cohabitation Agreement would deal with the following:

  • Who owns what and in what proportion;
  • How assets will be divided on separation;
  • The division of home contents and personal belongings;
  • What to do with any savings;
  • How the children will be supported;
  • How to deal with joint debts/accounts;
  • How the day to day finances will be managed, i.e. bills and mortgage payments
Is it binding?

Whilst it is not possible to guarantee the Court will abide by any agreement, if such an agreement is properly drafted and involves independent legal advice, it is likely to be agreed by the Court.

What happens to the children when we separate?

This would be the same as if you were married (see above). If you are unable to reach an agreement as to the arrangements, a Court Application may be your only option.

Mediation

What is Mediation?

Mediation is a forum whereby you and your ex partner/spouse attend with a trained independent mediator with a view to resolving any outstanding disputes in relation to the arrangements for your children or matrimonial finances. The Mediator would be there to listen to both parties wishes and views and give you assistance as opposed to advice. They would seek to help you reach an agreement.

If an agreement were to be reached at mediation, then it would not be legally binding upon either of you. You would both be entitled to seek your own independent legal advice thereafter.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Are You Entitled to Legal Aid and What is Mediation ?

by Emma Macdonald 16th October 2014

Legal Aid
In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence.

Following LASPO however, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation.

Legal Aid is available for the following cases:-
– Family law cases involving domestic violence or when the child is at risk of abuse from partner;
– Forced marriage;
– Child abduction;
– Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
– Mental Health and Asylum cases;
– Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse.

The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).
“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

As legal aid availability is now extremely limited, what are the alternatives available?

– Family loans;
– Credit cards;
– Commercial loans/Litigation loans (Litigation financing is defined as the process in which a third-party company provides advanced capital to cover litigation costs in exchange for a return on any judgment or settlement);
– Paying privately for advice and assistance on an “as and when” basis, which is one step away from being a litigant in person;
– Legal Services Order in divorce/financial proceedings

LASPO introduced further Court powers, which allows the Court to grant a “Legal Services Order”, which is an Order for one party to make a payment to fund the other spouse’s legal costs. However, before the Court would make such an Order the Court must be satisfied that the person ordered to pay has sufficient money to pay and that you could not obtain any other form of financial support, i.e. by way of loan

What is Mediation ? – MIAMs

Regardless of funding, before an application can be made to the Court, it is now a requirement to attend a mediation information and assessment meeting (MIAM). The idea being to see if mediation can resolve your issues without the need to go to Court at all.

The Court wants to know whether mediation or any other non-court dispute resolution has been attempted before an application is issued. This means that before you go to Court you must at least have received information about mediation and how it works.

You will be required to provide evidence from the mediator that a MIAM has taken place, unless one of the exemption rules applies.

You are exempt from attending a MIAM in the following situations:-

– If there is evidence of domestic violence;
– If there are child protection concerns – the child would be the subject of the application and the subject of enquiries by the Local Authority;
– Urgency – if there is a risk to your life, liberty or physical safety or your family or any delay caused by attending a MIAM would cause risk of harm to a child, or there is a risk of unlawful removal of a child from the UK or retention of a child outside England and Wales, or you would suffer unreasonable hardship;
– Previous MIAM attendance – if you have attended mediation (or another type of non-court dispute resolution) in the last four months leading up to making your application relating to the same dispute;
– There is evidence that you are bankrupt and the Court application would be relating to finances;
– If you do not have contact details for your opponent;
– If the application is being made without notice to the other party;
– If either party suffers from a disability that would prevent attendance at a MIAM unless appropriate facilities can be provided by the mediator and all mediators within 15 miles of their home have been contacted;
– If you or the other party are in prison, or are subject to bail conditions not to contact the other person;
– If you or the other party are subject to a licence with prohibited contact requirement in relation to the other person;
– If neither you nor the other party are habitually resident in England and Wales;
– If a child is one of the prospective applicants

At your initial appointment, the Mediator will discuss with you whether you are eligible for legal aid for the mediation process.

Conclusion

Legal Aid is only now available in very limited circumstances unless there is written evidence of domestic violence.

The alternative to legal aid is to privately finance your case or do it yourself.

Unless you are exempt from the rules about Mediation, before you can go to Court you must at least attend a MIAMS meeting with a Mediator.

Contact our Family Team for further information.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.