Can you really have a clean break after divorce?

Many people mistakenly believe that a divorce severs your financial ties, but that is not the case.  It is necessary to either agree your financial arrangements via a separate negotiation and have the settlement formalised by the court, or have the court decide how your finances should be divided.

Each couple’s circumstances will be different and will determine the options available, with some people happy to maintain ongoing connections and other people keen to make a clean break.

‘While an emotional clean break from your former spouse may be harder to achieve, it is possible to achieve a clean break in a legal and financial sense,’ says Jo Scott family law expert at Kidd & Spoor Solicitors.

A clean break order can be made by the court after divorce to ensure that you and your former spouse’s financial ties are severed.  It also means that neither of you can bring any financial claims against each other in the future.

Do I want a clean break?

When deciding if a financial clean break is something that you want, it is necessary to consider your individual circumstances.

The advantages to having a clean break, include:

• enabling a fresh start with certainty and control;
• avoiding the risk of having to give a share of future assets to your former spouse; and
• preventing time and costs in defending a future legal dispute over finances.

There are two main reasons why a clean break may not be desirable, namely:

• if you have a need for ongoing spousal maintenance and a lump sum buy-out is not possible (discussed further below); or
• if you have young children, as the uncertainty of the future may mean you feel it is wise to keep the ‘spousal maintenance’ option open. For example, if one of your children needed extra care and you were no longer able to work, you might need to obtain increased spousal maintenance at that time.

The risk of future claims

Without a clean break order, your former spouse can still make a financial claim against you even decades after you divorce.  There have been many high-profile cases over the years that demonstrate this, such as:

• Dale Vince who built up a successful green energy business and 20 years after his divorce had to pay over £300,000 to his former spouse; or
• Nigel Page who, after winning the lottery, had to pay his former spouse £2 million.

Of course, while a clean break would have been advantageous to Dale and Nigel, the absence of one played into the hands of their former spouses.

However, if you want to ensure you have control of your own finances in the future and that your former spouse will not be able to share in your future earnings, inheritance, or windfalls then a clean break is advisable.

When a clean break is not possible

There are some circumstances when a clean break may not be possible immediately, the main reason being the need for ongoing financial maintenance.

Spousal maintenance is paid by one spouse to the other following divorce as an ongoing financial obligation.  Whether you are entitled to it, and the amount you are entitled to, will depend on your circumstances and will take into account your needs and financial resources.

Spousal maintenance may be due if:

• there is a shortfall between your income and outgoings; or
• there is a significant disparity between your income and that of your spouse.

It is often due where one parent gave up a career to look after the children and became financially dependent on the other parent.

Spousal maintenance is normally paid monthly.  The length of time over which it is required to be paid will vary and depends both on the length of marriage and the age of the parties.

Capitalising maintenance payments

If you are entitled to spousal maintenance, or are due to pay it, but would rather have a clean break now, then it may be possible to capitalise the maintenance into a lump sum payment.  This means agreeing a figure that would effectively ‘buy out’ the ongoing obligation to pay monthly maintenance.  This can be an attractive option for the receiving spouse if they require a lump sum now, say for the deposit on a new home, or, if they do not want to continually have to rely on their former spouse to pay up each month.  It can also be attractive to the paying spouse as they get to sever all ties now, meaning any future pay rises will not be taken into account.

Deferring a clean break

Sometimes ongoing spousal maintenance is a necessity, for example if the paying spouse does not have the capital available to buy out the receiving spouse’s maintenance, or if the receiving spouse needs regular monthly income to assist with their budgeting.

If it is decided that ongoing spousal maintenance will be paid, then a delayed or deferred clean break will be possible when that maintenance ends.  For example, spousal maintenance may be agreed to be paid for a three-year period.  It can be agreed that at the end of that three-year period a clean break order will be made.

Conclusion

It is important to note that spousal maintenance is entirely separate from child maintenance and a clean break can be achieved even if there is an ongoing obligation for one spouse to pay child maintenance.

In the vast majority of circumstances, even if you have few assets at present, obtaining a clean break agreement is the sensible course of action.

A clean break in financial arrangements will often be the best option for divorcing couples.  Where spousal maintenance is a factor then your individual circumstances need to be considered in deciding if a clean break is the best option now.

For further information, please contact Jo Scott in the family law team on 0191 2970011 or email cbennett@kiddspoorlaw.co.uk.

If you cannot reach an agreement with your former partner about arrangements for your children, one of you may apply to the family court for an independent decision.  The courts have a wide range of powers in deciding where a child should live and how often they should see each of their parents.  In most cases, a court will want to preserve a relationship between a child and both of their parents, even if it recognises that one parent’s behaviour is far from ideal.

‘Understandably this can sometimes be difficult to accept, especially if your relationship with your partner has disintegrated and you have serious concerns about your child’s safety,’ says Jo Scott family law expert at Kidd & Spoor Solicitors. ‘However, if you fail to follow the orders of the court or are uncooperative in repeated attempts to find an acceptable solution, you could find yourself labelled as ‘implacably hostile’. This could have very serious consequences for you and your relationship with your child, as such hostility can be viewed as a form of emotional abuse.’

What does ‘implacably hostile’ mean?

Implacably hostile is a term used by courts to describe extreme and persistent behaviour by one parent to prevent their child seeing and having a relationship with the other parent.

When someone is described as ‘implacably hostile’ it tends to be accompanied with a description of behaviour which paints a negative picture of a bitter parent, focused on vengeful acts against their former partner.

However, Jo Scott explains that often when this allegation is made, the parent is not bitter or intentionally vengeful but is focused on their belief of what is in their child’s welfare interests and is fearful of their child suffering harm or neglect by having contact with the alleging parent.

What behaviours amount to implacable hostility?

There have been many cases over the past thirty years that have considered the full range of actions by parents, and which actions meet the definition of implacable hostility.

These range from consistent breaches of contact agreements to extreme and blatant manipulation of a child against one parent and can include:

• repeatedly failing to permit a child to see or talk to your former partner;
• not passing on messages, cards, letters, or gifts left by your former partner for the child;
• telling the child that your former partner does not care about them or cares more about a ‘new family’;
• suggesting fun and exciting things for your child to do as an alternative to seeing your former partner;
• making negative remarks in front of your child about your former partner; and
• making false allegations that your former partner has in some way harmed your child.

Consequences for children

Implacable hostility can have serious implications for your child’s wellbeing and welfare both now and into the long term, as it damages your child’s prospects of having a good loving relationship with both their parents.  This can lead to a lower sense of self-worth and feelings of being less secure and loved.  It has also been shown that children can feel paranoid as a result of being exposed to implacably hostile behaviour.

Options for the court

If the court determines that you have been implacably hostile, then it may order that your child spends extended periods of time with your former partner.  In extreme cases a guardian may even be appointed to represent your child at court, or a court can decide that your child would be better off living with your former partner and having limited contact with you.

What if I have behaved in this way?

Having read this far, you may be feeling either relieved that your behaviour cannot be criticised in this way, or you may be concerned that you have done things which might be seen as implacably hostile.  If you recognise some of the behaviours or are nonetheless concerned that you may be seen by a court to be implacably hostile, it is important to address it head on.

If your actions are taken out of a fear for your child’s welfare, then your concerns need to be aired.  If a court determines your concerns are legitimate, for example, a significant risk of harm could be caused to your child if direct contact occurs between them and your former partner, then a court will not find you to be implacably hostile.  This may be where your child has suffered abuse at the hands of your former partner.  It is wise to take early legal advice before stopping any contact between your child and your former partner, as if your concerns are not found to be valid it can have a detrimental impact on your child and your relationship with them.

If the court decides that your concerns are not legitimate or are minor in nature and, on balance, they do not outweigh the benefit your child will get from having contact with your former partner, then you may be found to be implacably hostile.

Safeguards available to the court

Where you have valid concerns regarding your former partner, it is understandable that you may wish to cease all contact, however often safeguarding measures can be put in place to alleviate any risks.

For example, if your former partner has been convicted previously of drink driving, you may be very worried that they will drive under the influence with your child in the car.  Clearly if that occurred there is a significant risk of harm to your child which you would rightly be very concerned about.  However, rather than stopping your child seeing your former partner altogether, it may be better to put in place a safeguard that would prevent them driving with your child.  This could mean that contact occurs in a community setting such as a soft play area, where you can drop the child off and collect them.  It also allows you to satisfy yourself your former partner is not under the influence of alcohol.

Safeguards can be used as a short-term solution to build trust, or they may be needed in the longer term depending on the nature of the concerns.

Ultimately, the court will put the best interests of the child first, and it is likely to find that a child will benefit from having a relationship with both parents.

For further information on any issue relating to family law, please contact Jo Scott in the family law team on 0191 2970011or email cbennett@kiddspoorlaw.co.uk.

 

As a parent you will always strive to do what is best for your children, but for separated parents this can sometimes lead to disagreement when what is best in one parent’s eyes does not align with the other parent’s view.

‘While education is undoubtably an important factor for a child’s development and welfare, and for their future success and happiness, it can also be the subject of a family dispute if parents disagree over where a child should attend school,’ says Jo Scott family law expert at Kidd & Spoor Solicitors.

Parents may have had different experiences of education, with each feeling that their schooling worked for them and will be best for their child.  Disagreements can arise over nursery, primary, and secondary schooling or whether your children should be home-schooled.

It is always best to try and keep communication with your former partner open and see if an agreement can be reached amicably.  If you have tried this but have been unable to reach an agreement, you may be concerned as to who has the final say on schooling matters.

Parental responsibility

The first thing to check is if you both have parental responsibility.  Anyone with parental responsibility for a child will have a say on the school their child should attend.

Biological mothers hold parental responsibility as do married fathers or fathers named on their child’s birth certificate.

There are other circumstances when you may have parental responsibility, so if you are unsure about this you should seek legal advice.  Steps can also be taken to obtain parental responsibility.

Legal options

Our experienced family lawyers will be able to advise you on your options, including alternatives to having to go to court.

Firstly, we can negotiate with your former partner or their legal representative to see if agreement can be reached.

Secondly, mediation is another option to try and reach an amicable resolution.  This allows both parents to air their views and feelings on schooling.  With the help of an independent mediator, parents can discuss what they both think is best for their children in a calm environment.  Sometimes this will lead to a compromise being achieved as both parents may have gained a better understanding of where the other one is coming from.

The final option is to apply to court and let a judge decide what should happen.  In most circumstances prior to doing this you will have to have attended a preliminary mediation session.  When applying to court you may want to seek one or both of the following types of court order:

• Specific issue order – This is when you apply to the court asking a specific question. In this scenario it may be that you will be asking the court to determine which school your children should attend.
• Prohibited steps order – This is when you apply to the court asking it to prevent someone with parental responsibility for your child from taking a certain action with your child. In this scenario it may be that you are asking the court to prevent your former partner from moving your child to a new school.

What will the court consider?

As with any dispute to do with children, the court’s paramount consideration must be the welfare of the child.  The law sets out a list of issues the court must consider.  This list is known as the welfare checklist, and it covers a number of aspects, including:

• the age, sex and background of the child;
• their physical, educational and emotional needs;
• how they feel and what they would wish to happen;
• the likely effect on them of a change in circumstances; and
• if they are at risk of suffering harm.

When it comes to a child’s schooling it is important to look at if there are any special educational needs and, if so, how these could best be met.  A statement of needs may be beneficial or a report from the child’s social worker if they have one.

Most children will not have any special educational needs and the question over schooling may be about preference.  In that case, the court will look at all the circumstances in the round including the school’s facilities, how the child will travel to and from school and depending on the child’s age their own wishes and feelings on what school they should attend.

The court will seek a CAFCASS report into the children’s wishes and feelings if they are old enough to provide them.  A child’s view will likely be taken into account from when they are around six or seven years old provided they have sufficient understanding.  Often children will have a view influenced typically on where their close friends are going to school.  Their wishes and feelings are only one factor and will not always be in line with what a court decides is best for their welfare.

For further information

For further information on any family law disputes, please contact Jo Scott in the family law team on 0191 2970011 or email cbennett@kiddspoorlaw.co.uk.

 

Once a relationship has broken down, while many couples remain on good terms, sometimes the situation is irretrievable and behaviour can go beyond what is acceptable or legal. In particular, disputes over who gets what in the financial settlement can prompt underhand dealings with the wealthier partner attempting to conceal assets or reduce their value. For example, they may build up debts (personal and/or business), or deliberately squander money in gambling or expensive trips that they did not participate in before. You might be worried that they are giving away valuable art or antiques.

‘If you are worried that your spouse is hiding, selling, or otherwise getting rid of assets to prevent you getting your fair share in the financial settlement after your divorce, then there are legal steps which you can take to protect your share,’ says Jo Scott, a Solicitor in the family team with Kidd and Spoor. ‘One course of action is to obtain a freezing injunction.’

A freezing injunction is a specific type of court order sometimes used in divorce proceedings to protect marital assets from dissipation. The order will prevent your spouse (or former spouse) from being able to deal with those assets and sell or transfer them to a third party.

Unfortunately, your former partner may take steps to rid themselves of assets in an attempt to lessen your entitlements in divorce. It may be of concern when a spouse withdraws large sums of money from their bank account, transfers property to a third party for little or no value, or if they transfer their shares in a company. All of these actions could significantly impact on your financial settlement. It is vital that you act quickly if you suspect your spouse may do this.

What assets does an injunction cover?

A freezing injunction can apply to all types of assets such as bank accounts, property, land, business shares, antiques and pensions.

On occasion it can also apply to other jurisdictions, not just assets held in England and Wales. It is a draconian measure, but it will typically allow an amount of money for your former spouse to live off and ensure they can meet their normal day-to-day expenses, but it will not allow for extravagant spending, or transferring of assets to other parties.

How do I obtain an injunction?

If you suspect foul play, then the most important thing is to act quickly. Your solicitor will need as much detailed information as you can provide about the assets that are at risk and why you believe they are at risk. This information should ideally include the whereabouts of the assets, the value of the assets, why you believe they may be transferred, any evidence you hold to confirm this such as witnesses, emails or text messages. Once in receipt of this information we can advise you on your options and the prospect of obtaining a freezing injunction.

This type of court order is usually applied for without putting your former partner on notice, so they cannot be heard at the initial hearing. If the injunction is granted, it will only be for a short period of time initially, until your former partner has the opportunity of coming back to court and having their say and explaining their position. The court can then weigh up both sides before deciding if the injunction should be extended.

To obtain an injunction, you must satisfy a number of criteria including that there must be a real risk the asset will be transferred or removed to your detriment by your former partner. This is why as much detail as you can provide is important. If the court is satisfied that there is a risk, the judge will move on to consider the ‘balance of convenience’ test. This means the court will weigh up all the facts and decide if the likely damage that would be suffered by you if the injunction was not granted is greater than the potential damage to your former partner if it was to be granted.

The court has a wide discretion when it comes to freezing injunctions and both your conduct and that of your former partner can be taken into account.

Avoiding malicious applications

It is important to note that as an applicant you will be expected to provide an undertaking, which is a formal promise to the court that should it later be discovered that the injunction should not have been granted, then you will pay any damages to your former partner. This is used by the court in an effort to prevent malicious applications.

 

Advantages and disadvantages

The main advantage of a freezing injunction is that it will preserve the asset or assets you believe are at risk of disappearing. Prevention is much better and reliable than attempting recovery after the asset is gone.

Applying for a freezing injunction can also bring a financial dispute to a head and more often than not it encourages early settlement without the need for a formal hearing. This can save costs in the long run.

However, if you apply for an injunction inappropriately, it could be costly for you in terms of having to pay damages to your former spouse.

Not all transfers of assets are aimed at devaluing your former partner’s estate. For example, your former partner may legitimately transfer assets by selling a property at market value or selling a business for the valued rate. These transfers may be getting rid of one asset but they will usually mean an increase in another asset, typically cash in the bank. An injunction would not be appropriate in these circumstances.

An injunction can put a burden on you to provide full documented details of your assets to the court. If the freezing order is to apply to foreign assets also, then you will have the additional step of registering the court order with the foreign jurisdiction as it will not automatically apply.

How we can help

Applying for an injunction is not a step that is taken lightly, and it is important that you seek early legal advice as delay alone could be a reason for your application failing. Obtaining early expert advice is important in order that assets can be preserved, and to ensure you obtain a fair settlement.

For further information, please contact Jo Scott in the family law team on 01912970011 or email cbennett@kiddspoorlaw.co.uk