6 reasons why you may need a cohabitation agreement

Moving in together is an important and exciting step in a relationship. Whether you are moving into a house or apartment that one of you already owns, or renting or buying a place together, it is a commitment that is financial as well as emotional. Unlike almost any other financial commitment, cohabiting is one that you are able to do without any formal agreement.

While the absence of formality has its attractions, it is important to note that the lack of legal clarity and protection can be problematic for a couple if a dispute should arise in the future,’ says Kirsty Tighe, Head of the family law team. ‘When a cohabiting couple separates, they are often surprised to find that there is no clear legal framework to help unravel any disagreements.’

Kirsty explains how it is important to consider how to put safeguards in place and outlines six reasons why you may benefit from a cohabitation agreement.

  1. Escaping the ‘common law marriage’ trap

Having heard the phrase ‘common law marriage’ being used by older couples or on the media, you might think that a long-term cohabiting relationship of say 20 years or more gives you all of the legal rights enjoyed by a married couple or civil partners.

This is false and nothing more than a myth.  There is no such legal concept as a ‘common law marriage’ and, regardless of the length of the relationship, cohabiting couples have no legal financial obligations towards each other if they split up.

Common problems can arise, which include deciding:

  • who takes over an existing tenancy agreement and who moves out;
  • whether one of you should pay occupational rent to the other; or
  • how ongoing school fees are going to be met.

Having a cohabitation agreement means that you can set out that you both wish to have similar rights and duties as a married couple, or you can tailor it to state the extent of such responsibilities towards each other, and towards the home you share.

  1. Obtaining clarity on your legal position

Given that there is no unified law governing what happens when a cohabiting couple splits up, as there is for a married couple or civil partners, a cohabitation agreement will give you a useful understanding of what your rights (if any) are.

There is no automatic 50/50 split of anything. Your lawyer will consider your personal objectives and the law, and they will help you think through important matters such as:

  • what happens to any property;
  • whether or not to expect financial assistance from your ex-partner; and
  • how any children of the family will be provided for.

Children will always be the most important consideration, and you will receive advice on the specific legal structure in place to ensure they remain well looked after if you have to rely on the law to help you achieve this.

  1. Protecting a property you own

Moving in together does not necessarily mean that you are making a lifelong commitment just yet, or that you wish to combine all your assets at this time.  This can be a particular concern for people where:

  • they have previously been through a divorce, and may have a family to provide for;
  • the property has been funded with the help of the ‘Bank of Mum and Dad’; or
  • the property is connected to their business, such as a farm, hotel, or holiday accommodation.

If your partner moves into your home, which you legally own in your sole name (or perhaps with other family members), while they will not benefit from an automatic right to a share of the property they could acquire some rights, known as a ‘beneficial interest’. Alternatively, they may seek to claim they have a right, which would be costly for you to deal with.

A cohabitation agreement is a sound way of safeguarding this asset, as it can confirm that your partner will not gain any legal interest or rights in your property by living there, even if they pay towards the bills or any mortgage.  If they make significant monetary contributions on renovations or improvements, you might agree that they will get this money back if you should split up.

Alternatively, you might want your partner to acquire an interest in your property, especially if they contribute towards your mortgage or significant improvements, which increase its value.

  1. Clarity over how bills will be paid

As with any shared household, it is sensible to agree on who will be paying for what and to what extent. You will want to have clarity on how much you each agree to contribute towards the bills.

This is often an equal split but may not be, especially if one person earns significantly more than the other or already owns the property.

Whilst monthly outgoings will be a level of expense you regularly review and have in mind, a handy point of reference, such as a cohabitation agreement, will clear up any confusion when it is time to pay an annual bill, such as school fees or renewing the insurance policies.

  1. When one of you is unable to work

When one person is unable to work, a reduction in income can put a great deal of strain on a relationship. In some cases, this might be something you plan together, such as having or adopting children; but it could also be unplanned, such as having to care for an elderly or unwell parent, or one of you might have an accident or serious illness.

Discussing these scenarios with your lawyer when you draw up a cohabitation agreement will help you to plan ahead and will provide clarity if the situation should arise.

  1. Confidence and reassurance

Undoubtedly, entering into a cohabitation agreement will provide peace of mind because you have taken steps to organise the logistics of your relationship and you know exactly where you stand on key issues. It will free up time and headspace, allowing you to focus on other areas of your life.

Working with a trained and experienced solicitor to draw up a cohabitation agreement makes it much easier to discuss tricky questions and the issue of what might happen if the relationship were to end.

The reassurance a cohabitation agreement brings is invaluable. You are not expected to remember every sentence and paragraph within your agreement, but should questions arise during the relationship you will have a document that you can refer to and which will provide the answers you are looking for.

How we can help

It is never too late to enter into a cohabitation agreement. Whether you are thinking of moving in with your partner or have been living with them for several years already, it is a good idea to explore your options.

If you are interested in finding out more and how to go about it, please contact Kirsty Tighe in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Equality and needs in determining a financial settlement

Going through a divorce or dissolution of a civil partnership will be a challenging time for most people, not only dealing with the emotional distress that comes with a break up, but also the financial realities of separating one household into two.

It is important to recognise at the outset that financial settlements do not necessarily mean that each person will walk away with 50 per cent of the assets,’ says Kirsty Tighe, Head of the family team. ‘The family courts will seek to find a fair division of assets, but there are a number of factors they will take into account before moving the calculation of a financial settlement away from equality.

Disputes can arise where one person perceives that they have been treated unfairly. But how is fairness determined?

While most disputes are capable of resolution without the intervention of the courts, it is necessary to understand the principles the court consider to ensure you have a fair and just financial settlement.  There are two overarching principles the courts look at when it comes to considering financial division, namely the equality principle and the needs principle.

What is the equality principle?

Historically, the financial division of assets was often tipped in favour of the working spouse, to the detriment of any stay-at-home spouse which was usually the woman.  This position changed over 20 years ago when the court decided that there should be no bias in favour of the money-earner against the homemaker or caregiver.

Nowadays, the starting point for the court is to consider an equal division of the family assets, and only seek a move away from this if it is just and fair to do so.

When can there be a move away from equality?

Equality is not always what will produce a fair solution, which is ultimately what a court is striving for in determining how finances will be divided.  This difference could be for several reasons, for example:

  • One partner may have received a large inheritance. This could make it unfair for the other partner to obtain half of the inherited assets.
  • One partner may have made a ‘stellar’ contribution to the family assets. This could be where one partner has gone above and beyond to enhance the family wealth.  Cases of this nature tend to be less common, but each set of circumstances needs to be judged on its own merit.
  • One partner has significantly greater financial needs than the other, which could be for a number of reasons. For example, if they have primary care of the children of the relationship their financial needs will be greater to house the children; or they could suffer from a disability which impacts their housing requirements or earning potential.

Any of the above factors could mean that the court awards a larger share of assets to one partner in order to recognise their extra contributions to the family wealth or to meet their greater needs.

The needs-based approach

When there is insufficient money to allow for an equal division of assets and still meet the requirements of both parties, the court will carry out an assessment of what is fair in order to meet the needs of each person.

The legislation stipulates a number of categories for the court to consider when assessing the needs of each partner, including:

  • their income, earning capacity, property, and other financial resources;
  • their financial needs, obligations, and responsibilities;
  • how long the marriage or partnership lasted, and the age of the partners;
  • their standard of living prior to separation; and
  • any disability of either partner or any children.

The housing needs of any children of the family is a commonly used factor in providing one partner with a larger proportion of the assets.  Shorter marriages can also result in a significant move away from equality.

Considering the needs of each person allows for fairness to be put at the forefront and attempts to ensure financial stability and independence for both partners.  A clean break is the ideal solution, when the partners can move on without being financially tied to each other – save for any child maintenance obligations.  It is often the case that sacrifices and a change in lifestyle will be needed for each person following separation.

How we can help

Ultimately obtaining a fair and just financial settlement involves a balance between equality and meeting the needs of the individuals involved.  The judges have significant scope for discretion.  Obtaining specialist advice from a lawyer practising in family law, who can be realistic as to the likely judicial approach, will be invaluable.

If you are recently separated, considering financial separation, or want to know more about your options, then please contact one of our expert family lawyers who can advise you on the best route to suit your circumstances.

For further information, please contact Kirsty in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Postnuptial agreements and family business succession plan

The 2020s have been called ‘The Great Wealth Transfer,’ as £1 trillion of wealth built up by the ‘baby boomers’ is expected to pass to the next generation. Much of this wealth will pass via a family business, and parents who wish to retire are having to make strategic decisions about succession planning.

A particular concern for many is the potential impact on a family business of a divorce or the dissolution of a civil partnership, and the consequent negotiations of a financial settlement.

Business difficulties can arise for any number of reasons, and directors usually have business strategies, budgets and contingency plans,’ says Kirsty Tighe Head of the family team.  ‘However, few businesses have a plan for what would happen if an owner got divorced.  This could have devastating consequences for a family business, yet it is rarely talked about until it is too late.’

According to the Office of National statistics, 41 per cent of marriages will have ended in divorce prior to their twenty-fifth anniversary.  With such a high level of risk, it is not surprising that business owners are asking what can be done to protect their business in such an event – especially if they perceive a child to be in an unhappy marriage.

If the founder’s offspring is already married or in a civil partnership, then one thing to consider would be to propose a postnuptial agreement before they transfer business assets.

What is a postnuptial agreement?

A postnuptial agreement is a legal contract between spouses, outlining how assets will be divided in the event of divorce, which is signed after the marriage or civil partnership has taken place.

Like a prenuptial agreement, a postnuptial agreement is not legally binding but it will tend to be upheld by the court provided it has been entered into fairly.

How will a postnuptial agreement benefit the family business?

When negotiating the financial settlement in a divorce, business assets will normally be valued as part of the matrimonial assets for sharing.  A postnuptial agreement is unlikely to be able to ring fence the business entirely, but it can be realistic about how much of the asset a spouse or civil partner could expect and over what time period payments would be made.  For example, it could stipulate that a spouse would receive a certain percentage of turnover or profit, and allow for this to be paid over a number of years to minimise disruption to trade.

If the couple worked in the business together, then a divorce could also mean negotiating the end of one spouse’s or civil partner’s employment as well.  A postnuptial agreement can include the basis for how any severance would be calculated, and stipulate any restrictive covenants such as not setting up business or working for a competitor within a certain trading distance of the existing business.  You may have further stipulations you wish to include that are specific to your business, such as protecting your trade secrets and customer and supplier lists or ensuring your employees are not poached.

A postnuptial agreement can ensure that the business stays in the family, and protects the future of the business by outlining how both current and future assets of the business will be treated.

Reassurance can be provided between family members if all owners are prepared to enter a postnuptial agreement.  This means each of your livelihoods can be protected.  It can encourage both investment into the business and growth as it helps to provide stability and certainty.

What can a postnuptial agreement cover?

While the postnuptial agreement may have been prompted by the proposed transfer of business assets, the agreement can cover how all your assets would be divided, not just the business assets.

For example, you can agree what happens to land, properties owned, stocks and shares, saving and investments, as well as pensions.

One of the advantages of a postnuptial agreement is that while it offers you more certainty, it can also save you significant costs if a divorce does occur.

The importance of independent legal advice

It is critically important for each person to have independent legal advice.  For any agreement to be enforceable, the court needs to be satisfied that it was entered fairly, with each person having a full appreciation of the assets involved and what their entitlements could be in a divorce.  If upon receiving advice your spouse or civil partner does not wish to enter the agreement, then they have the right to refuse.  If the court feels that someone has been unduly influenced to sign, then it is unlikely to uphold the agreement.

If your spouse or civil partner does not have the resources to pay for legal advice, then you can offer to pay or the business can pay, but the legal advisor acting must be clear that their client is your spouse or civil partner, and not you.  Their duty lies with their client.

How we can help

If you are the parent who wishes to propose a postnuptial agreement to protect the future of your business, we can help you by providing you with the basis and information needed for your child to consider, including the protection it provides when growing your business.

If your parents or your in-laws have proposed a postnuptial agreement as part of their business transfer, then we can help you to understand the proposal and what would be fair to you in the circumstances.  We will advise you on what your likely entitlements would be in a divorce scenario.

Contact Kirsty in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

How are gifts treated in divorce or dissolution of a civil partnership?

The Government’s 2022 English Housing Survey reported that 27 per cent of first-time buyers used gifts from family or friends to fund their house deposit.  With the average deposit now required exceeding £43,000, it is hardly surprising that so many seek the help from their family to get their foot onto the property ladder.  Well-intended parents will often gift large sums of money to their adult children without taking any legal advice or having any formal documentation drafted. But what happens if the couple decide to separate?

‘As a family lawyer, we regularly see sizeable gifts being made by family members to help a newly married couple starting out.  While this is often money to buy their first home, it can also be money gifted to help out with a business venture, or to extend or move house,’ says Kirsty Tighe, Head of Family Law.  ‘Difficulties can arise if that marriage or civil partnership later breaks down.  The spouse or civil partner whose family have been so generous may expect to see a larger share when it comes to dividing the matrimonial assets.  Unfortunately, that will not always be the case.’

What does the law say about gifts?

A gift can be any item, such as jewellery, vehicles or money provided to another person.

Personal gifts such as jewellery tend to stay within the ownership of the spouse or civil partner they were gifted to.  Joint wedding gifts, such as a valuable artwork or an antique, are treated as matrimonial assets regardless of whose family or friends gifted them.

Gifts can be redistributed by a court if that is deemed necessary for the fair division of assets.  For less valuable gifts, it is best to try and agree how these will be divided by proposing a list of the gifts you wish to retain.  For more valuable gifts, a formal valuation is likely to be required in order that the assets can be fairly accounted for in the division of assets.

Typically, it is monetary gifts that are most likely to cause conflict in attempting to agree the financial settlement after a divorce or dissolution of a civil partnership.

Issues with financial gifts

When money is paid by a parent or other family member without the expectation for repayment, and without an expectation of ownership or rights over how the money is used, it is deemed to be a gift.

In most divorces, gifts are treated along with the rest of the matrimonial assets which are subject to being divided.  That is because most divorces are dealt with on a ‘needs’ basis i.e. any financial settlement will cater for the financial needs of each partner or spouse.

Some divorces, typically those where assets exceed several million pounds, can be dealt with on a ‘sharing’ basis.  That is because there is significant excess wealth above that which is required to meet the financial needs of the separating couple.  In a sharing case, the court will consider significant gifts from one partner or a spouse’s family.  This may result in that spouse or partner obtaining a larger share of assets to reflect their family’s contribution.

Is it a gift, or a loan?

It is not uncommon to find, after a separation, that the family who generously provided money claim this was in fact a loan not a gift.  This is because loans and gifts are treated differently by the law.  If a loan is made, then the loan needs to be repaid or taken into account prior to the division of assets in a financial separation.

In determining if the money provided was a gift or a loan, the court will examine all the surrounding circumstances and the detail of the terms of the alleged loan.  This is when documentation can be helpful.

Is there any documentation available?

Being able to provide a written loan agreement, specifying the terms of the loan and repayment and which has been signed by both spouses or partners and witnessed would be ideal.  Unfortunately, in our experience this is not how most families work, and typically a much less formal arrangement will be in place.  Therefore, examining any other documentation that can support the claim that this was a loan would be helpful.  This could be text messages, emails, thank you notes, or proof of some repayments having already been made.  Ultimately, proving a loan without formal documentation can be very difficult.

How we can help

If you are concerned over what might happen to your family gift or loan when you separate, or if you want to ensure protection over a gift or loan before it is made, then please contact one of our expert family lawyers who can advise you on the best option to suit your circumstances.

For further information, please contact Kirsty in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Can I postpone the sale of the family home when separating?

When a couple separates, the value of the family home is often the largest asset that they have to divide, and it can also be the most contentious.  This can be for a multitude of reasons, for example, one spouse or partner may feel emotionally tied to the house, or it may be next door to other family members.  You both may be concerned about having to move children from the home they have grown up in, perhaps to a different neighbourhood away from their friends and social activities.

There is also the financial risk, especially with higher interest rates, that it could be difficult to sell the house for a good price to ensure sufficient equity to rehouse each person in a suitable location.

While a clean financial break is normally what separating couples aim for, at times it may be appropriate to consider postponing the sale of the family home.  This can be achieved through what is known as a ‘Mesher’ or ‘Martin’ order,’ explains Kirsty Tighe, head of the Family Team.

What is a Mesher order?

A Mesher order allows for the postponement of the sale of the family home until either a certain period of time has passed, or an agreed ‘trigger event’ occurs.  It is used when there are minor children living in the family home, and it allows one of the spouses or civil partners to continue to reside there with the children.  The ownership of the property is not impacted, and the spouse or civil partner remaining in the home does not ‘own’ the home outright. The order will remain in place until the time stipulated in the order, or if the trigger event is reached.

Trigger events typically include:

  • the youngest child of the family finishing full time education; or
  • the spouse or civil partner, who has remained living in the house, remarrying or cohabiting with a new partner for a set period of time (typically six months).

Once the order comes to an end, the family home will be sold. Then the balance of the proceeds of sale will be divided in line with whatever terms has been ordered or agreed.

What is a Martin order?

A Martin order is similar to a Mesher order in that it postpones the sale of the family home until an agreed trigger event occurs.  The main difference is that a Martin order does not relate to minor children living in the house.  This order is typically used when there are either no children involved, or any children the couple had are already over the age of 18.

The trigger events in a Martin order usually stipulate the property can be sold if the spouse or civil partner remaining in the home is to remarry or to cohabit with a new partner for a period of time. On occasion, a Martin order can be made to cover the whole life of the spouse or civil partner remaining in the house.

These types of orders are usually only implemented when the court is satisfied that the capital from the former family home is not immediately required to enable both spouses or each civil partner to be rehoused.  Typically, the spouse moving out of the house will be wealthier than the remaining spouse.

Is postponement the right option?

This decision will depend on your circumstances.  In most cases, postponement will only be delaying a problem for you to deal with in the future.  Historically these types of orders were used much more often than they are today, however this sometimes led to problems when the house was later sold and some people still could not afford a new house.  Delaying matters meant they also had the added problem of having less of a working life left to secure a mortgage. Most separating couples now prefer to cut their ties and know where they stand financially.

On occasion, a postponement may be the right option.  For example, if you have very young children, you may not be returning to work until they are at school and postponing a sale could push forward the need to obtain a mortgage until a later date.  You could also be tied into a good mortgage deal at the moment, which you would risk losing if the property had to be sold now. If you are able to obtain a Martin order for your lifetime, this could also remove a significant worry about your future housing needs and the costs.

It is important to note that postponing the sale of the home is not the only option to enable you to stay in the house.  Our family lawyers will be able to advise you on the viability of other options, such as offsetting your interest in other assets to retain the family home without your former spouse or partner remaining as an owner.

How do I get a Mesher or Martin order?

If an agreement can be reached, your family lawyer can draft the terms of the order and apply to the court for it to be finalised.

If you cannot reach an agreement, then you can apply to the court for financial relief.  The judge, after hearing your case, will make whatever orders they deem most appropriate for the circumstances.

How we can help

If you are concerned over what might happen to your family home following separation, one of our family lawyers will be able to advise you on your options and discuss with you the advantages and disadvantages of seeking to postpone the sale.  We can also advise you on alternative options, and if you decide to proceed with a postponement we can ensure that appropriate trigger events are included to protect your interests in the future.

For further information, please contact Kirsty Tighe in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Family Mediation Week 2024

Family Mediation Week – 22nd – 26th January 2024 
Family Mediation Week takes place from 22 – 26 January 2024 and is an opportunity to raise awareness of family mediation and of the benefits it can bring to separating families.
The Family Mediation Council aims is to raise awareness about the benefits of family mediation and encourage separating couples to think about family mediation as a way of helping them take control, make decisions together and build a positive future for their family.
Over the course of this week they will publish information, resources and news stories explaining the main benefits of mediation for families.
Our family team at Kidd & Spoor Solicitors have many years of experience in offering advice on all aspects of family law and domestic relations.
Get in touch with our team on  0191 297 0011.

What are the steps to no fault divorce?

Prior to April 2022 couples who wanted to divorce based on no fault, had to wait two years from separation to issue on that basis, with the consent of their partner. If couples wanted to divorce prior to this, then blame had to be applied to their spouse. There were no further options available. Now couples can seek a divorce, after one year of marriage, without having to apply blame to their former partner.

Kirsty Tighe head of our Family Team at Kidd & Spoor sets out a step-by-step guide as to the new No Fault Divorce. The introduction of this new law will hopefully allow the divorce process and financial discussions proceed more amicably and allow for better relationships between divorcing spouses.

Step 1 – Consult a family Solicitor

Taking the step to discuss the potential of divorce is not an easy step to take. The result will mean big changes for your family, finances and potentially any children arrangements. Whilst appointing a lawyer is not necessary for divorce, it is important you speak to a family solicitor about the implications that follow divorce and how they can be resolved.

We will arrange a fixed fee initial consultation with you to understand your circumstances to allow us to provide you with the help and assistance needed and work out a plan to help achieve your desired conclusion.

Step 2 – The application

Once you have confirmed that you wish to proceed with a divorce, we will ask that you provide your Marriage Certificate and will draft the divorce application, required by the Court. You need to be married one year before you apply for a divorce.

You and your spouse can either jointly apply for a divorce or you can apply solely. Whatever which way you decide to apply, we can assist you in drafting the necessary paperwork and submission to the Court. There is a court fee payable to the Court, when applying for divorce and the fee is £593.00. We will then lodge the application together with Marriage Certificate with the Court and pay the court fee.

Step 3 – Awaiting for Court papers

Once the divorce application has been lodged with the Court, the Court will then process the application. This is called “issuing” your divorce. The timescale often varies but is usually around two to six weeks. Your case will be added to the Court system, will be given a Case Number and your papers will be stamped by the Court, known as the Court’s seal. After this the Court will then return the “issued” papers.

Step 4 – The Acknowledgement of Service

At this stage you confirm to the Court that you have received the issued papers and that you wish to proceed. This is done by way of an Acknowledgement of Service. If you have issued a joint application then both you and your spouse will need to complete the form. If you have applied for a divorce, in your sole name, it is your former spouse who will need to complete this.

Your former spouse will have 14 days from the date of service of the application to respond to the Court and confirm whether they intend to dispute the divorce, or allow it to continue undefended. If they wish to defend the divorce then they must explain their reasons why, under the new law, there are very limited reasons the Court will allow.

If your former spouse fails to return the Acknowledgement of Service, then we will proceed with the divorce on an undefended basis and discuss with you the options moving forward on how to do that.

Step 5 – Reflection Period

Once the Acknowledgement of Service has been filed. The divorce enters into a 20 week reflection period, this is calculated from 20 weeks from the date the divorce application was issued by the Court.

During this period, it allows discussions in relation to financial matters to be discussed. Divorce itself does not dissolve financial matters and therefore it is essential, with the help of lawyers, to reach a agreement in relation to financial matters that have arose as a result of your marriage. Once an agreement has been reached, this can be reflected in a Court Order, which is enforceable through the Court. If it is not possible for an financial agreement, then you may have to issue separate proceedings, called “Financial Remedy Proceedings” and ask the Court to determine how the marital assets should be divided.

Furthermore, a divorce does not determine any arrangements in relation to children such as to where they are to reside. Most separating couples are able to agree these arrangements between themselves or with some help from their legal representatives. If you have any queries or questions regarding arrangements for your children we will be able to advise and assist you to help reach the best possible outcome in the most amicable way that benefits your family. If an agreement is not possible, then we will be able to discuss with you the possibility of mediation or court proceedings in relation to the arrangements for your children.

The 20-week reflection period is a minimum period, and discussions in relation to financial matters and the like can go beyond this time if needed.

We will be able to provide full assistance in relation to the division of marital assets and arrangements for children.

Step 6 – Conditional Order

Once the 20-week reflection period has passed, we will be in a position to apply for your Conditional Order for Divorce (this was previously called Decree Nisi, under the old Law).

This is an Order from the Court, confirming there is no legal reason as to why you cannot divorce. If the Court are satisfied they provide a “Certificate of Entitlement” which provides a date and time as to when your Conditional Order will be granted.

If your divorce proceeds on a undefended basis, there will be no need for either you or your former spouse to be at Court when your Conditional Order is pronounced.

Step 7 – The six-week cooling off period

Once Conditional Order is granted by the Court, you cannot apply for your Final Order (previously called a Decree Absolute) until six weeks and one day from the date of the Conditional Order. This has followed on from the previous process and is a cooling off period to allow you to thing about whether you wish to dissolve your marriage.

Step 8 – Final Order

After the six-week cooling off period has elapsed, we can apply for your Final Order (previously Decree Absolute). Once this Order is granted by the Court, your divorce is legally finalised and your marriage dissolved.

How we can help

We understand and appreciate how hard and upsetting it can be to make the decision that you wish for your marriage to come an end. If you are contemplating divorce or would just like some advice of the steps involved and where you stand in terms of a separation, then please contact our Family Department on 0191 297 0011 or email familywhitleybay@kiddspoorlaw.co.uk

This article is for general information only and does not constitute legal or professional advice.

Options if your former partner is not complying with a child arrangement order

A child arrangement order (sometimes referred to as a CAO) is a court order which stipulates the contact arrangements for a child following parental separation, including where a child will live, and what time a child will spend with each parent.  They help to ensure that the welfare and best interests of a child are looked after.

This type of court order is normally only needed when parents cannot reach agreement between themselves on what is best for their child. The court process can be lengthy, and so it is disappointing when one parent unilaterally decides not to abide by the terms of the order.

‘Breach of a child arrangement order can cause distress for a parent, but also results in significant instability for children.  At times it can even mean children are not permitted to see one of their parents, so it is important to understand your options when a breach occurs,’ says Kirsty Tighe in the family team.

What is a breach?

A breach is anything that is done which is not in compliance with the terms of the child arrangement order.  The court must be satisfied beyond a reasonable doubt that a breach has occurred, and courts tend only to intervene when breaches are substantial and deliberate.

The court expects that a pragmatic approach is taken towards minor breaches, such as being delayed a few minutes.  Even if there is a more significant breach, it may not always be deliberate or something which a court would seek to enforce.  For example, a parent that has been delayed in a traffic jam for several hours, or involved in an accident, would be highly unlikely to suffer any consequences at court as a result of such a breach.

If a parent repeatedly breaches the order, even if they are small breaches, or if they simply refuse to comply with the terms, then the court has powers to enforce compliance with an order.

Often a parent has to make an application for enforcement when the other parent outright refuses to allow the other parent to see the child, without any valid justification.

What are the options if your former partner breaches a CAO?

When a breach occurs, there are several possible actions you may take as follows:

  • If possible, it is best to speak to the other parent first about why the breach occurred. This may be sufficient to reassure you it was a one-off event, or it may give you the opportunity to discuss how the breach could be avoided or overcome in the future, or to agree an alternative arrangement for your child.  For example, if one parent is consistently late to collect their child on a Wednesday evening due to work commitments, it may be sensible to see if agreement can be reached on a later collection time, or even swapping the day.  This can cut down on future disruptions and lead to a more consistent routine for your child.  If direct communication is proving difficult, a mediator may be able to assist in opening the lines of communication and helping you both to reach an agreement.
  • If matters cannot be resolved directly, or direct communication is not suitable in your circumstances, then sending a solicitor’s letter to your former partner which sets out your concerns may be enough to ensure no further breaches occur.
  • If resolution is still not possible then you can refer the breach back to court. You can do this to either seek enforcement of the existing order, or you may wish to seek some alternative order, such as a prohibited steps order preventing the other parent from taking a particular action with your child, or a variation to the terms of the existing order.  For example, to reduce the time your child spends with your former partner.

The best route will depend on your circumstances, and the reason for the breach.  One of our expert family law team can advise you on the most appropriate route for you.

In enforcing the court order, the court has several powers and steps that can be taken against the parent that is in breach of the order, including ordering a fine, community service, and in extreme cases the court can even order a custodial sentence.

Child welfare

Your former partner may be concerned over the safety of your child if they were to comply with the order and permit your child contact with you.  Their concerns may be exaggerated or even invalid.  We have heard of parents stopping contact based on a rumour they have heard, second or even third hand, about the behaviour of the other parent.  It is important to establish as soon as possible what their reasons for breach have been and, if necessary, obtain evidence to counter their concerns or provide facts to disprove any mistaken beliefs.

This should lead to an earlier re-establishment of contact arrangements.  Early legal advice can mean less detriment to both you and your child.

Who will pay?

During enforcement proceedings, the court has the discretion to order compensation against the breaching parent in your favour if you are out of pocket as a result of the breach.  This, of course, is dependent on the reasons for the breach.

The court has the power to order legal costs against one parent if the court is satisfied that it is fair and reasonable to do so.  In determining this, the court will consider the facts of the case and the nature of the breach.  One of our family law team can guide you on the likely costs of your case, and the likelihood of securing an order for costs against your former partner.

How we can help

One of our family law experts will be able to advise you on the options available to you in respect of any breach of a child arrangement order.  We can weigh up the routes available to you, and help you obtain the right legal advice to best meet you and your child’s needs.

Please contact Kirsty Tighe in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk for further advice.

 

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Is it possible to divorce a person who lacks mental capacity?

Anyone contemplating divorce or dissolution of a civil partnership will have many things to consider, but you are likely to have particular concerns if your spouse suffers from a condition which impacts their mental health and their decision-making ability. The considerations will differ slightly depending on whether a lack of mental capacity is permanent, for example as a result of a serious brain injury, dementia, or Alzheimer’s disease, or if their decision-making ability comes and goes, for example due to substance misuse or bipolar disorder.

Someone’s ability to understand and make a decision will also vary according to the complexity of the decision. For example, they may agree that you no longer get on and should separate, but the negotiation of a financial settlement may be too complex an issue for them to grasp.

Kirsty Tighe in the family team with Kidd & Spoor Solicitors  explains that; ‘There is nothing to stop you obtaining a divorce, or dissolving your civil partnership, but it will be important to establish if your spouse holds mental capacity.  If so, then the legal proceedings can continue as normal, but if they do not then additional steps and safeguards will be needed.’

It is also important to be sensitive to the fact that separation in itself is stressful, and this can affect the mental health of participants. Fortunately, the recent introduction of no-fault divorce has removed one of the significant causes of stress in the process.

Establishing mental capacity

Mental capacity refers to a person’s ability to use and understand information, to make a decision and to be able to communicate that decision.

For your spouse to have mental capacity in divorce proceedings, they must:

  • understand what divorce or dissolution of the civil partnership is, and what it will mean for them;
  • be able to retain information they are provided in relation to the legal process and the financial implications;
  • weigh up the information provided as part of the decision-making process; and
  • communicate their decisions and instructions.

If there is any doubt over whether your spouse holds capacity or not, then a medical assessment will be required.

How to divorce if my spouse has no mental capacity

It is still possible to apply for divorce and financial separation even if your spouse lacks mental capacity.

Legally, they will not be able to consent to the divorce or any financial settlement.  It will therefore be necessary for them to have someone that can act on their behalf and in their best interests in relation to decisions surrounding the divorce and financial separation.  This person is known as a ‘litigation friend’ and can be a close friend or family member.  The court will check to ensure that the litigation friend is capable of fulfilling their role in acting in your spouse’s best interest.

If no one suitable is available then you can ask the court to appoint a litigation friend for your spouse.  The Official Solicitor can act if there is no one else suitable and is known as the ‘litigation friend of last resort’.  Once a suitable person has agreed to act, then you can file for your divorce or dissolution and progress with financial separation in the usual way, but you will negotiate with the litigation friend on behalf of your spouse.

Dividing property and assets

The same statutory criteria will be used to decide the division of property, whether your spouse has mental capacity or not.

However, criteria used will include consideration being given to each of your housing needs, your income earning ability and your mental health.  If your spouse has lost capacity, further information will be required on their likely future prognosis and this may include a future requirement for care.

Each case will be different, depending on the facts.

What if my spouse has capacity, but is unwell?

If your spouse is deemed to have capacity following a medical assessment, but you are still concerned that they are mentally unwell then it is important that their capacity is kept under review.

For example, this may mean obtaining a reassessment of their capacity just prior to any financial settlement being agreed and signed.

Mental capacity can fluctuate, and it is not unusual for the stress of separation or court proceedings to have a significant impact.   In practice this may mean that you encounter more delays than normal in having your divorce or dissolution finalised.  A court is likely to be sympathetic in allowing your former spouse time to address their health issues.  However, the court will not allow a case to drift on indefinitely. If there are regular fluctuations in mental health which impact capacity, it may be necessary to involve a litigation friend or the Official Solicitor.

How we can help

It is a good idea to seek legal advice as soon as possible, as a mental health condition will create additional considerations and it makes sense to plan ahead. If you are contemplating divorce or dissolution of a civil partnership and you are concerned about your spouse’s mental capacity, or just want some preliminary advice on the steps involved, please contact the Family Law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Can I get a divorce in England or Wales?

You may have read in the news of many wealthy international divorces occurring in England, such as the divorce of the Dubai ruler, Sheikh Mohammed bin Rashid Al Maktoum, believed to be one of the largest in the history of UK divorces.  The popularity of England and Wales for international divorce is due to the many benefits it can afford in comparison to other countries.  Judges tend to have much greater discretion in England and Wales, and our starting point of equality is not always matched in other jurisdictions.

If you did not marry in England or Wales, or if you or your spouse do not currently live in England or Wales, you may be wondering if you would be able to obtain a divorce here.

‘To be allowed to divorce in England or Wales, you must meet certain criteria and the courts must have what is known as ‘jurisdiction’ to act.  This simply means that the courts have the power to determine your divorce,’ says Kirsty Tighe, Head of the Family team.  ‘If you meet the legal requirements then you can proceed to apply for a divorce in England or Wales, even if you do not presently reside here or did not marry here.’

It is important to note that some people may have an option of divorcing in more than one country.  If so, then taking early legal advice can help you determine which will be the best option for your circumstances.

What are the legal requirements?

There are a number of criteria that you must meet to be permitted a divorce in England and Wales, namely:

  1. You have been married for at least one year. If you try to divorce before one year of marriage, the courts will refuse your application.
  2. Your marriage has broken down irretrievably. This means that you are satisfied there are no prospects of a reconciliation. You may wish to attempt   couples counselling before coming to this decision.  Most people will be required to have at least attempted mediation before they are allowed to obtain their divorce.  There are some exceptions to this rule, and one of our lawyers can advise you in relation to same.
  3. Your marriage is legally recognised in England and Wales. It does not matter where in the world you married, provided your marriage is recognised as legitimate in England and Wales.  This can sometimes be a complex question and if you are in doubt, it is crucial that you obtain expert legal advice, as the implications can be wide reaching if your marriage is deemed to be unrecognised in the UK.  Generally speaking, to be recognised the marriage must have been legal in the country in which it took place, both spouses must have had capacity to enter the marriage, and any previous marriages must have been terminated properly prior to the marriage.  This can impact some religious ceremonies that occur, typically within the UK.  For example, if you are Muslim and get married under Sharia Law within the UK, it will not be legally recognised in England and Wales.

It is worth noting that if your marriage certificate is not in English, a certified translation will be needed for the courts.

  1. Jurisdiction is established. There are five ways in which this can be proven, namely:
  • both spouses are habitually resident in England or Wales;
  • your spouse is habitually resident in England or Wales;
  • both spouses are domiciled in England or Wales;
  • you are habitually resident in England or Wales and have lived here for at least a year; or
  • you are domiciled and habitually resident in England or Wales and have lived here for at least six months.

What if I have lived abroad?

If you have lived abroad, or are currently living abroad, then you will need to be able to establish jurisdiction in England or Wales to apply for a divorce here.  If your spouse resides in England or Wales then the jurisdiction test will be met.  If neither you or your spouse reside in England or Wales then you must establish that you are both domiciled there.

‘Domicile’ is not legally defined in statute but it is taken to mean the country where you have your closest ties, such as where your permanent home is, your legal affairs and tax affairs.  If you are unsure, then it is important to seek legal advice.

What if my spouse wishes to apply for divorce in another country?

For couples with an international lifestyle, you may be entitled to issue divorce proceedings in more than one country.

If your spouse beats you to it and applies for a divorce first in another country, then you will lose your opportunity to issue in England or Wales.

This could be costly for you, so it is important not to delay.

If you have a choice of countries within which you can issue your divorce then it is critical to obtain early advice from an experienced family lawyer.

How we can help

One of our family law experts will be able to advise you on the options available to you and what type of court orders you could seek.  We can weigh up the routes available to you, considering not only the financial impact but also the court orders available in relation to where any children of the family will live, and how orders could be enforced in other countries.

If you are contemplating divorce, or just want some preliminary advice on your options and if you are entitled to issue proceedings in England or Wales, please contact Kirsty in the Family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.