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.

Guide to direct access arrangements for children

Being separated from your child can be heart-wrenching, and yet some parents have to overcome some significant hurdles to be able to spend time with their children in a way that many families take for granted.

Direct access is the ultimate goal, and in this article we will focus on the different types of direct access, and what steps can be taken to finalise any agreement or seek a way forward if agreement cannot be reached.

This follows on from our articles which looked at the welfare considerations when thinking how to meet your child’s needs in agreeing access arrangements, and the reasons why indirect access may occur and the different forms it can take.

‘Direct access means any contact a parent has with a child that is face to face.  It can be in many different formats and can include restrictions if necessary to meet the child’s welfare needs,’ says Kirsty Tighe, Family Law Consultant at Kidd & Spoor.

Why have direct access?

Before we consider the different types of direct access arrangements, we will take a quick look at the reasons to have direct access.

Direct access is often what parents prefer to have with their children, and is normally what will be in the best interests of a child.  It is the basis of a natural relationship where a parent and child see each other face to face and spend time together.  If the access is of a good quality, it allows attachment to build between a child and parent and will promote the child’s wellbeing.

The quality of contact is not about what activities are undertaken, but more about the bond and connection between the parent and child.  For example, if there is a young toddler, a higher quality contact may involve the parent engaging with the child by interacting at their level and getting onto the floor to play games.  A lower quality contact may involve the parent being present in the same room as a child, but not engaging with a child for example by being on their phone.

If the time together is not high quality, it is still likely to be beneficial to a child provided there are no safeguarding concerns that would place the child at risk.

What type of direct access?

The different types of direct access provide different levels of safeguarding for the child:

  • Supervised contact – if you have been having indirect access, then sometimes the first step to direct access will be supervised contact. This is usually only if there remains some concerns that the child will be at risk.  This can be supervised by a friend or family, or sometimes it may need to be supervised by social services.  This is typically only a temporary measure to monitor contact before it can move to a more natural arrangement.
  • Contact centre – this is a centre staffed by volunteers or paid staff with childcare experience that is open for a few hours each week and can accommodate a number of different children and parents at the same time. It is not supervised contact, but does occur in a safe environment.  It can also be used as a neutral venue for contact handover if there have been past issues between parents.  Contact centres are not usually a long-term solution, and typically one is only used as a step towards a more natural contact.
  • Contact in the community – this can be at a soft play, park, swimming pool or cinema, for example. It is deemed to be a neutral venue for contact, and allows a relationship to build between a parent and child while the child participates in a fun activity.  This often occurs where one parent has raised issues about the home environment of the other parent, for example, concerns about other people that live in the home, or that the child may be exposed to inappropriate material in the home such as drugs.
  • Contact in the home – this is typically the most natural type of direct access and occurs in the parent’s own home. A neutral handover location can be agreed, or the parents can agree to transport the child between their homes directly.  This type of contact can be for a number of hours, or it can be for an overnight stay.  If it is to include overnight stays then it is important that the child has an appropriate place to sleep.
  • Holidays – direct contact can also include taking the child away on holiday, which (subject to any court orders) could be abroad or within the UK. It is wise to provide the other parents with details of where you will be staying and how you will be travelling.  It is also sensible if the child is away for a longer period of time than usual, that both parents agree how and when the absent parent will be contacted and if they will, for example, be able to have video calls during the holiday.

Restrictions

If there are particular concerns, restrictions can be put in place – such as restricting the venue direct access can occur in, or restricting other people who can be present.

How we can help

If you need advice on direct access arrangements for your children 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.

 

 

Chronic health and re-opening a divorce settlement

Can I amend our divorce settlement due to a chronic health condition?

During a divorce or dissolution of a civil partnership, there are a number of factors that must be taken into account when dividing financial assets. These factors include any mental or physical disability of either spouse or civil partner and what their current and future financial needs will be. This provides scope to make a fair and just settlement for anyone that maybe suffering a chronic health condition – a long term illness which is likely to significantly impact a person’s function, earning capacity and future financial needs.

What happens if you had agreed a settlement and have been subsequently diagnosed with a chronic health condition which affects your earning capacity?

‘When it comes to divorce or dissolution settlements, a chronic health condition can have a significant impact on the financial division of assets. If your diagnosis was after a settlement has already been reached, then it may be possible to have your settlement reopened to ensure that your financial needs are met,’ says Kirsty Tighe, a Consultant in the family team with Kidd & Spoor. ‘This is not a simple process and it will require urgent and early legal intervention if it is to have a chance of success.’

Can divorce settlements be reopened?

In most circumstances, divorce settlements are binding as a full and final settlement which cannot be reopened. It requires very exceptional circumstances for the courts to contemplate reopening a settlement, but under certain circumstances it will be possible.

These include:

  • If there was significant fraud or misrepresentation by one of the partners, such that the other has been deceived during the settlement process. For example, if one partner has provided fraudulent financial information.
  • If there was a material non-disclosure, where one partner failed to share important information which would reasonably have been expected to have impacted the settlement, such as owning significant assets.
  • An unforeseen change in circumstance, sometimes known as a ‘Barder’ event. This is the category that could include an unforeseen diagnosis of a chronic health condition which will significantly impact one partner’s financial position.

What is a Barder event?

A Barder event is named after the tragic case of Barder v Barder. A consent order had been made stipulating that the husband would transfer his interest in the family home to his wife, intending that the wife and two children of the family would reside there. Just five weeks later, the wife killed her two children before committing suicide. Her estate was left to her mother in her will. The husband, feeling this was unfair, tried to get the consent order varied by way of an appeal.

The House of Lords agreed to the husband’s appeal, and significantly changed the existing consent order to benefit the husband.

The judge set out the four conditions for when a ‘Barder’ event can occur, allowing a divorce settlement to be reopened:

  • that the new event invalidated the basis or fundamental assumptions upon which the original order or settlement was made;
  • that the new event had occurred within a short period of time after the settlement was made (while no time is stipulated, this is likely to be a number of weeks or a few months at most);
  • the application should be brought back to court promptly; and
    that third parties who have acquired, in good faith for valuable consideration, interests in property which may be impacted should not be prejudiced.

What changes could I obtain?

If your circumstances meet these strict criteria then you can have your settlement reconsidered in light of your new health condition.

It will be necessary for medical reports to be obtained to show when you were diagnosed; the likely future prognosis for you; and how this will impact your functioning and earning capacity. Consideration will also need to be given to any requirements for care assistance both now and in the future, and any adaptations that will be needed to your home.

How we can help

If you are in the unfortunate situation of having had a life changing diagnosis of chronic illness after your divorce or dissolution settlement, while your health and wellbeing are most likely your primary concern, it is vital that you obtain early legal advice on your options. Delay in acting can be reason alone for your claim to fail.

Reopening a settlement is not something that a court will do lightly. One of our family law experts will be able to advise you on the options available to you, and work to collate the strongest case possible to put forward for you.

Please contact Kirsty Tighe in the family law team on 0191 297 0011 or email kt@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 do we deal with our mortgage during a divorce?

With interest rates and the cost-of-living crisis in the headlines on a daily basis, mortgage affordability is a key concern for many homeowners, not least for couples who are separating and wondering how this will affect their mortgage arrangements.

Most divorcing couples will have a mortgage on their family home, and the family home is likely to be their largest asset.  The mortgage may be in joint names, or it could be in one person’s sole name. Either way, the house will be considered a matrimonial asset if it is the family home, and it will need to be dealt with as part of the financial settlement.

Whether a mortgage is affected by divorce or the dissolution of a civil partnership, and the extent to which it is affected, will depend on the terms of the financial settlement or any court order.

‘Most couples prefer to negotiate a clean financial break so that they have no ongoing financial ties, but if you have a joint mortgage then you and your partner will be both jointly and severally liable for that mortgage until it is either repaid or transferred into one person’s sole name,’ says Kirsty Tighe, Head of the Family Law team with Kidd and Spoor Solicitors Limited in Whitley Bay.

There are typically three ways in which a former matrimonial home will be dealt with when a marriage or civil partnership ends, each with respective arrangements for the mortgage.  Some couples may also need to take additional steps if their home is in a position of negative equity.

The three common routes are:

  • Selling the former matrimonial home – If you decide to sell your home as part of your divorce, then typically an estate agent will be jointly appointed by you both to achieve the best sale price. Once the sale is agreed, the solicitor acting for you will obtain a redemption statement from the mortgage company to find out how much money is left to pay.  Once the sale completes, the solicitor will redeem the mortgage in full so that neither of you have any further liability or obligation to the mortgage company.
  • If you keep the house – The first step will be to get the property valued, ideally by a qualified professional jointly appointed by you both to avoid any argument over the value. If you are the sole owner of the house and the mortgage is already in your sole name, you do not need to take any action in respect of it.  Your divorce lawyer will be able to include terms in your settlement agreement to ensure that your former partner is foregoing any beneficial interest they have in your house.

If your spouse or civil partner is the sole owner of the house, you will need to have the house transferred into your name.  If you have to pay them a lump sum as part of your settlement, or if you have agreed to repay their mortgage on the house, then you may need to take out a mortgage in your sole name.  Independent financial advice will be needed on the right option for you.

If the mortgage is in joint names, then you will either need to repay the mortgage and take out a new mortgage in your sole name, or, you will have to seek the agreement of your current mortgage company to release your partner from the mortgage and to transfer it into your sole name.

  • If your spouse or civil partner keeps the house – Much like the above situation, the first step will be to obtain a valuation on the property. If you are not an owner, then you do not need to do anything, and your settlement terms will confirm that you are agreeing to forego any beneficial interest you have in the house.

If the house is in your sole name, then you must make arrangements to redeem your mortgage at or before it is transferred to your former partner.  Your solicitor can arrange to do this as part of the transfer process.

If the mortgage is in joint names, then even if you do not reside in the house, you will still be jointly and severally liable for it.  Until you are released from this liability, you may find it difficult to obtain a mortgage for any new house you wish to purchase.  Therefore, when the house is being transferred to your former partner, your solicitor will make sure that you are released from all future obligations to the mortgage company, either by obtaining the mortgage company’s consent to release you, or, by making sure the mortgage has been redeemed.

What if the house is in negative equity?

Negative equity means that there is more money owed to the mortgage provider than the amount that the house has been valued at.  If your house is in negative equity, then it is unlikely the mortgage company will release either of you from being responsible for the payment of the mortgage.

This means, if you sell the house, you or your partner will have to also raise a lump sum to be able to pay back the mortgage at the time of sale.

If either of you plan on keeping the house, then you could try and raise a lump sum to reduce the mortgage.  This may provide more options to remortgage into one person’s sole name.  Independent financial advice should be obtained to find the best mortgage options.

Alternatively, if neither of you are able to raise a lump sum to reduce the mortgage then an agreement may be entered to allow one of you to remain in the house and indemnify the other in respect of the mortgage payments.  Such agreement would also normally provide for the person that is remaining in the house to be entitled to any future equity.

The options available in respect of negative equity properties are more limited, but we have a wealth of experience in reaching creative solutions to allow our clients the freedom to move on financially following divorce.

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 your mortgage on divorce.  We can weigh up the routes available to you, and help you obtain the right legal and financial advice to best meet your future 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.