Family mediation week 2026

Family Mediation Week takes place from the 26th to 30th January.

The week is an opportunity to raise awareness of family mediation and of the benefits it can bring to separating families. The Family Mediation Council state that their aim is to let more people know 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.

Throughout this week, they will be offering a series of free webinars, resources, information, blog posts and issue news stories.

For parents living in the North East who have decided to separate or divorce in 2026 are being urged to find out how to avoid courtroom confrontation to settle money and parenting arrangements.

January usually sees a rise in the number of parents deciding to live apart as the various pressures that go hand-in-hand with the Christmas period act as a final straw for relationships.

Trevor Gay, head of Family Law says “Family Mediation Week is designed to raise awareness of the benefits of family mediation, a process that can help ex-partners agree what works for them, whilst avoiding the court process with all the stress, delay and cost it can bring.”

He says: “Many parents emerge from the festive period feeling defeated by the pressures on relationships and finances that have been highlighted during the holiday period.”

Here in Whitley Bay, we find parents in this position simply don’t know which way to turn. Their life-changing decision to separate brings with it so many tough questions:

  • Who lives where?
  • Where will the children live, and how will we make sure we each spend time with them?
  • How will we sort money?
  • What about debts and pensions?
  • And even the family dog?

Family Mediation Week shines a helpful spotlight on these tricky issues, offering separating parents information about their options as they look to make arrangements for parenting, property and finance.

Family mediation is a process where an independent, professionally trained mediator helps you work these things out, enabling you to avoid courtroom confrontation. Professional mediators help empower you to create long-term solutions for your particular circumstances, rather than leaving it to a court to make decisions for your family.

Anyone wanting to know more about the benefits of family mediation and parenting arrangements can visit www.kiddspoorlaw.co.uk or call 0191 297 0011.

 

Avoiding common property problems in a divorce

Dealing with real estate issues in a divorce or dissolution of a civil partnership can be legally intricate. Misunderstanding how assets are categorised, failing to value them correctly, or overlooking tax consequences can lead to an unfair settlement and long-term financial harm. Problems can be further complicated where other family members are involved, such as an elderly parent in a granny annex, or where property is owned via a company.

‘Among some of the most challenging aspects is deciding what is to happen to property, such as the family home and other valuable assets that have been built up or acquired during your marriage or civil partnership,’ says Trevor Gay, head of the family team. ‘In order to avoid lengthy court proceedings, it is best to understand at the outset how to avoid the common property problems which can arise during divorce negotiations.’

Our family law team at Kidd & Spoor Solicitors are experts in this field, and below we take a quick look at the key issues that you need to consider.

Understanding matrimonial and non-matrimonial property

Before looking at the common problems, it is important to understand the difference between matrimonial and non-matrimonial property.

Matrimonial property includes all assets accumulated during the marriage, such as:

  • the family home (regardless of whose name is on the title);
  • joint savings, pensions, and investments, such as a buy-to-let or a holiday home; or
  • businesses or companies built up during the marriage, which could own commercial or residential property.

Non-matrimonial property generally refers to assets acquired before the marriage, or after separation. Examples include:

  • a home owned prior to the marriage;
  • inherited wealth, such as the home of a deceased parent; or
  • post-separation income or investments, such as a buy-to-let.

Non-matrimonial assets can be ‘mingled’ with matrimonial property, meaning that they are treated within the matrimonial pot.  For example, if one spouse’s inheritance is used to buy or improve the family home, it may lose its separate character and mean it is treated as a matrimonial asset. Similarly, if the matrimonial assets are insufficient to meet both parties’ needs, then non-matrimonial property will be considered to achieve a fair outcome.

When it comes to negotiating the financial settlement, the starting point is an equal division of matrimonial assets. However, many factors, such as the housing needs of any children of the family and any ill health of a spouse will also be taken into account.  These factors often mean that there is a divergence from a 50/50 division.

What happens to the family home?

The family home is often the most valuable and significant asset in a divorce, and it may be difficult to agree how it is dealt with as it is often an asset that has a lot of emotional ties.  Both spouses may wish to remain in the home, or one spouse may wish to remain but is unable to raise sufficient monies to buy out the other spouse’s interest.

How it is divided depends on a number of factors, including:

  • the age of each party and duration of the marriage;
  • any physical or mental disabilities; and
  • the housing needs of any dependent children.

Where there are dependent children, the court’s first consideration is their welfare. This typically means that the parent the children reside with will receive a larger interest in the family home.  This may mean a larger portion of any equity in the family home if it is to be sold, or that the spouse who resides with the children is able to buy out their spouse’s interest in the home at a lower rate.  If they are not financially able to do that but wish to stay in the family home, they may seek a postponement of sale of the house until the children are grown up (known as a ‘Mesher order’).

It is important to note that the court will consider the above factors, even in a situation where one spouse owns the property in their sole name.

It is also worth considering at an early stage if mortgage approval will be required, or a new mortgage application needed.  For example, if you already have a mortgage on the family home that had been in joint names, this will either need to be repaid, or the mortgage company will need to consent to an agreement to transfer the property to just one spouse’s name.  If the mortgage is to be repaid, typically this is done by releasing monies from another asset to raise the funds to repay, or, by taking out a new mortgage in just one spouses name.

Other real estate: second homes, granny annexes, and business premises

While the family home is the focal point, many couples also own additional properties, whether that is a holiday home, investment property, or business premises.

  • Second homes and holiday properties

Second homes and holiday homes are typically treated as matrimonial property if purchased during the marriage or funded by joint income. Their fate depends on the couple’s needs and financial position. Often, these properties are sold, with proceeds shared or offset against other assets.

If one party has a strong emotional attachment or regularly uses a property, it is sometimes possible to negotiate a trade-off.  Typically, this means accepting a smaller share of assets elsewhere in order to keep the holiday home.

If the second home is overseas, then it is best to try and reach an agreement as to how it will be handled.  If agreement cannot be reached, then our courts can consider the asset and its value in any order, but enforcement of that order outside of the jurisdiction is complex and likely to be time consuming.

  • Granny annexes and extended family arrangements

Where a property includes a self-contained annex or accommodation for elderly relatives, additional sensitivities arise. The court will assess both parties’ housing needs and any dependencies of elderly or vulnerable family members. If relatives have contributed to the purchase or a refurbishment, the court may need to consider whether they have a beneficial and financial interest even if they do not hold legal title. These cases often require expert evidence, including property valuations if agreement cannot be reached.  Careful consideration of the property title is also required to see if any rights are registered in favour of the elderly relatives.

  • Investment properties and rental portfolios

The court treats buy-to-let properties and investment portfolios as income-producing assets, and they are usually included within the matrimonial pot. The valuation will typically be based on market value minus any mortgage and tax liabilities that fall due on sale.

Depending on needs, one spouse may retain the rental property to generate income, while the other spouse receives cash assets to balance the settlement.  This is known as ‘offsetting’.

  • Business premises and company assets

Where one or both spouses own business premises or are directors/shareholders, the situation can be complex. The business itself is often the main income source for the family, so courts will be cautious about making orders that could undermine its viability.

Valuing a business requires specialist input from an accountant.  We deal with several accounting experts who we can instruct on your behalf to ensure you have the assessment for your business.  A valuation will consider the business resources, profitability and a realistic goodwill figure.

Upon receipt of the valuation, we will be able to advise you on the best approach under your circumstances.  This may involve offsetting against different matrimonial assets, transferring shares or making structured payments.

Failing to take account of tax implications

Failing to take account of tax arising from any property transaction can be a costly oversight, and typically the following taxes need to be considered:

  • Capital Gains Tax (CGT)

If you are separated, you can transfer assets between spouses free of CGT until the end of the third tax year after the tax year in which you separated, i.e. on or before 5 April of the third tax year.  CGT is particularly relevant where one spouse retains an investment property or business interest.  Failing to plan properly can erode the settlement value by thousands of pounds.

  • Stamp Duty Land Tax (SDLT)

There are several issues that can arise which may have an SDLT impact.  Typically, SDLT does not apply when spouses transfer property between themselves as part of a divorce settlement.

If you buy a new home before your divorce is finalised (assuming you still own or jointly own the former matrimonial home) it will be treated at the time of purchase as a second home and the SDLT surcharge will apply.  If, however, you reach a settlement, or obtain an order from the court, and within three years of buying your new home, sell or transfer your interest in the former matrimonial home you can apply for a refund of the surcharge SDLT you paid.  SDLT is a complex tax, with many exemptions and variations.  It is therefore important to take advice on your individual circumstances.

  • Income tax and future earnings

Shares, investment income, and business profits also carry potential income tax implications which need to be borne in mind when entering a settlement agreement, as some could reduce the income you are perhaps expecting. Any entitlement to marriage allowance will also come to an end.

  • Pension sharing and lifetime allowances

Pensions can often be significant marital assets, and a SIPP or SSAS may include property, yet many couples overlook their tax complexity. Pension sharing orders transfer a percentage of one spouse’s pension to the other, but factors such as lifetime allowance limits, tax on withdrawals, and scheme rules can all affect true value.

We will advise you if independent financial, accounting and actuary advice is required to consider your potential tax implications.

How we can help

Our experienced family law team will provide you with clear legal guidance at the outset. We guide clients through every stage of the divorce process, from negotiation to settlement, ensuring your financial interests and those of your family are protected.

If you are facing divorce or separation and need advice on dividing property, contact our Family Law Department today to arrange a confidential consultation on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com.

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.

Non-molestation orders

When somebody needs immediate protection from a partner, ex-partner or family member they can make an application for a court order called a non-molestation order.

What is a non-molestation order?

A non-molestation order is an injunction that tells the other person things they must not do. If they ignore the order and do one of the things that are prohibited (not allowed) it is a criminal offence and the police can arrest them. This is called a breach. They could face time in jail.

Typically, an order will prevent an ex-partner from;

  • Intimidating, pestering or harassing you;
  • Using or threatening violent towards you or your children;
  • Communicating with you or your children (except perhaps through lawyers or a specific method);
  • Harassing you or your children by going to certain places (i.e. – your house, workplace or school)
  • Encouraging others to do anything they are not allowed to do.

How long does a non-molestation order last?

The judge decides the duration of non-molestation orders. Generally, a district judge grants non-molestation orders for a duration of between 6 to 12 months.

The courts also have the power to extend the non-molestation order if necessary.

How does the law define a non-molestation order?

It is an order which is ‘injunctive’ –. i.e. it seeks  to prevent the person against whom an application is brought (the ‘respondent’) from acting in a specified manner. ‘Molestation’ is not defined or limited,; and the court takes a very broad approach as to what constitutes harm, meaning the order can address particular behaviour.

The law is clear that there does not have to be a positive intent to molest. However, that does not mean that the test is a wholly subjective one, whereby the Applicant simply has to feel distress to justify the making of an order.

The court adopts a three-stage test when considering whether to make a non-molestation order under s.42 FLA 1996:

  1. Is there evidence of molestation?
  2. Does the applicant need protection?
  3. On the balance of probabilities, is a court order required to control the respondent’s behaviour?

An applicant must be able to satisfy all three hurdles in order to succeed.

Most Orders are obtained against a partner or ex-partner. However there are other connections which will be considered and the Court can assist a potential victim against any “associated person.”

Non-molestation orders are a form of personalised injunction granted by the family courts to protect individuals from harm or threats of harm.

However, there are circumstances where alternatives may be more appropriate, or even necessary. Three alternative ways in which a person can find protection from unwanted behaviour include:

  • Warning Letter

Sometime a warning can act as a deterrent to further behaviour or at least as support to the need for an Order if the behaviour continues.

  • Undertakings

Sometimes the court will look to extract a promise from a respondent that they will not behave in the same way again within the non-molestation proceedings. The advantage of an undertaking is that the respondent does not have to admit that they have done anything wrong, and therefore they are more likely to promise not to carry out the behaviour subject of the complaint.

The main disadvantage of an undertaking is that no power of arrest can be attached; so the applicant will have to come back to court to enforce the undertaking, rather than simply calling the police for a breach.

  • Restraining Orders

Restraining orders are a common alternative to non-molestation orders. Unlike non-molestation orders, which are granted by the family courts, restraining orders typically follow criminal proceedings and are given by a judge sitting in the Crown or magistrates’ courts.

Restraining orders are usually used when there have been criminal proceedings against a person. They can be obtained when someone is a victim of a crime and they require protection from harassment or fear of violence by the perpetrator for a specified period or until a further Order is made.

  • Police Intervention

In cases where immediate danger is present, contacting the police should be the first course of action. If someone has subjected you to domestic violence or has made threats against you and your family, they have committed a criminal offence, and you should notify the authorities immediately.

The police could, for example, bring charges of assault or prosecute for an offence under the Protection from Harassment Act 19971. In some cases, a non-molestation order can be used to complement or follow up the action that police take.

Negotiating a separation agreement

If you are recently separated, or are contemplating separation from your spouse or partner, it can feel a little overwhelming to know what to do and in what order. For many people, they will be dealing not only with the emotional impact of a separation, but also concerned over the financial impact and implications for children. Often couples are not focused on divorce, or dissolution of a civil partnership, but instead want breathing space and financial clarity for them to rebuild their new lives.

‘A separation agreement can be the ideal solution,’ says Trevor Gay, head of the family team. ‘This is a written contract outlining the rights and responsibilities of each spouse or partner following their separation.  You do not need to have been married for a separation agreement to be right for you.  Many cohabiting couples also benefit from a separation agreement to obtain clarity over their finances.  For religious reasons, some clients also prefer this route to a divorce as it does not dissolve a marriage.’

What is a separation agreement?

A separation agreement is typically drafted between solicitors (one for each person) and addresses critical issues such as asset division, mortgage payments, spousal support, and childcare arrangements.  As it is a contract, it will be specific for each separating couple and can incorporate terms to cover their particular needs.

Choosing to enter into a separation agreement can be hugely beneficial. It not only helps in minimising conflict but also provides a clear framework that both spouses, or partners, can rely on. By defining terms in advance, you can avoid the uncertainties and potential disputes that can arise during relationship breakdown. This proactive approach enables you to focus on your future rather than becoming entrenched in a protracted and potentially costly court battle.

A separation agreement is not a court order and so it is not automatically legally binding. But if entered into correctly, it will be highly persuasive in any dispute which goes to court.  This needs to be borne in mind when negotiating a separation agreement, as certain steps will help ensure the agreement will be upheld by any future court that may be asked to review it.

Initial legal advice

The first step in negotiating a separation agreement is to seek initial legal advice.  It is important that you obtain this advice from an experienced family lawyer.  We have a specialist family law team, and one of our lawyers will meet with you to take your initial instruction, provide you with tailored advice on your options and potential entitlements, before assessing what is important and agreeing a plan to best achieve your objectives.

We will guide you through the potential outcomes and how we can best overcome any likely pitfalls, as well as helping you identify the key issues that need to be addressed in any agreement.

Guidance over discovery

The next phase involves ‘discovery’, which is the legal process of gathering all relevant information regarding your financial situation, assets, and liabilities. This step is crucial to ensure that everyone has a comprehensive understanding of what is at stake.

We will advise you on the extent of discovery that will be required.  We can assist you in compiling documentation that may include bank statements, property deeds, investment portfolios, crypto currency, and any other financial records whether held in your sole name, or jointly with another.  A ‘cards on the table’ approach is expected, and discovery must be both full and frank.  Any failure to provide full discovery may result in an agreement being vulnerable to be set aside.

We will also seek financial discovery from your spouse or partner via their solicitors.  We will analyse their discovery on your behalf and advise you on any irregularities or areas where we need to seek further documentation or clarity from them.

Understanding your legal entitlements

Understanding your legal entitlements is vital when negotiating a separation agreement. This includes knowledge of how assets will be divided, the possibility of spousal support, and the arrangements for children, if applicable.

We will explain the legal principles that govern asset division, which may include considerations such as the length of the marriage or period of cohabitation, each of your financial contributions, and the needs of any children. This will provide you with the understanding and knowledge to make an informed choice in relation to any proposals you may wish to put forward to your former spouse or partner.  It will give you confidence to know how best to secure your own financial future.

It is worth noting that separation agreements can be customised to reflect individual circumstances, making it crucial to have a clear grasp of your entitlements. This step is not only about knowing what you may receive, but also about understanding your obligations.

Negotiations and exploring options

The negotiation phase is critical in determining the terms of your separation agreement and can take various forms. Negotiations can be conducted through direct discussions between you and your former spouse or partner, facilitated by solicitors, or through mediation.  Negotiations can also be commenced via putting forward a written proposal to settle on a ‘without prejudice’ basis (meaning it would be held secretive to any future court proceedings).

We will advise you on the best approach based on your unique situation and the dynamics of your relationship. Regardless of the method chosen, effective communication is key. Being open to compromise, while also remaining firm about your needs will contribute to a successful negotiation.

Reaching settlement and an agreement

After negotiations have been concluded, the next step is to draft the separation agreement. This document must accurately reflect the terms that have been agreed upon, including financial arrangements and any child-related decisions.

We will ensure that the agreement is comprehensive and protects your interests both now and into the future.  Any agreement will include specific details, such as the division of assets, any spousal support obligations, and childcare arrangements and any other aspects that have been agreed. Clarity is essential; vague terms can lead to misunderstandings and disputes later on.  We have an experienced team of solicitors who specialise in this area, and we will draft the agreement for your approval before it is sent to the solicitor of your former partner or spouse.

It is important that both parties carefully review the agreement before signing. This is also an opportunity to raise any final questions or concerns. After both parties sign the agreement, it becomes a legal contract.

How we can help

By obtaining initial advice, understanding your entitlements, and engaging in thoughtful negotiations, you can secure an outcome that reflects your needs and protects your interests. If you are considering a separation and want to explore your options, our team of experienced solicitors is here to help.

Contact us today for a consultation and take the first step toward a clearer and more secure future. Understanding your rights and having the right support can empower you during this challenging time. Let us guide you through the process of negotiating a separation agreement to ensure a fair and amicable resolution.

For further information, please contact Trevor Gay in the family law team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com.

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.

Entitlements in Divorce

When a marriage comes to an end, sorting out the finances is often one of the most difficult parts. It’s not just about dividing money and property – it’s about making sure both people can move forward, especially when children are involved.

Whilst many people seem to believe that everything is split 50/50, there is under the law in England And Wales, no reference to any number or percentage.  An equal division is considered but this is just a starting point. The reality is more nuanced. Every case is different, and the outcome depends on a range of legal and practical factors.

The law that guides this process is the Matrimonial Causes Act 1973, specifically section 25. The court’s top priority is the welfare and housing needs of any children under 18. Any financial settlement must ensure their needs are properly met.

The Law – Section 25 Factors

When deciding how to divide assets, the court will consider all matters but always looks at several key factors:

  • What each person owns and earns now, and what they are likely to have in the future.
  • Their financial needs, obligations and responsibilities.
  • The standard of living and lifestyle they had during the marriage.
  • Their ages and how long they were married.
  • Any health issues that might affect earning capacity or financial needs. This can include the need to care for a child with any additional needs.
  • The needs of any minor child and to a much lesser extent any adult child.
  • The assets and debts.
  • Contributions made by each person – whether through income, caring for children, or running the household.
  • Any behaviour that’s so serious it would be unfair to ignore.

These factors help the court reach a fair and balanced decision based on the specific circumstances.

Matrimonial vs Non-Matrimonial Assets

The court usually focuses on matrimonial assets – things acquired during the marriage for the benefit of both spouses. This includes the family home, savings, pensions, and investments.

Sometimes, assets brought into the marriage – like an inheritance or property owned before the marriage – are considered non-matrimonial. These might be excluded from the settlement, especially if they were kept separate. The importance of the pre-marital ownership can diminish over time. But if the matrimonial assets are not enough to meet both parties’ needs, the court can include non-matrimonial assets to make sure everyone is financially secure.

How Do the Courts Decide on Division?

The process starts with both parties providing full financial disclosure. That means listing everything they own, earn, and owe – whether it is considered matrimonial or not.
If splitting everything equally meets both parties’ needs, the court may go with that. But adjustments are often made to reflect:
• The needs of any children.
• One person’s financial dependence on the other.
• Differences in pensions or future earning potential.

There are a lot of myths about what people are “entitled” to in a divorce. Let’s look at a few of the most common ones:

“I’m entitled to half of everything, no matter how long we were married.”
Not necessarily. The length of the marriage matters. In shorter marriages, especially where finances were kept separate, the court may not divide everything equally. In longer marriages, a split closer to 50/50 is more likely—but only if it meets both parties’ needs.

“I can claim half of my ex’s future inheritance.”
Generally, inheritance received after separation are not considered part of the matrimonial pot. Even during the marriage, inherited assets may be treated as non-matrimonial – unless they were used for the benefit of both spouses (e.g. buying the family home). Future inheritance is speculative and rarely included.

“The house is in my name, so my ex can’t claim it.”
Ownership doesn’t always determine entitlement. If the house was the family home, it is likely to be considered a matrimonial asset – even if only one person’s name is on the title. The court looks at how the property was used, not just who owns it.

“My pension is safe because I contributed before we got married.”
Pensions are often one of the biggest assets in a divorce. Contributions made before the marriage may be considered non-matrimonial, but if the pension is needed to meet the other party’s needs, it can still be divided. The court takes a practical approach based on fairness.

These myths can lead to unrealistic expectations and unnecessary conflict. That’s why it’s so important to get proper legal advice early on.

Cohabitation agreements and declarations of trust

It is a common misapprehension that if you live with someone long enough, your relationship transforms into a ‘common law marriage’ and you acquire the same legal rights over each other’s property and assets as a married couple. However, under UK law, you can only acquire such rights if you marry or enter into a civil partnership.

‘Unmarried couples have far fewer legal protections and rights than married couples,’ says Trevor Gay, head of the family team. ‘So, it is sensible for any couple moving in together to enter a legal agreement that will clarify the rights and responsibilities each person has regarding their property and finances while they cohabit, and which will dictate what should happen if a dispute arises or one party moves out.’

There are two main types of legal agreement that can be used to clarify the intentions of cohabitants, to protect their individual assets, and prevent costly legal disputes:

  • a declaration of trust specifically addresses ownership and division of a property or properties (a single document outlines the ownership interests and responsibilities for each property in the portfolio); while
  • a cohabitation agreement covers broader financial and personal rights and commitments, such as responsibility for paying bills and for maintenance and repairs, and ownership of shared belongings.

Both of these types of agreement can be used in conjunction with each other and should be drawn up by a solicitor to ensure the agreements are accurate, legally binding, do not contradict each other or any existing will, and reflect the wishes of both parties. In the absence of such agreements, disputes over property and finances can become lengthy, costly, and emotionally draining.

Declaration of trust

A declaration of trust is a legally binding document which clearly states the proportion in which a property is owned and how sale proceeds will be divided. It outlines each cohabitee’s share of the property, including their contributions to the deposit and mortgage, and outlines what happens in different situations such as if one wants to sell their share or if one dies.

A declaration of trust will typically include provisions which outline:

  • each party’s initial financial contribution to the deposit;
  • how mortgage payments and other outgoings will be shared;
  • what occurs when the property is sold, including how the proceeds will be split;
  • the procedure for one owner to buy out another’s share of the property; and
  • any agreements regarding occupancy rights of the property.

The document must be in writing and signed by all parties involved, with a solicitor drafting or reviewing it to ensure it is a formal deed, includes specific property details, and that all parties signed willingly with full understanding of its implications.

It is a vital tool for any jointly owned property, particularly if one person contributes more financially than another, or if the bank of mum and dad helps you get on the property ladder and they want to ensure the property stays in the family.

A declaration of trust can also be useful if you buy a property alone but wish to grant your partner an interest over time even if their name is not on the title. The trust document can outline that while you are the legal owner, you hold the property on trust for the benefit of your partner, who becomes a ‘beneficiary’. It legally protects their financial contribution, ensuring they receive their entitled share of the property’s value when it is sold, or if the relationship ends.

Conversely, if the property is in your sole name (making you the legal owner) and you want to keep it that way, a declaration of trust can prevent your cohabitee claiming a beneficial ownership in the property and acquiring possible rights to occupy the property or take a share of any rental income or sale proceeds.

This may arise if they claim they contributed towards the mortgage, rather than just paying rent; the declaration of trust will explicitly state that beneficial ownership rests solely with you and the only valid reasons your cohabitee can use to challenge the declaration of trust is if fraud or misrepresentation was involved during its creation.

Cohabitation agreement

A cohabitation agreement can serve as a clear outline for a cohabiting couple’s relationship and is documentation that can be used as evidence if a dispute goes to court after relationship breakdown. It allows each cohabitant to protect their individual financial interests and assets when they move in together, while also clarifying who is responsible for what in the shared property.

As well as the issues covered in a declaration of trust, which generally only relate to  property, a cohabitation agreement can cover a wide range of financial and personal arrangements, such as the ownership of assets and savings, management of finances, insurance and pensions, payment of debts and bills, responsibilities for repairs and maintenance, provisions for children and pets, and next-of-kin arrangements in case of illness or death.

To ensure a cohabitation agreement is legally binding in the UK, it must be drafted as a formal deed, signed by both parties, and entered into freely, without pressure or undue influence. Both partners should obtain independent and separate legal advice and provide full and frank financial disclosure. It is also vital to ensure the agreement is regularly reviewed and updated to reflect significant life changes – otherwise it may be found to be invalid.

How we can help

Cohabitation agreements and declarations of trust are extremely valuable documents and it is important you consult a specialist solicitor to ensure you have the right agreements for your circumstances.

Our expert family lawyers will listen to your requirements, talk you through your options and draw up a document that is accurate, reflects the needs and wishes of both you and your partner and is legally binding.

For further information, please contact Trevor Gay in the family law team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com

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.

Maintenance pending suit (mps) applications

A maintenance pending suit (MPS) order is made where one spouse requires payments made from the other spouse during divorce proceedings, but before the financial outcome of the divorce is finalised. These payments are known as maintenance pending suit. They are also known as ‘interim maintenance’ or ‘interim periodical payments’.

The payments made are generally regular payments and are used to assist one party with their day-to-day living expenses. A maintenance pending suit order is a form of holding payment.

How do I know if I am entitled to a maintenance pending suit order (MPS)?

In deciding whether or not MPS is appropriate, the Court will evaluate the level of the recipient’s ‘needs’.

The Court will assess the need in order to decide:

  1. if MPS is appropriate, and
  2. if so, the level of the payments.

The Court will also consider the payers’ ability to make these payments. If the Court determines that the payer does not have additional income to meet the recipient’s request, it is unlikely to order MPS.

First steps when applying for MPS

Best practice dictates that the preparation of a budget, or income needs schedule, based on essential interim outgoings rather than a comprehensive detailed budget, is the first step for the applicant (recipient of the MPS) and this is considered against both parties’ income. Ideally, an appropriate level of MPS will be negotiated with the other party. If negotiations fail, the recipient can make an application to the Court to determine whether MPS is appropriate and, if so, how much should be paid.

It is also worth considering at this stage whether an application for the other party to pay legal fees should be made alongside an MPS application (known as a Legal Services Payment Order (LSPO).

Financial implications

In “small money/average money” cases, the costs of making an application may be disproportionate to the relief that is sought, particularly because an application for MPS is only made to cover a number of months, pending the resolution of the case.

The Court will assess whether or not MPS should be made using a test of reasonableness and it will look at the marital standard of living. It is not always possible for parties to maintain the same standard of living after separation, and so it is important for expectations to be managed in this regard (i.e. it is cheaper to run one household than two). If there is a question over the financial disclosure by the respondent (either being deficient or intentionally minimising their income), the Court may make fairly robust assumptions in respect of their ability to pay.

Advantages and disadvantages of MPS

The advantages of making an application and having a determination of MPS during ongoing financial remedy proceedings is that if successful, the applicant is in a less precarious financial position and then establishes a precedent within the litigation for a level of income which is required, and this will no doubt help their case in the context of the overall financial settlement.

The risks are that the general concept of ‘no order as to costs’ in financial remedy proceedings is suspended for MPS applications, so there is a distinct possibility that if unsuccessful, an applicant might be ordered to pay the other party’s legal fees. The application could also increase the acrimony between the parties and require court proceedings to be instigated whereas otherwise the matter might be capable of resolution outside of court [LINK to out of court options article?]

Maintenance pending suit application

If the application is made during existing financial remedy proceedings, the maintenance pending suit application form is a general application by way of a Form D11 accompanied by a draft order. It is common practice to also include a statement which outlines the history of the parties’ finances to date, any negotiations which were made, and why the applicant requires MPS.

If MPS is sought and there are no existing financial remedy proceedings in place, you will need to issue financial remedy proceedings first. Financial proceedings can be issued using a Form A. This will also need to be supported by a Form D11.

If the application is made within financial remedy proceedings but before financial statements (Forms E) have been filed, the applicant will also need to file and serve a statement in support (as mentioned above), to explain why the order is necessary and to give up-to-date information about the parties’ financial situation.

The respondent to the application must also file a statement in response at least seven days before the hearing if they have not already filed a Form E.

It is worth noting that MPS orders may be backdated to the date of the application for the matrimonial order but not before.

Please note that these applications will attract court fees.

In summary 

Generally speaking, an MPS is designed to deal with “short term cashflow problems” and its calculation is “somewhat rough and ready.”

An application for MPS should be approached with caution, particularly if it is not a high value case. Every effort should be made to negotiate an outcome before approaching the Court to resolve the situation, and failure to do so might result in a costs order against the applicant.

 

Ending a civil partnership

If you are contemplating ending a civil partnership, there will be many things to consider as you seek to build new lives separately. While the emotional journey is deeply personal to you, understanding the legal process – known as dissolution – is crucial to help ensure a smooth transition.

‘You can rest-assured that the legal process to end a civil partnership is relatively straightforward, and we will guide you through each step and advise you along the way,’ explains Trevor Gay, head of the family team. ‘However, it is worthwhile familiarising yourself with the timelines and steps involved so that you know what to expect.’

When can I end my civil partnership?

It is important to note the one-year rule, in that you must have been in a civil partnership for at least one year before you can apply for a dissolution. This is normally not an obstacle, as the majority of civil partnerships do not break down sooner than a year, however there are always exceptions.

If you find yourself in a situation where you have not been in your civil partnership for at least a year but the relationship has broken down, you can seek advice about a legal separation.

What documents are involved and do I need to give any explanations?

To start the process your solicitor will need your original civil partnership certificate but aside from that, it is rare for the court to require any other documents. The dissolution is granted by way of a final order, which confirms that the civil partnership has legally come to an end.

In terms of satisfying the legal requirement to get a dissolution, the only ground for dissolving a civil partnership is that it must have irretrievably broken down. You do not have to prove that anyone is at fault or give reasons for the breakdown of the relationship, and can simply tell your solicitor to tick the box on the form confirming the civil partnership has irretrievably broken down. This, hopefully, helps to simplify the process for you and avoids unnecessary tension and conflict.

How do I get a dissolution?

Your solicitor will apply to the family court for a dissolution of your civil partnership. This can now be done via a sole or joint online application, or alternatively by post, however the digital process is proving to be faster and more efficient overall. In order to apply online your solicitor will register a case on the online court portal and all steps are completed through the portal and notifications are sent out by email (or by post to the other party if you did not provide an email address for them).

It is important to note that there is a court application fee payable. If possible, you should agree to split the cost with your ex-partner, especially in circumstances where you both actively want to get a dissolution.

How long will it take?

It takes on average six months to be granted a dissolution, as there are stages to be completed and progress will depend on how quickly each stage is actioned by you and your ex-partner.

Conditional order

Once a dissolution application is made and accepted by the court, there will be a 20-week reflection period before you are eligible to apply for the conditional order; a court certificate confirming that there is no reason the civil partnership cannot be dissolved.

During this time, you may need to address other aspects of the relationship breakdown, such as agreeing a financial settlement or child and living arrangements.

This timeframe also allows you to change your mind and withdraw any applications if you decide to reconcile.

Final order

Once you have obtained the conditional order, there is a further waiting period of six weeks and one day before you are able to apply for the final order, which is a court document confirming the civil partnership has been dissolved.

It is advisable to double down on sorting out the connected finances during this time to ensure time-sensitive actions are diarised and on track.

What happens next?

It is likely that you will start to address any connected matters alongside the dissolution application. Typically, these will revolve around arrangements for any children from the relationship, such as with which parent they will live and how they will spend time with the other parent. Dealing with the finances and any property can also take time.

If you have not started the process to resolve any associated finances to the civil partnership, it is imperative that you seek specialist advice to deal with financial claims before obtaining the final order.

Whilst claims can be made after the final order, some rights such as pensions and inheritance will be effected.

You must ensure you extinguish all financial claims against one another by way of a court order, otherwise they could remain live indefinitely.

How we can help

Whether you have just come to the realisation that you wish to end your civil partnership, or you are already on your journey to dissolution, it is always a good idea to seek specialist legal advice to ensure you understand the process, and that your objectives can be achieved efficiently.

For further information, please contact Trevor Gay in the family law team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com 

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.

Providing investments for children

With rising property prices and uncertainty in the mortgage market, it is unsurprising that many children are looking for financial assistance from their parents when purchasing property.  The Bank of Mum and Dad is consequently very much thriving.

What should parents and their child consider before making such a decision?

  • Both parties should seek independent legal advice;
  • Both parties should consider what the legal implications would be if the child suffered a relationship breakdown; and
  • Both parties should consider on what basis the help is being provided i.e. is it a gift or a loan or do the parents wish to have an ownership interest in the property?

Married/Engaged Couples -How can the investment be protected?

If a parent provides an investment to a child who is married or engaged the child should consider whether to enter into a pre-nuptial agreement and/or a post-nuptial agreement.

A pre-nuptial agreement is a bespoke legal document entered into by a couple planning to marry or enter into a civil partnership, which sets out what they intend to happen to their money and property if the marriage or civil partnership were to end by way of divorce or dissolution.

Is a pre-nuptial agreement binding on the Court?

Pre-nuptial agreements are not strictly legally binding on the Court. However the Court will follow the terms of a pre-nuptial agreement unless the effect would be unfair, and providing certain steps were followed when the agreement was prepared.

These include:

  • Did both parties disclose their financial position?
  • Did both parties receive independent legal advice?
  • Did the agreement deal with what would happen if the parties have children and, if not, what effect this would have on the agreement?
  • Does the agreement satisfy the financial needs of both parties?

Are pre-nuptial agreements only for the wealthy?

This is a common misconception.  Pre-nuptial agreements are not only for millionaires, but are also for couples who wish to protect significant assets such as property or investments, for anyone that owns a business, for anyone who is expecting an inheritance, or for anybody looking to ring-fence certain assets as non-matrimonial assets.  This can include property or assets owned by either party prior to the marriage.

How could a post-nuptial agreement help protect assets?

Post-nuptial agreements apply to people who are already married or in a civil partnership and are often put in place after a significant change in the parties’ financial circumstances. A post-nuptial agreement can reinforce an agreement entered into prior to the marriage.

Are post-nuptial agreements binding on the Court?

As with pre-nuptial agreements, post-nuptial agreements are not strictly binding on the Court in the event of a later divorce. They are also likely to be followed by the Court, provided that they are not viewed as unfair in the circumstances.  Again, more weight is likely to be given to an agreement where both parties have disclosed their financial positions and taken independent legal advice on the agreement and its effects.  An important point to note is that with both pre-nuptial agreements and post-nuptial agreements, it is crucial to update the agreement when circumstances change, for example, if the parties go on to have children.

What would happen on divorce if there is neither a pre-nuptial agreement nor a post-nuptial agreement?

In circumstances where the parties are married or have entered into a civil partnership and parents have assisted in purchasing property by way of a gift or loan, without the protection of a pre-nuptial agreement or post-nuptial agreement, it is possible that the investment will form part of the marital pot to be divided between the parties.  This can be particularly upsetting for parents who feel that their hard-earned cash has been lost.

What if the financial assistance was intended as a loan or for the parents to own part of the property?

In those circumstances it is extremely important to record any loan by way of a loan agreement or a Declaration of Trust and to refer to these documents in any pre-nuptial or post-nuptial agreement.  A Declaration of Trust can set out in what proportions the parties own the property and detail any money which was used to purchase the property and when that should be repaid.

What if a child is neither married nor intending to marry?

If the child is living with their partner and not intending to marry, then it is equally important to ensure any gift or loan is protected. This can be achieved in one of the following ways:

  • A Loan agreement

A loan agreement can record the amount of money the parents lend to their child and detail when the money is due to be paid back.

  • A Declaration of Trust

As detailed above a Declaration of Trust can set out in what proportions the parties own the property. It can also set out any money which was used to purchase the property and how the proceeds of sale should be divided on a sale of the property.

  • Cohabitation agreement

A cohabitation agreement can be used to set out two parties’ intentions regarding any property that they own as well as other matters such as cars, savings, personal possessions and day to day expenses.

If you are a parent considering making a loan or gift to a child, or a child considering accepting a contribution, and if you are in a relationship, then we will be able to advise on the best way to protect that contribution.  Parties should also seek separate tax advice about the implications of any potential gift, loan or other arrangement before proceeding.

For more informatiom, please get in touch with our Family Law team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com.

What happens to premarital wealth on divorce?

UK Supreme Court clarifies position on premarital wealth on divorce

If you are thinking about separating, or currently going through a divorce or dissolution of a civil partnership, you may be wondering what happens to the assets you owned before the relationship began. Are they safe? Can your spouse make a claim on them? What does the law say about such assets?

A recent decision by the UK Supreme Court (UKSC), in the case of Standish v Standish has confirmed that non-matrimonial assets, such as premarital wealth, will not necessarily be subject to sharing unless they have somehow been turned into matrimonial assets.

‘Just because an asset was brought into the marriage by one party does not automatically mean it is off the table in a divorce; but it also does not mean you will definitely have to share it,’ explains Trevor Gay, head of the family law team. ‘The courts aim to be fair and the UK Supreme Court has recently made clear that premarital wealth will not be shared as a rule. So, with the right strategy and preparation, we can help you protect premarital assets.’

What are premarital assets?

Premarital assets are things you owned before you got married. This might include:

  • properties;
  • savings and investments;
  • business assets; and
  • family wealth, such as an inheritance.

It is important to remember that such assets might be co-owned with other parties, such as an inherited property shared with siblings, or a trust fund held by others for your benefit.

In general, the courts will consider whether these assets should stay with the person who brought them into the marriage, but it has to consider if it would be fair to do so.

Matrimonial or non-matrimonial?

Assets are categorised into two neat categories: matrimonial and non-matrimonial:

  • matrimonial assets are things built up during your marriage, and often viewed as joint assets;
  • non-matrimonial assets are what each of you brought into the marriage or received independently.

Premarital assets, therefore, fall into the non-matrimonial pot at the outset.

Needs or sharing?

When dividing assets, the courts look at two main considerations:

  • needs – making sure each of you (and any children) are properly housed and financially secure; and
  • sharing – dividing the assets built up during the marriage fairly, often in equal proportions.

Generally speaking, needs will usually trump sharing where one party (or any children of the marriage) would be left with inadequate housing or money to pay the bills if matrimonial assets were simply shared 50/50.

In terms of the non-matrimonial assets, such as premarital wealth, needs might still have to be funded from these if matrimonial assets are insufficient to do so. However, they will not be shared out just because there has been a long marriage.

What has the UK Supreme Court said in Standish v Standish?

In this particular case, the husband brought significant family wealth into the marriage which lasted 19 years. As part of inheritance tax planning, he transferred some of these assets to his wife during the marriage, with the objective of eventually passing a greater share of his wealth to his children.

The UK Supreme Court had to decide whether this tax-planning activity had turned the assets into matrimonial assets.

In this case the Supreme Court concluded that the assets had not been mingled into family life, and they were only transferred for tax-efficiency for the benefit of the children (rather than his wife). Consequently, the Court determined that this action had not turned the husband’s premarital assets into matrimonial assets.

This landmark ruling has provided clarity around what should happen to non-matrimonial assets when it comes to sharing out assets, instead of meeting needs. The courts are focused on what is fair, and premarital wealth can be protected from a divorce, when everyone’s needs have already been met by matrimonial assets.

The case also highlights a very important point about transfer of assets between spouses for tax planning purposes, which is that such an action does not in itself make a non-matrimonial asset a matrimonial one.

Can I rely on the recent UKSC decision to protect my premarital wealth?

The recent court ruling is very clear and sets a firm precedent about ringfencing non-matrimonial assets and premarital wealth on divorce. However, the law is always changing, and each case will turn upon its own facts.

If you are concerned about protecting premarital wealth, here is a list of steps you can consider and discuss with your solicitor:

  • enter into a prenuptial or postnuptial agreement, and this will set out that your premarital assets are not to be shared on any future divorce;
  • keep premarital wealth completely separate to marital life, and do not mingle premarital assets with marital property, investments and expenses; and
  • as well as family law advice, seek tax planning advice to ensure that steps taken for tax-efficiency will not turn your premarital assets into matrimonial assets.

How we can help

Whether you’re planning for the future, or navigating a divorce now, our experienced family law team are here to help.

For further information, please contact Trevor Gay in the family law team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com.

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.