Family and divorce

FAQs

What is a nuptial agreement?

A nuptial agreement is a contract signed before (pre-nuptial) or after (post-nuptial) a marriage or civil partnership. This agreement documents what should happen to the couple’s assets if the relationship breaks down. This is particularly important if there is a significant imbalance of assets between the parties.

What is the difference between a pre and a post-nuptial agreement?

A pre-nuptial agreement is a contract signed before a marriage of civil partnership. A post-nuptial agreement is signed after a marriage or civil partnership. These agreements document what should happen to the couple’s assets if the relationship breaks down.

Are nuptial agreements legally binding?

Nuptial agreements are not legally binding under English law. However, recent developments in the law have made it clear that such agreements will be seriously considered by any judge if they were not obtained fraudulently or under duress.

What is required when drafting a nuptial agreement?

When drafting a pre or post-nuptial agreement it is important that you and your partner obtain independent legal advice your lawyers sign the agreement to confirm that this requirement has been met it is signed at least 21 days prior to your marriage / civil partnership to prevent any subsequent arguments that either side was under pressure to sign, given the proximity of the ceremony (relevant to pre-nuptial agreements only) you give full disclosure of your assets and other financial circumstances.

When would a judge not accept a pre or post-nuptial agreement?

If there is any suggestion that the agreement was obtained fraudulently or under duress a judge will not consider it. The Government has produced a document suggesting safeguards that would need to be included if they were to become binding and we include these in our nuptial agreement drafting process.

When should nuptial agreements be reviewed?

Family circumstances are likely to change so a nuptial agreement must be regularly reviewed to ensure that it still reflects the wishes of both parties. The agreement should be reviewed after a significant life event such as the birth of a child, major illness or inheritance, or at least every five years.

What are the grounds for divorce?

To obtain a divorce in England and Wales, married couples have to prove to the court that their marriage has irretrievably broken down. The person asking for a divorce has to establish one of five facts, that their spouse has been living separately for two years or more and both agree to divorce committed adultery and it would be intolerable to live with them behaved in such a way that it would be unreasonable to expect to continue to live with them left for a continuous period of two years or more has been living separately for five years or more and they wish to divorce, irrespective of the other spouse’s position.

When can I get a divorce?

Divorce proceedings can be initiated provided the husband and/or wife have been resident within England and Wales for a certain period of time and married for one year prior to presenting your divorce petition to the court.

What is the divorce process?

The person who applies for a divorce is called the ‘petitioner’. Their spouse is called the ‘respondent’. The petitioner sends the court their divorce petition, marriage certificate and payment of £410 for the court fee. After the divorce petition has been issued, the court will send the respondent the divorce petition and a form, called acknowledgement of service, which they must complete, sign and return to court within seven days. The petitioner can then apply for decree nisi, which is the midpoint in the proceedings. After six weeks and one day have passed following the date of decree nisi, the petitioner can apply for decree absolute. Once the decree absolute is pronounced, the divorce is complete and the marriage is legally dissolved.

How long does the divorce process take?

If divorce proceedings are straightforward, the process will usually take five to six months from issuing the petition to obtaining decree absolute. However, if the financial issues have not been resolved then it may be suitable to delay the application for decree absolute as various financial implications flow from the granting of the final decree.

Can we separate without getting a divorce?

If divorce is perhaps not the right choice, another option is judicial separation and reaching a separation agreement with the help of qualified counsellors and mediators where appropriate.

What is a separation agreement?

A separation agreement is a written agreement between the husband and wife, signed as a deed. It records the separation and can set any financial settlements agreed as well as the arrangements for care of the children. Separation agreements are often entered into with a view to divorcing on the basis of a two year separation to avoid having to attribute blame.

What will happen to our children if we divorce?

If the children are under 16 year or aged between 16 and 18 years and in full time education, a statement will need to be filed with the court indicating the future arrangements for the children, including where the children are to live and how much time they are to spend with the other parent.

Is the process for obtaining a dissolution of a civil partnership any different to the divorce process?

The procedure is the same but some of the terminology is different. The person who applies for a dissolution is called the ‘applicant’. The applicant will apply for a conditional order (as opposed to a decree nisi) and then a final order (rather than decree absolute).

What happens if my husband/wife does not return the completed acknowledgement of service?

There are a few options to move the divorce proceedings forward. This may involve arranging for the husband/wife to be personally served with the divorce papers. Alternatively, if there is already evidence that they received the papers, an application may need to be made to court for an order that service has taken place.

We do not currently live in the UK but is it still possible to apply for a divorce?

The family court in England and Wales can only grant a divorce if it has jurisdiction to do so. To apply for a divorce the husband and/or wife must live in England and Wales. If they both live overseas, England and Wales must still be considered as their permanent home. If more than one country might have jurisdiction, it is important to get independent legal advice to find out when and where to start proceedings. This should be done urgently as the other spouse is likely to start proceedings in another country.

Will the court make orders about our finances?

Unless an application is made, the court won’t make any financial orders upon your divorce. However, it is advisable to reach a financial settlement, even if it is just to dismiss financial claims because they will otherwise remain open following the divorce. The financial settlement can then be drawn up into a court order and sent to court for approval.

Will the court make orders about the arrangements for our children?

Unless an application is made, the court won’t make any orders about the arrangements for children. Most couples are able to reach agreement about what the care arrangements for their children will be following divorce. It is only if there is a dispute that it may be necessary to make an application to court to determine the arrangements for the children.

How do the courts decide how marital finances are divided?

The law sets out guidelines for how to approach the division of marital assets upon divorce. The court considers the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future the financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future the standard of living enjoyed by the family before the break down of the marriage the age of each spouse and the duration of the marriage any physical or mental disability the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family the loss of any financial benefits that might result from the divorce such as provision for spouses or dependents from pension assets owned by the other party the behaviour of the parties, but only in exceptional circumstances.

I think my spouse has begun to move money off shore or dispose of some of our assets, what can I do?

In an emergency, freezing orders can be sought from the courts to ensure assets remain in England. An emergency application should only be sought where it can be demonstrated that there is an intention to defeat financial claims in a divorce.

How can I stop my spouse taking money out of our joint account?

Where an asset is jointly owned, each party is able to withdraw funds up to the maximum available. Steps need to be taken to preserve your half and an account should be made for any shared money which is withdrawn in the overall agreement. It is important that any overdrafts are not increased and the bank will be able to assist with this.

How do I protect the assets I owned before we were married?

Where there are sufficient assets available to meet the family’s needs, it may be possible to ring fence investments owned by one spouse prior to getting married. Similar arrangements can also be considered for assets which came to be owned by one spouse after the relationship has broken down, such as an inheritance.

I think the financial order made in my divorce is wrong, what can I do?

If the financial order was made very recently it may be possible to issue an appeal against the court’s decision. This has to be done within 21 days of the order being made. If certain events were not contemplated at the time the order was made that have invalidated the court’s decision it may be possible to return the claim to court for a review of the original decision. This is also possible where one party has been dishonest in their evidence to the court.

If I live with my partner do I become a ‘common law husband/wife’?

A frequent misconception is that by living together a person can become a ‘common law husband’ or a ‘common law wife’. There is no such thing under English law. If a couple live together as if they were a married couple or in a civil partnership they won’t enjoy the same benefits given to couples who are married or civil partners.

What can be done to protect my assets if I move in with my partner but we do not marry?

Cohabiting couples should consider a living together agreement which can regulate the different aspects of a couple’s relationship from the outset of that relationship.

What is a living together agreement?

A living together agreement deals with the rights and obligations of a cohabiting couple should the relationship come to an end and is the starting point for any discussions if the relationship does break down.

What is included in a living together agreement?

The agreement can cover issues such as who should be responsible for the household bills and the relative shares if there is a joint responsibility. It can also cover who owns the property they live in and if there is joint ownership, what proportions.

If we have a living together agreement, do we still need a deed of trust?

When cohabitees purchase a property together, it is recommended that a deed of trust is prepared which records the ownership proportions. This should be undertaken even if this information is recorded in a living together agreement.

What is the difference between a living together agreement and a deed of trust?

Unlike a living together agreement, a deed of trust can be registered with the Land Registry. This means that notice can be given to the outside world that a deed of trust exists and that any sale must be completed in accordance with its terms.

How do I ensure my assets are left to my partner in the event of my death?

If you aren't married and want your partner to receive a share of your estate in the event of your death, it is essential that you leave a valid Will which makes provisions for your partner. If a valid Will does not exist, they will not inherit a share of your estate on your death and rules of intestacy apply.

What happens to my children if my partner and I break up and we aren’t married?

A father who is not married to the child’s mother at the time of the child’s birth has parental responsibility if his name is placed on the child’s birth certificate. In all other circumstances the father will not have parental responsibility for his children, unless the mother enters into a parental responsibility agreement with the father or a court grants the father parental responsibility.

When should I review my living together agreement?

Family circumstances are likely to change so a living together agreement must be regularly reviewed to ensure that it still reflects the wishes of both parties. It is recommended that living together agreements are reviewed every three to five years and on the occasion of a major event such as the birth of a child.

I’ve broken up with my partner, we’re not married – do I get a share of the house?

You may be entitled to a share in your home, whether it is jointly owned or owned in your partner’s sole name. The starting point is the legal ownership of the property but this is a complicated area of law which encompasses potential claims under trust legislation.

I’ve broken up with my partner, we’re not married – can I claim maintenance?

Unmarried couples do not have the right to claim maintenance payments from the other partner for themselves. If there are children then the person who lives with the children can make a claim for child maintenance. A claim for capital on behalf of the children can also be made to ensure the children have a home whilst they are minors or in full time education.

What if my partner won’t leave our shared property?

If a property is jointly owned then each person has the right to live there. If your partner refuses to leave then you will need to consider whether to take legal action to have them removed with an occupation order (often known as an injunction). However, in the absence of physical abuse or threatened violence it is unlikely that a judge would make an order to remove your partner from their home.

What if my partner leaves, do they still have to pay the bills?

The legal liability to pay bills remains with the person in whose name the utility account is held. An interim arrangement should be made to agree contributions to these liabilities until this has been resolved in the long term, which may involve the sale of the property. If council tax is in joint names an application can be made to the local authority to have one person’s name removed. If only adult is living in the property, this will save 25%.

I’ve broken up with my partner, how do we split the contents of the house?

Each person should retain the items that they individually bought. In the case of shared items and in the absence of an agreement, they should be divided as equally as possible, usually by value. If one partner takes or refuses to return the other person’s possessions a civil claim can be made for ‘delivery up of goods’. If the total value of the claim is less than £10,000 it is likely to be dealt with under the simplified small claims procedure. If they have destroyed possessions a claim could be made for monetary compensation.

We aren’t married, what happens to my partner if I die?

If unmarried couples own a property as joint tenants then the other share in the house will automatically pass to the surviving partner. If the couple are separated, the joint tenancy should be severed so the rules of survivorship will no longer apply. If unmarried couples own a property as tenants in common, the shares in the property will be dealt with in accordance with what is written in their Wills. If an unmarried couple have lived together for two years or more before one of them dies, the surviving partner has a claim against the deceased’s estate for reasonable financial provision.

I’ve separated from my partner. We aren’t married, what will happen to our children?

Legal parental responsibility for the children will be shared by both parents (if both names appear on the birth certificate). If the father’s name is not on the certificate then he does not automatically have parental responsibility for the children, but can apply to a court to obtain it. It is important that separated parents to try to reach agreement about the living and financial arrangements for the children. Otherwise the court has the power to say how much time a child will spend with each parent if it can’t be agreed.

What are the types of orders the court can make concerning children?

The most common type of order is a child arrangements order which has replaced residence and contact orders. A child arrangements order regulates arrangements concerning who the child lives and spends their time and when the child is to live or spend time with another person. The court can also make a prohibited steps order, which prevents a certain course of action, such as relocating with a child to another part of the country or taking a child abroad. The court can make a specific issue order, when there is a dispute between parents concerning an issue, such as whether a child should relocate with one parent to another part of the country, which school they should attend or whether they should receive certain medical treatment.

How long does a child arrangements order last for?

A child arrangements order lasts until the child is 18 years old, unless the court discharges it earlier.

Do I have to attend mediation before starting the court process?

There is now a requirement that parents attend a mediation information and assessment meeting (MIAM) before making an application to court. There are some exemptions to this requirement such as if there has been domestic violence or there are child protection concerns.

Do I have parental responsibility for my child?

Mothers automatically have parental responsibility for their children. Fathers have parental responsibility if any of the following apply they were married to the mother at the time of the child’s birth they are named on the child’s birth certificate and the child was born after 1 December 2003 they and the mother have signed a parental responsibility agreement the court has made a parental responsibility order or a child arrangements order to say that the child is to live with the father.

What does it mean to have parental responsibility in practice?

It means having all the rights and responsibilities related to bringing up a child. For separated parents, in practice it means that the parent with care of the children is responsible for making day to day decisions for the child. Important decisions, such as to which school the child is to attend and whether they should receive planned medical treatment should be made jointly.

My ex-partner won’t allow me to see my children, what can I do?

You should take independent legal advice about your options. In the first instance we would usually write to the other parent setting out proposals. It may be appropriate to try mediation, which would involve you and your ex-partner meeting with a mediator who would help you come to an agreement. If all else fails, you may need to make an application to court.

I am concerned that my children are not safe in the other parents care, what should I do?

The steps you may need to take depend on the level of risk to your children. You should get independent legal advice urgently about what steps to take. We will advise you about how to address your concerns and whether you need to make an urgent application to court.

My ex-partner has taken our child on holiday and has not returned, what should I do?

You should inform the Police immediately and will need to instruct lawyers urgently in the country where your ex-partner and children are as you may need to make an application to the court in that country for your child’s return. You should contact the International Child Abduction and Contact Unit on 020 7911 7127 for further information.

My ex-partner has taken our child to the UK from another country without my permission, can you help?

If your ex-partner has taken your child here without your permission or kept them here for longer than you agreed, this may amount to child abduction, which is a criminal offence. You need to contact a lawyer urgently as you may need to make an urgent application to court for an order that your ex-partner returns your child.

What is the adoption process?

You will need to provide three months notice to the Local Authority in your area of your intention to adopt. The Court will require a report to be completed including, where possible, the wishes of both birth parents and what role if any they might intend to play in the child’s future. Once this notice period has passed an application can be made to the court.

Who can apply to adopt a child?

Applications for adoption by those who are not the birth parents of the child can be made by couples and individuals who are over 21 years of age. In the UK heterosexual and homosexual couples can adopt. If a couple is applying together they must either be married, in a civil partnership or in an ‘enduring family relationship’. Usually a sole applicant must not be married or be in a civil partnership although there are exceptions, particularly where you are the partner of the parent of the child to be adopted.

What is the process for adopting overseas?

To adopt from overseas you must first become an approved adopter. To do this you need to contact your local Social Services who will carry out an assessment process or ask another agency or an independent social worker to do it for them. A voluntary adoption agency may also carry out the assessment. Our specialist family lawyers can help you look at the legal implications and what the process might mean for you and your family. If the child to be adopted is habitually resident abroad in a state that is a signatory to The Hague Convention on Inter-country adoption, a Convention Adoption Order is required. However, if the state is not a signatory and if the adoption is not otherwise recognised in the UK as a valid ‘overseas adoption’ then the adoption application will need to be made in England and Wales. There are strict limitations upon making such arrangements and we recommend that you seek legal advice.

Can I adopt my step-child/children?

There are many children who live within step-families and in many cases adoption will not be seen as necessary or in the child’s best interests. We can help you to consider the available options.

After I have adopted a child will their natural parents still have parental responsibility?

The granting of an adoption order takes away from the child’s natural parents their parental rights or responsibilities towards the child (except only in cases of single step-parent adoption) although in appropriate cases there may still be contact between the child and his or her natural parents even after an adoption order has been made.

I want to move abroad with our children, what should I do?

If there is a good level of communication it is best to talk to the other parent with parental responsibility to see whether an agreement can be reached. Arrangements will need to be agreed and confirmed in writing that both parents agree. It is a criminal offence (child abduction) to move abroad with your children without permission from the other parent.

I don’t communicate with my ex and I know they won’t agree to moving overseas with our children. What can I do?

It is essential to seek legal advice as soon as possible in these circumstances. Thorough research is a good idea to help formulate a plan to move overseas. If you intend to work to provide an income, it is important to research job opportunities in your chosen destination first. If appropriate, make enquiries of suitable schools or childcare in the area and find out about their admissions procedure. An application may also be needed for permission from the court to move abroad with the children and your lawyer can advise you on this.

But the children live with me, why do I need permission?

The law is keen to promote children’s welfare and will support a child’s right to have a relationship with both parents. The courts have extensive powers to ensure that, unless the contrary is shown, the involvement of both parents in a child’s life will further the child’s welfare. The court will always place a child’s welfare at the forefront of any decisions.

If I move abroad how can the children maintain their relationship with the other parent?

A lot will depend on the children’s ages and the distances involved. One way might be for the children to spend time living with the other parent during school holidays and it is now much easier to keep in touch by Skype / FaceTime or telephone. It will all depend on the circumstances of each case.

Can I stop my child from moving to another country with my former partner?

A child cannot be moved permanently from the UK without the consent of those holding parental responsibility (usually limited to the parents of the child). If you do not agree to your child moving abroad, then the other parent will need to make an application to the court in order to get permission from the court to move the children. An application can be made to the court to prevent any move overseas. Mediation has to be attempted before any application is made to the court, save in the case of an emergency..

I am really worried my children may quickly be taken abroad, what can I do?

Firstly ensure their passports are in safe place. If you have real and genuine concerns then you can make an urgent application to court to prevent any travel.

My child has been taken abroad without my permission, how can I get them home?

Procedures differ, depending on the country to which the child has been taken. Laws are in place in numerous countries to ensure the prompt return of a child back to their home country so that any dispute about where that child should live can be dealt with in accordance with the laws of their home country. Any application for a child’s return should be dealt with promptly and must be within 12 months. There are various defences and exemptions but the law will usually require a child to be returned home where any disputes can then be dealt with.

Do I have to pay spousal maintenance?

There is no easy answer to this and no formulaic approach or equation to apply. Assessing what is an appropriate amount of spousal maintenance is not set down in law. Ultimately it is worked out by looking at the financial circumstances of the separating couple.

Why should I have to pay spousal maintenance?

The law requires that payment be made for a spouse’s financial needs generated by the relationship. What used to be the traditional marriage, where say a wife gives up her career to support her husband and raise their children is probably the best example as her earning capacity will be compromised. The law states that an ex wife’s needs are provided for by her ex-husband rather than the tax payer.

How much spousal maintenance am I entitled to receive?

That will depend on the circumstances; what income there is from all sources, what each spouse needs to live on and the amount, if any, payable for child maintenance each month. Any amount payable should be fair to both spouses and reflect the standard of living experienced during the marriage.

I have to pay spousal maintenance, how much will it cost me?

That depends on the spouse’s needs to balance their monthly spending. Normally this is worked out by considering income from all sources, such as any salary bonus or benefits, comparing that against all necessary outgoings and then working out how much of the shortfall the paying party can afford. This will tend to be based on each party’s financial needs unless there are exceptional circumstances.

How long will I have to pay spousal maintenance for?

There is a need to end financial ties as soon as possible without causing financial hardship. This often means paying a sum for spousal maintenance until both spouses are able to become financially independent. Common triggers for bringing payments to an end include death, remarriage, or the youngest child turning eighteen.

Can the amount of spousal maintenance I pay/receive change?

Whilst payments are being made it is also possible to make various applications to court, to either increase or decrease the amount being paid or even to extend the length of time for payments being made.

What types of spousal maintenance orders are there?

The courts have started to recognise that ‘joint lives’ orders can have a negative impact on the person receiving maintenance from becoming financially independent. ‘Term orders’ are now increasingly used which limits spousal maintenance to be paid over a specified period of time. This gives the spouse enough time to make sure the children are established in school, retrain or re-establish work skills to improve their prospects in the workplace and become financially dependent.

How do I live whilst we are sorting out spousal maintenance?

These arrangements take time to sort out. Often living expenses will increase if one party moves out into a separate home. If living expenses agreed cannot be met or the other party is not contributing the court can help. Before an application for any financial orders are made a petition for a divorce must have been issued. A certification from a mediator that mediation has been considered will help. Providing these requirements have been met, an application can be made to court for a sum of money to be paid each month until all the finances are resolved and the overall division either agreed between the parties or decided by the court.

What happens if my ex partner dies whilst I am receiving spousal maintenance?

It is a good idea to put a life policy in place to avoid financial hardship if the paying party should die before financial responsibility has ended.

What if I am still receiving spousal maintenance but I want to get married again?

Spousal maintenance payments will end if the person receiving these payments remarries. If remarrying it is important to consider a pre-nuptial agreement to protect any assets.

I have remarried and have a new baby and cannot afford to pay spousal maintenance any more, what can I do?

Whilst the obligation to pay continues, it is possible to renegotiate to reduce the amount of spousal maintenance to pay. If negotiation is unsuccessful, then an application to vary the amount payable can be made to the court.

My ex still won’t pay spousal maintenance, what can I do?

If an ex-spouse objects to paying spousal maintenance an order can be made by the court to provide the receiving spouse with security. This can either be by payment of rent receipts if there happens to be an investment property, or by a second mortgage being placed over a property for an equivalent amount which can be sold if the payments are not made as they should be in order to release the equity. It all depends on what assets are available.

Do I have to receive spousal maintenance in monthly payments?

It may be possible to receive a lump sum of money in lieu of future monthly spousal maintenance payments. This is referred to as ‘capitalisation’ and actuarial tables are used to work out a sum of money that needs to be paid now, based on a set amount each year and life expectancy. Whilst this gives freedom to invest a lump sum and ensure parties are no longer tied together financially, the sums which need to be paid are large and capitalisation is only possible where there are significant assets available.

Does our pension count for spousal maintenance?

There are complicated rules about using pension funds for spousal maintenance. Even though there is provision for spouses to withdraw 25% of their funds tax free (which could be applied to capitalise spousal maintenance) conditions will apply so it is best to check and not rely on any assumption.

What is child maintenance?

After a divorce, any dependant children will also need to be provided for to ensure the parent living with them is able to maintain and educate them.

How long do I have to pay child maintenance?

Child maintenance will be payable for each child until they leave full time education. This can be extended to the end of university if appropriate.

I have a disabled child, how can their income needs be assessed?

The court still has the power to make child maintenance orders to help meet the additional income needs generated by a child’s disability.

How does the Child Maintenance Service work out the amount that needs to be paid?

An assessment is made based on the paying parent’s gross income. An amount is worked out considering any pension contributions paid, the number of children the paying parent has to support and how many nights the children stay with the paying parent. Where children spend an exactly equal amount of time living with both parents no maintenance is payable.

What happens to spousal maintenance when my children go to university?

Unless there is an agreement in place to cover the costs of university fees and living costs, after the child has reached 18 or left full time education, child maintenance payments will cease to be paid for that child. If there are younger children in the house their child maintenance payments will continue.

What if my partner refuses to pay child maintenance?

Firstly the Child Maintenance Service will try to contact them to see if there is a problem and how to resolve it. If appropriate, they can also take enforcement action against the non paying parent. They have the powers to deduct the amount payable for child maintenance from the paying parent’s salary if they work for an employer, their pension or directly from their bank account. They can also be taken to court.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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