What’s in a childs name? Your family holiday could be riding on it

Blog | Family

Share This

The main holiday season is fast approaching and for the first time in a couple of years, many people will be taking their children off to sunnier climes.

As well as packing the usual beachwear, sun cream and passports (do check they are still valid and have the required time left on them!), it could be necessary to take a little extra paperwork along for those people whose surname is different to their child’s.

A different surname might arise for a host of reasons, such as a divorce and subsequent name change, keeping a maiden name on marriage or re-marriage, or having a child with a double-barrelled surname.

If a child, who is coming on holiday with an adult, does have a different surname, it’s important to be aware of the pitfalls of not having sufficient paperwork to show that the child is perfectly entitled to be on holiday with that person.

As well as the child’s passport, taking a paper trail to prove who their parents are is vital.  This includes the child’s birth certificate, as well as the parent’s, and if they have changed their surname upon divorce, the change of name deed and a copy of the final order (old decree nisi) is also necessary. Bringing along an expired passport, which proves the name change could also be helpful.

Obtaining the written consent of the other parent or anyone who has parental responsibility for the child is another wise move. A properly drawn up consent form, or if that’s not possible, a letter from the other parent, confirming their full contact details, that they are the parent of the child and that they have given consent for the holiday, along with their signature, should suffice.

Having an awareness of the questions that might be asked at the immigration desk is important, as it allows a level of preparation between parent and child. They might be asked the identity of the other parent, for example.

Consent is not legally required by the other parent if the holiday is for less than 28 days and a Child Arrangements Court order is already in place to confirm the child lives with the parent taking them on holiday, but it is always better to have it, rather than run the risk.

If the other parent won’t agree to the holiday, it’s not too late, speaking to a family lawyer about obtaining an order from the court is an option.

Get In Contact

Helen works with clients to ensure that they are sensitively guided through the complex area of family and relationship breakdown.

Family Law & Family Solictors

Family

Dealing with the practical, legal and emotional process of a relationship breakdown is difficult and stressful enough as it is, without the added complexity of a pandemic. From family court hearings to financial divorce settlements and maintaining child arrangements, we can help you. Whatever the situation.

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

No-Fault Divorce -
Here's what you need to know

Guide

Share This

No-fault divorce becomes legislation on Wednesday 6 April 2022

Despite the long awaited Act for “no-fault” divorce being passed in June 2020, it is finally becoming legislation on Wednesday 6 April 2022. It has taken years of discussion to reach this point, providing significant changes to the way couples apply for a legal separation.

This landmark legislation, formally called the Divorce, Dissolution and Separation Act 2020 will allow married couples to divorce without assigning blame. Up until this point, couples had to have been separated for at least two years, or have to blame the other spouse for the breakdown of the marriage, which increases the animosity.

England and Wales have been a step behind many other countries when it comes to divorce with many opting for a more progressive approach. At present, one spouse must issue divorce proceedings against the other, potentially creating unnecessary animosity which can often lead to the divorce being contested by the other spouse.

Under the no-fault divorce system, couples will also be able to apply for divorce jointly which will hopefully lessen the chance of blame creeping into the equation. It will not be possible to contest a divorce, putting an end to traumatic situations such as the Owens v Owens case.

Cases such as Owens v Owens are rare. Removing the option to contest a divorce is a vital step forward, stopping people from being trapped in a marriage that they no longer want to be part of.

A statutory timeframe has been included in the new legislation, meaning that a divorce cannot be finalised in less than 20 weeks. Under current law, it is possible to conclude a divorce in a shorter time frame than this, however, it's rare for this to happen in less than four months.

It is important to remember though that complexities can arise that can add significant time to the process, such as financial claims that require negotiation, or concerns around child custody.

What terminology has changed as part of no-fault divorce?

Divorce terminology is also changing too, bringing the process into the 21st century. Making each element of divorce as clear as possible will reduce confusion and help people to understand the process they’re embarking on a little easier.

Previous terminology New terminology Description
Petition Application
Petitioner Applicant
Decree Nisi Conditional Order The order by a court of law stating the date on which the marriage will end
Decree Absolute Final Order The legal document that ends a marriage
(Judicial) Separation Decree (Judicial) Separation Order An order which confirms the parties to a marriage or civil partnership are separated
Decree of Nullity Nullity of marriage order A declaration of the court that the marriage is null and void

How will no-fault divorce work?

The announcement means that couples will no longer have to agree to be separated for two years, or have proof of their partner being at fault, in order to file for divorce. Only one person needs to desire the divorce, and their spouse will not be able to refuse the application.

Being able to apply for a no-fault divorce will spare couples the emotional stress and strain of finding blame for an unreasonable behaviour petition or when they can’t, or don’t want to, wait two years to divorce on the grounds of separation or five years if they do not have the consent of the other spouse.

It should be noted that under the new law, the statutory timeframe means that a divorce cannot be concluded in less than 26 weeks. Although it is possible for this to be shorter under the current law, it is still unusual for it to be less than four months, not including the time taken to resolve financial claims. As a result, the overall timeframe of the new system will be largely in line with the existing one. Plus, a fixed timeframe allows parties to reflect on whether the decision to end the marriage is the right one.

What caused the delay?

Following the tireless campaigning of family lawyers, the government has spent a significant amount of time over the past few years trying to make the divorce process simpler.

The Divorce, Dissolution and Separation Act receiving Royal Assent was a real breakthrough moment, with many hoping no-fault divorce would come into play by early 2021 at the latest. However, following delays, the act has now come into force on 6 April 2022. This was to allow time to become familiar with the new process, and for any necessary, IT changes to be made to HMCTS’s online divorce systems so that new process works as intended and is fit for purpose.

No-fault divorces will take a huge amount of anxiety away from the process, benefitting a significant number of people.

How we guide you through the divorce process

The introduction of no-fault divorce is one of the most significant changes in family law in the last 50 years. Ending a marriage is a monumental decision, and that won’t change. It’s important to remember that the actions you take in the early stages can set the tone for everything that follows.

If you’re about to start divorce proceedings, or currently going through the separation process, then speak to one of our divorce lawyers. We’re here to guide you through the maze of emotions and legal responsibilities, every step of the way.

You can also read our step by step guide on how to get a divorce. Find out more here >>.

Get In Contact

Helen works with clients to ensure that they are sensitively guided through the complex area of family and relationship breakdown.

Our family team is ranked as a Top Tier Firm in the Legal 500 2021 edition.

Divorce Solictors

Divorce & Separation

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

No-fault divorce preparation should start now

Blog

Share This

With the landmark Divorce, Dissolution and Separation Act 2020 coming into force in April, lawyers are expecting a busy start to the year as the first working Monday of January marks ‘Divorce Day - a day when lawyers traditionally see a steep rise in enquiries following the festive break.

Divorce Day 2022 holds particular significance, as on 6 April 2022 the long-awaited ‘no-fault’ divorce will become law, bringing in significant changes to the way couples apply for a legal separation.

What is the change in law?

This change in law has been a long time coming and is set to bring the ending of a marriage into the 21st century, enabling couples to divorce without having to apportion blame or fault.

Until this new legislation, couples needed to be separated for at least two years or be able to prove their spouse was at fault.  Apportioning blame when parties don’t want to can heap enormous stress and strain onto an already often emotionally charged situation, especially when children are involved.  It can also be extremely damaging to ongoing relationships between ex-partners. It also helps couples who cannot wait the two years to divorce on grounds of separation or the five years it can take if they don’t have the consent of the other party.

This new legislation now provides another option for couples and brings the UK in line with other countries around the world who have had a much more progressive attitude to divorce. It is hoped too that the opportunity to separate and divorce on a no-fault basis will end some of the stigma that families can feel around this difficult time.

What should couples do?

In the coming months, it is important that couples who have been waiting to separate on a no-fault basis begin plans and discussions.

Open discussions are crucial. While it’s unlikely that the process of choosing to go through a no-fault divorce will be any faster, couples should start talking about when they are going to do it and think about making the application together so there are no surprises or disagreements further down the line.

And while this new legislation is very welcome, but there are still improvements to be made to the divorce process in terms of equality. For example, adultery cannot be cited as grounds for divorce in same-sex marriages, as adultery is only recognised between two people of the opposite sex.

Currently, the accepted ground for divorce in same-sex couples are:

  • Unreasonable behaviour

  • Two years desertion

  • Parties been separated for two (consent required) or five years (no consent required)

Allocating blame is unfair and often results in more conflict. It can also lead to increased legal fees as people look to contest the divorce and the reasons for it.

This long-awaited and important change to the law is welcome news for many couples, there is still a long way to go in improving the process to ensure it is fair for all.

To discuss any issue of separation or divorce contact Caroline Elliott or another member of the family team in your local office.

Get In Contact

Caroline works with clients who have family disputes and problems to achieve an outcome which gives them peace of mind and a positive future.

Family Law & Family Solictors

Family

Dealing with the practical, legal and emotional process of a relationship breakdown is difficult and stressful enough as it is, without the added complexity of a pandemic. From family court hearings to financial divorce settlements and maintaining child arrangements, we can help you. Whatever the situation.

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

Blog

Pipe to your own tune

Share This

12 Days of Christmas - Day 11: Piper piping

Navigating your independence after a divorce or a separation is such a difficult concept for so many people, especially if they have become used to following their own ‘pied piper’ during a relationship.

You may not have realised it at the time, but when you’ve been with your partner for so many years, you can often lose your own identity and slowly change your lifestyle to fit in with theirs. It’s only when the relationship breaks down that you may come to realise that you’ve been constantly seeking your partner’s guidance or approval for so much of what you do. Their opinion has mattered so much to you that you’ve lived your life around it and lost a part of ‘you’.

When a relationship ends, your ex-partner’s opinion won’t matter any longer, you don’t need their approval and you can ignore the criticism. Do what you want to do - as long as it’s legal.

This is an ideal opportunity to find your freedom and embrace your single status. You can make new friends, find a new hobby, join a gym, change your job, volunteer.

You can sing your own tune and let the pipers play elsewhere.

Get In Contact

Matt works with individuals and their families to help them negotiate the many pitfalls they can encounter when planning for their future by providing pragmatic, bespoke advice.

Family Law & Family Solictors

Family

Dealing with the practical, legal and emotional process of a relationship breakdown is difficult and stressful enough as it is, without the added complexity of a pandemic. From family court hearings to financial divorce settlements and maintaining child arrangements, we can help you. Whatever the situation.

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

Blog

A pre-nup is not just for the rich and famous

Share This

12 Days of Christmas - Day 2: A pre-nup is not just for the rich and famous

It is common knowledge that two turtle doves are the symbol of love and friendship.  

At Christmas time, many lovebirds decide to take the next step in their relationship and pop the big question. This is an extremely exciting time for couples and so it comes as no surprise that the more pragmatic things tend to get overlooked. For example, if you are entering a marriage with all of the wealth and your future spouse has very little in comparison, neglecting to have a pre-nuptial agreement is one crucial wedding item that could end up costing you thousands if not hundreds of thousands (or in some cases) millions of pounds! 

Imagine working hard all of your life, accumulating a sizeable pension, a nice home and substantial savings and then picture having to split all of that 50:50 with a cheating ex-spouse. It does not bear thinking about, but sadly this is the reality for many people who enter into marriage without taking the necessary precautionary steps to protect their wealth prior to the big day.  

Sure, a pre-nuptial agreement may not be the most romantic thing on the wedding “to-do” list, but it is something that will pay dividends later down the line, in the unfortunate event the marriage were to irretrievably break down and two turtle doves become single. 

Get In Contact

Stephanie deals with all aspects of relationship breakdown to include divorce, children matters and resolving the financial issues upon separation.

Family Law & Family Solictors

Family

Dealing with the practical, legal and emotional process of a relationship breakdown is difficult and stressful enough as it is, without the added complexity of a pandemic. From family court hearings to financial divorce settlements and maintaining child arrangements, we can help you. Whatever the situation.

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

Here are some top tips to hopefully make this difficult time a little easier:

• Try and agree the arrangements for the children in advance:

This will reduce the chances of an argument in front of the children on Christmas Day when handover or collection times can’t be agreed upon.

• Don’t have a ‘present competition’

Share the children’s Christmas list with the ex-partner and agree on who will buy what. It’s never a good idea to try and “out-present” the other parent. This will only lead to more arguments and could end up causing the children a significant amount of distress.

• Do not bring the children into an adult dispute 

Children don’t want to hear their parents speaking in a derogatory manner about each other. It’s really important for parents not to criticize or argue with each other in front of the children, if at all possible.

• Let the children take presents from one home to another

Insisting that the children can only play with their toys at one home will only serve to highlight the parental conflict to them.

• Suggest alternating the years:

Switching every year who gets to spend time with the children could be a good way of minimising arguments. If children aren’t coming on Christmas Day this year, why not celebrate on a different day and still do all the traditional festive activities that they love? They will certainly not complain about celebrating Christmas twice – double the presents and double the pigs in blankets!

For more information about navigating the complexities of a divorce or agreeing children arrangements, contact Stephanie Kyriacou on 0116 257 4401 or another member of the family team.

For advice or guidance on any other commercial or legal issue, a member of our team can walk you through everything. Click here to discuss.

Going through a divorce? The Do’s and Don’ts of Social Media

Blog

Share This

Going through a divorce

When going through a divorce, it can be easy to be tempted to post about how we’re feeling on social media. After all, social media is part of our lives and in its best form it can be a wonderful tool to connect, inform, and entertain people.  However, it also has the opportunity to cause harm, distress and hurt and be used in a vindictive, spiteful and unhealthy way. Divorce can be an incredibly emotional time for both parties involved and their families – so don’t make it any harder than it needs to be.

Here are few Dos and Don’ts of using social media, especially during divorce proceedings. Remember much of this information will be available to a court and could have a bearing on any outcome.

Do's: What to do on social media during a divorce

  • DO change your passwords

    Be sure to take ownership of any social media accounts eg Facebook, Instagram etc.  Do also change the passwords of your email accounts.  Remember, whether the split is amicable or not, you do not want your partner to have access to accounts that could contain sensitive information. 

  • The same goes for bank accounts, credit cards, music streaming services etc.  There have been occasions where these have been used and manipulated in divorce proceedings.

  • Even if you know your partner’s passwords, do not log into their accounts. Everyone has a right to privacy and you could be in breach by doing this.  Unauthorised access to your partner’s computer may be breach of the Computer Misuse Act 1990.

  • DO check, and if necessary change your privacy settings:

    Make sure that if you do post, however innocently, only your friends list sees it and you cannot be tagged into any posts without your permission.

  • This applies to all social media so minimise the risk on all platforms. If you work in the same organisation as your partner, also check your company’s social media policy.

  • DO turn off any location tracking features on apps you may use:

    It is a ‘feature’ of more apps than you might realise.  This could cause an embarrassing and hurtful meeting or unfortunately, in more sinister circumstances, can provide your partner with your exact location from a stalking / abuse perspective. 

  • If you are a victim of domestic abuse and continue to feel vulnerable, you can change your mobile number to avoid receiving nuisance calls or messages from them, but beware that many apps acc ess the contacts from your phone or email address.  So block their number.

  • DO follow people and organisations that can offer help and support:

    Seeing how people have come through this crisis can be motivating and beneficial. There are lots of organisations and charities who can offer free guidance and support too.

Dont's: What not to do on social media during a divorce

  • Don’t bad mouth your partner online:

    Tempting as it might be – do not bad mouth your partner online, especially if children are involved.  Remember children could read and learn more than you’d like them to and be hurt or distressed by it. 

  • This is also the case with wider family too.   Remind friends and family not to post negative comments about your partner online. It can also play a big part when looking to come to an agreement with your partner.  An upset partner can make things very difficult, drawn out and expensive.

  • Don’t share any personal data you have about your partner:

    As you may breach data protection laws.  This includes intimate and sensitive details of the relationship.

  • Don’t chat about court proceedings, children or financial information:

    By doing so you could be in breach of legislation which could be classed as a serious offence AND anything you share online can and could be used against you by the other party. 

  • Don’t post pictures of children you share online:

    This is a very emotive issue and one that comes up time and time again in proceedings. Parents often have polar opposite views on how, when and if this should happen.  

  • Send any photos directly, not on a public platform, especially if you are aware of your partner’s objections.  Posting pictures without consent can have data protection implications and affect a person’s right to a private life.  Err on the side of caution.

  • Don’t be tempted to share a new romance on line:

    Thrilling as it may be, be discreet and remember that if the shoe was on the other foot, how hurtful it would be to read/see this.

  • More seriously, if proceedings have not yet started adultery could now be cited as a reason on the petition.  Any pictures of you and your new beau together could evidence possible habitation and have a big effect on any financial settlements and child arrangements.

  • Don’t be tempted to stalk, follow or trail your partner:

    This can be exhausting, upsetting and often fruitless.  Social media can be all-consuming, particularly if you are the injured party.  Give yourself some time to rest and recover.

Remember – keeping things amicable is almost always the best route but if your inner calling bird is getting the better of you….take a deep breath and move away from the keyboard.
Get In Contact

Dipika provides clear advice from the outset.  She is particularly adept in understanding the emotional complexities in matrimonial disputes and the impact this will have on reaching resolutions.

Divorce Solictors

Divorce & Separation

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

What does no-fault divorce mean for Asian marriages?

Blog

 

This post examines the new no-fault divorce legislation in the UK, how it will work, and what this might mean for Asian marriages. Read on for expert insights from Monica Gai, associate at Shakespeare Martineau.

The new no-fault divorce legislation

It was recently confirmed that the UK’s new no-fault divorce legislation (the Divorce, Dissolution and Separation Bill) will come into force in April 2022. The long-awaited changes aim to reduce the impact that allegations of blame can have on a couple and any children involved in the process.

There are many legal professionals who feel that the current divorce law is outdated and there have been calls for no-fault divorce for a while, particularly following the Owens v Owens case in 2018. Fortunately, the new Bill was passed in June 2020.

While the institution of marriage remains significant for many, it is particularly sacred within Asian communities, with separation often bringing a significant amount of shame and resentment. So, what will the new no-fault divorce legislation mean for those wishing to divorce amicably?

How will no-fault divorce work?

The announcement regaring no-fault divorce means that couples will no longer have to agree to be separated for two years, or have proof of their partner being at fault, in order to file for divorce. To apply for divorce, one party to the marriage will simply have to state that it has irretrievably broken down. Only one person needs to desire the divorce, and their spouse will not be able to refuse the application.

Being able to apply for a no-fault divorce will spare couples the emotional stress and strain of finding blame for an unreasonable behaviour petition or when they can’t, or don’t want to, wait two years to divorce on the grounds of separation or five years if they do not have the consent of the other spouse.

It should be noted that under the new no-fault divorce law, the statutory timeframe means that a divorce cannot be concluded in less than 26 weeks. Although it is possible for this to be shorter under the current law, it is still unusual for it to be less than four months, not including the time taken to resolve financial claims. As a result, the overall timeframe of the new system will be largely in line with the existing one. Plus, a fixed timeframe allows parties to reflect on whether the decision to end the marriage is the right one.

Understanding the new no-fault divorce law

The new no-fault divorce law will allow one spouse or joint couple, to make a statement of irretrievable breakdown, legally removing the element of blame. The ability for one spouse to contest a divorce if the other wants one, will also be removed.

Most importantly, it will introduce a 20-week period between the initial petition stage and when the court grants the provisional decree of divorce (the ‘decree nisi’). This will provide a period of reflection, allowing couples to cooperate and plan for their futures. Many regard this as one of the most beneficial developments of the no-fault divorce legislation.

Grounds for divorce and the no-fault divorce legislation

There is only one legal ground for divorce in the UK: that the marriage must have irretrievably broken down. At present, to support a statement of the irretrievable breakdown of a marriage, the person applying for the divorce must prove one of the five facts e.g. adultery, unreasonable behaviour, two years separation or desertion (2 or 5 years).

When the new no-fault divorce law comes into effect, separating couples will no longer have to rely on these five facts – instead, one of the parties to the divorce need only state that their marriage has irretrievably broken down. This represents a shift towards trusting the judgement of those involved in a divorce.

What does no-fault divorce mean for Asian communities?

The desire to end some Asian marriages may stem from cultural differences, which under current law, does not count as one of the five reasons for divorce and would be rejected by the court. As a result, an accusation of unreasonable behaviour will be required, potentially exacerbating an already stressful situation. In Asian cultures where there is often a high level of blame to begin with, further distress could make the situation even more difficult for the parties involved.

Fortunately, the new no-fault divorce law will remove any need for blame. Rather than having to accuse their partner based on one of the five facts, one would simply need to state that the relationship has broken down irretrievably under the no-fault divorce legislation. Although there may still be some level of stigma associated with this in some Asian communities, there will be no need to make an accusation of adultery or unreasonable behaviour (which could otherwise cause further reputational damage for those involved).

Seeking expert advice

The effects of divorce are often felt across families and the wider community, so the new no-fault divorce legislation will be a welcome change for the many Asian couples that wish to separate amicably.

However, until then, it is important that couples understand the current divorce laws, how the process is expected to change, and what the new rules might mean for them.

Seeking professional advice can help to make the process smoother and allows couples to stay focused on ensuring the best future for all involved.

Get in touch to find out how our  family law team can help.

Watch our Family Webinar

The momentous decision to start or grow a family is more intricate and emotional for intended parents who can’t or choose not to fall pregnant themselves.  Alternative fertility options and surrogacy can bring your dreams to life – but must be handled with care.

Get In Contact

Monica practices in all areas of family law breakdown and has developed a reputation for providing practical, thorough and clear advice.

Family Law

Our team of family solicitors is carefully structured to ensure that you get the right level of legal and specialist support for the wide variety of legal issues that face modern families.

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

Guides & Advice

Five myths about marriage and divorce

January typically sees a spike in divorce enquiries for many solicitors – and 2021 is expected to be no different, with the additional stresses and strains COVID-19 has placed on couples and families.

But did you know there are several myths surrounding civil partnerships, marriage and divorce? In this post, family lawyers Jane Charlton and Stephanie Kyriacou explore five divorce myths, answering some of the frequently asked divorce questions from couples across the country. They cover a range of questions on divorce issues, from the division of assets to the ‘remarriage trap’.

 

1. Can I get divorced if we have just drifted apart?

Falling out of love and drifting apart is not itself legal grounds for divorce, however, looking deeper into the reasons may show that one party’s behaviour has actually been the cause and therefore a divorce could proceed. Until the ‘no-fault divorce’ is available (expected Autumn 2021) you will have to prove your marriage has irretrievably broken down due to one of the five ‘divorce facts’: adultery, unreasonable behaviour, desertion, or separation of at least two years or in some cases five years.  The divorce process generally takes between six and nine months but can take longer if financial matters still need to be agreed upon.

Read our frequently asked questions on divorce and separation.

Our handy guide on how to get a divorce also breaks down the process of getting a divorce into seven easy steps.

 

2. Will my partner get 50% of our assets, even if they have cheated?

In England, the courts will always start with a 50/50 split of assets. But there are a number of instances where this may not be the case, such as the length of the marriage/civil partnership, large sums of inheritance or money generated after separation and sometimes generated pre-marriage and whether there are children. Fault – such as one partner cheating – has no bearing on the division of assets.

 

3. Do I have to give my engagement ring back if we split?

This is a particularly common divorce question we encounter. If you break up with your partner, you may feel a moral obligation to return the ring - however, unless it can be proved that the ring was given conditionally, the law states that it is an absolute gift, meaning you do not have to return it to your ex.

 

4. Do I need to appoint a solicitor?

While it is possible to get a divorce without the support of a solicitor, you may run the risk of missing important legal loopholes, such as the ‘remarriage trap’. Put simply; if you remarry without a claim for a financial order you may be barred from seeking maintenance and other financial claims. You may also find yourself out of pocket down the line. Without full legal severance, it is possible that an ex-partner could chase you for a share of funds you may accrue later in life – whether that be a pension pot, inheritance or even a lottery win!

 

5.We’re not married, but we’ve been together years – will I get 50%?

There is no such thing as a ‘common law wife/partner’. Cohabiting couples frequently believe that living with somebody for a prolonged period of time leads to certain legal rights such as a share of property owned by one party – it does not. If you choose not to marry then do consider a living together agreement to protect your best interests.

We’re here to help

This post has explored five common questions on divorce issues, helping to debunk some of the divorce myths we come across when talking to clients. Going through a divorce or separation can be one of the most stressful periods in your life and highly emotional. No matter where you are on your journey, our team of family law experts can help guide you through the maze of emotional and legal responsibilities.

For advice and support contact Jane Charlton or complete our enquiry form and we’ll call you back to arrange a free, 20 minutes no-obligation confidential consultation at a time to suit you.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Our Latest Thoughts

All the latest views and insights on current topics.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Birmingham law firm’s family team bolstered with specialist partner appointment

16 Mar

Firm News

Birmingham law firm’s family team bolstered with specialist partner appointment

Read article Right Arrow

Music Royalties – ensuring the drums keep beating

12 Dec

Family

Music Royalties – ensuring the drums keep beating

Read article Right Arrow

Guides & Advice

The impact of Brexit on divorce and family law

The family law legal system in the UK has increasingly become an international one - over the last few years alone we have seen an increase in cases involving international family law issues and cross-border disputes.

It is now not unusual for families to live in different countries and/or own properties abroad alongside multinational businesses. There are also many children that are part of families who frequently travel between, and live in, more than one country.

So how will Brexit affect the global nature of the way in which many families live and work? We highlight some of the key areas where Brexit is likely to have an impact.

Will Brexit affect my divorce?
The pre-Brexit situation

The question of which country a divorce may be issued in was governed by a Council Regulation called Brussels II. This meant that there was often a race to the court under what is known as the lis pendens rule. This is a rule that the first party to issue proceedings at court, secures the jurisdiction of the court in that particular country. Urgent advice and action was often needed to find out the best place for proceedings and then to issue quickly.

Divorces issued on or before 31 December 2020 will continue to follow these rules and the divorce will be recognised according to the Brussels II regulation.

Divorce after Brexit

The lis pendens rule is now replaced by a forum conveniens rule, which previously applied to all other non-EU countries. This essentially means that a court may decline to deal with a divorce if it appears more appropriate or convenient for a different country to deal with it. It is anticipated that this may well lead to more protracted and costly disputes regarding which EU country should issue the divorce if the parties cannot agree.

Another area which has been impacted by the Brexit deal is the jurisdictional grounds to bring a divorce. A petitioner can only start divorce proceedings in England and Wales if the English court has jurisdiction to deal with those proceedings. The removal of Brussels II has now changed the definition of the jurisdiction in the divorce petition and these discreet technical points may well have a big impact on future divorce applications.

Read more about the divorce process and how we can help you.

The impact of Brexit on children law
The pre-Brexit situation

The Brussels II regulation also provided consistency in international family law disputes e.g. by recognising parental responsibility across EU member states and regulating the rules around child protection and child abduction in the EU.

How have things changed after Brexit?

It remains to be seen how this will impact on future international children disputes.  What we can say it that it is likely to lead to more cross-border disputes which could potentially be very complicated.

Parenting through a divorce or separation is not easy, regardless of jurisdiction. Read more about how we can guide you through the process and ensure the welfare of your children remain the top priority.

In addition to the above, there are many other changes within family law including areas such as maintenance agreements. As with all legal matters, however, our experience has shown that costs can be reduced and litigation less protracted if legal advice is sought at an early stage.

Read more about our international family law expertise.

No doubt we will find in the coming months that there are likely to be some cases that fall through the cracks, as there will undoubtedly be some gaps in the law that the Brexit deal has not covered. Therefore the true impact of Brexit on divorce and family law still remains to be seen.

We continue to monitor the key updates and our team of family lawyers are on hand to advise you with any international family law query that you may have.

How we can support you

We have wide experience of all types of jurisdiction cases and regularly work alongside lawyers in other countries to secure the best outcome for you and your family. For advice and support contact Monica Ghai or complete our enquiry form and we’ll call you back to arrange a free, 20 minutes no-obligation confidential consultation at a time to suit you.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Our Latest Thoughts

All the latest views and insights on current topics.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Birmingham law firm’s family team bolstered with specialist partner appointment

16 Mar

Firm News

Birmingham law firm’s family team bolstered with specialist partner appointment

Read article Right Arrow

Music Royalties – ensuring the drums keep beating

12 Dec

Family

Music Royalties – ensuring the drums keep beating

Read article Right Arrow

Guides & Advice

Will the impacts of coronavirus affect my divorce financial settlement?

COVID-19 is undoubtedly continuing to have a huge impact on people and their families, particularly those that are in the process of going through a formal separation.

Statistics published last week from the Office for National Statistics show there was 108,421 divorces in 2019 - an increase of 18.4% from 2018 and the highest since 2014 (when 111,169 were granted.)

Although these figures are from 2019, advice charities have reported that they’ve already seen the effects of the coronavirus pandemic and the huge strain it is putting on families. Therefore it’s not unfeasible that we’ll see a surge in divorces this year too.

Dealing with the practical, legal and emotional process of a separation is difficult and stressful enough as it is, without the added complexity of a pandemic. So if you are currently going through the process of divorce, how might the current situation affect this?

I am in the middle of negotiating a financial settlement with my spouse but my financial situation has now changed. What can I do?

You may be doing this either through solicitors or in court proceedings. During this process, there is a duty for both parties to provide what is known as ‘full and frank financial disclosure’. However, given the challenging times we all find ourselves in, it is likely that the disclosure you have already exchanged reflects a much healthier previous financial position and therefore may need to be reviewed.

For example, if there has been a sudden change of income then this may affect how much one spouse is able to borrow by way of a mortgage to ‘pay out’ the other. It could also lead to revisions of property valuations.

Can furlough pay affect a divorce financial settlement and maintenance payments?

It’s currently not uncommon for individuals to seek to reduce their maintenance payments if they’ve been placed on furlough and are therefore receiving a lower income.

While this should be considered as part of any conversations around financial stability and the ability to make payments, couples need to be cautious about entering into agreements without future a review when the reduction in income ends. Both parties need to be realistic that, depending on the industry, it could be a while before the usual level of income resumes.

What if I have only just obtained a financial order?

Your financial order will have been based on what the parties’ financial position was at the time the order was made, which is likely to have been long before the global coronavirus outbreak, and therefore may no longer be feasible

For example, if the order directed one spouse to pay spousal maintenance to the other, but they have since lost their income overnight, they may be unable to pay. Or, it may be that the order set out certain timescales for the transfer of certain assets which can no longer be complied with.

It looks like my spouse may be declared bankrupt. What can I do to protect my position?

If bankruptcy hasn’t occurred yet then you should try and agree on a financial settlement, or make a court application as soon as possible before the bankruptcy process begins. This is because, once proceedings begin, almost all of the assets of the bankrupt person are no longer theirs – instead they are owned by the trustee in bankruptcy.

In financial remedy proceedings on divorce, the court has powers to redistribute assets and income between spouses following the breakdown of their marriage, in accordance with the needs of the spouses and what the court considers to be “fair”. This can lead to conflicts between your interests and those of the trustee in bankruptcy.

For example, if the matrimonial home is jointly owned by you and your spouse, the house cannot be transferred into your sole name without the consent of the trustee in bankruptcy. This is why timing is crucial and it’s important to protect your position now before this situation occurs.

If the bankruptcy is already in effect then the process can be fairly complicated and legal advice should be sought as to what applications can be made.

If my spouse is declared bankrupt, is the money that has already been paid to me protected?

Unfortunately, if money was paid under an order before your spouse was declared bankrupt (and if it was paid in implementation of an order of court), the trustee can ask for the order to be recalled. They are also able to do this any time up to five years from the date of the order being granted. If the recall is granted, the trustee in bankruptcy can recover the money that has been paid to you by your spouse.

What if one of us is a business owner?

As family lawyers, we frequently advise on cases where at least one party is a business owner and therefore the business accounts are subject to detailed examination and valuation. Given the financial impact of COVID-19 is having on business owners, previous forecasts and valuations of stocks and shares may also need to be revisited.

The last eight months have brought a great deal of uncertainty over assets, such as income, pension value, stocks and shares, etc., and it is becoming increasingly difficult to conduct valuations. A recent case saw a judge apply a 10% discount to the trading value of the husband’s business on the basis of COVID-19, as well as the anticipated impact of Brexit.

How can I get help?

If you are in any doubt that your court order may be affected by a change in circumstance then you should speak to a professional and seek legal advice. An application can be made to the court on the basis of there being a “subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made”.

If this is applicable to your situation then a court application should be made without delay. Family court hearings are still taking place on a priority basis as they have quickly made arrangements for these to be held remotely, e.g. by telephone or Skype.

You are not alone

We understand that this may be a difficult and uncertain time for you – we’re here to help and support you throughout the process. Whatever stage you’re at, don’t panic! – Our team of family law experts will help you understand your options and advise you on the best possible outcome and protect your position from outset.

Contact us

For advice and support contact Monica Ghai or complete our enquiry form and we’ll call you back to arrange a free, 20 minutes no-obligation confidential consultation at a time to suit you.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance for any queries on family and private matters. We also have a team of experts on hand for a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Our Latest Thoughts

All the latest views and insights on current topics.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Birmingham law firm’s family team bolstered with specialist partner appointment

16 Mar

Firm News

Birmingham law firm’s family team bolstered with specialist partner appointment

Read article Right Arrow

Music Royalties – ensuring the drums keep beating

12 Dec

Family

Music Royalties – ensuring the drums keep beating

Read article Right Arrow

Guides & Advice

Solving pension disputes during a divorce

Divorce is an already stressful experience for many people, so when one party tries to put financial pressure on the other, it can make the process even more challenging.

Read more about the divorce process and the steps involved.

Pensions are a particularly common area of dispute, and the thought of being left with too little money after retirement can be worrying. Luckily, these conflicts can be solved with the right advice.

How does a pension get split in a divorce?

There are two main approaches that the courts take when sharing out pensions between a divorcing couple; these are:

  1. Pension sharing – The funds are split on divorce between the two parties.
  2. Pension off-setting - The party with the lowest pension figure receives a balancing payment in capital funds from another source, such as the family home.

Pension sharing is a much more common approach, due to its simplicity. However, if the pension off-setting route is chosen, it is possible that it will lead to misunderstandings and further stress if the correct information is not provided from the start.

What to do if tensions rise

If you suspect that your partner is trying to use the complexity of pension off-setting to their advantage, for example, they are talking about you losing the family home, it is vital to seek guidance from a pensions expert. They will be able to assess the figures and give an accurate overview of the situation, putting the issue to bed or seeking a prompt resolution.

It is also important to remember that the courts will be looking at each person’s finances holistically. Income and housing will always be taken into account, and further financial support can also be allocated should it be necessary.

Using mediation to resolve conflict

As long as both parties are willing to cooperate, mediation can be a good option for solving any disputes during a divorce. Read more about the benefits of mediation.

Talking the situation through in a controlled environment, where both sides can be shared and all options explored, may lead to a better outcome for everyone involved.

We can guiding you through your divorce with clarity, confidence and compassion

Divorce can cause people to act uncharacteristically, creating unnecessary conflict and heightening stress levels. However, with guidance from a financial expert or a divorce lawyer, disputes can be settled with both parties safe in the knowledge that they won’t be left high and dry.

For advice and support contact Helen Bowns or complete our enquiry form and we’ll call you back to arrange a free, 20 minutes no-obligation confidential consultation at a time to suit you.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Our Latest Thoughts

All the latest views and insights on current topics.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

Read article Right Arrow

Charity expert vows to ‘stand up for the sector’ after committee appointment

10 Jun

For the individual

Charity expert vows to ‘stand up for the sector’ after committee appointment

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Guides & Advice

The importance of the Pre Nup

The importance of the Pre Nup

For lots of couples the use of a prenuptial agreement (commonly referred to as a pre-nup) is there to protect assets and interests, should things go wrong in the marriage.

In the past, they have very much been thought of as the domain of the rich and famous but with blended families becoming more common, they too are becoming much more common.

The recent news that billionaire musician and producer Dr Dre and his wife Nicole Young are divorcing, has bought the issues of pre-ups into sharp focus and the thornier issue of ‘Can a pre-nup be overturned?’

The background to the case

Dr Dre and his wife, Nicola Young, entered into a prenup prior to their marriage in 1996.   The validity of the prenup is now in focus as paperwork seems to show that Dr Dre repeatedly ripped up copies of the pre-nup throughout their marriage, leading his wife to believe that the pre-nup was no longer valid.   Young is also citing that she felt threatened and intimidated into signing the agreement shortly before their marriage.

Dr Dre is reportedly worth near to 1 billion dollars so the financial fall out from the argument of pre-nup v no pre-nup is extremely significant.  Dr Dre has since confirmed the existence of the pre-nup agreement requesting that any settlement is made in accordance with it.

The situation here in the UK

The UK has been slow to recognise the importance and validity of pre-nups and it was the landmark case of Radmacher v Granatino that highlighted this.

Radmacher and Granatino had entered into a pre-nup prior to their marriage agreeing that neither party would benefit from the property of the other, on divorce.

When the couple did divorce, the pre-nup was overturned by the judge, who awarded the husband a much larger settlement than was recorded in the pre-nup because, in her view, its importance had been lessened as the husband had not received appropriate legal advice before signing it and there were now children to take into account.

The wife appealed this decision and won.  The husband took the case to the Supreme Court but the decision was upheld and he was unsuccessful.  The judge ruled that pre-nups have ‘magnetic importance’ and appropriate weight should be given to the agreement IF entered freely entered into by both parties and who fully appreciate the implications of the agreement and potential outcomes.

So, can a pre-nup be overturned in the UK, even in light of the matter of Radmacher v Granatino?

The keyword in the above case review is IF the agreement has been entered into freely and knowledgeably.  If it can be proved that this is not the case, then there are grounds for the agreement to be overturned and it will not be considered binding if:

  • Any subsequent children from the marriage are not provided for.
  • The agreement was signed under pressure or there was undue influence or if one party did not have the  legal capacity to enter into the pre-nup
  • It can be proven that one party did not fully understand what they were signing or what the implications to them would be if it was used.

Additional measures that can be taken to ensure a pre-nup is given maximum weight.

To limit the opportunities for the agreement to be reviewed or overturned it is advised that any prenuptial agreement be drawn up and entered into well in advance of the actual wedding to allow time for review, discussion and negotiation if appropriate.

Financial disclosure is also a prerequisite.  Either party found to be failing to disclose their financial situation will mean the agreement is unlikely to be given maximum weight.

Also evidence of the parties having a full understanding of the financial position of the other party will help an agreement remain watertight.

If all of the above can be proven then a pre-up, whilst still not technically legally binding, will stand up to scrutiny by a UK court and should be given decisive weight.

Contact us

Pre-nups are becoming much more common so to ensure that they work for you and your family careful and considered advice is key. For further information, please contact Stephanie Kyriacou, another member of the family team in your local office or fill out our enquiry form, and a member of our family law team will get in touch with you shortly. 

Our free legal helpline also offers bespoke guidance on a range of subjects, with a team of experts on hand for any queries relating to personal and family matters. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

The uncertainty of what’s to come as a result of the COVID-19 pandemic is understandably keeping many people awake at night but, whilst the scope of what our future may look like is still evolving, one aspect that can be controlled is putting measures and provisions in place to plan for the future and protect the wealth of you and your family. Our guide to recovery and resilience highlights the opportunities currently out there for effective wealth planning that will make a real difference.

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

How is Nutrient Neutrality impacting developments and housing supply?

23 Jun

Andrew Gore, Partner
How is Nutrient Neutrality impacting developments and housing supply?

On 16 March 2022, the Government announced that an additional 27 catchment areas, affecting […]

Keeping court bundles safe from the dark web

26 May

Clive Read, Partner & Head of Birmingham
Keeping court bundles safe from the dark web

It is vital that chambers and their barristers have strong cyber security measures in […]

Charities Act 2022 – revolution or evolution?

24 May

Andrew Wilkinson, Partner
Charities Act 2022 – revolution or evolution?

On 24 February 2022, the long-anticipated Charities Bill received Royal Assent becoming the Charities […]

Registered Providers: the challenges of acquiring larger sites and associated planning and legal issues with development land

5 May

Registered Providers: the challenges of acquiring larger sites and associated planning and legal issues with development land

With the Government's mandate to 'build, build, build', the pressure is on for those […]

Our thoughts

All the latest views and insights on current topics.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

With the school summer holidays fast approaching, this is a question which tends to […]

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

Spring 2022 Consumer Finance Update Eddie Flanagan discusses the latest updates from the consumer finance […]

Read article Right Arrow

Charity expert vows to ‘stand up for the sector’ after committee appointment

10 Jun

For the individual

Charity expert vows to ‘stand up for the sector’ after committee appointment

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Birmingham law firm’s family team bolstered with specialist partner appointment

16 Mar

Firm News

Birmingham law firm’s family team bolstered with specialist partner appointment

Read article Right Arrow

A simple guide to defamation – what is it and how to bring and protect against a claim

9 Mar

Litigation & Dispute Resolution

A simple guide to defamation – what is it and how to bring and protect against a claim

Read article Right Arrow

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Guides & Advice

Villiers vs Villiers: A case of ‘divorce tourism’

Villiers vs Villiers: A case of ‘divorce tourism’

Why choosing your divorce location matters

On 1st July 2020, the Supreme Court ruled in favour of Mrs Villiers, a woman wishing to take advantage of ‘divorce tourism’. This relates to divorcing in a location that may give you a more favourable settlement.

Her husband, Mr Villiers, wanted the divorce to be dealt with in Scotland alone, where they had lived for most of their married lives. However, Mrs Villiers desired for the maintenance case to be heard in England, where she had been living for some time after the separation.

It is rare for divorce cases to reach the heights of the Supreme Court, but this one was unusual. So, what does the ruling mean for you?

What is ‘divorce tourism’?

Simply put, divorce tourism is where people apply to have parts of their divorce handled in different jurisdictions – i.e. a different geographical location – England vs Scotland, for example.

What are the benefits of using different jurisdictions?

English and Scottish law are not the same. Scottish courts deal with divorces in a much more formulaic way than their English counterparts. South of the border, the courts take a more discretionary approach and award settlements that they feel are appropriate depending on individual circumstances.

Jurisdiction is critical in any divorce and it’s important to explore all options available. If it’s possible to have proceedings heard in a country with a potentially more favourable legal system – England and Wales, for example – then this would obviously be a wise move for anyone looking to commence divorce proceedings. However, it’s important to be aware that it’s often necessary to meet a number of criteria around residency and citizenship to have this choice.

Is ‘divorce tourism’ a guaranteed win?

While this Supreme Court ruling is cause for celebration for Mrs Villiers, the victory comes with a significant safety warning. Having her maintenance appeal heard by the English, rather than Scottish courts, is still no guarantee that she will get what she wants.

In addition, there could be certain challenges to overcome if various aspects of the case are determined in different jurisdictions.

What does this case mean for the future of UK family law?

Ultimately, whilst this is an interesting legal point, a question mark remains around how many people this particular decision will affect. The costly level of litigation means it is unlikely to lead to a sudden uptick in people looking to make the most of ‘divorce tourism’.

Of course, divorce tourism isn’t only applicable to those filing for divorce in England and Wales versus Scotland, there are multiple and complex nuances across jurisdictional territories around the entire world. However, there are many reasons why London is long thought of as the ‘divorce capital of the world’.

The divorcing process can be exhausting and stressful enough for separating couples, without having a Supreme Court ruling to contend with. With such complexity about where divorce proceedings take place and the difference it can make, it is worth seeking counsel well before these first steps are taken.

Contact us

No matter where you are on your journey, we can help to support and guide you through. Contact us confidentially today by calling 0330 024 0333, or filling out our enquiry form and someone will get in touch with you shortly.

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Farming, family and “fairness” – how to mitigate the risk of inheritance disputes

5 Apr

, | Andrew Wilkinson, Partner
Farming, family and “fairness” – how to mitigate the risk of inheritance disputes

It is no coincidence that many of the most significant court inheritance disputes are […]

Agriculture: Protecting family wealth with a pre-nuptial and post-nuptial agreement

3 Mar

, | Helen Bowns, Partner
Agriculture: Protecting family wealth with a pre-nuptial and post-nuptial agreement

Pre and post-nuptial agreements can be very valuable, especially to those who are concerned […]

Avoiding messy split ups – co-habitation agreements for couples planning or currently living together

18 Oct

Katherine Marshall, Partner | Matt Parr, Legal Director | Tom Ansell, Partner
Avoiding messy split ups – co-habitation agreements for couples planning or currently living together

As lockdown forced some couples to live together this last family webinars will see […]

When two families become one – practical guidance on estate protection, wills and guardianship appointments

11 Oct

Katherine Marshall, Partner | Matt Parr, Legal Director | Debra Burton, Partner
When two families become one – practical guidance on estate protection, wills and guardianship appointments

This is the second webinar in our series of three and will focus on […]

Grandparents rights: when there is a family dispute involving grandchildren

1 Oct

Katherine Marshall, Partner | Matt Parr, Legal Director | Tom Ansell, Partner
Grandparents rights: when there is a family dispute involving grandchildren

The first of our series of three family webinars will align to Grandparents Day […]

Charities: Defending 1975 Act claims in a pandemic – do charities have “needs”?

18 May

Andrew Wilkinson, Partner | Alistair Spencer, Associate
Charities: Defending 1975 Act claims in a pandemic – do charities have “needs”?

Has the current Covid context led to charities being in greater need and altered […]

Our latest thoughts & insights

All the latest views and insights to help you navigate your personal matters.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

With the school summer holidays fast approaching, this is a question which tends to […]

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

Spring 2022 Consumer Finance Update Eddie Flanagan discusses the latest updates from the consumer finance […]

Read article Right Arrow

Charity expert vows to ‘stand up for the sector’ after committee appointment

10 Jun

For the individual

Charity expert vows to ‘stand up for the sector’ after committee appointment

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Birmingham law firm’s family team bolstered with specialist partner appointment

16 Mar

Firm News

Birmingham law firm’s family team bolstered with specialist partner appointment

Read article Right Arrow

A simple guide to defamation – what is it and how to bring and protect against a claim

9 Mar

Litigation & Dispute Resolution

A simple guide to defamation – what is it and how to bring and protect against a claim

Read article Right Arrow

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Guides & Advice

How to get a divorce | a step by step guide

Going through a divorce or separation can be one of the most stressful periods in your life and if you're unsure of what the divorce process is, or how it works in practice, then the whole thing can feel a little bit overwhelming.

New legislation, the Divorce, Dissolution and Separation Act, was introduced on the 6 April 2022, which has completely overhauled the law and now means that one party can start or a couple can jointly start, proceedings without the need to apportion blame or offering a reason for the divorce.

Divorce terminology is also changing too, bringing the process into the 21st century. Making each element of divorce as clear as possible will reduce confusion and help people to understand the process they’re embarking on a little easier.

Here we break down the process of getting a divorce into seven steps.. Steps one to four explain how to start divorce proceedings. The latter three steps explain the process of completing the divorce.

Guiding you through the divorce process

The complicated part of the divorce process is not the dissolving of the marriage, but dealing with issues surrounding it such as those involving children or finances.

Our team of family lawyers can help support you and advise on the options available to complete your divorce process, whether this is making child arrangements and ensuring that the disruption and emotional stress is kept to a minimum, or securing the best financial settlement for you to secure your future.

The process of divorce can be emotional and the actions you take in the early stages can set the tone for everything that follows. If you’re about to start divorce proceedings either jointly or separately, or currently going through the separation process, then speak to one of our divorce lawyers. We’re here to guide you through the maze of emotions and legal responsibilities, every step of the way.

If you think you are ready to see how this process could work for you, you can make a first confidential enquiry by clicking on the button below.

More information

Find out more about our divorce services

Our expert lawyers are here to help support and advise you through the divorce process.

Child arrangement orders when divorcing or separating

In this guide we take a look at what approaches you can take when making child arrangements through divorce.

How we can help

Children - Parenting through a separation is never easy. Our team of experts are on hand to guide you through the process of making child arrangement orders, always ensuring the long-term interests of your children remain at the heart of every child custody decision.

-

International Families - Our international family law solicitors are experienced in dealing with cross-border relationships. We will work alongside lawyers in other countries to secure the best outcome for you and your family if a relationship breaks down.

Mediation, Arbitration & Collaborative Law - When a relationship ends, it doesn’t mean financial issues or child arrangements have to be settled in court. Our mediation lawyers can help you reach a solution that works for you and your ex-partner, offering you more control and flexibility over the decisions being made

Cohabitees Agreements - Contrary to popular belief, there is no such thing as ‘common law’, meaning many unmarried couples fail to recognise their lack of legal protection if they separate. Our cohabitation law specialists can help you prepare a legally-binding agreement to protect your financial interests.

Personal Tax Planning - From drafting your will to advising you how to structure your finances in the most tax efficient way, we aim to be your personal tax partner for life, ensuring we can design a plan that is exactly right for you and your family to protect your personal wealth.

Wills & Succession - It can be difficult to envisage a time when you’re not there to provide for your family. However, we are here to guide and support you with preparing a will so your wealth is protected for your loved ones into the future.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Our latest thoughts & insights

All the latest views and insights to help you navigate your personal matters.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

With the school summer holidays fast approaching, this is a question which tends to […]

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

Spring 2022 Consumer Finance Update Eddie Flanagan discusses the latest updates from the consumer finance […]

Read article Right Arrow

Charity expert vows to ‘stand up for the sector’ after committee appointment

10 Jun

For the individual

Charity expert vows to ‘stand up for the sector’ after committee appointment

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Birmingham law firm’s family team bolstered with specialist partner appointment

16 Mar

Firm News

Birmingham law firm’s family team bolstered with specialist partner appointment

Read article Right Arrow

A simple guide to defamation – what is it and how to bring and protect against a claim

9 Mar

Litigation & Dispute Resolution

A simple guide to defamation – what is it and how to bring and protect against a claim

Read article Right Arrow

Guides & Advice

Making child arrangements during a divorce or separation

Making child arrangements during a divorce or separation

The breakdown of a relationship is never easy and it can be even more difficult and emotional if children are involved, partially when it comes to making child arrangements.

Being able to co-parent through a separation is essential in ensuring that any emotional stress or disruption for the children is kept to a minimum. Whether your relationship breakdown has been amicable, or there have been disagreements from both sides, there are various approaches you can take to reach a solution that works for you and your ex-partner, and more importantly, considers and protects the long-term interests and welfare of your children.

You can read more about legally ending your marriage in our handy step-by-step guide to getting a divorce.

Here we explain the process and the approaches available when making child arrangements if you're going through a divorce or separation.

1. Try to reach an agreement with your ex-partner

If you and your ex-partner can reach an agreement on all matters relating to your children then you do not need to go to court – you can record what you’ve both agreed in a parenting plan. However, we suggest you seek the advice of a family lawyer to ensure that your agreement is legally binding, should there ever be disagreements or issues further down the line.

Resolving and settling issues out of court is always preferred, as it causes the least disruption to your family life. It can also be much quicker and more effective if you can have an amicable conversation and agree between yourselves.

2. Get help to reach an agreement through mediation or collaborative law

It’s natural to not agree on everything. However, just because you and your ex-partner can’t agree on every aspect of your children’s’ arrangements it doesn’t these have to be settled in court. Mediation or collaborative law can be used as a way to work together, alongside an impartial mediator, to secure the best future for your children and without the hefty court fees.

3. Ask the family court to make a decision

If you cannot reach an agreement between yourselves, or through mediation, then you can ask the family court to make a decision. As these court proceedings can be emotional and stressful, this approach should only be taken as a last resort. Because of this, before applying for a court order, you will have to attend a MIAMS (Mediation Information and Assessment) meeting to go through the options available first. You attend this on your own (i.e. your ex-partner does not attend your meeting) and you can then decide if mediation is something you would like to try.

There are four types of family court orders relating to the arrangements of children:

Love house
Child arrangements order

This determines where your children will live, how much time they will spend with each parent and when this will be (including important events such as religious holidays or birthdays).

It will also set out what other contact will take place outside of the physical contact, such as regular phone and video calls.

family one child in a house
Specific issues order

This addresses specific issues around your children’s upbringing, such as where they will go to school, whether they will have a particular religious upbringing, or what their surname should be following your divorce.

It can also determine who will make decisions about your children’s healthcare, or if permission is needed if either of you want to take your children out of the UK.

Stick FigureArtboard 1
Prohibited steps order

This prevents the other parent from making decisions around the children’s upbringing (such as where they will go to school, whether they will have any particularly religious upbringing).

Flexibility
Leave to remove

This is an application to seek the court’s consent to take the children out of the country to live abroad or to go on holiday.

4. After you’ve made your family court application

Once you've applied for a court order then the court will arrange a ‘directions hearing’ with you and your ex-partner (i.e. both parents), designed to figure out what aspects you both agree or disagree on. As your children's welfare is central to all proceedings, the judge or magistrate will also assess if your children are at risk in any way at all.

If there are no concerns over your children's welfare, during the hearing you'll be encouraged to reach an agreement if it's in your children's best interests that you do so. If you are able to agree then the court will record what you've agreed in a consent order and could end the process. If you're unable to reach an agreement at the first hearing then the process will continue and the judge or magistrate will set out what the next steps will be.

The welfare of your children will remain the priority and will always be put first throughout the process. Your children's wishes will be taken into account (if applicable, depending on their age, etc.), as well the their emotional and physical needs and the possible impact that any changes to their routine may have on their wellbeing.

A court will only make an order if they think it is in your children’s best interests to do so.

5. Enforcing a child arrangements court order

If your ex-partner is not following the court order then you can ask the court to enforce it. It is worth noting that the court may not enforce the existing order if they feel your ex-partner has good reason to not follow it, or if they believe the order is no longer in your children’s best interests. You can go back to the court if you don’t agree with their decision.

Getting help with making child arrangements

During, and following, a relationship breakdown, the primary focus and concern should always be the welfare of any children that are involved.

If you’re currently going through a divorce or separation involving children, our team of child custody lawyers will support and guide you through what can be an incredibly emotional journey.

Our child-centric approach never loses sight of the long-term interests of you and your children.

How we can help

Children - Parenting through a separation is never easy. Our team of experts are on hand to guide you through the process of making child arrangement orders, always ensuring the long-term interests of your children remain at the heart of every child custody decision.

-

International Families - Our international family law solicitors are experienced in dealing with cross-border relationships. We will work alongside lawyers in other countries to secure the best outcome for you and your family if a relationship breaks down.

Mediation, Arbitration & Collaborative Law - When a relationship ends, it doesn’t mean financial issues or child arrangements have to be settled in court. Our mediation lawyers can help you reach a solution that works for you and your ex-partner, offering you more control and flexibility over the decisions being made

Cohabitees Agreements - Contrary to popular belief, there is no such thing as ‘common law’, meaning many unmarried couples fail to recognise their lack of legal protection if they separate. Our cohabitation law specialists can help you prepare a legally-binding agreement to protect your financial interests.

Personal Tax Planning - From drafting your will to advising you how to structure your finances in the most tax efficient way, we aim to be your personal tax partner for life, ensuring we can design a plan that is exactly right for you and your family to protect your personal wealth.

Wills & Succession - It can be difficult to envisage a time when you’re not there to provide for your family. However, we are here to guide and support you with preparing a will so your wealth is protected for your loved ones into the future.

Our latest thoughts & insights

All the latest views and insights to help you navigate your personal matters.

Do I need consent to take my child on holiday?

4 Jul

For the individual

Do I need consent to take my child on holiday?

With the school summer holidays fast approaching, this is a question which tends to […]

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

Spring 2022 Consumer Finance Update Eddie Flanagan discusses the latest updates from the consumer finance […]

Read article Right Arrow

Charity expert vows to ‘stand up for the sector’ after committee appointment

10 Jun

For the individual

Charity expert vows to ‘stand up for the sector’ after committee appointment

Read article Right Arrow

What’s in a name? Your holiday could be riding on it

18 May

For the individual

What’s in a name? Your holiday could be riding on it

Read article Right Arrow

No-fault divorce becomes legislation on Wednesday 6 April 2022

5 Apr

Family

No-fault divorce becomes legislation on Wednesday 6 April 2022

Read article Right Arrow

Birmingham law firm’s family team bolstered with specialist partner appointment

16 Mar

Firm News

Birmingham law firm’s family team bolstered with specialist partner appointment

Read article Right Arrow

A simple guide to defamation – what is it and how to bring and protect against a claim

9 Mar

Litigation & Dispute Resolution

A simple guide to defamation – what is it and how to bring and protect against a claim

Read article Right Arrow

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

What’s next after coming out?

Blog | Family

Share This

Whilst these topics may be tricky to discuss, early communication with family and friends can help to minimise the risk of family conflict and make sure loved ones are protected for the future.

Preparation is key

It is sensible to consider your current financial and legal arrangements, including your existing will and powers of attorney before telling your friends and family, especially if you are unsure of how they will react.

A legal adviser can offer advice ahead of time and assist in the formulation of a contingency plan, allowing you to quickly safeguard your interests, should any family relationships come under strain as a result of the news.

Give it time

It is important to remember that family and friends may need some time to process your news – their initial reaction might be out of emotion and they may not always feel that way. In terms of moving forward, discussions from both a financial and a personal perspective will need to be had, but the timings and outcome for every couple will be unique. Whilst separation and divorce may be best for some, the idea of staying together and living as companions may better suit others.

Thinking about divorce

Currently, UK law dictates that adultery can only occur between members of the opposite sex. With this in mind, should either partner decide to leave the marriage, providing they’ve not been separated for two years or more, a divorce application would have to be issued on the grounds of unreasonable behaviour. Under these circumstances, the person making the application must show that the other party has behaved in such a way that the Applicant cannot reasonably be expected to live with him or her, causing the marriage to irretrievably break down.

In this situation, seeking support from an accredited family lawyer is advisable and often results in a far better outcome for all involved.

In the absence of any children, the separation process and division of assets can be relatively simple. However, where children are involved, the process can be more complicated, often requiring arrangements for maintenance payments and provisions for the children’s futures to be made.

Moving forward

Should a new relationship be formed, it is often important to ensure that children from the first marriage are provided for. Financial agreements, such as a Living Together Agreements/ Cohabitation Agreements, can protect assets owned prior to living with a new partner, ensuring complete transparency around who owns what. For those intending to remarry, a prenuptial agreement is also advisable in order to help to ringfence the assets brought into the marriage and clarify those that are to be kept separate.  Re-marriage will automatically revoke any previous Will you may have prepared – it is important to ensure that a new Will is prepared as soon as possible before or after the re-marriage, particularly if you have children from the previous marriage that you wish to benefit.

As with the breakdown of any relationship, open communication, allowing time for family to accept the news and specialist legal support can help to safeguard the future for loved ones and pave the way for a new chapter.

Get In Contact

Stephanie deals with all aspects of relationship breakdown to include divorce, children matters and resolving the financial issues upon separation.

LGBTQ Legal Services

LGBTQ+ Solicitors

As part of our ongoing commitment to increasing access to legal services for all, we have developed a focus in answer to requests from the LGBT community for advice to be provided in an approachable, empathetic and non-judgemental way by lawyers that truly understand the issues they may face particularly concerning their personal matters.

Our Thoughts

All the latest thoughts and insights from our team

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow

There are however types of relationship agreements that are available to everyone that can help provide clarity and certainty to both parties and their families and they should be considered proactively when family circumstances change.

Moving in together into a new home or moving into a property already owned by one party, parents wishing to invest in a property for a cohabiting child or a divorcee planning to cohabit with a new partner are all scenarios that can cause anxiety and stress to all parties involved and their families.

A living together agreement or cohabitation agreement in these situations could therefore be a very worthwhile consideration.  A living together agreement is a written agreement between parties detailing the respective wealth and assets of both parties and when signed and witnessed, provides security should a couple separate, so this type of agreement can act as a safety net for the whole family – an attractive option.

Pre-nuptial agreements are not just the preserve of the rich and famous. These can often be invaluable in circumstances where one or both of the soon to be married or those entering into a civil partnership have acquired wealth prior to the relationship or would like to protect wealth to pass on to children from a previous relationship. While it is often the couple that initiate these, a parent or close relative can be instrumental in suggesting these if there is family wealth or business assets at stake too.  Crucially in order to be legally binding, ‘pre-nups’ must be freely entered into with full and frank disclosure of wealth and property and with independent advice.

And finally – the increasingly popular post-nup agreement.  Should a marriage or partnership end through divorce or dissolution, the post-nup agreement details how a couple’s assets will be distributed.   The advantages of a post-nup are numerous: they can be drawn up at any stage in the marriage or partnership, they can provide clarity on matters not outlined at the start of the marriage or partnership or that have changed since, and they can often offer an objective solution to what could be a particularly emotional time.

Each of these types of agreements has their own value and will suit different situations and scenarios, but what is clear is, that a couple considering cohabitation, marriage or a civil partnership could do well to investigate entering into an agreement to take the anxiety and stress out of potential situations further down the line.

For further information on any of the agreements discussed above please contact Katherine Marshall on 0116 257 6139  or Kuldeep Chauhan on 0116 257 6150 or a member of the family team.

Thankfully, if one person feels they have been treated unfairly by the foreign courts, for example finding themselves left in financial hardship due to the outcome of the legal process, there is a route that can be taken. This is provided by the English and Welsh courts, which are known globally as having the fairest terms when it comes to divorce.

MFPA 1984

Access to financial relief in the UK stems from Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984). For those who have a proven connection to the UK, the Act allows spouses who have divorced overseas to apply for permission to make an application for financial remedy in this jurisdiction, providing the unfair treatment by the foreign court cannot be corrected by that court.

Eligibility criteria

When applying for financial relief under Part III of the MFPA 1984, a number of criteria must be assessed. These include:

Whether the person has permission to make the application
The connection that both parties to the marriage have to England and Wales
The connection they have to the foreign court
The financial benefits the applicant or a child of the family has or will receive because of the foreign divorce
The rights the applicant has, or has had, to apply for financial relief from the other party under the foreign court
The availability of any property in England and Wales
The time elapsed since the foreign divorce

Although this may seem like a large number of criteria, successfully making a Part III application mainly relies on evidence of a strong link to the UK.

For anyone who finds themselves in a troubling position after an overseas divorce, contact Stephanie Kyriacou in our family team on 0116 257 4401  to find out how the MFPA 1984 can offer some hope of financial remedy.

For advice or guidance on any other commercial or legal issues, a member of our team can walk you through everything. Click here to discuss.

Case study*

Context:

• Two Russian nationals divorced in Russia and entered into a financial consent order

• The wife had a connection to England, as she lived in London with her children

• The wife successfully secured permission to apply to the court and made a substantive application for financial relief in England

Her case:

• Various trusts were concerned in this case, one of which owned the former matrimonial home in London where the wife resided

• The wife argued that she was under huge pressure and was suffering from depression when she agreed the financial order in Russia

• She stated that the Russian order made no provision for spousal or child maintenance

• She also argued that one of the trusts acted as a pre-nuptial agreement, and this was not taken into account in the final Russian order

His case:

• The husband stood by the final financial agreement reached in Russia

• He argued that the wife had legal representation before and after the Russian order was agreed and was placed under no pressure

• The husband argued the wife was using the Part III application as “a second bite of the cherry”

What was the outcome?

Although it took the wife five years to make a claim in England, it was held that a Part III financial order should be made in her favour, despite the existence of the Russian final order.

The English financial relief system is often believed to be one of the most generous globally, which is why many people consider London as being the divorce capital of the world.

The MFPA 1984 is there to protect and provide individuals who have been disadvantaged in an overseas court with an opportunity to receive a fairer settlement, providing they can meet certain requirements.

However, the above is the current legal position and once we leave the EU, this may well change. For anyone thinking about making an application, don’t hesitate to speak to our family team.

*Z v Z & Ors [2016] EWHC911

Booking an appointment to see a specialist family lawyer who will adopt a non-confrontational approach to the divorce is an important first step.

In the meantime, the following five tips are helpful:

1. Keep discussions regarding the divorce and financial matters away from children. Emotions will understandably be running high but it’s essential that children do not pick up on any parental discord. Remaining civil and amicable with an ex-partner in the presence of the children can make the divorce process less traumatic for everyone involved.

2. Assume any text message, conversation or email exchange with an ex-partner will be shown to a Judge. Stop and think before sending an angry message in the heat of the moment, as this could be regretted later down the line.

3. Avoid making any drastic decisions such as leaving the family home or clearing out a bank account without consulting a divorce lawyer, as this could adversely affect the case.

4. Divorces are an emotional and unstable time, meaning it can be hard to keep track of important events which may need to be relied upon later down the line. Keeping a diary and documenting everything is one way to ensure all essential information is on hand. For example, if an ex-partner misses a contact session or they tell you they will be opening a new bank account in their sole name, make a note.

5. Defining goals can help keep the divorce process on track. If retaining a pension is the main priority, then informing a divorce lawyer during the initial appointment would be a wise move. If the aim is to remain in the former family home, thinking about whether that goal is realistic and achievable is essential. Neither party will ever come away from a divorce with absolutely everything that they wanted, so it’s important from the outset to decide what’s most important and what can be lived without.

Learn more about our family team.

Without a pre-nup, many people think their case is dead in the water, but that’s simply not the case. When considering the division of assets, it may actually be possible to ring fence certain elements that were accrued prior to the marriage taking place. This is certainly the case for pension pots.

When considering pensions, it is important to be clear about the type of pension scheme that is involved –  different schemes have differing benefits, values and of course, pension freedom rules must be accounted for.

However, the length of the marriage, remains an important factor too, even where there is “no mingling” of assets, for instance joint bank accounts and the like.

The longer the marriage and, in particular, the more the parties relied on the capital and pensions for their future retirement, the less likely the chance of the Court excluding the pension from consideration.  Generally, although there is no law to support this, if a Pension has been accrued entirely pre-marriage, then it is unlikely to be shared, save in relation to need.   ‘Needs’ are critical in most cases, although there can be a degree of crystal ball gazing when looking at future pension needs.

Where the pension is accrued in part pre-marriage and in part post marriage, the approach to be taken may depend on the other factors in the case, such as the proportion of assets represented by the pension accrual for the length of the relationship, the view the court takes about each party’s future earning capacity and whether pension provision can be increased over time.

There are many orders that can be made in the context of financial remedy proceedings, but what is clear, is that all the circumstances of the case, will have a bearing on the outcome.

Katherine Marshall, one of our partners in the family team, and Suzanne Leggott, a private client partner, discuss the issues that need to be considered in these cases:

Finding the missing person

The most vital issue is tracking down the person who has gone missing. Contact needs to be made with them, whether that be through social media campaigns, a police investigation, or even a private investigator.

If the person is retired, it is worth looking into whether they are collecting their state pension. Accessing the letter forwarding service offered by the Department for Work and Pensions can help shed light on any previous addresses the person may have had, although individuals can’t access this service; it can only be accessed through certain channels such as by solicitors or charities.

Understanding why the person may have disappeared

If a person goes missing during divorce proceedings, they may have done so to escape what can be a traumatic experience. People’s coping mechanisms vary, and sometimes they are not in the right place to face the issues head on.

It may be the case that the person has a history of mental health concerns, and if so, they may need specialist support throughout proceedings. Safeguarding procedures should be put in place by solicitors if this is the case, so the process can be managed in an appropriate manner, causing as little distress as possible.

Can funds be distributed without the missing person’s permission?

In the event of an estate administration and an absent beneficiary, issues can arise surrounding how the proceeds from the sale of the property are to be distributed. Without contacting the missing person, instructions around distribution cannot be given and can hold up proceedings for all parties.

If this occurs during a divorce, a former spouse may attempt to give away the money, perhaps to charity. This can be worrying for the family of the missing person, as there is still the possibility that they will return and need the money. However, it is unlikely that a former spouse could achieve this, as the process is complex and long-winded.

Seeking appropriate legal advice is of great importance in such a rare situation and to resolve the situation in the best way possible, contacting the missing person is paramount. This gives the individual the option of settling the situation themselves, or appointing someone else to do so.

Find out more information about our family team, or see more about our private client team.