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No Fault Divorce – It’s Finally Here!

The Divorce Dissolution and Separation Act was finally implemented on 6th April 2022.

So what’s changed?

1. Parties will no longer need to rely upon a fact to prove the marriage has irretrievably broken down (such as adultery, unreasonable behaviour or 2 years separation with the other’s consent). Hence reference to the new divorces being ‘no fault’;

2. It will no longer be possible for a respondent to contest the divorce, save for challenging the divorce for reasons such as jurisdiction, validity of marriage, fraud or procedural compliance;

3. Terminology has also changed. For example, a petitioner will now be known as an applicant and the decree absolute will now be known as a divorce order;

4. Time frames are slightly different. For example, the introduction of the requirement that an applicant (petitioner) must wait 20 weeks from the day the application (divorce petition) was issued before they can apply for the conditional order (decree nisi). This may impact upon how long a divorce may take and also impact upon when parties can file a financial order by consent or commence financial remedy proceedings;

5. Parties can now apply on a joint basis;

6. The seeking of a cost order appears to be discouraged, but not prohibited. Previously it was quite common for a petitioner to seek an order for costs against a respondent when a ‘fault’ based petition had been filed and such a claim was included in the petition itself rather than making a separate application.

Are there any similarities to the previous divorce legislation?

1. There is still only one ground for divorce, which is irretrievable breakdown of the marriage;

2. The same court fee of £593 is required to be paid (and for those who are eligible, you can still apply for fee remission);

3. Applications are still to be made via the court’s on-line portal;

4. The procedure is still similar i.e. issue of application (petition); where it is not a joint application – respondent to file acknowledgement of service; apply for conditional order (decree nisi) and then apply for divorce order (decree absolute);

5. The end result is still the same, a divorce order (decree absolute) dissolves the parties’ marriage;

6. The same financial orders and the same section 25 criteria is still applied in respect of the parties’ financial claims arising from the divorce.

We at Lanyon Bowdler are here to advise and assist you in respect of your divorce and issues arising from the same (such as negotiating a financial settlement or resolving the arrangements for the children). We offer a discounted fixed fee hour appointment where many of these issues can be discussed at the outset. For more details please contact one of our offices via telephone or via email.

Protecting Financial Assistance to Family Members Upon Divorce

Very often we encounter situations in which family members wish to help a couple purchase a property together, usually with a contribution towards the deposit. In today’s property market that can be a very welcome boost for getting onto the property ladder and parents or grandparents can gain a lot of pleasure from seeing their younger relative and his/her spouse settled with fewer financial concerns.

However, this enjoyment can quickly turn sour if the child’s marriage breaks down. On many occasions we are faced with a situation where a client says their parent provided money to purchase the marital home and we have to deliver the bad news that, unless something was done at the time to protect that sum of money for the parent, it may well be regarded as having been a gift. As such, it will be absorbed into the marital assets and could be awarded in whole or in part to the other spouse.

The basic position is that, within divorce proceedings, the Court must take all the marital assets into account and divide them so as to produce a fair result for the couple, taking account of various factors such as the existence of children, each spouse’s financial needs and resources, their age, health, etc.

Note that the law does not require the Court to consider fairness to the parents etc who might have provided part of those assets.

For that reason, if you are considering helping out your married child financially it is very sensible to take legal advice to ensure your circumstances are protected as far as possible.

Matters to consider are:

  • Should your name go onto the title deeds to reflect the funds you contributed?
  • Maybe you could have a charge against the property, noted on the title documents at the Land Registry?
  • If the money is regarded as a loan, should a formal loan agreement be drawn up setting out the repayment terms, interest, etc.
  • Perhaps your child and his/her spouse could agree to enter into a pre-nuptial / post-nuptial agreement to try to ensure that your child retains your funds if the marriage breaks down?
  • If you still wish to provide the money on an informal basis, how will this be recorded by the solicitors dealing with the purchase and to what extent will your name and the arrangements be referred to in their file and on bank documents?

All of these options will have important ramifications (such as tax and inheritance) and you should take legal advice in good time before providing the funds.

However, a little thought and investment at this stage could protect you against potentially having to intervene in divorce proceedings further down the line, at considerable cost, risk and disruption to yourself and the wider family.

No Fault Divorces

The suspense around when so-called “No Fault” divorces were due to begin has been almost as bad as the final episode of “Line of Duty” – with perhaps less risk of internet spoilers...

However – fanfare - it is now official that they will start on 6 April 2022.

This marks perhaps the most significant change in family law for almost half a century and will require us all to get to grips with a raft of new terminology, forms and procedures.

For couples who have hit difficulties in their marriage that they don’t think can be repaired, it also represents a really positive development in moving away from the “blame culture”.

Gone are the allegations of unreasonable behaviour, always so difficult to come up with when two people felt it had all just “fizzled out” and they wanted to stay on good terms for the sake of the children or the wider family.

No more allegations of adultery, which often led to conflict, needless worry, confusion and extra costs.

No more need to prove that you had lived apart for a certain period of time, or endured a totally artificial lifestyle under one roof, where one person could not cook for the other (despite there being leftovers), or do the other’s laundry (not ideal in these eco-conscious times when running a half-empty machine is not something a decent citizen does!), without risking the court rejecting their argument they had lived separate lives.

Instead the applicant will simply have to file a document saying the marriage has broken down irretrievably and the other person will not be able to defend it, thus removing a favourite tactic of abusive spouses.

Indeed, if they wish, the couple can even file a joint application for divorce, which has never been permitted before.

They will then be required to wait 20 weeks before they can apply for their Conditional Order (previously known as a Decree Nisi), but can use the time well to try to resolve financial and children matters.

Six weeks after the Conditional Order they can apply for a Final Order (which used to be called a Decree Absolute) which dissolves the marriage.

As such, the later part of the process remains familiar but it is hoped that the initial stages, which used to cause so much delay and potential upset at a time when the parties were sometimes having to deal with all the other new challenges a separation could bring, will be a really welcome breath of fresh air.

What Makes a Good Divorce or Civil Partnership Dissolution?

Good Divorce Week commences on Monday 29 November 2021. But here’s the question; what is a “good” divorce? One where one “side” “wins” or “gets the lot”? Or rather where the parties are still talking to each other and prepared to sit in the same room afterwards? Where they negotiate and strive to avoid court and save fees? Where the children are put at the centre of their parents’ considerations?

Resolution is the organisation representing specialists in Family law. Members must subscribe to their good practice code of conduct. Resolution members would say that it is not about winners and losers and all about the other answers. Actions speak louder than words so how do Resolution members support and assist parties in achieving a good divorce or civil partnership dissolution?

Communication is often the key to achieving a good divorce. If parties communicate civilly and openly and engage with each other to identify and resolve issues, then much of the hard work has been done.

To obtain a Financial Consent Order parties must each provide a minimum, prescribed level of financial information by way of disclosure. By communicating openly and being transparent about their assets including pensions and income, this exercise can be undertaken swiftly. With minimal legal adviser engagement. Which all means minimal cost. Such open communication also promotes direct discussion about any concerns the parties may have for their children’s welfare. It is important that the parties never lose sight of the fact that, although they may want to go their separate ways, their children are their shared treasures and their welfare should be their paramount consideration. Certainly the welfare of any minor children of the family is the first consideration of the Divorce court when considering how fairly to divide parties’ assets at the end of a relationship.

Working towards identified aims and goals also makes for a good divorce. For example, alternative housing is likely to be needed for one or both parties and the children. A willingness to adopt an understanding about this, the realistic likely costs of both acquisition and running the new home, the limitations upon each party of mortgage capacity or barriers to increasing working hours if there are young children to care for, are all helpful insights. Such appreciation of the issues facing each party generates goodwill, builds respect and supports a negotiated outcome.

Agreeing some ground rules for parenting the children in two separate households is also a good idea. Agreeing bedtimes, homework arrangements, picking up and dropping off times and the treats and goodies which are and are not allowed, are all common examples. Sticking to these ground rules in both households will present a united front on parenting and a sense of security through certainty and consistency for the children.

Parties striving for a good divorce can also seek help from lawyers who are trained in Alternative Dispute Resolution (ADR) methods such as the Collaborative law approach. This promotes direct discussion and decision-making by the parties away from the Court and enables parties to be central to their process and the outcomes that they shape. Mediation is another ADR model available to couples and in certain circumstances there is still Legal Aid available for Help with Mediation.

It is possible for parties to come to an agreement entirely through negotiation or through a mediation forum, a collaborative law approach or engaging solicitors who will negotiate through correspondence and regular liaison with clients to come to an agreed solution. Avoiding court proceedings has the benefit of saving costs, retaining control, minimising delays and avoiding a significant amount of stress. An agreed financial consent order can be filed at court and granted by a judge without Financial Remedy proceedings being issued. Likewise an agreed Children Act order.

So, what is a good divorce to a Resolution member? It is knowing that the parties have reached a solution which is workable and fair to each of them. That the parties have protected and supported their children through the process so that they continue to have meaningful and healthy relationships with both parents and their wider families. It is one where clients recognise the support that has been provided to them by their advisor. Also one where the client appreciates the efforts throughout to keep costs to a minimum, reduce argument and conflict and focus on the negotiation and resolution of the central issues.

From April 2022 a no-fault divorce system will be unveiled. It is hoped that this will encourage more people to strive for a good divorce. Practitioners are presently awaiting guidance on the procedure and sight of the new rules. Hopefully they will be delivered in good time before the predicted April rush! However please remember that it is perfectly possible to achieve a good divorce NOW and a healthy exit from a damaged relationship, be that a civil partnership or a marriage.

An excellent new Resolution guide on "Parenting through separation" is available free of charge for parents or carers to download to support those seeking to implement good parenting through separation and indeed after parting.

I am a member of Resolution, a member of the Law Society’s Family Law Panel, an associate solicitor and a Collaborative Law Practitioner. Email me lisa.grimmett@lblaw.co.uk for further information.

Podcast

We have a number of useful episodes on our podcast The Legal Lounge, you can listen via the links below:

Alternative Dispute Resolution https://apple.co/3EwJoIB

Financial Disputes https://apple.co/3c0aPh8

Domestic Abuse https://apple.co/3Fu0s1I

Parental Responsibility Update

The removal of parental responsibility is the subject of many client enquiries. There are a large number of cases whereby one parent is looking to remove the other parent from the birth certificate and/or remove the parental responsibility they hold for a child. The process for removing parental responsibility can be long and expensive due to the serious implications that the decision can have. Given this, there is a high threshold that must be met for the court to agree to remove such rights. Generally speaking, if domestic violence or child abuse is involved, the court is more likely to lower this threshold.

In a recent undisclosed case, a judgment was passed down by HHJ Vincent with regards to the removal of parental responsibility and the change of surname for the children in question. It was stated within the judgment that orders which deprive a parent of parental responsibility and remove their surname from a child should only be made by a court if there is a solid and secure evidential and factual basis for doing so. Also, and more importantly, any order that is made by the court must be in the best interests of the child.

Subsequently, within the judgment, certain criteria are set out to help the court establish whether it is appropriate to remove parental responsibility and/or change a child’s surname.

In respect of parental responsibility it was highlighted that:

  • The child’s welfare is to be the court’s paramount consideration.

  • Under Section 4(2A) of the Children Act 1989, only the court can make a decision to bring an end to a person’s parental responsibility.

  • Parental responsibility describes an adult’s responsibility to secure the welfare of a child, which is to be exercised for the benefit of the child, not the adult.

  • The relevant factors to be considered by the court include: the degree of commitment which the parent has shown the child, the degree of attachment which exists between the parent and the child, and the reasons why the application has been made.

  • Article 8 of the European Convention is triggered in respect of all of the family members and any interference to these rights needs to be justified.

In respect of change of name it was highlighted that:

  • The case of Dawson v Wearmouth is relevant. Within this judgment it was stated that changing a child’s surname is a matter of importance and that the welfare of the child is of upmost importance. As well as this, it was highlighted that factors need to be considered in the present and the future.

  • From previous case law, it is standard that the following are importance considerations: the reasons for the initial registration of the surname, future and present factors, the reason for the request to change the surname and any changes of circumstances since the original registration.

  • The marital status of the parents is important. If they were married, there would have to be strong reasons to change the name if the child was so registered. If they were not married, the mother had control over the registration and hence, if the child was registered, the degree of commitment to the child and the quality of contact will be important considerations.

Furthermore, criminal convictions were considered within this judgment and overall it was held that a criminal conviction is to be accepted as evidence of any underlying facts which are to be relied on. Therefore, except in exceptional circumstances, the family court will proceed on the basis that a criminal conviction is correct.

If you require any further information regarding parental responsibility and/or changing a child’s name, please contact the family team to book an initial appointment.

No Fault Divorce New Legislation

The Divorce, Dissolution and Separation Act received royal assent on 25 June 2020. The government has recently committed to implementing the said Act from 6 April 2022. They state the delay in implementing the said Act of Parliament is primarily to allow time for the necessary IT changes to be made to the HMCTS online divorce system.

New Divorce Process

One of the main aims of the new legislation is to provide a new divorce process which will “work to reduce conflict”. The main changes being the introduction of a ‘no fault divorce’.

The sole ground for obtaining a divorce remains irretrievable breakdown of the marriage. However spouses will no longer have to prove one of the previous five facts required such as adultery or unreasonable behaviour.

The legislation introduces the ability for spouses to make a joint application, where the couple both agree that the marriage has irretrievably broken down. It also removes the ability of the other spouse (respondent) to contest a divorce.

Terminology

Other significant changes include changes in terminology. For example the petitioner will now be known as an applicant, the decree nisi will be known as a conditional order and the decree absolute will be known as a final order.

Time Estimate

Unlike the current process, the applicant will not be able to apply for the conditional order (formerly known as a decree nisi) until 20 weeks have passed since the date the divorce proceedings had been commenced. They will also still have to wait six weeks from the date the conditional order was made before they can apply for the final order (formerly known as the decree absolute). Therefore the minimum time a divorce will take (as from April 2022) will be six months, save for exceptional circumstances where applications can be made to expedite the conclusion of divorce proceedings.

If you would like to know more about the new divorce process, please contact a member of our family team.

A Collaborative Approach to Resolving Financial and Children Issues

We have recently reported that the Divorce, Dissolution and Separation Act is hopefully coming into force, heralding the availability of no-fault divorces, in around April 2022. So in this era where blame is being cast aside in favour of enabling couples to recognise when the marriage has irretrievably broken down and to get a divorce purely on that basis, might it also be a good time to focus on a collaborative approach to sorting out the financial and children issues that arise?

At its heart the collaborative process, which has in fact been available to all separating couples (save where domestic abuse or other exceptions apply) for over a decade now, enables separating couples to discuss options and work towards constructive solutions around a table, each with a specialist, collaboratively-trained solicitor to support and advise them. There are no adversarial court proceedings. The couple choose the collaborative process and agree that they will negotiate in good faith and in a transparent and open way. Each has his or her own collaborative lawyer by their side to provide advice and support. The issues are resolved in face-to-face meetings called four-way meetings and correspondence will generally be kept to a minimum. The parties and their lawyers sign a participation agreement. This confirms that they will work in a respectful way with dignity, and agree to provide financial information openly to enable legal advice to be given, negotiations to proceed in the four-way meetings and, at the end of the process, for the court documentation to be drawn up and submitted to secure a binding court order. This is just as enforceable as an order that has been obtained through the formal court process but usually at about a third of the cost and importantly, enabling the parties to maintain a good co-parenting relationship, retaining goodwill towards their former partner and knowing that they had been an integral part of a client driven process.

The collaborative approach still enables the parties to have expert advice and guidance from independent financial advisers, pension actuaries, family therapists and, if necessary, neutral evaluations from collaboratively trained barristers or determination of any tricky legal points through arbitration. Professionals can join the four-way meetings and speak directly to the couple answering their questions there and then so keeping meetings fluid and speeding the process along. Often collaborative cases are resolved in around a quarter of the time that formal financial remedy or children act proceedings can take.

How to Retain a Collaborative Lawyer.

All collaborative lawyers are members of Resolution, the body of family lawyers committed to resolving matters in a non-inflammatory, constructive and cost-effective fashion. Collaborative lawyers can be found on the Resolution website. Shropshire has an active collaborative group with seven lawyers, plus a collaboratively trained independent financial adviser and a specialist relationship therapist. A list of members can be found here.

At Lanyon Bowdler Lisa Grimmett is the collaboratively trained lawyer and is happy to speak to any interested potential clients for an initial telephone chat.

Once the collaborative lawyer is engaged, he or she will then make contact with the spouse of the client and invite them to consider a collaborative resolution. Ideally that party will then consult a collaboratively trained lawyer as the collaborative process is only open to parties who both recruit collaboratively trained solicitors. The lawyers will then agree with the parties an agenda for the first meeting and look at drafting up anchor statements setting out the aims of the parties and drawing out the areas of common interest; most usually the approach towards the care of the children and the recognition that both parties are striving to secure a fair outcome for each other.

The first four-way meeting enables introductions to be made and the participation agreement to be discussed along with the general aims of the collaborative process and how it differs from the court approach. Collaborative law is more client-focused, client-driven and tailor-made to the clients’ specific requirements. Importantly all discussions are “without prejudice” which means that they cannot be referred to should the process break down. This gives the couple confidence to share ideas and proposals that may have been thought of as possible options for resolving things, without having to be concerned that that information might be used against them in any way. All financial disclosure provided through the process is on an open basis which means that it can be relied upon as true and accurate and used in support of a consent application once an agreement has been reached.

If you would like any more information about a collaborative approach to matters, whether you are in the process of divorce currently or choosing to wait until the no-fault divorce option becomes available next spring, please do not hesitate to contact us.

Private Law – Vaccination of Children

Following a year of lockdowns, the UK is beginning to open up again due to a vaccination programme set to vaccinate 22 million people in the UK by spring 2021. In light of this, there are considerations surrounding the vaccination of children. It is the right of any adult of sound mind to make a choice as to whether or not they wish to be vaccinated against a known disease. However, when it comes to children, it is the decision of the parents (or those with parental responsibility). If the child’s parents have differing views on the issue, the correct procedural route is to apply to the court for a specific issue order.

Before making an application before the court, it is important to be aware of who has parental responsibility for the child in question. Establishing this is the first step. If the child’s parents are married, they will each have parental responsibility. If they are not married and father is not on the birth certificate, he will not have parental responsibility but the mother will. There are also circumstances where other parties will have parental responsibility in situations where there have been previous court proceedings to apply for such. If it is that both parents have parental responsibility and they disagree over the proposed vaccination(s), one or both of the parties will need to apply to court. This will also be the case if there are a number of individuals with parental responsibility.

In the most recent case, M v H (private law vaccinations) [2020] EWFC 93, the father’s initial application was for a specific issue order on the basis that it was in the best interest of the children (aged four and six) to receive vaccinations. This was initially limited to the MMR vaccine but later expanded to include all normal childhood, travel and COVID-19 vaccinations. Following her own research online and discussions with certain medical practitioners, the mother was opposed to such vaccinations. A specific issue order was granted in line with father’s application, in accordance with the normal NHS childhood schedule. However, an order was not made for travel vaccinations or COVID-19 vaccinations, on the basis that they are too speculative and too premature, respectively.

The court’s approach was heavily guided by a previous Court of Appeal decision (Re H (A Child) (Parental Responsibility: vaccination) [2020] EWCA Civ 664) in relation to public law vaccinations. There were a number of key points highlighted for these types of matters where parents cannot agree that were set out within the judgment. These can be summarised as follows:

  • The court will become the decision maker, through the mechanism of a specific issue order, if all other forms of dispute resolution have been exhausted.
  • Parental responsibility is where an adult has the responsibility to secure the welfare of the child. It was highlighted that this is to be exercised to benefit the child, not the adult.
  • In these cases, a specific issue order will only be granted if the court is content that it is in the child’s best interests, as this is their paramount consideration. Such an order should not be granted unless the child will be better off than they would be without the order.
  • Although no order was granted with regards to COVID-19 vaccinations due to there not being any formal guidance on this, it was noted that it was “very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court”.
  • Expert evidence was not necessary in these types of disputes when the vaccinations in question have been approved and are recommended by the NHS and Public Health England. If an expert were to be required, this must be a jointly instructed expert.
  • Unless there are special circumstances, it would be very difficult for a parent to successfully object to a public health recommended vaccine.
  • The strength of a parental objection to a vaccination will not be determinative. The court has the option to order vaccinations “in the face of rooted opposition from the child’s primary carer”.
  • Overall, the benefits of vaccination to prevent the child from the consequences of the diseases that they vaccinate against, and to the population more widely from the spread of such diseases, outweighs fundamental human rights.

To conclude, although the UK is not currently vaccinating children to prevent the spread of COVID-19, once this does begin, this is useful guidance as to how the court would handle any such application regarding these vaccinations. Generally speaking, if the NHS and Public Health England are agreeable to a vaccine programme for children, unless there are special circumstances in relation to a child, it does not seem likely that the court would deny the child protection via the vaccine.

If you require further information, please get in touch and ask to speak with our family team to arrange an appointment.

Testing Times for Separated Families

The pandemic has raised significant issues for separated parents who have had to struggle with making decisions for their children, often in the face of objection or disagreement from their ex-partner.

Under the Children Act 1989 the holders of parental responsibility cannot make unilateral decisions for their children. That is to say, they should not make decisions without the other parents’ consent.

The pandemic has meant parents have had to consider;

  • Can a child move between two households during lockdown?
  • If the child is home schooling, which parent should be responsible for that and can normal contact arrangements continue?
  • If the parents live a significant distance from one another, should the parent travel to the child’s’ local area for contact to avoid the child having to travel unnecessarily, if so what happens if the hotels and local amenities are closed?
  • If vaccination is extended for children, can the parents agree the child should receive the vaccination?
  • Now the most pressing decision is what should happen during the school holidays, can the children travel abroad?

Most families share the school holidays and often the only factor they have to consider is that the time falls within their allocated time with their child, so as not to fetter the other parents time. Or whether sufficient information has been shared with the other parent about hotel details, travel arrangements etc.

Now the government task force is due to report on 17 May and only then will parents know the exact rules for overseas travel regarding tests and jabs.

If all goes to plan parents will be able to go abroad from 17 May but that will not be the end of the matter.

COVID-19 tests with a negative result taken hours before travel will almost certainly be required for all those returning to the UK.

What happens, therefore, if you are returning at the end of a half term week or the end of the summer holidays, when the child has to go back to school? Should you run the risk of being stuck in a foreign country, unable to return if you or your child has a positive test result? A decision that will impact the child’s education.

What happens if one parent plans to go on their holiday the day after the other parent returns from their summer holiday? The second parent will be unable to go if the child is stuck and cannot return to the UK, or is having to quarantine.

Can Children Move Between the Homes of Separated Parents (UK) During Lockdown Three?

  • Guidance for England was published on the 4 January 2021 and states that individuals may not leave or be outside their home except when they have a reasonable excuse. A reasonable excuse includes continuing existing arrangements for contact between parents and their children where they live apart.
  • The president of the family division of the high court (England and Wales) noted that this does not mean that children must move between homes, the decision should be one for the parents to take after assessing their circumstances.
  • Parents are required to make a decision after a sensible assessment of the circumstances including the children’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other. It is an assessment that should be made taking into account child welfare issues and is something that many parents may require assistance with from a qualified family practitioner.
  • There will be many circumstances that may impact this decision, for example if the children have been instructed to self-isolate by NHS Test and Trace. Where that has occurred the parents or guardians of the child should arrange for that child to remain at the same address during their period of self-isolation and make alternative arrangements for ongoing contact, for example video or FaceTime calls.
  • There are arrangements where one parent travels a significant distance in order to exercise contact with their child. Such travelling may involve the parent moving between different counties and again may impact the decision in respect of continuing those contact arrangements during the lockdown period.
  • Of course parents are right to be concerned, as whenever a court makes or varies a child arrangements order a warning notice is attached to the order itself warning of the consequences of failing to comply with it. Failure to comply with a child arrangements order is important and needs to be taken seriously, as a breach of the same may incur a fine or imprisonment. The court will not impose such penalties if it is satisfied that the person had a reasonable excuse for failing to comply with the provision. Again, if there is any concern in relation to lockdown 3 resulting in a breach of a court order the parent should consider taking urgent legal advice.

For more information please contact a member of our family team.

Foreign Divorces

For many years England and Wales have been considered the "divorce capitals of the world" for wives. There are several reasons behind this, which include the relative ease and straightforwardness of the English divorce procedure and the duty upon the court to regard the contribution made by those who look after the home and care for others in the family as being equal to that of the main breadwinner. Perhaps one of the most important reasons for the popularity of using England and Wales for divorce however is the ability of the English court to share pensions between spouses and the 50:50 starting point for capital distribution upon divorce.

On 31 December 2020 the UK will leave the EU and with it, overnight, will disappear decades of reciprocal arrangements between the UK and the 27 countries of the EU along with a host of intertwined regulations. No one knows yet what, if anything, will replace them and how long it will take for a new regime to be set up.

What Happens Currently?

Under current EU treaties if one half of a couple issues divorce proceedings first in a member state that member state establishes jurisdiction over the divorce. For wives in particular, who can show a connection to England and Wales, being able to issue in England and Wales first to protect their financial claims here has been an important asset. After 31 December, this will no longer be the case

Lanyon Bowdler is seeing a huge increase in cases involving British couples who have either lived or are living in Europe, particularly those with houses in Spain, Greece and France. There has been a sudden surge of people instructing our family department at Lanyon Bowdler, particularly those who have lived in Europe with their spouses who recognise that it is important for them to issue divorce proceedings in the UK before 31 December to ensure that the courts here can give them part of their spouse's pension and a fair settlement. The new divorce online service in England and Wales is so quick and easy it has been a godsend to many. After 31 December it is likely that we will revert to the old system whereby whoever issues first in a European country, cannot be guaranteed that they will be able to establish jurisdiction and there will be many expensive cases dealing with the argument of where the divorce should take place.

Establishing that the courts here should deal with the divorce is not the only difficulty that will arise after 31 December. Reciprocal enforcement of financial orders in between the UK and the member states is also going to be affected by the UK leaving the EU. There the situation is less certain as the system for reciprocal enforcement is notoriously slow. Although we do not yet know what will happen to the current system of reciprocal enforcement, waiting to enforce a UK order in Europe after 31 December 2020 is a risk. Anyone with a UK order that needs to be enforced abroad should begin the process of enforcement now in the hope that once started, the member state will continue the enforcement process after 31 December.

Parental Responsibility - Is it Worth Poking the Sleeping Bear?

Parental Responsibility (PR), like your appendix, is something many people don’t think about or even realise they have until it causes problems. PR is a legal concept that confers upon certain people, usually the parents of a child, the right to be involved in key landmark decisions in that child’s life, such as their schooling, religious upbringing, their right to leave the country, medical care etc.

In the vast majority of families parents exercise these rights together every day without thinking about it but occasions do arise when there are disagreements about how PR should be exercised and what is best for a child and, if an agreement can’t be reached with the assistance of mediation or lawyers, the Court can decide what is in the child’s best interests.

I have noticed I have been receiving an increased number of queries about PR removal in recent weeks.

Sometimes my client says it is because the other parent has shown no interest in the child for years and they don’t want to feel the other parent has a hold over them by still having PR. I sympathise entirely but have to advise my client that, if they wish to apply for the other parent’s PR to be removed, they will need to apply to the Court and the other parent will be notified and be allowed to participate in the case. A controlling or vindictive parent may see this as the perfect opportunity to ask for contact with the child without having any serious intention of actually maintaining that relationship, and may use the proceedings as a means of antagonising the person making the application. I always suggest my client weighs up that risk against their reasons for applying to remove PR, as they know the other person much better than I do and how they might react.

If the parents were married when the child was born then it has also been suggested by the Courts that they do not have the right to remove one parent’s PR and, in that case, the Court might have to make an order simply limiting how one parent exercises their PR. This would still require the involvement of the other parent in the Court proceedings, with the same considerations as set out above.

The only question the Court can ask itself is “Is this in the child’s best interests?” and whilst there are cases where there is an obvious reason for removal / limitation of PR, such as where the other parent has perpetrated awful acts of violence or abuse against the child or family members and it is not in the child’s interests for the other parent to be able to make decisions about the child, these cases will be the exception rather than the rule.

It will always be specific to the facts and background of the case but I generally suggest people think very carefully about whether they want to open this particular can of worms or keep a tight lid on it until the child is 18, and the issue falls away naturally.

In other words: Is it worth poking the sleeping bear?!

Child Arrangements Over The Christmas Period – How Does This Work With The Christmas Bubble?

Christmas is a special time of year for families, especially children. This year will be unlike any other we have experienced before due to the unfortunate Coronavirus pandemic that has placed the country under national restrictions.

On 24 November the Government announced that there will be special provisions for making a Christmas bubble with friends and family during the festive period. In brief between the 23 and 27 December households will be able to form an exclusive ‘Christmas bubble’ composed of people from no more than three households. The guidance states that you can only be in one Christmas bubble and you cannot change your bubble, so how does this work for children of separated parents?

The President of the Family Law Division and Head of Family Justice provided guidance in March 2020, at the beginning of the pandemic, stating “where parents do not live in the same household, children under 18 can be moved between their parents’ homes”. This guidance was issued to ensure any arrangements made between parents, whether that be by way of a Court Order or between the parents themselves, is upheld despite the restrictions imposed as a result of the pandemic, to ensure children maintain contact with both parents.

When it comes to the Christmas period 2020, the Government has followed this guidance provided by the Head of the Family Justice and have stated that “children (under 18) whose parents do not live together may be part of both parents’ Christmas bubbles, if their parents choose to form separate bubbles. Nobody else should be in two bubbles.”

This means that where you have a child with another parent from a separate household, your child can freely move between yours and the other parent’s household and be in both of each person’s bubble. This does not mean you have to include the other parent’s household as part of your Christmas bubble. This will assist families in not feeling restricted, and allow them to share the festive period with other friends and family as per the general guidance, if they so wish. It does not prohibit you including the child’s other parent as part of your bubbles, but allows for flexibility. This guidance has put the child at the heart of the festivities, allowing them to enjoy their time with all parents without feeling they need to choose which bubble to be a part of.

If you are concerned about how to manage child arrangements this Christmas please contact our specialist family law team.

Collaborative Law – Q&A

2020 has been a difficult year. With the additional strains and stresses that Christmas will bring, we divorce lawyers anticipate that the New Year will be a busy time.

However, the good news is that there is a way to reach agreement during a divorce without having to resort to expensive court disputes, as I will explain in this blog.

Why Is the Start of the Year so Busy for Divorce Lawyers?

The New Year is often a time for new resolutions and new starts. After putting up with difficult situations or perhaps finding that a stressful Christmas is the straw that breaks the camel’s back, people may decide that it is a good time to make changes for the better to their lives, including contacting family lawyers.

What Is Collaborative Law?

It is a method of resolving issues arising from relationship breakdown focusing on finding solutions in a collaborative rather than court-based process. The aim is for a couple to focus on their most important goals, such as ongoing care and co-parenting of their children.

A series of face-to-face meetings promotes dialogue and provides a tailor-made solution for all aspects of their separation. It does not have to be solely for divorcing couples, it can be used in cohabitation breakdowns and also where couples are looking at starting a relationship together.

What Are the Advantages?

The parties commit not to go to court and are therefore in charge of the process and in control of the outcome. They make the final decision.

Unlike mediation the parties are supported in the face-to-face meetings by their lawyers, who can provide direct and immediate legal advice on any technical queries. As issues are discussed in the room there is complete transparency, which builds trust and enables the parties to see how their process is evolving.

If technical issues or disputes are encountered, experts known as “neutrals” can be brought in to assist the parties. This includes financial advisors, such as actuaries and business accountants, as well as family therapists if issues over children crop up.

The costs tend to be about half that of going to court to resolve financial issues or children matters because the meetings are tailor-made for the parties, who agree the agenda on each occasion. In addition to this, the couple is offered privacy, which provides a sense of achievement knowing that they have worked together to resolve matters.

How Long Have You Been a Family Lawyer?

24 years. I qualified in 1996 and have specialised exclusively in family work since then. I have seen many changes, including the introduction of pension sharing orders in the year 2000 and The Civil Partnership Act in 2004. I trained as a Collaborative Lawyer in 2010 and I am an active member of the “Shropshire Collaborative Lawyers” Group. Visit here for more details. Contact us for more information.

Divorce Trauma Akin to PTSD? Try Collaborative Law!

The Mail Online today (16 October 2020) tells the traumatic account of the 53 year old consultant from Telford called Sarah who was diagnosed with PTSD type symptoms following her divorce. Sarah says her body had been "catapulted into trauma mode" after experiencing her divorce. She felt in a perpetual state of terror. She says she is envious of anyone who can divorce amicably and that she had a terrifying thought that, if she and her estranged husband could not resolve their differences and the matter had to go to Court, it would cost thousands in legal fees. Happily Sarah is now managing her stress levels with the help of alternative remedies but she is stuck, with the Decree Absolute being delayed by lockdown, and struggling to reach agreement over terms of financial settlement with her husband.

The online article suggests looking into a broader support network of family, friends and counsellors, but it does not mention collaborative law or any other form of alternative dispute resolution for couples going through relationship breakdown. Helen, another woman cited in the article, says the current legal system only fuels hostility and puts families in huge amounts of debt. Kirstine, another woman featured, refers to taking antidepressants and being unable to sleep for worrying. The message from these women's experience is "if you don't prioritise your own mental and physical health, the whole family suffers. So put your own oxygen mask on first".

What a pity none of these ladies had the opportunity of resolving their relationship breakdown through the collaborative law approach. For Sarah especially, in view of there being a group of specialist solicitors in Shropshire actively practising the collaborative law approach, it might have made all the difference.

Under the collaborative approach, couples meet (yes, even in COVID-19’s restricted times!) each with their collaborative lawyer for support, agree not to go to Court and sign a Participation Agreement to that effect. Through a series of face-to-face meetings, they work through their own agendas to agree the best outcome for their family as a whole in a non-confrontational, respectful fashion.

The couple have access at all times to a family therapist and can choose at any time to suspend their meetings, to work through issues affecting their children, or learn coping mechanisms for processing the grief of the relationship breakdown itself. Couples take ownership of their process, working at their pace and identifying the issues they want on their agenda. Experts in pensions, mortgages and financial planning can join the meetings to explain the best options available for the family and help them to find fair, tax efficient and cost-effective methods to divide assets and plan incomes post separation. Specialist solicitors advise on what the principles of divorce law are, how they apply to the couple’s circumstances and assist them in discussions leading to a mutually agreed solution.

These discussions can be as wide-ranging as the couple wish, to include arrangements for the children, how assets are to be split, how pensions and incomes are to be shared and even arrangements for pets. Nothing is off limits, it is the couple’s process. This removes the worry and anxiety as the couple sets the agenda, there is transparency of advice and they can come out of the process with a Financial Order, granted by the Court and their Decree Absolute, in a much shorter timescale than if matters had to go through the Court process, especially during COVID times. It is a fraction of the price of Court proceedings too.

Communication is promoted which makes co-parenting easier and the children thrive seeing their parents continuing to work together, often attending school events and relating to the in-laws just as happily as previously.

I am a specialist family solicitor of 24 years and have been a collaborative lawyer for over 10 years and the collaborative practice has transformed my work for the good and I would recommend it without a shadow of a doubt to every client. For more information please go to www.shropshirecollaborativelawyers.co.uk.

Frequently Asked Questions about Pension Sharing in Divorce

Will I Have to Share My Pension?
This partly depends on when your pension was accrued. If it was accrued during the marriage or during cohabitation immediately before the marriage, then it will be considered a matrimonial asset, which is open to be shared. If your pension, or part of it, was accrued before the marriage or cohabitation period, then it may be excluded as a non-matrimonial asset.

However, a judge could still decide that is necessary to share part or all of a pension accrued before the marriage, if it is necessary for a fair outcome. Ask your Family Lawyer for advice tailored to your specific circumstances.

What Does It Mean If My Pension Is Shared?
Pensions can be shared in two ways. One way is for a proportion of your pension income to be paid directly to your ex-spouse by your pension provider. The payments only start upon your retirement when you start to receive your pension income. This is known as a “pension attachment order”.

The second way is for a percentage of your pension’s capital value to be transferred out of your pension pot into a pension in your ex-spouse’s sole name. The transfer takes place immediately, so that your ex-spouse can invest their share in a pension product of their choice and you can continue paying into your pension pot to build it back up before retirement age. This is known as a “pension sharing order”.

Your Family Solicitor can advise you about the pros and cons of these options.

How Much of My Pension Will I Have to Share?
The amount of pension to be shared will depend partly on the extent of your ex-spouse’s pension, the other assets in the marriage, and all the circumstances of the case, including how close you are to retirement. Speak to your Family Lawyer for guidance about how your specific circumstances may affect your case.

It may be possible to “offset” pension sharing against other assets in the marriage. For example, a wife may be able to keep all of her pension if the imbalance is offset by her husband taking more of the capital from the family home. A judge will only allow “offsetting” in this way if the overall outcome meets both parties’ needs, balancing pension needs with housing needs and income needs.

It may be necessary to have a pensions actuary prepare a report, to show what share would provide equality of income on retirement, and what is fair in terms of “offsetting”. Your Family Lawyer will be able to advise you on your best options for pension sharing.

For more information, please contact us.

Alternative Dispute Resolution & Family Law

The COVID-19 pandemic has seen the world go through very radical changes (some probably for the better, in the long run), very fast. It will probably be some time before we are back to anything resembling the old “normal” and we have all adapted to doing things very differently.

As a firm we have embraced technology to ensure we can continue to serve our clients. However, the Court Service took a very difficult direct hit from the pandemic and was soon inundated with urgent cases concerning adults and young people immediately made more vulnerable by the lockdown at a time when, practically speaking, it was even harder to accommodate all those cases. It is quite right that the most vulnerable are prioritised, but it required us to think inventively to minimise the impact of the delays on our clients, who were waiting to have their less urgent financial and children matters decided.

The Court system must, by necessity, be fairly standard for all situations. This can result in a situation where unnecessary work has to be carried out that won’t be of any benefit to the parties in their particular case.

Furthermore, the increasing Court workload means their staff are under tremendous pressure to move cases through the system. It is inevitable that sometimes there is insufficient time for a case to be completed on the allocated day, or for the most appropriate level of judge to decide it, resulting in more delays for the Court and the parties, and extra costs and disappointment.

This is where ADR (Alternative Dispute Resolution) makes its grand entrance. In reality, it has always been bubbling away happily in the background, used by our colleagues in civil law but the rules meant that, until recently, the opportunities to use it in family law were much more limited when, in fact, it is ideal for the issues many of our clients face.

Thankfully those rules have been addressed and now we have a full array of options we can offer clients for resolving their disputes, whilst avoiding the potential delay and cost of Court.

Many forms of ADR are as binding as a Court decision and therefore provide the same level of certainty and assurance at potentially less cost and in less time, whilst others are designed to give people a “taste” of what a Court might decide. Equipped with that knowledge after an opportunity to explore the issues with an impartial expert, people can be helped to negotiate a settlement and feel that they have really participated in the process leading to the final decision.

ADR also enables parties to agree, with the help of their solicitors, what the most important issues are and equally what they don’t need to be looked at, which once again saves time and the frustration of having to go over issues that they may not feel are relevant.

Essentially, ADR can be tailor-made to the particular circumstances of the case to ensure best use of time and money, and bring about a swift and economical conclusion to a problem.

Our team are well-versed in the various forms of ADR available for family law and would be happy to discuss them with you and explore how your case could benefit.

Domestic Abuse Bill: A Step in the Right Direction

It could be argued that the current, confusing compilation of domestic abuse laws, policies and procedures has failed the victims and survivors of domestic abuse. In 2019, the introduction of the Domestic Abuse Bill sought to rectify the situation. Unfortunately the Bill failed to pass through Parliament before it was dissolved on 6 November 2019 and so we currently eagerly await the House of Commons Committee stage.

The aim of the Bill is to promote awareness of domestic abuse, to provide protection and support to domestic abuse survivors and their families, and to provide a more effective response to perpetrators. The Bill appears promising from its aims, but how far these aims will be achieved in practice can only be speculated on.

Potential changes to be implemented by the Bill:

A statutory definition recognising the fact that domestic abuse encompasses physical, emotional, coercive or controlling and economic abuse.

This statutory definition comes not long after we saw the criminalisation of controlling and coercive abuse. The existing cross-government definition of domestic abuse currently operates on a non-statutory definition. Providing the definition on a statutory basis will hopefully ensure that domestic abuse is properly understood, in particular the separate identification of the wider types of abuse such as economic abuse. The aim is to ensure all agencies such as the NHS, police and local authorities are all applying a common definition and to educate everyone’s understanding as to what domestic abuse means.

The introduction of a Domestic Abuse Commissioner

Nicole Jacobs is designated to undertake the brand new role of Domestic Abuse Commissioner. The Commissioner will oversee and monitor the implementation of the new provisions. They will expectantly raise public awareness of domestic abuse and ensure universal practice on a national level by providing independent and objective advice. Government Ministers and specified public bodies will have a public duty to respond to the Commissioner’s recommendations within 56 days.

Provide for a new Domestic Abuse Protection Notice (DAPN) and Domestic Abuse Protection Order (DAPO)

DAPNs and DAPOs are available for all types of domestic abuse, including controlling and coercive behaviour. The courts will be able to make DAPOs on their own accord in any type of proceedings; the DAPOs will have flexible duration so that they can be used to protect victims for the long-term where necessary. A DAPO will be used to impose both rehabilitative provisions on offenders (such as alcohol/substance misuse programmes) as well as prohibitive measures (such as preventing offenders from contacting their victims). Breach of a DAPO is a criminal offence and carries a maximum custodial sentence of up to five years, or a fine, or both.

A duty on local authorities to support domestic abuse victims and their children staying in refuges and other safe accommodation

A four part statutory framework will be in place to ensure all victims of domestic abuse and their children can access the right support within safe accommodation. The statutory framework will achieve the following:

  • Place a duty on each tier one local authority to appoint a multi-agency Domestic Abuse Local Partnership Board which it will consult.
  • Require local authorities to have regard to statutory guidance in exercising their function.
  • Require the Secretary of State to produce statutory guidance.
  • Require tier two councils to co-operate with the lead local authority.

Safe accommodation includes: sanctuary schemes, refuge, specialist safe, dispersed and move-on accommodation.

Prevent perpetrators/alleged perpetrators being able to cross examine their witnesses in Court and vice versa

Where necessary, the Family Court will have the power to appoint a publicly-funded advocate to conduct cross-examination. The aim is to prevent the horrific trauma and distress cross-examination can bring to victims. The regulations that qualify for an automatic ban will be introduced. It is expected that all forms of domestic abuse will qualify as well as protection for a wider range of vulnerable witnesses in the family court. The perpetrator does not have to have a conviction, caution, charge or injunction against them and other evidence of domestic abuse such as that used to consider the criteria for legal aid will be sufficient for qualification.

Create a statutory presumption that victims of domestic abuse are eligible for special measures in the criminal courts (for example, to enable them to give evidence from behind a screen or via a video link)

Usually, for a witness to be eligible for special measures when giving evidence, the court needs to be satisfied that the quality of the witness’s evidence is likely to be diminished due to their fear/distress about testifying. Victims of domestic abuse automatically qualify under the presumption if they fall under the new statutory definition of domestic abuse and so no longer have to satisfy this test. However, the court will still need to consider if the measures are needed to improve the quality of the witness’s evidence when deciding to provide special measures and if so what measure(s) are needed. It should be highlighted the statutory presumption applies in the criminal courts and not the family courts.

Enable domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody

The government will implement a three year pilot of mandatory polygraph examinations on domestic abuse perpetrators released on licence identified as being at high risk of causing serious harm. Offences classed as being high risk include those who have breached DAPO, domestic abuse restraining orders and controlling or coercive behavior, all where the offender was sentenced to at least 12 months imprisonment.

Offenders will take the test three months post release from custody then every six months thereafter, unless the test is failed in which case offenders will need to take the test more regularly. Offenders could also be given a formal warning or made subject to additional licence conditions if they fail the test. The tests are designed to detect physiological changes in the offender’s body. Evidence suggests that polygraph testing has resulted in the safeguarding of children and vulnerable adults.

Place the guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) on a statutory footing

Due to Clare’s Law, disclosure can be made by the police to a victim/potential victim about their partners abusive/violent offending. The guidance supporting Clare’s Law will be put into statute to place a duty on the police to have regard to the guidance. It is also designed to increase the awareness of the scheme among the public and produce consistency in the application of the guidance.

Ensure that where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy) this must be a secure lifetime tenancy

This measure is introduced to help victims of domestic abuse leave their abusive home without the fear of losing their security of a lifetime tenancy. When re-housing existing lifetime social tenants or granting new lifetime tenancies, local authorities will grant a new lifetime tenancy where the tenant or a member of the household has been a victim of domestic abuse and the new tenancy is granted in connection with that abuse.

Extend the extraterritorial jurisdiction of the criminal courts in England and Wales, Scotland and Northern Ireland to further violent and sexual offences

Where UK nationals/residents commit certain violent and sexual offences outside the UK, the Bill will allow the perpetrators to be brought to trial in the UK. The Bill comes after the UK signed ‘the Council of Europe Convention on preventing and combating violence against women and domestic violence’ (the ‘Istanbul convention) in 2012. The UK already has extraterritorial jurisdiction over certain offence in the Istanbul Convention: murder/manslaughter in most circumstances, sexual offence when the victim is under 18, forced marriage and female genital mutilation. The Bill now extends extraterritorial jurisdiction to other offences such as sexual offences where the victim is over 18 and other types of murder/manslaughter not previously caught.

Comment

“There are some 2.4 million victims of domestic abuse a year aged 16 to 74 (two thirds of whom are women) and more than one in ten of all offences recorded by the police are domestic abuse related.” The Domestic Abuse Bill could not have come at a more crucial time. Due to the stringent lockdown measures, the National Domestic Abuse helpline have received an estimated 25% increase in calls and online requests. The symbolic effect of the Bill outweighs any potential uncertainties that will always remain when trying to eradicate such a sensitive, unique form of abuse. In particular, the Bill acknowledges different types of abuse such a technological and economical abuse.

It is also hoped the new DAPN and DAPO will provide a more collaborative approach to domestic abuse as opposed to the current confusing variety of reliefs available across various courts. As stated the new DAPNs and DAPO will allow Courts to impose rehabilitative programs on perpetrators as well as preventive measures. The route of the problem is therefore considering proactive measures as opposed to omissions. Addressing the route of the problem will expectantly provide longer term solutions and reduce the number of repeat offending.

It has been questioned whether the Courts will have sufficient resources to monitor the new measures and this may be something the Domestic Abuse Commissioner addresses. At second reading on 28 April, the House of Commons also identified that to achieve the extensive aims highlighted above, there needs to also be long-term, adequate funding for Councils. Thus, we will have to see if the aim of providing long-term protection to victims can be achieved in practice.

The Coronavirus and Travelling with Children

With many families getting ready for their Easter breaks, our family law team has seen a sharp increase in calls from worried parents.

In the current climate with the public understandably concerned about the coronavirus, parents need to remember that the decision to travel with children needs to be a joint decision made by all those who share parental responsibility.

We have seen a significant increase in calls from worried parents wanting advice on whether they should travel with their children without the need for updated consent from the other parent.

You should proceed with caution. It is a very difficult position with the WHO advice likely to change daily as the virus spreads.

Anyone concerned should contact our specialist family law team and seek legal advice before travelling.

Heterosexual Couples and Civil Partnerships

Campaigners for mixed sex couples seeking to enter into civil partnerships as opposed to marriage rejoiced when as of 31 December 2019 they could finally conduct their civil partnerships.The change in law was to address the imbalance between heterosexual and same sex couples, the latter of whom have been able to enter into either a civil partnership or marriage since March 2014 (those in Northern Ireland will be able to marry as from later this month – January 2020).

So what are the similarities and differences between marriages and civil partnerships and why do people continue to choose to legally formalise their relationship rather than simply cohabit?

Similarities:

The major and most important similarity is that both provide legal recognition to a relationship between two people. In turn both marriage and civil partnerships offer many of the same legal rights in respect of various areas of law including financial remedy claims against one another in the event the parties’ relationship breaks down, parental responsibility, inheritance tax and intestacy rights.

Both heterosexual and same sex couples may enter into a marriage in England, Wales and Scotland.

Differences:

The differences between the two are not significant, but here are the main points:

  • Civil partners cannot refer themselves as ‘married’ and married couples cannot refer to themselves as ‘civil partners’.
  • Civil partnerships are registered by the couple signing the civil partnership document as opposed to marriages where the couple exchange vows.
  • Both parents of the couple are named on the civil partnership certificate whereas only fathers of the couple are named on the marriage certificate.
  • In the event the couple’s relationship breaks down and they seek legal recognition of the same, the legal terminology for the two differ with a decree absolute/divorce being sought in respect of a married couple and a dissolution order being sought in respect of a civil partnership couple.
  • Some countries do not recognise civil partnerships.
  • Some associate marriage with patriarchy and a marriage can have religious connotations, whereas civil partnerships do not.
  • Given adultery is defined as ‘voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married’, this fact cannot be relied upon by same sex couples seeking a divorce or dissolution of their civil partnership (unless the sexual intercourse was with someone of the opposite sex). If a party believes his/her spouse or civil partner has had sexual intercourse with a third party of the same sex, then he or she can use this as an example of unreasonable behaviour.
  • Same sex couples who are in a civil partnership can convert the same into a marriage whereas the same is not true vice versa.

What if couples cohabit as opposed to marry or enter into a civil partnership?

Common law husbands and wives acquiring rights through their cohabitation is a myth. Couples can formalise their financial arrangements by entering into a cohabitation agreement, but this does not offer the same rights and responsibilities as married couples or civil partners.

Pre-nuptial Agreements and the Family Farm

If you have an interest in a farm and you are getting married, then you should consider a pre-nuptial or post-nuptial agreement. A pre-nuptial agreement is an agreement in writing which sets out what you intend to happen with your financial matters should your marriage break down.

A pre-nuptial agreement can take into account the complexities involved in owning and running a farm. We understand that a farm is not only a place of work; it is also a home and a family asset that the people involved want to protect for future generations. There may be several family members living on the farm and different businesses operating from it. Therefore, a pre-nuptial agreement can give a couple and potentially, the whole family, clarity as to the situation on separation.

In England and Wales, pre-nuptial agreements are not legally binding and in the event of divorce, the Court retains the ultimate decision making power as to whether the agreement should be upheld or given weight. However, in order to make sure any such agreement is given as much weight as possible by the Court, the parties must have a full appreciation of the implications of the agreement.

We would advise that both parties obtain independent legal advice and exchange full and frank financial disclosure. We would suggest that the agreement is signed no later than two months before the wedding to mitigate any potential future arguments that a party was pressurised into entering the agreement close to the wedding.

Therefore, if you are in the process of organising your wedding, consider a pre-nuptial agreement as part of your wedding preparation. If your wedding day is coming up soon, you can contact us to discuss a post-nuptial agreement; another type of agreement which sets out what should happen with financial matters on divorce. If you want to discuss this further then get in touch with one of our specialist family law solicitors who offer bespoke advice based on your circumstances.

Calling all Divorcees with Pension Attachment Orders

During your divorce did you secure a pension attachment / earmarking order (as opposed to pension sharing orders) as part of the financial settlement? Was such an order made before 6 April 2015? Then the Pension Advisory Group has advised that you should take immediate legal advice.

When your pension attachment order was made, your lawyer, actuary or financial adviser could not have foreseen the introduction and subsequent impact of the pension freedoms, which came into effect in April 2015. The exact wording of your existing pension attachment order, coupled with the terms of the financial remedy order, will be crucial in determining the effect of these freedoms. It is strongly recommended that you seek legal advice regarding the current order. You may need to take further steps to protect your position, including varying the order or preserving the pension by either injunction or suitable undertaking.

Pension freedoms

In summary, the “pension freedoms” allow pension members to have greater flexibility and access to their defined contribution (as opposed to defined benefit or final salary) pension schemes. This could involve payment of a lump sum when the pension member is 55 years of age or older in lieu of future pension income.

These changes may well impact upon the effect of the pension attachment order secured in the non-member ex-spouse’s favour. The pension member retains ownership and control irrespective of the percentage of the pension earmarked to the ex-spouse. It has been reported that some members have attempted to thwart the original intention of the pension attachment order by using this new flexibility. For example, if an order is silent on the issue then in theory the member could commute 100% of the pension fund into a lump sum and leave no fund available to pay the ex-spouse the anticipated pension income.

Notification of application to commute

If the member applies to have part of the pension commuted then the pension fund administrators should inform the ex-spouse of the member’s application. This should then prompt the ex-spouse to seek legal advice (as well as potentially financial advice) immediately. But this supposes that the pension administrators have up-to-date contact details for the non-member ex-spouse.

Contact us

At Lanyon Bowdler, we offer fixed fee appointments for new clients. We can advise you as to whether you are at risk if the above circumstances apply to you and you have all the relevant paperwork to hand. To make an appointment please call our Shrewsbury office on 01743 280280 and ask to speak to a member of our specalist family team.

The Rise in Number of ‘Rowing Parents’ Representing Themselves

In 2013 the government implemented plans to remove all legal aid available in respect of family matters; apart from people who have been victims of domestic violence who satisfy the means and merits test, and some funding has been made available for mediation. At that time the legal profession feared the implications of such a measure, particularly on the breakdown of the family, access to justice and the increased pressure this would have on the court system. It was felt that such cuts may be a false economy with more government spending needed in other areas such as on courts, social workers and other professionals who will have to intervene, support and help resolve matters without the assistance of the lawyers who would have previously represented parties.

The BBC has recently reported that six years later, Sir Andrew MacFarlane (President of the Family Division) has reported that there has been a significant rise in judges having to deal directly with ‘rowing parents’. He went on to say that many hearings could be avoided and called for a "public education programme" on how to be a parent after splitting up. One statistic provided in the Law Society Gazette last year reported that as many as 80% of family cases now involve one or more unrepresented parties. Not only do litigants-in-person take up more of the judge’s time, which can cause further pressure upon and delays with the courts, but parties are no longer benefiting from legal advice and support during the court process (which can be highly emotive) and thus might not be putting their best case forward.

Although judges and legal professionals would welcome a government review which may involve making legal aid available to more families in need, it seems unlikely that the previous system will be reintroduced in the near future.

What can you do if you have limited funds available?

In an ideal world everyone would be able to afford representation to ensure their case is properly presented and all salient points are considered by the court. But what can you do if you cannot afford to be represented throughout the entire process?

A little bit of advice and assistance can go a long way. At Lanyon Bowdler we offer fixed fee appointments where we can advise regarding the:

  • Court process;
  • Applicable law;
  • Likeliness of the court making certain directions and orders;
  • Preparation of application forms and statements; and
  • Representation at certain hearings.

In particular, many clients find a one hour fixed fee appointment at the outset of any proceedings extremely helpful and money well spent.

  • Look at all your options at the outset. Court proceedings should be a last resort and suitable mediation should always be explored and you can self-refer without the assistance of a solicitor. If you are of low means it may well be the case that you are entitled to legally aided mediation sessions. Other alternatives to mediation include family therapy and separated parenting programmes.

Lanyon Bowdler is a leading law firm in Shropshire, Herefordshire and North Wales. If you are in need of assistance with a family law matter, contact our specialist team of solicitors.

Calls to Reform Surrogacy Laws

The Law Commission has recently published its surrogacy consultation paper: ‘Building families through surrogacy: a new law’. Sir Nicholas Green, Chair of the Law Commission, has called the current laws governing surrogacy, "outdated and no longer fit for purpose". He highlights the increase of the use of surrogacy; criticising the current law and recommending ways to promote the interests of all, including the child.

Under the current law the ‘intended parents’ have no legal rights in respect of the child until a parental order is made. The Law Commission has proposed a change that would make intended parents the legal parents once the child is born, with the surrogate having a right to object within a short period of time. Other proposals include:

  • The establishment of a surrogacy regulator;
  • Removing the requirement of a genetic link between the intended parents and the child, where medically necessary;
  • Creating a national register, allowing children born of surrogacy to access information about their origins.

Lanyon Bowdler’s family department are specialists in their field and can advise those who are either considering, or have recently been involved in, surrogacy of their rights and responsibilities. If you or someone you know would benefit from an appointment with one of our specialists then please contact a member of the family team for further advice.

Early Intervention in Post-Separation Arrangements for Children

Soon to be President of the Family Division, Sir Andrew McFarlane, has recently voiced his support for the Early Intervention Project (EI) promoted by Dr Hamish Cameron.

The EI, amongst other things, focuses on how to manage parents’ expectations at an early stage in respect of the arrangements they put in place for their children.

Focus on reaching an early agreement

If parents are aware of the likely/possible outcome(s) of Children Act proceedings, then it may help them focus on reaching an early agreement which benefits everyone, most importantly the children.

Key to this approach is the idea that the judiciary issues guidance on what range of arrangements are considered the norm, (in respect of cases where neither party have raised any concerns in respect of safeguarding risks).

The judiciary has previously avoided publishing such guidance, as it is accepted that no two families are the same and thus the children’s needs and the final child arrangements order made is likely to be different for every case.

More focus on both parents having contact

However, over the last few years there has been more of a focus to promote both mothers and fathers having contact with their child, as it is assumed this is beneficial for the child unless the child would be at risk of harm.

This notion was further advanced when the Children and Families Act amended the introductory welfare of the child definition in October 2014, to include a presumption that it is beneficial for children to have both parents involved in their lives. All of which is great news for parents who are not having contact and feel they have a mountain to climb in order to do so.

Standing temporary order

During Sir Andrew’s key note speech to Families Need Fathers Conference he referred to other jurisdictions linking this approach with other steps. For example, the possible imposition of a ‘standing temporary order’ based on the norms for the age of the child in order to maintain some contact in the interim.

Currently the court can be reluctant to impose an interim child arrangement order where the parties are not in agreement, albeit such cases tend to be when safeguarding concerns have been raised by one of the parents.

Sir Andrew has said that he plans on discussing the above with a number of full time family judges in the coming future. He asserts that if there is significant support for the above proposal then he intends to take it forward. If implemented this could be a significant shift in the court’s approach and expectations of parties within court proceedings.

Unmarried Mother Wins Right to Claim Widowed Parent's Allowance

Siobhan McLaughlin, 46, won a Supreme Court battle to access widowed parent’s allowance for her bereaved four children.

Sadly her partner of 23 years and father to their four children had passed away in January 2014. Following his death she was told she was not entitled to bereavement payment or widowed parent’s allowance because they were not married. As they were only cohabiting she was not entitled to claim such benefits.

What Benefits Exist and Who is Entitled?

There are three payments available to the partners of those who pass away at a young age:

  • • a bereavement support payment;
  • • a widowed parent’s allowance; and
  • • a bereavement allowance.

They are paid for from the National Insurance contributions of the person who has passed away. The deceased may have paid significant sums of monies over their lifetime in National Insurance contributions, which would have gone towards qualifying for a pension in old age. If they die, some of those monies paid by the deceased are paid to their partner for their and their children’s benefit. Currently the DWP distinguishes between those parents who were married and those who were not. The latter not being entitled to make such claims.

Court’s Decision/Judgment and Potential Impact

The court declared the government’s refusal to pay the said benefits to Ms McLaughlin breached the family’s human rights and that the current law on the allowance is 'incompatible' with human rights legislation.

President Lady Hale said: ‘The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to, or in a civil partnership, with one another. The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent.’

‘It is difficult indeed to see the justification for denying people and their children benefits, or paying them at a lower rate of benefit, simply because the adults are not married to one another. Their needs, and more importantly their children’s needs, are the same.’

The court also said it is up to the Government to decide whether or how to change the law; however, its decision in this case will certainly put pressure on the government to revisit its policy and consider changing the same.

Child Arrangements Orders – “Live With” and “Spend Time With”

The question of which parent is more likely to get a Live With Child Arrangements Order (custody in old money) is an ever evolving one. Historically there was a presumption that young children needed to be with their mothers in their early, developmental years. But now, the courts have realised that the question is much more difficult to determine.

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The court has a presumption that it is better for a child to have the involvement of both parents in their life and that will further their welfare. The starting point is often the child will live with the parent they stayed with when the parties separated and spend time with the other parent.

How do the courts decide?

The courts will ask themselves a series of questions when faced with the decision of who the child should live with and spend time with, this is known as the Welfare Checklist.

Does the child have a particularly strong emotional bond with either parent? Is the child capable of conveying their views to a Court Advisor?

  • How old is the child, does the child have any special needs either physically, emotionally or educationally?

  • What will be the effect on the child of any change in the current arrangements?

  • Which parent is most financially and physically able to provide for a child's essentials, like food, medical care, shelter, and clothes?

  • What is the mental and physical health history of each parent? Is there any information that may affect the child (e.g., excessive drinking, history of violence, mental health issues of either parent)?

  • Will the child have to adjust to a new school, city, quality of life, and friends if living with one parent versus the other?

After asking these types of questions, the court will decide which parent should be given primary care via a Live With Order and how much time should the other parent have. As you can see, the questions are gender neutral, so no preference is given under the law to either parent.

What happens when both parents granted a Live With Order?

In some instances it may be appropriate for the parents to share care – they both have a Live With Order allowing the child to spend large blocks of time at one parent's home (like summer and winter breaks), and the rest of the year with the other parent.

  • If the child is able to convey their wishes and feelings then their views are relevant to the determination of their living arrangements and are routinely considered in a number of different ways.

  • At what age may their views be considered?

  • The court has to consider the views of the child conceivably from as soon as they can talk. The level of consideration and influence those views may have over a Judge however will be very much affected by the degree of maturity the child is assessed as having.

  • Their views are weighed in balance with the other factors in the Welfare Checklist

What rights do other family members have?

People frequently ask what are other member of the family’s rights, e.g. grandparents when the parents separate and they have been denied time with the child. The sad truth is that family members do not have an automatic right to contact with the child. However, family courts do recognise the invaluable role that relatives (especially grandparents) have to play and it is very rare that the court would refuse a grandparent permission to make an application to spend time with the child unless there is evidence that it would not be in the child’s best interests.

Even if the separation is amicable it is often advisable to have the arrangements recorded in a Parenting Agreement or Court Order. This provides both parents with a secure framework for the Child Arrangements to be recorded and to avoid any disagreements.

If you have are facing similar challenges to any of the points raised in our blog above, please contact the Child Law Solicitors at Lanyon Bowdler for further advice and assistance

Marriage Rates Fall Once More

The ONS has published marriage figures for the year 2015. This was the first full year that same sex couples were able to enter into a marriage. In 2015 there were 6,493 marriages between same sex couples. Marriage rates for opposite sex couples in 2015 were the lowest on record since 2009.

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Nicola Haynes, ONS Vital Statistics Output Branch has commented “Despite this overall decline, marriages in older ages rose; the number of weddings increased for men aged 50 and over and women aged 35 – 39 years and 45 and over”.

According to the statistics for 2016 divorce rates have also increased by 5.8% in comparison to the statistics for 2015. However, Nicola Haynes has said “The number remains 30% lower than the most recent peak in 2003”.

Why Should I Make a Will?

Your Will tells everyone what is to happen to your money, possessions and property after you die. If you don’t leave a Will (which is called intestacy), the law decides how your estate is dealt with, and this might not be in line with your wishes.

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The main reasons for making a Will are:-

  • A Will can make it much easier for your loved ones to sort everything out when you die, without a Will the process can be time consuming and more stressful. 

  • To appoint the person or people you would wish to act as the executor(s) of the estate (these are the person(s) who have the legal authority to deal with your estate)

  • If you don’t write a Will everything will be shared out in a particular way defined by the law, which isn’t always the way you might want. 

  • To leave something specific to someone in particular. 

  • Unmarried partners, including same-sex couples who don’t have a civil partnership, have no automatic right to inherit if there is no Will.

  • A Will is especially important if you have children or other loved ones who depend on you financially.

  • To appoint guardians who you would like to take care of your children if you die whilst they are under the age of 18. 

It is advisable to review your Will at least every five years or if you have a change in circumstance. This makes sure that it still adequately provides for your needs and to establish if there have been any changes to the law which might affect your Will.

Some such changes in circumstances that should prompt you to review your Will include, but are not limited to, the following:

  • If you get married – getting married will revoke an existing Will, unless it was made in contemplation of the marriage.

  • If you get divorced – in such circumstances your Will essentially remains valid but will be read as if your former spouse or partner has pre-deceased you. 

  • New children or grandchildren – to ensure they are included in your Will.

  • If someone named in your Will dies before you.

  • If an executor is no longer suitable, loses capacity, or dies – it is important that your executors are able and willing to administer your estate.

 

Common Law Marriage Myth

To mark cohabitation week in late 2017, Resolution commissioned a poll by ComRes. The poll was recently published and worryingly found:

“37% of British adults wrongly think it is true that unmarried couples who have lived together for more than 2 years benefit from what is known as “common law” marriage”.

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What isn’t protected?

It seems that nearly two fifths of the British public are unaware that cohabiting couples do not enjoy the same or similar protection to that given to married couples. For example:-

  • Property law offers less protection to cohabiting couples than couples that are married.

  • Following separation, a former cohabitee has no legal right to continue living at a property where they are not the named tenant or legal owner.

  • A former cohabitee has no right to pursue maintenance (other than child maintenance via the Child Maintenance Service) or a pension sharing order on separation. 

  • An unmarried father does not automatically acquire parental responsibility in relation to any child of the family unless he is named on the birth certificate.

How can a cohabitation agreement can help?

Those who are currently cohabiting or contemplating cohabiting with their partner may benefit from obtaining legal advice (especially if one or both parties are considering purchasing a property). Parties may further benefit from entering into cohabitation agreements which not only can regulate the household financial responsibilities between parties, but more importantly can also deal with what will happen in the event that the parties’ relationship breaks down. In the long term this may not only save the parties a lot of stress but also potentially save a significant amount of money which may otherwise be spent on costly court proceedings.

At Lanyon Bowdler’s Family Department we offer a half hour appointment from £120 inclusive of VAT or an hour appointment from £180 inclusive of VAT. During such appointments we can advise parties more in depth as to their current rights and also whether a cohabitation agreement would be to their benefit

Reflecting on Mediation

Family Mediation Week takes place from 22 – 26 January this year. It provides a helpful opportunity for both individuals and family practitioners to reflect on the benefits that mediation can bring for those attempting to find resolution at what is surely one of the most difficult and draining times of their lives; the breakdown of a marriage or relationship.

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Big decisions ahead

Not only does the ending of a relationship bring with it a huge emotional challenge, invariably there will be significant financial decisions to be made too, which will impact upon the entire family immensely. There will also be major decisions for a couple to make if they have children, regarding the arrangements for them. We as solicitors often see the real stress and anxiety that a divorcing spouse is faced with when contemplating the future on their own; ‘what will happen to the house?’, they may ask, or fundamentally, ‘where will our children live?’. Relationships with their soon to be ex-partner may be raw and couples may require assistance in trying to navigate a path through this unknown territory. This is where mediation, coupled with solicitor’s advice, can really assist.

What does mediation entail?

Mediation is a form of Alternative Dispute Resolution, meaning that it is an alternative option to going to Court. During mediation sessions, with the assistance of the professionally trained and independent mediator, couples will endeavour to discuss the options available to them, and hopefully reach an agreement in respect of their specific family situation, which is fair and with which both parties are content. The role of the mediator is never to make decisions for the parties but simply to help guide them, by providing information on legal principles they may wish to consider. They facilitate genuine and constructive discussions, giving the parties control of the decision made about their assets, their divorce or their children.

Always best to seek advice

Given that mediators cannot give legal advice, it is fundamental that individuals seek advice from their solicitor upon any agreement or proposals following a mediation session. There may have to be a number of sessions before an agreement can hopefully be reached. If the individuals are able to come to a decision, particularly in respect of their assets, then this will need to be incorporated by solicitors into a Consent Order, to become a legally binding agreement.

Mediation is of course not for everyone. However, it is important to remember that it is an option available for those who wish to attempt to resolve issues themselves, together , rather than asking a Judge to do so for them.

We have links with a number of Mediation Services and are able to recognise when this option may be beneficial to our clients, make a referral and provide the necessary legal advice to clients going through the mediation process.

For more information on Family Mediation Week, please visit http://www.familymediationweek.org.uk/

Cohabitation Awareness Week

Question - Common law husband/wife?

Question - Jointly own your home?

Question - Kids?

Question - Together over two years?

Question - Same rights as married couples?

Answer: WRONG!!!

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Forget the myths. COHABITEES DO NOT HAVE RIGHTS TO:

  • Maintenance.

  • Pension shares.

  • A different split of the home sale proceeds to reflect your needs.

  • A share of savings, investments or assets owned by your cohabitee.

Married couples enjoy these protections. In Cohabitation Awareness Week, shouldn’t you find out what you can do to protect yourself?

Telephone me, Lisa Grimmett, on 01743 280280 to find out more.

No Such Thing as a Free Divorce

I doubt I am the only one suffering from “election fatigue” and longing for 9th June. However, I was amused by the exchange during Wednesday’s televised debate, when Leanne Wood of Plaid Cymru pointed out to Paul Nuttall of UKIP that there is no such thing as a free divorce (in relation to the plans outlined for the UK’s departure from the EU).

Turkey voting for Christmas

To take her entirely literally, she has a point! Even if that turns out to be the only accurate thing said by any politician in the whole lead-up to the election (and I’ll leave you, Dear Reader, to be the judge of that) it’s fair to say that the people involved in divorce proceedings do nevertheless have a significant role to play in keeping the costs of the process as low as possible. The expression “turkey voting for Christmas”, to keep up the election theme, might spring to mind when a lawyer writes an article about how to pay your lawyer less, but essentially the solicitor should be as motivated to help the parties emerge with their dignity intact and a sense of mutual goodwill, especially when children are involved, as with the size of the bills delivered. This is common and commercial sense, in the short and long terms.

Mutual understanding

Whilst certain expenses, such as Court fees, Land Registry search fees, etc are largely unavoidable there is scope for sensible agreements to be reached over whether these should be split between the parties and in what proportion.

Forming a mutual understanding of what you both want to achieve before seeing the solicitor can also be a huge bonus in terms of everyone saving money later (even if meeting face-to-face is too emotionally fraught or impractical, polite and respectful email / text exchanges can help foster good communications that pave the way for sensible negotiations once a solicitor becomes involved). I am not suggesting that everything has to be agreed and tied-up before involving the solicitor since neither person should commit themselves to anything before getting advice, but even being able to identify the points on which you cannot agree is a useful exercise which reduces the amount of time spent in protracted meetings and correspondence with and between lawyers.

Mediation & Collaborative law

Mediation is a great tool for working through issues to try to reach agreement and the Courts now require parties to attempt it. The costs of a mediator are usually lower than a solicitor’s hourly rate, although both parties will need to seek legal advice on any agreement they reach in mediation, and there are proper measures in place to ensure the parties are physically safe.

Collaborative law serves a similar purpose and we are fortunate to have two collaboratively-trained lawyers in our Family Law team.

Dealing sensibly

However, with the best will in the world, sometimes it is simply not possible to reach agreement. Whilst that is not necessarily an indication that one or both are being unreasonable, starting court proceedings in such cases to deal with finances or children can, as counter-intuitive as it sounds, be helpful. Instead of funds being spent on correspondence and meetings which seem to be leading nowhere, those resources can be ploughed into getting a Court timetable and ensuring all the steps required are dealt with fully and thoroughly in order that the Court has everything it needs to be able to assist the parties. Dealing sensibly with Court proceedings and being open with your information can help to bring about settlements at the first, rather than third or fourth, Court hearing with very obvious financial advantages for both parties.

Personalised pricing structures

At the end of the day (to return to an expression much-favoured by politicians), whatever is spent unnecessarily on fractious proceedings simply means there is less available, financially and emotionally, for the parties to be able to move on and re-build after a difficult time.

We offer personalised pricing structures to give clients options and help them make the right decision about their case and their priorities.

A “Do-it-yourself Divorce” – Is it worth it?

Statistics released on 5 December 2016 by the Office of National Statistics revealed that, overall, the amount of divorces have been decreasing (demonstrated by a 3.1% decrease in 2014 compared with 2013, and a decline of 27% from a peak in divorces in 2003). Great news!

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However, despite the statistics, it is still an unfortunate reality that some marriages will come to an end, resulting in divorce. Going through a divorce is one of the most stressful life events an individual can experience, and will have an emotional, financial and legal impact on a person’s life.

There are costs associated with getting divorced too. The current fee to issue your divorce petition with the court is £550 (although you may be entitled to a partial/full fee remission, dependent on your income), and there are further court costs associated with resolving the related financial matters. It does not come as a surprise, therefore, that some individuals consider embarking on a “Do-it-yourself Divorce”, rather than instructing solicitors to act on their behalf. lawyers can see the thinking behind this decision – why would you want to pay a solicitor to do something that you may be able to do yourself, given the abundance of information available online? We have even discovered DIY Divorce Kits both in high street stores and on the Internet, costing between £19.99 – £40!

However, a “Do-it-yourself Divorce” may present unforeseen pitfalls. The following points are worth your consideration:

  • You will already be going through an emotional and stressful experience. By instructing a solicitor, you gain the advice and support of an expert acting purely in your best interests, and providing you with clear and realistic guidance which, in turn, should reduce stress for you.

  • Solicitors are not emotionally invested in your divorce or financial proceedings. We remain objective and sensible, offering the benefit of years of training and experience, without our judgement being clouded by emotion.

  • Divorce and related matters are technical legal proceedings. There are a number of rules and protocols that must be adhered to, including specific timings in relation to certain stages of your divorce or financial settlement. Solicitors will be well versed in these rules and protocols, thus avoiding any unnecessary delays or expense that otherwise may be incurred should you proceed without a solicitor. Without a solicitor, you may inadvertently be landed with an order for costs or fail to seek full costs and financial claims. Such mistakes can be expensive to rectify.

  • You can only rely on 1 of 5 facts to prove that your marriage has irretrievably broken down. Choosing the most appropriate fact, and ensuring that sufficient particulars are provided to prove that fact, is not always straightforward. We can advise on the best approach to ensure that your divorce is able to go through without problems.

  • A solicitor acting on your behalf can advise on whether alternative, non-court based ways to resolve financial and children matters are suitable. There are options such as mediation and collaborative law to support such situations and these processes keep costs down. Unfortunately, it is not always the case that matters remain amicable and a solicitor acting on your behalf means that you do not have to communicate directly with your ex-partner. We can ensure that you have a process suited to your needs, thus reducing the acrimony and stress experienced during the resolution of issues.

  • We are able to advise on financial claims within your divorce. For example, you may be entitled to a share of your ex-partner’s capital or pension, or even entitled to ongoing financial support (maintenance). A solicitor acting on your behalf will be able to advise how best to obtain a favourable outcome in relation to your finances, and protect you from what may be an inadequate of unfair outcome.

  • It is important that individuals consider reaching a financial settlement to deal with how the matrimonial assets are to be split. Even if you have agreed a financial settlement with your ex-partner, it would be difficult to guarantee that your ex-partner will comply with the agreement without a court order that is carefully drafted to reflect your intentions. Furthermore, failure to formalise a financial settlement by way of a court order may mean that your ex-partner is able to return at a future date and make a claim on your finances, even several years after Decree Absolute has been pronounced.

  • The formal court order reflecting your financial settlement is called a consent order. It is a complicated (and non-standard) legal document that should be drafted by a family law expert, and cannot be purchased off the shelf.

  • In summary, completing your divorce without the assistance of a solicitor means that you will miss out on receiving the expertise and knowledge that is essential when dealing with something as crucial as the breakdown of your marriage.

Lanyon Bowdler has a strong and dedicated team of family law experts with over 100 years of combined experience in family law. Most of our lawyers are members of Resolution and on the Law Society Family Law Panel. Two of our lawyers are collaboratively trained.

We offer affordable pricing options, with the choice of either hourly charges, fixed fees or a Pay As You Go arrangement. We will regularly update you in relation to the costs of your case, and are able to offer staged payment plans, should this be necessary. We will progress your divorce proceedings at the best pace possible whilst negotiating a fair financial settlement on your behalf. We will do the hard work for you, and will be with you every step of the way.

Fortunately, divorce is the least likely outcome for a marriage with the most recent statistics suggesting that 58% of marriages will not end in divorce. However, if you sit within the remaining 42%, the family solicitors at Lanyon Bowdler are here to support you. We have family law experts in each of our offices in Bromyard, Hereford, Ludlow, Oswestry, Shrewsbury and Telford, all of whom are ready to listen and provide clear advice in relation to your specific circumstances. We are here to achieve the best possible outcome for you whilst helping to make your divorce as stress free as possible.


*All data retrieved from the Office of National Statistics - https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2014

The Collaborative Approach

Following Lisa Grimmett's blog about Shropshire Collaborative Lawyers, She was invited to talk to Eric Smith, who hosts BBC Radio Shropshire's breakfast show, about how the collaborative approach works.

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Lisa explained the differences between mediation and collaborative law and how often the collaborative method helps with maintaining good relationships for the sake of children.

Thanks to BBC Radio Shropshire you can listen to the interview here.

Funding Legal Costs

During consultation with the judiciary and legal profession prior to the Government’s drastic cuts to family Legal Aid in 2013, many voiced concerns that the costs ‘saved’ on legal aid would simply be passed across to be borne by the Courts, directly and in practical terms, as they fought valiantly to deal with a deluge of unrepresented litigants.

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One party to fund the other party's legal costs

The Courts have adopted practices and systems for trying to help them without putting them at an unfair advantage over people paying for legal services, but there will always be situations where it is manifestly vital that a party has access to legal advice, even when they do not qualify for the very restricted Legal Aid still available, or do not have recourse to funds of their own.

In certain family law situations the courts can make orders where it is clear one party has the resources to fund their own representation and the other party does not, requiring one party to pay to fund the other party’s ongoing legal costs and, in some cases, costs they have already incurred.

The Courts will not treat such an application lightly and will need to be satisfied that the person seeking the Order has no reasonable access to other sources of funding such as credit cards, loans, savings or an asset against which borrowing could be secured.

Additionally their representative is expected to be very clear in the budget they present to the Court and the reasonableness of any intended course of action set out in that budget is likely to be scrutinised closely.

The Court does also have some powers to order the sale of assets prior to the final decision being made, to provide or free up future funds.

Lanyon Bowdler are very well-placed to assist clients in these circumstances.

We are one of a number of firms authorised by specialist and reputable litigation loan providers to carry out work funded by them. As such, we can assist a client to establish if they are eligible for the loan and, depending on the outcome, either work under the terms of the loan or provide firm evidence to the Court that a loan has been refused, as part of an application for an order for payment of their ongoing legal costs.

Likely to impress

Our unique pricing structure is likely to impress a judge faced with an application for such an order since the choice and flexibility of pricing options will give the Court a clear set of alternatives with which to work.

Our pricing is tailored to a clear breakdown of work likely to be required which also goes some way to assisting the Court to satisfy itself the proposed costs are reasonable to the needs of the case.

Latest News

22 Feb 2018

Funding Legal Costs

During consultation with the judiciary and legal profession prior to the Government’s drastic cuts to family Le...

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