Our specialist experience in family law matters enables us to provide a highly personal service. Our aim is to help you resolve the consequences of the breakdown of a marriage or relationship through discussion and negotiation, avoiding the need for you to become involved in unnecessary and costly litigation.
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A couple can only start divorce proceedings if they have been married for more than one year. As the law presently stands, there is only one ground for divorce: you must show that your marriage has irretrievably broken down. In addition, it is necessary to prove one of the following five facts:
- Your spouse has committed adultery and you find it intolerable to live with them.
- Your spouse has behaved in such a way that you cannot reasonably be expected to live with them.
- Your spouse has deserted you and you have lived apart for more than two years.
- You have lived apart for more than two years and your spouse consents to the divorce.
- You have lived apart for more than five years.
It follows that, until you have lived apart for at least two years, it is necessary to rely on either (1) or (2) above, in addition to showing that the marriage has irretrievably broken down when presenting a divorce petition. The proceedings will take approximately six months to conclude. You are free to re-marry upon Decree Absolute. Financial matters can be resolved either before or after the Decree Absolute.
If your marriage has broken down, you do not have to start divorce proceedings unless you wish to – separation from your spouse can be an alternative.
If you and your spouse have agreed issues, a Separation Deed or Agreement can be drawn up and concluded between you. This is a contract between the husband and wife which deals with all aspects of the separation by agreement.
Judicial Separation Proceedings: This is a procedure very similar to divorce except that, at the conclusion, your marriage will not be dissolved and you will not be free to re-marry. To petition for a Decree of Judicial Separation you must prove the same facts as for a divorce outlined above. After making a Judicial Separation Decree, a Court has power to make Orders concerning property and other financial matters.
You and your spouse may be able to reach an agreement as to financial arrangements arising from divorce or separation, including maintenance and how property and other assets may be divided. If this is the case, the agreement may be recorded in a Deed of Separation or an Order approved by the Court and it will generally not be necessary for you to attend Court.
The Courts encourage the use of mediation or alternative dispute resolution. Before issuing applications for financial orders there is a requirement that you obtain information about non-court dispute resolution. If no agreement can be reached, applications can be made to the Court for periodical payments (i.e. maintenance), lump sum, property adjustment orders and orders in relation to pensions.
When making any decision relating to financial matters, the Court will have regard to all the circumstances of the case and put the welfare of any children first. We will advise you about these Court procedures including the preparation of Financial Statements, documents that must be disclosed and representation in Court if you are required to attend. We will also advise you as to the various orders that can be made by the Court including regarding the family home, maintenance and pensions.
A pre-marriage Agreement, also known as a Pre-Nuptial Agreement, is generally entered into prior to the marriage of the husband and wife. Such agreements can also be concluded after marriage and are then known as a Post-Nuptial Agreement.
Until recently Pre-Nuptial Agreements were not considered to be legally binding in English Law. Increasingly, however, the Courts have been prepared to take such agreements into account as one of the factors to consider when determining how finances should be divided.
A number of safeguards must be followed when such Agreements are prepared if the Court is to give weight to what spouses agree. These include ensuring that:
- there is provision for any children
- both parties have taken independent legal advice on the terms of the Agreement
- they have fully disclosed their financial circumstances to the other
- the terms of the Agreement are not unjust
- the Agreement has been concluded not less than 21 days prior to the date of the marriage.
The length of a marriage is also a consideration. After a long marriage, it may be considered unfair to hold parties to an Agreement which they entered into when contemplating an unforeseen future.
We can advise as to respective claims of former cohabitants on the breakdown of their relationship. Unlike the separation of a married couple or on divorce, there is no power to seek maintenance from a former cohabitant.
Claims may be pursued in relation to property in circumstances in which property is jointly owned or, if the property is owned by one former cohabitant, if there has been an agreement that the other will have an interest in the property, or the other cohabitant has contributed towards the acquisition of the property.
There are also obligations on unmarried parents to provide child support maintenance for the children of the relationship, either through the Child Support Agency/Child Maintenance Service or by application to the Court under the Children Act. We can advise on such matters.
In many cases, the police will assist when physical violence takes place between you and your partner or other family member. Any violent incident should be reported to the police as soon as possible.
In some circumstances, it is necessary for a solicitors’ letter to be sent to the violent person to warn them that, if their behaviour continues, Court proceedings may be commenced. In many cases, such a warning can be successful and prevent further violence.
Where necessary, application can be made to the Court for an injunction, which is an Order to protect you from further violence or harassment. There are two types of Orders that may be sought under the Family Law Act 1996:
- Non-Molestation Order – this will be an Order by the Court forbidding the violent person from assaulting, molesting, pestering or harassing the other person.
- Occupation Order –if necessary, a Court will make Orders which will restrict or exclude a person from a property if it is necessary for the health, safety or wellbeing of the other person or their children.
Injunctions are usually ordered to continue for a specified period of time but can be extended by further application to the Court.
The Children Act 1989 abolished the concept of ‘custody’ and ‘access’. The law provides that married parents both have parental responsibility for a child and will share decision-making. From December 2003, unmarried fathers whose name appears on the child’s birth certificate have automatic Parental Responsibility. This only applies to births registered after the 1 December 2003. The automatic Parental Responsibility can be terminated on application by a parent or with leave of the court by the child himself or herself.
The Court encourages parents to resolve any differences regarding their children themselves, rather than imposing Orders upon them. When parents cannot agree over arrangements for the upbringing of their children, the following applications can be made under the Children Act 1989:
- Child Arrangements Order – this Order can determine the parent with whom the child will live and/or what contact they will have with the parent or other family members with whom they are not living.
- Prohibited Steps Order – this is an Order preventing certain things happening to the child, for example, an Order preventing the child from being taken abroad.
- Specific Issue Order – the Court will decide important issues regarding a child’s upbringing such as his education, religion or change of surname.
There is a set procedure when one parent makes one of these applications about the future of their children. There will be a preliminary hearing before the Court and, if agreement cannot be reached at that time, the Judge will give directions requiring each party to file statements detailing their side of the case.
If, after further investigation, an agreement cannot be reached, a Court will then consider all the evidence together with the report and make a decision after a Full Hearing.
Special rules apply to people other than parents who wish to apply for an Order relating to children.
The Child Maintenance and Enforcement Commission (CMEC) is responsible for assessing the amount of child support maintenance which the parent who does not reside in the same home as the child after divorce or separation should pay towards the upkeep of the child.
In December 2012, the CMEC (now known as the CMS or Child Maintenance Service) changed the method of calculating child maintenance payments for new applications so that payments are based on the non-resident parent’s gross income. For income under £800 pw the calculation is 12% for one child, 16% for two children and 19% for three or more children. Additional rates apply for further income over £800pw which are 9% for one child, 12% for two children and 15% for three or more children. Under the new scheme, the upper age limit for the child is 20 years.
We will be able to give you an indication of the amount of child maintenance that CMEC will require the non-resident parent to pay.
Application can be made to the Court for one spouse to pay periodical payments (i.e. maintenance) to the other. The amount of maintenance will be based on the income and other financial resources available to the parties and their respective financial needs. We will advise as to whether the payment of spousal maintenance is relevant in your case and can advise as to appropriate levels of maintenance and the duration of such payments.
For all enquires relating to Family Law, please call 020 8429 1010 or email firstname.lastname@example.org