Family Law – Frequently Asked Questions…
Family Law is a complex area, so receiving the right advice and guidance is important. Below our highly experienced team answer some of the questions they are asked on a regular basis.
What is Family Law?
This is the law relating to family matters encompassing divorce, separation, financial settlements, domestic abuse, and all matters relating to children including custody, contact arrangements, abduction, parental responsibility, guardianship, child abuse and neglect.
How much does a family solicitor cost UK?
Solicitors generally charge for their work on a time basis, so costs will tend to depend on how much time it takes to do work. Usually, charges are based on an amount per hour. Fees therefore will vary. If the divorce is contested then fees will increase dramatically. Dealing with the financial settlement is considered separately and so you will need to budget separately for these.
What does a family law solicitor do?
Family solicitors deal with legal issues that arise between members of the same family. They provide a formal setting in order to resolve disputes and if agreement is not possible can assist with representation in court.
What are the grounds for divorce?
In family law in the UK, currently there is only one ground for divorce which is that your marriage has broken down irretrievably, or in other words your marriage has broken down permanently and cannot be saved.
You can only get a divorce if you’ve been married for at least one year. To prove that your marriage has broken down irretrievably, you must establish one of five facts: adultery, unreasonable behaviour, desertion, living apart for at least two years and living apart for at least five years. However, “no fault divorce” will come into effect on 6th April 2022 which means that you will be able to get divorced without one person needing to lay blame on the other.
How long does a divorce take?
Generally 4 to 6 months, if you and your spouse can agree the reasons for the divorce and there is no financial settlement or issues with any children to agree. If there are, then the process could take longer especially if matters end up in court.
Do I have to go to court?
In a large majority of cases, it is unlikely that you would need to attend court. If you are getting a divorce, then there is no need to attend court as the whole process is dealt with using the online portal. Parties will only need to attend court if a financial settlement as a result of the divorce cannot be agreed. If the dispute is about the children, again, if parties can agree matters then court is not necessary.
It is only if there is any dispute about the arrangements for the children would there be any need to physically attend court. The family court encourages parties to resolve disputes by attending Mediation – another way of resolving a disagreement between parties – with the assistance of a Mediator, who is a third party who will not take sides.
A Mediator can help you reach an agreement about issues with money, property or children. You can try Mediation before going to a solicitor. However, if an agreement is not possible within Mediation or even with the assistance of a solicitor, then as a last resort court is going to be unavoidable. Taking legal advice at an early stage can often help to avoid contested proceedings.
What effect will it have if I move out of the family home before we are divorced?
If you jointly own the family home with your spouse or partner, you will not lose that legal interest if you voluntarily move out of the property. However, by moving out of the property you may lose control of the remaining household contents and you will need to ensure appropriate arrangements are in place to ensure the mortgage continues to be paid.
What if the marital home is not in my name?
If you are married, you will need to register what is known as your “home rights” in the property which in turn will give you rights of occupation to remain living there pending a divorce and financial settlement.
If you are not married, so in a cohabiting relationship with the legal owner, you do not have any rights to the property unless you have children together. In that case, you may be able to issue court proceedings to enable you and the children to remain in the property, or have it transferred into your name, until the children attain the age of eighteen years or complete their full-time secondary education. Thereafter, the property will revert back to your ex-partner and you will have to vacate it.
However, if you have made financial contributions to the property even if it is not in your name, then you may have what is known as a “beneficial interest” in the property. When the property is sold you will get a respective share of the net proceeds. It is always sensible to properly record your contribution in a document called a “declaration of trust”.
How much maintenance is a former spouse entitled to?
Spousal maintenance is when it is legally ruled that financial support must be provided by one spouse to another on the breakdown of their marriage. It is different to child maintenance, and it cannot be sought by unmarried couples. There is no set formula for the calculation of spousal maintenance. Instead, there are several factors to consider to determine how much and for how long spousal maintenance should be paid:
- Length of marriage
- Whether each party is working
- The age of the parties
- Who is looking after any children of the marriage
- Whether both parties can manage financially without spousal maintenance.
Generally, if you conclude that there is a shortfall between what the lower-earning spouse needs and their current income, which the higher-earning spouse can reasonably afford to meet, then you may decide to agree spousal maintenance on this basis, at least in the short term. However, if the lower-earning spouse can cover the shortfall themselves by increasing their income and/or reducing their outgoings in the immediate future, you may decide that spousal maintenance is not required.
If the lower-earning spouse is able to increase their income and/or reduce their outgoings in the future but needs a period of time to make appropriate financial adjustments, you may wish to limit the length of time (term of months or years) of spousal maintenance and/or reduce the amount paid in stages.
How can I protect my maintenance payments in case my former spouse dies?
The most obvious way would be for there to be provision made in your former spouse’s Will. However, upon divorce it is unlikely that your former spouse will have made this provision for you. Also, a Will can be changed without your knowledge so relying on a Will is not ideal. You can take out life assurance on your ex-spouse’s life, normally in the form of a Family Income Benefit policy, which would protect your maintenance on death. There are also critical illness and life insurance policies on the paying spouse’s life which may be available, as well as specific maintenance protection plans.
Is there a time limit for financial settlement after divorce?
In Family Law, there is no time limit to bring a claim for financial settlement after divorce, provided you have not remarried. Consequently, this could leave a party exposed to a financial claim being brought against them many years after the divorce proceedings have been completed. It is possible to terminate any financial claims by submitting an agreement to the Court for a global financial settlement which can include a clean break clause dismissing all financial claims.
How is money divided in a divorce?
Unlike child maintenance, there is no set formula for deciding what amounts to a fair financial settlement. The court will consider all of the circumstances of the case, taking into account a set of statutory criteria under section 25 of the Matrimonial Causes Act 1973. The court calculates and then distributes the parties’ assets between them to achieve a fair outcome. The courts’ first consideration is given to the welfare of any children of the family under the age of 18.
In summary the section 25 factors are:
- The capital and income resources available to the parties, either existing or reasonably foreseeable.
- Details of the financial needs of the parties, taking into account:
- their standard of living;
- their ages and the length of the marriage; and
- any disabilities.
- The court also considers the following additional factors:
- the respective contributions of each party to the marriage;
- the conduct of each party (although only in exceptional cases); and
- any benefit either party will lose as a result of the divorce (such as a spouse’s pension).
However, each case is looked at individually and on its own facts.
What is considered a fair divorce settlement?
The Court has a very wide discretion when deciding financial settlement cases, to consider the criteria under section 25 of the Matrimonial Causes Act 1973 and to decide matters based on what it considers to be fair. Whilst there is a starting point that assets should be divided equally, this can be departed from on the basis of need e.g. a party would not be able to rehouse unless they receive more than 50% of the assets. They encourage both parties to become financially independent as soon as possible, but sometimes this is not possible and spousal maintenance has to be paid into the future.
Do the grounds for divorce affect financial settlement?
The grounds used to base a divorce petition will not normally have any effect on the financial settlement. In very rare and exceptional cases conduct can be taken into account, but it has to be exceptional and there is a very high bar to cross for it to be relevant.
At what stage in our divorce do we need to agree a financial settlement?
A financial settlement can be agreed at any point once you have decided to separate. The court has the power to approve a financial settlement at any time after the Decree Nisi on the divorce has been issued. It is generally advisable (particularly where pensions are involved) not to apply for the Decree Absolute (the final divorce paper) until after a financial settlement has been approved by the court. If you remarry without having made an application for your financial claims to be determined, you will not be able to apply under the divorce legislation for a financial settlement thereafter.
Does there have to be a court order regarding the children?
It is important to try to agree arrangements amicably for the children if you separate from their other parent. There is no need for a court to make an order in relation to the children if you are able to agree the arrangements between you. In fact, the court has a principle of ‘non-intervention’ in respect of the arrangements for the children and they will not make an order unless they feel that it is in the children’s interest for them to do so. The court will not get involved at all usually unless one parent makes an application to the court for a specific order to be made to resolve the arrangements for the children.
If my partner and I separate, does there need to be a formal agreement regarding our children?
You do not need to have a formal agreement regarding the arrangements for the children when you separate although it is a good idea to agree matters such as where they will live, how much time they will spend with the other parent and what child maintenance will be paid to support the children. Some couples do find it is helpful to keep a written record of exactly what is agreed however so that this can be referred to by both parties.
What are the normal arrangements for contact?
There is no one right answer as to what contact arrangements should be on separation. Much will depend on the working arrangements of the parties, the ages of the children, the children’s school and other commitments and the location of the parent’s homes. Generally speaking the older the child is the more input they should have into the arrangements. The contact that the child has with their parents should be regarded as a priority to other commitments. The most common arrangements for contact often focus on the children spending alternate weekends with each parent, sometimes supplemented with additional mid-week contact in the intervening period. This gives both parents the opportunity to spend quality time with the children but also to have some independent time. Parents may also wish to consider what arrangements they wish to put in place for holidays, Christmas and special days such as birthdays, Mother’s day and Father’s day.
What happens if we cannot reach an agreement?
If you are unable to reach an agreement in relation to the arrangements regarding your child on separation either parent may make an application to the court for the court to determine issues such as with whom the child should live, how much time they spend with the other parent and specific issues such as what school the child should go to, what religion they should be raised in and if consent to medical treatment should be granted. The judge or magistrates will hear what the parties have to say and will often instruct a CAFCASS officer to speak to the children concerned to ascertain their wishes and feelings and to consider any welfare issues. The CAFCASS officer will also speak to the parties and make recommendations to the court in a report. The court will encourage the parties to continue to try to resolve matters by agreement throughout the court process but if this is not possible the judge or magistrates will make a decision on the issue in dispute and make a court order to confirm this.
Talk to Tollers
If you have a question regarding Family law, Talk to Tollers. Our long-established and well-respected team are on hand to answer your questions and guide you through.