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Family Law BrochureMitchells Solicitors
Philip Chapman has specialised in Family Law for more than 28 years. He was one of the first 88 solicitors in England and Wales to become a member of the panel of specialist family lawyers accredited by the Solicitors Family Law Association. We try to resolve family law disputes in a conciliatory manner in accordance with the Association's code of practice. To deliver a specialist service of this kind can be costly. We try to keep the costs as low as possible. However please read what is said about costs in this newspaper article: "Pain-free parting". The first way we reduce costs is to set out some general information for you in this brochure. Secondly we try to save time by asking you to complete a Questionnaire. For this purpose you may need to write off for information. In relation to financial matters we ask you and your Spouse to complete a Financial Disclosure Statement (called a Form E) with all the relevant information. All this speeds up the case and saves a great deal of legal costs. Marriage Breakdown If you having matrimonial problems we will advise you about your options: Reconciliation - Councelling - Relate Separation - Deed of Separation - Judicial Separation Divorce Reconciliation We shall always help you consider whether there is a chance of saving your marriage and can put you in touch with various Agencies who may be able to help, including Relate. Separation Some people with matrimonial problems find it difficult to live together but are not ready for a divorce. They may be able to agree about the arrangements for the children, and the financial arrangements. We can help record this agreement in a written Deed of Separation so that both parties know where they stand. You or your Spouse may want a separation rather than a divorce, or a least defer a divorce until later. You may be able to reach agreement about the children and maintenance and other matters. If you can't, we may be able to help you to reach agreement by negotiating with your Spouse or his solicitors. Once agreement is reached we will prepare a Deed of Separation which both of you sign. This can included an agreement about maintenance or about other financial matters such as the marital home. However whilst it is much better than nothing, a Separation Deed can be altered later by a Court. For example, if you agree with your Spouse that there should be a clean financial break between you and this is put into a Deed of Separation, that will carry some weight with the Court, but will not prevent the Court from making different decisions if that seems appropriate at the time. A clean financial break may be achieved in a legally watertight way only by a Court Order made after divorce. Once that Court Order has been made it will be legally watertight subject to a number of very limited and rare exceptions. There are different kinds of clean break orders. Divorce You may apply for a divorce if you have grounds. There are five grounds: adultery, unreasonable behaviour, desertion (after two years), two years' separation with consent, and five years' separation. If you want a divorce before you have lived apart for two years, you will have to rely on adultery or unreasonable behaviour. We will prepare your divorce petition containing all the necessary information. The law requires that divorcing couples try to agree the arrangements for the children before starting the divorce. We will draft a statement setting out your proposals. We shall then send to the Court the Divorce Petition and Statement of Arrangements for the children. The court sends a copy to your spouse with a form to complete and return. This is called the acknowledgement of service. Once this form has been sent to court a copy is sent to us with an Affidavit. This is a sworn statement for you to sign which basically verifies the contents of your divorce petition. We then send this with another form to the court asking for the decree nisi of divorce. That is the first divorce decree. When this is granted, it means that you will eventually get your divorce, but you have to wait another six weeks before we can apply for the decree absolute which makes the divorce final. Provided that your spouse does not contest the divorce, it could take as little as four to six months in total to obtain your decree absolute - but this does depent on full cooperation from your spouse. If you are both agreed about everything including the costs, there will be no need for a court hearing. Legal Separation We set out below various reasons why divorce may not be appropriate for you:-
1. You may still hope for a reconciliation. 2. You may not have grounds for divorce. 3. You may have religious or moral objections to divorce. 4. Your spouse may have future prospects of inheritance. If so, it may be wise to defer any divorce, and therefore any financial settlement, until your Spouse has inherited. 5. A divorce could result in your losing the chance of obtaining a valuable widow’s or widower’s pension: this could be particularly important if you are retired or approaching retirement and your Spouse has a valuable pension.
If divorce is not appropriate you may still want a legal separation, often called a Judicial Separation. You may apply for a Judicial Separation from the Court on the same grounds as apply for a divorce. An application for a Judicial Separation gives the Court power to make various financial Orders between you and your Spouse. However unlike in the case of a divorce, the Court will not have power to make final Orders including the making of a financial clean break between you and your Spouse
THE CHILDREN You both have parental responsibility for the children which means that you both have all the rights and responsibilities of a parent. This continues after separation and divorce. The Court assumes that you both know what is best for your children and will not normally interfere unless you are unable to agree on the arrangements for them. If you cannot agree, either of you can apply to the Court for an Order resolving matters. We can help you do this. Disagreements commonly arise in relation to residence and contact and less often in relation to, for example, emigration abroad or education or change of name.
DOMESTIC VIOLENCE Relationship breakdown can be a particularly difficult time if one spouse is violent towards the other or towards the children. If you or your children have been the victims of domestic violence, we can apply for Court Orders to protect you including Non-Molestation and Occupation Orders. We can also put you in touch with other Agencies who can help you. A Non-Molestation order is an Order that your Spouse may not pester you or offer violence to you and so on. An Occupation Order is an Order that your Spouse should no longer live in your home or enter it or approach it. An Occupation Order is only made in fairly extreme circumstances. Breach of an Occupation Order or a Non-Molestation Order is contempt of Court. If proved it could result in your Spouse being sent to prison or fined. It can therefore be a very effective remedy.
If you want to obtain such an Order you must normally apply to the Court very promptly after the domestic violence has occurred.
THE FINANCES Whichever way you decide to deal with your matrimonial problems, you will need to make new financial arrangements for yourself and probably also for your (former) spouse. We can help you make short- or long-term arrangements for your home, savings, investments, pensions and debts. We can also help you decide how much each of you should contribute towards the cost of looking after the children and whether one of you needs extra payments from the other (i.e. maintenance).
We will need full details of your finances and those of your spouse. We will then help you decide on the best possible financial arrangements. If those arrangements can be agreed with your spouse, they can be confirmed by a Deed of Separation or by a Court Order made within Divorce or Judicial Separation, making the arrangements binding on both of you. We can prepare the Deed of Separation or Court Order. Usually the Court will approve an Order without anyone having to attend. However if your Spouse is not legally represented, there will normally be a very short court hearing so that the district judge can be sure that the proposed order is fair to your spouse.
Many people wrongly believe that once the divorce has been finalised neither spouse can make any further financial claims against the other. The Decree Nisi of divorce actually gives the court power to make financial orders. This power continues indefinitely after Decree Absolute until (and sometimes even after) remarriage. Without a divorce (and not always even then) it is not possible to obtain a Clean Break Order which prevents each spouse from making any further financial claims against the other.
If you cannot agree on the financial arrangements, we can apply to the Court for a decision. Even if your spouse is uncooperative, the Court can make sure that he or she abides by the Court’s decision. We will try to predict what decision the Court might make as soon as we receive detailed information about each party’s financial circumstances. Agreement is often reached even after applying to the court. We will continue to try to reach a favourable settlement to save you the costs and stress of Court proceedings.
Without detailed information about both parties’ financial circumstances it is hard for us to tell you what the financial arrangements ought to be after your separation or divorce. If you would like general advice on where you will stand financially after separation or divorce before deciding what to do next, please contact us.
Urgent financial advice When a marriage breaks down it can be difficult for people to trust each other. Sometimes one’s Spouse may act unfairly, for example, by withdrawing money from a bank account to prevent the other Spouse from claiming a share or by giving money or property to someone else, for example, a relative. If you believe that this may happen or has happened please contact us at once. If you wish we can apply to the Court for the money or property to be “frozen” or for the relative or other person to transfer the money or property back so that it is available for distribution as part of the financial settlement.
FINANCIAL SETTLEMENTS – THE LAW In deciding what might be a fair financial settlement between you and your spouse the Courts and therefore Solicitors advising you have regard to the following matters (not all of which may be relevant to your case):-
1. The first consideration is given to the needs of your children (if any) under 18. For this reason possession of the matrimonial home after a separation is often given to the spouse with whom the children live.
2. The income (including earning capacity), capital and other financial resources of each spouse including assets.
3. The financial needs of each spouse including household and other outgoings and debts.
4. The length of the marriage.
5. Your and your spouse’s ages.
6. The standard of living enjoyed during the marriage.
7. The contributions made by either of you including, firstly, financial contributions of income and capital and, secondly, contributions in looking after the home and bringing up a family.
8. Conduct of the parties if it would be inequitable to disregard it (but conduct is rarely taken into account).
9. Loss of pension rights; for example a divorce may mean that a wife will lose the chance of obtaining a widow’s pension and the law tries to compensate her for that (and sometimes the other way round).
10. The disability (if any) of either you or your spouse.
FINANCIAL SETTLEMENTS – THE PROCEDURE Once there has been full disclosure (see next page) agreement can sometimes be reached without issuing Court proceedings for a financial settlement. The Court can then be asked to make an Order through the post without a hearing. If agreement cannot be reached the matter goes to Court. The following is an outline of the Court procedure. In this summary it is assumed that the wife makes the application but the application can be made, by the husband or the wife or both.
It is also assumed that the claim will include a claim upon the matrimonial Home (whether owned or rented) or a Lump Sum Order or a Clean Break Settlement. For these and other Orders to be made, there needs first to be a divorce or, in the case of some orders, a judicial separation.
The wife’s solicitor sends to the Court a Form A. This sets out briefly the kinds of Order she wants. These could include maintenance for herself,(technically called periodical payments), maintenance for a child if the Child Support Act does not apply (for example if the husband lives abroad, or the child is over 19 or if there is a variation of an existing Order), a Pension Sharing Order, a Lump Sum Order or a Property Adjustment Order for example in relation to the matrimonial home. Other Orders can also be made.
If you have living with you a dependant child at school or university you will probably want your Spouse to pay maintenance for that child. Maintenance is normally assessed by the Child Support Agency (the CSA). The general rule is that the other Spouse (say the husband) has to pay to the wife with whom the child lives 15% of his net income if there is one child, 20% if there are two children and 25% if there are three or more children. The maintenance is reduced by 1/7th for every night in the week in which the child or children stay overnight with him. There are other details about child support which we can advise you of. Maintenance for a child is decided, in cases of dispute, by the Court where the Child Support Act does not apply (see above).
To obtain final Orders, for example for maintenance can take some time. You may need maintenance urgently if your husband no longer allows you to have access to a joint bank account. In this case you can apply for maintenance pending suit ie interim maintenance for yourself. This is quite quick and is especially useful if you also want maintenance for a child or children and the Child Support Agency has not yet made an assessment. This is because, before an assessment is made, the Court can award you maintenance for yourself which can include an amount of money for the child or children as well.
On receiving the Form A the Court will give to the parties notice of a Court hearing in about 12 weeks’ time. This hearing is called the First Appointment. Before the First Appointment each party must file at Court and serve on the other party a full statement of his or her financial position on Form E. The purpose of this is to disclose all relevant information (see the next page). Once the Forms E have been served, the other party can send a questionnaire to ask for further information and documents which have not already been disclosed by the maker of the Form E.
The First Appointment must normally be attended by you, your spouse and your lawyers. This is another opportunity to try to reach an agreement. If agreement is reached, then once the divorce has been pronounced a Court Order can be made (some Orders, eg for interim maintenance, can be made before the divorce is granted). If agreement is not reached by the time of the First Appointment, the Judge will then give directions for the future resolution of the dispute. For example the Judge may be asked to direct that the matrimonial home be valued at the parties’ joint expense. The Judge can also rule upon whether any questions are unreasonable. However, it is possible for these matters to be dealt with by agreement before the First Appointment.
The next appointment is the Financial Dispute Resolution hearing or FDR. As the name suggests, the purpose of the FDR is to try to resolve the financial dispute. Each solicitor outlines his Client’s case to the Judge. The Judge then normally gives a hint about what he thinks would be a fair settlement. With the help of that hint, the parties’ solicitors outside the Court room try to reach an agreement. In most cases agreement is then reached and your solicitor returns to the Judge who can make an Order by Consent. It is only if agreement is still not reached that the Judge will direct that the matter be set down for a final hearing.
Few cases go to a final hearing. If your case does, you and your Spouse will each need to give evidence. Evidence may be given by other persons, for example experts, although this is unusual. The lawyers then make speeches and the District Judge normally gives his decision the same day. That will be the end of the dispute unless either party appeals to a Circuit Judge, which is unusual.
THE IMPORTANCE OF DISCLOSUREWe are frequently asked why separating couples need to disclose full details of their finances when they have already reached an amicable financial agreement.
An example may help. Take the case of a wife with a small income and young children. The husband has made what appears to be a generous offer and the wife is keen to accept. The wife’s solicitor is instructed to settle the matter and draw up a Consent Order without obtaining financial disclosure from the husband. The reasons she may give are “I do not want delays”, “I want to get on with my life”, “I do not want to incur unnecessary legal fees”, “I know all about my husband’s financial position”.
The Law Society say that, if a Solicitor firmly believes that it is not in the wife’s interest to agree to the settlement proposed, he should decline to act any longer for the wife if she does not accept his advice. Once the Solicitor agrees to act for a Client it is implicit that he will use reasonable skill and expertise in performing his duty to the Client. In the situation mentioned above a Solicitor cannot discharge that duty without obtaining full disclosure of the other Spouse’s assets.
A solicitor cannot be sure that his Client is not being threatened by the other Spouse, is not being deliberately misled, or that the Client is not acting on the spur of the moment and adopting a course of action she will later come to regret.
It is therefore important for both the Client and the Solicitor that there is full disclosure at the time of the making of the agreement.
THE IMPORTANCE OF MAKING A WILL WHEN A MARRIAGE HAS BROKEN DOWN Legal proceedings within the family can sometimes have unexpected consequences. Most people know that the effect of a marriage is to revoke any pre-existing Will; fewer seem to know that divorce affects any pre-existing Will by excluding the former spouse, whether as Executor or beneficiary. This is only achieved upon decree absolute however. Whether or not you are applying for a divorce, once you have decided that you do not wish your spouse to inherit from you or if you wish to change what your spouse will inherit from you, you should make a new Will. If you have decided to remarry and wish your fiancé to benefit under your Will you can make a new Will which states that the Will is made in contemplation of your marriage to your fiancé.
If you would like advice about making a Will please make an appointment to see Shirley Sivil.
The following is an extract from The Times newspaper legal supplement dated 21st September 1999 which we believe you may find helpful:-
“Pain-free parting? Find a good lawyerand half the battle is won”
The right lawyer-client relationship is all-important to achieve a constructive and conciliatory approach and resolution. How can you ensure it doesn’t end in tears? And how do you get value for money from your solicitor?
Here are some guidelines:
· Going to an unnecessarily aggressive, non-expert solicitor may cost more than you bargained for, both financially and emotionally. The best approach is the iron fist in the velvet glove. The law does not apportion blame and there is no guilty party in divorce, so try to keep hostility to a minimum. Members of the Solicitors Family Law Association follow a code of practice that gives clear guidelines on avoiding hostility so, if you can, select one of its members.
· Don’t just go by the hourly rates quoted. An experienced lawyer who sorts out the essentials and works swiftly will be more cost-effective than a lawyer who charges a lower rate but who is more of a plodder and might be unfamiliar with certain issues relating to your particular case.
· Compile as much information as you can – such as details of bank accounts, investments, pensions, the mortgage, school fees and you general expenditure. Then prepare a list of issues that you wish to discuss with your lawyer. These measures save time and therefore costs.
· Keep your paperwork in order so it is to hand if you go to meet your lawyer or you need to discuss something on the phone.
· Avoid aggressive and insulting letters to your spouse. These only get shown to the lawyers and they will spend your money sorting out repercussions.
· Resolve arguments over the children without involving the lawyers. Rows over who is to wash the football kit after a weekend away will cost money.
· Try to resolve issues over the division of chattels between yourselves. One couple spent four hours outside court arguing over a silver-topped inkbottle which cost them thousands of pounds in legal costs on both sides.
· Finally, try to maintain a sensible perspective and a sense of humour. There is life after divorce.
Sue Bland and Kathryn Pleat –Authors and family law specialists.
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