Reasons to choose Wilson Browne
There are three broad categories to family law:
- Family relationships
- Property rights
Within these categories, family law covers a wide range of matters, including:
- Unmarried couples
- Cohabitation and property
- Arrangements for children
- Family mediation and other dispute resolution methods
Divorce and Family Law
With over 100,000 divorces a year in England and Wales, divorces are commonplace, but they can also be highly stressful for the parties involved.
Family law is central in divorce and related proceedings. Most divorces do proceed uncontested, not going to court. This saves on money and can help reduce stress and ill-will.
Divorce can apply to married couples whether different or same-sex or couples in a civil partnership.
It involves various proceedings:
- Divorce and decree – proceedings that dissolve a marriage legally
- Financial – proceedings to reach a settlement that separates finances, property and other assets
- Childrens Act – proceedings to resolve arrangements for children
The ground for divorce in law is the irretrievable breakdown of the marriage. It only needs 1 party to the marriage to believe the marriage has broken down irretrievably.
To start the divorce process, you must complete a divorce application and submit it to the court, along with your marriage certificate, the appropriate fee payable to the court (currently £5)
The court then issues the divorce application. The respondent (the other party in the divorce) will then be sent the divorce application and an Acknowledgement of Service form and has seven working days to sign and return it. If they return the form the party applying for the divorce then has to wait 20 weeks before they can apply for the conditional divorce order ( previously referred to as the decree nisi ). Once the conditional order has been made there is then a further period of 6 weeks to wait before the application for the final divorce order can be made ( previously referred to as the decree absolute )
If the Respondent fails to complete and return the acknowledgment of service form then arrangements will have to be made to personally serve the respondent with the divorce application. Once service has been proved and after 20 weeks, the application for the conditional divorce order can be made.
In practice a client would normally be advised to delay in applying for the final divorce order until the financial matters are agreed upon and recorded in a financial consent order which has to be approved by the Court.
Dividing Assets in Divorce
Dividing property and finance in a divorce can be complex and demanding. Each party’s solicitor will act in their best interests, but this can make negotiations difficult, and may mean proceedings end up in court.
You’ll need to provide details of your assets to your solicitor, before starting negotiations. If these are successful, you should submit a Consent Order, which you, your spouse and both sets of solicitors must sign.
The judge will only approve this order if they think all the terms in it are fair. If you can reach an agreement at this stage, you’re more likely to be able to keep your costs down.
Even if you do end up going to court, you can still settle your case by agreement at any stage. Always consider your option for dispute resolution before going to court. The court should always be your last resort.
To resolve financial issues, first, choose your solicitor carefully. Make a clear plan, and obtain reliable valuations for assets such as the family home and pensions.
Where there is a family business involved, you may need an accountant to provide a formal valuation.
Should negotiations fail, you’ll need to consider making specific court applications, which can cover:
- Lump-sum payment
- Maintenance payments
- Property adjustment order – transferring ownership
- Pension sharing order
Children and Divorce
Children can find themselves at the heart of the struggle when a relationship breaks down.
Where the children will live when couples split up can be a sticking point and one where family law solicitors need to become involved.
The Children Act 1989 covers living arrangements for children, helping to decide which parent they will live with, and when they can see the other parent.
Since 1991, when the act became law, the court no longer makes orders or enquires about children. The expectation is that the parents will agree on what’s best. The court will only become involved if it’s clear that an order would be better for the child.
If parents cannot agree on living arrangements for children, either party can apply to the court for an order covering:
- Child Arrangements – dividing the child’s time between parents
- Specific Issues – such as which school the child will attend
- Prohibited Steps – preventing one parent from doing something that is not in the child’s interests
Ideally, parents should use the support of a family law solicitor to agree on arrangements, rather than resorting to court orders.
Unmarried Couples and Cohabitation
For unmarried couples, the rules for property and financial separation are completely different.
Essentially, if the court finds no legal or beneficial evidence in an asset, it has no power to transfer it.
Neither party in an unmarried couple can claim for spousal maintenance, pension sharing or make a claim regarding assets such as property unless they can prove this legal or beneficial interest.
One area where unmarried couples can plan more successfully is to arrange a cohabitation agreement. This provides clarity, should the relationship break down in the future.
Partners who live together can make a cohabitation agreement, which gives clarity about issues such as ownership of assets and paying bills. The agreement will also be clear about what will happen if the relationship ends, basically agreeing on who gets what.
This is extremely useful in helping unmarried couples who separate avoiding expensive court proceedings.
Making a cohabitation agreement will also clarify matters should one partner pass away, helping to prevent any disputes arising over the estate of the deceased person.
Family Law and Children
Family law covers arrangements for children, and these arrangements do not only apply in the context of divorce.
A key aspect of family law regarding children is how it defines parental responsibility.
In many cases, parental responsibility is automatic, with the mother always having it and both parents having it if they’re married at the time the child is born.
However, a father can also gain parental responsibility by entering a Parental Responsibility Agreement or applying to the court for a Parental Responsibility Order.
For any children born on or after 1 December 2003, if the father attended the birth and was registered, they will have parental responsibility, even if not married to the child’s mother at the time.
If a child’s parents divorce and the court becomes involved, the judge will always consider what’s in the child’s best interests, taking various factors into account:
- The child’s wishes and feelings (appropriate to age and understanding)
- The child’s emotional, physical and educational needs
- Age, sex, background and other relevant characteristics
- What the likely effects would be from a change in circumstances
- Any suffering or risk of suffering the child could face
- The capability of each parent for meeting the child’s needs
A family law solicitor can help parents explore the options when it comes to making arrangements for children, ensuring that the child’s interests are at the forefront of any agreements.
Family Mediation and Resolving Disputes
Family mediation can be much better than going to court for couples in dispute.
As a family law service, it is often used to resolve a range of disputes concerning children, property and financial matters.
It is a voluntary process, which both parties must agree to first. Family mediation can:
- Reduce hostility and tension between parties
- Keep the channels of communication open
- Help parties in dispute make considered decisions that benefit the whole family
- Allow parents to show their children that they’re working together to resolve problems
Mediation works by providing a framework for discussions, aiming to instil confidence in both parties in the mediation process, to encourage them to commit to any proposals or agreements they make during these discussions.
The mediator has a completely impartial role, offering guidance and encouragement without taking sides.
The mediator will not direct participants towards reaching a specific outcome, nor will they offer legal advice. Mediation discussions cannot be used in any future court proceedings, but they can be the basis for finding agreement.
Should you choose mediation, the family law solicitor will provide you with information first and arrange a mediation information and assessment meeting (MIAM). If both parties are happy to proceed, you’ll then attend your first family mediation session. Subsequent sessions will explore and evaluate your options for dispute resolution.
There are other dispute resolution methods your family law solicitor can help with, including family arbitration and collaborative resolution processes.
Why Choose a Family Law Solicitor?
Using a family law specialist can help you resolve disputes, support you through your divorce, and enable you to make precautionary legal arrangements.