ACT Family Law
ACT Family Law
plymouth devon

Family Law

Divorce and separation

The legal process of divorce or terminating a Civil Partnership is relatively simple: the personal effects are often complex and traumatic. How your solicitor handles the sensitive issues involved may have a significant effect on other aspects of the process, such as making the right arrangements for children, and settling financial issues.

Whether you want to know about divorce, termination of Civil Partnership, or separation, we provide clear constructive advice on legal issues as well as practical help as to how to address the many personal and emotional issues that you and your family may encounter.

We can assist you with strategies to help you to help your children, and we can refer you to mediators, counsellors and other professionals as required.

In England and Wales (Scotland has a different system), divorce is regulated by the Matrimonial Causes Act 1973 (as amended). The only ground for divorce is that the marriage has broken down irretrievably. This may be established by proving one of five facts:

The rules for termination of civil partnership are identical, except that there is no ground of adultery (although such behaviour would almost certainly qualify as “unreasonable behaviour”)

You cannot apply until you have been married for at least one year.

There are some alternatives to divorce, including Judicial Separation (similar to but not as extensive in effect as divorce), and separation agreements. These are not dealt with in detail here but we are happy to discuss them with you as appropriate.

Provided the divorce is not opposed and there are no disputes as to legal costs, the divorce process does not require you to attend at court for hearings, and it will take about six months in most cases.

More detailed information on the divorce procedure is available here.

Divorce financial settlements

Any divorce (or order ending a Civil Partnership) gives rise to the right to apply for a range of financial orders, collectively known as Ancillary Relief. The financial issues of divorce and separation are frequently the most difficult and emotive in relationship breakdowns.

We believe that balanced and thoughtful input will assist all of your family to come through these difficult times with the least possible stress, and the minimum of damage to the key relationships.

Ideally, you will agree what financial arrangements are to be made between you. These can then be incorporated into a “consent order” which then only requires formal approval from the court to make it binding on both of you.

There are five main types of order, and any particular case may involve any combination of these, or dismissal of the right to claim them.

Mediation or collaborative law may assist you in reaching a mutually acceptable settlement.

If you cannot agree a settlement, either of you may apply to the court to decide any disputed issues for you. The law sets out a checklist of relevant issues which the court has to consider.

The court procedure sets out various steps that you have to take, starting with providing the court, and each other, with relevant information about your financial circumstances, and documentary proof of the most significant matters such as the house, bank accounts, income and pensions.

There is a sequence of three hearings, (the first two may be amalgamated in appropriate cases) culminating in a hearing at which a court considers the written evidence, hears oral evidence from the husband and wife, and gives a decision which forms the final order.

The law sets out a list of relevant points which the court should consider on making an order. These include your ages, length of marriage, whether you have children, and so on. They are set out in more detail in the link below.

When negotiating, those same points will be relevant and form the basis of discussions.

More detailed information about what the law says about financial claims, and about the procedure by which the court makes its decision, is available here.

Cohabitation and living together

It is a common assumption that cohabitation gives rise to legal rights. This is inaccurate: there is no such person in law as a “common law wife (or common law husband)”, regardless of how long you live together. However, that is not to say that there are no potential legal complications involved in living together. Legal issues can arise whether you are a heterosexual or same sex couple.

Whilst cohabitation itself does not create rights, there are complicated provisions in property law which may give rise to rights between individuals living together, even when a person is not named as a legal owner. Complex issues may arise from property disputes between unmarried couples, so if you intend to live together and either or both of you own property, it is important to take advice to ensure that you do not risk a dispute at a later date.

Where children are born in a relationship, the law allows a variety of orders to be made for the child’s welfare and financial security. This may involve not only maintenance, but also capital provision, and even provision of a home during the child’s dependent years which may consequently benefit the parent caring for the child.

A cohabitee may have rights to provision from their partner’s estate on death, even though they would have no such rights during their lifetime. More detailed information is available here.

Cohabitation agreements

Cohabitees may legally regulate their property arrangements by written agreement. This may seem unromantic and overly formal, but failing to consider the issues at this stage may mean important matters are overlooked. Even if you do not want to enter into a formal agreement, it is advisable to consider your situation at or near the start of any cohabitation.

The process of considering what might go into a cohabitation agreement will often clarify rights and obligations in a way that can be beneficial to the relationship, resolve misunderstandings of the law and fact, and consequently avoid much distress and complication later on. Many of the issues arising from the breakdown of living together arrangements could be minimised or avoided by taking advice in the early stages of a relationship.

A Cohabitation agreement may be particularly relevant if you have previously been married, or involved in another relationship, and wish to ensure that your assets are safeguarded for your children or other family members or dependents as well as making relevant provision for your cohabitee.

Children

The law makes extensive provision for the welfare of children, both personally and financially. Modern law makes little distinction between children whose parents are married and those who are not, although there are minor differences in the way some parents can access the courts to make applications relating to children.

Much of the relevant law is contained in The Children Act 1989 which sets out some basic principles, the foremost being that the child’s welfare is the paramount consideration for any court dealing with child issues.

“Parental Responsibility” is an important concept in children law. Rather than parents having rights over a child, the law looks at their responsibilities to the child and the child’s welfare. Parental Responsibility means “All the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”.

Married parents automatically have equal Parental Responsibility. An unmarried mother automatically has Parental Responsibility, and a father not married to the child’s mother will automatically have Parental Responsibility if, for a child born after 1 December 2003, he is named on the birth certificate. Otherwise, unmarried fathers may acquire Parental Responsibility by mutual agreement with the mother by completing a Parental Responsibility Agreement, or by applying to a court and obtaining a Parental Responsibility Order.

Other people (such as step-parents) may be able to apply for and obtain Parental Responsibility.

Parental Responsibility gives the right to make particular decisions in relation to a child, and the right to make applications to the court about that child.

When a court considers a child related issue it has guidance in the form of The Welfare Checklist. The court must take account of:

The legal system stresses that it is preferable for the adults in a child’s life to try to reach agreement between them, and will only make an order where the court considers that it is necessary to do so.

The range of orders that a court can make is substantial, the most common being:

There are also financial orders that a court can make against a parent for the maintenance and care of their children. These may include maintenance (income) orders and lump sum orders. In some circumstances a parent can be required to make provision to provide a child (and the parent caring for them) with accommodation until the child is adult.

There are a range of orders that can be made on the application of bodies such as Social Services Departments, for example taking children into local authority care. These are referred to as “Public law orders”. Act Family Law does not undertake such cases. More detailed information is available: here.

Claims against wills and estates

English law provides a general right for any person to leave their assets after their death to whoever they wish. However, in some circumstances the law allows certain people, mainly spouses, dependant children and co-habitees to make a claim against the deceased’s assets if (in the judgement of the court) insufficient provision was made for them in the deceased’s will.

If the deceased made no will, their assets are distributed according to intestacy laws, essentially to their next of kin. However, this may be challenged.

Such claims may involve a number of people, those originally provided for who will lose out if an order is made, and those who hope to benefit from an order. Feelings often run high, and clear and careful advice is essential to ensure that cases are dealt with effectively. The costs of litigation may be met in substantial part from the assets which are the subject of the claim, so careful management is vital.

There are strict rules about who may claim, and different classes of claimants have different potential awards that the court can make.

There are strict time limits for claims to be brought: usually within 6 months of probate (or letters of administration being granted in intestate estates).

Pre-nuptial / pre-marital agreements, Pre Civil Partnership Agreements

Such agreements are not as yet automatically legally binding under English law, although they may be binding in a number of other countries. The court has the overall right to decide financial settlements. However there is increasing judicial recognition given to such agreements, and in a number of cases they have made a substantial difference to the outcome of divorce cases. They may be strong evidence of how assets came into the marriage, and that the spouses had intended to deal with them in a particular way.

An agreement may be particularly important to you if you have children from a previous marriage for whom you wish to try to make future provision from your assets. Agreements can also be significant if you are bringing substantial assets into a marriage which you wish to safeguard.

Post nuptial settlements

There may be times during a marriage where you wish to make binding arrangements in respect of financial issues. This may involve, for example, inherited assets, or where specific arrangements need to be agreed between you for defined causes. Post nuptial settlements may also be used as part of separation arrangements where divorce is not likely to be imminent.