Divorce
The breakdown of a marriage is invariably a highly emotional and stressful experience. We offer expert advice and extensive legal experience to help you at this difficult and unfamiliar time. We aim to achieve on your behalf the best possible outcome whilst keeping our costs to a minimum.
If you believe your marriage is at an end we can advise you whether or not to start divorce proceedings. Whether to divorce or not is a difficult choice and we will do our utmost to ensure you make the right decision.
Divorce is granted on the premise that the marriage has irretrievably broken down. The party initiating proceedings must be able to prove this irretrievable breakdown. One of the following conditions must be proven, namely:
• Adultery
• Unreasonable behaviour
• Desertion - continuous period of two years prior to the proceedings
• You have lived apart from your spouse for a continuous period of at least two years and
your spouse
agrees to the divorce
• You have lived apart from your spouse for a continuous period of at least five years
The grounds for a divorce often however prove to be unimportant when it comes to dealing with issues arising from the divorce such as finances and child issues. An undefended divorce tends to take up to six months from the commencement of proceedings to receiving the decree nisi from the court. The decree absolute which legally dissolves the marriage can be applied for six weeks later. In practice however the decree absolute may not be applied for until financial matters and all other issues have been agreed.
Separation agreements
Upon marriage breakdown some people may prefer to enter into a separation agreement rather than to immediately commence divorce proceedings. A separation agreement seeks to regulate how the parties to the marriage will manage their future family affairs. Commonly, such agreements deal with issues concerning the children, maintenance and the division of property. Expert legal advice is recommended in the negotiation of and drawing up of these agreements.
Child residence & contact disputes
Decisions regarding the future care of your children following a relationship breakdown are usually the most difficult to make. We aim to offer practical and sensitive advice in these situations.
Parental responsibility means that you are recognised as having the rights and duties normally attributed to a parent and are responsible for that child's welfare including education and medical treatment. Both parents automatically have parental responsibility for a child if they were married when the child was born. For children born after December 2003 a father not married to the child's mother and named on the birth certificate also has automatic parental responsibility.
The breakdown of a relationship often results in parents being unable to agree on arrangements that affect their children. In this event either parent can apply to the court to decide any issue about the children's care and well being.
Other orders that a court can grant under the Children Act are Prohibited Steps Orders and Specific Issue Orders. For example, a court can consider questions relating to whether children should be allowed to leave the country on a permanent basis.
We can offer expert advice and guidance to help you achieve the best outcome for your children.
Financial issues & settlements
Reaching a financial settlement is always a cause of considerable concern to anybody contemplating divorce proceedings. We have a great deal of experience in negotiating satisfactory financial settlements for our clients. We are accustomed to dealing with clients with complex financial affairs, including businesses, trusts and family settlements. Our main concern is to ensure that whilst robust negotiations are carried out, the proceedings are not unduly drawn out. If you have children their welfare will be a very important consideration in the financial settlement.
The first step to a fair settlement is to ensure we have a clear and accurate picture of the assets of each partner. This process is called disclosure. Both partners must make a full and frank disclosure of their financial position before negotiations can start. Once we have all the details of the assets, and agreed their values, we can then open negotiations to reach a settlement.
Most cases are settled by negotiation between the couple and their lawyers. It is sometimes necessary however, to issue an application to court to resolve a financial dispute so that use can be made of the court procedure. Sometimes this is required to force the issue of disclosure or to establish a reasonable time frame for the process.
Only a very few cases are actually resolved by a final hearing in front of a judge.
Court procedures
In divorce, judicial separation or the dissolution of a civil partnership, the court has the power to make a variety of orders:
• Periodical payments (ie maintenance)
• The transfer of property. This is where ownership of an asset is transferred to one
partner as part of the overall settlement
• The payment of a lump sum
• A pension attachment or pension sharing order. Divorce courts now have the power
to divide pensions between spouses and civil partners
The law sets out the criteria which must be taken into account when formulating financial settlements. There is no codified formula for the division of assets - it is a discretionary system. The primary consideration of the court is the welfare of any dependent children. The courts must also take into account, in respect of spouses and civil partners, your income and earning capacity, your savings, your housing needs, your pensions, the duration of the marriage or civil partnership, your health and any other circumstances of the case. The court is required to balance the criteria when considering the claims of each of the partners.
Different courts work to slightly different time-tables but generally you need to allow about a year to 18 months from the date when we make the first application to the final hearing.
Civil partnerships
Same sex couples are now entitled to register their relationship formally as a civil partnership. The effect of entering into a civil partnership with your partner is to place you in virtually the same position as a married spouse. You have a similar position on tax, state benefits, pensions, inheritance and immigration. Children born of either partner are treated as children of your family and the non-biological parent's relationship to the children is recognised in rights and responsibilities.
We can also act for you in the event that your civil partnership breaks down. In these circumstances you will need to apply for a dissolution, the equivalent of a divorce. We can assist you through the legal process of the dissolution and in sorting out your finances. We can advise you and represent you in the event that the arrangements for the children cannot be agreed.
Living together
Many couples choose to live together and not be married. In these circumstances divorce law does not apply but it does not make the breakdown of the relationship any less complex or less stressful for the parties involved. Often there are children involved and this will inevitably lead to the question of parental responsibility, residence and issues relating to contact. Where property is jointly owned complicated disputes can arise regarding the extent of each party’s ownership. It is imperative that you receive expert legal advice to protect your interests.
Prenuptial agreements
If you are planning to marry or enter into a civil partnership, you may want to consider a pre-nuptial agreement. A pre-nuptial agreement sets out what you and your future spouse or civil partner agree should happen in relation to your finances if your relationship breaks down and you separate. Generally you need to enter into the agreement at least three weeks before your marriage or civil partnership.
Whilst pre-nuptial agreements are not yet legally binding the courts do take them into consideration, providing that there have been no significant changes in your situation such as having children together or serious illness, and they meet the following criteria:
• You have both had independent legal advice
• You have both made full and frank disclosure of your financial position
• There has been no pressure brought to bear on either of you to enter into the pre-nuptial agreement
In the event of your separation, the court must consider all the circumstances of the case and decide what a fair outcome is for the parties. Although the court does not have to take the agreement into account, our experience shows that pre-nuptial agreements are becoming more relevant to the decisions made. If the circumstances haven’t changed dramatically or if the marriage is short a pre-nuptial agreement can be used as a starting point for negotiations.
Cohabitation agreements
Where couples live together without being married or for same sex relationships without entering into a civil partnership, invariably they do not realise that in law they have no legal rights as partners. There is no such thing as a common law husband or wife and even if you have lived together for many years you still have no legal rights as partners. As such you are not considered to be your partner’s next of kin and the consequences of this for your future need to be seriously considered. You need to ensure that you have provisions in place to protect your children, your property and your future wishes.
There are many areas in which we can offer help, from drawing up a cohabitation agreement on your behalf to drafting wills and setting up trusts. Putting these in place can help to avoid complicated disputes arising in the future and protect your long term wishes.
Harassment & domestic violence
If you are experiencing harassment or domestic violence, you need to seek help urgently. We can give you advice about making an application to court for protection. We know these steps are often taken in very difficult circumstances and we can help our clients through these stages. It is important to feel supported during this time. We are responsive in a crisis and can take immediate action.
Legally binding court orders can be made without the other person being informed of your application until after the court order has been made and served on them.
These are called non-molestation orders which prohibit the other person from using or threatening violence, being abusive, harassing or pestering you. The court can also make an order limiting and defining the occupation of your home. For example, it can exclude the other person from the home altogether, even if he or she is the legal owner of that home.
Every case is different. If you think you may be a victim of harassment or domestic violence you should consider:
• Reporting any incidents to the police
• Going to your GP or casualty if you have been assaulted
• Keeping any abusive messages that are left on your telephone
• Keeping a written record so that you can recall the dates and details of incidents
For more information please contact David Wade
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