When relationships and families are breaking down

It is always difficult when a relationship breaks down, no matter how ‘amicable’ a couple may be towards each other. There are lots of things to think about, particularly if there are children involved or financial issues to sort out.

If a couple is married (or in a civil partnership), a divorce (or a legal dissolution in the case of a civil partnership) might not be their first priority. Many people wish to postpone the divorce as it is simply the ‘dissolving of the marriage’. This could be for various reasons, for example:

• There are financial issues that take priority and need to be resolved first, before dissolving the marriage.
• The couple wish to focus on the best interests of their children and establish a routine of separated households before looking to formalise their separation.
• There may be religious reasons why divorce proceedings would not be appropriate.

Whatever the circumstances, it is possible for any agreement that is reached to be drafted up into a contract so that both parties are very clear about what financial arrangements have been made; and it can even include what arrangements for the children have been agreed.

This document is called a ‘deed of separation’. A deed of separation is contractually binding between the parties; however, it does not get sent to court. (The court is not able to make any final orders until divorce proceedings have reached the Conditional Order (formerly the decree nisi) stage. For some couples, however, it is important for them to have a very clear agreement as to what they have decided between the two of them.

The separation agreement can cover a range of issues that relate to the couple at the end of their relationship. These might include:

• What will happen to the family home? How will the mortgage and bills be paid? Who will live in it? Will it have to be sold? How will the sale proceeds be divided?
• Details of how children will be cared for including: where they will live; how time will be spent with both parents; how their financial needs will be met; and what educational arrangements will apply.
• What maintenance arrangements will apply and for how long?
• What happens to any inheritances and savings?
• How will personal property such as cars, furniture and valuables be treated?

If either party fails to honour the provisions of their agreement as set out in the deed of separation, the other party may take legal action. If the deed is not prepared properly, however, then it may not prove to be acceptable evidence for the court to uphold.

The advantages of a separation agreement

There are three main ones:

• It enables the couple to have both the financial stability and the time to consider things properly before taking any decision to divorce.
• It provides legal protection for both parties financially; verbal agreements can be challenging and difficult to prove or enforce. An agreement signed by both parties, however, is likely to be accepted by most courts.
• A separation agreement can help to speed up any subsequent divorce proceedings as many of the arrangements will already have been put in place by agreement. A solicitor can often use the deed of separation to help draft any final financial consent order that needs to go to the court as part of the divorce proceedings. As such it can also help to save costs.

For a separation agreement to be accepted as part of any divorce proceedings, the following criteria need to be demonstrated:

• That both parties took legal advice before entering into the agreement;
• That their respective circumstances are similar to when the agreement was made;
• That both parties gave full and frank financial disclosure.

To find out more about what can be included in a deed of separation and how best to go about putting such an agreement in place get in touch with our Family Law Team using the details below. We’re here to help and we understand just how difficult any type of break up is for everyone involved.

Divorce is understood by most people to mean the resolution of all matters that arise from the breakdown of a marriage. The divorce process, however, is simply the term for the dissolving of the marriage; converting a married person back to a single person.

If you are unmarried and simply living together, you need to be aware that there is no such thing a ‘common law spouse’ and understand that the law that applies to an unmarried couple is very different. If you are in a civil partnership – although the process is very similar to a divorce – the legal process involved is referred to as a ‘dissolution’ of the partnership, rather than a divorce.

No Fault Divorces
New ‘no-fault’ legislation was introduced on 6th April, which means married couples are now able to divorce more amicably, without assigning blame.

The changes to the Divorce, Dissolution and Separation Act 2020 enables couples to divorce on the grounds of ‘irreconcilable differences,’ either individually or together, and without pointing the finger of blame.

What has changed?
Prior to this couples had to state why they were divorcing, with the three most common legal reasons being allegations of the other’s unreasonable behaviour, allegations of adultery, or the fact that they have been already separated for two years, provided their spouse agreed.

Removing the need for evidence of one party being to blame for the failure of the marriage should reduce the acrimony and conflict that often arises during a divorce, and particularly when the fault-based grounds of behaviour and adultery are contested.

Before these changes, unless someone could prove there was adultery, unreasonable behaviour or desertion, the only way they could divorce without their spouse agreeing to it, was to live apart for five years.

How do you apply for one?
All applications will need to be made online via a divorce portal. The parties can submit the application for the divorce either jointly or individually, which is a crucial new feature. Whoever submits the application for a Divorce Order (‘The Applicant’) has to confirm that they have discussed the prospect of reconciliation. There is no longer an option for the other party (‘The Respondent’) to defend the divorce, which previously has been a huge point of contention. They will not have to agree to get divorced any more.

Why do you need a lawyer’s help?
We can guide you through the process and ensure that all of the relevant documents are completed correctly, and the timescales complied with.

What steps are involved?
Divorce used to be a two stage process, the decree nisi when the court is satisfied that the grounds for divorce have been proven, and then six weeks and a day later the application for decree absolute could be made.

These terms have changed. The first stage is called the Conditional Order, and the final stage is called the Final order.

How long do No Fault Divorces take?
There is now a minimum period of 20 weeks, between starting proceedings and applying for a conditional order. This has been introduced in response to concerns that the reforms make divorce a quicker and easier option for couples and has been designed to encourage ‘meaningful’ reflection.

Once the 20 weeks is up, there will then be a minimum wait of six weeks before a final order can be made, so divorcing will potentially now be slower than under the previous system.

Can you contest a No Fault Divorce?
It’s also no longer possible to contest a divorce, except on limited grounds, including jurisdiction.

If you need advice, please do not hesitate to get in touch.

The process of ending a civil partnership is known as dissolution. Before you can apply you must have been in a civil partnership for one year or more.

As with divorce proceedings, dissolving a civil partnership is done by the court. As part of the process financial provision can be applied for by way of maintenance, lump sum, property transfer, and pension sharing orders.

Also like a divorce, financial provision for any child or children of the family can be applied for.

There are three stages to dissolution:

• Completion of the dissolution petition form – this is sent to the nearest court dealing with civil partnerships
• A conditional court order – this is a document that states that there is no reason why the civil partnership cannot be dissolved
• A final court order is then applied for, which officially ends the civil partnership. This is granted assuming the court is satisfied that everything has been done properly.

If an unmarried relationship breaks down, neither party has an automatic claim for financial protection from the other, even if there is a traditional family set up whereby one party does not work to look after the children and has historically been financially supported throughout the relationship by their partner. There is no claim upon assets or property owned in the sole name of each party. The only claim that can be made is in relation to the home in which you live and only under very narrow circumstances.

Arrangements for children should be made between the parents directly if at all possible and child maintenance would be dealt with by the Child Maintenance Service (formerly the Child Support Agency).

Since 2013 same sex couples have been legally allowed to enter into marriage, giving them the choice to be married or have a civil partnership. If the relationship breaks down then the processes involved around divorce or dissolution are, in effect, the same as for a mixed sex couple with the same sorts of issues and considerations being involved.

If they are not married or in a civil partnership a same sex couple can find that ending a relationship can be particularly complex and difficult; particularly where children or finances are involved and no formal agreement – such as a cohabitation or prenuptial agreement – has been put in place. Same sex couples need to be aware of who are the legal, biological and psychological parents of their children and who has parental responsibility. For example, if a birth mother is not in a civil partnership or married to her partner then her partner will not be recognised as the other legal parent, it will be the biological father, unless a suitable parenting order is in place. (See Parenting and same sex relationships).

Resolution of financial matters upon separation or divorce is usually one of the highest priorities, alongside sorting out arrangements for any children. Indeed, the two often go hand in hand. It is always preferable if those involved can resolve matters by mutual agreement; and the first priority is to meet the needs of any children in the family.

Before either party can decide how finances should be dealt with, both parties must make a full financial disclosure of all of their circumstances.

Both parties must be aware that up-to-date financial information is required for everything that they have between them – whether it is owned jointly or individually; and that full disclosure of assets and liabilities is required. This will mean including valuations of pensions, properties, details of income levels, savings and more. It will also be necessary for both parties to have a good idea of their outgoings.

The division of matrimonial assets is not always 50/50, although this is usually the starting point. Every case, however, is different and there are a lot of factors to consider. In particular the type of separation or divorce that is sought is important. If a ‘clean break’ is wanted – rather than having one party paying spousal maintenance to the other (which is distinct from maintenance that is payable for children) – then the specific circumstances of the spouse will need to be taken into account. What is her/his earning capability? Is he/she close to retirement? What lifestyle has he or she been used to? Also, the circumstances of the other party have to be taken into account in terms of the situation they are in and what they can or cannot afford? These are just some of the factors that need to be considered when coming to any financial agreement.

If the couple are unable to reach their own agreement, we would always recommend that they attend mediation. This is because making an application to the court for resolution should always be considered as the last resort because the legal fees in litigation in relation to financial assets can be significant.

Therefore it is important for both parties to, at least, have legal advice concerning how the court might divide matters if they are unable to come to an agreement. There is a list of factors that the court must consider when deciding what an appropriate division of assets would be; knowing this can help both parties come to an agreement that can then be put before the court.

The financial aspects of a separation and divorce are dealt with separately and it is not automatically the case that just because divorce proceedings are issued that financial matters will be concluded. There must be a separate and clear financial agreement which can be incorporated into a court order to make it a guaranteed full and final settlement. Without that final court order, either party may make further claims against the other in the future.

Even if the assets in a marriage are small, without a final order either party is vulnerable in the future to a financial claim from their ex-spouse.

When parents separate it is vital that they prioritise the needs of their children to ensure that their children are not adversely impacted as far as possible in light of the separation of their parents.

The approach of the court would always be that it is a child’s right to have a good quality relationship with both of their parents provided it is safe for them to do so. Where there is dispute about what is in a child’s best interests, mediation would be advised in order to avoid litigation if at all possible.

There is no such thing as “custody” or “residence” or “contact orders”. Any application that a parent makes to court to resolve the way that their children spend time with each parent is called a Child Arrangement Order and this sets out how the children spend time with each parent, who they live with and how they spend time with the other. This can include what types of contact they can have, when those contacts can take place and how long they can last. Contact can include visits, written contact such as letters and emails as well as phone calls and texting.

In terms of financial arrangements for children a voluntary agreement is one where partners both agree the financial support to be made for the children. They are usually best written down.

A voluntary agreement can cover many things such as who will pay for what items. One parent, for example, could agree to pay the other parent for specific costs over and above any agreed or specified child maintenance payments such as holidays, education, hobbies and activities or clothing.

For guidance on the level of child support that can be expected – whether to pay or receive – use the Child Maintenance Service (CMS) calculator: https://www.gov.uk/calculate-child-maintenance

The court will only rule on child support if terms have been agreed or there are exceptional circumstances involved such as expenses arising from a child’s disability, maintenance for a stepchild or if a child or parent is abroad.

Although a grandparent has no automatic legal right to see a grandchild unless there is evidence of abuse or violence a court would not normally refuse a grandparent access to grandchildren.

If other issues arise in relation to other aspects of a child’s upbringing, an application to court can be made in the absence of the parents being able to reach their own agreement.

In all circumstances, the court will aim to makes orders which are in the best interests of the children.

It is important for any British national living abroad or foreign national living in England or Wales who is considering divorce or dissolution proceedings, to consider carefully the country in which the proceedings will take place.

Different jurisdictions have different approaches to the division of property and other assets as well as different attitudes towards, and treatments of, maintenance, pensions, trusts and childcare.

You may be able to start your divorce proceedings in the English legal system if:

• You and your partner have lived in England or Wales for six months or more
• You and your partner are resident in England and Wales
• Either you or your partner is domiciled in England or Wales

The country where divorce proceedings are first issued can affect which court has jurisdiction. Even if your divorce is processed in England and Wales, you may have to deal with various different foreign legal systems and processes to sort out overseas assets and childcare arrangements. This can get particularly complex where there may be property, offshore trusts or business interests overseas.

Another important and growing area of concern is the impact that relationship breakdown can have on childcare arrangements. Cases of children being abducted by one or other parent are becoming increasingly common. Also, if a parent wants to move overseas without the other parent they must have the written permission of the other parent or whoever has caring responsibilities. If this is not forthcoming they will need to get the permission of the court. In such circumstances clear legal agreements between the various parties are obviously vitally important.

Abuse takes many forms, including controlling or coercive behaviour, threatening behaviour to physical or sexual abuse. The government definition of domestic abuse is as follows :

“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, the following types of abuse:

• psychological
• physical
• sexual
• financial
• emotional

“Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.”

“Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”

Often, the police can assist in preventing and protecting you from domestic abuse by serving a Harassment Warning on the abuser or taking appropriate action depending upon the incident. If the police are involved and taking action, it may not be necessary to also apply to the court for Non-Molestation or Occupation Orders (more commonly known as injunctions). If, however, the police are unable to assist or if the abuse is subtle, a specific order may be required to set out the behaviour that is to stop. If the abuser continues to behave in the way prohibited by the order, breach of the order is a criminal offence and breaches must be reported to the police to enable them to take action.

At LCF Law we advise on all aspects of family law covering all the different situations that occur in relationships and the particular challenges faced when relationships break down.

We have extensive experience of all of the following areas of family and matrimonial law:

• Separation and divorce
• Financial arrangements and settlements
• Child law and childcare arrangements
• Civil and same sex partnerships
• Prenuptial and postnuptial agreements
• Unmarried couples
• Abusive relationships
• International family law

We can help with all of the following: initial mediation between parties; establishing separation agreements; arbitration; handling all aspects of divorce proceedings; and dealing with financial and any other arrangements post-divorce.

We act for many mid to high-net-worth individuals, business owners or their spouses. We regularly deal with complex financial settlement matters, including: pensions, corporate structures, off-shore arrangements, prenuptial and postnuptial agreements, and generational family businesses – including ones run by both spouses and ones where a spouse may be entirely financially supported by a family business. We have access to specialist accountants, valuers and other experts and we work hard to ensure that everyone is working together to protect your interests as much as possible.

We can help you to protect your assets during a divorce or separation and we can help you understand everything that you need to know if you are embarking upon discussions with your former partner. With this knowledge and our on-going support, we can help you both come to a financial resolution that you can put to the court as a full and final settlement, allowing you both to then get on with your new lives.

We can also provide advice with regard to the options available to you for financial support from your ex-partner/spouse, should you require it to remain in the family home until issues are resolved following your separation.

When parents separate it is vital that they prioritise the needs of their children to ensure that their children are not adversely impacted as far as possible in light of the separation of their parents. The approach of the court would always be that it is a child’s right to have a good quality relationship with both of their parents provided it is safe for them to do so. Where there is dispute about what is in a child’s best interests, mediation would be advised in order to avoid litigation if at all possible.

Our experts are very experienced in helping couples reach agreements in relation to child arrangements, either through mediation or by representing their interests individually.

We advise on many cases involving specific difficulties arising for children as a result of divorce or separation including specific issue orders, prohibited step orders, parental responsibility orders, custody and relocation applications and child arrangement orders (previously known as residence and contact orders).

We also help clients with child contact issues that arise months or years after a divorce. For example where one parent wishes to move with the child to another part of the UK, or to another country and international child laws are involved.

We advise on both pre and postnuptial agreements and how to make any such agreement as strong as possible.

The law that relates to those who cohabit, as opposed to get married, is very different from matrimonial law. If you are thinking of moving in with your partner but are not getting married, we can advise you on how your property and assets can be impacted, particularly if your partner is moving into a house owned by you. If you are buying a property jointly with your unmarried partner it is vital that you both take individual legal advice, particularly if you are not contributing the same amount of deposit.

If you have been affected by abuse in your relationship, we are here to provide help, support and assistance in protecting you and your family. If you are suffering from domestic abuse, our family team will be able to advise you on the options available to protect you which may include an application to the court for either a non-molestation order (an order prohibiting the abuser from behaving in the way set out in the order) or an occupation order (an order regulating the family home, to include eviction of the abuser) or both. (If the police are involved and taking action it may not be necessary to also apply to the court for non-molestation or occupation orders, more commonly known as injunctions).

We know that costs and fees are a major worry during times of relationship breakdown. We believe it is important to be as open and upfront as possible about the likely charges and costs involved. Wherever possible we aim to offer fixed fees for various services but this is not always possible due to the nature and complexity of a case – in which case we charge at an hourly rate. We will, however, always aim to give you a good indication of what we think may be involved based on our extensive experience and knowledge of your particular circumstances.

Fixed fee divorce

AT LCF Law we will undertake a divorce for a fixed fee of £1,900 (inclusive of 20% VAT and the court fee of £593).

The law has now changed and there is no requirement to state any reason or blame your spouse for why you believe the marriage has broken down and you do not have to be separated for a period of time. Either party can apply for a Divorce, and in fact, both parties can apply together if they wish.

We make a nominal fixed charge of £250+VAT at 20% (£300) for your first meeting which is usually with a senior solicitor or partner.  This enables us to explore your specific situation and provide tailored advice of how we can help and the likely fees going forward.   This charge will then be refunded in full to you, taken off your first invoice with us following instructions being received.  The fixed charge will be payable prior to or on the day of your appointment.

We are also now able to offer pricing options to our clients including hourly rates, fixed fees, capped fees and staged payments.  We will be happy to discuss this further with you at your appointment.

Throughout your case we will keep you fully informed on progress and will explain the likely costs and fees at every stage so that you know what to expect and what is involved.