Family Law

If you have decided that divorce is the only option, you should consult a solicitor or Fellow of the Institute of Legal Executives ( FILEX) who is a member either of the Accreditation scheme of Resolution or the Law Society’s Family Law Panel or Advanced Family Panel. You can speak to one of our experienced family team by e-mailing us through our contact details.

Where there is a reasonable degree of co-operation between the spouses, it is possible to resolve all the issues around the finances by entering into a separation agreement (after a separation and before a divorce) to provide a measure of security until the finances are resolved once and for all during a divorce or by entering into a consent order during the divorce stage itself. A consent order is an agreement reached by the husband and the wife with the assistance of their solicitors or through mediation and endorsed into a binding order by the court.

The subject of maintenance can often be an emotive one and it is frequently a cause of ongoing friction between the parties. Men can resent paying and women can feel that it deprives them of a sense of independence. The question of maintenance is often inextricably linked with the division of the rest of the family finances, such as the family home and any savings or investments. In the case of an emergency where the husband leaves a wife who has little or no income of her own, it can be appropriate to consider applying to the court for a maintenance order in the short term to provide some income until everything else is resolved in the long run. However, whether a court orders one spouse (usually the husband) to pay maintenance to the other depends upon the consideration of a variety of factors known as the Section 25 Checklist. The starting point is always the respective incomes and outgoings of the spouses. Remember that it is the difficult task of the solicitors advising the parties (or the Court if an agreement cannot be reached) to create two households from the finances of one. A reasonable and fair division is required. A second major consideration is the duration of the marriage and the longer the marriage generally the more likely it will be that the Court will order maintenance if the spouse claiming maintenance has no earning capacity of her own. Maintenance can often be used in negotiations as a bargaining tool; one spouse may be prepared to forego a maintenance claim in return for a larger share of the family capital or family home. A frequent practice is for the court order “nominal maintenance” usually by agreement. Such maintenance, of 5p per year, is not expected to be paid, but its usefulness is to act as a gateway to an application for increased maintenance in the future if appropriate. Maintenance payments ceases automatically on the re-marriage of the recipient, but not upon the recipient starting a new relationship or living with another person, though such factors can be used to seek a reduction in the rate of payment in appropriate cases. We have discussed above maintenance for a spouse. A separate topic is maintenance for the children. A divorce court can deal with maintenance for school fees payments, step-children and children with disabilities, but otherwise, it has been many years since the divorce courts dealt with maintenance for children. The Child Support Agency’s remit is to pursue the natural fathers of children for maintenance. The based upon 15% of “the absent parents” net income for the first child, 20% for the second and then 25% for the third with discounting built in for other children dependant financially upon the payer. The minimum rate of payment is £5 per week. No account is taken off the income of the new partner or parent with day to day care (known as “residence”) of the children. Payments continue until the child’s 17 th birthday or 19 th birthday if the child is in full time education.

Divorce can have a profound effect on the children of a marriage who may experience a wish for family life to remain as it was, resentment to a parent who left them or to a parent whom they see as forcing the other to leave, or indeed guilt and the belief that what has happened may in someway be their fault. It is important to reassure children, especially young children, at this time and to explain as clearly as you can what will be happening and how it will affect them. Irrespective of any perception of “fault” which either spouse or parent holds towards the other, avoid it at this difficult time. Your children come first and cannot help what is happening. You may not be able to stop a divorce, but you can certainly influence the effect it has on your children.

• Be sensible, be mature and don’t make it any worse for them
• Co-operate with each other and with any arrangements you make with the other spouse
• Discuss any concerns you have with your spouse or if that is difficult, with your solicitor or any mediator if necessary
• Honour any obligations or agreements for contacts or visits, since failing to do so or surprise cancellations can be a source of friction and of disappointment in the children

The court is reluctant to get involved in the issues surrounding children, but will do if it is necessary and you cannot reach agreement yourselves. Under the Children Act 1989, the court can make four types of orders in relation to children, namely a residence order (specifying where a child should live), a contact order (specifying when, where and how the children can see a non-custodial parent), a prohibited steps order (such as to prevent a change of name or to prevent a foreign holiday) and a specific issues order (to determine a specific dispute, such as which school a child will attend). A court will consider the arrangements for the children before it makes a decree absolute and it is the duty of both parents to get their heads together and sensibly discuss issues surrounding residence, contact, schools, collection arrangements and care needs during those long school holidays.

The main asset of most families is the equity in the family home. The rise in national house prices in the period 2001 to 2004 has seen an investment in property outstrip nearly all other forms of investment. The court will be anxious to consider the needs of any children of the family first. A home must be provided for them and usually the parent with care of any dependant children has the greater call for a larger share of the assets. Orders available to the court are:-

• A lump sum order – where one spouse has to make a payment of capital to the other
• A property transfer order – where one spouse is ordered to transfer an asset, often the family home from joint names to the sole name of the other, sometimes in return for a lump sum order
• A sale order – where it is appropriate the home is sold and the shares divided, for example, where the house is too expensive to fund by either spouse on one income alone and maintenance is inappropriate
• An order varying a trust – such orders can alter the terms of distribution of an estate or the way title to property is held. Such orders can provide for a transfer of a right of occupation to the parent with care of the children, but provide that on the 18 th birthday of the younger child, the home is to be sold and the non-custodial parent paid a share of the value of the house.

Divorce causes heightened emotions and tensions within the family unit. It is often the start of the final chapter in weeks, months or sometimes years of ill-feeling to the other spouse. A divorce accepted as the only sensible solution by both husband and wife will be likely to be less painful both emotionally and in the wallet or purse, since divorces with the consent and co-operation of both are generally quicker and thereby cheaper. You can of course choose to resist a divorce you do not want, but will need to consider whether there is really any point. Will a successful resistance result in a happy marriage? Are you resisting simply to cause a problem for your spouse or out of a sense of injustice. If so, please think again and if you have children – put them first. If you can, avoid the so-called “fault” divorces of adultery and unreasonable behaviour. You may cause resentment in someone whose co-operation you may need in the future, (for example, over arrangements for the children/school holidays etc); if you can, rely on the “separation” grounds.

	PETITIONER	COURT	RESPONDENT
1	Sends divorce petition to court plus court fee £340*(exempt from fee if Legal Aid  applies)   (* fee at April 2013)	Issues petition. Posts a copy to Respondent and Co-Respondent if appropriate.	Has 7 days to return Acknowledgment of Service to Court. If not returned alternate methods of service must be used e.g. Bailiff Service.
2	Swears an affidavit in support of petition (stating everything in petition is true) and applies for decree nisi – £7 fee payable if not on Legal Aid.	Sends Petitioner copy of Acknowledgment of Service.	If Petitioner has not applied for Decree Absolute within 4½ Months of Decree Nisi, Respondent Can apply. £40 Court fee.
3	Wait 6 weeks and 1 day from date of Decree Nisi then can apply for Decree Absolute. £45* Court fee (exempt if Legal Aid applies). Decree Absolute Brings marriage to an end.    (* fee at April 2013)	Issues date for Decree Nisi and sends copy to both parties. Pronounces Decree Nisi.

Supplementary Notes

• The attached summary is an over overview of an undefended divorce.
• If your divorce becomes defended there will be a departure from this procedure.
• If the Respondent does not return the Acknowledgement of Service there will be a departure from this procedure.
• Generally, an undefended divorce will take 14 – 16 weeks from start to finish if all parties return all forms on time BUT if there are any departures from this procedure the divorce will take longer.
• If you are unsure about anything please ask your Solicitor.

Your solicitor would be best to advise you on the procedure for resolving the finances. It is not a matter in which “do it yourself” is the best option. An overview of the procedure can be provided however. Negotiations between solicitors or mediation can result in the identification and narrowing of some issues and the resolving of others. In the absence of agreement either side can apply to the court for “financial provision” as it is known. Trawling through the history of a marriage is best avoided at this stage as is the temptation to moan about the other spouse. There are three possible court dates to attend but each family breakdown will depend on difference facts and there may be more or fewer appointments in court.

1. At the First Appointment the husband and wife will be expected to have given the court full details of their own financial situation and will have an opportunity to question the finances of their spouse if appropriate.
2. At the Financial Dispute Resolution appointment the Judge will give an indication of what orders would be likely in the particular circumstances. If agreement is reached everything will be finalised at this appointment. If everything is not agreed there will be a Final Hearing.
3. At the Final Hearing each person will make their case, possibly with a Barrister to represent them, and the Judge will decide what the final settlement is to be.

If you and your spouse agree to a divorce, you need to decide who will do the divorcing. The person who brings the divorce petition to court is the Petitioner and the other person is the Respondent. Your solicitor should prepare your divorce petition for you. It is a technical document and we do not recommend that you do this yourself. The petition needs to be filed in the appropriate county court with your marriage certificate and a written explanation of your proposals concerning any children of the family under 16 or in full time education if over 16. This document is called a Statement of Arrangements and covers where the children live, what the schooling arrangements are and when/where contact takes place between the children and the parent with whom the children no longer live. The divorce petition and supporting documentation are filed in the court with payment for the court fee. The court sends the papers to the other spouse by post or by bailiff service if necessary. If another person has been named in the divorce (usually in cases of adultery) proceedings are served on that person too. The other spouse can then respond by agreeing to the divorce and filling in a form saying so, or by defending the divorce. He or she has an opportunity to respond to the arrangements suggested for the children (which is why it makes so much sense to discuss these beforehand). When you have received a written consent to the case going ahead, you need to complete a sworn statement before an independent solicitor identifying your spouse’s handwriting and signature. The sworn statement must then be returned to the court with a request that the divorce be entered into the special procedure list (though since almost all divorces go into the special procedure list, it is in reality the standard practice). A Judge then reviews any arrangements for the children and provided these seem satisfactory, the divorce can proceed. The case is given a decree nisi (or initial declaration of divorce) which can be made final after six weeks have passed. The final decree is the “Decree Absolute of Divorce” and you are both legally free to remarry at this stage, but not beforehand. If would be wise to consider altering any Will you have already made to take into account the divorce or to make a Will if you do not have one. (see our Wills and Probate page). It is the decree nisi which gives the court is wide ranging powers to deal with the family finances. You should also be aware that it is sometimes tactically advantageous to postpone application for the decree absolute, though the Respondent can apply for it to be granted after 18 weeks.

Family law is the area of law which deals with the separation of families. The legislation controlling divorce itself is to be found in the Matrimonial Causes Act 1973 which states that a marriage can be dissolved only if it has broken down irretrievably. In order to demonstrate irretrievable breakdown of a marriage it is necessary for the person wishing to start proceedings for divorce to show one of five sets of circumstances have occurred:-

• the other person in the marriage has (within the preceding 6 months) committed adultery or
• the other person in the marriage has behaved in an unreasonable way, or
• the other person has left the family home and the departure took place over two years ago, or
• both husband and wife agree to divorce and they have lived apart for two years, or
• husband and wife lived apart for five years. (It does not matter if the person being divorced does not agree to the divorce, though agreement does make matters easier all round in the long run).

If you think you were forced into a marriage by family pressures and/or you have not had sexual intercourse with your spouse, you may be able to obtain a declaration of the court nullifying your marriage. You should also be aware that you cannot obtain a divorce until you have been married for one year, but you may be able to obtain a declaration of judicial separation which gives the court similar powers with regard to finances and children as the court would possess upon a divorce.

Before you consult a solicitor about getting a divorce, you would be wise to consider whether there are any alternatives. Statistics show that many spouses who file for divorce come to regret it and many second marriages fail. Perhaps a period of separation or marriage guidance counselling would improve communication and understanding between the two of you and would resolve some of your differences. Perhaps external factors concerning money (or lack of it!) are causing strife. RELATE offer a counselling servivce and some disputes can be solved with a family mediator. Mediation is a settlement based on what is acceptable to both parties rather than based upon that to which the parties are legally entitled.

At Salmons Solicitors we believe that certainty is everything when it comes to legal fees, so we have intoduced a range of fixed prices. Expenses such as court fees and the like are extra and have to be set on a case by case basis. For economic reasons we no longer offer a legal aid funded service. On the 1st April 2013 the Government introduced devastating restrictions on the availability of legal aid for family disputes. It is not likely to be available to a client in the majority of cases unless the client meets certain very strict criteria. For details you should contact your nearest Legal Aid Agency office.

We offer two discount schemes. For NHS and Local Government Staff we can offer a 10 per cent reduction on our private hourly rates and our fixed fees in respect of the first £1000 of fees so this can be worth up to £100 plus vat on production of the staff card. This does not apply to the Single Fixed Fee. General Discount Price Reducer We have also now introduced a General Discount Price Reducer or GDPR scheme running initially only for a limited number of weeks. To those clients who sign our terms of business and can quote our General Discount Price Reducer Code (FAM-1-120), we will reduce our fees by 20%. We reserve the right to withdraw the GDPR schme at short notice so take advantage of this now whilst the scheme is still on offer and save yourself some cost ! The GDPR scheme also applies to the Initial Low Cost Discussion with Single Fixed Fee, all hourly rate work and all fixed fees too. You cannot use both the GDPR scheme and the NHS/Local Government scheme at the same time, however.

This is a get-to-know you meeting with procedures and options outlined and your most pressing questions answered. We can also explain the costs of other of our family sevices in which you might be interested. Some clients are bewildered and emotional when facing a family separation or a divorce and just want to explore options in more detail. In such cases this fee option may be for you which is a single focussed meeting lasting 30 to 45 minuutes for a set fee. The Initial Low Cost Discussion with Single Fixed Fee is as low as £116 including VAT.