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 parties with the assistance of their solicitors or through mediation and endorsed into a binding order by the court.

Maintenance can either be by way of Child Maintenance or Spousal Maintenance. The CMS (Child Maintenance Services, previously the CSA) are the body that is responsible for dealing with the majority of child maintenance, with some exceptions still being dealt with by the court. The issue of Spousal Maintenance is an issue considered when looking at a financial settlement, although it is only used in rare situations these days.

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. All divorce is now dealt with on a no-fault basis and it is possible to make an application jointly for such a divorce.

Separation 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 separation, 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 parent
• Discuss any concerns you have with the other parent 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

If an agreement cannot be reached regarding the arrangements for the children or there are safeguarding concerns, then it may be necessary to consider making an application to court under The Children Act 1989. 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. 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.

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 spouses 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.

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. 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 an initial fixed fee appointment so that we can offer some general initial guidance / advice and aim to give you reassurance of the possible process that lies ahead.