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Safeguarding your children’s future when moving on

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This episode of Splitting Up dot pod hears the story of love after loss and the importance of good advice when it comes to wills and financially protecting the children from a previous relationship.

Family lawyer Joanne Major hears from “Elizabeth” who began a new relationship after the death of her husband and the father of her children, only to see it break down.

Joanne hears about the huge differences between “common law” relationships and marriage from Lucinda Connell, an experienced divorce and financial remedy solicitor and the importance of making a will from Christian Swinburne, a property and wills expert.

Transcript

Joanne 0:12

lHello and thanks for joining me again on SplittingUp dot pod where he hear stories from people who faced some big challenges while separating, and then talk to the experts for their thoughts and reflections on what happened. I'm Joanne Major, a family lawyer in the north east of England, and the creator of the website SplittingUp.com.

Joanne 0:37

I've just got to say at the outset, that as everyone's situation is different, although our podcast is intended to be helpfully informative and thought provoking, it cannot be taken as legal advice. For more information on this all-important disclaimer, please go to the website's podcast page.

Joanne 0:59

Today, we're hearing about the importance of seeking legal advice after a bereavement, even when you might think it's not necessary. "Elizabeth", not her real name, had gone through the trauma of losing her husband, and things were looking up when she met someone new. But as you'll hear, some well-timed legal advice protected her from losing even more when a new relationship fell apart.

Elizabeth 1:30

My name is Elizabeth and I wanted to share my story to help anyone who might find themselves in a similar situation to the one I was in. Without good legal advice, it could have been a very different journey for me.

Elizabeth 1:49

I met Peter at a very low time in my life. I'd just lost my husband unexpectedly, I was in my late 40s, both children were under 10 - so young, it was a devastating time - and I was at the most vulnerable period of my life. I didn't expect to be a widow in my 40s.

Elizabeth 2:12

Fortunately, my husband and I had both made wills, but even so it was so stressful and draining, trying to navigate the death administration process alone. Everything was a blur back then I just felt that I was on automatic pilot. I do however clearly remember being advised not to get married again without getting back in touch with a solicitor. I was warned it would affect me and potentially the children financially.

Elizabeth 2:47

I was deeply concerned how I was going to manage and unexpectedly Peter came into my life. My whole focus in the early years was bringing up the children without a dad. I didn't want them to suffer any more. At the outset, Peter seemed keen to take on that role and to give him credit, initially, he was very helpful and supportive with the logistics of family life.

Elizabeth 3:18

However, things were complicated dealing with a new relationship and a bereavement, working, juggling the needs of the children who had just lost their dad, and then also the competing needs of Peter and his expectations. It was often hard finding the strength just to keep everything normal.

Elizabeth 3:40

As time went on, Peter moved into my home - the children's home - a very big step for me and I accept it couldn't have been easy for him either, stepping into another man's shoes. We never did get married. I had a weariness of exposing myself to further hurt after the tragic circumstances in which the children lost their father. I also remembered the legal advice I'd received to touch base before embarking on a second marriage, possibly a subconscious red flag.

Elizabeth 4:16

Sadly, there were a lot of false promises made, a lack of emotional support, lack of financial support, lack of contribution, and slowly the dynamics were changing as the children were getting older, and indeed more protective of me.

Elizabeth 4:36

Things came to a head when my father became very ill. He had become the father figure to the children, and I could sense a further loss to them. They were going through public exams, my mum had developed the early signs of dementia, and I felt very alone - I didn't have anyone to turn to at that point. It was a very difficult time, a time I could have done with some emotional support to be honest.

Elizabeth 5:05

When my father died, it was the turning point for me. I knew Peter was never going to be that companion and best friend that I would have hoped for in a long term relationship. We agreed to part company which was a hard decision, but ultimately the right one for me. Fortunately, despite being very vulnerable, I had been careful to keep our financial affairs separate, so we didn't need to get into a difficult settling up arrangement when we split up.

Elizabeth 5:37

Things could have been very different if I hadn't taken good legal advice at the outset. In retrospect, had we been married, I could have jeopardised my children's financial future as well as my own.

Joanne 5:55

Well, that was a very moving and in some ways, a very inspiring story from Elizabeth, who's clearly had a very difficult journey. Today we're going to be looking at the difference between what sometimes known as a common law husband and wife - people who live together - and a married couple when it comes to separation.

Joanne 6:13

I'll be speaking to two lawyers with many years of expertise between them: Christian Swinburne, who is a property and wills expert, but first of all, Lucinda Connell, a very experienced divorce and financial remedy solicitor originally from Northern Ireland, who has been a family lawyer for 25 years. Hello, Lucinda.

Lucinda Connell 6:32

Hello, Joanne.

Joanne 6:33

We obviously heard Elizabeth they're explaining about her journey following the death of her husband, and she then entered into a new relationship with Peter, but she didn't marry Peter, she was living with Peter for a number of years before they split up. Could you just talk me through Lucinda, why is that relevant? Why does that really make a difference? A lot of people talk about common law wife and common law husband, which we know as lawyers is an unusual term, but really, I think what people are thinking about as people who live together, rather than those parties who live and get married, there is a big distinction in law, isn't there as to whether or not you are cohabiting or marrying. Could you just talk me through that a little bit?

Lucinda Connell 7:15

There is there's a huge difference. And I think it's one that people aren't necessarily familiar with even today, I still hear the reference, common law wife, common law husband frequently It's a concept that doesn't really exist. There is no such thing as a common law wife, you don't get an extra rights or claims because you've been living together for any specific period of time. And sometimes you could have lived with a partner for 20 years, had children and suddenly find yourself penniless, no home, no claim over your partner's pension. And I think it's important to highlight those differences because it's such a stark contrast to how married couples would be dealt with.

Joanne 8:02

So Elizabeth's case would have been very different, wouldn't it Lucinda, if they'd been married rather than just if they'd been living together?

Lucinda Connell 8:08

Yes, Elizabeth would have probably found herself in a much less favourable outcome had she and Peter been married. Very different laws apply for married couples and couples who live together. Couples who aren't married if their relationship breaks down, it's actually dealt with under civil laws and in the civil court. If a couple is married, then the financial issues arising from the breakdown of that marriage will be dealt with under family law rules within the family court.

Lucinda Connell 8:39

And for couples living together, the law can actually be really quite punitive. The starting point is that an asset owned in someone's sole name belongs to them, whilst any assets and joint names is divided, equally 50/50. And sometimes that can create significant unfairness.

Lucinda Connell 8:59

In Elizabeth's case, it worked well, Peter didn't contribute towards her home, and she was able to retain that. If Peter had contributed financially, he may well have been able to establish a claim or an interest in Elizabeth property, and given that it's civil law procedures that deal with it, it could ultimately lead to really very expensive, very difficult legal wrangling in the civil courts.

Lucinda Connell 9:26

I think the key point here, Elizabeth had had advice at the outset, and she knew how to protect herself, and I think it really stresses how important it is to make sure you have that advice, and consider some forward thinking. The circumstances surrounding a second marriage are nearly always more complicated than the first marriage. Often the parties will have children from a previous relationship to consider, and either a both of them may have wealth or assets which they had acquired prior to that second marriage. When you get married, your second spouse will be entitled to most of what you own if you die, or indeed a share of the assets if the relationship ends in divorce. And I think it's key to stress here that this could ultimately leave your children from your previous relationship with very little, or even nothing at all, without the requisite planning and taking good advice at an early stage.

Joanne:

I think sometimes perhaps when they're in the heyday of a remarriage, and maybe especially as children are approaching independence, that perhaps sometimes the children are overlooked in a sense of thinking: "how do I protect the children? Should the relationship go wrong? What happens if we do get divorced? What happens if perhaps one of us dies?" It's definitely a bit of a loophole that I think isn't really, there isn't enough consideration given to that.

Lucinda Connell:

I think it's really important to think about what might happen if that second marriage ends, perhaps by death, or by divorce. And it might seem difficult or pessimistic to start thinking about that in the happy early, early days of a promising relationship, but if you've already gone through a divorce or a relationship breakdown, you'll be aware that sadly, relationships do break down. And dealing with the issues arising from that can be stressful and painful.

Lucinda Connell:

You want to do all you can to avoid the stress and ensure that you and your children or perhaps grandchildren are fully protected in the event of another relationship breakdown. Even if you aren't planning to marry, there are still steps that can be taken to try to protect yourself and indeed children from a previous relationship, and one thing that I would recommend people look into is a cohabitation agreement or a living together arrangement. It's akin to a pre-nuptial agreement, which I think a lot of people will be familiar with, but it's for those who are simply choosing to live together. And that agreement can set out what they want to happen to their assets in the event of the marital breakdown.

Joanne:

And I suppose also in that situation of living together, it's pretty important, isn't it really to ensure that your state - your will and your affairs - are also considered?

Lucinda Connell:

Yes, that'sabsolutely correct. It's vital to make a will. And you need to be aware that any will made before the second marriage is invalid. If you have children from a previous relationship, you'll almost certainly want them to receive an inheritance in the event of your death. Be aware that on remarrying, your children or any grandchildren, will not automatically receive any of your hard-earned assets. Ordinarily, your assets or most of them, will automatically pass to your new spouse and their children rather than any children you might have.

Joanne:

So that sort of deals with safeguarding the relationship if it ended in death, but what about divorce? Is there any particular thing that we need to think about there?

Lucinda Connell:

Normally the matrimonial assets which the spouses will have are generally shared between them on divorce, and of course, if we're looking at second marriages, this can and often does include the sharing of assets which may have been brought into the marriage by only one of the parties. What that can mean in practice, is even if one party came into the marriage with a great deal of wealth, owning their own property, pensions, built up many years earlier, they are assets which could be shared ultimately with the other spouse. You may be keen to try to ringfence those assets, which were acquired some time ago, not least with a view to safeguarding these for your children's future inheritance, and there are options available to assist. Under those circumstances, I would certainly recommend the parties consider a pre-nuptial agreement, and that is an agreement between the parties, which effectively sets out what they would like to happen to their assets in the event of the relationship breakdown.

Joanne:

Can I interrupt you there Lucinda? Some people I think would they've read in the press in the media that these pre-nuptial agreements, are not legally binding. So what's the point? Or you know, sometimes people say these prenups aren't they just thing? Aren't they just a thing of the rich and famous and you know, if I don't have a particularly big estate, what's the point? So if they're not legally binding, and they're really just the playground of the rich and famous, what why did why do people bother with them? What what difference would it make having one or not?

Lucinda Connell:

That's actually not the case perhaps so much nowadays, and pre-nuptial agreements are increasingly common. It is true that a divorce court doesn't necessarily have to rely on that pre-nuptial agreement. However, the courts increasingly do if they're satisfied, both parties knew what they were getting into, they had some legal advice before the agreement was signed, and ultimately the agreement seems fair, which could take into account the fact that one party had built up a significant amount of wealth prior to that relationship. And it is undoubtedly better to have a pre-nuptial agreement in those circumstances than not.

Lucinda Connell:

And perhaps if I can add here, one other fact that people may be less aware of is you can actually have a post-nuptial agreement. So even if you're already married, and you think, "well, I would like to now consider what should happen in the event that we separate," you can have a post nuptial agreement, which is effectively the same as a prenuptial agreement.

Joanne:

I know that's very interesting, because I guess a lot of listeners maybe haven't even heard of what a post-nuptial agreement is. So I suppose is that a little bit then like correcting something that maybe you didn't think about at the time of a prenuptial agreement? So you're married and might have been for a year or two, and you think, oh, gosh, I didn't actually think about the children of my first marriage or following the death in Elizabeth's case of her first husband. But actually, it's something I want to think about now. It's a way of correcting that, I guess, is it?

Lucinda Connell:

That's absolutely right, and really takes us to the point, always take legal advice, and it's never too late to do so.

Joanne:

Thanks very much, Lucinda. So perhaps you could summarise for us all, in a nutshell, what the key steps would be for anyone to think about sort of, in this situation of a new relationship,

Lucinda Connell:

I think doing things exactly as Elizabeth did. And in a nutshell, careful planning, forethought and legal advice. And that's the key message I would ask people to take away. It might seem difficult raising issues of wealth and inheritance at the outset of a new relationship, but ultimately, planning ahead can prevent difficult and prolonged legal wrangling and arguments at a later stage, and particularly at that difficult time when the relationship may be breaking down, or you're suffering the pain of having long lost your partner.

Lucinda Connell:

I would recommend that you discuss the situation with your children if they're old enough, and be open with your partner about your concerns. Marriage or any long term serious relationship can prompt difficult conversations about family interests and current assets, wealth and inheritance, and people can be torn between wanting to provide for a new partner and protecting wealth for their children.

Joanne:

People don't always think about the what ifs and I guess, legal training - that's essentially the training that we've had for so many years, isn't it to Crystal Ball gaze and think about those things that may happen - how can you best protect that unknown? So thank you very much Lucinda today for that very helpful information, and if anyone has any questions arising from it or want to have a consultation with Lucinda, then please just head over to the splitting up.com website, and you'll find Lucinda's details under the expert divorce and financial remedy lawyer. Thank you again.

Lucinda Connell:

Thank you very much.

Joanne:

Let's dig a bit deeper now into the issue that listen to touched upon: that of wills, how important they are and how to get one. And so I'd like to turn now to Christian Swinburne, a property and wills expert.

Christian Swinburne:

Hi, Jo.

Joanne:

So today we're going to be looking at the wills aspect really in the main because of course we heard what Elizabeth was explaining there. Is thre something that you would like to sort of talk us through things as to what would those problems be? And what steps could you give to our listeners today that they could perhaps take if they were in a similar situation?

Christian Swinburne:

Well, Elizabeth's story is very sad, but sadly not that unusual. And it is quite common with second relationships. The big problem invariably is that emotions are often running high, the person who's lost a husband or who've been divorced, is feeling insecure anyway, and their concentration is trying to look after their family.

Christian Swinburne:

When another person comes into that realm, then it's very much a matter of splitting their loyalties between the new relationship and their original family, and it's essential that they do take advice before forming those relationships to put a protective coating around the family assets for the children just purely because the second relationship could go wrong.

Christian Swinburne:

And without any proper advice about wills or putting property in some sort of protective trust or similar, then everything could be lost for the original family. So making provision in a will is essential, not least, maybe for appointing guardians to look after the children if the mother or father dies, but also to make sure that the property and assets are protected for them moving forward.

Joanne:

So let's let's just be clear here then Christian, so somebody has a marriage following the death as in Elizabeth's case, or indeed, somebody's divorced and then remarries - if they haven't made a will, or updated or changed the well and they remarry, and that relationship goes wrong - so for example, it ends in divorce, or as I say, and God forbid, they unexpectedly died - if they haven't updated or change the world, but they've remarried, would that have serious consequences on the children of a previous marriage or relationship?

Christian Swinburne:

Absolutely, if you're if you're remarried, your spouse would inherit everything if you didn't have a will. So that could include the house from a former relationship, your children's family home, and any assets that belong to the previous family, they would all pass to the new spouse. And that's why it's very important to have a will in place and, and also to make sure that other people know about that will, to to ensure that there is protection for the children, principally.

Joanne:

So when you say about other people should know about it, I guess really, what you're saying is that there could be, for example, on a remarriage, rather unscrupulous spouse who in the event of unexpected death, could get rid of that will couldn't they, I suppose, and say there wasn't a will, if they were aware of adult children or minor children who potentially would benefit under it? What could you recommend people could do in those circumstances?

Christian Swinburne:

Well, that does and can happen and frequently does. And there is a will register - you can register your will at the National will registry - and that means that there is a national record of that will to give that protection.

Christian Swinburne:

The most important thing is to make sure if the children are adults, obviously, if they're children, you can't, but if the children are adults, to make sure that they know about the will and also perhaps have executors that aren't necessarily family members and make sure they know about the will and have a copy of the will as well.

Christian Swinburne:

And at that point, any professional drafting of a new will would always question the old well and why it's been changed, and it would mean that you can't just get rid of a will, because there's evidence that it existed.

Joanne:

That's really good practical advice, isn't it, that whoever's really named in the will or trustees or whoever you're placing your trust, you should ensure that they have a copy of what your intentions are. Just to prevent any unknowns?

Christian Swinburne:

Absolutely. People are very shy about talking about wills, because they think it's a private document and something that isn't going to come into force until they die. but fundamentally, it's important to discuss your wishes with all your family members, not just the ones that are necessarily going to benefit just so the family know what your intentions are.

Joanne:

And that's really helpful Christian, and I think it really sort of encapsulates really everything that Elizabeth was saying about the importance of getting legal advice. It's about not just thinking of your own new relationship, or how that may or may not end, but it's very much also thinking particularly about the children, and what would happen to them in the event of a second relationship, marriage or living together agreement breaking down, you need to protect their estate.

Joanne:

Just I suppose one practical thing, Christian, before we go and let you get back to the day job. Could you just sort of give us a rough idea on the sort of costs of drafting a will, I appreciate them, probably asking you to say, you know, everyone's circumstances are different, of course, but just a rough idea.

Christian Swinburne:

I think, unfortunately Jo, people are very wary of going to see lawyers because they think it's going to be expensive, but it's an old line that the most lawyers make money out of people who haven't made the correct provision, not not the other way around. A basic will, and not everybody needs a basic will, but a basic will starts at 150 pounds plus VAT. You move up the scale, but not very far, depending on what your needs are, but we'd like to talk through all the issues with our clients, and it may be a basic will is what's needed, but you've still talked through the process and work out what the family makeup is because if you don't know what the family makeup is, you don't know what protection and provision is required.

Christian Swinburne:

So we'd like to get to know our clients. We say we operate a cradle to grave operation, which sounds morbid, but it's a matter of knowing the family makeup and knowing how people tick to make sure that what they get is what they need.

Joanne:

That's great Christian, really, really good advice. Thank you. So thank you very much Christian for joining me today. And perhaps we can meet again Christian and talk about your other expertise which of course is in relation to property matters, which also, of course, can particularly impact couples following a breakdown of a marriage or a separation. So, thank you very much Christian.

Christian Swinburne:

It's a pleasure Jo.

Joanne:

And if any of our listeners have any particular concerns about their estate or how to protect their estate, then feel free to of course, get in touch with Christian - his details are listed on the expert site under the provision of real estate. So please do get in touch if you would like to have a consultation with Christian.

Joanne:

So that's it for this episode. Thanks to Lucinda Connell and Christian Swinburne, and of course to Elizabeth for sharing her story with us. It's often hard to talk about what we've been through, but there's so much that people can learn from the experience of others. If you have a case which you'd like to share, please do get in touch with me through the website, where of course there's even more information and lists of experts to contact. The website is of course SplittingUp.com. I'm Joanne Major, thanks for listening, and I'll see you next time.

FAQs

We guide you through the basics of family law by answering some popular questions regarding divorce, financial issues and children disputes.

Talk to an expert


Am I entitled to child maintenance?

Child maintenance is determined based on the paying parent’s gross income, the number of nights your children stay with them per week and whether the…

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Child maintenance is determined based on the paying parent’s gross income, the number of nights your children stay with them per week and whether the paying parent has to pay maintenance for any children they have with someone else.

Child maintenance will not be payable if:

  1. you share care equally with your child’s other parent;
  2. your child’s other parent is a full time student with no income;
  3. your child’s other parent is in prison.

Are children’s wishes and feelings taken into account?

They can be if they are deemed ascertainable which will depend on the age, level of understanding and level of maturity of your children. Even…

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They can be if they are deemed ascertainable which will depend on the age, level of understanding and level of maturity of your children. Even if taken into account, children’s wishes and feelings are by no means determinative, as the court realises that children often (a) don’t know what they want, (b) don’t know what is best for them and (c) sometimes say say different things to different people.


Are my rights dependent on my reasons for divorce?

No. There is now no need to cite any reasons for wanting a divorce as you simply need to declare that the marriage has broken…

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No. There is now no need to cite any reasons for wanting a divorce as you simply need to declare that the marriage has broken down irretrievably.


Are there any alternatives to divorce?

If divorce is not an option for you maybe because of, say, religious beliefs, it is possible to obtain an order for judicial separation or…

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If divorce is not an option for you maybe because of, say, religious beliefs, it is possible to obtain an order for judicial separation or a nullity order without having to prove that your marriage has irretrievably broken down. For specialist advice on the process and the effects of nullity and judicial separation speak to a specialist divorce and family lawyer.

Remember an alternative to divorce is also not splitting up. You could stay together and try to work on your issues. Speak to a relationship counsellor in confidence.


Can I change the locks? Can my partner force entry?

Can I change the locks? Technically, yes. Can my partner force entry? Technically, yes. Something to be aware of is that, if you and your…

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Can I change the locks? Technically, yes. Can my partner force entry? Technically, yes. Something to be aware of is that, if you and your husband or wife own the family home in joint names, they are not committing any crime by gaining entry to the family home. If you can no longer tolerate living with each other, it’s much better for you to agree temporary living arrangements that do not cause hostility.

If you don’t own the property jointly but you have registered a ‘homes right’ against a property you live in which is owned by your spouse, then the same response applied. You can change the locks, and the owning spouse can also gain entry to the property.


Can I choose my own solicitor or lawyer at a family law firm?

Sometimes. This will largely depend on the firm’s caseload and internal structure. Family lawyers usually co-work cases in small teams. A solicitor may handle your…

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Sometimes. This will largely depend on the firm’s caseload and internal structure. Family lawyers usually co-work cases in small teams. A solicitor may handle your matter on a day-to-day basis together with assistants, support staff and oversight from a partner or director. You would pay a blended rate for the time each fee earner’s spends progressing your case. If your matter is not particularly complex then there may be no need for you to pay the rates of a partner or director. If you are undergoing and international divorce or have complex financial affairs you may need to speak to someone with more experience which will naturally come at a greater cost to you. If you are offered a solicitor who is cheaper than your solicitor of choice, then it’s always worth considering it as you’ll save money and likely still have some input from your solicitor of choice. Family law teams chat with each other regularly.


Can I move abroad with my children?

You can relocate abroad which is also known as removing your child from the jurisdiction if all other people with parental responsibility for the children…

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You can relocate abroad which is also known as removing your child from the jurisdiction if all other people with parental responsibility for the children (usually the other parent) agree. This is unlikely and so most parents wishing to move abroad with their children are forced to make an application to the court. These applications are not straightforward. They can be costly both from a financial and emotional perspective and involve the court undertaking a finely balance assessment of whether a move would be in a child’s best interests. Parents wishing to move abroad must do their research before suggesting this to the other parent or to the court. Where exactly will you live? What will you do for employment? Who will pay for your living costs? Who will serve as your support system in the foreign country? What school will your child go to? How will you ensure that your children do no lose touch with their mother or father and that contact is sustained between them? Swathes of evidence will be required from the parent seeking to move. These are complicated applications that will usually require you to seek legal advice from a specialist family lawyer.


Can I move to another location within the UK with my children?

You can relocate within the UK if all other people with parental responsibility for the children (usually the other parent) agree. Again, as with moving…

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You can relocate within the UK if all other people with parental responsibility for the children (usually the other parent) agree. Again, as with moving abroad, if they don’t then you will need to make an application to court. As with all applications made regarding children, the court will consider what is in the children’s best interests. Detailed evidence will be required from the parent seeking to relocate. These are complicated applications that will usually require you to seek legal advice from a specialist family lawyer.


Can I remarry after my divorce?

Yes. Once you the final order of divorce has been issued, your marriage is terminated and you can remarry. Do pay attention to any financial…

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Yes. Once you the final order of divorce has been issued, your marriage is terminated and you can remarry. Do pay attention to any financial order you have agreed with your husband or wife / any financial orders that a court has made, as certain types of financial provision may come to an end on your remarriage. It may be a good idea to seek advice from a solicitor before you remarry to ensure that you understand what financial obligations from your former spouse will terminate as a result.


Can I take my children on holiday after separation?

Yes if: (a) your children’s other parent agrees; or (b) a child arrangements order specifying that your children are to live with you is in…

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Yes if:

(a) your children’s other parent agrees; or

(b) a child arrangements order specifying that your children are to live with you is in place. If it is, then you can take your children on holiday abroad for a period of 4 weeks or less. You could take your child abroad for longer if the other parent agrees; or

(c) where you do not have a child arrangements order specifying that your children live with you and where the children’s other parent does not agree, if you seek permission from the court (leave to remove a child from the jurisdiction).

Under the Child Abduction Act 1984, it is a criminal offence for parents to take their children out of the UK without consent from all other people with parental responsibility.


Can I take or make copies of my husband or wife’s private documents?

No. There is no right to self-help under family law in England & Wales. If you take a document belonging to your husband or wife…

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No. There is no right to self-help under family law in England & Wales. If you take a document belonging to your husband or wife spouse without their knowledge or consent, this is known as “self-help”. The court does not condone self-help to a spouse’s confidential information even where it is feared that a spouse will not provide full and frank disclosure.

Self-help takes place when a person without consent, obtains information or documentation that the other person did not give them access to. Confidential communications concerned with your spouse’s private life, including their personal finances and business dealings, are likely to be confidential. This could be if you read your spouse’s diary, open their letters or intercept their emails.

It follows that it is illegal for a party to examine, make, retain, or supply copies of confidential documentation to their solicitor where the contents of such documentation are considered to be confidential to their spouse.

If your spouse has always permitted you to look at their private communications during the relationship, you should expect this to change when your relationship breaks down. As such, you shouldn’t look at any private communications after the relationship has broken down without express permission to do so.


Can I talk to someone about divorce and what it means?

Yes, you can either search for your own solicitor or speak to one of the highly regarded specialist family lawyers that we would recommend.


Can we go for counselling during our divorce?

Yes of course. Your divorce isn’t final until the final order is issued and no one can blame you for wanting to be sure that…

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Yes of course. Your divorce isn’t final until the final order is issued and no one can blame you for wanting to be sure that you’re doing the right thing. Relate is an organisation offering relationship counselling for a whole host of issues. They have centres across the UK and a network of licensed local counsellors as well as phone, email and live chat counselling.


Can we share care of our children after our split?

Absolutely. You can agree this between yourselves or through solicitors. Shared care can never be exactly half of the year but it can come close.…

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Absolutely. You can agree this between yourselves or through solicitors. Shared care can never be exactly half of the year but it can come close. Do remember to consider who children will spend important days with. Will you alternative Christmases? Who will they spend time with on their own birthdays? Will they stay with their mother on mother’s day and father on father’s day? There are still a lot of considerations to think about. It’s important to be flexible but shared care can create a well balanced routine for all involved.


Do I get maintenance during and after my divorce? Do I have to pay maintenance for my spouse during and after divorce?

It depends. There are two broad types of maintenance: (a) child maintenance and (b) spousal maintenance. We’ll talk about spousal maintenance here. Have a look…

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It depends. There are two broad types of maintenance: (a) child maintenance and (b) spousal maintenance. We’ll talk about spousal maintenance here. Have a look out our children section for information on child maintenance which can be payable by the Child Maintenance Service or by Court Order, or in some cases both.

Spousal maintenance is an income order which requires one of you to make periodical payments to the other either for a fixed-term, until a defined date or, less commonly, for the rest of your lives. Spousal maintenance would be awarded where one of you is unable to support yourself i.e. your reasonable outgoings exceed your income and the other person is able to meet that need out of their income.

This sort of financial support can be reviewed if the recipient’s or payer’s circumstances change. Court’s can adjust the term for which maintenance is paid and the amount of maintenance paid.


Do I have to disclose all of my assets during a divorce?

Yes. Without doing so, neither your solicitors nor the courts will be able to assess fair settlement terms. You and your spouse have a duty…

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Yes. Without doing so, neither your solicitors nor the courts will be able to assess fair settlement terms. You and your spouse have a duty to disclose all of your assets in a manner that is full, frank and transparent. Your duty of full and frank disclosure is a duty owed to the court. You and your husband or wife will regularly be asked to sign statements of truth i.e. statements whereby you are telling your solicitors, your spouse and the court that all of the information you have included in a document or statement is true. Even if a financial remedy order isn’t imposed on you and you and your spouse agree settlement terms amicably, you will still have to complete a Statement of Information in which you are asked to confirm the full extent of your income and capital resources. You must sign this to prove that you have disclosed a full picture of your financial position. There are severe consequences for a person whose disclosure is found to be false:

  1. a financial order may be set aside;
  2. proceedings maybe be brought against you for contempt of court, which could lead to a term of imprisonment or to a fine;
  3. you may be penalised on costs meaning that you would be ordered to pay some of your husband or wife’s legal costs for financial matters;
  4. if you are deliberately untruthful in your disclosure, criminal proceedings may be brought against you under the Fraud Act 2006.

Do I need a solicitor or lawyer to get divorced? Can I conduct divorce proceedings myself?

It’s totally your choice based on your budget but there are obvious advantages of being represented by a specialist family law solicitor or lawyer. If…

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It’s totally your choice based on your budget but there are obvious advantages of being represented by a specialist family law solicitor or lawyer. If you and your spouse both agree that your marriage has irretrievably broken down, then you may feel confident enough to conduct divorce proceedings yourself using the government website. We would always advise speaking to a solicitor, at least in the first instance.


Do we have to sell the house?

Maybe. It will depend entirely on your circumstances and whether there would be enough money to meet both of your needs if you didn’t sell.…

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Maybe. It will depend entirely on your circumstances and whether there would be enough money to meet both of your needs if you didn’t sell.

Sometimes a couple live in a property that is much bigger than they really need. When they split up the court may want the house to be sold so that each can afford to live in a smaller property. This is very fact dependant, and it is a good idea to factor in the costs of buying and selling to see whether this is an affordable option.


How can we reach an amicable financial settlement?

Honesty and compromise. Often the fairest financial settlements don’t leave either party feeling particularly over the moon. Listen to the experts. If you don’t want…

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Honesty and compromise. Often the fairest financial settlements don’t leave either party feeling particularly over the moon. Listen to the experts. If you don’t want to follow their advice and simply want to agree “x” with your spouse, then you can still do so, the solicitor may just ask you to sign a disclaimer to acknowledge that they have advised you that what you are accepting might not be in your best interests. You may have considered the pros and cons and decided to cut your losses to make things go away. That’s your prerogative, but it’s much easier to be confident of your decision after speaking with a specialist family lawyer.


How do I find the best divorce lawyers in my area?

Usually, it’s best to do your own research through word of mouth, reviews and actually meeting your solicitor to see if it is the right…

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Usually, it’s best to do your own research through word of mouth, reviews and actually meeting your solicitor to see if it is the right fit. There are several good solicitors out there, but not every solicitor is for every client and vice versa. If you want to speak to one of the divorce solicitors that we deal with then you can free of charge using a free initial consultation.


How do I know if there are any assets to split during a divorce?

Do some digging. A good starting place is the court document known as the Form E (Financial Statement). The Form E asks you for various…

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Do some digging. A good starting place is the court document known as the Form E (Financial Statement). The Form E asks you for various pieces of information with documentary evidence in support. It will alert you to the information needed, for example, equity in any properties in your name, savings and pensions. Look through your bank statements as a reminder of your capital, liabilities, income and outgoings.

Even if you don’t have many or any assets to split at present, it is important to still seek to resolve financial matters by way of a clean break order. This prevents you having to look over your shoulder in case your former spouse seeks a financial order from you further down the line if you acquire assets after your marriage. Divorce in and of itself does not dismiss your ex’s financial claims until a final financial remedy order is made.


How do I start divorce proceedings? How do I apply for a divorce?

Divorce proceedings are commenced by completing a divorce application. You should be able to start divorce proceedings online: https://www.gov.uk/apply-for-divorce. The court charges a mandatory fee…

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Divorce proceedings are commenced by completing a divorce application. You should be able to start divorce proceedings online: https://www.gov.uk/apply-for-divorce. The court charges a mandatory fee of £593 for processing your divorce application regardless of whether you do it yourself or go through a solicitor. The court fee changes from time to time. If you are in difficult financial circumstances the court may allow you to reduce your fee, you should look at the ‘Help with fees’ application on the government website.


How do I stop my husband or wife getting anything in the divorce?

You can’t really. The court will be looking to achieve a fair outcome when it comes to splitting your assets. Even if your husband or…

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You can’t really. The court will be looking to achieve a fair outcome when it comes to splitting your assets. Even if your husband or wife agrees to take nothing or a limited amount after your split, you still need to inform the court of your asset base, income and the specific terms of your agreement. The court will not rubber stamp an agreement that is patently unfair.

The best option to minimise claims after a marriage or civil partnership is to enter into the terms of a pre-nuptial agreement. This won’t be endorsed by the court if the terms of the agreement are unfair, but it will prevent your spouse from taking a bigger share of your assets and income than they need.


How do I work out how much child maintenance I have to pay?

You can check this using the Child Maintenance Service calculator. Before you go onto the calculator, you’ll need the following details: your income including any…

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You can check this using the Child Maintenance Service calculator. Before you go onto the calculator, you’ll need the following details:

  • your income including any state pension;
  • any benefits you get;
  • the number of nights your child stay with you.

How do we deal with the children’s feelings during a separation?

Divorce or family breakdown can be very distressing for parents and children alike. Children need reassurance. They may be angry, confused and worried but it…

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Divorce or family breakdown can be very distressing for parents and children alike. Children need reassurance. They may be angry, confused and worried but it is important to stay calm when talking to them about your split. Focus on the positives and on the future. Give them things to look forward to. Remember the golden rules: never disparage their other parent(s) in front of them and don’t seek to use them as weapons during your separation or divorce.

Ultimately, you are no doubt going through an extremely tough time yourself, so do consider whether you could benefit from some external help. Your children could benefit from children and young people’s counselling.


How do we tell the children that we are splitting up?

Preferably, together. It can be a moment that you’ve dreaded for a long time but, if possible, it is useful to take one final united…

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Preferably, together. It can be a moment that you’ve dreaded for a long time but, if possible, it is useful to take one final united stance and tell your children your separating together. We realise that sometimes that just isn’t possible but you could also try to agree what you will say to the children, even if you’re saying to them separately.

Regardless, you will know your children better than anyone else, so strike an appropriate balance based on their age(s) and level of development but avoid overloading them with information they don’t need to know. Reassure and comfort them, letting them know that you’ll both always be there to support them.


How does child custody work?

The first thing to note is that the term “custody” doesn’t exist in England & Wales, it is more an American concept. We refer to…

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The first thing to note is that the term “custody” doesn’t exist in England & Wales, it is more an American concept. We refer to ‘Child Arrangements’, this refers to where a child lives and how often they see the other parent

A child’s welfare is paramount and, whilst the courts would much rather you as parents agree on any decisions regarding arrangements for your child’s care, any decision the court is forced to make about where a child will live and who they spend time with will be determined based on whatever is in the child or children’s best interests. What is in the best interests of children in one family may not be in the best interests of children of another family. There is no one size fits all.


How does the divorce process work? What are the stages of the divorce process?

For an application where one spouse filed the divorce application it is as follows. Divorce application is served on (sent to) your husband or wife,…

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For an application where one spouse filed the divorce application it is as follows.

  • Divorce application is served on (sent to) your husband or wife, (the Respondent);
  • Respondent completes and sends to the court an Acknowledgement of Service form;
  • 20 weeks after the date the divorce application was issued the applicant applies to the court for a conditional order of divorce (formerly known as the decree nisi). This states that, based on the information and documentation that the court has seen to date, the court is willing to grant the applicant a divorce in due course.
  • The conditional order is made by the court;
  • Six weeks and one day after the conditional order is made, the applicant may apply to the court for the final order terminating their marriage (formerly known as the decree absolute).
  • The final order of divorce is made and the marriage terminated. This essentially replaces your marriage certificate and acts as formal proof that your marriage is dissolved.

The process is slightly different if you and your spouse agree to file a joint application for divorce. Although the conditional order and final order stages are the same, the court doesn’t require the second applicant to complete an acknowledgement of service form. Instead, the second respondent needs to confirm that they have received the notice sent by the court.

If you are sorting out finances with your spouse alongside the divorce (which is recommended), solicitors may advise that you do not apply for a final order until a final financial order is agreed. This is because divorce terminates marriage and means that, if your spouse were to die before a financial order was made but after you had terminated your marriage, you would no longer be entitled to all of the benefits that you otherwise would be as their existing spouse.


How long does a divorce take?

How long is a piece of string? Honestly, it really does depend on a number of factors: Do you have your original marriage certificate? How…

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How long is a piece of string? Honestly, it really does depend on a number of factors:

  • Do you have your original marriage certificate?
  • How difficult is your husband or wife?
  • Do you intend to file a joint application with your spouse?
  • How organised are you? How organised is your husband or wife?
  • How busy is your solicitor or your spouse’s solicitor?
  • How many people are currently getting divorce in England & Wales and how quickly are the courts able to process all of those applications.
  • Will you wait until your finances are resolved by way of a formal financial order from the court (which can also be based on an agreement with your spouse – a consent order) before applying for a final order (formerly known as a Decree Absolute)?

If we are calling a spade a spade and being realistic, it can take an average of 18 months!


How much child maintenance am I entitled to?

You can check this very easily using the Child Maintenance Service calculator. Before you go onto the calculator, you’ll need the following details for your…

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You can check this very easily using the Child Maintenance Service calculator. Before you go onto the calculator, you’ll need the following details for your child’s other mother or father:

  • their income including any state pension;
  • any benefits they get;
  • the number of nights your child stays with them.

How much does a divorce cost?

How long is a piece of string? If your divorce is very straightforward and you and your husband or wife agree on everything, then you…

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How long is a piece of string? If your divorce is very straightforward and you and your husband or wife agree on everything, then you may be able to represent yourself in divorce proceedings. If this is the case, then you may only need to pay the court fee of £550. If your spouse instructs a solicitor, you may wish to do the same to ensure that you have what we call equality of arms – the opportunity to be represented to the same degree as your husband or wife. Costs do go up if instructing a solicitor but sometimes it is a price worth paying. Only you can decide.

Are there any fixed price or fixed-fee options? Some solicitors do offer fixed price (fixed-fee) packages for divorce because it can be a straightforward process. You can always speak to a specialist divorce and family lawyer offering a free initial consultation and fixed-fee divorce package to find out more.


How much will it cost to split our assets during a divorce?

Positive communication and negotiation between separating parties is important where possible. The more agreement and cooperation there is, the more straightforward and less expensive the…

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Positive communication and negotiation between separating parties is important where possible. The more agreement and cooperation there is, the more straightforward and less expensive the process will be.

Are there any fixed price or fixed-fee options? Every law firm adopts a different pricing structures, so speak to a solicitor to find out more about the options they offer.


How often do I have to let my ex see the children?

Wrong question. Better question: what is in the best interests of my children? Remember, ultimately, if your ex has parental responsibility over your child, poses…

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Wrong question. Better question: what is in the best interests of my children? Remember, ultimately, if your ex has parental responsibility over your child, poses no risk of harm to them and has demonstrated themselves as a capable parent, it will usually be deemed in the children’s best interests to spend time with them. How often can be a tricky thing to determine in the absence of agreement so you may wish to get advice on your specific circumstances.


How soon can I get a divorce or dissolve a civil partnership?

To get a divorce or get a dissolution in England or Wales, you have to have been married or in a civil partnership for one…

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To get a divorce or get a dissolution in England or Wales, you have to have been married or in a civil partnership for one year or more.


How soon is too soon to remarry?

This is up to you but pay attention to any financial orders between you and your former spouse. Certain types of financial provision, for example…

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This is up to you but pay attention to any financial orders between you and your former spouse. Certain types of financial provision, for example spousal maintenance, will come to an end on your remarriage.


How will my finances be split after divorce?

“Fairly”. If you are married or in a Civil Partnership then you and your spouse have legal rights, duties and responsibilities in respect of one…

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“Fairly”.

If you are married or in a Civil Partnership then you and your spouse have legal rights, duties and responsibilities in respect of one another. The process that determines the way in which your property and other financial assets are divided is known as financial remedy. It is a separate process to that of divorce.

Although you won’t always have to go to court and a lot of cases settle outside of a court environment, it’s important to reference what a court would do because ultimately, if you can’t agree, that’s where you’re both headed. A court would aim to achieve a fair split of the assets. Fairness in light of all of the circumstances of the case giving first consideration to the welfare of any children.


How will my pension(s) be split or affected after divorce?

Pensions are a complex area of family law. Pensions are tax efficient investment vehicles designed to produce income and maybe some capital, during your retirement.…

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Pensions are a complex area of family law. Pensions are tax efficient investment vehicles designed to produce income and maybe some capital, during your retirement. Sometimes, the valuations you are given in respect of your pension are poor reflections of the benefits that your pensions scheme will actually provide you. Pensions can be the biggest asset after the family home. It’s therefore very important that you and your spouse seek independent financial advice from a specialist pension on divorce expert who is experienced in this area to give you advice.

Broadly speaking there are a few ways in which the court would deal with your pension(s):

  1. Pension sharing – a way for one of you to share a percentage of your pension with your former spouse, this order can’t be varied if circumstances change at a later date;
  2. Pensions offsetting – a way to offset the value of the pension against other assets. It’s important to note that £1 in a pension fund is not with £1 in cash (savings or property). There is no widely accepted way of calculating what would a fair sum to take instead of sharing in your husband of wife’s pension would be;
  3. Pension attachment (rare) – another way of taking an interest in your spouse’s pension. Pension attachment means that you would become entitled to a proportion of your former spouse’s pension income or capital without having any influence over when and how they take their pension benefits. It also means that there would be no clean break between you and your husband. Most people find that pension attachment offers little certainty as the order can be varied if circumstances change.

I’m unhappy in my marriage, what do I do?

If you’re unsure whether the finality of divorce is really what you want or if you need help to come to terms with your separation…

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If you’re unsure whether the finality of divorce is really what you want or if you need help to come to terms with your separation and the end of your marriage, we recommend you first speak in confidence with a relationship counsellor who can work with you to help you to deal with what has happened and how to move on. If you have children, a relationship counsellor can help you to support your children with what is happening. Relate are an organisation that have experience in counselling people from different backgrounds, including LGBT individuals and couples, so they can be a good place to start when looking for relationship counselling.

If you are experiencing a relationship breakdown, you will probably have a lot of questions about the legal process of divorce, alternatives to divorce, information surrounding making arrangements for your children and splitting your finances.

Whilst the divorce process itself is administrative, the issues surrounding splitting up and ending your marriage are often more complex and need to be dealt with sympathetically, fairly, and efficiently. Getting advice or reviewing our guides early is crucial in helping you know what to expect so you can plan for the journey.


Is a consent order legally binding?

Yes, provided the order has been approved by a court. If this is the case, you will be provided with a formal court order stating…

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Yes, provided the order has been approved by a court. If this is the case, you will be provided with a formal court order stating your case number, your name, your husband or wife full name and the name of the court it was approved by. This could be, for example, the Family Court at Newcastle-upon-Tyne.


Is any support available for me whilst I find somewhere else to live?

You and your husband or wife could always agree that if one of you moves out, you share the costs of your mortgage and any…

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You and your husband or wife could always agree that if one of you moves out, you share the costs of your mortgage and any rental. If you can live with friends or family, that could be an option for savings costs. If you have relied on your spouse for financial support during your marriage and you suddenly find yourself unable to meet yours and your children’s essential interim needs, then you may be able to ask for maintenance pending suit (“MPS”). If you are in a predicament of real need and your spouse can afford to meet the shortfall between your income and reasonable outgoings, then your spouse may be ordered to pay maintenance pending suit until the overall financial matters are resolved.

You will only be able to apply for MPS either when or after a divorce application is filed at court.

MPS is known as an order pending the outcome of proceedings in a Civil Partnership context.


Should we have an Agreement?

Being practical, the answer to that question is very often a firm YES! Answers to problems can be found elsewhere, but if there is a…

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Being practical, the answer to that question is very often a firm YES!

Answers to problems can be found elsewhere, but if there is a Living Together Agreement, properly considered, well-drafted and comprehensively dealing with all the aspects that the couple care about, then there is more certainty and less worry about ‘What if…?’

If people plan to marry, then they can make their agreement a Pre-Nuptial (‘before marriage’) one and if money is being introduced into their lives from relatives, especially as loans, then the financial interests of the third party can be agreed in such an agreement, avoiding arguments about liability for repayment, terms of loan or gift and particularly avoiding them needing to participate in any dispute later on.


We married abroad, can I still get a divorce in England & Wales?

The answer to this question is fact-specific and can be far from straightforward. The default position is that, if you usually live in England and…

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The answer to this question is fact-specific and can be far from straightforward. The default position is that, if you usually live in England and Wales or you consider yourself to be domiciled in England and Wales, and your overseas marriage is valid in England and Wales, you should be able to divorce in England & Wales.

You can prove validity of marriage by producing a marriage certificate issued by the relevant authority in accordance with the marriage registration laws of the country in which you married.

This can be a complicated area of law, so we suggest that you speak to a specialist divorce and family lawyer.


We never married and now my ex wants half the house, what do I do?

Before we split up, we bought a house and we entered into a declaration of trust dealing with the ownership of the house. We never…

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Before we split up, we bought a house and we entered into a declaration of trust dealing with the ownership of the house. We never married and now my ex wants half the house. We agreed that they were only entitled to 30% of it and that is what the declaration of trust says. What now?

Firstly, you should pat yourself on the back for being sensible. A declaration of trust is one of the ways you can protect yourself when in a cohabiting relationship. The Declaration of Trust is a legally binding document which sets out the ownership of the property you bought together. The terms of that agreement should be followed, this means your ex should be entitled to 30%. If they want more they would need to go to court and apply (with a very good reason!) for more than 30%. It is very rare for the court to give someone more money than the declaration of trust says so this would only be successful in 1 case in a 1000.

If you cohabit with anyone else again, it might be a good idea to enter into a cohabitation agreement. This sets out the financial arrangements clearly so that if the relationship breaks down, you both know where you stand financially.


We’re married, who gets the family home?

If you are married, then you and your husband or wife have legal rights, duties and responsibilities in respect of one another. People’s main concern…

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If you are married, then you and your husband or wife have legal rights, duties and responsibilities in respect of one another. People’s main concern when getting divorced is how they will cope financially and how the assets and debts of the relationship will be dealt with. The process that determines the way in which your property and other financial assets are divided is known as financial remedy. It is a separate process to that of divorce.

Although you won’t always have to go to court and a lot of cases settle outside of a court environment, it’s important to reference what a court would do because ultimately, if you can’t agree, that’s where you’re both headed. A court would aim to achieve a fair split of the assets. Fairness in light of all of the circumstances of the case giving first consideration to the welfare of any children. In deciding what is fair the court will consider:

  1. yours and your spouse’s resources – property, capital, income, earning capacity;
  2. yours and your spouse’s needs, obligations and responsibilities;
  3. your marital standard of living;
  4. yours and your spouse’s respective ages;
  5. how long you were married for;
  6. any physical or mental disabilities;
  7. yours and your spouse’s contributions to the welfare of the family;
  8. yours and your spouse’s conduct (not ordinary bad behaviour).

There’s no set formula for how to assess fairness.


We’re not married, what are my rights when splitting up?

People live together as couples without anything formal in place for various reasons, this is called cohabitation. Without any legal relationship such as a marriage…

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People live together as couples without anything formal in place for various reasons, this is called cohabitation. Without any legal relationship such as a marriage or civil-partnership in place, either of you are free to stay or go without having to go through any formal process. Unmarried couples often need to make arrangements regarding living situation, childcare and property.

Cohabitants have very different rights under family law when it comes to property and financial matters. Common law marriage is a myth. If you’re not married or in a civil partnership, the law on property rights and financial settlements on separation is completely different. There is no legal requirement for cohabitants to be ‘fair’ when the relationship breaks down. By way of example, if you owned the property that you and your partner had lived in for the last 10 years in your sole name and you had no children together, your partner would have no legal claims against your property whatsoever. As there’s no contract of marriage in place and you don’t have any children, neither of you has any legal rights, responsibilities or duties in respect of the other person. Owning property in joint names and having children changes this position.


We’ve agreed terms on how to split our finances, how do we formalise our agreement?

In a consent order. Agreeing terms for settlement with your spouse is half the battle, but those terms must be approved by a court in…

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In a consent order. Agreeing terms for settlement with your spouse is half the battle, but those terms must be approved by a court in a consent order to be legally binding and enforceable. We call them ‘consent orders’ because they are agreed by you and not imposed on you by a third party. A judge must still be satisfied that the terms of your financial settlement are fair.


What about children?

We deal with children issues elsewhere and the most important thing to know is that married parents, mothers and some fathers have Parental Responsibility as…

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We deal with children issues elsewhere and the most important thing to know is that married parents, mothers and some fathers have Parental Responsibility as a matter of law.   That does not apply to children of the other partner and legal responsibility does not extend to parents’ partners, so without something in place, a parent-figure might have no legal standing.

Have a look at our section on children.


What about if one of us dies?

This is a complicated issue beyond the information we can provide here, but the particular circumstances of a family can be relevant to inheritance issues.  …

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This is a complicated issue beyond the information we can provide here, but the particular circumstances of a family can be relevant to inheritance issues.   In the absence of a Will, the laws of intestacy apply and the rights of a person only ‘living with’ somebody depend on property law, inheritance law and the terms of pension schemes and policies.

Rather than risk that lottery, it is usually better for couples living together to make Wills to say what should happen if they die.


What are my rights as a father?

Despite several myths circulating regarding fathers have less rights over their children than mothers, if you already have parental responsibility as a father, then each…

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Despite several myths circulating regarding fathers have less rights over their children than mothers, if you already have parental responsibility as a father, then each of you will start on an equal footing. The welfare of your children will be the paramount consideration. This is known as the welfare principle. In deciding what arrangements are in your children’s best interests, checklist of actors must be considered including:

  1. the children’s wishes and feelings (depending on their respective age);
  2. the children’s physical, emotional and educational needs;
  3. the likely effect of any change of circumstances;
  4. the children’s ages, genders, backgrounds and characteristics;
  5. any harm the children have suffered or risks of harm that they face;
  6. the capability of children’s parents or other relevant people in meeting their needs.

Unless you are a risk of harm to your children then it is unlikely that a court would prevent you spending time with them.


What are my rights if I get divorced?

If you have been married for more than one year, live in England and Wales and your marriage is recognised as valid in England &…

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If you have been married for more than one year, live in England and Wales and your marriage is recognised as valid in England & Wales, then you will be able to get a divorce provided you can evidence that your marriage has irretrievably broken down.

Your rights will differ depending on whether you mean your rights regarding children, property or other finances.

As a divorced person, you have the right to change your name back to your birth name, if you chose to change it on marriage.


What are the grounds for divorce? What evidence do I need to have to get divorced?

It is no longer necessary to cite a reason or attribute blame when applying for divorce. Now you need only make a formal declaration that…

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It is no longer necessary to cite a reason or attribute blame when applying for divorce. Now you need only make a formal declaration that your marriage has broken down, and you can do so jointly with your former spouse if you wish.

You will also need to provide the court with your original marriage certificate (photocopies will not suffice). If your original marriage certificate is not in English, it will need to be translated.


What documents do I need to get together before I can initiate divorce proceedings?

Your original marriage certificate or a court certified copy, this isn’t a photocopy. If your spouse no longer lives with you then you will need…

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Your original marriage certificate or a court certified copy, this isn’t a photocopy. If your spouse no longer lives with you then you will need an email address for them and a postal address where they can receive paperwork.

Although you do not need these documents for the divorce itself, it is worth starting to collate your financial documents. See finances.


What documents do I need to have in order to discuss financial matters?

Quite a few. A good starting place is the court document known as the Form E (Financial Statement). The Form E asks you for various…

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Quite a few. A good starting place is the court document known as the Form E (Financial Statement). The Form E asks you for various pieces of information with documentary evidence in support. It will alert you to the information needed, for example, equity in any properties in your name, savings and pensions.


What happens if we go to court?

Things will inevitably become more expensive and sometimes more acrimonious, but this can sometimes be the only way certain couple’s can resolve matters. Remember you…

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Things will inevitably become more expensive and sometimes more acrimonious, but this can sometimes be the only way certain couple’s can resolve matters. Remember you can continue negotiating and trying to reach a settlement during contested proceedings but you have the safety net of knowing that there will be an end date to your back and forth when the court will make a final financial remedy order that they consider to be fair in light of all of the circumstances of your case.

The court timetable will usually look something like this:

  1. Filing of a financial application using a Form A;
  2. Exchange of Financial Disclosure using Forms E;
  3. Ability to raise questions of your husband of wife’s disclosure using Questionnaires;
  4. A First Directions Appointment (“FDA”);
  5. A Financial Dispute Resolution Hearing (“FDR”);
  6. A Final Hearing.

What if I’m not getting anywhere in voluntary negotiations but don’t want to take my husband or wife to court?

That’s tricky. If you haven’t already, you could try mediation, collaborative law or arbitration. Be honest with yourself as to why you don’t think negotiations…

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That’s tricky. If you haven’t already, you could try mediation, collaborative law or arbitration. Be honest with yourself as to why you don’t think negotiations are getting anywhere. Is your spouse being obstructive? Are you being difficult? Are either of you not ready to move on? Could you use counselling? Is there a particular asset that either you or your spouse don’t want to let go of despite it being fair to do so? Do you need legal advice or representation? Do you need to issue formal proceedings to be taken seriously?


What if my husband or wife is hiding assets?

You and your spouse have a duty to disclose all of your assets in a manner that is full, frank and transparent. The court wants…

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You and your spouse have a duty to disclose all of your assets in a manner that is full, frank and transparent. The court wants you to put all of your cards on the table.

You will usually disclose your financial information using the Form E. Following financial disclosure by way of Forms E, you and your husband or wife are able to raise questions of each other’s disclosure by drafting a questionnaire. You both need to reply to each other’s questions as far as they are proportionate and this usually is an effective way to locate hidden assets. A court can also be asked to order that a party discloses specific information and documentation.

If your matter is more complicated than first meets the eye, then it is always worth considering whether to instruct a forensic accountant to review your husband or wife’s disclosure. Ultimately, if it is found that your husband or wife deliberately hid assets during financial negotiations, the consequences can be severe:

  1. a financial order may be set aside;
  2. proceedings maybe be brought against you for contempt of court, which could lead to a term of imprisonment or to a fine;
  3. you may be penalised on costs meaning that you would be ordered to pay some of your husband or wife’s legal costs for financial matters;
  4. if you are deliberately untruthful in your disclosure, criminal proceedings may be brought against you under the Fraud Act 2006.

What if my spouse dies during divorce proceedings? What if my husband or wife dies before we have resolved financial matters?

Do I get more money we hear you say? The answer to this depends on a few variables: has the final order of divorce been…

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Do I get more money we hear you say? The answer to this depends on a few variables: has the final order of divorce been pronounced as yet? Did your husband or wife leave a will?

Family law solicitors will usually recommend that you do not apply for the final order of divorce until overall financial matters have been resolved by way of a final financial remedy order. If you or your spouse has a pension, you would benefit from a widow or widower’s pension in the event that either of you die before the final order of divorce is made (before your marriage is terminated).

When the final order of divorce is pronounced, you are no longer married to each other and so neither of you will benefit from any widow or widower’s pension or various other financial benefits that you would ordinarily receive as a result of your status as a spouse.

Divorce is a life altering event and so people should consider changing their will or creating a will in contemplation of divorce. If your spouse has left a will that leaves you with nothing, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This is not the most straightforward area of law, so get some advice.


What if we split up?

We put that as part of ‘Should we have an agreement?’ because the agreement can govern the arrangements and provide greater certainty, even if people…

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We put that as part of ‘Should we have an agreement?’ because the agreement can govern the arrangements and provide greater certainty, even if people are happily or tolerably, living together.   Agreements are not simply to say what should happen if people separate, but that is a useful aspect that can be brought in.  Who lives where and what happens about – a sale or buy-out can be dealt with in a Living Together Agreement.   Many of the provisions would follow on from ownership, financial and practical issues considered for inclusion.

‘A stich in time, saves nine’ and thinking about arrangements before things go wrong may even help that not happening.  If somebody shows themselves to be selfish and unreasonable when discussing arrangements for living together, it serves as a warning that may save a broken heart and/or financial disaster later on.  Often people are deflected by an appeal to ‘trust me’ but a little evidence of trustworthiness, such as reasoned discussion before commencing cohabitation can make that easier.

We trust that answers at least some of your questions and sets your thinking on a productive track.


What is a consent order?

A consent order is a full and final court order embodying the terms that you and your spouse agree between yourselves, at mediation or through…

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A consent order is a full and final court order embodying the terms that you and your spouse agree between yourselves, at mediation or through your solicitors. Once approved, a consent order cannot easily be challenged. The starting point is that it should be upheld.

A consent order is strongly recommended when trying to finalise your divorce and divide your financial assets. This is because it is very difficult to re-open a consent order years after it has been approved. If you agree terms in an informal agreement that is not approved by a court, your spouse could apply to the court further down the line for financial provision. It can be expensive to defend an unwarranted “second bite at the cherry” but, by not entering into a consent order and / or clean break order, you could be leaving yourself exposed.

Specialist divorce and family law lawyers will be well equipped to help you draft an order in the correct manner.


What is a no-fault divorce? What is a fault-based divorce?

Prior to April 2022, family law required applicants for divorce to cite one of five reasons for the end of the marriage. A number of…

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Prior to April 2022, family law required applicants for divorce to cite one of five reasons for the end of the marriage. A number of these required attributing blame to the other spouse – effectively declaring that the divorce was their fault. Lawyers and campaigners argued for years that this encouraged unnecessary acrimony during an already emotional time.

The law has now changed. Under the Divorce, Dissolution and Separation Act, applicants now need only make a formal declare that their marriage has broken down, and this declaration can be made jointly with their spouse if they wish. Because it is no longer necessary to attribute blame, the new legislation is often referred to as ‘no fault divorce’.

This is a welcome reform that will allow most couples to make the first steps in their separation as amicable as possible and end the old blame game.


What is a pre-nuptial agreement?

This is a document which sets out what money each party with exit the marriage or civil partnership with if the relationship breaks down. The…

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This is a document which sets out what money each party with exit the marriage or civil partnership with if the relationship breaks down. The document usually deals with property, pensions, maintenance and savings. It may also deal with other things like pets, jewellery and personal possessions. These types of agreement aren’t binding in the courts of England and Wales but they can be highly persuasive if they are seen to be fair at the time the parties split up.

Ideally both parties would enter into the agreement more than six weeks before their wedding or civil partnership takes place. It is ideal, but not mandatory for each party to take specialist legal advice from a family solicitor or barrister.

The more evidence there is that the parties both understood the terms of the agreement they signed, the more likely the courts will be persuaded to put into effect the terms of the agreement.


What is divorce? What does divorce involve?

Marriage is a legal relationship; a contract between spouses. Divorce is the legal process that terminates a marriage. It’s not a step to take lightly…

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Marriage is a legal relationship; a contract between spouses. Divorce is the legal process that terminates a marriage. It’s not a step to take lightly but, if there are no complicating factors, then the divorce process itself is largely administrative and straightforward.

It’s important to remember that the process of terminating your marriage is separate to the process that determines who gets the house or other financial assets (the finances).

If you’ve decided that you want to separate from your spouse you might be thinking “what’s the best way to formally end my relationship?” Divorce is one option but there are alternatives to divorce that might suit your circumstances a little more.


What is fair when splitting assets after divorce?

It is fairness in light of all of the circumstances of the case giving first consideration to the welfare of any children. In deciding what…

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It is fairness in light of all of the circumstances of the case giving first consideration to the welfare of any children. In deciding what is fair the court will consider:

  1. yours and your spouse’s resources – property, capital, income, earning capacity;
  2. yours and your spouse’s needs, obligations and responsibilities;
  3. your marital standard of living;
  4. yours and your spouse’s respective ages;
  5. how long you were married for;
  6. any physical or mental disabilities;
  7. yours and your spouse’s contributions to the welfare of the family;
  8. yours and your spouse’s conduct (not ordinary bad behaviour).

There’s no set formula for how to assess fairness. It’s important to seek advice regarding your specific circumstances.


What is parental responsibility?

Parental responsibility, sometimes abbreviated to “PR”, embodies all the rights, duties, powers, responsibilities and authority which (by law) a parent has in relation to their…

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Parental responsibility, sometimes abbreviated to “PR”, embodies all the rights, duties, powers, responsibilities and authority which (by law) a parent has in relation to their children and the children’s property. It gives you rights and responsibilities when bringing up children, making decisions for children and caring for children.

Having parental responsibility gives you responsibility for important decisions about a child’s welfare such as education, religion and medical care and also over ordinary day-to-day decisions such as nutrition and recreation.

Parental responsibility is important because holders of it are afforded legal status under the Children Act 1989. The Children Act 1989 is the main piece of legislation governing the way in which children are cared for during family breakdown.


What rights do I have in relation to my children after a separation?

What are my rights as a mother? What are my rights as a father? This depends on your circumstances. Both parents have a duty to…

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What are my rights as a mother? What are my rights as a father? This depends on your circumstances.

Both parents have a duty to look after their children. The law doesn’t specify how much time a child spends with each parent. The parents are expected to make their own arrangements regarding where children live, how often they see the other parent and how major life decisions are handled by them. Often, i can help if the parents agree a parenting plan with each other. A mediator or solicitor can help the parents agree a parenting plan if they need help.


Where can I find the forms and documents that I need for my divorce?

If you are represented then ask your solicitor for any forms or links. If you are unrepresented or undecided, then you can find court forms…

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If you are represented then ask your solicitor for any forms or links. If you are unrepresented or undecided, then you can find court forms on the .gov website.  You might need the name of the form you’re searching for to find the right document. For example, instead of searching for a divorce application, you would search for a form D8.


Who do the children live with after separation?

This is a decision that could be made between you both as parents without needing any external input. The court believed that the parties best…

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This is a decision that could be made between you both as parents without needing any external input. The court believed that the parties best placed to make important decisions about children’s wellbeing are their parents. If you can’t agree then you could try mediation or speaking to a specialist children and family lawyer. The considerations that you, a mediator, a family law solicitor and a court should take into account when guiding you on this question are the same: what arrangements would be in the best interests of your children and why? It’s important to remember that children thrive off routine, but that in and of itself is not a reason to exclude the other parent from a child’s life.


Who drafts the consent order?

A family law solicitor, mediator or barrister should be asked to draft a consent order on your behalf. This is what they’ve been trained to…

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A family law solicitor, mediator or barrister should be asked to draft a consent order on your behalf. This is what they’ve been trained to do. Legal terminology can be extremely complicated and, once approved, your order will be legally binding.


Who gets the pet?

Who gets the cat or dog? It depends. It might seem strange that we’re talking about this under finances but, yes, a pet is considered…

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Who gets the cat or dog? It depends. It might seem strange that we’re talking about this under finances but, yes, a pet is considered an asset when you divorce. The same principles that apply when dividing your capital and income, will apply when deciding who gets your pet.


Who has parental responsibility? If I don’t have parental responsibility, how can I get it?

This isn’t as obvious an answer as you might think. A mother automatically acquires parental responsibility on birth of a child. A father who is…

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This isn’t as obvious an answer as you might think.

A mother automatically acquires parental responsibility on birth of a child.

A father who is married to the mother of a child at the time of the child’s birth also automatically acquires parental responsibility.

An unmarried father does not automatically acquire parental responsibility. If you are an unmarried father, you can acquire (or may have already acquired) parental responsibility in one of six ways: (a) by being registered as a child’s father on their birth certificate, (b) by entering into a parental responsibility agreement, (c) by applying to the court for a parental responsibility order, (d) by being appointed as a guardian over a child on the death of their mother, (e) if a child arrangements order is made in your favour or (f) if you marry your child’s mother.

Step-parents, (a person married/civil partners with one of the child’s natural parents) can obtain parental responsibility either by (a) obtaining a parental responsibility agreement (provided that any people who currently have parental responsibility over the child or children allow you to) and (b) if they don’t, by obtaining a parental responsibility order from the court.

If a parent is cohabiting with another person, that person isn’t considered to be a ‘Step-parent’ and so can’t apply for a parental responsibility order although they may be able to acquire it if a child arrangements order is made which states that the child should live with the cohabiting parent.


Who owns what?

This is a big topic, but with informal living together arrangements, property law decides who owns what, so it is vitally important that ownership is…

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This is a big topic, but with informal living together arrangements, property law decides who owns what, so it is vitally important that ownership is properly recorded when a property is purchased.   Often property lawyers, don’t like to ask to many questions and often only want to know about auto-inheritance on death which determines whether they register it is as ‘beneficial joint tenancy’ (survivor inherits) or a ‘tenancy in common’ (no automatic inheritance).  The Land Registry proprietorship register says who owns the property and many people expect that the money they contributed or was given/borrowed from families will be respected, but that cannot be presumed.

Belongings are called ‘chattels’ in law and courts are very reluctant to spend time deciding on such things.   There is established law about objects and rights, but arguing or taking it to court is rarely productive.    Far better to have decided the principles to be applied before people split up.


Who pays child maintenance?

Child maintenance is paid by a parent who does not spend a set amount of time looking after their children (the paying parent).


Who pays for the divorce?

This depends on your individual circumstances, as well as those of your spouse. Quantifying these costs outside of the mandatory court filing fee can be…

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This depends on your individual circumstances, as well as those of your spouse. Quantifying these costs outside of the mandatory court filing fee can be tricky. Remember, you can always negotiate or compromise on a figure and communicate that with each other or, if you are represented, your solicitors.

Your fees for financial matters or issues relating to your children are a separate consideration.


Who pays for what?

Often people develop habits about how finances are run without much discussion or agreement. People have contracts with providers and the businesses get paid.  It…

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Often people develop habits about how finances are run without much discussion or agreement. People have contracts with providers and the businesses get paid.  It is between the people involved in the contract, unless there is some other law that applies, such as for Council Tax.

Far better to talk about such things and agree.


Will dating someone else during my separation impact my case?

It can. It’s important to remember that until the final order of divorce is pronounced in your case, you are still technically married. Serious new…

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It can. It’s important to remember that until the final order of divorce is pronounced in your case, you are still technically married. Serious new relationships can also impact upon the finances if your new partner lives with you or contributes to your household finances.


Will dating someone else whilst agreeing how to split our assets impact my case?

Serious new relationships during divorce can impact upon financial negotiations and settlements. Serious new relationships after divorce can impact on the financial provision that you’re…

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Serious new relationships during divorce can impact upon financial negotiations and settlements. Serious new relationships after divorce can impact on the financial provision that you’re receiving from your former spouse. During financial proceedings you’ll be asked about your intentions when it comes to cohabiting or remarrying a new partner. You have to be honest about those intentions.

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