England and Wales are set to witness the biggest change to divorce law in a generation. From the 6th April 2022, for the first time, “no fault divorce” will not only be available to all, but there will also be no alternative to “no fault divorce” allowing couples to file for divorce jointly and amicably.
The existing law on divorce dates back to 1973 which set out 5 reasons for divorce with “unreasonable behaviour” or “adultery” becoming the most common cited. So much so in fact, that it is now arguably part of our culture, but for many couples, seeking a divorce on equal terms under the current law can be difficult, and often causes conflict.
For years, organisations such as Resolution have recognised this is issue and have been actively advocating for no fault divorce to be implemented, and at last it is finally here.
Many believe that by removing the necessity to attribute responsibility for the breakdown of a relationship will help to minimise conflict between parties. Perhaps it will to a degree, although by large, the change to divorce law will not affect the great potential for conflict to arise over arrangements for children, property and money.
The new divorce process will take at least 6 months to complete, with a minimum period of 20 weeks between the start of proceedings and the application for a Conditional Order. Since the introduction of on-line divorce in recent years, it had been possible to finalise old style divorces in a much quicker time period and for some, this longer process will cause further discord.
Under the old procedure, notice of the issue of divorce proceedings is given to the Respondent by the Court as soon as proceedings are issued. However, under the new system, the Respondent will not necessarily be notified of the divorce straight away which might also lead to growing frustration.
As with the old-style divorce, all new applications will be made through an electronic portal. However, for fault-based divorces, this facility closes at 4pm on the 31st March 2022 and the new divorce process will open on 6th April 2022.
Therefore, for those needing urgent relief such as certain emergency Financial Orders, we would advise seeking legal advice at your earliest convenience, as it will still be possible to file a paper application between 1st and 5th April 2022.
The introduction of the Court Fees (Miscellaneous Amendments) Order 2021 came into force on 30th September 2021, bringing with it an increase in Court fees for the first time since 2016. The new Family Court fees have risen significantly by around 8% to bring them in line with the rate of inflation.
Some of the following Court fees have been affected by the new price increases:
The Court fee payable on Divorce Proceedings has increased by just under 8% from £550.00 to £592.00.
The fee payable on Application for Financial Orders, for those who are unable to agree financial terms, has also gone up by nearly 8% to £275.00.
The fee to apply for a Child Arrangements Order (residence or contact) has increased by 6% to £232.00.
On a positive note, Applications for Injunctions to protect victims of domestic abuse or harassment will not attract a fee.
Applicants in receipt of certain benefits may also be exempt from payment of Court fees, and those in receipt of low incomes should be able to apply for fees to be reduced.
Most family disputes can be resolved without the need of Court intervention, with exception to Divorce, which requires court proceedings to be sought and unfortunately can attract a hefty fee unless you are entitled to a means tested reduction.
At Tinsdills our experienced Family Law team can advise on how to resolve a variety of family disputes without the need to pursue Court Proceedings, and when Court Proceedings are necessary, our team have a wealth of experience in guiding our clients through every step of the process.
To find out more, get in touch to book an initial consultation with one of our friendly Family Law Solicitors.
The Duke & Duchess of Sussex has recently announced the birth of their Daughter Lillibet Diana. Diana was to be expected, Lillibet, Queen’s childhood nickname prompted some mixed comments. It is said that “a rose by any other name smells as sweet” but we’ve all passed comment on a celebrity’s bizarre choice and wondered what on earth the parents were thinking.
With very limited exception, the choice of a child’s name at birth is an act of Parental Responsibility. Parental Responsibility is the legal term for parental rights and responsibilities.
If the child’s parents are married, they will both have Parental Responsibility and will be equally responsible for registering the child’s birth and will give the child’s chosen name to the Registrar. If parents are not married, only the Mother will have Parental Responsibility so the child’s name will be registered by the Mother. If the Father disagrees with the Mother’s choice of names his only remedy would be to make an Application to Court for a Specific Issue Order, but unless the Mother’s choice is as bad as the names in the Re C case the Court won’t interfere.
In Re C a Local Authority intervened. The children were the subject of Care Proceedings. The Mother proposed that the children should be named Cyanide and Preacher. The Court took the view that naming the little girl Cyanide would go beyond the unusual, bizarre, extreme and foolish and gave the Court reasonable cause to believe that the child would suffer significant emotional harm because of the name.
Changes of first name after registration are not common but they are increasingly arising in the case of transgender children. If both parents have Parental Responsibility, they would both need to agree to the change of name. In the case of disagreement, the parent wishing to change the child’s name would need to apply to Court for a Specific Issue Order. The Court’s decision will depend on the circumstances of the case and will attach considerable weight to the emotional welfare of the child.
Courts do not routinely interfere with the parent’s exercise of their Parental Responsibility. If both parents have Parental Responsibility and agree to the change of a child’s surname, they may change it, and whoever has sole Parental Responsibility for a child may change it, but a child’s surname cannot be changed without the authority of all who have Parental Responsibility. If they do not agree then the person wishing to change the child’s name would need to apply to Court for a Specific Issue Order, and it will be for the parent who wants to change the child’s surname to convince the Court that to do so will further the child’s welfare.
The welfare of the child will always be paramount. The Court will take account of the reasons for the proposed change of name, but considerable weight will be given to the link that the child’s surname recognises to the child’s Father. The fact that the child’s surname might be different to that of the parent wanting to change the name is unlikely to carry much weight unless it can be demonstrated that the name is causing the child so much embarrassment or anxiety as to be causing emotional harm.
Courts will almost always be reluctant to allow parents to “ditch” the surname given to a child at birth without compelling reasons.
Anyone can change their own name when they reach their 18th Birthday. Young people between 16 and 18 can change their own name unless a Residence or “Living With” Order is in place, in which case they will need the consent of everyone who has Parental Responsibility for them.
Should you wish to discuss any topics mentioned in this article, please contact us via telephone on 01782 956123 or through our online contact form.
The Domestic Abuse Act 2021 received Royal Assent on 29th April. Some of its provisions come into effect immediately, but most are expected to come into effect with detailed Regulations later this year.
So what changes can we expect to see?
In brief, the legislation aims to promote awareness of domestic abuse to better protect and support victims, not only from further abuse, but to enable them to participate safely and without intimidation in Criminal and Family Proceedings.
The Act recognises that domestic abuse includes not only physical or sexual assault, but threatening behaviour, controlling or coercive behaviour, financial and emotional abuse. It also recognises that child witnesses are also victims of that abuse.
A new criminal offence of Non-Fatal Strangulation or Suffocation is created and the existing offence of disclosing private intimate photographs (known as “revenge porn”) is extended to cover the threat of disclosing the photographs as well.
Homeless victims of domestic abuse will automatically have priority need for housing and GP’s must provide victims of domestic abuse with the letter to support their Application for Legal Aid funding without charge.
The Police are given additional powers to be able to issue a Domestic Abuse Protection Notice (DAPN) where a Senior Officer has reasonable grounds to believe abuse has taken place. Victims will be able to apply to Court for a Domestic Abuse Protection Order (DAPO), which will last longer than traditional Injunctions.
A DAPO will be broader in scope than a conventional Injunction. In addition to protecting the victim from further incidents of abuse or harassment, provisions can be made for electronic monitoring and specific obligations put on the perpetrator to address behavioural or addiction issues.
In Court Proceedings the perpetrator will not be allowed to cross-examine their victim and Local Authorities publish their plans to provide additional support to victims of domestic abuse.
We welcome the government’s commitment to tackling domestic abuse. As a specialist Family Law team, we can assist in dealing with abuse and bringing your relationship to an end, offering support through emergency court proceedings, seeking a non-molestation order and / or an occupation order. We can also assist you through divorce proceedings and resolution of finances following the end of your relationship, together with sorting arrangements for your children.
Should you wish to discuss any topics mentioned in this article, please contact us via telephone on 01782 956123 or through our online contact form so that an appointment can be set up with one of specialist family solicitors.
In this article, we take a look at Pre and Post-Nuptial Agreements, whilst also considering Cohabitation Agreements. Read on for more information to help guide your decision to find the best option for your circumstances.
Pre-Nuptial Agreements
More frequently nowadays, couples who are intending to get married consider entering into a Pre-Nuptial agreement in advance of the marriage. This is usually the case where one party will be entering the marriage with more assets than the other and they are looking to protect those assets should the marriage breakdown, but also where one party wishes to protect possible future inheritance. A Pre-Nuptial agreement sets out how those assets are to be retained or distributed in the event of a relationship breakdown, and whilst historically it was something only considered by the wealthy, increasingly it is something which is seen as an attractive option to give more peace of mind that your assets could be protected.
The key point to bear in mind is that a Pre-Nuptial agreement is not legally binding in English law. That said, they are growing in popularity and the Judiciary are more willing to attach weight to them in certain circumstances, provided they have been properly drawn up and executed.
The agreement itself needs to set out full details of the relevant parties and additionally all property needs to be identified together with any matters of particular significance that may not be immediately obvious. Reference should be made to any children of the family and an explanation as to how they would be provided for. It is also vital for the agreement to include review dates in the event of a particular change, for instance the birth of a child, or other significant change in circumstances.
The most important requirements to remember about a Pre-Nuptial agreement are that they should be prepared in good time before the wedding, with a minimum of 21 days before the intended wedding date although ideally significantly longer. This is especially relevant in the event the agreement is complex, or wider aspects are to be considered. The document should be drafted clearly, and so that parties intentions are clear with careful attention paid to all dates and terms. Both parties should have fully and frankly disclosed to each other details of their financial circumstances, and both parties should have received competent and independent legal advice.
Provided these requirements have been addressed then there is some suggestion that if one party ever did have to rely on the agreement, then the Court would attach weight to it. It is however still the case that each situation will be decided on its own merits, and the Court would give due consideration to the fairness of the agreement in all circumstances.
Post-Nuptial Agreements
If parties are already married but wish to put in place an agreement which sets out the above, then they should think about entering into a Post-Nuptial Agreement. The considerations are the same as those mentioned above, with the difference being the agreement is only drawn up after the marriage has already taken place.
But what if you are not intending to get married and yet still wish to regulate the terms of your relationship? This may be because you are thinking about marriage at some point in the future but not considering a date at this stage, or alternatively are simply looking to establish the basis of a change in your relationship.
Cohabitation Agreements
Unmarried couples do not have the same rights as married couples, even if they have lived together for many years and therefore one way to establish financial and other arrangements such as childcare, is to enter into a Cohabitation agreement.
There is presently little Judicial guidance regarding Cohabitation agreements, however it is suggested that it may follow the same consideration as a Pre-Nuptial agreement should its content need to be relied on. In largely the same way therefore, the document should set out relevant information such as full details of the parties and any children, and any other matters of particular significance which may not be immediately obvious. Both parties should exchange full and frank information with each other about their own financial circumstances so that they are aware of each other’s position, and both should take independent legal advice on the intended agreement. Should the parties wish, they could include what provision they intend to make for each other in their respective Wills, and as before, the agreement should be reviewed on the birth of any child or if the parties circumstances change significantly. As with all legal documents, the contents should remain confidential other than between the concerned parties and their legal representatives.
In addition to a Cohabitation agreement, a Deed of Trust in relation to any property may also be considered, with this being where one party is the sole legal owner and the other partner has an equitable interest or where both parties are joint legal owners.
One important point to note is that a Cohabitation Agreement becomes void upon marriage and therefore due consideration must be given to this in the event you later decide to formalise your relationship. At that point, should you still wish to regulate the terms of your relationship, then it may be necessary to consider a Pre-Nuptial agreement, with the relevant requirements as set out above.
Whether you’re thinking about a pre-nuptial agreement or considering your options for you and your partner, Tinsdills Solicitors can assist with the necessary legal arrangements. Contact our team today: 01782 652300
When parties separate or decide to divorce from each other, often their next concern is regarding contact with the children of the relationship. In an ideal world, people are able to agree those arrangements amicably between themselves, but what happens if there is a dispute where one party wants to spend time with the children, but the other party doesn’t agree?
Depending on whether you are the parent seeking contact, or the parent wishing to limit contact, you need to know what your options are, and if guidance is sought from the Court, what any decisions made are based on. The first step would usually be to seek legal advice to discuss any issues and reasons for concern.
Consideration needs to be given to whether the party wishing to have contact with the child holds parental responsibility. Parental responsibility means ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’ [Children Act 1989]. A child’s mother automatically has parental responsibility and does not lose it if she and the child’s father separate, whether or not they were married. A father who is married to, or the civil partner of the child’s mother when the child is born will automatically have parental responsibility. Fathers of children who are not married to, or the civil partner of, the child’s mother will have parental responsibility if they are named on the birth certificate of the child (post-December 2003).
What is a Child Arrangements Order?
Once parental responsibility has been established, in the event one party wishes contact with a child, or wishes to restrict the other from having contact with a child, then they may wish to make an application to Court for a Child Arrangements Order. This is an Order which regulates arrangements for a child relating to issues such as with whom the child is to live, spend time or otherwise have contact with, or when the child is to live, spend time or otherwise have contact with the other party.
Before any application can be made to Court you are required to attend a meeting with a mediator to determine whether mediation may be a suitable way for you to resolve your dispute, rather than using the Court. If the parties are willing and able to mediate, this may assist them in coming to an agreement in relation to how contact arrangements are put in place. It is accepted however that mediation is not suitable in all cases, and there are certain exemptions which apply depending on the circumstances.
After an application to Court is made, the case is referred to CAFCASS (the Children and Family Court Advisory and Support Service) whose role is to provide the Court with information so that a safe decision can be made about the child/children and the arrangements with either party. CAFCASS conduct safeguarding checks into all concerned individuals and also make enquiries of other authorities for instance Social Services to determine whether there has been any prior involvement with the family. CAFCASS also speak to both parties to ascertain views and listen to any safeguarding concerns. Their role is then to provide the Court with a safeguarding letter setting out their initial recommendations in advance of the case being listed for a hearing.
At present, the majority of hearings are being dealt with by way of remote Telephone Hearings so as to ensure access to the judiciary during the current pandemic. The first hearing is called a First Hearing Dispute Resolution Appointment and CAFCASS will usually be present at this hearing to provide any assistance to the Court, and also to deal with any outstanding safeguarding checks if applicable. Depending on recommendations and whether any safeguarding concerns have been identified, the Court will need to determine the next steps. If there are no child protection safeguarding concerns highlighted, then CAFCASS and the Court will try and assist the parties to reach an agreement.
If however CAFCASS have identified safeguarding concerns and made recommendations for further investigations to be undertaken, then the Court will consider and direct those, making arrangements for the case to return to the Court at a later date once those steps have been taken. These may include CAFCASS being required to produce a more detailed report called a Section 7 Report, or any other directions depending on the circumstances. Ultimately the Court will hold a Final Hearing with the Judge/Magistrates hearing evidence from adults involved, CAFCASS and any other expert necessary before making a decision.
Your Family Law specialist will be able to provide help and guidance from the beginning when you raise your concerns, through to the ultimate conclusion of the case whether that is by way of discussions direct with the other party, or through the Court process.
Contact Us
Our Family Law team have a vast amount of experience in guiding clients through the process of a Child Arrangement Order application. If communications have broken down and arrangements cannot be made amicably, call today to discuss how we can help on 01782 956123.
As we have now entered another lockdown we are aware that this is a stressful time for many people, especially for anybody who is in a relationship where there is domestic abuse.
Recognising the Signs
Recognising domestic abuse can sometimes be difficult. By definition, domestic abuse is any type of controlling, bullying, threatening or violent behaviour which includes the following:-
Physical – for example, kicking, hitting, etc.
Emotional – for example, causing upset, showing no empathy, etc.
Psychological- for example, controlling what the other is wearing, etc.
Financial- for example, controlling what money the other can have, etc.
Sexual – for example, rape, etc.
Honour-based – for example, controlling religious cultures, etc.
It is important to emphasise that both men and women can suffer at the hands of their partner from domestic abuse, although it very often is the case that men are more reluctant to admit this.
It is a well known fact that abuse can increase when a relationship is subject to stress and indeed during lockdown and throughout the coronavirus pandemic, there has been immense stress placed on many families. This is as a result of pressure from loss of jobs, reduced income, poor health and a lack of normal routine or structure.
It is also important to recognise that domestic abuse can occur inside or outside of the family home. It does not have to be face-to-face but is very often via telephone, internet, or even social media. Not only does it happen during a relationship, but very often continues following the end of a relationship too.
Seeking Help
Seeking help can be nerve wracking but there are dedicated teams and support networks available. You can seek help in relation to the domestic abuse you may be suffering, from the police as well as many other institutes that can offer immediate and ongoing support and assistance.
As a specialist Family Law team, we can also assist you in dealing with abuse and bringing your relationship to an end. We can support you through emergency court proceedings, seeking a non-molestation order and / or an occupation order. We can also assist you through divorce proceedings and resolution of finances following the end of your relationship, together with sorting arrangements for your children.
We offer an initial consultation to discuss these relationship matters by way of a telephone appointment and this can be set in place very quickly, at a time to suit you. All enquiries are dealt with in a confidential manner, showing complete understanding and putting your needs as paramount.
Should you wish to discuss any topics mentioned in this article, please contact us via telephone on 01782 956123 or through our online contact form: https://tinsdills.co.uk/about-us/contact-us/ so that an appointment can be set up with one of specialist family solicitors.
[vc_row][vc_column][vc_column_text]Sometimes in a marriage, one party possesses more than the other in terms of wealth or assets. Should these assets be acquired prior to the marriage, then one party may wish to take precautions to protect these assets should the marriage fail. This is possible with a Pre-Nuptial Agreement, which is a formal contract between a couple that sets out for division of their assets in the event of a divorce/separation.
The document is signed before the couple marry and is usually a document entered into by couples who have a particularly uneven distribution of wealth. As pre-nups are becoming an increasingly popular agreement made by couples, we’ve outlined the main things that you need to know about them.
1. Pre-Nuptial Agreements are not just for the rich and famous. There is a perception that pre-nups are a precaution reserved for A-listers and people with huge amounts of wealth. Actually, they’re becoming increasingly popular as a ‘good sense’ move before tying the knot.
2. Best practice requires that both parties have their own solicitor, and they need to fully disclose their assets from the get-go.
3. The agreement has to be freely entered into in order that there be as much choice as possible.
4. Another criteria for a pre-nup to stand is that full and frank disclosure has to be given by both parties – nothing can be hidden! You must disclose your full position to both your solicitor and your spouse, and this should be ideally recorded for both parties in an appendix to the agreement.
5. The timing of entering into the agreement should be considered, so think ahead. Suggesting a pre-nup too late in the day – i.e., a week before you’re scheduled to wed, is not a great idea. There should be a period of at least three weeks between signing the agreement and the date of the marriage.
6. You should implement a review clause in the agreement.
7. It is not possible to oust the jurisdiction of the family Court.
8. Pre-nups aren’t the only way to protect your assets; Post nuptial agreements are an alternative way to protect your assets in the event of marriage breakdown.
9. Pre-nups are still not automatically binding in England or Wales, though recently courts have been more willing to attach weight to them if the steps as set out above are taken.
10. Any perceived unfairness within the agreement can still be addressed by the Court. However, as long as the circumstances and the nature of your pre-nup are fair within the eyes of the court, your pre-nup is a great way to add clarity to the division of your assets.
In short, pre-nuptial agreements may seem daunting, and appear an awkward subject to approach. However, when they are executed properly and fairly, they may assist in times of marriage breakdown and help to ease all the stress that can bring.
If you are seeking further legal advice on pre-nuptial agreements or divorce proceedings, feel free to get in touch by calling us on 01782 65230. Alternatively, you can drop us an email at lawyers@tinsdills.co.uk.[/vc_column_text][/vc_column][/vc_row]
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