Category: Matrimonial Property Rules

Legal advice: The right steps to take when a relationship ends

More often than not, the breakdown of a marriage or long-term relationship is a traumatic experience. Not only is there emotional distress, but there may well also be serious anxieties around finances and the custody of children.

Following the good legal advice of a reputable family solicitor like Lund Bennett and understanding your rights could, however, go some way towards easing the process.

At what stage during a relationship breakdown should you take legal advice? 

Normally the earlier the better. If you are thinking about leaving your partner or your partner has left you, it is best to get advice from a solicitor specialising in family law as soon as possible to see what your options are.

Why is it so vital to take steps sooner rather than later?

Once the relationship has broken down the family assets need to be divided up. By doing this early on you can ensure there is a fair distribution. It will also help you to move on with your new life once everything has been decided.

How is custody of children determined?

The primary concern is always the best interest of the child – this will always be first and foremost in any arrangement. Depending on the child’s age, however, his or her wishes may well also be taken in to account.

Do entitlements differ depending on whether or not you are actually married?

Yes. Unfortunately, if you are not married you won’t have the same rights as a married couple. In this situation it is therefore even more important to seek legal advice early on in a breakdown.

What is a quickie divorce?

Anyone that reads celebrity news will have come across the term “quickie divorce” at some point over the years.

If you’ve read about Ant McPartlin, Cheryl Cole, Rowan Atkinson, or Louise Redknapp’s divorces, then you may be under the impression that they received special celebrity treatment, a divorce in just a matter of seconds!

These media reports about so called “quickie divorces” are actually very misleading, as all divorces go through the same process, no matter what your celebrity status.

So, what are the media actually referring to when they say that Cheryl Cole received “Britain’s fastest ever quickie divorce”, and was divorced in just 14 seconds?

The part of the divorce process that is being referred to here is how long it took the judge to read out the pronouncement of the first decree.

Once a couple receive the first decree, this does not mean that their divorce is complete, it is simply confirmation from the court that they agree there are grounds for a divorce.

The divorce will not be finalised until the decree absolute has been granted, and unless there are exceptional circumstances the couple must then wait a minimum of six weeks and one day before applying for the decree absolute.

Exceptional circumstances are considered on a case by case basis. The most common reasons for a decree absolute to be expedited is if one person is dying and wishes to divorce before they pass away, or if one party has moved onto a new relationship, is pregnant, and wishes to remarry before the baby is born. Celebrity status certainly doesn’t play a part!
Generally, all divorces in the UK take between 6 and 12 months to complete. If financial matters take a long time to resolve, then the process can take even longer.

For help or advice with filing for a divorce quickly and efficiently, give our team of solicitors here at Lund Bennett a call on 0161 927 3118.

Who decides where a child lives after their parents separate?

Any separation can be difficult, but one that involves children can be particularly challenging and emotional.

The biggest decision that couples with children will need to make if they separate, is the children’s living arrangements.

Where possible, it is always easiest and less stressful for everyone involved if the family can come to an amiable agreement together.

However, this is not always possible. In instances where parents do not agree on where a child should live, they may need to seek help from one or more of the following:
•A solicitor specialising in family law.
•Mediation.
•The Family Court.

No matter which route you take to help decide the best living arrangements for your children, the welfare of the children is always considered first and foremost.

Family law solicitor
A family law solicitor will be able to advise you on all avenues open to you and provide you with sound legal advice and guidance.

Mediation
Mediation is a process guided by a trained, impartial, third-party that allows the two parties to have a constructive discussion and hopefully negotiate an outcome that all parties are happy with.

The Family Court
If an agreement still cannot be reached, then it may be necessary to apply to the Family Court for one or more orders to be made. A child arrangement order will decide who the child will live with, who they will spend time with, and when. In some cases, it may also be relevant for the court to issue a specific issue order or a prohibited steps order.

Lund Bennett are family law specialists based in Altrincham and Manchester. For legal help and guidance regarding disputes about child living arrangements, mediation services, or help applying for a court order, get in touch with our team of specialist solicitors by calling us on 0161 927 3118.

Is It Worth Getting Married These Days?

Marriage is being brought into question more than ever these days and for some couples, simply living together is preferable. Some people view marriage as a huge expense just for a piece if paper. They me even live together for decades and have children in the process. So, is entering into a marriage or civil partnership worth it?  

The short answer from a legal perspective is yes if you want to protect areas such as inheritance and save on huge tax bills either for those left behind when you die or a partner die. While this is not an article designed to promote marriage, indeed for some couples it can be preferable not to pass on their assets to a partner when they die, let’s highlight how being married can save a number of legal headaches.  

Perhaps the biggest consideration for mature unmarried couples is the will. If your partner dies you won’t inherit anything and the best you can hope for is some provision towards living costs. If you had children together inheritance will pass to them. If there are no children then your partners family members will be next in line to inherit as part of Intestacy Rules.  

The next potential issue is inheritance tax. Couples who marry will and leave everything to their spouse will have ensured no inheritance tax is due on the estate. The opposite is true for unmarried couples where IHT can take away a significant chunk of the inheritance.  

These potential outcomes are avoided if a couple decides to marry and there have been some high-profile cases where a person has decided to marry just before death for this very reason.

Latest ONS Marriage Figures Reveal Ticking Time Bomb

Marriages between opposite sex couples continue to decline according to the latest figures released by the ONS leading to calls for legal reform as more and more couples appear to be choosing to cohabit rather than tie the knot.  

The report covers marriages in England and Wales that took place in 2015 which also happened to be the first year marriages were also recorded for same sex couples. According to the ONS, the report is the latest in a steady decline in the number of opposite sex marriages which has been taking place since the 1970s. On current evidence the trend is unlikely to be reversing with the number of marriages down 3.4% on the year before.  

These figures have raised concerns among experts that co-habiting couples are mistakenly believing they will have the same rights as married couples if they break up. This belief has been cultivated by the myth of common law marriage where people believe that they have the same entitlements to a share of assets when this is not the case.  

The only way to protect rights in these cases is to have a formal cohabitation agreement in place which outlines entitlements in the event of the relationship breaking down. There are also calls to make changes to marriage so that it better meets the needs of today’s couples.  

Changes to existing matrimonial law being considered by the House of Lords

The Divorce (Financial Provision) Bill received its second reading in the House of Lords last week. The Bill is a Private Members Bill introduced by Baroness Deech (Crossbench) and proposes to replace section 25 (2) of the Matrimonial Causes Act 1973.

Setting out the proposals to the Bill, Baroness Deech explained:

‘The purpose of this Bill is to reform the law relating to the splitting of assets on divorce.  The current law is the Matrimonial Causes Act 1973, section 25, which has not been thoroughly debated by Parliament for 40 years despite radical changes in society and families, and which has been the subject of calls for reform from the Law Commission, Resolution and the Centre for Social Justice. Reform is urgent because the law is uncertain. It is largely judge-made law, which bears little resemblance to the statute. Judicial discretion has led to unpredictability and conflicting decisions, which make it hard for parties to negotiate and lead to disproportionate costs. Legal aid has been removed and parties of modest means are left unrepresented with little guidance as to the right outcome. The Bill would implement provisions very similar to those of Scottish law, and the laws of most European and North American states. It would introduce as a fair starting point the equal division of all the property and pensions acquired by the couple after marriage; provision for short term maintenance; flexibility to allow the home to be retained for the carer and children; and binding prenuptial agreements. This is intended to facilitate mediation, reduce litigation and costs, and recognise equal partnership in marriage.’

The Bill is a long way off becoming law and may not even make it onto the statute books at all.

If you need to speak to a specialist family lawyer call us on 0161 927 3118.

67-year-old millionaire ordered by the Court to leave his home due to accusations of physical and emotional abuse towards Wife

The Family Division at the High Court heard that the Wife in this case, who is in her late 70s, was frightened of her husband, a 67-year-old millionaire from Essex, and took legal action against him. Judge Catriona Murfitt concluded that the Wife was likely to suffer ‘significant harm’ if the Husband stayed in the property any longer and therefore he was ordered to vacate the property.

The Husband went on to appeal this decision, stating that the ruling was ‘unfair’. Mr Justice Baker dismissed this appeal and told the Husband that he had ‘no prospect’ of overturning Judge Murfitt’s initial ruling. Mr Justice Baker went on to say that the Wife claimed ‘that for the duration of the marriage, she had been the emotional punch bag for his insecurities and frustrations’.

Mr Justice Baker said that Judge Murfitt held that the Wife was likely to suffer significant harm if an order was not made and that harm was greater than any harm which the Husband was likely to suffer from having to leave the property and he upheld this decision.

Occupation orders

If you are experiencing abuse following your separation or your former partner is acting in a vengeful manner and causing you to fear for your safety in the family home, as outlined in the case above, the Court can issue an occupation order against your former spouse.

An occupation order is an order setting out who has the right to stay, return, or be excluded from a family home. An occupation order doesn’t change the financial ownership of a home, it is usually a short-term measure and the length of time an occupation order lasts will depend on your circumstances. In many cases an order will last for between 6-12 months and some can be renewed. An occupation order can only be made for a property where you both live, did live, or intended to live in as the ‘family home’.

Our Family Law specialists are here to help and can provide the proper advice and guidance you need. You can talk to us in complete confidence about the legal steps you can take to bring your abuser to justice, to feel safe in the former matrimonial home and to legally end your relationship. Please contact us for an initial consultation today on 0161 927 3118.

One in 10 Couples Consider Divorce According to Research

According to research from Relate, one in 10 couples consider divorce at some point as everyday stresses take their toll on relationships.

While not every couple who consider divorce actually end up going through with it, many end up drifting towards divorce when relationships could have been saved. The research includes both married and co-habiting couples. Overall the findings suggest that 1.4 million families are already at their breaking point.

The most common problems triggering thoughts of divorce include the stress of parenting and financial pressures. The latter has been a major issue in recent years as people have struggled following the recent recession and the knock-on effect this has had on family finances.

The ultimate decision on whether or not to divorce depends a lot on individual circumstances and the reasons given. Often marital difficulties can be sorted out with counselling. Couples have the opportunity to seek help before differences become entrenched and there is little hope of saving the marriage.

It is also important to consider the wellbeing of children who can suffer just as much from being caught in the middle of conflict in a relationship as they would if their parents were to divorce.

Personal Injury compensation and Divorce – how divorce can impact upon damages received

A number of news articles have reported that there is a possibility that Simon Vaughan, a soldier who was severely injured in Afghanistan, will face losing some of his £1.1m compensation in his divorce. The final financial hearing in this case started on 21st September 2015. The outcome of this decision will depend upon the details of the family’s situation (which the media has not reported on).

In 2008, Simon Vaughan received a £1.1million payout after an attack in Afghanistan left him severely brain damaged. Simon and his former wife Donna separated in 2013. Mrs Vaughan has issued financial proceedings so that the court can consider the parties’ finances as a whole to enable her to raise the two children of the family. The mixture of monies from the military and insurance payouts has now reduced from £1.1million to £250,000 and Mr Vaughan is concerned that he could face losing some of this in the financial proceedings as he needs such funds for his ongoing care costs.

This case raises the issue of how injury compensation is treated in family law and in relation to the interpretation of ‘needs’ in financial proceedings. Mr Vaughan’s representation is hopeful that the outcome of this case will identify and test these principles fully for the benefit of others who are in a similar position to Mr Vaughan.

When the court are considering the impact of divorce on a damages award, compensation is not ring-fenced and is brought into the balance sheet just like shares or savings. The court do however undertake a balancing exercise and consider factors such as the welfare of the children, their standard of living, or in Mr Vaughan’s case, his disability will be a relevant factor that needs to be taken into account when considering the parties’ respective ‘needs’.

For advice and guidance on how personal injury awards are treated in financial arrangements on separation, or to discuss your current situation, please contact our specialist Family Law lawyers on 0161 927 3118 for a free 20 minute consultation.

Court of Appeal overturns decision as focused too much on ‘gender discriminatory’ guidance in Payne v Payne – change the court’s approach to relocation cases

The latest Court of Appeal decision on international relocation (Re F (International Relocation Cases) [2015]) has overturned an experienced judge’s decision because they focussed too much on the Payne criteria and not enough on the overall assessment of welfare. In the first instance in Re F, the mother was granted leave to remove the child to Germany. Lord Justice McFarlane held that the harm of separating the child from their father had not been properly evaluated.

Prior to this decision, the guidance in Payne v Payne was the first thing to be considered by a judge in hearing an application for relocation. Payne v Payne was a Court of Appeal decision in 2001 in which a father’s appeal against the removal of his child to New Zealand was rejected. The guidance given in Payne referred to questions which needed to be asked in relocation cases such as:

– Is the relocating parent’s application genuine, realistic and well researched?
– Is the parent’s opposition motivated by genuine concern or an ulterior motive?
– What would be the extent of detriment to the father and his future relationship with the child if the application were granted?
– What would be the impact to the relocating parent of the refusal of her realistic proposal?

The guidance in this case has been criticised for placing too great an emphasis on the wishes and feelings of the relocating parent and that the guidance usually assumed that the mother was the caring parent and usually the one who sought to relocate.

The guidance in Payne v Payne has been described as a gender discriminatory approach and Lord Justice McFarlane stated in Re F ‘in the decade or more since Payne it would seem odd indeed for this Court to use guidance which is out of context which was intended is redolent with gender based assumptions as to the role in relationships with a child’. Lord Justice McFarlane went on to say ‘the questions identified in Payne may not be relevant on the facts of an individual case and the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it.’

The effect of Re F is not that the guidance Payne v Payne had been overturned or set aside, instead it has been re-aligned as just one of the decisions based upon the welfare of the child. The guidance is still useful in some cases, however Re F clarifies that a court should never base its entire decision upon the questions identified in Payne v Payne. Re F shows the courts acknowledging the importance of the erosion of the quality of the relationship between the relocated child and the left behind parent.

This is a highly emotional area of family law for the entire family. Whether the relocation of a child is to another continent or in Europe, these cases present sensitive issues. It is essential to seek advice early, if possible at the time of separation as early decisions may affect how things turn out later on. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.