1.3. What Orders will the Court make in relation to the children?
The Court will not make any orders if you and your spouse are able to agree the future arrangements for your children. If there is a dispute the Court can decide where the children should live and how much contact each parent should have with them.
Many issues are taken into account when dealing with financial issues on divorce or separation. These include how long you have been married, your respective contributions to the marriage (both financial and otherwise), the value of your assets. The interests of your minor children are the first consideration. Both you and your spouse must provide full and frank disclosure of your financial circumstances, including your assets, income and pensions. We have extensive experience in dealing with financial matters on divorce and can advise you of the best outcome for you.
If a financial settlement can be reached the basic cost of securing the divorce and financial order by agreement should not be significant. We can advise you of the likely costs at your first appointment. If Court proceedings are necessary the costs will be much more. We will keep you fully informed of the costs throughout your case. If you are on a low income you may qualify for legal aid which we offer.
The average length of an uncontested divorce is 4-6 months. However, if financial matters are not resolved during that time the divorce is unlikely to be made final until they are.
At present cohabites do not have the same rights on relationship breakdown as married couples. The law in this area is extremely complex and is dependant on each individual’s circumstances. We can advise you on whether you have a claim against your partner’s assets.
The concept of common law husband and wife is a myth. A cohabitee cannot claim maintenance for themselves against their former partner. In certain circumstances the Court can order financial provision if your partner dies.
The Court will not make any Orders in relation to children unless there is a dispute between the parents regarding the arrangements for the children. If the parents are not married only the mother will have Parental Responsibility for the children, unless this has been granted to him by the mother, or unless the father is registered on the birth certificate after 1st December 2003. Our team can advise you as to your rights and responsibilities as a parent so that you can make important decisions concerning your child’s welfare.
The costs will depend on what is involved in reaching a settlement or if necessary going to Court. We will discuss costs with you at various stages of your case and give you an estimate at the outset. If you are on a low income you may qualify for legal aid which we offer.
2.5. Does it make any difference if I am in a same sex relationship?
The law does not present differentiate between opposite sex and same sex partners. However, from 23rd December 2005 same sex couples will be able to register their relationship as a civil partnership. This will enable them to acquire rights and responsibilities similar to married couples. We can advise on how the Civil Partnership Act will affect you and prepare Agreements to help protect your assets.
Parents are encouraged, where possible, to make decisions together about issues concerning their children. These issues can include where the children should live, how often each parent should see the children, where they go to school. We can advise on what is best for you and your children given your particular circumstances. Many couples find it helpful to discuss these issues in Mediation (LINK) which we can also offer.
If an agreement cannot be reached we can represent you in Court to look after your and your children’s interests.
3.2. Do I have Parental Responsibility for my children?
If you are married both parents have parental responsibility for children. Parental responsibility is defined as all the rights, duties, responsibilities which a parent has for a child. In practice this gives you a say in decisions concerning the child’s name, education, travel abroad and medical treatment.
If the parents are not married only the mother will have Parental Responsibility for the children, unless this has been granted to the father by the mother, or unless the father is registered on the birth certificate after 1st December 2003.
Our team can advise you as to your rights and responsibilities as a parent so that you can make important decisions concerning your child’s welfare.
If you are married to the child’s father or if the father has Parental Responsibility for the child you cannot change the child’s surname nor do anything which would allow the child to be known by any other name. If you are not married to the father and he does not have Parental Responsibility we recommend you seek legal advice.
If possible you should tell the children what is happening early on, and if possible tell them together. Communicating the decision to separate is never easy. If you agree to tell the children what is happening together you are immediately reassuring them that in so far as the arrangements for their welfare is concerned you are still capable of acting together.
The costs will depend on the amount of work we do for you. If Court proceedings are necessary this will increase the costs. We will give you an estimate of the costs you are likely to incur at the outset of the case and advise you during the case of the costs you have incurred. If you are on a low income you may be eligible for legal aid which we offer.
The parent with whom the child does not live can be assessed by the Child Support Agency to pay child support. Many parents are able to agree the amount using the CSA calculations as a guideline.
The amount is based on a percentage of your earnings up to a total of £104,000 net per year. The basic rate is 15% for one child, 20% for two children and 25% for three or more children. Lower earners pay a reduced rate and a nil rate applies to special cases such as students, children and prisoners. The amount of time the child stays overnight with the non-resident parent can also affect the amount payable.
4.2. Do I have to pay child support if I live overseas?
The Child Support Agency cannot assess or enforce maintenance payments against you if you live abroad. However, the parent with whom the child lives can make an application to the Court for an Order that you pay maintenance.
4.3. Do I have to pay if I do not have Parental Responsibility?
Yes, if you are the father of the child you are liable to be assessed to pay child maintenance whether or not you have Parental Responsibility.
It is an agreement entered into by you and your partner (either before you start living together “a cohabitation agreement” or before you marry “a pre-nuptial agreement”) which sets out what you wish to happen in the event the relationship breaks down.
It can help to protect your interests if the relationship with your partner ends. You both decide what you would wish to happen taking into consideration your own particular circumstances. Without it there may be uncertainty as to who owns what assets and how to deal with financial issues.
It depends on the terms of the agreement you have signed. Pre-nuptial agreements are becoming more popular. Although not legally binding the existence of an agreement is now recognised as something the court should take into account. They are particularly appropriate in the case of second marriages where the parties wish to preserve their assets brought into the relationship and the future inheritance of their children.
The cost depends on what type of agreement is prepared and how much time we spend dealing with matters. We will provide you with an estimate of the likely cost at your first appointment.
6. Collaborative Law
6.1. What is Collaborative Law?
Collaborative law is a new approach to dealing with the issues involved when relationships breakdown. The parties and solicitors enter into a Collaborative Law Agreement in which they agree to work together to resolve issues and not to go to Court.
· Negotiations and settlement take place in four way face to face meetings between the parties and their lawyers. Average number of meetings is usually 4-6.
· Both parties need to provide full and frank disclosure of their financial positions. The parties commit to negotiating in good faith without the threat of court proceedings.
· Each party has their lawyer present throughout to advise and guide them.
· The parties remain in control and make decisions about the future of themselves and their children.
· When an agreement is reached this is made into a legally binding agreement by the lawyers.
Collaborative lawyers charge by the hour as do conventional family lawyers. The cost will depend on the number of meetings with yourself and your partner and their collaborative lawyer and on the issues to be resolved. However, dealing with matters collaboratively is significantly cheaper than going to Court and for a decision about your future being made by a Judge.
Pauline Purcell was one of the first trained Collaborative Lawyers in England and her legal skills and multi-disciplined approach will help you resolve issues in a constructive and civilised manner.
Mediation is a process whereby a couple agree to try and resolve issues that arise as a result of their separation with the assistance of an impartial third party, a Mediator, as opposed to through their solicitors or the Courts.
Any financial issues or issues relating to the care or upbringing of children can be resolved at mediation. For example what should happen to the family home, how much maintenance should be paid, how should the pensions be split or parenting issues such as where should the children live and how often should they see the non-resident parent? Post separation/divorce issues can be dealt with in mediation such as where the arrangements for the care of the children need to be revisited or part of a financial settlement needs to be varied due to a change in circumstances.
Mediation is a voluntary process. The parties enter into an Agreement to Mediate before the process can begin. All discussions take place on a “Without Prejudice” basis which means the parties are free to express opinions and creatively explore options in the knowledge that their discussions cannot be referred to either in legal correspondence or Court should an agreement not be reached. Once matters are resolved the parties should arrange for their solicitors to advise on the proposed agreement and if appropriate incorporate it into a legally binding agreement.
7.4. How long does Mediation take?
Each session lasts approximately one and a half hours and the average number of sessions, depending on the issues will be approximately 4-8 sessions.
The Mediator will charge an hourly rate, usually similar to a solicitors hourly rate. As mediation is an alternative to each party retaining a Solicitor it is invariably cheaper. The likely costs of mediation will be explained at the first appointment?
