Uncategorized Archives - Stephanie Dew Law

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Why do I need a divorce lawyer?

Early legal advice during the divorce process is invaluable. It is never too soon to speak to a solicitor, they can advise you on likely outcomes which will enable you to make informed decisions about your separation. Where both individuals receive early legal advice, it is more likely that they will be able to reach a settlement as they will have a realistic understanding about their legal positions empowering them to make to resolve matters without litigation.

Whilst you can apply for your divorce online without the assistance of a lawyer it is usually worthwhile seeking professional advice about resolving the family finances.

Not obtaining early legal advice in relation to the finances can result in expensive mistakes such as:

You setting a precedent for spousal maintenance by paying your ex-partner much more that you should;
You agreeing a financial settlement that isn’t in your best interests;
Assets being moved, dissipated or hidden;
Increase your chances of going to court because you refuse to agree something that you would have agreed if you had understood the legal position.

Even if you have agreed the finances with your ex-partner and are happy with the outcome, it is crucial that you have that agreement formalised by a solicitor into a “consent order”. That will be submitted and approved by the court so that it is legally binding. Without a financial order being made the family finances are not resolved and there is an ongoing risk that your ex-partner could bring a claim against you in the future. It is the financial order, not the divorce order (decree absolute) that brings the financial tie between you to an end.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you.

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How do I choose a divorce lawyer?

Choosing the right solicitor for your case is absolutely crucial. Divorce is a stressful and expensive experience and you need to ensure that you have a solicitor who provides sound legal advice and will be supportive throughout the process.

Cost will be a major consideration when deciding who you want to work with. Legal fees are expensive and charges will vary depending on the solicitor’s experience and location. Whilst some providers offer a fixed fee for undertaking straightforward elements of the case (like preparing the divorce application), most contentious work is charged for at the solicitor’s hourly rate and the amount of time it takes them.

Whilst cost is a big consideration, you should not just be lead by price alone but find the person who is the right fit for your case.

If your divorce is complicated you should consider working with a more senior solicitor, someone who is more experienced. Although their hourly rate will be higher than a more junior solicitor their experience means that they will take a strong lead on your case with less chances of delays and problems occurring.

If you have a straightforward matter you probably don’t need to instruct a solicitor with 20+ years experience and the matching hefty hourly rate.

It is not uncommon for clients to feel extremely angry and hurt when they first instruct their solicitor. Often they are furious and with their ex-partner and want to “make them pay” or “take them to the cleaners”. It is rare that conducting a case in such a way will benefit you, whilst you may get some early satisfaction at the outset conducting the matter in such a way, it is usually much better overall to resolve the separation as quickly and painlessly as possible with minimal costs. Finding a solicitor who you can trust to explain your options and guide you through that process is crucial.

When choosing your solicitor it is really important that you build a good rapport with them. Make sure when you first meet them or speak to them that you feel comfortable with them or you may find it difficult to work with them going forward. You will have to share a lot of personal information with this person and there may be some really difficult conversations along the way so having a good working relationship is crucial.

It is worth investing some time to find the right solicitor for you at the outset of your matter. If you have doubts, speak to another solicitor and see if they feel like a better fit. It can be expensive to change solicitors during the divorce process so it is best to make sure you have the right person from the beginning. A lot of solicitors offer a reduced fee or a free initial meeting or telephone call. You can usually tell quite quickly when speaking to someone if you think you will be able to work with them. They will also want to ascertain that you are the right client for them and make sure they can help you.

Remember the role of your solicitor is to provide you with legal advice, to explain your rights and obligations and guide you through that process. In most cases you will also benefit from support from a counsellor and of course also from your friends and family. Divorce is a traumatic and stressful life event. Consider using a trained counsellor help you work through the emotional side of things and support you with issues you may have with your ex-partner such as anger or mistrust. Make sure you are only paying your solicitor for their legal expertise and that you are seeking emotional support from others.

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Can I get divorced without my marriage certificate?

To get a divorce in England and Wales, you must provide the court with a copy of your original marriage certificate.

If you have lost it, or your ex-partner won’t give it to you this can be a problem to getting the divorce process started. If you haven’t got your original marriage certificate, you will need to get a certified copy marriage certificate..

This is relatively straight forward, you can do this by applying to the General Register Office.

Details on how to apply can be found here:

https://www.gov.uk/order-copy-birth-death-marriage-certificate

There is a fee of £14 for the service and you can pay extra for a next day option.

If you were married outside of England and Wales, you will need to contact the relevant authorities in that country to obtain a copy of your marriage certificate. The country’s embassy is a good place to start, they should be able to direct you to the right agency.

If your marriage certificate is not in English, you will need to provide the court with a certified English translation when making the divorce application.

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What are my common law marriage rights?

None!

This is one of the biggest family law myths in England and Wales, common law marriage does not exist in this jurisdiction.

Unless you are married or in a civil partnership, legally, with a certificate to prove it, you will not benefit from the statutory protection divorce law offers divorcing couples.

Cohabiting couple families are the fastest growing family type in the UK, however as a family lawyer, I have real concerns about the lack of statutory protection available for these families when relationships end. Divorce law gives the family court the power to redistribute assets in accordance with fairness and each party’s financial need, however, cohabitant’s have none of this protection.

Legal Remedies for Cohabiting Couples

The law for unmarried couples is messy. There are some remedies available, however, they were not drafted with families in mind and are far from ideal.

Family Home

If you are purchasing a property with your partner you should do so following advice from a solicitor which reflects each of your legal interest in the property. Cohabitation agreements and declarations of trust in relation to properties and assets are something you should consider.

If you do not however own the family home jointly with your partner, it instead being legally owned by your partner, you may be able to to make an application under the Trusts of Land and Appointment of Trustees Act 1996, the burden will be on your to establish that there was a “common intention” that you should have a “beneficial interest” in the property and that you relied upon that common intention to your prejudice. This area of law is complex and it can be expensive to pursue a claim.

Child Maintenance

For couples with children the person caring for the children can make an application to the Child Maintenance Service for child maintenance. This maintenance is however only for the children, most people are surprised at the low level of maintenance required and it is not intended to provide for the carer. It is possible in some cases to seek further financial support for children under Schedule 1 of the Children Act 1989 depending on the wealth of your partner and if you think this may apply to your matter you should seek legal advice as you may be entitled to remain in the family home and receive periodical payments including a carer’s allowance.

Further disputes about money and assets are most likely to be considered a contractual dispute and would be dealt with under civil rather than matrimonial law.

What Should Cohabiting Couples Do?

Talk about your finances and what you will do if your relationship ends. If you do not intend to get married or enter into a civil partnership consider entering into a cohabitation agreement. I know it is not romantic, however many of the day to day practicalities of living with someone aren’t and your relationship may benefit from some advance planning on how you intend to handle the day to day responsibilities of living together. You can set out your intentions, who will pay for what, who will buy what and what the plan is if you were to have a baby. You can also set out a plan to set out how you would divide up your finances should your relationship end. A little legal advice and planning at an early stage could save a lot of stress, anxiety, time and legal costs if your relationship ends.

Pensions are also a crucial consideration. Unlike married couples who usually automatically benefit under their spouses bill, partners will need to be nominated in order to be eligible for any death in service benefits.

Lastly, it is really important that you have an up to date will. If you aren’t married and your partner doesn’t have a will you have no rights to their estate. There may be some protection offered under the Inheritance Act (Provision for Family and Dependents) Act 1975, but that will be dependent on your circumstances and will require an application to the court. It will be much more straightforward if there is a valid will in place making appropriate provision.

What is a prenuptial agreement?

A prenuptial agreement or “prenup” as they are often known is a legal document drawn up by a couple before their marriage. A pre-registration agreement can be similarly prepared for those entering into a civil partnership. These agreements will set out how the couples intend their assets to be divided between them in the event of a divorce.

The aim of the prenuptial agreement or pre-registration agreement is to provide clarity for couples in the event that their relationship breaks down. Rather than leave the redistribution of assets to the discretion of the courts, a prenuptial agreement offers certainty as to how family finances can be resolved in the event of a divorce.

Is a prenuptial agreement legally binding?

Whilst prenuptial agreements are not necessarily legally binding in the UK, they are becoming more and more accepted by courts as proof of a couple’s intentions should they divorce in the future. In February 2014, the Law Commission published its report “Matrimonial Property, Needs and Agreements” which recommends that for prenuptial agreements to be enforceable, certain requirements be met. These are in summary:

The agreement must be contractually valid ( and able to withstand challenge on the basis of undue influence or misrepresentation, for example). This means that it must be entered into freely and willingly by both parties. No pressure should be put on a party to enter into the agreement.
The agreement must be made by deed and contain a statement signed by both parties that they understand it is enforceable and will partially remove the court’s discretion to make financial orders.
The agreement must not have been made within 28 days immediately before the marriage or civil partnership.
Both parties must have received, at the time of making the agreement, disclosure of material information about the other party’s financial situation. If it later materialises that full disclosure was not provided it is likely the agreement will not be upheld.
Both parties must have received legal advice at the time that the agreement was formed.
The terms of the agreement must not prejudice the reasonable requirements of children.

What would a prenuptial agreement include?

Every couple’s prenuptial agreement will be prepared based on their individual circumstances.

The agreement should contain an inventory of each of your assets, how you wish for them to be dealt with during your marriage and how they will be split should your relationship break down. If there are any assets you would prefer not to be divided or split between you and your partner if you were to divorce, then these should be included in your pre-nuptial agreement.

Protecting one party’s inherited money, assets or savings;
Protecting children’s inheritance or specific assets;
How joint assets should be split;
How a business should be dealt with;
How debt will be shared;
How pensions should be dealt with;
How stocks and shared will be split;
Whether any spousal/child maintenance should be paid and how much.

What can’t be included in a prenuptial agreement?

It is important to ensure your prenuptial agreement is properly drafted so that it is enforceable. Whilst a wide range of assets can be included, there are strict rules about what can and can’t be included. Issues which are excluded are:

Child support;
Child arrangements including visiting arrangements and decisions about religious upbringing and schooling;
Illegal or unfair matters;

Do I need a prenuptial agreement?

If you have significant more wealth than your future spouse, or are likely to acquire assets in the future you should give consideration to a prenuptial agreement. Prenuptial agreements protect your personal wealth in the event of a divorce and are particularly important for those with a large inheritance, landowners, business owners, couples marrying later in life or entering a second marriage.

Can you change your prenuptial agreement after your marriage?

A prenuptial agreement cannot be modified after its been executed, however during the marriage you may want to prepare a postnuptial agreement. A postnuptial agreement can take into account any change in circumstances that cause you to seek to vary the terms in the original agreement. This document would replace the original prenuptial agreement.

I am already married, is it too late for a prenuptial agreement?

Following your marriage you can enter into a postnuptial agreement. This should be prepared in the same way as a prenuptial agreement in accordance with the Law Commission recommendations (set out above) if you want it to be upheld by a court in the event of your divorce.

When will the court refuse to enforce a prenuptial agreement?

The key question the court will consider when deciding whether to enforce the prenuptial agreement is whether it is fair to both parties. They will consider the points set out in the recommendations made by the Law Commission including whether there was full financial disclosure when the agreement was entered into and that you both obtained independent legal advice.

The Supreme Court set out the following three factors which increase the likelihood of a prenuptial agreement being upheld in court proceedings:

It must be freely entered into;
Both parties should understand the implications;
It should not be unfair and hold parties to their agreement in the circumstances prevailing.

How do I make a prenuptial agreement?

In order for your agreement to have the best opportunity of being upheld by a court, you must:

Have the agreement prepared by a qualified family lawyer;
Both parties must obtain independent legal advice;
Both parties must fully understand the agreement and agree to it willingly;
Both parties must disclose all assets and property fully.

Can we make a joint application for divorce?

Yes, recent changes to the law mean that for the first time it is possible for a couple to apply jointly for a divorce. Whilst it is still possible to apply individually, a joint application is likely to be the best option in most situations.

Making a joint decision to apply for a divorce can be seen as a positive step forward when a relationship has broken down. Rather than one person taking the lead and the other perhaps feeling ambushed or shocked, a joint application ensures that both parties are well aware of the divorce from the outset and will feel fully involved and are more likely to engage with the process.

If you can start the divorce process in a (relatively) amicable manner, when you are both emotionally ready to proceed, it is much more likely that you will then be able to deal with resolving your finances and the arrangements for your children in a smoother manner.

When applying jointly for a divorce application, one person will take the lead – Applicant 1, the other will be Applicant 2. If at some point during the process your relationship deteriorates significantly or one person is not engaging with the process, it is possible to switch to an individual divorce application so that progress can be made.

I’ve set out in more detail the process for applying jointly in another blog.

How do I make an individual application for a divorce.

Step 1: Apply online

Whilst instructing a solicitor is not required when submitting a divorce application, if you have been unable to agree to make a joint application with your ex-partner it is likely your relationship is quite acrimonious and some professional input will likely be of real benefit. You may not need to instruct a solicitor to apply for the divorce but an initial consultation is likely to be of real benefit early on if your separation is particularly difficult.

The divorce process includes not only obtaining the final divorce order, but you may also have to make arrangements for your finances and children. It is the financial and child arrangements which usually prove to be the more difficult areas to resolve and which are at risk of escalating to contested court proceedings with escalating costs and significant delay.

The divorce application is usually the first step on the road to separation and can set the tone for the whole case going forward. Seeking early advice from an experienced solicitor can assist with getting the case on the right track, minimising the potential for conflict and possible protracted proceedings in relation to your children and finances going forward.

You can access the divorce application portal here:

https://www.gov.uk/divorce/file-for-divorce

Please ensure you use the gov.uk website and not any other. There are many “divorce provider” websites who will charge you a fee for submitting the application on your behalf.

The court fee for applying for a divorce is currently £593. If a website asks you for further funds you are likely in the wrong place.

You can make a paper application, however I strongly recommend you apply online, it is quicker and you are less likely to make a mistake on that form.

In terms of making the application, one party will make the application they will be known as the “Applicant”, the other party will be known as the “Respondent”.

The Applicant will be responsible for paying the court fee.

Step 2: The court starts the divorce process

After your application has been submitted, it takes 2 weeks before the process officially begins, this will trigger the 20 week reflection period.

The reflection period is in place firstly to allow the couple to change their minds about the divorce and secondly to make arrangements for their children and finances.

The court will send your partner a copy of the divorce petition and the “Acknowledgement of Service” (AOS), you parter has 14 days to complete the AOS and return it to the court.

Step 3: You apply for the conditional order

After the 20 week reflection period, (assuming that the Respondent has promptly returned the AOS) you can apply for the conditional order. (Previously known as the Decree Nisi).

Step 4: The court reviews your application for a conditional order

When your application for the conditional order is received by the court, a legal advisor will review your application. If they approve your divorce, they will issue you with a Certificate of Entitlement to confirm the date of your conditional order. This step takes one to two weeks.

Step 5: The court grants the conditional order

The date of the conditional order will be around 4 to 5 weeks from the certificate of entitlement.

Once the court grants the conditional order, the second compulsory waiting period begins, this time for 6 weeks. This stage is significant as it is only when the conditional order has been granted that you are permitted to submit any financial orders such as a consent order or clean break order in relation to any financial agreements you have made.

Step 6: You apply for the final order

After a minimum of 6 weeks have passed you can apply for the final order (previously known as the Decree Absolute) to finalise your divorce.

Step 7: The court grants the final order

The court will issue the final order a few days after your application. A copy will be sent to both of you and this final order means you are officially divorced. You will need to keep this order safe, as you will need it in the future as proof of your divorce.