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When problems arise in families they can be understandably distressing. As a result you may find it hard to concentrate on legal technicalities, or details which may be important. Speaking to someone who will understand your situation and the way you feel will help. At the same time of course, you need to be sure that they are looking after your interests.
We have a large Family Law Department. Within the department we have specialists in most areas of family law from Child Care work to International Child Abduction. Many members of the department are members of the Solicitor's Family Law Association which sets high standards for membership.
Because you may need help in many areas, we have produced this guide to Family law.
- introduction
- living together
- separation
- divorce
- nullity
- judicial separation
- injunctions
- children
- financial matters
- care proceedings
Introduction
You may be part of a happy, united family, or just moving into your first home with your girlfriend or boyfriend, or engaged in a bitter battle over your children or money and property. Whatever your circumstances, some aspect of family law could apply to you.
All too often, at the very time you most want to be decisive and clear-headed in making important decisions about your future, you're actually feeling confused and distressed because a relationship has turned sour. A lot of legal jargon is the last thing you want to hear at a time like this.
That's why we have written this guide, so that we can explain the legal rights and duties that arise from living together, being married, being separated, getting divorced or being a parent. One or more of these situations could apply to you and we feel that it is important that you are fully aware of all the legal implications.
We will be taking a look at the urgent needs of both husband and wife following a marriage breakdown. We will also look at the needs of the children in the event of a separation or divorce, the financial side of a marriage breakdown and other, less obvious, aspects of family law.
As lawyers with considerable experience in such matters, we will try and relieve you of as much anxiety and trauma as possible and, when appropriate, will encourage a reconciliation between the parties.
Today's lawyers specialise. That's why we have created a Family Law Department.
Our solicitors and staff are trained in all these matters and can advise you on your specific needs and requirements.
We hope this guide will help you to understand our function and will enable you to see the range of topics upon which we can assist and advise you. If there is anything that you do not understand, please do not hesitate to discuss it with us. We must however, respectfully remind you that we cannot accept any responsibility for action taken solely by reference to this guide.
Living Together
Couples who live together do not necessarily have the same rights and obligations as married couples.
For example, you may live together in the same house but the house itself may be in the sole name of your partner. This does not mean that you have no legal interest in the property. Sometimes, both parties may have an equal interest in the property.
If you are contemplating living with someone in the same house, we will be able to advise you on the implications and perhaps be able to suggest one or two ways of protecting your rights before you either buy or rent a property.
We can advise you of your rights if the house needs to be sold; whether you should move out and on any ownership disputes over furniture, cars, jewellery and other property.
As lawyers it is not only our job to advise you on the law, but also to do our best to give you practical advice which means that quite often we can settle disputes without having to go to Court.
Separation
By the time you contact us you may have already decided that your marriage has broken down.
However, you may simply want to talk about your rights and to be given some assurance that your interests are protected. You may also wish to discuss the possibility of a reconciliation.
We can provide such assistance by putting you in touch with all the organisations who deal in this field of work. We may also be able to discuss the prospects of reconciliation directly with your husband or wife or their solicitor.
If a reconciliation is not possible, it is important that you act as fast as you can to ensure that your rights are properly protected. You might have to take emergency action, such as applying for an injunction; applying to the Court for an Order relating to your children; making an application for maintenance for yourself or making an application to the Child Support Agency for child maintenance; making an application to ensure that your spouse does not dispose of family assets; commencing divorce proceedings or simply applying to the Benefits Agency.
This is likely to be a confusing and distressing time for you so remember that the sooner you contact us, the sooner we will be able to relieve you of some of your worries by sorting out the legal side of the separation.
Divorce Proceedings
The sole ground for divorce (which usually can only be obtained after at least one year of marriage) is the irretrievable breakdown of the marriage.
In addition you must show one of the following facts:
- That the behaviour of your partner during the marriage was unreasonable.
- That your partner has "deserted" you for a period of more than two years.
- That you and your partner have been separated for more than two years and you both consent to a divorce.
- That you and your partner have been separated for at least five years.
We will be able to advise you on which is the best course of action to take, how long the proceedings are likely to take, what happens if the divorce is defended, the costs of the divorce and also on the various steps that must be taken as the proceedings go through the Courts.
Divorce proceedings usually begin in the local County Court and, provided they remain undefended, usually take less than six months to be completed. There is no fixed time and each case varies. If the arrangements for the children are not agreed there are procedures for resolving the disagreements. However the Court may decide that the divorce is not to go through until an agreement has been reached. Disputes over money or property are less likely to hold up the divorce.
If your partner for some reason wishes to defend the divorce then proceedings will take longer to resolve. Defended divorces can take a long time and cost a lot of money. Normally, Legal Aid is not available so they do not happen very often.
We will take all appropriate action to ensure that the proceedings are completed as quickly as possible.
There are a number of complicated forms and documents that must be completed as the matter proceeds. We will complete these on your behalf and will lodge all the documents at the Court.
It is often possible, in divorce proceedings, that neither party has to personally attend Court. An appearance at Court will only be necessary if there are arguments about the children or money and property.
Nullity Proceedings
It is sometimes necessary for a decree of nullity to be sought. This is a declaration by the Court that the parties have, in law, never been married. It may be available where, for instance, one of the parties was already married at the time of the ceremony, where the marriage has not been consumated or where one of the partners did not consent to the marriage taking place. Nullity proceedings are not common but we will be able to advise you as to whether or not they are applicable in your case.
Judicial Separation Proceedings
A petition for Judicial Separation may be issued on the same grounds as a Divorce Petition and is used where the husband or wife does not wish to obtain a divorce, or where the parties have not been married long enough. It is often used in cases where one party objects to a divorce on religious grounds.
As in divorce, once Judicial Separation Proceedings have commenced the Courts can determine other issues relating to the children, maintenance and the future of the matrimonial home. A Decree of Judicial Separation does not, however, enable either party to remarry.
Injunctions
In cases of violence in the home we can help you to obtain the protection of the Courts from a violent partner. Injunctions can often be obtained at very short notice from the County Court and Magistrates Court. If you are placed in a situation where you fear for the safety of yourself or your children then we can offer immediate advice and assistance.
Where there is violence in the home it is important to obtain prompt and efficient advice. In such cases we will see you on the same day you contact our office to ensure that you obtain immediate help.
Remember we are a Legal Aid Practice and in such matters you may be able to get free advice and assistance. Further, we have been granted a Legal Aid Franchise and we can use our devolved powers and grant Emergency Legal Aid in appropriate cases so that we can apply to the Court for an immediate Injunction without notifying your violent partner first.
Once obtained, an Injunction will order your partner to stop assaulting or molesting you, and may even order that your partner does not contact you. The Court may also order your partner to leave your home and find alternative accommodation.
It is not necessary to commence any form of separation or divorce proceedings to obtain an Injunction.
Children
In any family law dispute whenever there is a child involved, it is the welfare of that child that is the paramount consideration. In many cases the parties to a divorce often agree between themselves as to who is going to look after the children and what the arrangements for contact are to be with the other parent.
We are able to offer advice regarding all matters relating to your children. Where an agreement has been reached the Court may not consider it necessary to make any Order at all. The Court will only make Orders if it is better for the children to do so. In these cases consideration will then be given to the making of a Residence or Contact Order. A Residence Order deals with where a child should live and a Contact Order concerns the visiting or staying arrangements.
It is essential to try to agree a sensible and workable arrangement over children early on in a marriage breakdown. If you are unable to reach an agreement with the other party we can negotiate on your behalf. If an agreement cannot be reached then we can advise you on the merits of making an application to the Court.
In many disputes over children the Courts may order a Welfare Officer to carry out an independent investigation into the needs and requirements of the children and both parents. We will be able to advise you on the role of the Welfare Officer and will help you to ensure that the report reflects your wishes.
In cases where there are no divorce proceedings or where the parents are not married, the above considerations also apply. We will be able to advise you on the merits of making an application and as to the procedure involved. If an application is made to the Court we will attend the Court hearings with you, put your views and wishes to the Court and ensure that your interests are fully protected.
An application to the Court for a Specific Issue Order or a Prohibited Steps Order may be necessary in some cases. A Specific Issue Order deals with specific questions that have arisen regarding a child for instance changing a surname, and a Prohibited Steps Order is used to stop certain things being done such as a child changing schools.
Financial Matters
Probably your biggest worry at a time when you and your partner have separated, or are about to separate, will be the financial implications. There are often complex questions involved and lawyers who specialise in family and matrimonial law can advise you you on these. It is also important that you are aware of the tax aspects of separation and divorce. Matrimonial lawyers understand the inter-relationship of matrimonial and taxation laws. We also have excellent contacts with firms of accountants experienced in dealing with such problems. If your situation merits further accountancy advice we will liaise with an accountant to ensure that you receive all the help, advice and assistance you require.
For those people on low income or in receipt of state benefits we can also provide valuable help and guidance.
A. Maintenance for you - How to Apply
(i) Family Proceedings Courts
You do not have to apply for a Divorce or a Judicial Separation in order to obtain maintenance from the Court. The procedure in issuing proceedings is normally speedy and efficient. Once obtained, the Court will ensure that payments are made regularly and if not will ensure that the person responsible for making payments is brought back before the Court for the Order to be enforced. The Court also has the power to make a Maintenance Order where both you and your partner have agreed the amount to be paid
(ii) Variations
You may already have some form of Maintenance Order. With inflation and other changes in circumstances that Order may need up-dating and we will be able to advise you on the merits of applying for an increase or decrease. As your personal and financial circumstances change from time to time we can provide help and assistance as to whether or not a variation should be obtained.
B. Property Adjustment and Lump Sum Orders in Divorce or Judicial Separation Proceedings
As well as wishing to clarify the position on maintenance payments you may also need expert advice and assistance relating to the former matrimonial home and other property owned by you and your partner. It may be the case that you wish to continue living in the former matrimonial home or it may be inevitable that the house will have to be sold. It may be possible for one partner to buy out the other partner in order to remain in the house. It may also be possible to agree a settlement where the home remains in the joint names of both partners and cannot be sold until the youngest child is a certain age. At that stage the property is sold and the proceeds divided either by agreement or by an Order of the Court. In all cases we will try to reach an agreement with your partner and his/her solicitors and where this is not possible we will be able to assist you in applying to the Court for the future of the property to be decided.
If the former matrimonial home is a tenanted property the Court can transfer the tenancy over to one partner.
We will also be able to help with a division of the contents of the house and any other family assets.
C . A Clean Break
In some cases the ideal solution following a divorce is to settle everything so that neither partner can ever make a financial claim again. This means that the lawyers and the Court would not need to be involved again. This is what is known as a Clean Break and all future rights to maintenance are terminated. A Clean Break Order is often appropriate in cases where both partners are working and have no children.
D. Lump Sum Orders for Children
The Family Proceedings Court and the County Court have the power to order the payment of Lump Sum Orders for children even where the partners are not married. There must obviously be available capital and if proceedings are issued in the Family Proceeding Proceedings Court the Court can only order a small lump sum up to a maximum of £1,000.
E. Child Support
The Child Support Agency, which is a government body, now has responsibility for the assessment, collection and variation of child maintenance. A Child Support Officer assesses the maintenance payable following a complex mathematical formula. If you are in receipt of Income Support or Family Credit the Child Support Agency will become involved automatically. If you are not dependent on such benefits an application can be made to the Agency on payment of the appropriate fee. We can advise regarding how the Child Support Act 1991 will affect your case and if necessary we can prepare a Child Support Assessment on our computer package. The Child Support issue will be relevant in deciding what sort of financial settlement you should achieve so advice is essential.
Care Proceedings
The introduction of the Children Act 1989 brought sweeping changes to the law concerning the protection of children. The Local Authority is under a duty to make enquiries wherever it suspects a child is suffering significant harm. These enquiries may lead to the Local Authority applying to the Court for an Emergency Protection Order, a Care or Supervision Order. As lawyers with widespread experience in these matters we would be able to assist you in such proceedings. ALL parents, regardless of their income or savings, are entitled to FREE Legal Aid. This is called Non Means Non Merits Legal Aid.
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