Divorce Financials – The Process

As outlined in our blog “Divorce – The Financials” a Decree Absolute will bring your marriage to a legal end. However, it will not end your financial commitments between yourself and your former spouse. A decision will need to be made as to what will happen to the family home, bank accounts, possessions, pensions and other assets.

To sever all financial ties between yourself and your former spouse you will need to apply to the court for a Financial Order.

Mediation must be considered prior to making an application to the court. If a resolution cannot be reached you need to attend a MIAM and obtain a certificate before proceedings can be issued. We work hard to try to avoid wherever possible the need for contested court proceedings. In any event, if proceedings become necessary, we would act in your best interests to achieve the best possible outcome for your situation.

If you are unable to agree how to split your finances then you can approach the court and a Judge will help you decide how you will split up your money, property and possessions. To do this you must apply for a Financial Order. This process is sometimes referred to as ‘ancillary relief’.

Once proceedings are issued the court will set down directions including the requirement for financial disclosure and the case will be listed for a first appointment before a Judge. Disclosure is the provision of all financial documents including but not limited to:

  • bank statements for the last 12 months
  • credit card balances and often statements for the last 12 months
  • value of your home and all other property
  • current mortgage statement
  • pension valuations
  • business accounts for the last 2 years
  • P60 and wage slips if employed

The parties also have the opportunity to ask questions regarding the other’s disclosure. Ideally all disclosure is complete before the first hearing. This enables your legal representation to negotiate on your behalf at court. At this stage, if both parties reach an agreement and the Judge agree, the Judge can issue a ‘Final Order’. This will bring an end to the matter.

If there is no agreement, you will have to attend a Financial Dispute Resolution (FDR) hearing. An FDR is an informal meeting at court, both parties must attend unless the court orders otherwise. Both parties are encouraged to negotiate a settlement at this stage and the Judge will usually give an indication as to a final settlement if the matter proceeded to a final hearing, although it is not legally binding. However, if an agreement cannot be reached, the case will be listed for final hearing.

At the final hearing, the Judge will decide the outcome based on all the evidence. This decision will be shown on a ‘Final Order’ giving details of any arrangements that have to be made as part of the Order. Both parties must obey this decision.

Sarah Watson is a solicitor with over 10 years of experience. She is different to other lawyers, she genuinely cares about the outcome of your case. She will guide you and support you in any way she can.

If you require assistance in relation negotiating a financial settlement with your former spouse or you believe court proceedings are the only option (it does not matter if you have started the process yourself and need guidance) please contact one of our friendly team at Watson Legal either by calling 01279 466910 to book your free 30 minute consultation with Sarah or email info@watson-legal.com

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Divorce Financials – Who Gets What?

A Decree Absolute will bring your marriage to a legal end. However, it will not end the financial tie between yourself and your former spouse. A decision will need to be made as to what will happen to the family home, bank accounts, possessions, pensions and other assets.  Following a divorce, getting back in control of handling your finances as soon as possible will assist with the process of moving forward in your life. Whether the relationship breakdown is your choice or not it gives rise to many different emotions; anger, relief, sadness, frustration to name a few. These emotions invariably change as you travel through your journey. That is why it is important to obtain advice from a lawyer who not only understands but will provide honest advice.

To sever all financial ties between yourself and your former spouse you will need to apply to the court for a Financial Order. This will make any financial settlement legally binding. It is important the settlement becomes legally binding to prevent any action being taken in the future. Action can be made by either yourself or your former spouse. Many people assume that if they do not have any assets at the time of the divorce, there is no point in obtaining a Financial Order. It is wrong to assume this, because there is always the possibility that you or your spouse may come into some money in the future. If this is the case, your former spouse is within their legal rights to make a financial claim against you.

There are two ways in which you can obtain a Financial Order; either by agreement or with the assistance of the court.

It is advisable wherever possible to try and reach a resolution without the need for a judge’s intervention. However, if you reach an agreement with your former spouse in relation to the split of all marital assets, the Court will still need to be involved albeit as a paperwork exercise by way of a Consent Order. Once an Order is sealed by the Court, it brings the financial claims to an end. This is far more cost effective and usually faster.

The court process where an agreement cannot be reached is set out in our blog “Finances – The Court Process”

Sarah Watson is a solicitor with over 10 years of experience. She is different to other lawyers, she genuinely cares about the outcome of your case. She will guide you and support you in any way she can.

If you would like assistance in negotiating a financial settlement with your former spouse or require assistance in terminating your former spouse’s rights to make a claim in the future, please contact one of our friendly team at Watson Legal either by calling 01279 466910 to book your free 30 minute consultation with Sarah or email info@watson-legal.com.

No assets in my divorce – no Court Order needed right? Wrong!

Decree Absolute will bring your marriage to a legal end. However, it will not end the financial tie between yourself and your former spouse and potential claim against your assets and income in the future. There are only two ways you can sever the financial tie; by Financial Order by the Court or remarriage.

Even death of your former spouse does not necessarily cut the financial tie. Where you are in the divorce process can also have an impact. If for example the decree nisi has been granted but not the decree absolute, then in the eyes of the law you are still married. So, your husband or wife would still benefit, unless your Will has been changed.

If you are financially dependant on your former spouse at the date of death, you may also be able to make a claim against their estate.

If the Financial Order has been granted, the administrator of your former spouse’s Will should still comply with the Order, save in respect of spousal maintenance as that does usually terminate on death.

Given the complexities of this area we always advise our clients to obtain a Financial Order, even if you have no assets and limited income now. After all, this could change.

A Financial Order can be by way of Consent Order rather than a Judge making a decision regarding your assets. Whether you have no assets, limited assets or have a portfolio of assets the Court must be fully satisfied that you both are aware of each other’s financial position. This means both parties must provide full and frank disclosure of their assets and liabilities, even if it is zero.

You may think there is no value to obtaining an Order now. You may think it is a waste of time, money and stress, but actually it could save you later down the line. In the case of  Wyatt v Vince [2016] EWHC1368 (FAM) Mrs Wyatt sought to make a financial claim 19 years after the divorce. By this time Mr Vince had a £57m fortune. Mrs Wyatt was granted a modest lump sum. This demonstrates that even if you have divorced and reached a ‘informal’ agreement between yourselves if either of your financial positions change many years later a claim can still be made.

Another example is where Nigel Page won £56 million on the EuroMillions Lottery. Mr Page was forced to give his ex-wife £2 million of his windfall, ten years after she left him for another man.

Whether you need a complex Financial Order for a portfolio of assets, a simple Financial Order for limited assets or you have no assets and simply need a Clean Break Order, we will protect your position for the future.

We offer packages for limited or no asset settlements to ensure your legal fees are kept to a minimum.

Sarah Watson is a solicitor with over 10 years of experience. She is different to other lawyers, she genuinely cares about the outcome of your case. She will guide you and support you in any way she can.

If you require assistance in relation negotiating a financial settlement with your former spouse or would like to find out more about our clean break packages, then please contact one of our friendly team at Watson Legal either by calling 01279 466910 to book your free 30-minute consultation with Sarah or email info@watson-legal.com.

Holla, “We want prenup! We want prenup!”

1) What is it?
A prenuptial agreement AKA a premarital agreement or an antenuptial agreement, can commonly be abbreviated to prenup or prenupt.
It is ultimately a formal, written contract between parties prior to their marriage or civil union.

2) Are they legally binding?
As a result of the UK Supreme Court ruling in Radmacher v. Granatino (2010), prenuptial agreements are now given heavy evidential weight within the UK Family Courts, unless considered to be unfair.
That being said, while British courts recognise these agreements, they also still have the discretion to waive them.
Particularly if deemed to be unfair to any children of the marriage.

3) Why get one?
Tom Cruise and Katie Holmes had one.
So did Brad Pitt and Angelina Jolie.
Kim Kardashian and Kris Humphries did, too.
These three now-divorced couples all had prenups, but they are not just for the wealthy.
A prenup will preserve the expectations of the parties and prevent surprises in divorce proceedings. They assist by providing clarity to parties when an emotive topic such as ‘money’ enters into a relationship, especially when parties have a different attitude towards money.
A prenup can help to provide that peace of mind, particularly, if there are assets and/or property that would be difficult to split equally and if you, and/or your partner, have children from a previous relationship and want to ensure certain assets are preserved for them and protect their inheritance rights. (A Will is also essential in order to preserve and protect in this instance.)
A prenup can also assist where you want to protect inherited money, assets, savings, and future inheritance or retain control of a business or avoid outstanding debt.

4) What should be included?
Every prenup is bespoke to particular circumstances; usually a prenup will include provisions for division of property and spousal support in the event of divorce or breakup of marriage. It can set out the ownership of belongings, for example, money, property and assets. Prenups can contain a vast array of terms and conditions, for instance, terms for forfeiture of assets where a divorce ensues as a result of adultery.
The most basic of prenups lists an inventory of premarital assets that in the event of a divorce will remain the property of their original owner.

5) What happens if I do not have one?
Without a prenup, the starting point for the division of property and assets will generally be equality of assets between both parties.
The Court will look at the role of “economic provider” and “child carer/homemaker” as of equal value to the welfare of the family.
While this is generally the fairest distribution of a couple’s assets, in certain circumstances it can be considered unjust.

  • PRENUP CHECKLIST
    Must be drawn up by a qualified solicitor
    Parties must have independent legal advice to avoid any conflict of interest
    Parties must fully understand and voluntarily agree to it
    Solicitors must confirm it was entered into freely/knowingly
    Signed at least 21 days before marriage
    Assets/property must be fully disclosed

Case Study
Rebecca says that she feels ‘trapped’ in her marriage.
She is not happy anymore, but a few years ago she inherited a substantial sum of money from her grandparents in their Wills.
This is an eventuality that she was not aware of before her marriage, but that most solicitors when drafting prenuptial agreements take into consideration as a possibility.

As Rebecca did not stipulate in any prenuptial agreement what would happen in the event that she did inherit monies, this monies now forms part of the ‘marriage pot’ and will be divvied up between the parties accordingly.
It is one of the reasons that she is determined to keep trying despite her unhappiness.

Unfortunately, this is a scenario that occurs quite frequently and although a prenuptial agreement can sometimes have negative connotations, in this day and age it important to prudent. It does not mean that you love your husband or wife to be any less, it simply means that should the worst happen, both parties have a contingency plan.

If you would like to speak to us about the preparation of a prenup, please call us on 01279 466 910 to book in for your free 20 minute consultation.

NO FAULT Divorce – Does this exist?

Scissors cutting paper family

Divorce is often a time of battle and anguish. It puts families under pressure and there are all sorts of issues to sort out.

  1. Deal with the finances
  2. Limiting the impact on your children

Here at Watson Legal we are empathetic to your situation and aim to make the process as stress-free as possible.

There are a lot couples that have mutually agreed that their marriage is over. Unfortunately, divorce law at present can potentially make things worse for couples, forcing one party to blame the other, unless the couple are willing to wait two years to apply for divorce and they both consent.

The grounds for divorce are as follows:

  1. That your partner has committed adultery and you find it intolerable to live with them;
  1. That your partner’s behaviour is intolerable to live with;
  1. That your partner has deserted you for at least two years;
  1. You have separated for at least two years and your partner consents to the divorce;
  1. You have separated for at least five years.

Therefore the only immediate ground for divorce is either your spouse’s unreasonable behaviour or adultery. This can cause unnecessary distress to the parties involved, making an already difficult process even harder. The only alternative is waiting for two years if both parties consent. For many, waiting two years to sort out finances is not a feasible option.

This seems particularly meaningless and unfair given that the reasons for divorce make no difference to any financial settlement or children arrangement – the reasons are simply to allow the divorce to continue to the next procedural stage.

So in short, does a no fault divorce exist? Well yes! If you are willing and able to wait two years.

Do you think the law should be changed?

There has been a No Fault Divorce Bill, which has been debated in Parliament since 2015 so pending the outcome of deliberations, we may see some reforms in the not so distant future.

There is an argument that a no fault divorce damages the institution of marriage. If parties can divorce easily would this lead to parties not trying to reconcile their differences and working on their marriage? Would divorce no longer be the last resort, but the first option or an easy solution

We are open to your thoughts and suggestions and we would love to hear from you.

If you have any questions about this information or if you would like to book an initial free 30 minute consultation, then please do not hesitate contact us on 01279 466910 or email info@watson-legal.com.

Divorce – What about the children?

When a relationship breaks down the people often who it can affect most is your children. Whilst you may be trying to do everything you can to protect them, they will sense how you are feeling. One of the most important behaviours is, ensuring you talk positively about the other parent in front of them and enable your child to have a relationship with both parents.

Unfortunately, there are times when despite parents trying to reach a resolution, there is no other alternative but to get the help of the court. There are several orders the children can make in relation to children:

  • Child arrangements order
  • Specific issue order
  • Prohibited steps order

What is a child arrangements order?

A child arrangements order (CAO) is an order that regulates arrangements for a child that relate to any of the following; with whom the child is to live, spend time or otherwise have contact and/or when the child is to live, spend time or otherwise have contact with any person

Contact simply means the time that a child spends with an adult. There are several ways that contact may take place:

  • direct contact between the child and the person named in the order
  • overnight staying contact
  • supervised contact, and
  • indirect contact through letters or cards

A CAO may provide for the child to live with one parent only or it may provide for the child to share their time between both parents.

What is a specific issue order?

 A specific issue order determines a particular question in connection with a child. It can be used to resolve issues about a child’s upbringing, such as where the child should go school (e.g. state or private), whether they should receive religious instruction or whether they should have a particular form of medical treatment.

What is a prohibited steps orders?

A prohibited steps order imposes a restriction on a parent or other holder of parental responsibility that prevents them from doing something without consent of the court. They may be used, for example, to prevent a change of a child’s name or to prevent a parent from taking a child abroad.

If you would like to find out more or having difficulties agreeing to specific arrangements for your children, then please do not hesitate to contact us on 01279 466910 or email info@watson-legal.com to book your FREE 30 minute consultation.

What is Domestic Violence?

There is no legal definition of Domestic Violence. However, the Government announced in March 2013 the new definition of Domestic Violence would be as follows:

Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:

  • psychological
  • physical
  • sexual
  • financial
  • emotional

How to deal with Domestic Violence?

Domestic Violence Protection Notice and Domestic Violence Protection Order

A Domestic Violence Protection Notice (DVPN) is an emergency non-molestation and eviction notice which can be issued by the police, when attending to a domestic abuse incident. A benefit of a DVPN is that it is effective from the time of issue, thereby giving the victim the immediate support they require.

Upon a DVPN being served upon the abuser an application by the police will need to be made to the Magistrates Court for a Domestic Violence Protection Order (DVPO) to be issued. If, the Court grant the Order it will prevent the abuser from returning to a residence and from having contact with the victim for up to 28 days. This allows the victim a degree of breathing space to consider their options. Both the DVPN and DVPO contain a condition prohibiting the abuser from molesting the victim.

It is important to note that ‘Domestic Violence’ does not just mean physical violence. As the definition above makes clear, it can be other actions that restrict or control another human being unreasonably.

Non-Molestation Order

If you have been the victim of domestic violence and the respondent is a family member, someone you are, or, have been in a relationship with or someone you are living with you can apply for an injunction from the Magistrates Court. A non-molestation order will protect you or your child from being harmed or threatened.

It is a criminal offence to breach the injunction and the person named in the injunction risks being arrested. Section 1 of the Domestic Violence, Crime and Victims Act 2004 provides that it is an offence to comply with the Order without reasonable excuse. The offence is punishable with a maximum of 5 years imprisonment.

If you need protection immediately, you can ask the Court for an emergency order. This can be issued without notice and therefore you do not need to inform the person you need protecting from.

Occupation Order

If you have been the victim of domestic violence and one of the following criteria is met, you can apply for an occupation order;

  • You own or rent your main place of residence.
  • You don’t own or rent your main place of residence, but you are married or in a civil partnership with the owner and you are living in the home. This is known as matrimonial home rights.
  • your former husband, wife or civil partner is the owner or tenant, and the home is, was, or was intended to be your shared matrimonial home.
  • the person you cohabit or cohabited with is the owner or tenant, and the home is, was, or was intended to be your shared home

The court can order an Occupation Order stating who can live in the family home or enter the surrounding area.

If an Order is granted the Magistrates will say who can live in the family home or enter the surrounding area.

If you require any further information about domestic violence, please contact the team at Watson Legal either by calling 01279 466910 to book your free 30 minute consultation or email info@watson-legal.com.

Common law marriage – does this exist?

If you are moving in together, you should know how cohabiting affects your legal position and how you can protect yourselves should your relationship end or one of you dies.

Common law marriage – the reality

Many couples believe that moving in together creates a common law marriage, giving you the same rights as if you were married. It does not – the concept of common law marriage has no legal validity in England.

In reality, moving in together does not give you automatic rights to each other’s property, no matter how long you live together. And if your partner dies, cohabiting does not entitle you to inherit – with potentially disastrous consequences your partner.

Moving in together – cohabitation rights

The property owner is the only one entitled to live there – anyone else can be asked to leave. The owner can also make decisions – such as selling the property – without consulting their partner.

However, even where only one of you owns the property, the other may have some rights.

This can happen if:

  • the owner has agreed in writing that the non-owner is entitled to a share of the home;
  • the non-owner contributes financially (eg paying part of the mortgage) to the property on the understanding that this entitles him or her to a share;
  • the non-owner has acted to their own detriment (eg giving up a job) on the understanding that this entitles him or her to a share;
  • a partner with children applies to the court for the right to continue living there to ensure the children’s welfare.

Whatever your circumstances, a written cohabitation agreement or declaration of trust detailing what contributions you will each make and what share of the home you are each entitled to, minimises the risk of future disputes.

Cohabitation and children

Legally, you only have a role in important decisions about children (such as their education and religion) if you have parental responsibility for them.

The father only has parental responsibility if:

  • he is named as the father on the birth certificate (for a child born after December 2003);
  • he enters into a parental responsibility agreement with the mother, obtains a parental responsibility order or child arrangements order, or they get married;
  • he is registered as the child’s guardian and all other individuals with parental responsibility have died (including the mother).

If a cohabiting couple separate, rather different considerations apply:

  •  Decisions about who the children should live with and what contact rights the other should have are based on the children’s best interests (rather than on who has parental responsibility).
  • If your children live with your former partner rather than you, you may be required to pay maintenance.
  • The same principles apply for stepchildren whom you have treated as part of your family and helped to support financially.
  • Ideally, childcare arrangements will be agreed between you, but either of you can apply to the court to help resolve things.

In effect, children are treated in the same way as when a married couple divorce.

What happens if a cohabiting partner dies?

Cohabiting partners have no automatic right to inherit if their partner dies, although they may be a beneficiary under the other’s will. If you are a beneficiary, any assets you receive may be subject to inheritance tax – there is no exemption for unmarried couples.

If you cohabited for at least two years or if you can show that you were financially dependent on your partner, you can make a claim for a financial dependence even if you were not a beneficiary of the will.

However, making a claim on the basis of cohabitation can involve a complex and expensive dispute with the other beneficiaries. And even if you are successful, you may only be entitled to a limited share of your partner’s assets.

If you owned your home together, the form of legal ownership has a major impact. If you owned your home as ‘joint tenants’*, you will automatically continue to own the (entire) home if your partner dies.

But if you were ‘tenants in common’*, your partner’s share is dealt with under the terms of his or her will or the intestacy rules. If you rented your home, your rights to stay depend on the type of tenancy, whose name(s) it is in and your landlord.

Cohabitation agreements

Written agreements can help to protect you from potential risks if you separate or your partner dies.

Drawing up a cohabitation agreement can help you think through some of the key issues in your relationship. Though not all of the agreement may be legally enforceable, it can help reduce the likelihood of disputes and make any disputes easier to resolve.

For example, an agreement might cover issues such as how bills will be shared, whether you will have any joint accounts, and what roles you will each have in terms of childcare, household chores and so on.

*See our blogs on the difference between joint tenants and tenants in common.

If you require any further information about cohabitation, please contact our friendly team at Watson Legal either by calling 01279 466910 to book your free 30 minute consultation or email info@watson-legal.com.

Divorce

Divorcing a partner can be a very distressing life event, whether you are the person filing for the divorce or the person receiving the divorce petition. Here at Watson Legal we are empathetic to the situation and aim to make the process as stress-free as possible.

Before filing for a divorce you should consider a number of other factors which need to be considered. For example child arrangements, if children are involved it is important to put their wellbeing first. It is advisable to organise child arrangements as soon as possible, to avoid any unneeded upset and confusion to the children.

You should also consider your finances, again this can be sorted amicably without the need for a court order but sometimes arguments can start over who will get what from the matrimonial home? How will bills be dealt with? Who will be living where? Consider your future income needs and capital needs of both yourself and your children.

In order to obtain a divorce you must support your petition by proving one of the following five facts:

  1.  That your partner has committed adultery and you find it intolerable to live with them;
  2. That your partner’s behaviour is intolerable to live with;
  3. That your partner has deserted you for at least two years;
  4. You have separated for at least two years and your partner consents to the divorce;
  5. You have separated for at least five years.

It can come as a shock to some couples but you cannot file for a divorce in the first year of your marriage.

If the divorce is successful you will be granted with a decree nisi, at this point you may believe the process is over and you can move forward with your life. However, a decree nisi does not mean you are divorced from your partner. You must wait 6 weeks and then apply for a decree absolute. Once the court have granted the decree absolute you are then divorce and can relax a little.

If you have any questions about this information or if you would like to book an initial free 30 minute consultation, then please do not hesitate contact us on 01279 466910 or email info@watson-legal.com.