Family Law FAQs

Domestic abuse has a very broad definition and can be emotional, psychological, sexual or physical abuse. It can also be causing someone to fear the use of abuse, and extends to controlling, intimidating and bullying behaviour.

Talk to us about your worries in confidence. There are also a wide range of excellent support networks that can help. You only need to ask and we will put you in touch.

Have a plan. Understanding what you are entitled to and what resources are out there is the first step in formulating a plan to leave safely.

If there has been, or is, a risk of harm to you or the children, you can apply to the court for an occupation Order that orders your partner to leave and not return. The Order can also exclude your partner from coming within a certain distance of the property.

Not necessarily. If there is evidence of this nature then it will be helpful and used in the application, but non-molestation and occupation Orders can also be granted where there is no police evidence.

An injunction is another name for a non-molestation or occupation Order. The applications can be made to the court with or without notice to the other person. A non-molestation Order can require that your partner should not harass, intimidate, molest or pester you, nor encourage a third party to do so.

There are a number of organisations that provide free support and advice, many of which are available 24-hours a day. Their contact details are:

• Police: 999 (emergency) or 101 (non-emergency)
• Samaritans: 116 123
• Childline: 0800 1111
• Women’s Aid Domestic Violence Helpline: 0808 2000 247
• Men’s Advice Line: 0808 801 0327
• NSPCC: 0808 800 5000
• Broken Rainbow (LGBT): 0300 999 5428
• Revenge Porn Helpline: 0845 6000 459
• The Ferns (Suffolk): 0300 123 5058
• Lighthouse Women’s Aid (Ipswich): 01473 228270

This is one of the hardest things you will ever have to do. It is essential, if at all possible, that both parents are present for the conversation and agree in advance what to say. You should provide your child with small bite-sized facts that they can absorb and digest, with plenty of reassurance that you love them very much. Keep explanations simple and avoid blame. Use general statements and be prepared for questions. If you do not yet have all the answers, do not provide false hope. Instead, explain that some details are still being worked out, they are not to worry, and will be the first to know when issues are resolved. Be clear that your separation is not your child’s fault, and nor is it their job to try and make things better.

Check in regularly with your child and pay attention not just to their words, but to their actions and behaviour. These can often give a hint as to what they are truly feeling. Let your child know it is ok to be upset, hurt, angry and sad. Signpost to appropriate adults, such as family, friends or a favourite teacher, who they can speak to in confidence. Let the school know what is happening at home and ask them to keep an eye on your child. Try to keep life predictable and consistent for your child. If you are struggling, try your hardest to deal with this without involving your child. 

You and your ex-partner will be co-parents for years to come and so an arrangement reached by consent to reduce tension and conflict has to be in the best interests of your child. Ask us about our Talking Works service, which takes a creative and constructive approach to resolving problems. If talking matters through with a professional does not work, either parent can make an application to the court for a child arrangements Order.

This is an Order that can be of four different types: 

1. ‘Lives with’ Order - Determines with whom the child lives, or how the child’s time is shared between households 
2. ‘Spends time with’ Order - How frequently the child sees the parent with whom they do not live
3. 'A specific issue' Order - Deals with a narrow issue such as schooling or medical treatment
4. ’Prohibited steps’ Order - Prevents a parent taking an action, such as travelling abroad or pursuing a schooling or medical issue that is not agreed

By applying to the court clarifying which type of Order you want. Parents, step-parents and grandparents (as well as wider family if certain criteria is met) can apply for child arrangement Orders.

The judge will want to understand each parent’s position, but the decision will be based on what is considered to be in the child’s best interests. Factors relevant to the child’s welfare include age, health, educational ability and so on. The court’s starting point is to promote each parent’s role in the child’s life, having regard to the practicalities of separated parenting. The court Order may set out a schedule for the parents to share time with the child to include birthdays, special occasions and holiday periods so that there is clarity for each parent.

CAFCASS is a public body accountable to the Ministry of Justice that acts as the ‘eyes and ears’ of the court. A CAFCASS officer can be appointed by the court to talk to each parent and the child to determine each person’s views and provide a report. Young children tend not to be interviewed by CAFCASS, but children over the age of 5 or 6 may be interviewed. CAFCASS tend not to become involved where parents disagree over matters limited to simple logistics, like who should collect and deliver the child.

The court has a “no Order” principle whereby they will not make unnecessary Orders in children matters. You will need to have a good reason to achieve an Order. If you can agree between you, the court may prefer to leave matters fluid without an Order. Talk to us if you are unsure, as other more informal documents, such as a Parenting Plan, may still be useful.

If your partner is the biological or adoptive parent, he or she should pay child maintenance, subject to how much income he or she has and dependent on the pattern of shared care. 

Yes. If you can both agree a figure that works for the two of you there is no need to involve anyone else. It is a sensible idea to record the payments, for example, through paying by standing order. That way, there will be a clear record of what and when payments have been made in case there should be a dispute in the future.

The government’s child maintenance online calculator is a helpful, free resource that acts as a guide for parents who wish to check what amount is payable. You will need to know the paying parent’s gross salary

You must have been in your civil partnership or marriage for at least one year. The ending of a civil partnership is known as dissolution, for marriage it will be divorce. The grounds for dissolution of a civil partnership are: unreasonable behaviour; desertion; two years’ separation or five years’ separation. There is an additional ground of adultery available to married couples:

• Adultery: that the respondent has committed adultery (this is an act of sexual intercourse with a person of the opposite sex) and the petitioner finds it intolerable to live with the respondent.
• Unreasonable behaviour: that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This test is subjective to the parties although the court does have to consider what is objectively unreasonable to the petitioner. The test can extend from acts of violence to irritating patterns of behaviour.
• Desertion: that the respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the divorce.
• Two years’ separation: that the parties to the marriage have lived apart for a continuous period of at least two years immediately before the start of the divorce and the respondent consents to a decree being granted.      
• Five years’ separation: That the parties to the marriage have lived apart for a continuous period of at least five years immediately before the start of the divorce.

This is a process intended to enable you to divorce without finding reasons to blame one another, unlike adultery and unreasonable behaviour. ‘No fault’ divorce is not yet law, but it is hoped that it will be given legal effect in the near future. For now, the facts for divorce remain as set out above.

We aim to find the least antagonistic way of divorcing or dissolving a civil partnership. Best practice dictates that as a courtesy your partner should know what you are intending. It can be helpful to agree in advance the details of any legal document and agree whether the costs are to be shared between you. It is possible to defend a petition by denying the marriage or civil partnership has ended, or denying the reasons the petitioner relies upon. It is quicker and cheaper if your former partner co-operates with the process. If you are in an abusive relationship, we can talk to you in confidence about how to start proceedings whilst protecting your safety.

If you are contemplating formally ending your relationship, it is important that you take early advice in each legal jurisdiction that may be available to you. Different legal jurisdictions have different requirements for divorce or dissolution, and some may be more financially favourable than others. Where the proceedings are filed first is usually the jurisdiction that decides legal matters. This can sometimes lead to each person trying to file proceedings first in a country favourable to them. Talk to us for more information. 

Not always, but it would be helpful for you to talk through the basis of the petition to ensure it is correct and you understand what is required. It can be difficult to undo errors later on. It is really important that you talk to a divorce solicitor about getting a financial Order if you are divorcing or dissolving a civil partnership.

Civil partnerships and marriage provide for financial claims for each partner against the other for income, capital, property and pension. You should be aware of the importance of a financial Order to resolve these claims and to define if the claims continue beyond the relationship. Many people mistakenly think that divorce or dissolution automatically ends financial claims. This is incorrect and a separate financial Order is needed – see our Finances page.

For married couples separating but not wishing to pursue divorce proceedings (normally for religious or personal reasons), judicial separation may be appropriate. Judicial separation is a formal, legal method of separating and dividing finances without divorcing. Judicial separation does not end your marriage, but it does take away the need to live together and enables you to resolve some financial claims between you as if you were divorced.

These are contractual documents drawn up by unmarried couples who are separating and want to record how assets and debts are being shared; they do not need to be filed at court. Separation agreements can also be used where a marriage or civil partnership is not yet a year old or, to record arrangements where there will be a period of separation prior to divorce or dissolution. This is most common where there are separations of two or five year periods. Our Talking Works service encourages round table discussions to reach a solution that suits you both.

Yes, this is sensible. Where a couple intend the agreement to be legally binding, there are certain criteria that must be met. An informal agreement written down by partners can be evidence of what was intended, but does not necessarily legally bind each of you, leaving claims open in the future.

As a spouse or civil partner, you have the right to claim for any or all of the following:

• Income (i.e. maintenance in addition to child maintenance)
• Property (i.e. transfer or sale of a property)
• Capital (i.e. lump sum payments)
• Pension

An income claim does not include child maintenance, which is something separate. An income claim is spousal maintenance paid by one spouse or partner to the other if there is a significant difference in respective incomes. It is most likely to be a consideration where there is a long marriage and a long history of one spouse not working or on a lower income. An income claim is also more common where there are young children and the primary carer’s ability to work is reduced by caring for the children during their minority. If you have reached retirement, an income claim may be avoided by sharing pension provision (see below).

Both partners’ income and outgoings are considered to decide whether there is a legitimate claim and whether it can be met by the wealthier partner. Consideration will then be given to how much should be paid and for how long.

Pensions can often be overlooked, but they can also sometimes be the most valuable asset. In long marriages or civil partnerships, pensions will be assets necessary to divide if, for example, one partner has been a stay-at-home carer for children, or worked part-time, to allow the other partner to pursue their career. 

Each partner’s pension value is considered to determine whether one partner’s pension needs to be shared (ie, transferred) to the other to increase their pension provision. As this can be a technical area, pension experts are often brought in to assist in reaching a financially fair agreement.
 

Capital is normally savings, ISAs, policies, investments, bonds, etc. It can be less relevant in whose name the monies are held; they can still be considered  assets to be divided.

Yes, where appropriate. Where relevant, and after appropriate financial advice which we can help you arrange, one partner may agree not to make a claim against one asset if they can keep more of another asset. There are many options and much depends on what is available to divide, and whether the off-set proposed is fair and reasonable in all the circumstances. You also need to consider very carefully the future worth of assets you may be relinquishing to achieve an agreement now.

Divorce or dissolution proceedings do not automatically cut off the financial claims above. Financial claims only end with the court approving a financial Order. If you do not future-proof financial agreements, if one of you improves your financial position in the future the other can legitimately make financial claims later against new assets. As part of divorce and dissolution, therefore, a financial Order is essential to protect each of you. A casual agreement, even if written down between you, will not be good enough. A solicitor is needed to draft a financial Order. 

Do not worry, and start by noting what you do know as it may be more than you realise. Over time, we will build up a picture of the assets and liabilities that exist. Each of you will be required to make financial disclosure to the other so that there is clarity as to what exists. If you are worried that your partner may not be honest, a good starting point is to think about what there may be, such as pensions from previous employment. Sometimes we only need a starting point to make enquiries.

If you have divorced abroad but have yet to resolve disputes over assets in England and Wales, we can help resolve financial matters by agreement or court action. A financial Order granted in England and Wales can sit alongside a financial Order gained in another jurisdiction (if this is necessary) to share assets abroad. If you have lived in England and Wales and have an asset abroad, this is rarely problematic and that asset will be included in discussions. If necessary, we can work with foreign lawyers and professionals in other jurisdictions to help understand that asset and its worth.

Financial claims for unmarried couples are limited to property and capital only. We will start by talking through with you what assets exist and how they were purchased, contributed to and shared to help determine division upon separation. If there are children talk to us as there may be additional claims that can be made.

The first consideration is normally where to live, how a property is to be purchased and how outgoings will be paid. Sharing rent is rarely contentious, but matters can become more complicated if one of you owns the property you will live in, or, you purchase or maintain a property together in unequal contributions. It is sensible to think ahead and consider what might happen to property and assets if you should unfortunately separate in the future – at that point it may then be too late to protect yourself. A living together or cohabitation agreement can cover how the property is purchased, how outgoings are to be paid and how equity is to be shared in the future. We work with our Property team to ensure that you also have appropriate documentation in place from a conveyancing perspective to record the ownership and share of the property.

Broadly, you have a legal right to your share of any jointly-owned assets such as property or bank accounts. You may also have a beneficial interest in an asset not in your name (usually property) if you can prove that you have made a financial contribution, for example towards the mortgage on a house. A beneficial interest is not as certain as a legal right but can be established with documentary evidence of financial contribution. There have over the years been a number of cases seeking to determine what sort of contributions are relevant and so the details of your circumstances are important.

A cohabitation agreement (which is also known as a living together agreement) is a contractual document intended to be binding upon both of you that clarifies who owns the property, in what shares, and how it is to be dealt with if you should separate in the future. A cohabitation agreement can also record who is making what contributions to the outgoings of the property and whether or not those outgoings are intended to give the contributing person a financial interest in the property.

A civil partnership can be entered into by a same sex or heterosexual couple. The significant difference to marriage is the ceremonial aspect. For couples whose personal beliefs do not accord with marriage, civil partnership allows the same legal benefits as spouses without the need for a wedding. Pre-nups and post-nups can also be entered into. A civil partnership ceremony must still be legally registered in the same way as a marriage ceremony. A civil partnership is as legally binding as a marriage and the same financial claims exist for separating civil partners as they do for separating spouses. If the civil partnership ends, the couple dissolves the partnership rather than divorcing, though the process is very similar. It is sensible to take legal advice prior to the civil partnership, or if you separate, so that you are fully aware of legal and financial entitlement. 

A pre-nup (also known as a pre-marital agreement) is a document made prior to marriage or civil partnership in which the couple indicate how they intend their assets to be divided should they later separate or divorce. They are most commonly seen where one party has significantly more assets than the other, or where it will be a second marriage or civil partnership and one or both of the couple have children from a previous relationship. Pre-nups can also record how assets acquired in the marriage will be divided. It is sensible to review and revise pre-nups at regular intervals after marriage or civil partnership. As pre-nups are legal documents, they do need to be drawn up by a solicitor.

As soon as you become engaged or are talking about marrying or entering into a civil partnership. Pre-nups are technical documents and can sometimes take a few weeks or months to negotiate, draft and agree. We encourage a couple to work round table with the help of our Talking Works service, as planning the document is a positive step in the relationship. Pre-nups should not be signed any later than 28 days before the ceremony and so early planning is essential. 

A post-nup is a document made after marriage or civil partnership. It can be used where a pre-nup was intended but the couple ran out of time before the ceremony, or, where the couple do not have a pre-nup and wish to record how their assets will be divided in any later separation or divorce. A post-nup can be made at any time during a marriage and should be reviewed regularly – they can also be used to review and revise a pre-nup that was made before the marriage.

Talk to us as early as possible. Whether you are setting up a new business, expanding your business, or intending to distribute shares to your partner, it is important that you take legal advice. Thought should also be given to what happens if a partner, co-director, significant shareholder or key individual goes through a separation or divorce. This can have a significant and sometimes detrimental impact on the business. Our family team works closely with corporate and commercial colleagues to ensure that you and your business are future-proof within the detail of partnership or shareholder agreements.

This is not a problem. If your partner wants to represent themselves they are still welcome to come to a round table meeting to talk issues through and work towards a resolution.

Mediation is a more formal method of round table working. It is a voluntary and consensual process where dialogue is managed and encouraged by a neutral mediator. Mediation offers a round table way of resolving conflict through a series of structured meetings for you and your partner where you each agree the agenda and have the opportunity to discuss whatever is important to you. The benefit of mediation is that you are each given a voice and are encouraged to listen to one another and reflect upon what is said. Often participants can be closer to agreement than they realise. Mediations start with a MIAM for each participant (see above). Meetings are legally privileged which means that any information other than that about the existence of financial assets remains confidential and cannot be used outside the mediation process. This encourages open and constructive dialogue. Discussions are also without prejudice, which means that potential settlement scenarios can be explored in a non-binding way unless or until the participants choose to be bound.

A mediator is neutral and so cannot give either of you legal advice. The mediator’s role is to encourage dialogue and try to find points of compromise that will assist with resolving points of dispute. You do not need a  solicitor but we do encourage mediation clients to have solicitors in the background, or at least take legal advice along the way, as this will help you understand legal issues. Once mediation has concluded, a solicitor can also help convert any agreement reached into a legally binding document for you (see below).

Unfortunately, we cannot be both. If you are using our mediation service, we will refer you elsewhere for legal advice. If you have a solicitor elsewhere, they or you can refer in for mediation.

Mediation meetings tend to last between 60 and 90 minutes and several meetings may be needed to reach a successful outcome. Family cases typically need between 4 and 6 meetings.

If a successful outcome is reached, this is recorded by the mediator in a “Memorandum of Understanding” which the parties take to their solicitors for conversion into whatever format of documentation has been agreed, such as a consensual court Order.

The beauty of round table work is that there are no rules. Agreeing to work round table means that rather than send letters and make telephone calls to your partner or their solicitor to resolve matters, they are instead invited to a round table meeting to discuss various issues. This is a more inclusive process because you each have an immediate voice in the room. The meeting can conclude with an agreed action plan for next steps to keep momentum going. If further professional input is needed, we will only work with someone who we know will respect and work within a round table format. 

The process is informal and so you can make it what you want. You can set the agenda, the pace of meetings, and raise issues that matter to you, whether financial, child-related or something else. Working round table sends an excellent message to your child that you are working with your co-parent to find solutions outside court in a way that encourages dialogue and avoids criticism and antagonism. Working round table is better for your personal wellbeing because you will feel fully involved and in control and it is a dignified and courteous way to conclude a relationship. Round table work is also quicker, cheaper and less stressful than the court process.

This is not a problem. If your partner wants to represent themselves they are still welcome to come to a round table meeting to talk issues through and work towards a resolution.

A collaborative solicitor has to have particular training to work in a formal round table format. Within the collaborative process, each participant and solicitor signs up to a Participation Agreement, which sets some basic ground rules for how the meetings will be managed and how you will each behave. Key is agreeing not to threaten litigation during the collaborative process. If this happens, both solicitors must recuse themselves from the case and cannot assist either of you any further. The purpose of the Participation Agreement is to keep you each focused on working round table to conclusion. If there is agreement, the solicitors can draft up the necessary legally-binding documents to be approved by court. 

This simply means you and your partner discussing difficulties informally at home. If the two of you can have a constructive dialogue, then you should focus on trying to reach comprehensive agreement over a series of conversations. Obviously, this is quicker and cheaper than any formal process and sends a great message to your children that you are still able to work together despite separation. You can, if you wish, take legal advice along the way so that you understand the legal entitlements you may be agreeing or surrendering. It is sensible to understand your legal position so that you do not reach an agreement that is later unenforceable because it is not certain, or because one or both of you have misunderstood the extent of the legal issues to be resolved. If you can reach agreement direct, do not overlook the need to have a financial Order within divorce or dissolution – this is still very important and protects you financially in the future.