How to have a happy holiday when you’re separated parents

How to have a happy holiday when you’re separated parents

This year more than most, the summer holidays for separated parents can be a difficult and confusing period. Trying to agree if one or both of the parents should be able to spend time abroad with the children can prove to be a tricky subject.

Associate Melissa Jones examines the issues.

Any difficulties in the relationship may well be those of the parents, but it is the children who can reluctantly find themselves in the midst of adult arguments, confused that those to whom they look for guidance are not getting along and often incorrectly blaming themselves for either parents’ upset or even anger. It is easy and perhaps natural for a parent going through such a difficult time to concentrate on themselves at these times, but it is very important if trying to sort arrangements out amicably, not to lose focus of a child’s needs or emotional well-being when they may already be feeling overwhelmed and trying to understand why their parents might not be friends, as well as distress and confusion about their new family circumstances.

The child’s best interests

If charged with deciding, the court will determine matters in accordance with what is in a child’s best interests. As such, and even if it is not what you want to hear personally, try to listen to your children. They may well help you in taking a step back from your own bubble and decide what’s best for them.

Open lines of communication

Good forward planning and open lines of communication with the other parent are essential when working towards organise your children’s summer holiday. Despite past difficulties, there are families who are able to work together to the extent that they can spend a summer break together, although sadly this is not the usual situation. However, regardless of whether you and your former partner are on good terms or not, taking time to come to a mutual decision about what’s best is without doubt the best way forward: from agreeing a safe destination that both parents are happy with to arranging how and where the children are going to spend time with each of their parents over the holiday period, it is by maintaining these open lines of communication that you will achieve a good outcome.

We have seen arrangements agreed where the separated parents have both gone to the same resort or holiday area, and the children have spent one or two weeks with one parent and then spent another week or two with the other parent, meaning that travel arrangements are simplified and there is the smallest amount of disruption possible.

It isn’t easy but it needn’t be difficult either. A little bit of willingness to accommodate the other parent’s request – when they can get time off from work, or if there is a holiday home owned by relatives and can you take a break in the same region to make things easier – can go a long way. Here are McAlister Family Law we encourage our clients not just to try to achieve a respectful divorce, but to remain respectful of one another in the years after that divorce. If you can each try to give a little in order to reach an agreement that will suit everyone involved, particularly your children, in the long run you will be glad you did so.

If you are affected by any of the issues outlined here, please get in touch today. We are here to help you.

Why is it safe to arbitrate?

arbitration

Why is it safe to arbitrate?

The Family Court is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  Partner Liz Cowell explains.

 

18 months into the Covid-19 crisis and practitioners are finding that contested proceedings for financial settlement following a divorce are taking many months, if not years, to resolve.

This is partially because the Family Court is flooded with urgent Children Act cases and applications for protection from domestic violence.  These cases are understandably given precedents over financial matters and have increased during the pandemic.

Consent Order

The process itself to obtain financial relief from the court is a one-size-fits-all, the parties having to attend at least two court hearings before the case proceeds to trial, when they find themselves unable to agree a Consent Order.

Due to the overburdened family list, hearings are frequently “bumped” usually for the benefit of urgent Children Act proceedings.

Arbitration

It is the case that the Family Court itself is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  When an arbitration takes place, an award is made by the arbitrator which is then turned into a Consent Order which the court will ratify.

The advantages of using arbitration is that it provides complete privacy, there is consistency, it is a speedier process and although the arbitrator needs to be paid it is cost efficient as there needs to be far less attendance at court and the process can be fine tuned to each and every separate application.

The Family Court’s support for arbitration could not be more clearly set out than in a recent High Court decision of Mr Justice Mostyn A -v- A [2021] EWHC1889 (FAM).

In this case the husband, who had agreed to arbitrate then chose not to be bound by the arbitrator’s decision and tried to get the matter set aside, using an expensive route to appeal to the High Court.  He failed.  Mr Justice Mostyn set out clearly in his judgment the correct way to pursue a challenge to an award – and he also found for the wife.

Hopefully his decision will help to persuade the parties that the process of arbitration provides closure, and the common excuse of some practitioners – that there is no proper means of appeal – has been finally put to bed.

Mostyn J emphasised a previous High Court decision of Lady Justice King in Hayley -v- Hayley [2020] EWCACIV1369 which confirms that a “challenge to an arbitral award should be dealt with broadly the same way and subject to the same principles as a financial remedy appeal in the Family Court from a District Judge to a Circuit Judge” and that this was how he was going to proceed to deal with the husband’s various applications before him.  He helpfully added an Appendix to his judgment which gives clear guidance to practitioners as to how to challenge an Arbitral Award, thus giving practitioners protection before proceeding in this manner.

If you are affected by any of the issues raised here, please do get in touch today. We are here to help you.

I want a divorce: your step-by-step guide

divorce procedure heather

I want a divorce: your step-by-step guide

“I want a divorce.” But what is the process – what do you need to know? Heather Lucy, family law solicitor, is here to help you with a step-by-step guide covering the divorce procedure.

Special Procedure

Don’t be frightened by this term.  All it means is that when you apply for a divorce in England and Wales, the process, in the vast majority of undefended cases (that is, a case where one of you wants to divorce and the other does not oppose), is called Special Procedure.  All this means is that a judge will consider the divorce petition on paper and neither you nor your spouse will need to attend court to explain why your marriage has broken down.

Please bear in mind there is no such thing as a “quickie” divorce, no matter how many times you might read about this in the media. If you want more details on the length of time a divorce might take, please take a look here.

It’s also important to remember that the reason for the breakdown of your marriage rarely impacts on how the finances are divided.  It is a common misconception for example that adultery makes a difference – more details here. The court will deal with the financial consequences of the end of the marriage separately from the process of obtaining the divorce itself. You do not need to wait to resolve financial arrangements before divorcing, but you should not divorce without first getting advice how it may affect you – I really want to stress this point.

Before you apply for a divorce, you will need either your original marriage certificate or certified copy, as well as a certified translation if your marriage was abroad and the document is not in English.

Applying for a divorce

The divorce procedure is started by sending to the court a divorce application known as the Petition. The party making the application is known as the Petitioner, the receiving party is known as the Respondent, and either party to the marriage can apply to the court for a divorce.

Where possible, we will try to agree with your spouse which party will initiate the process and the grounds for divorce.  This will then allow the divorce procedure to continue on an undefended basis.

Grounds for divorce

There is only one ground for divorce, namely that the marriage has “irretrievably broken down”. To evidence this, the petitioner (applicant) for the divorce will need to rely upon one of

The Five Facts

In the Petition, the Petitioner has to prove that the marriage has irretrievably broken down by evidencing one of five specific statutory facts:

– Adultery

– Unreasonable behaviour

– Desertion (in practice, this is rare, and difficult to prove)

– two years’ separation with agreement by both that there should be a divorce

– five years’ separation (the consent of the Respondent is not needed)

The most common facts relied upon are adultery, or unreasonable behaviour.

The Decree Nisi

Once the divorce petition is issued by the court, it is sent to the Respondent who then usually has 14 days (possibly longer if the Respondent doesn’t live in the UK) to complete return the Acknowledgement of Service to the court.

The court will then send a copy of the Acknowledgement to the Petitioner who then completes and files an Application for Decree Nisi and a supporting Statement.

When the papers are received by the court they will be considered by a judge who, if satisfied with the ground for divorce, will issue a Certificate of Entitlement for Decree Nisi. This will list a hearing date several weeks later, at which the Decree Nisi will be pronounced. This hearing can also be used to consider any applications for or objections to any costs orders sought, if not already agreed.

Do bear in mind that the Decree Nisi is actually an interim stage in the divorce procedure – it isn’t the final divorce, it is a document that says that the court does not see any reason why you cannot divorce.  Once you have your Decree Nisi, you can apply for the

Decree Absolute

Usually, the Petitioner waits until the finances have been agreed and approved by the Court before applying for the final decree of divorce, known as the Decree Absolute.  If the divorce has taken place before the finances are resolved and one of the parties dies then, potentially, benefits to which the other would have been entitled to by virtue of the marriage will be lost (an obvious example is a spouse’s pension).

International divorce procedure

Some people may be entitled to begin divorce proceedings in more than one country: if that is the case, we can assist in helping you to decide which is the better jurisdiction for you (and your family) as the divorce process varies widely from country to country, even within Europe, including as to financial outcome, timing and arrangements for your children. Speed can be of the essence in making the decision.  If you think this might apply to your situation, please do get in touch without delay.

Respectful divorce

Finally, I’d like to stress that here at McAlister Family Law we believe very strongly in achieving what we call a respectful divorce, wherever possible.  Our managing partner, Amanda McAlister, has spoken about this extensively in the media and shares her advice here as to the best way forward for couples who are divorcing.

If you are affected by any of the issues raised here, please do get in touch today. We are here to help you.

Should I name the other person in my adultery petition?

can I name the other person in my adultery petition

Should I name the other person in my adultery petition?

This is a question we are often asked when a client first comes to us to talk about filing for divorce. Often that client is feeling angry and hurt.

Georgia Smith take a look at this challenging issue.

In simple terms, the divorce petition effectively sets out the petitioner’s reasons as to why the marriage has irretrievably broken down. In cases of adultery, it may be perceived that a third party is the sole reason for the breakdown, which is why the question “should I name the person who my partner committed adultery with in my petition?” is asked.

The straightforward answer is no.

It is not normally in your best interests to name the other man or woman in your divorce petition, even if you are divorcing on the sole basis of adultery. This advice can be a tough pill to swallow for most, who understandably wish to allocate blame after experiencing such feelings of hurt and betrayal.

It is usually enough for the petitioner (the person making the application for divorce) to provide the particulars of when the adultery took place and whether that relationship is ongoing. The respondent will then be served with a copy of the petition and will be asked to complete an acknowledgement of service form, which will ask if they admit to the adultery. Alternatively, your solicitor may request that the respondent complete a confession statement.

However, it may be the case that the respondent refuses to admit the adultery and the petitioner will have to prove the fact on a balance of probabilities.

What if I name the co-respondent?

Naming a third party in your divorce petition will make that person a co-respondent to your divorce. In practice, it is very rare for this to happen, as the Family Procedure Rules 2010 state that the third party should not be named unless the petitioner believes the respondent will contest the proceedings.

Significantly, naming a co-respondent could delay matters, as the third party will be served a copy of the petition and will be asked to fill out a form in response. If that third party proceeds to instruct a solicitor, your costs will only increase.

It is often wrongly assumed that adultery will be taken into consideration by the Court when determining financial settlement. This is not the case, and the judge can often take a dim view of a spouse who insists on naming a co-respondent.

In reality, naming a co-respondent only increases contention and may even cause the respondent to decide to defend the divorce. The urge to ‘name and shame’ can be short-lived and the real victory is in obtaining an amicable and swift divorce.

If you are affected by any of the issues outlined here, please get in touch today. We are here to help.

Do I need my ex’s permission to take my children on holiday?

permission to take children on holiday

Do I need my ex's permission to take my children on holiday?

The schools are breaking up now for the summer, and as certain travel restrictions are being lifted, for some of us that may mean the excitement of travelling abroad on holiday.  But if you are separated from your child’s other parent, this can bring issues which need to be addressed with your ex-partner prior to any trip away, particularly if you’re considering holidaying in what is currently deemed to be an “amber” country.

Associate Therasa Kenny explains.

If there is an Order in place, usually a Child Arrangements Order (formerly a Residence Order) then a child can be taken abroad for up to a month without needing the written consent of the other parent.

Parental Responsibility

If there is not a court order in place, what first needs to be considered is whether you have parental responsibility.  If both parents share parental responsibility, then what is often overlooked is that you will need to get written consent from the other parent in order to take your child out of the United Kingdom (Section 13 (2) of the Children Act 1989).  Failing to do so could lead to you committing an offence of abduction for which you can be fined, imprisoned or both.

Should consent be unreasonably withheld, then an application to Court can be made.  The Judge will take into account the individual circumstances of each family, and if permission is given (which it often is) then specific travel details will need to be provided.  These will include the dates of travel, address details for where the child will be staying and any flight numbers.

The Court rarely denies permission to take a child on holiday abroad where there is an existing relationship between the parent and child and the plans are reasonable in all of the circumstances. Where they do, it is usually in circumstances where the plans are patently not in the child’s best interests or where the Court deems the child may not be returned to the country.

The child’s best interests

If only the mother has parental responsibility, and again there are no Court orders in place, then permission is not necessarily needed to take a child abroad on holiday.  That being said, and with your child’s best interests at heart, consultation should always take place with the other parent (if they are in regular contact with the child) in order to reach an agreement that is right for everyone.   As a father without parental responsibility, should you not agree to your child being taken abroad, you can apply to the Court for a Parental Responsibility Order and a Prohibited Steps Order to prevent the trip.

What if my children’s grandparents want to take them abroad on holiday?

Should other members of the family, such as a grandparent, wish to take a child abroad, then it is worth noting that permission will be needed from both parents who have parental responsibility, and not just from one.  Again, it’s really helpful if you can maintain good relationships with everyone in your extended family, but if that isn’t the case, then we recommend getting good legal advice well in advance of any proposed trip.

What if my child has a surname different from my own?

You also need to be aware that customs officers may insist on extra checks where a child is travelling with somebody who has a different surname to them. In these circumstances and in order to avoid any hold ups, it is always useful to take additional documents to the airport with you which can help to verify your child’s connection to you, such as the child’s birth certificate (which may provide the details of both parents’ surnames) and/or your marriage certificate (which will show the surnames before the marriage) and any existing court order and so on.

Open lines of communication

What is important is communication, and trying to agree any travel arrangements between you and the other parent in advance.  This is not always possible, but if it can be achieved, it will avoid any applications to the court being necessary.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Can my ex make a claim against the assets and income I’ve generated since we separated?

business assets fiona wood

Can my ex make a claim against the assets and income I’ve generated since we separated?

Until a financial order is obtained within divorce proceedings either spouse can make a financial claim against the other. When considering what a fair financial claim is, a judge will look at all the assets owned by the couple at the time they divorce. What if one of the couple has significantly increased their assets since separation? Will their spouse benefit from this just because they did not divorce sooner after they separated?

Partner Fiona Wood, who is particularly accomplished at dealing with divorce cases where there are substantial and complex assets, explains further.

When marriages end the couple are not always in a rush to get divorced. Emotionally it is often a very difficult time and many people wait until after they have been separated for some time before formalising their separation by obtaining a divorce and a financial order within their divorce proceedings.

Until a financial order is obtained within divorce proceedings either spouse can make a financial claim against the other. When considering what a fair financial claim is, a judge will look at all the assets owned by the couple at the time they divorce. What if one of the couple has significantly increased their assets since separation? Will their spouse benefit from this just because they did not divorce sooner after they separated?

There are no strict rules regarding how a judge should divide the assets when a couple divorce

There are no strict rules regarding how a judge should divide the assets when a couple divorce, only guidelines. Judges therefore have a lot of discretion regarding the financial orders that they make. However, the main factor that judges must consider is the needs of the couple and their children (up to the age of 18). Need is usually having somewhere to live and money to live on, although how much is required to meet these needs will vary from case to case. If the couple’s needs can only be met by taking into account all of the assets, including those acquired after the couple separated, then all of the assets will go into the matrimonial pot for distribution between the couple.

Ring-fencing assets

If there are more than sufficient assets to meet the couple’s needs, it may be possible to ring-fence some or all of the assets that have been acquired after the couple separated. For example if one spouse started a new business after separation and at the time of the divorce this business had a significant value, if there are more than enough assets to meet the couple’s needs without taking the business into account, a judge could ignore some or all of the value of this business when dividing the other assets between the couple.

What if the asset existed at the time the couple were together, but it has increased in value significantly since separation? If the growth in value is just latent growth, such as an increase in value of a property owned by one of the couple as a result of a general increase in property prices, a judge is unlikely to say that this asset should be ring-fenced before the assets are divided between the couple.

If the growth in the asset since separation is as a result of significant efforts by one of the spouses since separation, for example a business increasing significantly in value over a period of time after separation due to a change in direction taken by the business owner, a judge may ring-fence some of the value in the business before the assets are divided between the couple. Some of the value of the business is likely to be included in the matrimonial pot as the business that existed at the time of separation provided a springboard for the growth of the business.

A judge’s discretion

When calculating how much should be ring-fenced, the Court of Appeal in Hart v Hart (2017) used both an arithmetical and a broad-brush approach to make this decision, which gives judges quite a large discretion regarding how they deal with this issue.

With regard to earnings that one spouse has earned after separation, again provided that there are sufficient assets to meet the couple’s needs without using money saved from post-separation income and bonuses, this money is likely to be ring-fenced. The case of Waggott v Waggott (2018) removed earning capacity from the matrimonial pot, allowing income received after separation to be treated differently if there are sufficient assets to meet the couple’s needs without having to use this money.

If you would like to know more about the issues raised here, please get in touch today. We are here to help.

Does having an affair affect your divorce settlement?

Matt Hancock affair

To what extent is an affair taken into account when dividing assets on divorce?

Over the past few days Matt Hancock’s resignation as health secretary over an affair with his aide Gina Coladangelo has played out in the full glare of the media. It is understood that Mr Hancock, a father of three, has left his wife of 15 years, Martha; his relationship with Ms Coladangelo is described as “serious”.

Partner and family law expert Caroline Bilous looks at the implications of Mr Hancock’s conduct, explaining to what extent an affair is taken into account when resolving the division of assets on divorce. 

The law, specifically the Matrimonial Causes Act 1973 section 25(2)(g), says that a person’s conduct is taken into account only where

“…the conduct is such that it would in the opinion of the court be inequitable to disregard it.”

The law contained within this key piece of legislation was supplemented by the House of Lords decision in Miller v Miller and McFarlane v McFarlane in 2006 [2006] 1 FLR 1186 which provides that only in truly exceptional cases where conduct is “gross and obvious” will it be taken into account.

When is conduct taken into account? 

The law in England today does not enable a court to punish a person for their behaviour and instead the process is designed to achieve an outcome that has regard to all the circumstances of the case, one that mist give first consideration to the welfare of any child under the age of 18 and only in exceptional circumstances, where the assets are in excess of need will a parties conduct have an impact upon the outcome. It is important to note that need will be measured by assessing available financial resources and assessing the standard of living during the relationship and generally the longer the relationship’s duration the more important the standard of living will be.

In 1972,Wachtel v Wachtel [1973] EWCA Civ 10 Lord Denning made it clear that:

The court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame.  To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life.”

This is an extremely poignant extract and one that broadly sums up the courts approach to personal conduct today in that the role of the court is not to redress marital unhappiness and that such arguments have no place before the financial remedy courts.

In clear contrast however is where conduct takes the form of dissipation of assets by one party to the marriage causing a depletion in the assets available for division. The other party in this scenario would then seek to add back those assets that have been taken to redress such conduct.

For the court to add back assets that have been spent, the court has to be satisfied that there has been “wanton dissipation of assets”.  In Martin v Martin [1976] Fam 335, Cairns LJ said:

“A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.”

Bennet J in Norris v Norris [2003] 1 FLR 1142 said:

“…of course a spouse can spend his or her money as he or she chooses but it is only fair to add back into that spouse’s assets the amount by which he or she recklessly depletes the assets and thus potentially disadvantages the other spouse…”

Non-disclosure

There can also be issues of non-disclosure or a lack of financial transparency which could also fall within section 25 (2)(g) conduct.

In NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), Mostyn J stated that

“…the Court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than that the Court should be drawn into making an order that is unfair to the Claimant”.

Therefore, while each case is treated entirely on its own merits and circumstances, as the law stands, an affair itself is highly unlikely to be taken into account when dividing assets on divorce. However to understand more about your rights our specialist team of family solicitors are here to help guide you through with a breadth of experience through these complex and difficult circumstances.

 

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Collaborative Law: finding solutions together

collaborative law

Collaborative Law: finding solutions together

This month our family law specialists are guiding you through all you need to know about Alternative Dispute Resolution. Partner and Head of our Private Children Law division Ruth Hetherington works as a collaborative lawyer when dealing with divorce, finance and children issues in this area.  “I believe that this approach brings with it a different perspective,” she says, “in that by working together with other collaborative lawyers, it is possible to better achieve possible settlement solutions.” Here she explains why, if you are going through a difficult separation or having relationship problems, collaborative law could be the process for you.

Sometimes talking things through can be the hardest challenge of all, especially when relationships break down.  But almost always, particularly where there are children involved, the very best solutions are those which you work out together.

Collaborative Law

Collaborative law is a legal process which provides you with an ‘out of court’ option.

Collaborative lawyers have to be trained to assist you through this process which consists of a series of meetings in which both you and your former partner have the support of your collaboratively trained lawyers, who are there to assist you to reach a solution.

Working together

The lawyers and the clients work together to reach agreements and to reach solutions without going to court.  The process can go as quickly or as slowly as you would want, but outcomes generally are achieved in less time than the traditional routes of negotiating with lawyers and using the court process.

It provides you with a non-confrontational and amicable approach to achieving solutions, without correspondence going back and forth between solicitors.

Face-to-face meetings

When you attend your face-to-face meetings there is always an agenda to assist you, so you know what you are going to be discussing and afterwards the lawyers prepare minutes for you to be able to reference at any time through the process.

The process is more constructive and flexible and at the first meeting both of the lawyers and the clients sign a ‘participation agreement’ which when signed commits you to trying to resolve the issues outside of court, confirms that the process remains confidential, that all of the parties will act in a civil and amicable way to one another and sets out that if the process breaks down, and the matter progresses through the courts both of the clients would have to instruct new lawyers.

Our experience is this provides the focus and determination to reach an agreement and it is therefore an incentive to work through possible options, with the assistance of the lawyers and to come to a consensus, which can only mean you then create the best chance of building a better future for yourself.

Minimising the pain of family breakdown

Collaborative law is for couples who generally are seeking a fair solution and want to minimise the pain of family breakdown which is crucially important from the point of view of any children.  In order to assist within the collaborative law process financial experts, barristers and family coaches, who are also trained, can be there to assist.  If expert reports are needed there is also the option to obtain them within the collaborative law process, which again will help to reach an agreement.

It is an alternative way to deal with relationship breakdown and here at McAlister Family Law we pride ourselves in having two trained collaborative lawyers as well as our own in-house Family Law Arbitrator.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Civil partnerships – the dissolution process

civil partnership dissolution

Civil Partnerships – the dissolution process

What is a Civil Partnership? Initially introduced by the Civil Partnership Act 2004, civil partnerships were devised to provide a relationship status for same sex couples akin to, but different, to a marriage, which was not available to same sex couples until 2014.

(Civil Partnerships have since been made available to heterosexual couples as of 31st December 2019, pursuant to the Supreme Court ruling in favour of Rebecca Steinfeld and Charles Keidan.)

Associate Aaron Williams explains the civil partnership dissolution process.

A civil partnership is formed once both individuals, both of whom are at least are 16 years of age, have signed the civil partnership document in the presence of a registrar and two witnesses. Unlike a marriage at civil ceremonies readings, songs or music cannot have any religious connotations, e.g. readings from the bible or hymns etc.

The differences between a civil partnership and marriage are nominal, but small differences do exist:

  • Civil partners cannot call themselves ‘married’ for legal purposes
  • A marriage is ended with divorce by obtaining a decree absolute, while a civil partnership is ended with dissolution by obtaining a dissolution order
  • Adultery is not a valid reason to dissolve a civil partnership, but it can be used to divorce

Despite the small differences, legally speaking a civil partnership broadly confers the same rights to civil partners, when concerning the laws that govern wills, administration of estates and tax exemptions.

Dissolution of Civil Partnership

Should you come to the difficult decision that the relationship is over, and you legally wish to end your civil partnership, an application will need to be made to court for a dissolution order. To apply for a dissolution order, the civil partnership must have been in place for a minimum period of one year.

Much like the divorce process, until the implementation of the no-fault divorce process in April 2022, the court work on a fault-based system. To start the dissolution process, you will need to prove to the court that the civil partnership has ‘irretrievably broken down’ and that there is no prospect of reconciliation; to prove this one of four facts need to be established, these facts are:

  • Unreasonable behaviour – Your civil partner has behaved in such a way that you cannot reasonably be expected to live with them (whilst adultery in of itself cannot be cited as a fact for the parties’ separation in of itself as in divorce proceedings, it can be cited as an example of unreasonable behaviour)
  • two years’ separation and consent – You and your civil partner have ‘lived apart’ for a continuous period of at least two years prior to the presentation of the dissolution petition and your partner agrees to the dissolution being granted
  • two years’ desertion – Your civil partner has deserted you for a continuous period of at least two years immediately proceedings the dissolution petition, and
  • five years’ separation – You and your civil partner have lived apart for a continuous period of at least five years prior to the presentation of the dissolution petition (civil partner’s consent not required).

Dissolution Process – the timeline

  • Preparation of Dissolution papers – You as the civil partner who lodges the petition (known as the petitioner), will be required to particularise within the dissolution petition how the Civil Partnership has ‘irretrievably broken down’, using one of the facts detailed above. The paper will then need to be forwarded to Court with the requisite Court fee.

If completed correctly the Court will ‘issue’ the petition and send a copy to your civil partner who will be referred to as Respondent going forward.

  • Acknowledgement of Service – Your civil partner will receive a copy of the Dissolution Petition, together with a copy of a form known as an Acknowledgement of Service. The document needs to be completed within seven days of receipt, wherein they confirm receipt of the dissolution papers and confirm whether they seek to contest the dissolution petition or not.

Should your civil partner seek to contest the dissolution, they will have a further 21 days to file an ‘Answer’ to the Court, detailing why they do not agree to the dissolution.

  • Confirming the Petition – The next stage in the process is for the petitioner to sign a statement of truth, confirming that the circumstances remain the same and that they do not wish to alter the content of their petition. This is then filed with the Court with a request that the Conditional Order is pronounced.
  • Conditional Order – The second stage in the dissolution process (Decree Nisi in divorce), if the dissolution petition is uncontested by your civil partner, the Court will consider the content of the papers filed by parties and will confirm whether it is satisfied the reasons cited within the dissolution petition are sufficient for the dissolution to be granted. If approved, any financial order can now be implemented. It does not mean that the civil partnership has been dissolved at this point.
  • Final Order – six weeks and one day after the date of the Conditional Order the petitioner can apply for the ‘final order’ which is the document that will ultimately bring the civil partnership to an end. Should the petitioner not apply, within three months after this time period has elapsed (total four and a half months) then the Respondent can apply to court for the Final Order to be made.

The process in total should take approximately four to six months to complete, however, this is dependent on a multitude of elements, including, whether the dissolution is agreed, how promptly parties complete and file documents and the Court’s availability.

If there are any disagreements between parties regarding any financial settlement, then it can result in further delays until any ultimate settlement is agreed.

Dissolution – Finances

As with married couples, upon separation any dispute between civil partners as to the title or possession of property either partner may apply to Court to reach a settlement. The Court’s principle aim is to reach a fair settlement upon consideration of each parties’ needs and resources. When settling assets, the Court will look to equally split the assets, unless convinced by either party that a departure from equality in their favour is justified.

The Court can make several orders to settle the finances which are principally as follows:

  • A sale of a property, a transfer to one person, or put it into a trust
  • A lump sum (whole or in instalments) or a series of lump sums, eg to pay off a mortgage
  • Typically, in scenarios where there is income inequality between the parties, it can order one party to pay maintenance to the other either for the rest of their joint lives, until the recipient remarries, or for a fixed period.
  • It can order money for school fees etc but not usually for general child maintenance
  • It can order that a pension be shared or attached. Sharing is where funds are transferred or split between the parties; attachment is like maintenance direct from a pension but can also be a lump sum.

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

The Role of Cafcass

role of cafcass

The role of Cafcass

When your child is subject to family proceedings, there may be a barrage of different voices and perspectives: from parents, their legal representatives, and even the wider family. Unfortunately – and unintentionally – it is all too easy for the bigger picture to become blurred, and this is where Cafcass (the Children and Family Court Advisory and Support Service) will step in. But who is Cafcass, what is its role, and why is it involved? Family law paralegal Georgia Smith explains.

Who is Cafcass?

The Children and Family Court Advisory and Support Service, or Cafcass, is an independent organisation whose primary role is to represent the interests of children. Cafcass can become involved in private law child arrangements proceedings, where separated parents are unable to agree on arrangements, or in public law applications brought by social services, where there are concerns about the welfare of a child.

What is the role of Cafcass in Private Law Proceedings?

Upon filing an application with the Court, the case will be referred to Cafcass, which will initially write to both parents to explain its role within proceedings and inform them of their allocated case worker.

Cafcass will then carry out safeguarding checks. This will include contacting the police and the local authority, to ascertain if any of the parents are known to them, and if there are any known welfare or safety risks to the child(ren).

Cafcass will then schedule a telephone interview with each parent. Although this may seem daunting, the case worker will speak to each parent individually, with a view to discovering any concerns that  they may have about the welfare and safety of their child(ren). It is imperative that parents are open, honest and remain child-focused. After all, Cafcass are working towards a fair resolution, with the child(ren)’s best interests at the forefront of their consideration.

Following this, a safeguarding letter will be prepared and sent to the Court. This report will detail the outcome of the safeguarding checks and any issues raised by the parents during the telephone interviews. The safeguarding letter will normally be made available to the parents, their solicitors and the Court, at least three days before the first hearing.

The role of the Cafcass worker is to work with both parents to reach a mutual agreement that is in their child(ren)’s best interests. If at the first court hearing it is apparent that  the parents are unable to reach an agreement and there remains welfare concerns raised by one of the parents, then the Court may direct that Cafcass prepare a Section 7 report.

This report will primarily focus on the welfare of  the child(ren) and is prepared for the Court in accordance with the welfare checklist contained within Section 1 of the Children Act 1989. A range of factors are taken into consideration, including:

* the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding)

* the child’s physical, emotional and educational needs

* the likely effect on the child of any change in their circumstances

* the child’s age, sex, background and any characteristics which the court considers relevant

* any harm which the child has suffered or is at risk of suffering

* how capable each of the parents, and any other person who the court considers the question to be relevant, is of meeting the child’s needs

* the range of powers available to the court in the proceedings.

Dependant on the age and maturity of the child(ren), Cafcass may speak with them to ascertain their wishes and feelings. Although Cafcass is often referred to as the ‘voice of the child’, they may consider that the child’s view is not in their best interests, so it is important for parents to understand that a child’s opinion may not always be decisive and attempts should not be made to influence their wishes.

Upon receipt of the Section 7 report, each parent should expect their solicitor to analyse the report in detail. Cafcass will make recommendations to the Court and usually the Judge will not depart from these recommendations without persuasive evidence to the contrary.

That being said, the report is not always considered determinative and of course, the recommendations can be challenged. Experienced children solicitors understand that family relations are complex and often assumptions can be made on limited information. It is therefore essential that parents work with their solicitor, and Cafcass, to reduce the issues in dispute and focus on the best interests of  their child(ren).

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

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