FAQs

What is a “clean break”?

Lawyers will often use the phrase “clean break” but what does it actually mean? A clean break in simple terms means that all financial ties are cut with your ex-spouse. This means that should you get a huge promotion, receive an inheritance or win the lottery, for example, your ex-spouse would not be able to make a claim on it.

The only exception to this is if you have minor children as the law will not allow you to obtain a “clean break” in respect of any child maintenance, for example.

The court’s view on a clean break

Section 25A Matrimonial Cause Act 1973 sets out that the Court has a duty to try and achieve a clean break as soon as is “just and reasonable”. This has logic because a divorce is intended to be the legal separation of two parties and it follows that their finances should be separated where possible, if only to avoid the potential for future conflict and animosity.

So how do I achieve it?

In some cases, for example a young childless couple with similar incomes, a clean break is an obvious solution and there is little debate.

In those cases, any capital or pensions may be divided and provided this is formalised in a court order once the agreement is implemented the financial ties end.

It is important to note that without a court order this would not be the case and even if assets have been divided by agreement and years have passed there could still be the potential for a claim.

In other cases, the position is more difficult. In a situation, for example, where one party has been out of the employment market for some time and the other is a high earner the only fair outcome might be for there to be ongoing monthly payments, at least until the spouse who has been out of employment has time to gain the skills necessary to find a job and be capable of meeting their own needs. A similar type of scenario might occur where there are young children and one party has given up their career to care for the children.

There are no rules with regards to monthly payments (also known as periodical payments or spousal maintenance) as the amount and length of time they are paid is very much driven by individual circumstances.

Where these payments exist, the paying party will not achieve a “clean break” until the end of the term.

Can you “buy” a “clean break”?

It is possible to capitalise maintenance and give the party who would ordinarily be expected to receive monthly sums an up-front capital sum instead (often discounted for accelerated receipt). Whether you want to do this will depend on a number of factors and there can be pros and cons.

If you have any questions about capitalisation, or clean breaks generally, please do not hesitate to contact one of our specialist divorce and finance team who would be happy to help.

Inheritance on divorce can be a very thorny topic and it can become an emotional one. By its nature inheritance is derived from the family of one party and that person can feel that it is unfair that there be any element of sharing of it. It is also quite common for other family members to have views on the topic.

Timing is important

If an inheritance has not yet been received and it is not imminent the court will often largely ignore it on the basis that there is no certainty as to whether it will be received and, even if it is, when it may be received and how much?

The court’s primary focus is on meeting needs and, if it can be avoided, it would not want to leave one party in a position where their needs would only be met if an inheritance were to be received in the future.

If it has been received, then it will be relevant when it was received. If it was received just prior to or after separation, then an argument to exclude this from any settlement will be much stronger than if it was received many years ago and during the marriage. Similarly, if it were received before the marriage and, particularly if the marriage was short, this might be a good argument for the court to exclude it from any settlement. In the latter situation the court will look at how the inheritance was used (or not) during the course of the marriage.

Does it matter what you do with it?

The short answer is yes.

If the money has been mingled with family assets, then it will be more difficult to argue that it should be excluded, particularly if it has been used towards the mortgage or renovations on the family home, for example.

If, conversely, it has been kept in a separate account or as a separate asset then the argument will be stronger.

So, will it be taken into account?

There is no black and white answer it will very much depend on the circumstances of the case. Even in circumstances where there are good reasons why the inheritance should not be shared the court may decide that one party’s “needs” mean that the inheritance cannot fairly be excluded from any settlement in its totality.

There are a number of factors involved and therefore it is important to take advice so a proportionate and sensible approach can be taken.

How can you protect it?

One of the main drivers behind pre-nuptial agreements is to protect inheritance/ family wealth and these can be a very useful tool. If the parties are already married, they can enter into a post-nuptial agreement- this is effectively the same type of document as a pre-nuptial agreement but signed after the wedding.

These agreements can set down principles including that any inheritances should be excluded from any settlement or only taken into account in certain circumstances or up to a certain amount.

If you want more information about inheritance on divorce, pre-nuptial agreements or any other family law issues please do not hesitate to contact a member of our specialist divorce and finance team.

Just as properties, cash, stocks, shares, artwork, and vehicles can be shared, divided, and distributed between spouses going through the challenges of a divorce, the Matrimonial Causes Act 1973, also grants the Family Court of England and Wales the power to order that pension assets are also shared. There are a number of ‘pension’ orders available to the Court, however, for the purpose of this article the spotlight will be solely aimed at Pension Sharing Orders (PSOs) as these are most commonly used – the other orders are now seen as a bit outdated.

A PSO is essentially an order, reached either by consent between the parties and then sealed by the court, or made in the absence of such an agreement within contested financial remedy proceedings, that outlines how one party’s’ pension asset will be shared with the other – i.e., how Spouse A’s pension will be shared with Spouse B. Part of one person’s pot is carved out and transferred to the other. There will be a pension credit, and debit, from one spouse to the other. There are two ways that this pension credit (share), can be received:

1. The receiving party can become a member of their ex-spouse’s scheme in their own right, and have their own pension. This is called an internal transfer, or;
2. The receiving party can transfer the value of the credit (share) to another pension scheme in their own name. This is called an external transfer.

Figuring out how much your pension is worth can be a challenge in itself. Most pension providers will be able to provide you with an up-to-date Cash Equivalent Transfer Value (CETV) of your pension asset. This CETV is the figure that will be used, usually, within family law proceedings to establish how much your pension is worth and is the figure that the pension provider could transfer to another pension fund at the date it is calculated.

Figuring out what proportion of one spouse’s pension should be shared with the other is even more difficult. Although the CETV of a pension gives the value of the pension according to the scheme’s calculations, it is not always reflective of the real value of the pension. This ‘real’ value is calculated in reference to the wider pension marketplace. Sometimes, the CETV does not take into consideration the value of the benefits or may understate the Open Market Value (OMV) of the pension.

It is usually a good idea to involve a pension actuary to provide the divorcing spouses with the relevant information and calculations. Normally, the calculation will seek to achieve either equality of pension income at a certain age (be that 55, 65, or 67) or equality of pension capital at a certain age (again, 55, 65, or 67). Deciding which to use is something to discuss with a solicitor. To add to the confusion, the CETV of a pension can change over time – even within the months it takes to finalise the financial aspect of a divorce.

Pension sharing orders are usually a good idea if;

1. One party has a pension, or pensions, with a high value when compared to the other assets involved in the case.
2. The parties are close to retirement age and will likely find it difficult to build up similar pension benefits in a short time.
3. The parties are older.
4. The receiving party would like to nominate potential beneficiaries of any death benefits if they were to die before taking retirement benefits.

In the simplest of terms, pension sharing can often provide one spouse with a pension for later on in life. Overall, pension sharing is part of achieving a clean break (meaning the end of a financial relationship between divorcing couples) and provides greater flexibility and choice for those spouses going through the financially, and emotionally, difficult task of divorce. The involvement of the court will ensure that any division of matrimonial assets, including pensions, is fair and reasonable.

Many successful businesses develop into family businesses as they grow. Spouses may be involved in the business at the start or become involved as the business develops. Children may also become involved. Often advice about reducing income tax or inheritance tax can lead to the transfer of shares to family members. Whilst this may have the desired impact upon tax, what does this mean for the business if any of the shareholders divorce?

If someone owns shares in a company, these will be considered a matrimonial asset if they divorce. A value is likely to be attributed to those shares within divorce proceedings. The more valuable the shareholding the more important the shares will be within the divorce. A Judge can order that an expert accountant value the company and the divorcing person’s shareholding. If they have a minority shareholding, the value of their shares is likely to be discounted, as there will be a limited number of buyers for a minority shareholding in a private limited company.

The accountant may also be asked to look at the issue of liquidity, which is how much money a company can raise to assist with a divorce settlement. If the shareholder is a minority shareholder, they are unlikely to be able to force the company to allow a dividend to be declared to enable them to pay money to their former spouse. However, if a company is said to have liquidity and the divorcing shareholder does not have other money to fund their divorce settlement from, a judge could put them under pressure to raise money through the company. If the shareholder is a majority shareholder, they may be able to force the declaration of a dividend.

A judge has the power to transfer shares from the shareholder to their spouse as part of the divorce settlement. A judge is unlikely to do this as having a former spouse as a shareholder in a family company is highly likely to be an unworkable scenario. Where both spouses are shareholders, the judge is likely to transfer the shares of one spouse to the other, if one of them has a more important role in the company or one of them does not want to stay in the company due to the divorce. In some divorces both spouses remain shareholders in the company, as they are both intrinsic to its success, but this is not a workable scenario for many divorcing couples.

If the shares were gifted to a family member that is divorcing, they may be able to argue that the shares should not be treated as matrimonial assets. However, judges will only treat inherited and gifted assets differently if there are more than enough matrimonial assets to meet the divorcing couple’s needs. If there are, the value of the shares may be discounted or even ringfenced completely within the divorce proceedings.

However, it should be noted that when the shares were gifted is a relevant factor. If they were gifted many years before the couple divorce and if the value of the company has increased since then and during the couple’s marriage, the court is more likely to consider the shares a matrimonial asset. If the shares were gifted shortly before separation, a judge is more likely to treat them differently, provided the couple’s needs can be met.

It is normal for those facing divorce to ask themselves or obtain legal advice about how to protect assets on divorce

Prenuptial agreement

A prenuptial agreement (or a ‘’prenup’’) can help you to protect your assets in the event of a divorce. A prenuptial agreement is a written agreement entered into by a couple before they get married which outlines how assets will be divided between them in the event of a divorce.

Having a prenuptial agreement in place can offer a degree of certainty as you have already agreed in advance how to distribute your assets on divorce rather than leaving it to the wide discretion of the courts.

It is important to understand that prenuptial agreements are not legally binding but the Courts are increasingly accepting prenuptial agreements as proof of the divorcing couples’ intentions of how their assets should be divided.

For prenuptial agreements to be enforceable, the following criteria must be met:

• The couple each must have received independent legal advice on the agreement

• They must have received full and frank disclosure about the other partner’s financial situation

• The agreement must be entered into freely and willingly by the couple and the agreement should be negotiated and signed at least three months before the wedding

Family Home

If the family home is legally owned by one spouse, then the other spouse can register their interest in the property when they have separated. This is known as a Matrimonial Home Rights Notice.

The application is free and once a Matrimonial Home Rights Notice is in place, then the family cannot be sold or re-mortgage without the spouse being notified.

If the family home is jointly owned as ‘’joint tenants’’ then each spouse is treated as owning the property in its whole. This means if one spouse dies before the divorce was finalised then the other spouse automatically inherits their share of the property. A spouse may want to change the way property is owned and ‘’severe’’ the joint tenancy. Each spouse will still own the property, but they can choose to leave their one-half share to whoever they wish in a Will.

Pensions

After the family home, pensions are usually the second biggest asset in a divorce and they generally form part of the matrimonial pot for division between spouses. During the negotiating process, pension offsetting can be used to protect a spouse’s pension if alternative capital assets are available. For example, one spouse keeps their pension whilst the other spouse keeps the family home.

This may sound straightforward however pensions are a complex asset and input from a pensions expert is normally required.

Wills

You may also want to consider making a Will. If you were to pass away before your spouse and before ending your marriage without having left a Will, then your estate will go to your spouse.

For advice on how to protect assets on divorce, please contact a member of our Team.

The starting point when looking at the division of assets on divorce is Section 25 Matrimonial Causes Act 1973.

This sets out that the first consideration of the court will be any child of the family who is not yet 18. It then goes on to set out a checklist of factors which the court must have regard to as follows:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it (this is not usually taken into account).

But what does that mean?

The difficulty can be deciphering what that means in practice and how it applies to each individual case.

The reality is that needs will often “trump” a number of the other factors including, for example, the fact that one party may have brought more into the marriage than the other.

There is no formulaic approach in family law in England and Wales it is very much dependent on the circumstances of the case.

Capital, pensions and income

The court has the power to make order about how capital is to be shared (including property and business assets), how pensions may be shared and whether there should be monthly payments from one party to another.

Often these different components will fit together like a jigsaw puzzle. For example, if one party earns less than the other, they could have a claim for monthly payments, however if they were to receive the lion’s share of the capital their mortgage payments on rehousing might be much lower and this would offset that claim.

Similarly, one person may want to keep their pension whilst the other person keeps the family home.

Isn’t it 50/50?

There is no legal presumption of 50/50 though there is often an exercise of looking at what sharing matrimonial assets equally might look like and whether that would meet needs and be fair in the circumstances.

It is a complex area and therefore it is very important that you take your own independent legal advice before entering into any agreement with your spouse.

If you have any questions about dividing assets on divorce, please do not hesitate to contact one of our specialist divorce and finance team.

Unfortunately, for many parties considering the decision of whether or not to seek a divorce from their current spouse, a real cause of concern is whether or not they will be able to maintain the same lifestyle the currently enjoy after divorce.

For many divorcing parties, it is an inevitability that there will be some change in the standard of living that they currently enjoy. It has been said, numerous times, throughout the family courts of England and Wales, that divorcing parties must expect to ‘cut their cloth’ in respect of their lifestyle. Often, when two spouses separate, their previously joint assets and income now have to spread across two individuals living separate lives within separate homes. This issue is made all the more complicated when children are involved.

It also has to be said that, following the emotional fallout of divorce, many parties might not make the wisest of financial decisions when their judgement is clouded by emotions. Equally, divorce proceedings, and financial remedy proceedings, can be expensive and can therefore cause a financial strain on both parties in the future. It is essential, if possible, to mitigate any future financial strain on the parties by acting fairly, and reasonably, within any negotiations around divorce and finances.

Following the conclusion of divorce, it is natural that an individual will likely want to maintain the same standard of living that they enjoyed during the marriage. This is not only important in the individual’s stability, but also for their child(ren)’s stability where such is the case. The courts have wide ranging discretion when considering financial matters arising out of divorce and must consider a number of factors, including.

1. The welfare and needs of any children, and
2. The standard of living enjoyed by the family before the breakdown of the marriage.

Although the standard of living enjoyed during the marriage is considered by the courts, it is important to note that a replication of the same is not guaranteed and, unfortunately, in most case it would be impossible to expect it. Tailored, and unique, advice must be given in each case as to whether the financial resources, and assets, available to the parties will be sufficient to not only meet the respective needs of divorcing spouses and any child(ren) but to also replicate the standard of living enjoyed during the marriage after separation. It is essential that full and frank financial disclosure is provided to your solicitor to assist them in providing you with the best possible advice in relation to this issue.

Yes. There are two types of maintenance relevant to divorce proceedings. The first is child maintenance – this is maintenance that is paid to a parent with care of the children from the other parent. It is intended to support the children’s expenses. Child Maintenance is dealt with by the Child Maintenance Service and is dealt with separately (ie there is an obligation to pay it independent of any divorce proceedings).

For divorcing couples, there is also the ability for a person to claim spousal maintenance for themselves (ie maintenance from a former spouse to help meet living costs and their other outgoings (independent of any Child Maintenance).

Spousal maintenance is maintenance for the individual person. However, there isn’t an automatic entitlement to spousal maintenance. The court will normally determine whether it should be payable on the basis of whether it is ‘needed’.

There is a test that must be satisfied for spousal maintenance to be deemed appropriate. Firstly, whether or not there is a shortfall between an individual’s income and their outgoings, and secondly whether or not the other person can actually afford to pay it.

The amount of maintenance and the length of time for which it should be paid is dependent on each case and varies entirely based on the person’s individual circumstances.

For example, the court would ask the following questions:

1. What do they actually need? What are their outgoings reasonably assessed?
2. Are there young children that require caring for which is going to impact on an ability to work in the short or medium term?
3. Does the person in need of the maintenance have an earning capacity – when can they realistically get back on their feet and become financially independent from the other person?
4. How old is the person in question – for example, is the person young, with a career ahead of them or are they approaching retirement and future income opportunities limited?

All of these factors show how spousal maintenance can vary on a case-by-case basis. The court however has an obligation to effect a “clean break” at the earliest possibility (ie for the parties to be financially independent of the other at the earliest opportunity).

So in summary, yes a person can claim maintenance for themselves, but it is very much case specific, it has to be evidenced and required on the basis of “need”.

Before a married couple can decide how assets should be divided, firstly they need to determine which assets are matrimonial and non-matrimonial. Only then can the court consider what division would be appropriate.

Matrimonial assets

Matrimonial assets are financial assets that you and your spouse have acquired during the course of the marriage such as property, savings, personal belongings and pensions. These are the assets that will be shared between the spouses.

Non-matrimonial assets  

Non-matrimonial assets are financial assets acquired before or after the marriage and are treated differently to matrimonial assets. These assets must not have been mingled during the marriage – for example, if a spouse has purchased a car with personal inheritance during the marriage.

How does the court make a decision? 

There are no rules regarding how the assets should divided on divorce, only guideline. The starting point is usually for matrimonial assets to be divided equally. The court will also take into account Section 25 of the Matrimonial Causes Act 1973 which sets out a checklist of factors that the court will apply to each individual case. The Section 25 factors are as follows:

• The welfare of any dependent children
• Financial needs, obligations and responsibilities of each spouse
• The financial resources available to each spouse
• The standard of living enjoyed during the marriage
• The age of each spouse and the duration of the marriage
• Whether a spouse suffers from a physical or mental disability
• The contributions which each spouse have made or are likely to make in the foreseeable future
• The loss of any chance to acquire benefits, such as loss of pension rights
• The conduct of each spouse, if that conduct is such that it would be unfair for the court to disregard it – for example, dissipation of joint assets

The court have a wide discretion when applying these factors, but the aim is to divide the assets fairly. Fairness does not necessarily mean an equal split. The key point is that the court need to ensure that the needs of both spouses and the needs of the children are met when deciding how assets should be divided. It is therefore possible that the court will make an order where there is an unequal division of the assets.

For advice on how assets are divided on divorce, please contact a member of our Team.

We understand that being in Children Act Proceedings can be a daunting enough experience in the first place coupled with having to come face to face with your ex.

In the Family Court, the court is under a duty to consider how victims of domestic abuse and other parties/witnesses can be helped to participate or give evidence in court proceedings. If you have made allegations against your ex and are the alleged victim of domestic abuse perpetrated against them towards you, then the court can look at Special Measures being put into place. Sometimes you have to go through a separate hearing known as Finding of Fact Hearing, for the court to determine the allegations and if they find that they have happened or not. We understand the need to be shielded from further abuse from your former partner if you have been the victim of domestic abuse, especially if you need to give evidence in such cases.

Under Rule 3A.2A of the Family Procedure Rules there is the assumption that “where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, relative of another party, or a witness in the proceedings, they are vulnerable. Where the assumption applies, the court must consider whether it is necessary to make a participation direction”. 

With regards to the types of abuse the court consider this can relate to any of the following:

• domestic abuse,
• sexual abuse;
• physical and emotional abuse;
• racial and/or cultural abuse or discrimination;
• forced marriage or so called “honour based violence”;
• female genital or other physical mutilation;
• abuse or discrimination based on gender or sexual orientation; and
• human trafficking.

Special Measures might include:

• attending court via a separate entrance and exit
• having a screen up in court (the other party will be prevented from seeing you and vice versa)
• separate consultation rooms
• giving evidence via a video link

You might be worried about being asked questions by your ex partner and that they might be able to extend their abuse by putting you through your experiences. This is now no longer permission. In such circumstances the court can make directions for the other party to send the court a list of questions he/she intends to raise in advance of the hearing. There is a barrier on parties cross examining each other where there is evidence of abuse.

It will however the decision of the court as to whether the special measures are applicable in your case.

A pragmatic approach is advised if you are being accused as the perpetrator of domestic abuse and not to oppose an application for Special Measure. It is a decision of the court and if the Special Measures helps the other side participate in the proceedings, then challenging this may prove counter productive for your case.

It is advisable to make an application for Special Measures as soon as you have notice of the proceedings, so this can be considered by the court and put into place on the day of the hearing. Special Measures provisions should be recorded on a court order to enable you to contact the court ask them to action this in advance of a hearing.

Gaslighting can be defined as manipulative behaviour by another person which leads you to question your feelings, thoughts, experiences, and memories. It is considered to be emotional and psychological abuse – and it is a form of domestic abuse. Victims are often left confused and questioning their sanity. It can also result in a loss of confidence.

Whilst it most commonly happens in romantic relationships, it can also occur in friendships, family relationships and between work colleagues in professional scenarios.

This is a term which has become more frequently used in recent times. However, it originates from a play about a married couple called ‘Gas Light’ which was around in the late 1930’s. The play involved a husband who would dim the lights in the family home. When his wife would point this out, he would try to make her ‘crazy’ by denying that he had dimmed the lights.

Gaslighting can be quite difficult to recognise, particularly as victims are often subject to it over a long period of time. Victims can become accustomed to this type of behaviour. Some use it as a form of control and the victim can become dependent upon that person as a result.

Examples of gaslighting can include the following:

• Denying that an event happened. Your partner for example may have physically abused you and then denied that it happened in the first place, making you doubt yourself.

• Blaming a somebody else for a mistake. A family member may blame you for their own mistake and try to make you feel guilty, even though it is not your fault.

• Making your feelings invalid. A common form of gaslighting is for your partner to tell you that you are being “too sensitive” or that you are making “too big of an issue” about something that happened.

• Using “love” to excuse certain behaviours. For example, your partner may do something unpleasant or abusive towards you and they may then excuse their actions by stating “I only did it because I love you”.

Victims of gaslighting are often left to feel powerless and unsure of what to do.

There are injunctive orders which can be applied for in order to protect yourself from this type of behaviour if it is perpetrated by a person that is “personally connected” to you. By way of example, this would include partners, ex-partners, and family members. You may be able to apply for a Non-Molestation Order or an Occupation Order (link to advice domestic abuse which sets out what a Non-Molestation Order and Occupation Order is).

If you do feel that you are a victim of gaslighting, you may wish to consider seeking help from a therapist or a counsellor. There are also various domestic abuse charities which support victims of gaslighting that can help them in leaving abusive relationships.

If you are experiencing gaslighting or any other form of domestic abuse and would like some legal advice, please contact our specialist children team who would be happy to assist.

Domestic abuse is a type of abusive behaviour. Most consider it to be physical violence, however, it includes a wide variety of behaviour, including the following: –

• Physical or sexual abuse
• Violent or threatening behaviour
• Controlling or coercive behaviour
• Economic or financial abuse
• Psychological, emotional or other abuse

It is referred to as “domestic” abuse as it must be carried out by a person that is “personally connected” to you. For example, it may be your partner, ex-partner or a family member.

What can be put in place to protect you or your children from domestic abuse?

If you feel that you or your children are in immediate danger, you should always contact the police.

You can apply to the Courts for various injunction orders in order to protect yourself and/or your children from domestic abuse which include the following:

1. Non-Molestation Order

This is a type of injunction which is aimed at protecting you and your children from violence, harassment and threats. It can cover a range of behaviour and is often used to protect victims of domestic abuse.

Non-Molestation Orders are typically made for a period of up to 12 months, but this can be extended.

When deciding whether to grant a Non-Molestation Order, the Court will consider all of the circumstances of the case, including the need to secure the health, safety and well-being of the applicant and any relevant child.

If you breach a Non-Molestation Order, this can result in a fine being issued or a prison sentence of up to a maximum of 5 years.

2. Occupation Order

This type of order relates to the right to occupy the family home in circumstances of domestic abuse. They are made for a specified period of time depending on the particular situation. In practice, an Occupation Order is not usually made for longer than 6 months, however, it is possible to apply for an extension of the relevant period.

If granted by the Court, it can prevent your partner, ex-partner or family member from living in the family home or entering the surrounding area.

In order to apply for this type of order, the applicant or the other party (the respondent) must own or rent the family home.

When deciding whether to make an Occupation Order, the Court have a duty to balance the harm that would be caused to the applicant, the respondent and any children, if the Order was either made or not made. They must also consider all of the circumstances of the case, such as the parties’ financial resources.

Breach of an Occupation Order is contempt of court which can result in a fine being issued or imprisonment of the respondent.

If you have any questions about these issues, please contact our specialist children team who would be happy to assist.

If you hold parental responsibility for the child, then it is your duty to do everything in your power to safeguard that child from the risk of harm. In the circumstances where the child is exposed to domestic abuse, criminal conduct or substance misuse by one of the parents, it is perfectly reasonable and even necessary for contact to be withheld with immediate effect to adequately safeguard the child. All instances of abusive behaviour should be carefully recorded and report to the police and the children social services.

When there is no formal Child Arrangements Order in place, it is advisable that the parent with care of the child communicates to the other parent their refusal to facilitate contact and strongly requests that the abusive conduct ceases instantly. If this fails, then a formal letter from a solicitor may achieve the desired effect and in the event to the contrary an application to the Court for a Child Arrangements Order and a Prohibited Steps Order may be necessary to protect the child from being removed from their place of safety and becoming exposed to a further risk of harm at the hands of the other parent.

The Court’s paramount consideration will always be the welfare of the child and their ascertainable wishes and feelings. In determining how to deal with the abusive parent, the Court would require CAFCASS to undertake safeguarding checks in respect of both parents and provide further recommendations for dealing with the case going forward.

In circumstances where the Court is dealing with contested allegations of domestic abuse, the Court will have a duty to decide whether determination of the factual matrix of these allegations is necessary to assist the Court in making a final Child Arrangements Order. If the Court feels that the allegations may be directly relevant to the issue of future contact then a Finding of Fact hearing will be listed and the evidence from the parties heard before deciding whether or not the allegations are proven.

Once the position regarding the allegations is clear the Court may require further support from CAFCASS in undertaking a more in-depth assessment and to provide their professional recommends regarding final living arrangements for the child. It may come as a complete shock to a lot of readers to discover that even in the eyes of a risk of harm the Court may still find it appropriate to order an indirect form of contact via letters, cards or photos.

The law is designed to promote contact between the child and his biological parents and whilst contact may be stopped pending the outcome of all the investigations, any future arrangements will depend on whether or not they are in the child’s best interests. If a risk of harm continues to exist then the Court has the power to order no contact, or to direct for contact to be strictly supervised and to take place either a contact centre or under supervision from an independent professional social worker.

The outcome of each arrangement is case specific and dictated by the level of risks being presented by one of the parents towards the child. If you wish to discuss your matter with a member of our specialist team please do not hesitate to contact us.

With the increased popularity of the internet and social media platforms we have seen a resurgence of new forms of abuse which target victims online. It is an ultimately sign of betrayal to be put on the receiving end of threats to have your intimate pictures shared with the rest of the world without your consent. The effects of such intimidatory behaviour are not only humiliating and gut wrenching but it can also cause long term psychological and emotional damage to the victim.

From a legal standpoint, if the behaviour is designed to cause distress and alarm to another person and it is repeated more than once then such acts will amount to harassment and the victim will have the following options available to them.

Police involvement 

Threatening someone with revealing their private pictures online for the whole world to see amounts to harassment which is a criminal offence. If you are being subjected to such form of abuse, you should consider in first instance reporting matters to the police. Speaking to the police can be daunting especially if you have not had to do that before. We would recommend that you always write down all the details of the offence and collate all the available evidence in support of your allegations. These can be screenshots of written communication or voice recordings.

The police will provide you with a reference number and decide whether to refer matters to the CPS or alternative issue charge the offender with a harassment warning notice. The warning notice requires the police to explain to the other person the consequences of not abiding the law and repeating their behaviour. If harassment continues CPS might seek is a Restraining Order from the Court for your protection.

Harassment and Civil Injunctions

Harassment offence is actionable in a Civil Court under the Protection from Harassment Act 1997. There is a timeframe to apply for an injunction which must be submitted within six years from the date when the harassment first started. Breach of the injunction is a punishable criminal offence with up to a five-year prison sentence.

Harassment and Non-Molestation Orders 

The alternative is that you seek legal action in the Family Court pursuant to the Family Law Act 1996. If you are associated with the abuser through marriage, engagement, cohabiting relationship, because you share a child together or you were in an intimate relationship with, you may seek an injunction known as a Non-Molestation Order.

The term molestation is not properly defined in a statute however in the case of Horner v Horney [1982] Fam 90 it was held that “molestation” includes any conduct which can be regarded as such a degree of harassment as to call for the intervention of the Court. You will need to satisfy the Court on the balance of probabilities that judicial intervention is required to control the behaviour which is complained about.

If you suspect that the abuser might carry out his threats imminently, then you could seek an emergency injunction from the Court to prevent them from posting any comments, images, videos, film footage or other statements about you on social medial platforms. The hearing would take place without any notice of the respondent to prevent any further damage. If you are thinking of making an application please contact a specialist member of our team.

In an ideal world, when couples separate they would be able to let bygones be bygones, move on with their lives and have the separation that celebrities and lifestyle bloggers always preach about – amicable.

But in the real world, it is not always possible to have an amicable separation. There might be conflicts about the reason for the separation, about the children, about finances, about anything.

Especially where there are children involved, there is likely to be a long-lasting connection to your ex-partner. You may both have parental responsibility for the child/children so will need to have communications with that person, no matter how unpalatable that might seem.

If your ex-partner is sending threatening text messages, then the first port of call should be to ask them to stop. This answer cannot cover every topic of potentially threatening messages, and there are shades of grey to consider, but if you feel like you are receiving threatening text messages – or messages via another medium, such as emails, letters, phone calls etc – you should ask them to stop in the first instance.

If the messages continue unabated, then you should consider applying for a non-molestation order. A non-molestation order restricts what the person against whom the order is made is able to do. The standard order includes the following:

“9. The respondent [that is, the person who is sending the threatening messages] must not use or threaten violence against the applicant, and must not instruct, encourage or in any way suggest that any other person should do so.

10. The respondent must not intimidate, harass or pester the applicant, and must not instruct, encourage or in any way suggest that any other person should do so.
11. The respondent must not telephone, text, email or otherwise contact or attempt to contact the applicant, [except for the purpose of making arrangements for contact between the respondent and the children of the family] / [except through [his]/[her] solicitors [insert name, address and telephone number]].”

You may be concerned that your ex is not going to abide by the terms of an order, given the history of your relationship. A non-molestation order often comes with a power of arrest; if the person against whom the order is made breaches the order – that is, does something they are prohibited from doing – then they ultimately risk being arrested. A Non-molestation order can therefore give you that protection against receiving threatening or abusive messages.

Another alternative, if you have to have some contact with your ex for the sake of child arrangements, is to use a communications app such as My Family Wizard. These apps record the conversations and are helpful if you need to show to a court the type of language that is being used.

If you feel like you and/or your child are at immediate risk of physical harm, call 999 without delay.

It is the sad reality that we live in a world where incidents of domestic abuse are far to common place. Statistics show that domestic abuse will affect 1 in 4 women and 1 in 6 men in their lifetime. Notwithstanding those genuine cases, there are those who lie and fabricate incidents of abuse maliciously and obtain the protection of the Court when it is perhaps unjustified. 

If you are a victim of abuse, there are various ways in which you can protect both yourself or a child from further threats of harm and / or physical violence. One of those ways is to apply to the Court for a Non-Molestation Order.

What is a Non-Molestation Order?

A non-molestation Order (or injunction as commonly known) are protective Orders that are made by the Court to eliminate the threat of abuse against a person or a child. The Court has the power to make Orders that restrict or prohibit someone from behaving in a certain way, by way of example, the Court could stop someone from sending abusive communications to another. It is common for such Orders to last a period of 12 months but the Court does have the power to make a Non-Molestation Order for a longer. 

Who can apply for a non-molestation order?

You must be an ‘associated person’ in order to apply for a Non-Molestation Order under the Family Law Act 1996. In summary, those who can apply to the Court for a Non-Molestation Order under the Family Law Act are as follows:

1. Someone who you have been in a relationship with
2. A family member
3. Someone who you have previously lived with
4. Someone who you have a child with

So, what can you do if you have been served with a Non-Molestation Order?

Being served with a non-molestation Order be a former partner or a relative can be very distressing. You may read the documentation and wholly disagree with its contents. So, what can you do?

1. 1. You can accept the Order – If you agree with the reasons as to why the Order has been made then you can simply ‘do nothing’ and accept the Order that has been made by the Court.  Even if you do not agree with the reasons as to why the Order was made, you can still accept that an Order should remain, yet it could be stated clearly that you only accept for an Order to be made on a strictly no admissions basis. This in effect is you saying that although you do not accept the allegations that have been made against you, you do not wish to challenge the making of the Order. There are a number of reasons as to why you may adopt such an approach.
   2. You can defend the Order – Having been served with an Order and Application in support, you may mistake your former partner to be JK Rowling, as the allegations that have been relied upon may be nothing but fiction. In those circumstances, you may wish to defend the Order. By seeking to defend the Order, you are in essence that you do not accept the allegations that have been raised and you do not accept that it is necessary for a Non-Molestation Order to be made. In circumstances, where you would wish to challenge or defend the making of a Non-Molestation Order, you will be given the opportunity to collate and file your evidence in response, following which the matter will be listed for a Court hearing where ultimately the Judge will decide as to whether a Non-Molestation Order is necessary. 
   3. You can offer an Undertaking in exchange for the making of a Non-Molestation Order – An Undertaking is a solemn promise that you can give to the Court in respect of your future behaviour. If the Court were willing to accept an Undertaking from you, then you could promise to the Court that you would not do certain things. An Undertaking is offered in exchange for an Order and therefore no Order is made. If you offer an Undertaking in exchange for a Non-Molestation Order and you are found in breach of that Undertaking, then you may be found in contempt of Court.

If you have been a victim of domestic abuse or have been served with a non-molestation order then it is in your interests to seek specialist legal advice. 

If you are being abused and you cannot afford to pay a solicitor, you may be eligible for legal aid if you have evidence that you or your children have been victims of domestic abuse or violence and you cannot afford to pay legal costs.

Legal aid is a government scheme which helps victims pay for legal advice and help, representation and/or family mediation. Sometimes it can also pay for things like an expert’s opinion or court fees.

The evidence must show that you are or are at risk of being a victim of domestic abuse or violence from the other party in the case arising from a family relationship between you and the other party.

To claim Legal Aid, you must make an application to the Magistrate’s Court and certain criteria must be met. The criteria is usually based on a person’s financial circumstances, so it considers household income, outgoings, capital and equity. If you are claiming certain benefits such as Jobseeker’s Allowance (JSA), income support or a guaranteed pension, you automatically pass this test and are eligible for Legal Aid. That said, if you and/or your partner receive an income (other than benefits) over a certain amount you will not be qualified for Legal Aid.

There is a high threshold to meet the legal aid eligibility criteria. There is a three-part test:

Means assessment

This focuses on your income and assets. If you are on Universal credit, you will automatically satisfy this element. If you are working, you will be expected to pay a lump sum or a monthly contribution to your legal aid. This monthly sum will be calculated during the application.

Merits assessment

This will assess whether there are legal merits to your case. For example, the Legal Aid Agency will be unlikely to fund a case where there are no reasonable prospects of success.

Evidence of domestic abuse 

In addition to the means and merits test above, ‘gateway evidence’ is needed showing that you are a victim of domestic violence from the other party to the proceedings. You will need to provide documentary evidence from an independent person such as a Doctor, Support Worker, Social Worker. Unfortunately, your word about what you have suffered is not enough. The law states that you need evidence to prove what you have been through. The letter must follow a certain format and the Legal Aid Agency will only accept this evidence in this format.

Under the Family Law Act 1986, if you are subject to domestic abuse, you can apply for an injunction to protect yourself and in some cases your children also.

There is no specific definition of domestic abuse. It can be when someone close to you, often a partner or spouse causes you physical, sexual, financial or emotional hardship. It is a misconception that in order for you to be categorized as being in an abusive relationship, there must be physical violence. In many cases there is no physical violence; instead, there is psychological and emotional abuse.

Domestic abuse can take many forms. Other than physical violence and threats of violence, you may feel intimidated by things that are said to you, or the manner in which you are treated. You may feel controlled and prevented from spending time with friends and family. Abuse can be verbal; you may feel belittled by your partner at home or in front of others.

In some instances, a telephone call to the police or help in seeking refuge to a safe environment will provide sufficient protection to a victim of domestic abuse. For others, an application to the court for an injunction order will be required.

You can apply for the following orders:

1. Non Molestation Order

This is an order that prohibits your partner or spouse from using or threatening violence against you or your children, or intimidating, harassing or pestering you.

2. Occupation Order

This is an order that requires your partner or spouse to leave the home. Orders can be made to suspend an individual’s right to occupy the home and, in some circumstances, exclude the individual from a defined area around the home

Be prepared, if you are applying for an Emergency Order or an order on notice to prepare a detailed statement in support. McAlister Family Law can assist you with this.

The court can grant such orders urgently on the day the application is issued. Such emergency orders will often be applied for without notice to your partner. This means that your partner will not have advanced warning that you are going to court to address any immediate safety concerns.

A Non Molestation Order or an Occupation order can be granted from anywhere between 6-12 months in duration.

It is important to bear in mind that breach of a Non Molestation Order is an arrestable offence and every Non Molestation Order carries a Power of Arrest.

If the court does not grant an emergency hearing or you apply, on notice, to the respondent in the case, then you will usually get a hearing within 7-14 days. You will be required to return back to the court for a further hearing once the respondent has been given notice of the order made. If matters cannot be agreed on the return hearing date, the court will usually set a Contested Final Hearing to determine the matter.

If you are in immediate danger then you are advised to report the abuse to the police so that emergency help can be provided to you.

There are various ways to obtain protection against a violent spouse. Notably, a victim is able to apply for a Non-Molestation Order and/or an Occupation Order.

A Non-Molestation Order is an injunction which offers protection to family members, including children and individuals in a domestic relationship, against the use of violence or other forms of molestation. It also protects against threats of violence, intimidation, harassment or pestering both in person and through other means such as text messages and phone calls. An order can prevent the abuser from coming within a certain distance of the victim, the home address or even attending a victim’s place of work. An order will also prevent an abuser from instructing or encouraging others to do any of those actions.

To make an application for a Non-Molestation Order, the victim and abuser must have “association” under the Family Law Act 1996. This includes those who are or were married, civil partners, living together or partners. It also includes relatives and in-laws along with those who have a child together.

Once granted, a Non-Molestation Order is usually in place from 6-12 months, but this can be extended.

A Non-Molestation Order can also be applied for without your spouse/partner’s knowledge. This is known as an ex-parte application.

A breach of a Non-Molestation Order is a criminal offence, and the police have the power to arrest anyone in breach.

On the other hand, an Occupation Order regulate occupation of the family home and defines who can live there. Abusers can be excluded from the home whilst the victim and the children remain, or they can be excluded from certain areas of the home. An Occupation Order usually lasts for a period of 6 months, although this can be extended for an indefinite period in some instances.

There are also many other alternatives forms of support, like for example charities and support groups which victims can contact. Some of these organisations are as follows:

• National Domestic Violence Helpline – 0808 2000 247
• National LGBT+ Domestic Abuse Helpline – 0800 999 5428
• Refuge Helpline – 0808 2000 247
• Samaritans – 116 123
• The Men’s Advice Line – 0808 801 0327
• Women’s Aid
• Victim Support
• Domestic Violence Shelters

In cases where a victim is in immediate risk of harm, they should call 999 straight away. Domestic abuse is a crime, and the police remain equipped to deal with these situations and offer help.

If your ex-partner refuses to leave the house and they are subjecting you to domestic abuse, there are a number of things you can do to protect yourself and your right to occupy the home.

Occupation Orders and Non-Molestation Orders

You can make an application to court for an occupation order which will protect your right to live in the house. It will also ensure your ex-partner is forced to leave the house if they will not go and that they cannot return if they have already left. Occupation Orders are enforceable, which means if your ex-partner breaches the order, you can take them back to Court and they may face serious consequences for their actions such as a fine or even imprisonment.

A Non-Molestation Order will prevent your ex-partner from continuing their abusive behaviour towards you and will stop them intimidating, harassing, or using/threatening violence against you. It will generally be put in place for a certain length of time, for example, one year. As with Occupation Orders, Non-Molestation Orders are enforceable and the penalties for breaching this type of order are very similar to those explained above.

A promise to the Court

Occasionally it can be agreed that rather than a Non-Molestation Order or Occupation Order being imposed, the abusive ex-partner will instead provide an “undertaking” that they will not attend the property or come within a certain distance of the property. An undertaking is a promise made to the Court that you will or will not do a certain action and we can advise you on whether this is sufficient in your specific situation. If an undertaking can be agreed, this will often happen at the first hearing which means you do not have to go through the stressful experience of a further contested hearing.

Protecting yourself

If you are suffering domestic abuse and you feel you or your children are at immediate risk of physical violence, you should always call the police and ensure the safety or yourself and any children involved. Do not stay in the property if you believe the lives of you and your children are at risk there. The above orders should only be sought once your immediate safety is secured.

This is a common question asked when a co-habiting relationship or marriage comes to an end and your ex-partner has already moved out or you want to keep them out of the house. There are a few factors you will need to consider before deciding whether or not you can or should do this however, such as who owns the property (is it jointly owned or in your sole name), the circumstances leading up to you wanting to do this, and any other alternative solutions that may be available to you.

Married Couples

If you are married to your ex-partner but the property is owned in your sole name, your ex-partner can secure a Home Rights Notice on the property which will protect their rights of occupancy to the family home. However, if they have already moved out of the property, you should be able to enjoy your right to privacy without worry that they will return and cause problems for you. You have a right to privacy and this should not be interfered with by your ex-partner once they have left the house.

If the property is held in your joint names, you will need your ex-partner’s permission to change the locks whether they have already moved out of not. Neither of you can lock the other one out.

Unmarried Couples

If you are unmarried and the property is in your sole name, your ex-partner cannot secure Homes Rights against the property. Home Rights applies exclusively to married couples, meaning you can change the locks without getting your ex-partner’s permission.

As with married couples, if the property is held in your joint names you will need their permission to change the locks.

How we can help you?

If your ex-partner wants to come back to the property, we can write to them explaining that you are entitled to privacy and reasonable enjoyment of the home without interference from them. If you own the home jointly and your ex-partner has good reason to visit the property i.e. to collect personal items, we can ask them to give us notice of when they intend to return and providing the notice they give is reasonable, we can arrange for your ex-partner to come back to the house at a time when you are either not there or at a time when you/an independent person are there if you are uncomfortable with them returning without supervision. Legally, your ex-partner is entitled to visit a property owned in your joint names but your right to privacy is very important and should be respected once they have left the house.

If the property is in your sole name but your ex-partner wants to come back to collect personal items, again, we can write to them and arrange this. However, they have no legal right to access the property again and if they attempt to do so without your permission you should notify the police immediately. You can also talk to us about seeking an injunction against your ex-partner to stop them from attempting to come back to the house in the future.

Before the law changed in April 2022, although rare, it was possible for an individual’s partner to be named in a divorce petition. This could happen where there was evidenced “adultery” (which was then one of the “facts” that could be relied upon to evidence to the court that a marriage had irretrievably broken down).

However, in April 2022 the old law was completely abolished, with the “facts” needing to be relied upon to show irretrievable breakdown of marriage being removed.

Under the new system, within a Divorce Application (as it is now named), individuals simply need to confirm to the court that there has been “irretrievable breakdown” without having to explain why that is the case.

This means that even if a person’s spouse believes the breakdown of the marriage to be because of there being a new relationship, there is no longer the opportunity to state this within the Divorce Application, or name the individual involved.

The whole purpose of the new system was to reduce acrimony within divorces, preventing to-ing and froing on the wording of petitions which was increasing the emotional temperature and costs unnecessarily.

Is having a new partner relevant to the financial matters? 

The existence of a new partner can be relevant to the financial matters more generally. This very much depends on the circumstances of each and every case. Relevant considerations would be how stable the relationship is, whether the new partner is living with the individual and if so, whether they can provide an additional financial resource that is realistically available (or potentially whether the new partner is even a financial drain) on their resources.

The existence of a new partner does not mean that there will be less of a right to a fair outcome upon divorce. The court has to assess each and every case on the basis of fairness and need. As such, the court would not expect new partner to financially support somebody at the expense of their former spouse, particularly when there are children and where there are assets/income that can be used to meet those needs.

Within court proceedings, there is an obligation for full and frank financial disclosure. If somebody is living with their new partner (cohabiting) then there is an obligation to disclose details of their partner’s income and assets but only as far as “they are known”. To that extent, a partner could be referred to within the court process/financial matters more generally.

“High net worth divorce” is a term that is often used where a divorcing couple have high value assets, but what does this really mean and what impact does this have when looking at a fair financial settlement on divorce?

For a divorce to be considered high net worth, the total value of the couple’s assets is usually more than they require to meet their individual financial needs. Need is an elastic concept. At its most basic it is having somewhere to live and money to live on. The more money a couple have the more generously need is likely to be interpreted. In many divorces the couple’s standard of living reduces when they divorce, as they cannot afford to buy two houses of the same value of their matrimonial home and they cannot afford to fund the same outgoings that they used to, as they are having to fund two households. In high net worth divorces this is not the case, as the assets are usually more than enough to allow both spouses to carry on with the same standard of living after they divorce.

If the assets are greater than the couple’s needs, who retains the balance of the couple’s assets once their respective needs have been met? If the couple have been married for many years and all the assets were acquired during their marriage, it may be that an equal division of all the assets is appropriate. However, an equal division is not appropriate in all divorces, and having more assets than are required to meet the couple’s needs will allow various legal arguments to be run to show why not all assets are matrimonial and therefore why one spouse should receive more than half of their total net assets. These legal arguments include the following:

• Pre–acquired assets – where one spouse brought significantly greater assets into the marriage than the other, it is possible to argue that some or all of the assets that they had at the time of the marriage should be ringfenced and not form part of the matrimonial pot which is divided between the couple. This argument is more likely to succeed if the assets that were brought into the marriage were not “intermingled” with other matrimonial assets. For example if one spouse has an investment property that they owned before the marriage and the other spouse has never contributed to it, this is likely to be considered non-matrimonial. Whereas savings that one spouse had at the time of the marriage, which were used to fund the purchase of a property jointly owned by the couple, have been intermingled and are more likely to be considered matrimonial.
• Post separation accrual – this is where one spouse has acquired assets after the couple separated. This does not include the latent growth in assets after separation, for example a property that has increased in value after separation due to an increase in value in the property market in general. This growth in value is likely to be considered matrimonial. However, it could include a new business started by one spouse after separation, which now has a significant value. If it is considered non-matrimonial it is likely to be excluded from the matrimonial pot.
• Inherited assets/gifts from family – if one spouse has received a significant inheritance or been gifted significant assets during the marriage, a judge can decide to ring fence those assets, treating them as non-matrimonial and leaving them out of the matrimonial pot that is divided between the couple. Again a judge is more likely to do this if they have not been intermingled with matrimonial assets.

High net worth divorce cases often include more complex assets structures, such as companies and trusts. The assistance of other professionals, such as accountants, is often needed to value business assets and to calculate the tax payable on the disposal of the assets, as the court will look at the net value of the assets, when deciding what a fair settlement is.

The date of separation is often determined by the date you and your spouse/partner began living separately. Often, this is when you stop living together in the same home. Sometimes, however, it is not possible to have separate homes and you continue to live together under the same roof. If this happens the date of separation is likely to be classed as the date you began living separate lives under the one roof at home, such as eating meals separately, sleeping in separate bedrooms, no longer doing one another’s laundry etc. 

You may never wish to formalise or legalise your separation but if you do, you have some options available to you, which are:

1. Separation Agreement
2. Judicial Separation
3. Divorce

A Separation Agreement is an agreement setting out the terms of your separation. The issues often addressed in a Separation Agreement are arrangements for the children, financial issues such as who will occupy the family home and who pays the bills, and sometimes even arrangements for the family pet(s). The date of separation can be included within this document. Be aware, a Separation Agreement is not legally binding, but it would carry weight if certain criteria are met. 

Judicial Separation is a legal way to formally separate. Judicial Separation is often chosen where you do not wish to get divorced (for religious or personal reasons), you have been married for less than a year (and so cannot issue divorce proceedings yet) or you just want time to work on the marriage.  An application would be made (either jointly or a sole application by one spouse) to state a Judicial Separation is sought. An Order of Judicial Separation is then made once the Court is satisfied the criteria has been met. At the conclusion of Judicial Separation proceedings, you are legally separated but you do remain married to your spouse. To formally end the marriage you would need to issue Divorce proceedings. 

Divorce proceedings legally end the marriage once finalised.  An application would be made (either jointly or a sole application by one spouse) to state the marriage has irretrievably broken down. Two orders are made (Conditional Order and Final Order) in the proceedings which takes between 6-9 months usually. Once the Final Order is granted, the marriage is legally dissolved. 

Whilst adultery may be the reason for instigating divorce proceedings, the law changed in England and Wales on 6 April 2022 removing the ability to “blame” your spouse for the breakdown of the marriage. 

Prior to 6th April 2022 the ground for divorce was that your marriage had irretrievably broken down based on one of five facts namely; behaviour, adultery, 2 years separation, 5 years separation or desertion.

Now you no longer rely on a “fact” in the divorce application and instead, you have to confirm in a statement that your marriage has irretrievably broken down. This is all that is required (along with other general information about you, your spouse and the marriage) in the divorce application to start the proceedings. The Court simply must be satisfied your marriage has broken down irretrievably. 

The change in the law removes the ability to state within a divorce application that adultery has been committed by your spouse.  This can be distressing when your spouse has had an affair that led to the breakdown of the marriage but, in the court’s eyes, more often than not the reason for the divorce has no bearing on any other issues arising such as arrangements for the children or financial matters. 

The short answer to this question is no. In and of itself, an Islamic marriage contract or ‘Nikah’ is a religious marriage ceremony binding under ‘Sharia Law’ only. Whilst you, your friends and your family may consider that you are married after an Islamic ceremony, a common misconception is that such a ceremony is legally binding in England and Wales as well. If you have undergone a ‘Nikah-only ceremony’ and have not registered your marriage in the UK through a civil ceremony, then you are considered cohabitees only in the courts of England and Wales.

There are limited exceptions to this rule. If for example you married in a mosque, which has been registered for the solemnization of marriages in England and Wales (section 41 of the Marriage Act 1949), then the marriage may be considered legal. To clarify whether your mosque is registered you can search government records of the places of worship registered for marriage, which can be found here: – https://www.gov.uk/government/publications/places-of-worship-registered-for-marriage

Alternatively, if you are a British national who has travelled overseas and have married via an Islamic marriage ceremony, your marriage may be considered legally valid if certain criterion has been met within the specific country you have travelled to. Your marriage will be recognized in the UK if both of the following apply:

• You have followed the correct process in the country where you got married for it to be legally recognized. For information on what specific procedures need to be met in the country you have married, visit: https://www.gov.uk/marriage-abroad; and
• The marriage would be allowed under UK law. Please see the governments explanatory note on allowable marriages here: https://www.gov.uk/marriages-civil-partnerships

So, what does this all mean practically? 

If you have validly registered your Islamic ceremony (through a civil ceremony or other method detailed above), upon separation you will need to follow the divorce process for both Islamic and civil divorces. All financial matters and legal matters should be addressed during the civil divorce process, as an Islamic Sharia Council does not have the power to legally decide how your assets are to be settled.

In circumstances where the Islamic ceremony has not been validly registered, on separation as a cohabitee you will not have the same automatic rights as a couple in a civil marriage. As there is no such thing as a ‘common law spouse’ within the courts of England and Wales, any such any claim to ‘financial remedy’ for a cohabiting couple will largely be limited to only claims against property in which you have a legal or beneficial interest in. Such an application would be a civil claim brought under the Trust of Land and the Appointment of Trustees Act 1996, which is far more limited in its application. Please see our blog on this topic for further information on how assets are dealt with upon separation for cohabiting couples: When unmarried couples split: what happens to your property?.

Unfortunately as much as 60% of married Muslims in the UK have fallen under the misconception that their Nikah will be recognised in the UK and have not registered their marriage, this widespread lack of awareness can often leave people in the Muslim community very financially vulnerable upon separation, particularly women. Separations can at the best of times be difficult to navigate, so if you have concerns about your position upon separation and question whether your Islamic marriage is indeed valid in the UK, please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

In short, the answer is yes. Mediation can be an effective and efficient way of reaching an agreement amicably.

Usually, individuals who wish to take part in mediation are hoping and wanting to reach an agreement and relatively quickly.

A mediator can help parties cut through issues, communicate and facilitate discussions with the overall aim of reaching an agreement. The Family Mediation Council outlines that typically, it will take between 3 – 5 mediation sessions to reach an agreement (with recommendations of at least 1 week between each session).

The charges from mediator to mediator do vary, but inevitably overall costs are usually cheaper than going to court because:

1. Agreements tend to be reached after a number of weeks, whereas the court process would likely stem over a number of months (or even years in particularly complex cases).
2. Legal advice is required only at the point of reaching a settlement and can be limited to:

• Advising on the ‘fairness’ of the agreement and the legal implications of it.
• Drafting the order required to turn the agreement into a legally binding consent order (which can be dealt with a lot of the time with a “fixed fee”).

3. The overall cost of the court process does however depend on how the individual chooses to fund their court proceedings and the level of legal advice and input they require (referred to below).

Individuals who are on a low income or not working may also qualify for legal aid to assist with mediation costs generally (to include mediation to discuss financial issues).

Further, the government in March 2021 also introduced a scheme to help families more generally to fund the cost of mediation by providing a £500 voucher towards their mediation costs. The voucher is available for mediation relating to:

• A dispute/application regarding a child;
• A dispute/application regarding family financial matters when a party is also involved in dispute/application in relation to a child (and many people of course fall into this category).
• If, however mediation sessions are required solely in respect of financial issues the voucher is not available and the mediator’s costs will need to be privately funded (unless the individual qualifies for legal aid).

More information about the funding of family mediation can be found here:

https://www.gov.uk/guidance/family-mediation-voucher-scheme

https://www.gov.uk/legal-aid

Court Proceedings

Sometimes, court proceedings are inevitable. They can however become costly very quickly and can run into many thousands of pounds, particularly when emotions are running high and when issues become particularly acrimonious.

It is recommended that legal advice is sought throughout (to assist in drafting documents, statements, and to ensure consistency of evidence) with legal representation usually required at court hearings from solicitors or barristers.

Each case is different and at the outset of a case (and at regular intervals during it) a client’s legal representative will provide a realistic estimate of costs to each stage of the process and provide advice as to how best to keep costs proportionate to the issues in the case.

Sometimes the very act of issuing a court application may be enough prompt the other party to engage and an agreement can be reached at any time. So it’s not every case that costs become substantial or protracted.

In addition, if individuals choose not to instruct a solicitor/barrister and they represent themselves in court, then costs will be limited to any court fees required (which usually are paid at the beginning of the case only). All options should be discussed between a client and their legal representative at the outset of the case.

Legal aid is no longer available for financial proceedings generally (even for low-income families). It is available in some circumstances including cases of domestic violence and in children cases where there has been domestic violence or there are care proceedings. Financial proceedings do, therefore need to be privately funded in almost all cases.

On 6th April 2022, the ‘’no-fault’’ divorce was introduced. There is only one ground for divorce which is that the marriage has irretrievably broken down. Under the new divorce law, there is no longer any need to assign blame and you do not need to provide the court with an additional reason for the divorce such as: adultery; unreasonable behaviour; desertion; separation for more than 2 years; or separation of more than 5 years. The purpose of this change in divorce law is to make divorce easier, reduce conflict and make the process less acrimonious.

When can you get a divorce? 

You have to be married for one year before you can start divorce proceedings

Divorce process

You need to start divorce proceedings to bring the marriage to a formal end. You can either make a divorce application on a sole basis or a joint basis.

The application is submitted online via the online divorce portal. The Court requires a scan of your original marriage certificate. There is also a court fee payable when making the application

Once an application has been made for divorce and the other spouse has confirmed to the court that they have received the divorce application, there is a ‘’cooling-off’’ period of 20 weeks from the date of the divorce application. Only when that 20-week period has elapsed can you confirm to the Court that you wish to proceed with the divorce and request the next stage in the process which is known as a Conditional Order.

Once that confirmation has been provided, the Court will issue a ‘’Conditional Order’’. You are still married at this stage, but the Conditional Order is important as only once it is granted does the Court have the power to approve any financial agreement

6 weeks and one day after the Conditional Order is made the Final Divorce Order can be applied for. Once the Final Divorce Order has been made you are officially divorced. Any financial order becomes enforceable once the Final Divorce Order is granted.

There is now no option to defend a divorce, save for exceptional circumstances (for example, the Court not having jurisdiction to deal with the matter or the marriage not being valid in the first place). This means that, even if one spouse does not agree to the divorce, the Court will grant the divorce regardless, on the basis that one spouse has confirmed to the Court that the marriage has irretrievably broken down. However, you have to prove that the other spouse has received the divorce application.

How much does divorce cost? 

The court fee for starting a divorce in England and Wales is £593. You might be able to pay a reduced court fee if you are on a low income or receive certain state benefits.

For advice on how to get on divorce, please contact a member of our Team.

The legal costs involved with divorce are, rightly, a concern for many people when considering whether or not to get divorced. In terms of the actual divorce suit, there is usually a court fee of £593.00 payable on filing the application, unless parties can claim an exemption from paying the costs. This fee is either paid directly to the court by a person filing the divorce petition or, if that person is instructing a solicitor, then the solicitor might often pay the divorce fee using monies from their client that are held on account.

In terms of legal representation for the divorce suit, solicitors offer a wide range of options from fixed-fee divorce packages to charging based solely on a solicitor’s hourly rate.

At McAlister Family Law, we offer a fixed fee divorce package of £550 plus VAT (£110) and the Court fee of £593. As such, our Divorce fixed fee package will cost £1,253. We also offer discounted rates for Police officers of £400 plus VAT (£80) plus the court fee of £593. As such, our discounted Divorce fixed fee package for Police officers (serving or retired) will cost £1,073.

It is important to note that the divorce suit, and matters around the matrimonial finances (i.e. the family home, cash savings, pensions etc.) and arrangements for any children of the family, are entirely separate to the divorce suit and will not automatically be resolved when filing an application for divorce. Issues around the matrimonial financial element of the case, arrangements for children, or other issues, will also not caught within the aforementioned fixed fee structure. Usually, matters involving the matrimonial finances and/or arrangements for children will be charged at the respective hourly rate of the solicitor who has conduct of the file(s) / matter(s). There are ways that you can minimise how much a case involving matrimonial finances, or arrangements for children, will costs.

The easiest, and most simple, way to do this is to ensure that you have communicate the instructions to your solicitor clearly and that you are organised when gathering and preparing any documents that have been requested by your solicitor, the court, or the other side. It is also possible to minimise the legal fees that you might incur by dealing with matters as amicably, and sensibly, as possible. It may be both beneficial in terms of maintaining a level of amicability, and minimising your legal fees, to attempt mediation before seeking the assistance of a solicitor when considering the division of any matrimonial assets.

Essentially, if it is possible to reach some form of agreement with your spouse in relation to the matrimonial finances and/or arrangements for any child(ren), prior to instructing a solicitor to act on your behalf, your legal costs will usually be lower than if you are instructing a solicitor to make the first suggestion of negotiations to your spouse.

A divorce in England and Wales takes at least six months. This is because there are two key waiting periods until a divorce can be finalised.

1. There is a 20-week ‘’cooling off’’ period from the date the divorce petition is applied for. Only when that 20-week period has elapsed can a spouse confirm to the court that you they wish to proceed with the divorce and request that the Conditional Order is granted. The reason for this is to give the married couple plenty of time to reflect and decide whether they want to proceed with the divorce.
2. Once the Conditional Order has been granted there is a six-week and one-day waiting period until a spouse can apply to the court for the Final Divorce Order.

With these waiting periods, the process takes a minimum of 26 weeks. However, there a number of common issues that can delay the divorce process, including: –

• If there is delay in the completely the court courts or you are having difficulties with serving the other spouse with the divorce application

• It is dependent on how quickly you are able to reach a financial agreement within your divorce. Negotiating a financial agreement can take between 6-12 months.

• Most couples will be advised not to make the application for the Final Order until a Financial Order is in place as it would bring to an end to inheritance rights which could be problematic if either spouse were to pass away before a financial agreement is reached. Divorce can also affect pension right.