FAQs

A pre-nuptial agreement is a contract between a couple that regulates what will happen to a couple’s assets if they divorce. It is negotiated and signed by a couple before they get married. A couple can only have a pre-nuptial agreement if they both agree to sign one.

Couples usually decide to have a pre-nuptial agreement for one or both of the following reasons:

1. To provide certainty if their marriage ends, which will avoid the potential for acrimonious and expensive court proceedings if they divorce.

1. To ring fence assets that either or both of the couple own before they marry, essentially taking them out of the matrimonial pot that is divided if they divorce and protecting those assets.

Legal Certainty

Since the Supreme Court case of Radmacher v Granatino in 2010, the divorce courts in England and Wales consider a pre-nuptial agreement one of the factors that must be taken into account when deciding what a fair financial settlement is when a couple divorce, provided that it has been properly entered into and the couple’s intentions are clear.

A judge is likely to follow the terms of a pre-nuptial agreement or at least order a lesser financial settlement for one spouse, as a result of the pre-nuptial agreement, provided that both spouse’s needs are met by the terms of the agreement.

For a pre-nuptial agreement to have legal weight and therefore be considered a factor if a couple divorce, the following should be followed regarding its preparation:

• The agreement should be prepared and signed at least three months before the couple’s wedding date.
• Both of the couple should instruct their own solicitor, so that they each receive independent legal advice upon the agreement and are fully aware of the implications of the agreement if they divorce.
• Both should provide details of their assets, income and liabilities to the other. This information is usually attached to the agreement in schedule form.

Protection of Assets

Pre-nuptial agreements are not just for the very wealthy. Whilst a certain level of assets is needed to make them relevant on divorce, as the terms of the agreement do need to meet the needs of both spouses on divorce, these agreements are often used to ring fence specific assets. For example inheritances or businesses can be ringfenced, so that they do not form part of the matrimonial pot to be distributed between the couple if they divorce. Need itself is open to interpretation. How much someone needs to buy a house on divorce may be less generously interpreted as a result of a pre-nuptial agreement.

Pre-nuptial agreements are not just there to protect the wealthier spouse. For those that have been married before, pre-nuptial agreements are often used to protect the assets that both the couple bring into the marriage, so that they are each able to keep these if they divorce. This is particularly important to those who have children from previous relationships and want to protect their assets for their children’s benefit.

Financial disclosure

When a married couple are divorcing and want to resolve their financial matters, the starting point is that there has to be an exchange of financial information. This process is referred to as disclosure. There is a duty for each spouse to provide full and frank disclosure to each other.

The Form E is a court document which spouses are required to complete to show to each other that they have provided full disclosure. The Form E is a comprehensive document which covers your financial position including assets, pensions, income and debts.

When completing the Form E, there is also a requirement to provide documentary evidence in support. The Form E helpfully sets out a list of the documents which are required. This includes but is not limited to the following documents: –

• Property valuation
• Mortgage redemption statement
• Bank statements covering the last 12 months
• Statements for any investments and savings
• Life insurance documentation
• Company accounts if you have an interest in a business
• Pension valuations
• P60 for the last financial year and payslips for the last three months
• Latest tax assessment

If the Form E is completed accurately, it will help resolve your finances quickly and it will also help with reducing legal costs. Once financial disclosure has been provided, it will help family solicitors to advise what is in the ‘matrimonial pot’ so they can advise on an appropriate financial settlement.

Is it compulsory to complete the Form E?

The court will direct you to complete a Form E if financial remedy proceedings have been issued. However, the Form E is commonly used if you and your spouse were to exchange disclosure voluntarily and want to negotiate a settlement outside of the court process.

If you and your spouse have completed Form E on a voluntary basis but are unable to reach an agreement and financial remedy proceedings are later issued, then it will give you and your spouse a head start as the groundwork will have already been done and it will simply be a case of updating the figures.

Failure to provide financial disclosure 

You and your spouse are under a duty to provide full and frank disclosure. There can be serious consequences if a court has directed you to complete a Form E and you fail to do so. If you fail to comply with a court order you may be in contempt of court which is a criminal offence. If you are found to have been deliberately untruthful or provide incorrect information, then this may be treated as fraud. The court also has the power to make an order for costs against you if you fail to comply with a court order. Adverse inferences may also be drawn from any non-disclosure which could result in an undesirable outcome for you.

There is no obligation to provide financial disclosure if financial remedy proceedings have not been issued. However, if you are not willing to provide financial disclosure voluntarily then this may lead your spouse to issue financial remedy proceedings and the court will order you to provide financial disclosure.

It is therefore extremely important to provide full and frank financial disclosure. For advice on financial disclosure on divorce, please contact a member of our Team.

If a couple divorce, all the assets that both spouses have an interest in are considered relevant assets. This includes any interests that either spouse has in a business, including shares in a private limited company or a partnership interest. A value will need to be ascribed to these business interests in a divorce.

Businesses come in all shapes and sizes. Some are small businesses that have very limited assets and are just an individual working on a self-employed basis, for example an IT consultant who works through a limited company. It is unlikely that this type of business will have a value, as the business is just a vehicle through which that person earns an income. If you take that person away the business has no value, save for any money held in its bank accounts.

Other types of businesses are likely to have a value and will need to be valued within the divorce, unless a value can be agreed by the couple. If a business valuation is needed, it is usual for the couple to jointly instruct an accountant, who is an expert in business valuations, to prepare a valuation report. Valuing a business is an art, not a science, so different accountants will attribute different values to the same business. Some accountants are more conservative than others with their valuations. It is therefore important that you take advice upon the right accountant to instruct before going down the valuation route.

Most businesses are valued in one of two ways – a net asset basis or an earnings basis.

Net Asset Basis

Businesses that have significant assets, such as properties, are often valued on a net asset basis. This is the value of all the assets owned by the business less all of the debts. Where the business owns assets such as properties, it may be necessary to obtain up to date valuations of these before the accountant prepares their report.

Earnings Basis

This method is usually appropriate where a business is trading and generating a profit from that trade. Typically, this method requires the assessment of the likely level of Future Maintainable Earnings and the application of an appropriate multiplier. To do this recent trading performance is considered. Often for the last three full trading years.

Usually the jointly instructed accountant will undertake both calculations and use the highest figure. Therefore, a trading company could be valued on a net assets basis if its assets have a very high value or alternatively if the recent trading performance has been poor and therefore the Future Maintainable Earnings are low.

Once the accountant has valued the business, they must also consider the tax that would be payable by the business owner if their interest in the business were sold. This is because the divorce court uses the net value of the spouse’s business interests, when considering what a fair financial settlement is.

If the spouse does not own the whole business, the accountant will consider whether the spouse’s interest should be valued on a pro-rata basis or whether a further discount should be applied. Often a discount is applied if the spouse has a minority interest in the business.

The accountant will also need to consider liquidity. This is the amount of money that can be taken out of the business by the spouse, without impacting its ability to function as a business. The tax consequences of taking this money out of the business must also be considered. If a business has limited or no liquidity, this is a factor that will have to be taken into account when considering what a fair divorce settlement is.

If it is considered appropriate for the business owning spouse to pay money to their spouse as part of the divorce settlement, the payment of this money may take place over a few years if insufficient money can be raised through the business or from elsewhere to pay it upfront in one payment.

A judge does have the power to order the transfer of shares from one spouse to another within divorce proceedings. However, it would be fairly unusual for this to happen if only one spouse has ever worked in the business. A judge can also order a sale of shares in a business, but this would be very rare and could not happen if there was a third party with an interest in the business.

Divorces can be amicable, but they can also come with a huge breakdown in trust. Spouses can be worried that their former partner is hiding something to defeat their financial claims and seek advice on what they can do to ensure a fair outcome. Concerns can include deliberate devaluation of businesses, assets being transferred to third parties or offshore, and simple non-disclosure of bank accounts, luxury goods, or investments. With these issues in play, how can you be sure of a fair settlement?

Firstly, there is an obligation for people to provide full and frank information about their assets and income to obtain a financial order. If you are in court proceedings, you have to sign statements of truth to confirm that you have set out your financial position accurately to the best of your knowledge. Signing a statement of truth whilst knowingly being dishonest can lead to prosecution for contempt of court. This is not always enough to deter people from behaving deceitfully, but it is a start.

There are plenty of ways for experienced solicitors to find hidden assets. These include forensic examinations of bank statements and company accounts, requesting data from His Majesty’s Land Registry on all property owned in your former partner’s name (or associated names), and seeking disclosure from third parties. Depending on the assets in your case, your legal team may work in conjunction with forensic accountants or private investigators.

The court also has one more tool at its disposal – the ability to draw adverse inferences. If there is a lack of disclosure or co-operation from your spouse, the court may infer that they have something to hide. They may award you more of the known assets on the presumption that your former partner has more.

If you suspect that your spouse is in the process of hiding assets, it may be possible to get a court order to prevent this – a freezing order. If you do not know about the transaction in time, you may be able to persuade the court that the value of the asset transferred should be added to your former partner’s side of the balance sheet. This means they are effectively credited with the item they have tried to get rid of/hide. Transactions within three years of divorce proceedings commencing are presumed to be an attempt to defeat a financial remedy claim so may have to be justified if questioned.

Finally, if your proceedings conclude and assets you did not know about surface, you may have a claim for your financial order to be set aside. This is not guaranteed, but it should provide some reassurance that there is recourse. Further, there is a possibility that someone hiding assets could be prosecuted for fraud, so the penalties are substantial.

Suspecting that your former partner is hiding assets and trying to cheat you out of a fair settlement can be extremely distressing. If you think this could be happening to you, or you simply have concerns that something is missing, speak to one of our experts today.

A lot of the time bonuses are not guaranteed and are discretionary. The court can however determine when looking at patterns of previous bonuses and the current financial position of the company, that a person they are likely to continue to earn bonuses (or not as the case may be) If the court assesses that a bonus will be continued to be earned and paid, they can be taken into account by the court on divorce.

Whether there is any entitlement by the other party to share in a bonus will on a number of factors to include when the bonus was earned (ie was it during the marriage or after separation) and the court will assess the answer on the basis of ‘need’.

Taking into account the first point (and focusing on when the bonus was earned), bonuses that are acquired whilst the couple are together are usually considered to be “matrimonial assets”. This is the case if the bonus is received after separation but relates to a financial period whilst the couple were together. In these circumstances the bonus received will count as part of the “matrimonial pot” alongside other assets that are to be divided.

If the bonus received relates to a period of work after the couple have separated, it is not the case that bonus is automatically excluded (“ringfenced”) from the division of the matrimonial assets. In this instance the court would look at whether the other spouse has financial “needs” that are required to be met. “Need” can include monies required to purchase a property or to meet outgoings/living costs and the court will look at whether or not the bonus is required to be taken into account for there to be a fair settlement.

In cases with larger assets, and in circumstances where bonuses acquired post separation (and are not required to meet ‘need’), there may be an argument that they should be “ringfenced” on the basis that the bonus relates to a period outside of marriage and relates to that individual’s sole contributions.

What about bonuses earned in the future? Once the appropriate division of assets has taken place, if there is to be no ongoing spousal maintenance (ie financial support to the other party) there will be a “clean break” implemented. This means that neither party could make any further claim against the other for income, pension, lump sum or property. So, this includes future bonuses and where there is a clean break, there can be no further claim against those and they will remain with the spouse that has earned them.

Whilst the law says that there should be a financial clean break between a couple if this is possible, in some cases one spouse cannot manage financially without spousal maintenance from the other. The court will assess this by looking at two questions. Firstly, whether there is a shortfall between their income and their reasonable outgoings, and secondly whether the financially stronger spouse can actually “afford” to make up any shortfall and pay it to the other party. If there are regular large bonuses, a judge will not ignore those. The court can order a percentage of a net bonus to be paid to the other spouse in addition to other payments when assessing a fair outcome and when looking at the “need” and “affordability” test.

If however, reasonable needs can be met without recourse to bonuses, then recent case law says that there is no automatic sharing of future income (to include bonuses). This means that when needs can reasonably be met without having to look to income that will be received in the future there is no “automatic” right on the other party to share in that bonus.

It can therefore be seen that each case will be determined on its own facts, taking into account the timing of the bonus payment and most significantly needs.

In short, the answer to this is “no”. There is no automatic sharing of a person’s income on divorce.

There is a possibility that spousal maintenance could be paid to the other party in some circumstances, however, this would be determined by the court on the basis of;

1.  Need (ie does the other person actually “need” some additional income to meet their outgoings)?
2. Affordability. Can the person being asked to pay spousal maintenance actually afford it after meeting their own outgoings?

In the absence of an agreement on this issue, the court would have to assess what outgoings are reasonable, whether there is a shortfall between a spouse’s income against those outgoings and whether there is any surplus income from the other person left to pay over to them.

The court has an obligation to put into place a “clean break” wherever appropriate (ie that all financial ties with the other person be severed at the earliest point in time) so even if spousal maintenance was appropriate the court would look to do this for the shortest time required (known as a “term order”).

Case law over recent years has focussed on the principle that there is no automatic sharing of income after divorce. This is because income resources after divorce are not considered to be a “matrimonial asset”. With matrimonial assets, the starting point would be that they should be shared equally, unless evidence could be provided to the contrary as to why that should not to be the case. With income, the court look to other options such as whether income needs can be met from capital resources for example.

If there was a situation where the other spouse does not have an income at all or is unemployed, rather than simply getting half of the other spouse’s income, the court will look at needs, affordability and the time the other party might need to be able to “get back on their feet” (and spousal maintenance should only be paid for that amount of time).

Each case has to be determined on its own merits and facts and the court has to determine what is fair having taken into account all of the circumstances. There is no automatic entitlement and there is a steer away from this in recent case law.

I am worried my spouse will give away assets what can I do?

It can be a real worry on divorce if the majority, or all, of the family assets are controlled by your spouse. You might worry about them giving assets away, selling them at an undervalue or moving them out of the jurisdiction.

Section 37 Matrimonial Causes act 1973 is a powerful weapon if any of these scenarios should occur.

Setting aside transactions and freezing injunctions

Section 37 gives the court the power to set aside a transaction (un-do it) if it is satisfied that that transaction was made with the intention of defeating the other party’s financial claim on divorce. If the disposition has taken place within the last 3 years and the consequence would be to defeat the financial claim, then the intention is presumed and it is for the other party to show why that was not the case.

The court also has the power under this section to make “freezing orders” which prevent one party from dealing with certain assets until the financial issues on divorce have been resolved. It is also possible in certain circumstances to have a more wide-ranging freezing order.

The general principle is that the court will only protect assets up to the maximum value of your financial claim- and so not 100% of the total assets. This can sometimes be a difficult calculation if you do not know the total extent of the assets and one which requires the input of a family law solicitor.

The need for speed

The key with these types of applications is to act quickly. Sometimes once monies have moved out of the jurisdiction, for example, it may well be difficult to get it back.

It is always better in these circumstances to be proactive rather than reactive.

Often, if there is cause for concern, the first step will be to write to the other party and/ or their solicitors to ask for further information and an undertaking (formal promise) not to do certain things and/ or for monies to be held to the joint order of the parties. If they will not do this this may strengthen any application under section 37 (above) and make the court more inclined to order that they pay the costs of that application.

Having said that, in some circumstances this may do more damage than good as you may “tip-off” the other party about a potential application and they make take the exact action you were hoping to prevent. Careful consideration therefore needs to be given.

What if they just won’t stop spending? 

Section 37, whilst useful, is not always helpful where rather than transferring or disposing of large sums one party is just over-spending on a day-to-day basis.

It is possible, however, to argue that as part of any financial settlement these monies should be “added back” as notional cash which that person still has access to. The general test is whether the court considers that the spending is “reckless or wanton”.

If you are worried about any of the above issues, then you should take advice as soon as possible from one of our specialist divorce and finance solicitors.

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.