Will court fee increase in family courts negatively impact access to justice?

Posted on 7th February 20247th February 2024 by McAlister Family Law

Will court fee increase in family courts negatively impact access to justice?

When a relationship ends, those that are married or in a civil partnership have no option but to issue a divorce application if they want to legally formalise their separation. Along with the divorce application, separating couples may also need to pay for a financial order application and a parental order application. Here, Fiona Wood looks at the recent announcement that there will be an increase to all court fees in 2024, and raises the concern that low income households may find themselves unable to make necessary family applications.

If a couple do decide to divorce, as well as issuing a divorce applicaition, they also need to obtain a financial settlement which needs to be approved by a judge if it is to be binding and enforceable. Even if the separation is amicable, a court fee is payable when a divorce application is made and a court fee is payable when a financial agreement is submitted to court for a judge’s approval.

A court fee is also payable by separated parents if they are unable to agree arrangements for their children and need to make an application to court (known as a Parental Order application) to ask a judge to assist them with this issue.

If there are ongoing proceedings regarding finances or children, there can be additional smaller court fees that have to be paid within the court process.

You may be exempt from these fees if you have limited or no income and little or no savings. However, many of those making family court applications have to pay these fees.

The court fees were last increased in September 2021. It has recently been announced that there will be an increase of 10% in all court fees in 2024, including those in family cases. The date for the fee increase has not yet been announced. The main court fees in family proceedings are as follows:

Divorce application – current fee £593 – new fee £652
Financial Order application (if finances not agreed) – current fee £275 – new fee £303
Financial Order application (if agreed) – current fee £53 – new fee £58
Parental order application – current fee £232 – new fee £255

The rationale for the increase is that the court fees are needed to help fund the court system. We are told that in 2022/2023 cost £2.3 billion to fund the court system and £727 million of this was funded from court fees. As the cost of running the court system increases the fees are increased to assist with this cost.

Whilst it is understandable that money needs to be raised to fund that court system, there is a concern that increasing the court fees will prevent many on low incomes from making necessary family court applications.

Legal fees for those who have separated and who need to make an application asking court regarding finances or arrangements for their children, are a struggle for many who have limited income or savings. Legal Aid is only available in very limited circumstances to deal with the legal issues that can arise when a relationship ends. To qualify for Legal Aid not only must you have very limited income and capital, but there must also have been recent domestic violence.

For those of limited means who do not qualify for Legal Aid, many have no option but to represent themselves within the court process. The number of case where both spouses/cohabitees represent themselves within family court proceedings has increased by 25% between 2013 and 2022, which shows how many are struggling with funding the court process. Increasing the court fees will only make this more difficult for them and could leave some unable to afford access to the family court.

If you or someone you know is affected by the issues raised in this blog post, we can provide you with expert legal advice. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk

I’m getting a divorce – Will I get support from my employer?

Posted on 14th September 2023 by McAlister Family Law

I’m getting a divorce – Will I get support from my employer?

Going through a divorce is undoubtedly one of the most difficult things a person can experience. Going through a divorce whilst also working however can seem an impossible task. Here, Weronika Husejko looks at the pressure on divorcing couples and explores how employers are providing support to their divorcing employees.

Most people suffer from an extreme amount of stress when separating from their spouse, the breakdown of the marriage being a significant change to their life. In addition to coping with the emotional side of the break-up, spouses must also deal with the practical side, to formalise the separation, which can be overwhelming.

The majority of separating spouses have financial ties, such as jointly owned property, which will need to be divided. One of the toughest parts of a divorce is usually when the couple must make a decision as to how these assets should be divided, particularly in cases where there are not enough to meet both spouses’ needs.

Dealing with these types of financial matters upon separation is challenging and emotionally draining, particularly for those who end up in Court proceedings, due to their time consuming and costly nature. For example, those in Court proceedings are usually required to comply with several Court directions, including attending Court hearings, which is a stressful experience in itself.

A divorce is therefore very demanding and as a result, it is not uncommon for employees experiencing a marital breakdown to feel torn between their job and their divorce, this often having a detrimental effect on their mental health. Historically speaking this has been something which most employees have unfortunately been expected to endure.

The BBC have however recently reported that some companies are beginning to introduce and build policies which are intended to help their employees in navigating a divorce.

By way of example, some companies are offering benefits such as: –

Paid time off to attend things such as solicitors’ meetings or mediation.
Flexible working arrangements
Access to emotional and mental health support
Access to legal advice

There are also organisations in the UK which are trying to promote more family-friendly policies like those mentioned above to help those going through the breakdown of a relationship. For example, the Positive Parenting Alliance have called for a separation to be recognised as a ‘life event’ by employers in HR policies and have also suggested that employees going through a separation should be offered support by way of counselling if needed.

Tesco is one of the first large companies in the UK to provide their employees with this type of support, as recommended by the Positive Parenting Alliance.

In summary, whether you get any support from your employer during your divorce will be dependent upon their specific company policy, so you may wish to consider speaking to your HR department about the options available to you.

It does seem that there is a shift happening with more companies recognising the difficulties involved in a marital breakdown. In my view, this is a positive shift which also demonstrates an increasing awareness of the importance of mental health generally, which will hopefully result in more people receiving the support they need during what is a very difficult time.

Are pre-nuptial agreements only for the rich and famous?

Posted on 31st August 2023 by McAlister Family Law

Are pre-nuptial agreements only for the rich and famous?

As seen with the ongoing separation of Hollywood star Kevin Costner, pre-nuptial agreements are often considered something that is limited to the super-wealthy or the Hollywood Hills. McAlister Family Law Associate, Aaron Williams, aims to shed light on what prenuptial agreements entail and whether they hold legal weight in the United Kingdom.

Prenuptial agreements, often referred to as “prenups,” are legal documents that couples enter into before marriage or civil partnership to outline the division of assets and financial responsibilities in the event of separation or divorce. A prenuptial agreement is a legally binding contract that helps couples establish financial boundaries and protect their assets in the event of a relationship breakdown. Although these agreements are more commonly associated with high-net-worth individuals, they can benefit any couple looking to safeguard their financial interests.

The primary purpose of a prenup is to provide clarity and certainty regarding the division of assets, debts, and other financial matters. It allows couples to determine how their property, investments, inheritances, and business interests will be divided in the event of separation or divorce. Prenuptial agreements can also address issues such as spousal support and the allocation of debts, providing a comprehensive framework for resolving potential disputes. Prenuptial agreements are legally recognized in the United Kingdom, but their enforceability is subject to the discretion of the courts. While they are not automatically binding, they carry significant weight if certain conditions are met.

To ensure the enforceability of a prenuptial agreement, it must be entered into willingly, with both parties having received independent legal advice and provided full financial disclosure. The agreement should also be fair and reasonable at the time it is made, taking into consideration the future needs of both parties and any children involved. It is important to note that the courts retain the power to depart from the terms of a prenuptial agreement if they deem it unfair in the circumstances. Factors such as the length of the marriage, the welfare of any children, and significant changes in the parties’ financial situations may be considered when determining the enforceability of a prenup.

Prenuptial agreements offer couples a valuable tool for establishing financial arrangements and protecting their assets in case of a relationship breakdown. While not automatically binding in the U.K., a well-drafted and fair prenup, entered into with full disclosure and legal advice, can carry significant weight in court proceedings.

Noel Gallagher and Sara MacDonald to divorce after 22 years – Does the length of marriage matter?

Posted on 16th January 2023 by McAlister Family Law

Noel Gallagher and Sara MacDonald to divorce after 22 years – Does the length of marriage matter?

Noel Gallagher, Manchester born former Oasis member, and his wife, Sara MacDonald have announced that they are to divorce following a marriage of 22 years. Here Weronika Husejko looks at how the length of a marriage can impact divorce proceedings.

The former couple married in 2011, having begun their relationship in 2001. They have two children together, Donovan, aged 15 and Sonny aged 12, both of whom are still dependent.

It is a commonly queried whether the length of a marriage has any relevance within a divorce financial settlement. The short answer to this question would be yes.

When a Judge considers a financial settlement, they must consider section 25 of the Matrimonial Causes Act 1973. Section 25, amongst other things, specifies that a Judge must in particular have regard to the duration of the couples’ marriage.

What does this mean in practice?

Generally speaking, a marriage usually falls into one of three brackets, that being either a short term, medium term or long term marriage.

A short term marriage would usually be considered to be one of up to 5 years. It should be noted however that a couple cannot divorce until they have been married for a minimum of 1 year. It is more likely that the financial settlement in a short term marriage will take into consideration pre acquired assets. A “clean break” may be considered to be more appropriate in these circumstances. However, this may not always be the case, especially if there are dependent children involved, in which case the focus would be on ensuring that the children’s needs are met.

A medium term marriage would generally be viewed as around 10 years.

Noel and Sara’s marriage would most likely be considered to be a long marriage on the basis that they began living together around 2001, their marriage being a total of 22 years. This is because a period of cohabitation that moves seamlessly into marriage will also be taken into account by the Courts, when considering the length of the marriage.

A longer marriage of this nature can often be more complex when it comes to the financial settlement. The Courts may take a different approach when dividing matrimonial assets in this type of case, compared to that of a short or medium term marriage. By way of example, it is far less likely for the Court to consider Noel and Sara’s respective contributions to the marriage. As a result, it may be that there will be an equal division of assets, unless it is necessary to move away from a 50-50 split to meet the need of one of the spouses.

It may be that Noel and Sara have a pre nuptial agreement, in which case this may be taken into consideration by the Courts, and therefore may have an impact upon the overall financial settlement.

In any event, the Court’s primary interest in their case will be in ensuring that the needs of both Donovan and Sonny are met.

If you need advice on this topic, or any other matters concerning divorce issues, please get in touch with our private child team at McAlister Family Law.

We cannot agree on counselling for our child – What will the court decide?

Posted on 12th January 202312th January 2023 by McAlister Family Law

We cannot agree on counselling for our child – What will the court decide?

According to statistics, nearly one in 10 children and young people are affected by a mental health problem. The good news is that there is now more awareness of this issue and a number of resources available to children and young people who may be suffering. Here, Melissa Jones looks at what the court can decide if parents cannot agree on counselling for their child?

Understandably, separation and divorce can be a difficult and anxious time for children. They might feel confused and believe they need to “pick sides”. They might also believe that the separation of their parents is “their fault” and might be feeling guilty.

Where does this leave you?

Decisions on a child attending counselling would fall under the umbrella of medical decisions. If you both agree, then great, they would attend counselling. If only one parent agrees, this does not necessarily mean that the counselling should go ahead and with such important decisions is not advisable to act unilaterally. This issue should be agreed upon by all of those with parental responsibility for the child(ren).

What is Parental Responsibility?

Under section 3 (1) of the Children Act 1989 “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

What application do I need to make?

In the absence consent from all those who hold parental responsibility, a parent may wish to apply to the court for a Specific Issue Order, for the court’s permission to enable them to make decisions about the child in the absence of the other parent’s consent.

The application that would need to be made comes under Section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education and medical matters. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, prior to making an application, the court would encourage the parties to engage in Alternative Dispute Resolution, to see if matters can be resolved. It may be that if you have spoken to a medical professional or a GP who highly recommends that the child or children attend counselling then you may be better assisted in your discussions with the other parent or in any application to the court.

Most importantly it would be best to understand why the other parent objects to the child(ren) attending counselling. Perhaps they need more information first or would like to speak to the counsellor themselves either on their own or jointly with you.

What will the court decide?

If matters relating to a child’s medical care are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. Arguably attending Counselling for the child might be in the child’s best interest and a vital resource to help them deal with their mental health issues. Conversely, it might not be necessary for the child to attend counselling and it may be considered intrusive and invasive given their age, characteristics and understanding. It is of course a balancing act.

Can I not just take them to counselling anyway?

However, if one parent has taken matters in their own hands and begins the process of making medical decisions without the other parents’ consent, that would not be perceived well by the court. In fact, if you choose to ignore the other parent’s views or objections, then they in turn could make an application to the family court to prevent you from making the child(ren) available for counselling. This also comes under Section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the child(ren) from attending counselling.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

Resource: https://www.counselling-directory.org.uk/young-people-stats.html#riskfactors

How will I get a fair divorce settlement if my ex hides their assets?

Posted on 5th January 20235th January 2023 by McAlister Family Law

How will I get a fair divorce settlement if my ex hides their assets?

A common worry that those divorcing have is that their ex will hide assets to prevent them receiving a fair divorce settlement. Thankfully most people who get divorced are honest about their financial circumstances, but what if they are not? Here, Partner Fiona Wood discusses what you can do to if you suspect your spouse is hiding assets throughout financial settlements.

Before a financial settlement is negotiated it is usual for both spouses to give full financial disclosure, confirming all their assets, company interests, pensions, incomes and liabilities. Documentation needs to be provided to support what they state their financial circumstances are, including bank statements for all accounts for at least the last 12 months. If assets have not been disclosed it is often possible to prove this from the documents that have been provided, such as regular transfers from one bank account to another account that has not been disclosed.

Sometimes people give assets to friends or family, shortly before they divorce, in an attempt to exclude them from the divorce settlement. If an asset has been transferred to another person at an undervalue within a period of three years before the divorce, the onus is on the person who did this to prove that it was a legitimate transfer that was not done to reduce their ex’s financial claims. If they cannot prove this, a judge can overturn the transfer, or they can add the amount that has been lost back into the matrimonial pot.

If you are genuinely concerned that your ex is about to give away an asset or transfer it out of the country, you can apply to court for a freezing order. You need good evidence that this is about to happen, to successfully obtain a freezing order, but it is an order that can be made in court proceedings.

Sometimes one spouse has complicated finances, often of an international nature, and their ex is concerned that they will not provide a true picture of their assets. In this scenario you can do some research yourself, looking at Companies House and at the Land Registry in the UK, both of which are accessible to the public, and their equivalents in some other countries. I had a case where one spouse failed to disclose a property that he purchased in Florida, but as there is a public land registry in Florida, we were able to show that they owned this property.

There are also professionals who specialise in assets tracing, on an international scale, who use all legal means available to track down assets owned in the UK and across the world. Even if they cannot locate specific assets, they may be able to provide enough information to enable you to convince a judge that there are hidden assets and that this should be taken into account within the divorce settlement.

If you are concerned about your ex hiding assets to reduce your financial claims on divorce, there are several ways in which you can investigate this and there are legal remedies available to you if it transpires that they have done this or they are about to do this.

Understandably Judges are very unimpressed by those who do try to hide assets. There are likely to be cost orders made against them. Also, as Judges have a broad discretion when it comes to deciding what a fair financial settlement is, so the judge may order that they receive a less generous settlement than they would have received if they had not tried to hide assets.

If you have already obtained a financial settlement, but it comes to light that your ex failed to disclose some of their assets whilst you were negotiating that settlement, the financial settlement can be reopened. There are significant consequences for those who try to hide assets. Don’t do it!

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

What will I stand to get out of the matrimonial assets?

Posted on 15th December 2022 by McAlister Family Law

What will I stand to get out of the matrimonial assets?

With the United Kingdom on the cusp of a cost-of-living crisis and inflation at record highs, divorcing couples will likely face concerns now more than ever as to how finances are to be treated upon divorce. The biggest question on the minds of divorcing couples is often, ‘what will I stand to get out of the matrimonial assets?’ Here, Aaron Williams looks at what the court considers when looking at how to divide assets on divorce and how they aim to meet the ‘needs’ of each party involved.

So, what does the Court consider when looking at how to divide assets on divorce?

As with many things, there is no one size fits all answer to separating matrimonial assets. The principal aim of the court is to ensure that there is ‘fairness’. Unfortunately, fairness has a broad horizon in the context of family law, and it is largely left to the discretion of the judge as to the outcome of the matter.

The court has a duty to consider all circumstances of a case, this is done so using the principal piece of legislation in divorce; that of the Matrimonial Causes Act 1973, in particular the factors listed in section 25(2)(a) – (h) which can be found here: – https://www.legislation.gov.uk/ukpga/1973/18/section/25

The phrase ‘needs trumps all’ is often cited when assets are limited assets in matrimonial finance cases. The starting point in any matrimonial finance case is to consider an equal division of what has been built up by the parties during the marriage; however, an equal division of assets is not always appropriate in every case to achieve fairness.

So where does that leave separating couples? Well matters largely come down to the circumstances of the parties, the standard of living and the resources available to meet needs. What was enough to meet the needs of one household may not necessarily be enough to meet two.

When settling the matrimonial assets, there is no discrimination between separating couples regarding their respective roles in the relationship. For example, where one party has typically taken the breadwinner role, whilst the other party is the home maker, their roles are to be regarded as equal irrespective of what they have contributed financially.

So, how does the court implement section 25 of the matrimonial causes act?

When assessing how to separate who should have what proportion of the assets of the marriage, the first consideration of the court is that of the needs of any children.

The court then look to meeting the needs of both parties, principally looking to ensure that each person’s housing needs, and income needs are met.

Looking at the matter holistically the court will principally consider the financial needs, obligations, and responsibilities which each of the parties to the marriage have or is likely to have in the foreseeable future (s.25(2)(b) MCA 1973). The court will look at the general resources of the parties and will broadly separate the needs of parties into capital needs and income needs. Capital needs, is often that of significant single capital outlays, purchasing a property, furnishings, replacement car etc. Income needs is that of the day-to-day costs that parties require on a monthly basis to live.

When trying to determine whether the parties have the means to meet these needs, the court will consider Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. Commonly referred to as the financial disclosure process, the parties are expected to provide ‘full and frank’ financial disclosure. This includes determining through the assistance of expert evidence or agreeing by consent, the value of any assets owned by the parties, including property, businesses, trust assets, chattels, and pensions. The court will also need to ascertain the parties’ respective incomes, whether they have to capacity to increase their income, receive a bonus etc. The process ultimately aims to ensure that no stone is left unturned.

With all this in consideration the court has a great deal of flexibility to in their approach to financial settlement, which in turn allows the court to ensure (as far as possible) that an outcome reached is fair to both parties, and that neither party nor dependent children are left in need. However, this level of flexibility also carries its own disadvantages as it can be difficult for parties to envisage how a judge may determine the respective parties’ needs.

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

We are separated – do I have to leave the home?

Posted on 23rd June 202224th January 2023 by McAlister Family Law

We are separated – do I have to leave the home?

If you have co-habited with a partner and are now going through a separation it can be a very difficult time. But not knowing whether you should stay or leave the home where you have lived together can make things even more stressful. Here, Jemma Wentworth asks a series of questions to help you make your decision.

It is important to know the facts and how to apply them to your particular circumstances. Please use the questions below to help you make the decision that is right for you.

Has there been domestic violence?

If there have been instances of domestic violence it is important that you seek legal advice in regard to the safety of yourself and your family where relevant. It may be possible for you to apply for a non-molestation order or occupation order to ensure both your protection and that you remain living in the property to the exclusion of your ex-partner. If the property has been your home, there is every possibility that you should remain living there and not vacate, especially if you have children. Every case is specific to the individual and we shall offer the advice that is relevant to your circumstances.

Are you and your partner the names owners of the property?

If both you and your partner are the named owners of the property, you are a legal owner and have the right to occupy. Again, your specific circumstances need to be considered, however, it could be that you remain in the property and your ex-partner will need to vacate. If so, how will that work? If the property is subject to a joint mortgage, do you have the capacity to take on the mortgage on your own? Do you have the ability to meet the monthly mortgage payments? What payment should be made to your ex-partner? It is strongly encouraged that you seek advice from a financial advisor or mortgage broker to look at all of your options.

Is your ex-partner the only named owner of the property?

If your ex-partner is the only names owner of the property, it is important to look at your options. If you are not an owner and you are not married or in a civil partnership, you do not have an automatic right to remain in the home. However, you may be able to apply for a court order that allows you to stay in the home for your child/ren’s benefit. If you feel that you have a right to remain, it is necessary to look at how the law can help you. The Trusts of Land and Appointment of Trustees Act 1996 may be of assistance in circumstances where you have a beneficial interest in the property in some way. For example, have you paid toward renovations? Have your contributed towards the mortgage? Was the property always intended to be your hoe as much as your ex-partner and do you have evidence to prove this? If so, it is possible to establish a beneficial interest and therefore your right to remain could be argued. There are many varied and fa-ranging ways for this to be determined and you should seek legal advice for your specific circumstances.

On the other hand, if neither you nor your ex-partner own the property, it may be that your property belongs to a family member or you are renting the property, it is likely that neither of you have the legal right to remain on a long-term basis. If you are renting a property, you may wish to remain living there without your ex-partner. This is something you should address with the landlord and it will be subject to contractual obligations. However, it may be that you will both need to vacate the property and start fresh independently of each other.

New no-fault divorce proves to be very popular

Posted on 16th June 202224th January 2023 by McAlister Family Law

New no-fault divorce proves to be very popular

It has been over two months since the new no-fault divorce legislation came into force and it has proven to be very popular. Here, Fiona Wood discusses why she believes this may be and looks at the new reality of the divorce process.

In April this year new divorce legislation came into force which means that all divorces are now issued on a no-fault basis. Prior to then you could only have a no-fault divorce if you had been separated for at least two years. If you had not been separated for that long, the only way that a couple could divorce was for one of them to allege the others adultery or unreasonable behaviour and assign blame for the marriage ending. This often led to increased animosity between the couple, which could impact their ability to co-parent effectively or have constructive discussions regarding their finances.

Lawyers had lobbied for a no-fault-based divorce system for many years, as they could see the negative impact that the old system had on a lot of divorcing couples. It would appear that the public also welcome this change, as HM Courts &Tribunals Service have revealed that 12,978 divorce applications were made under the new system in April 2022. In April 2021 they received 8,729. The total number of divorce applications made in 2021 was 107,724.

A new feature of the no fault divorce legislation is that couples can now jointly apply for a divorce. Of those applications made in April 22, 2,771 (21%) were jointly applied for. Joint applications may well increase going forward, when more divorcing couples become aware that this is possible.

It is my view that the increased number of those issuing divorce applications in April 2022, is due to separated couples waiting until the new legislation came into force, so that they can have a no-fault divorce. Whilst some expressed concerns that a no-fault divorce system would make it easier for couples to divorce, my experience is that those who decide to divorce do not make this decision lightly.

Many couples spend time trying to make their marriage work. If they do decide to divorce, the majority are keen to make the process as conciliatory as possible. The increase in popularity of alternative forms of dispute resolution, such as mediation and arbitration, rather than court, to resolve issues regarding finances and arrangements for the children, when a couple divorce, shows that many who divorce are keen to avoid blame and to take a more constructive and pragmatic approach.

We are getting divorced – Do I have to sell the house?

Posted on 16th June 202224th January 2023 by McAlister Family Law

We are getting divorced – Do I have to sell the house?

After making the difficult and emotional decision to get divorced following separation, there are so many questions and worries that can arise. One common concern for separating couples is what happens to the family home – will you have to sell it? The honest answer is, not necessarily but it depends on a number of factors considered below. Here, Brigid O’Malley breaks down Matrimonial rights and how financial matters are dealt with upon a divorce.

Who owns the property?

If you own the property in your sole name, then you have the right to remain living there and you do not have to sell unless there is an agreement to do so or a Court order. Your spouse may register Matrimonial Home Rights.

If you own the property jointly with your spouse, you both have the right to remain living there unless there is a Court Order setting out who can and cannot occupy the property. An Occupation Order is often made when one spouse requires protecting from the other spouse and the rights of occupying the property need to be determined to ensure the safety of a person and any children of the family. It should be noted that if either you or your spouse leave the property temporarily for any reason, you or they can re-enter the family home freely when the property is jointly owned, unless there is a Court Order to prevent this.

If your spouse is the sole owner of the property, then you still have a right to live in the property as their spouse, but you should consider registering Matrimonial Home Rights.

What are Matrimonial Home Rights?

Matrimonial Home Rights are registered with the Land Registry to preserve your (or your spouse’s) right to:

Live in the property;
Prevent your spouse from selling, transferring, or disposing of the property without you first being notified; and
Request a Court Order to allow you to move back into the property if you have moved out.

It is straight forward to register Matrimonial Home Rights and there is no fee with the Land Registry to do so. It is a very effective way of preserving your rights in respect of the property. However, this is only a temporary solution as Home Rights end when divorce proceedings are finalised, so it is essential to resolve the financial matters generally before finalising the divorce.

How are financial matters dealt with upon divorce?

It is important to understand what the court will take into consideration when determining what a fair financial settlement should be and indeed whether any properties should be sold. The factors the Court look at are set out in section 25 of the Matrimonial Causes Act 1973.

The first consideration is the welfare of any children of the family and the remaining factors will be considered by the Court in order to determine what is a fair distribution of the marital assets in order to meet the needs of each of the parties. The starting point is an equal (50/50) division of the assets.

Each party has a duty to provide full and frank disclosure of their assets, income, and liabilities in financial remedy proceedings. This means each party has a legal obligation to be honest and disclose everything they own. This is an ongoing duty throughout the proceedings.

Firstly, we need to establish what the marital assets are (which will likely include the family home) and then consider how those assets should be divided.

So, do I have to sell the house?

The honest answer is… it depends.

Once we have determined what the matrimonial assets are (following full and frank disclosure), the next consideration is how those assets should be divided to achieve a fair financial settlement.

There are times when the family home has to be sold in order to release the parties from their obligations under the mortgage and provide each party with funds to rehouse themselves and the children, whether by buying another property or renting.

Sadly, sometimes there is not enough in the asset pot to go around and avoid the family home being sold.

It is possible for the family home to be transferred to one spouse, often with monetary consideration i.e., you buy out your spouse’s share in the property.

There can also be a deferred sale of the property where one spouse is allowed to remain living in the property until a “triggering event”, usually those events (although they can be tailored to each individual case) are:

If applicable, when the youngest child reaches the age of 18 or finishes full time education;
When the party that remains living in the property begins cohabiting with a partner or remarries;
The death of either party; or
An order of the court.

Once a triggering event occurs, the house is usually sold, and the net equity is divided between the parties. The amount of equity received by each party is either agreed between the parties or determined by the Court. This option is often used by couples who wish to allow the children of the family remain living in the family home for their minority. It provides a period of certainty for the children but also provides both parties with some funds from the sale of the property in the future.

Do we have to go to court to decide what happens?

No, but sometimes a court application is inevitable.

You and your spouse can agree the arrangements privately between yourselves or can attend mediation to try and resolve the issues between you. Solicitors can also assist by negotiating with your spouse/their solicitors. If an agreement is reached then we would advise you to have that agreement incorporated into a Consent Order, preferably on a clean break basis to prevent future financial claims against the other.

If it is not possible to reach an agreement, then an application for financial remedy can be made through the Family Court. This provides the parties with a firm timetable and structure, hopefully resulting in a settlement but if not, the case will be timetabled to a Final Hearing for a Judge to determine what a fair financial settlement should be.

A committee led by HHJ Stuart Farquhar published a report stating there were 30,993 cases considered by the Financial Remedies Court in 2020 and approximately 50% of cases settled before the Final Hearing. Therefore, even if you have to issue financial remedy proceedings there is a high chance your case will settle without the need for a contested final hearing.

So, what next?

If you need advice about the family home following separation or about divorce and financial matters generally, please get in touch with our expert team of Family Solicitors who will happily assist you.