Judicial Separation

In some cases, the parties may feel that they do not want to seek a divorce in the first instance. Sometimes this is because the parties are not yet ready to formalise the divorce or dissolution or they have not yet been married for a year. In other cases, the parties prefer not to divorce for religious reasons. In such cases, a Judicial Separation may be of assistance to you.

If you do not wish to terminate your marriage but you still want to formalise your separation from your spouse legally, we can assist you with the judicial separation procedure.

It is a very similar process to that of divorce or civil partnership dissolution save that you will still remain legally married to your spouse. This means that you will still retain certain inheritance and pension rights which you would otherwise lose after the divorce or dissolution.

It is also possible to make an application for a financial remedy during or after the judicial separation. Please see here (link to finances) for more information about financial remedies.

Since the procedure for the Judicial Separation is virtually the same as that for divorce or dissolution, our fees will be the same.

Divorce

You only apply for divorce when you have been married for more than one year. In England & Wales, there is only one ground for divorce and that is that the marriage has broken down irretrievably. The irretrievable breakdown of the marriage can be evidenced by one of the following five facts;

  • 2 years separation – the parties have been separated for a period of two years or more and the other party consents to the divorce
  • 5 years separation – the parties have been separated for more than five years
  • Unreasonable behaviour
  • Adultery – usually only used where the other party is prepared to admit to the adultery
  • Desertion – the other party must have deserted you for more than two years, for no good reason and without your agreement (this is rarely used)

Initially, we will meet with you to discuss the circumstances of your case and we will identify which of the facts are available to you. We will explain to you the advantages and disadvantages of petitioning for divorce based upon those facts.

When a fact has been selected, we will take steps to draft your petition for divorce.

When the divorce petition is approved, we will usually send a copy to the other party for their comments. This is actively encouraged by Resolution (a specialist organisation of family lawyers) and helps to minimise confrontation and hostility during the divorce process.

Thereafter, your petition will be sent to the court to be issued. The court will then send the divorce papers to your spouse by post. Your spouse will then have 7 days to respond to the divorce petition by completing a form known as an Acknowledgement of Service and returning this to the Court. Your spouse will be required to confirm whether they intend to defend the divorce on this form.

When your spouse sends the form back to the Court, a copy will be forwarded to us. We can then use this to prepare your application for pronouncement of Decree Nisi which is the first stage of the divorce.

Upon receiving your application for pronouncement of Decree Nisi, if the court is satisfied that you have sufficiently proven that you are entitled to the divorce, a date for pronouncement will be set. If the divorce is uncontested and there is no dispute about the costs, you will not need to attend court on this day.

The court will send us a copy of the Decree Nisi after it has been pronounced. You must then wait for six weeks and one day before applying for Decree Absolute. This is the document which finally brings the marriage to an end.

However, if there are financial issues connected to the divorce which remain unresolved, we will not normally advise you to apply for Decree Absolute until these issues have been fully addressed. This is because you lose certain rights and entitlements after the Decree Absolute is granted. We usually try to deal with the financial issues between Decree Nisi and Decree Absolute and this can delay the final part of the divorce procedure. Please see here for detailed information about financial settlements and the types of financial remedies available.

Civil Partnership Dissolution

Dissolution is the process of legally bringing a civil partnership to and end.

Just like divorce, there is only one ground for dissolution of the civil partnership – the irretrievable breakdown of the civil partnership.

However, unlike divorce, this can only be evidenced by one of the following four facts:

  • 2 years separation – the parties have been separated for a period of two years or more and the other party consents to the dissolution
  • 5 years separation – the parties have been separated for more than five years
  • Unreasonable behaviour
  • Desertion – the other party must have deserted you for more than two years, for no good reason and without your agreement (this is rarely used)

The procedure for the dissolution is exactly the same as the procedure for divorce save that the Decree Nisi is known as the Conditional Order and the Decree Absolute is known as the Final Order.

Free information meeting

We are pleased to offer all potential new clients a free, no obligation information meeting.

The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.

We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.

Next Steps

For more information, an informal chat or to book an appointment – call our family law specialist on 020 7790 2000 or email amie@adamslaw.co.uk

Pre or Post Nuptial Agreements

Pre-nuptial Agreements

Though many people do not like to think about what might happen in the event that their marriage or civil partnership fails at some point in the future, it can make a lot of sense to make plans for just such an event right from the outset.

In some cases, one or both of the parties may have been married before or you may have acquired assets in your own right before you met your future spouse/civil partner. Alternatively, you may be expecting to receive an inheritance which you wish to protect or you may simply decide that you want to make plans for what will happen in the event that you do separate so that you can avoid having to make those decisions later when you may be feeling stressed and emotional.

A pre-nuptial agreement is not automatically legally binding. However if you are open and honest with each other about your financial positions and both parties receive legal advice before the agreement is signed, the court will give consideration to the pre-nuptial agreement and it will be strong evidence of your intention. The court will be reluctant to depart from what has been agreed unless there is evidence that one of the parties signed under influence or duress, the parties did not understand the full implications at the time that the agreement was signed, the needs of one of the parties is not met and/or it would be unfair to hold the parties to the agreement. For these reasons, it is important to seek legal advice to minimise the likelihood that any of these factors will apply and to ensure that the agreement is more likely to be binding in the event that the marriage does break down.

We will take information from you about what has been agreed, give you advice about the terms of the agreement and whether it is likely to be seen as fair and we can draft the pre-nuptial agreement for you.

Post-nuptial Agreements

Unlike a pre-nuptial agreement which is entered into before a marriage (or civil partnership), you may decide to enter into a post-nuptial agreement during the course of a marriage (or civil partnership) instead.

There could be a variety of reasons for this. For instance, you may not have had the time or inclination to consider an agreement at the commencement of the marriage but now feel it prudent to do so.

A post-nuptial agreement can deal with a variety of issues in the event of a breakdown of the marriage or civil partnership including where you will live, what will happen to property, who will pay for outgoings, what will happen to joint bank accounts and payment of maintenance.

The Court will give a lot of weight to a correctly executed post nuptial agreement as it will be strong evidence of the parties’ intention. However, there are exceptions. These include the lack of full and frank financial disclosure or independent legal advice. It is therefore important to ensure that you seek legal advice if you are considering entering into a post-nuptial agreement to give you the best chance of ensuring that the agreement can be relied upon when it really matters.

We will take information from you about what has been agreed, give you advice about the terms which have been agreed and whether it is likely to be seen as fair and we can draft the post-nuptial agreement for you.

Free information meeting

We are pleased to offer all potential new clients a free, no obligation information meeting.

The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.

We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.

Our fees

We are able to offer very competitive, cost effective and flexible packages to suit your individual needs dependent upon how much or how little you would like us to do for you.

Next Steps

For more information, an informal chat or to book an appointment – call our family law specialist on 020 7790 2000 or email amie@adamslaw.co.uk

Financial Remedies

It is very often the case that before or during the course of a marriage or a civil partnership, the parties will have acquired assets either in their sole name or jointly with their spouse or civil partner.

If the marriage or civil partnership later breaks down, the parties will need to consider what will happen to those assets and whether any other orders are required (e.g. in relation to maintenance or pensions). Adams can help you to resolve these issues.

In our experience, financial arrangements on divorce or dissolution usually work best when the parties have been able to make their own decisions about their finances rather than if they have had a decision imposed upon them by the court. For this reason, we will try to encourage you to think about alternative dispute resolution methods and assist you to come to an agreement with your spouse or civil partner in the first instance if possible.

There are a number of ways that we can assist you to reach an agreement with your spouse or civil partner about the division of your assets. Please see our mediation page for more information (link to mediation page)

If you are able to reach an agreement with your spouse about the financial aspects of the relationship breakdown, we can record the terms in a consent order which can then be sent to the court for approval. The court will usually approve the order without either party being present. Once the order has been approved, it is legally binding and enforceable. This has the benefit of giving the parties certainty that neither of them can go back on what has been agreed between them. We can offer a fixed fee to draw up the consent order for you – please contact us for more information.

Separation Agreements

Separation agreements, like the name suggests, are agreements entered into by both parties upon separation.

You may be thinking about separating from your spouse or civil partner. Alternatively you may have separated, perhaps very recently, and though you’d like to get your financial affairs in order, you may not be ready to take the step of petitioning for divorce just yet.

In such circumstances, you may find that a separation agreement is very useful. It can deal with a variety of issues on separation such as who will meet obligations and outgoings and for how long, what will happen to joint debts, what will happen to property, what maintenance is to be paid and it can even set out where it has been agreed that the children will live and how often they will see the other party.

A separation agreement is not legally binding. However, if it has been entered into with the benefit of independent legal advice and following full and frank financial disclosure by both parties’, it will be very strong evidence of the parties’ intentions and the court will be reluctant to depart from it except in exceptional circumstances.

It is important to ensure that you obtain legal advice to ensure that we give you the best chance of ensuring that the agreement can later be relied upon if necessary.

We will take information from you about what has been agreed, give you advice about the terms which have been agreed and whether it is likely to be seen as fair and we can draft the separation agreement for you.

We can offer competitive fees which can usually fixed when we know what is involved. Please contact us on 020 7790 2000 or amie@adamslaw.co.uk to find out more.

Financial Remedies

If attempts to resolve the financial aspects of the divorce or dissolution are unsuccessful, you may need to consider applying to the court for a financial remedy. We will usually do so when we reach the Decree Nisi stage of the divorce (because it is not possible for the court to approve or make an order until this stage of the proceedings.

Types of order that the court can make

There are a number of different types of remedy available to the court. These include the following types of order;

  • Property adjustment – an order transferring or settling property
  • Periodical payments – an order for payment of money on a regular basis
  • Lump sum – an order for a lump sum payment (sometimes by instalments)
  • Pension sharing or attachment – various ways of sharing pension rights

Making the application and the court process

We will prepare your application for you and send it to the court for issue.

When your application has been issued by the court, both parties will be required to exchange information about their financial affairs. This is known as financial disclosure and the court will expect the parties to be full & frank about their finances – there are sanctions for failure to do so. The application will also be listed for a First Appointment (the first hearing).

When disclosure has been forthcoming, and both parties are satisfied that the information to hand is complete and accurate, we can usually start to negotiate a potential financial settlement.

Sometimes it is possible to come to an agreement before the First Appointment. In general however, most financial remedy applications do reach at least this stage. It is quite possible that an agreement can be reached at the first hearing, provided that the parties are satisfied that there has been full and accurate disclosure.

If it is not possible to reach an agreement, or there is further disclosure outstanding, the Court will give directions as to how the matter should proceed. These directions usually consist of case management provisions i.e. the disclosure of any outstanding financial information, valuation of properties which cannot be agreed or gathering additional evidence for instance. The court will also list the matter for the next hearing which is known as the Financial Dispute Resolution hearing (or FDR).

Many cases will settle before or during the FDR hearing. At this hearing, both parties’ representatives will make submissions to the Judge setting out what their client is seeking. Having heard those submissions, the Judge will then give an indication of the likely order that the parties could expect to receive should the matter proceed to a final hearing. The parties then have the option of negotiating an agreement based upon the indications given the Judge, or setting the matter down for a final hearing if an agreement still cannot be reached. However, the indication given by the Judge is often very persuasive and can help to narrow the issues in dispute. It is for this reason that many cases settle at this stage or shortly afterwards.

The factors which the Court will take into account

When determining what constitutes a “fair” settlement in your case, we will take various matters into account as set out in s.25 of the Matrimonial Causes Act 1973.

The factors which will be taken into account include the following;

  • The income, earning capacity, property or other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including any potential increase in earning capacity.
  • The financial needs, obligations and responsibilities of both parties.
  • The standard of living enjoyed by both parties within the marriage.
  • The age of each party and the duration of the marriage.
  • Any physical or mental disability of either party.
  • Any contributions which either party has made to the marriage or is likely to make.
  • The conduct of each party (if it is considered that to disregard the behaviour would be unfair).
  • The value to each party of any benefit which, upon dissolution of the marriage, that party will lose the chance of acquiring.

Since the court has a very wide discretion to apply the factors set out above and due to the fact that every case is different on its facts, it is useful to have clear and comprehensive legal advice throughout the process.

Financial Injunctions

Since the process of determining a fair financial settlement upon divorce or dissolution can take some time resolve, it is important to ensure that all of the assets of the marriage are maintained as far as is possible.

Unfortunately, it is sometimes the case that one of the parties will attempt to try to dispose of assets to prevent the other party from establishing a claim or an interest in them.

If this should occur, it is very important that urgent consideration is given to obtaining a financial injunction. This can prevent a disposition before it occurs or can sometimes be obtained to freeze proceeds received from a disposal which has already taken place. It may also be possible to apply to ask the court to set aside the disposal.

We will need to take detailed instructions from you about your situation to establish whether it is possible and necessary to apply for a financial injunction in your case. In exceptional cases, these applications may be made without informing the other party that you are doing so.

If you suspect that there is any possibility that a disposition has been or is about to be made, it is important that you contact us as a matter of urgency so that we may meet with you to discuss the options and the merits of your case.

Free information meeting

We are pleased to offer all potential new clients a free, no obligation information meeting.

The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.

We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.

Next Steps

We are able to offer very competitive, cost effective and flexible packages to suit your individual needs dependent upon how much or how little you would like us to do for you. Please contact us on 020 7790 2000 or email amie@adamslaw.co.uk for more information.

Domestic Violence

If you have been subjected to domestic violence, you may be entitled to apply for a Non-Molestation Order. You may also be entitled to apply for an Occupation Order to exclude the perpetrator from the home in which you reside.

Non-Molestation Order

A Non-Molestation Order is designed to protect you from violent and abusive behaviour. In general terms, if granted, it can forbid the other party from threatening or using any unlawful violence towards you, communicating with you by any means, coming near the property in which you are residing and/or damaging your home or belongings and instructing anyone else to do so.

You can only make an application for a Non-Molestation Order where the other party is an “associated person”. We can tell you whether you can apply at your initial meeting with us. However, generally speaking, a former partner (dependent upon the length and intimacy of the relationship) or family member will usually be an associated person.

You should bear in mind that the definition of domestic violence goes further than physical violence. Emotional harm, threatening behaviour and abuse can also constitute domestic violence and we will discuss this with you at the first meeting.

If you are eligible to apply for a Non-Molestation Order, we will take detailed instructions from you about the history of the matter and the events that have occurred. We will then take steps to prepare your application and apply to the court
for an emergency order to protect you (and your children, if applicable) from the violent and/or abusive behaviour.

In the first instance, we will usually make the application without informing that you are making the application to the court. If the court grants the order, we will then instruct a process server to collect the order from the court and serve it upon the other party in accordance with your instructions.

In most cases, the court may grant the Non-Molestation Order at the first hearing (at which the other party will not be present) but a further hearing will usually be listed on another day at which the other party will have the right to attend and oppose the application if they wish to do so. However, some courts do not automatically list a further hearing and will instead only list a further hearing to consider the order if the other party requests it.

Occupation Order

An Occupation Order can regulate how a person exercises their right to occupy a property. The court is able to make an order restricting a person’s right to occupy a property in which they have an interest. This might be by restricting the person to occupation of certain defined parts of the home or by preventing them from occupying the home altogether.

In most cases, the order will usually apply to the family home in which the parties had been residing together.

You may be sharing your property with the other party who has been perpetrating the violence or abuse. You may want to stay in your home but feel that you have no option but to leave to escape the abusive behaviour. However, you may be entitled to apply for an Occupation Order which, if granted, can compel the other party to leave the property and prevent them from returning.

An Occupation Order is a very draconian order since it can effectively restrict the other party’s legal right to occupy their own property. As a result, the court will be reluctant to grant the order unless there is a real risk of violence or harm. Furthermore, the Court will very rarely grant an Occupation Order without first hearing from the other party.

When determining whether to grant the application, the court will refer to the “balance of harm” test. To satisfy this test, you must demonstrate that the harm which you and any child of the family might suffer will be greater if the order is not made than it would be to the other party if the order is made.

The court will also take into account other factors such as the financial and housing needs and resources of both parties and any children.

If the court is not satisfied that a total exclusion from the property is warranted, an order made be made regulating occupation of the family home such that use of the rooms can be divided between you or a timetable regulating occupation at certain times can be implemented.

If you are being subjected to abuse, violence, threats or harassment please contact our family law specialist in confidence. We can arrange to see you at very short notice and it is important that you act quickly so that we can obtain these protective orders for you.

Free information meeting

We are pleased to offer all potential new clients a free, no obligation information meeting.

The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.

We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.

Next Steps

We are able to offer very competitive, cost effective and flexible packages to suit your individual needs dependent upon how much or how little you would like us to do for you.

For more information, an informal chat or to book an appointment – call our friendly family law specialist on 020 7790 2000 or email amie@adamslaw.co.uk

Divorce Overview

It is estimated that up to 42% of marriages end in divorce. It is often a very upsetting, stressful and confusing time for the parties involved. As a modern and progressive law firm we adopt a holistic approach when advising and assisting our clients during this difficult time. We can offer expert tailored legal advice and we also have access to a wide range of external agencies and support services, including relationship counselling and support for separating parents. We are committed to making the process as simple, non-confrontational and cost effective as possible. It is our vision to ensure that every one of our clients finishes this process feeling empowered and positive about their future.

We will be transparent about our costs from the outset and we can offer very competitive fixed fee rate for divorce and civil partnership dissolution in most cases.

Contact us today on 020 7790 2000 or email amie@adamslaw.co.uk to find out how the Adams approach can help you.

You can find some more information about judicial separation, divorce and civil partnership dissolution here .

Cohabitation

In today’s society cohabitation is commonplace. In fact, according to the Office of National Statistics, there were 5.9 million people cohabiting in the UK in 2012. This is almost double the number of people who were cohabiting in 1996.

Given the ever increasing number of cohabitants, it is no surprise that we are also seeing an increase in the number of disputes between cohabiting couples if that relationship breaks down.

Many people still mistakenly have the belief that there is such a thing as a “common law marriage” and that their rights are therefore protected. This is not the case. When parties are married, the court has extensive powers and a wide discretion to manipulate assets in order to achieve a fair settlement. This is not yet the case for unmarried partners and you may find that your options and/or remedies are very limited if you did not take steps to protect your position from the outset. For instance, you might find that you have real difficulties asserting that you have a share in your partner’s property despite the fact that you have been making a contribution to the family.

Cohabitation Agreements

A Cohabitation Agreement can be drawn up if you are considering moving in with someone or purchasing property together.

The agreement can set out your intentions in relation to all future arrangements whilst you are living together i.e. who will be responsible for paying the rent/mortgage and bills, how you will deal with debts and joint bank accounts etc.

It is sensible to carefully consider whether you might require a cohabitation agreement right from the outset because it can make the separation process far less stressful in the event that the worst should happen. You will have already thought about and decided what should happen in respect of financial arrangements in the event that the relationship breaks down and this can take away this additional burden at what is often a difficult and emotional time.

A Cohabitation Agreement is not automatically legally binding but provided you are full and frank about your assets, income and finances and you enter the agreement with the benefit of legal advice – it is strong evidence of intention and the court will be reluctant to depart from it (save in exceptional circumstances).

We will take information from you about what has been agreed and give you advice about the terms and whether it is likely to be seen as fair. We can also draft the cohabitation agreement for you.

We can offer competitive fixed fees to draft a Cohabitation Agreement for you or to consider a Cohabitation Agreement with you that has been drafted by your partner’s representative. Please contact our specialist family law specialist for an informal chat on 020 7790 2000 or amie@adamslaw.co.uk

Property ownership

If the parties are unmarried but own property together, the laws of trusts and land apply. These laws and rules are very rigid and cannot be departed from. Broadly speaking if the ownership of a property is plainly recorded, it will not be possible to depart from that (save for exceptional circumstances).

In the event of separation, it is worthwhile trying to reach an agreement with the joint owner about what will happen to the property in the first instance. We can give you advice about the different options available to you to try to settle your dispute with the other party without resorting to court proceedings. We can assist you during this process and also advise you about the merits of any potential settlement you may be considering. Please see our alternative dispute resolution page for further information (link to ADR page)

If both parties can agree, this agreement can be recorded in a Separation Agreement which can set out the main terms. Though not technically legally binding, if both parties provide financial disclosure and have the benefit of legal advice, the agreement will be strong evidence of intention and will hold a lot of weight in any future proceedings.

If the parties cannot agree it may be necessary to consider court proceedings but we will explore all of the options with you first.

The only remedies available are those governed by the Trusts of Land and Appointment of Trustees Act 1996. The most widely utilised application is for an order for sale of the property – often because one party wants to release their equity. It is also possible to make an application to the court for a declaration as to the nature and extent of your interest in a property.

When considering whether to make an Order under this provision, the Court will take into account the following factors;

  • the intentions of the person or persons (if any) who created the trust
  • the purposes for which the property subject to the trust is held
  • the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
  • the interests of any secured creditor of any beneficiary.

Where there is a dispute between parties who own property together but are not married, this is usually resolved in one of the following ways;

  • one party buys the other party’s share – i.e. they acquire the whole property by buying the other owner’s share
  • the property is sold and the equity is divided
  • the property is retained subject to a charge to be exercised at a later date and the equity is then divided – a postponed sale is most often used where there are small children living in the property

We will assist you to come to an early agreement with the other party as soon as possible to save time and costs. In the event that it is not possible to reach an agreement and a court application becomes necessary, we offer very competitive prices and payment options to make the process as simple and affordable as possible.

Free information meeting

We are pleased to offer all potential new clients a free, no obligation information meeting.

The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.

We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.

Next Steps

For more information, an informal chat or to book an appointment – call our family law specialist on 020 7790 2000 or email amie@adamslaw.co.uk

Children

At Adams Solicitors, we fully understand the importance of ensuring that the best interests of your children are prioritised at all times. Indeed, this is the approach that the Court will adopt when dealing with applications relating to your children – the best interests of the children are paramount.

Unfortunately however, you may believe that the best interests of your children are not being currently being met by the present arrangement or situation for a variety of different reasons. It might be because you are not able to have regular contact with the children. It may be because they are at risk from one of their parents and they need to be protected. It may even be because there is a disagreement about where the children should live or go to school.

It is important to seek advice so that we can tell you what can be done to ensure that the best interests of your children will be met. There are a number of issues which arise frequently and we explain these in more detail below.

Parental Responsibility

What is Parental Responsibility?

Parental responsibility is defined at s.3(1) Children Act 1989 as:

“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”.

Essentially, it means making the day-to-day decisions regarding your child’s wellbeing whilst they are in your care and also involves the right to be consulted in relation to important decisions regarding their upbringing. It includes (but is not limited to) decisions regarding;

  • your child’s education
  • your child’s religion
  • your child’s medical treatment
  • where your child should live

Who has Parental Responsibility?

The mother of the child will automatically have parental responsibility from birth. If you are the father of the child you may have parental responsibility, but it is not automatic. It is dependent upon the following factors;

  • whether you were married to the mother
  • the date on which the child was born and registered
  • whether you are registered as father on the birth certificate

We can advise you in detail about whether you have parental responsibility and/or how to acquire it when we have this information from you.

How can I acquire Parental Responsibility?

If you do not already have parental responsibility, we can advise you about the different ways that you can acquire it. This may include one of the following;

  • re-registering the child’s birth – both parties must agree to do this
  • entering into a Parental Responsibility agreement with the mother
  • making an application to the Court for a parental responsibility order

It is also possible for step parents to acquire parental responsibility in some cases. Please contact our family law specialist to discuss the various options available to you.

Child Arrangements Order

The child arrangements order replaces what was formerly known as residence and contact orders. Both of those applications are now dealt with under the umbrella of the child arrangements order.

 It is possible to apply for a child arrangements order to determine a number of different issues including;

  • where the children should live
  • with whom the children should spend time, how often and when

In most cases, the parents will agree about where their child should live and with whom. However, this is not always the case and there are sometimes good reasons why the child should move between parents.

If all of the people with parental responsibility agree about where the child should live, there is no need to do anything unless you wish to have the agreement recorded in the form of a court order. If so, we can usually prepare this for you and the draft order can be lodged with the court for approval with both parties’ consent. If there is a dispute however, further action may be required.

If the child arrangements order specifies with which parent the children are to live, that person will automatically acquire parental responsibility if they do not already have it.

A child arrangements order can also specify where and for how long the applicant will have contact with his/her child. In many cases, the parents will agree about how much time the non-resident parent is to spend with the children and if this is working well, there may be no need to do anything (unless you wish to have this recorded in the form of an order in which case we can usually prepare and submit a draft order to the court for approval by consent).

However if there is a dispute or the arrangements start to break down, further action may be required.

Initially, we will try to help you to come to an amicable solution with the other party as we always believe that it is better for you to come to your own decisions about your children wherever suitable and possible. We have very good links to mediation services in many areas and we can therefore make referrals for you very quickly – please see our mediation page here for more information (link to mediation page)

In the event that we are not able to resolve the disagreement in correspondence or mediation is unsuccessful or unsuitable, we can advise you about making an application to the court.

What does the court take into account and how does the court make a decision?

In the event that mediation is unsuccessful and you are not able to come to an agreement, you may wish to make an application to the court for a child arrangements order.
When considering making any application for a s.8 Order (this includes an application for a child arrangements order) the court will take into account the following factors as set out in the Children Act 1989;

the ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding);
his/her physical, emotional and educational needs;

  • the likely effect on him/her of any change in his circumstances;
  • his/her age, sex, background and any characteristics of his/hers which the court considers relevant;
  • any harm which he/she has suffered or are at risk of suffering;
  • how capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs;
  • the range of powers available to the court under this Act in the proceedings in question.

However, the overriding principle which the court will adopt is that the welfare of the child is paramount. This is known as the “paramouncy principle”.

When determining any application, the court must also give account to the “no order” principle such that the court will not make an order unless it considers that doing so would be better for the child than making no order at all.

If it is not possible for the parties to reach an agreement in relation to the issue, the court may request that a s.7 report be prepared (amongst other things). This will either be prepared by CAFCASS (Children and Family Court Advisory and Support Service) or Social Services if they are involved with the family.

If a report is directed, an officer from CAFCASS or a social worker will be appointed.  They will generally meet with both parents and the child (dependent upon his/her age and understanding). They may also wish to observe contact as part of their investigations. At the end of the report, the reporting officer or social worker will make conclusions and recommendations. Those recommendations will have significant weight in the proceedings and the Judge must give reasons if he/she departs from them.

What happens if a child arrangements order is breached?

All new child arrangements orders now have a warning notice attached to them. Breach of the order is contempt of court and the warning notice makes it clear to the parent that must make the children available for contact that breach is a serious issue and that there are sanctions for doing so. If the order is breached, you may apply to the court for an enforcement order. If the other party is found to have breached the order without reasonable excuse, the court may apply sanctions including a fine, compensation for loss or community service. However, in the majority of cases the court’s priority is to ensure that contact resumes (unless there is good reason to suspend it).

Other types of Section 8 application

Prohibited Steps Order

This is an order preventing another person from doing something in relation to a child.

These orders are most usually applied for when there is a concern that someone is about the remove the child from the care and control of their main carer or from the jurisdiction (i.e. take the child out of the country).

If you suspect that the other parent or any other person is about to remove the children from your care or from the country, you need to contact us as soon as possible because we need to act very quickly.

Specific Issue Order

This is an application to ask the court to determine a specific issue in relation to the child.

The most common applications are to change a child’s surname, to remove the child from the jurisdiction permanently (i.e. to relocate abroad) or to determine where the child should go to school if the people with parental responsibility do not agree. However, there are a number of other situations in which it may be necessary to apply for this order – please do not hesitate to contact us to discuss your matter so that we can advise you properly.

Both prohibited steps and specific issue orders are made pursuant to s.8 Children Act 1989. As a result, all of the factors listed in the section “What does the Court take into account and how does the Court make a decision?” listed above also apply to these Orders.

Special Guardianship

 A special guardianship order is similar to a child arrangements order which specifies with which parent the children are to live since it also names the person or people with whom the children are to live.

The special guardians will be named in the order. It is intended to afford greater certainty for the children by helping to provide a secure and long term home for them during their minority.

When a person becomes a special guardian, they acquire parental responsibility for the child (if they do not already have it). However, unlike a child arrangements order, a parent cannot apply for a special guardianship order. It is anticipated that other people who intend to care for the child in the long term may choose to apply for this order.

For instance, you may be a relative and you may want to care for the child for the long term because his/her parents are not able to do so. Alternatively, you may be a foster carer wishing to provide long term care for the child or children living with you.

Child Arrangements Order or Special guardianship order?

As mentioned above, the two orders are similar in that they can specify the person (or people) with whom the children are to live and they afford parental responsibility to that person (or people).

However, since special guardianship is intended to provide greater security and long term stability for the child, a person with a special guardianship order will be able to exercise their parental responsibility for the child to the exclusion of the other persons with parental responsibility (save for certain exceptions). As a result, it is not usually necessary to consult the other people with parental responsibility (usually the parents of the child) when making decisions about the child’s upbringing.

Furthermore, a special guardianship order affords parental responsibility for the child until he/she reaches 18 years of age whereas a child arrangements order only affords parental responsibility until the child reaches 16 years of age (save for exceptional circumstances).

The process for making an application for a special guardianship order

Before making an application for a special guardianship order, you are required to give notice in writing to your Local Authority. This must be given three months before you apply for the order.

After giving notice to the Local Authority of your intention to apply, they will then prepare a report for the court setting out all the necessary information to make a decision. The report will include the wishes and feelings of the child, information about the child’s birth family, information about contact arrangements and information about the proposed special guardians. Ultimately the report will conclude with a recommendation to the court setting out whether the special guardianship order should be made.

When considering whether to grant the Order, the Court will take into account the factors set out at s.1 Children Act 1989, namely those described in the section “what does the Court take into account and how does the court make a decision?” above.

You may also be entitled to financial support from the Local Authority if the special guardianship order is to be granted and we can help to ensure that this is explored and that the package is suitable.

Our fees

We are able to offer very competitive, cost effective and flexible packages to suit your individual needs dependent upon how much or how little you would like us to do for you.

Next Steps

For more information, an informal chat or to book an appointment – call our family law specialist on 020 7790 2000 or email amie@adamslaw.co.uk

Change of Name

Adult change of name (first and/or last names)

As an adult, you are free to change your name whenever you like (save for exceptional circumstances).

If you do decide to change your name, you may require legal proof of the change to obtain certain documentation such as a passport or driver’s licence.

The change of name can be simply executed by the preparation of a change of name deed. We will take instructions from you in relation to the information required for the deed, prepare the change of name deed for you and we will tell you what you need to do to execute it.

Change of name after a marriage (or civil partnership)

After marriage, many people choose to adopt the name of their new spouse or civil partner. However, you may choose to keep your maiden name and there is absolutely nothing in law preventing you from doing so. You may even prefer to use your married name in a personal capacity whilst using your maiden name at work. There is nothing in law which says that you cannot do so.

If you do want to change your name after you get married, you simply need to provide a copy of your marriage certificate (sometimes this must be a certified copy) and this will be sufficient proof. However, you may also want to prepare a change of name deed just to provide additional certainty.

Furthermore, if you are adopting a double barrelled surname after the divorce e.g. incorporating the surnames of both spouses or civil partners, you usually do require a change of name deed for official purposes.

Change of name after a divorce (or dissolution)

If you should divorce, you can generally choose to retain your married name or change it to something else (quite often, reverting to a maiden name). However, there is no legal obligation to abandon your married name and you can use either.

In the event that you do wish to abandon the use of your married name and revert to your maiden name, usually production of the Decree Absolute (the final document which brings the marriage to an end) or Final Order (in the case of civil partnership) will be sufficient proof to change your name on official documentation.

However, if you wish to change your name before the divorce or civil partnership is completed or you are having difficulties changing your name, we can prepare a change of name deed for you.

Changing your child’s surname

If your child is under 18 years of age, everyone with parental responsibility for that child must consent to the change of name. Please see our children page to find out who has parental responsibility (hyperlink to children page).

In the event that you cannot get the consent of everyone with parental responsibility (e.g. one of the parties does not agree or will not respond to your requests) you will need to obtain an order from the court to change the child’s surname. Please see our children page for more information about applying for an order to change a child’s name (hyperlink to children page).

Our fees

We will charge a fixed fee of £90.00 plus VAT to prepare a change of name deed for you.
If we are preparing a change of name deed for your child, we will require the consent of all persons with parental responsibility.

Next Steps

For more information, an informal chat or to book an appointment – call our friendly family law specialist on 020 7790 2000 or email amie@adamslaw.co.uk

Mediation

We are always committed to helping our clients achieve the best possible outcome in their case.

For many of our clients, this does not involve the need for court proceedings as we are often able to reach an agreement with the other party. We will always take time to consider and discuss alternative methods of resolving your dispute with you at a very early stage.

We have direct links to local mediation specialists who are able to help you to resolve your dispute as amicably as possible. We can be on hand to offer advice and assistance to you throughout this process.

What is mediation?

Several of our senior solicitors are trained mediators and it is something we actively encourage our clients to consider as it can be a very cost effective method of resolving a dispute.

Mediation is a third party service, not connected to solicitors or the courts. The aim is to assist people to come to their own agreements in relation to matters in dispute. A trained mediator will initially invite both parties for an intake session to discuss the main issues, explain the mediation process and the costs involved. If the mediator believes that mediation is appropriate in your circumstances and both you and the other party are willing to attempt it, you will be invited to attend a session together with a mediator present. At that session, the mediator will help you to reach agreement in relation to the elements in dispute. In relation to mediating on financial matters, both parties will be asked to bring financial disclosure to the mediation session(s). This process may take only one session or it may take several depending upon the issues in dispute. If you are able to come to an agreement with the other party, the terms can be recorded in a formal document prepared by the mediator and we can often then use this to prepare a consent order incorporating these terms so that the agreement can be made legally binding and enforceable by the Court.

Mediation is not successful in every case but where it is successful, our clients generally find that it saves considerable time and cost. If you attempt mediation and it is unsuccessful, there is always the option to pursue the matter in the court if necessary. In any event, the court will look for evidence that the parties have previously attempted mediation when any new application in relation children or finances is made.

Lawyer supported mediation

We generally find that this process works best when the parties have independent legal advisors to assist and advise them during the mediation process. Whilst we cannot attend the mediation appointments with you, we can explain the process to you and give you legal advice about any proposed agreements or settlements so that you can be sure that what you are agreeing to is fair and equitable (this is important since the mediator cannot give legal advice).

Negotiations between the parties (or their legal representatives)

If mediation is unsuccessful, inappropriate or you simply do not feel comfortable with that process we can try to come to negotiate an agreement with the other party in correspondence instead.

However, even if it is possible to reach an agreement in correspondence with the other party (or their legal representative), it will not be legally binding and we will therefore need to discuss with you the various options for incorporating the terms into an order which, if approved, will make the agreement legally binding and enforceable.

Next steps

For more information, an informal chat or to book an appointment – call our friendly family law specialist on 020 7790 2000 or email amie@adamslaw.co.uk

Dilapidations at end of lease

Dilapidations are the costs to the tenant of putting a property back into repair, including reinstating tenant’s alterations, at the end of a lease. There appears to be an increase in disagreements between landlords and tenants about dilapidations. This is believed to be linked to leases generally becoming shorter in term, in which case any degradation to the property during the currency of the lease is harder to justify.

In almost all cases a commercial tenant will have an obligation in its lease to return the leased property to the landlord in the condition and standard of repair dictated by the lease during its term and on expiry. If you are tenant looking to vacate the property at the end of a lease’s term, here are five key points:

  1. Check the lease and the lease plan so you understand what actually comprises the leased property. Cross-check the way the property is described in words in the lease. Where you are leasing the entire building there may not be so much of an issue. However, in a multi level or multi-let environment, it pays to be clear.

  2. Take a look at your lease to see whether your liability is linked to a “schedule of condition” or inventory of some kind agreed at the commencement of the term. This is potentially a list or may also be or include images. It should provide the information you need on the minimum standard of repair to which the property should be returned.

  3. Generally speaking, the obligation to repair means remedying any defects in the property by renewing or replacing parts of it.  It does not require the tenant to make improvements or renew or replacing the whole of the property. It should be noted that the contractual requirement to “to keep in repair” imposes an obligation on the tenant to “put” the property into repair. In reality this may mean putting the property in a better state it was in compared to when the tenancy commenced.

  4. At the end of the term it is possible that a landlord may make a claim for damages for dilapidations after the property is returned to it. If the landlord brings a claim of this nature, the damages may be for the cost of any required rectification works and potentially also for loss of rent while the works are being performed. It is a good idea to keep records of the state the property is left in by taking photographs to provide evidence to deal with any such claim. These may show that works are not required.

  5. Attempt to resolve any potential issues in a reasonable and appropriate period of time before the end of the lease. Contact your landlord so that you can have a reasonable dialogue about it, based on an objective assessment of the property. Where you have doubts, it may pay to consult a solicitor or a property surveyor.

 

Mr. San Chima
san@adamslaw.co.uk