Are you looking to know more about Family Law, the most common issues around Family Law and financial matters arising from a divorce?
We’ve prepared a detailed guide to explain some of the most common issues around Family Law and Divorce.
What is Family Law?
The term Family Law refers to a set of disputes and legal matters that are handled within the judicial system. These can include divorce, separation, adoption, child custody, visitation rights, financial settlements and the distribution of assets, guardianship, domestic violence, child abuse and neglect.
It may also cover the validity of trusts, wills and inheritance laws, pension and retirement benefits, and the validity of insurance claims.
This list is not exhaustive and there are individual cases which might fall under the heading of family law which have not been included. If you have a legal dispute, concern or query that involves some aspect of family life, be that about people or property, then a family law solicitor will be able to offer advice.
What can Family Law help with?
Family law covers a wide and diverse range of different claims and disputes. In each case, there’s a need to review the brief, examine the range and scope of evidence, discuss the case with the parties involved and then negotiate any settlement that ensues. This is by no means guaranteed, and if agreement cannot be found, then it may be appropriate to pursue legal means of seeking redress.
Where no settlement can be reached, then it may be appropriate to proceed with a case, file pleadings and motions. A case will need to be argued before the court. Smaller issues will usually be dealt with through county courts. More complicated and larger cases may be heard in the Family Division of the High Court.
Cases will often involve the input of a variety of people who have some connection to a particular case in a range of different professional capacities. This might be law enforcement officers, social workers, GPs, psychologists and welfare authorities.
In short, family law can help individuals in a wide range of different situations find resolution to family disputes.
What are the most common Family Law issues?
While family law covers a wide range of different issues some are considerably more common than others. Some of the most common issues that are resolved via family law include:
The divorce process is the means by which a married couple brings their legal relationship to an end. You can only get a divorce if you have been married for at least 12 months. It’s possible to get a divorce without the need for a solicitor or to go to court if both parties agree that a divorce is the way to proceed.
If both parties agree, getting a divorce legally finalised should take between 4-6 month. This can take longer if there are issues with property, financial arrangements or children which will then need to be taken care of separately.
If one partner disagrees about the need for a divorce it will take more time, cost more money and could ultimately involve court proceedings.
This can be especially difficult where you and your spouse cannot agree on how finances are to be divided, what the arrangements should be for your children and how to deal with shared assets, pensions, and the family home.
An experienced family law solicitor will help you navigate through the issues that can arise during divorce proceedings. By their nature, divorce suggests a breakdown in a relationship, so the mediating role of a solicitor can be beneficial. An experienced family solicitor can ensure that your interests are protected and that a fair settlement is achieved.
Financial matters arising from divorce
The financial aspects of divorce can be one of the most problematic and contested aspects to be resolved. This can particularly be the case where financial arrangements are complex or substantial. A range of factors will be taken into account when a divorcing couple’s financial matters are being considered. These are:
- Both partners’ assets and finances
- Both partners’ current and future needs
- The earnings and future earning capacity of each partner
- Whether or not the couple have children, their ages and specific needs
- Any health issues and the impact that might have on the future earning potential of a partner.
- The length of a marriage, including any time spent cohabiting prior to the marriage.
The aim throughout should be to achieve a comprehensive financial agreement through either direct or indirect negotiation, mediation or in some cases, collaborative law. Any agreement which is then reached will then need to go to court for consideration to ensure that it’s legally binding.
If an agreement cannot be reached, then one of the parties may be required to apply to the court for a financial agreement to be determined. The onus should always be on reaching an agreement wherever possible as what the court determines may be less favourable than expected.
A family law solicitor can advise in relation to child contact in the event of a separation or divorce. Reaching an amicable agreement through negotiation or mediation is strongly recommended and will usually be in the best interests of any children involved. If an agreement cannot be reached, then the parties will require sensitive and experienced legal advice to help them find a resolution.
In some cases, if an agreement cannot be reached, then a contact order may need to be negotiated, either with the other partner or via solicitors for the respective parties. If an agreement can still not be reached through legal representatives, then an application to the court for a Child Arrangements Order may need to be made.
If you have parental responsibility for a child this gives you some right to have a say in your child’s upbringing, particularly in relation to key decisions such as their name, schooling, medical procedures and religious practices.
When parents are married at the time of the child’s birth, father and mother share equal parental responsibility rights. If the parents are not married, the father does not automatically have parental responsibility for the child. In order to gain parental responsibility right, the father will need to be named on the child’s birth certificate.
An unmarried father can gain parental responsibility for the child by entering into a Parental Responsibility Agreement. This can be obtained either with the consent of the mother, or through making an application to the court.
In some cases, the situation between parents may break down to such a degree that one partner has concerns that the other is planning to remove their child from the UK without consent. If this is the case, an application to court for an emergency Prohibited Steps Order can be made which prevents them from doing so.
If a parent has concerns that a child may be removed from the jurisdiction very soon then they should contact the police and their legal representative in order to arrange an immediate ‘port alert’.
If a partner or child is being subjected to domestic abuse then it may be possible to obtain a Domestic Violence Injunction from the courts. While there is no single definition of domestic abuse in law, government definitions include psychological, physical, sexual, financial and emotional abuse. It may also include controlling or coercive behaviour, such as denying a partner sources of help and advice from family and friends or acts such as intimidation.
Two types of injunctions can be applied for in the family court in order to protect a partner or child from domestic violence:
- An occupation order – this orders someone to remove themselves and stay away from your home.
- A non-molestation order – this prevents someone from threatening or using violence, intimidating or harassing you.
When considering whether or not to issue an occupation order the court will look at how you or any children may suffer if the order is not granted, alongside the harm your abuser and any children may suffer if it is. The type of occupation order that can be applied for will depend on a range of factors including the abuser’s legal entitlement to a home.
In the case of a non-molestation order the court will consider the applicant’s circumstances in the round. This will include the need to secure the safety, health and well-being of any applicant and any children.
If you are the sole owner or tenant of your home, then a non-molestation order may prevent the abuser from accessing your home. If your home is jointly owned or the tenancy is in joint names with your abuser, then an occupation order will be required to prevent them from visiting your home.
These are highly-sensitive areas of family law that will usually need careful handling by an experienced legal professional.
Cohabitation, agreements, rights and disputes
Family law specialists can advise on some of the issues surrounding cohabitation. Legally binding cohabitation agreements may be drawn up. Unlike marriage and civil partnership, there is no legislation for these in the law in England and Wales. Instead, they fall under the rules of contract law.
Should disputes arise between cohabiting couples, then family law solicitors may be able to negotiate a resolution or advise about legal means of redress over specific issues such as property or finances.
They may also draw up comprehensive separation agreements between former partners, particularly in cases where there are significant assets to be divided or joint interest in a company.
Change of name deeds
It’s possible to change your name at any time through a Change of Name Deed. This may be because you wish to revert to a previous name following divorce, because you are undertaking gender reassignment, or for a personal reason. It’s also possible to change the name of children for whom you have parental responsibility. A family law solicitor will regularly carry out Change of Name applications, making the process quick and relatively simple.
Family and inherited wealth disputes
Although in most cases wills will not fall under the heading of family law; in the case of disputes about the contents of a will or disputes over inherited wealth, then negotiation, mediation and if necessary court proceedings may do so.
Special Guardianship Orders
In some circumstances it may be deemed appropriate for a child to reside with someone other than their parents. When this is the case, a Special Guardianship Order will be made by the court.
This is a complex, at times convoluted, and nearly always emotional process that requires very sensitive handling by experienced family law specialists. They will work with the best interests of the child at heart to achieve a satisfactory outcome.
How much does a family law solicitor cost?
Family law covers a broad area, and as such the legal fees will vary considerably. The fees charged for comparable work will also vary depending on how experienced an individual lawyer is and whether they charge a fixed or hourly rate. Another factor will be the complexity of the case and how quickly it is likely to be resolved.
Your chosen family law solicitor should provide you with an estimation of the expected costs from the outset.
At Freeman Jones, we are the leading family law solicitors in Chester and across the North West. We pride ourselves in listening carefully and then providing you with the best advice for your circumstances.