Family Law FAQ
Q: “Do I need a solicitor?”
A: There is no obligation placed upon parties to legal proceedings to have legal representation. Any form of legal advice is expensive and the provision of advice in family law proceedings is no different. We developed our fixed fee initial interview system for our prospective clients to take legal advice knowing in advance their total cost for the meeting.
In some instances, whether because of the nature of the proceedings or in view of the costs that might be incurred, our role is to provide background advice to a client who deals with the proceedings “in person”. We can discuss whether this would be appropriate to your case.
We do suggest that it is always worthwhile considering an initial fixed fee meeting with us at a early stage. Many of our first meetings are of a “what if” nature. We would like to think that the advice we give on these occasions may be some of the most useful and cost effective advice that the practice provides to our clients.
Q: “How long will it take?”
A: We recognise that most, if not all of our clients will have faced a tough time before they come and see us and are anxious as to how long it will take to resolve the issues that have arisen.
The reality of the position is that for most cases, the days when they might take years to conclude are long gone. Generally, negotiations take place and lead to agreement; duration is governed by the speed of those negotiations. In practice, we advise that unless agreement is clearly achievable within a few months, that proceedings are appropriate because the court timetable then falls into place. So, for example, in financial proceedings upon divorce, the first court appointment is listed three months after the issue of proceedings with the court. If agreement is not achieved before that appointment and/or terms are not agreed at court on the appointment then a further appointment would be listed by the court for around three months later and so on.
Q: “How much will it cost?”
A: We understand that this will be a central concern for our clients.
Our initial first free interview provides our clients with the assurance of knowing they can access some initial advice and we can assess eligibility for Public Funding or otherwise discuss our private client terms. It is essential on any first appointment that you bring full proof of your income. Our commitment to you is that upon receiving your instructions to act for you, we will provide you, in writing, with the very best estimate as to the cost that you might incur and that we will continue to do so throughout the time we act for you.
Q: “My husband/wife tells me that his/her solicitor says that a 50%/50% share of our family assets is now automatic”
A: The brief answer to this is “no!”.
Where terms as to the division of the family assets cannot be agreed upon divorce then the court will eventually have to make a decision. Accordingly, our advice to our clients as to what might be an appropriate division of the assets is governed by the likely outcome if a judge had to make a decision in a final contested hearing. In practice, such final hearings are rare because of the cost and uncertainty as to the outcome.
A judge making a decision is guided by statute law and by previous decisions made by other judges. An equal division of the assets may well be thought to be appropriate but there are cases where such a division would be unfair and inappropriate. A number of factors come into play and our daily involvement with such cases enables us to provide analysis of your circumstances and guidance as to what may be appropriate for you.
Q: “Can I stop paying maintenance?”
A: Even where there is agreement that maintenance may be reduced or no longer paid, if this is not recognised by variation of the relevant court order or otherwise documented in correspondence, preferably between solicitors, then arrears will accrue under the Order and may be enforced subsequently. Enforcement measures might include an Attachment of Earnings Order against the payer’s salary, the claiming of monies in their bank account or even an application for a sale of a property.
Q: “She will not allow me access to the children this weekend”
A: It is inevitable that friction will sometimes occur in the children’s arrangements where there are separated or divorced parents. Sometimes the arrangements can break down even when they have been in place for a lengthy period. This can happen where there is a change of circumstances, for example, one parent forming a new relationship or where there is a change of address.
There is no immediate answer to these problems. Generally, we would suggest that you see us for an initial fixed fee interview. It may be that we will suggest that mediation might be appropriate. Court orders are a blunt instrument and generally research shows that children’s arrangements achieved by consent work better in the long term than court imposed orders. However, there is now an emphasis on court based mediation which can prove very effective where one parent is initially reluctant to take a proactive stance in working out the arrangements in the best interests of the children.
Q: “Will my wife get half my pension ?”
A: Not necessarily. It is not automatic. A pension is regarded as an asset of a marriage. It is looked at alongside all of the other assets that are available for distribution. There are several factors which determine whether a pension share may be appropriate. These can include:- the age of the parties, the duration of the marriage, the actual value of the pension and whether the other part has a pension of their own.
We will help evaluate the factors in your case and advise if a pension share is something which we believe a Judge looking at your circumstances would do.
Q: “How long will it take ?”
A: Obviously, the time frame for each person is different but generally for divorce proceedings with no financial or children issues, they should conclude in 6 – 8 months. Where there are financial issues then our first aim would be to negotiate a settlement. If successful negotiations take place then the time frame would be similar.
It is where parties cannot agree and Court proceedings are issued then the time for completing matters is extended. The Court process however sets a timetable for both parties to follow, and there is always ongoing negotiations alongside that process. If a matter was fully contested we would still expect it to complete the Court process in twelve months.
Q: “Can I make my husband leave the family home as soon as I start divorce proceedings ?”
A: Not necessarily. We can ask a husband or wife to vacate voluntarily but if they will not you will have to await the resolution of your financial settlement. (This is assuming there are no domestic violence issues. If there were we would discuss application for an Occupation Order).
Q: “How do I know what maintenance I should pay ?”
A: Generally, it is preferable to try to agree payment of maintenance for children on a voluntary basis. This should generally be in accordance with CSA guidelines as it is they who have jurisdiction in respect of maintenance for children (save in some limited circumstances). We would assist you in applying the CSA’s assessment guidelines to your particular circumstances.
Q: “Can we make an application for contact to our grandchildren ?”
A: Yes, this is possible. Leave of the Court is required before the application is allowed to proceed. The Court will want to know why the contact is being denied, the historical relationship you have had with your grandchildren and the effect any Contact Order with you may have upon any other contact that they may be having with their non-resident parent. The welfare of the children is the most important factor for the Court to consider.
Q: “What does Parental Responsibility mean ?”
A: Parental Responsibility is our rights, duties, powers and responsibilities and authority which by law the parent of a child has in relation to that child. Essentially Parental Responsibility is concerned with bringing up a child, caring for them and making decisions about their lives. Parental Responsibility can extend to determining issues such as religion, education, the child’s name and consenting or refusing medical treatment.
A number of people may share Parental Responsibility at any one time and ideally should consult one another where possible on major decisions in regards to their child’s upbringing.
A: The mother of a child has Parental Responsibility for the child instantly when it is born and that cannot be removed unless the child is placed for adoption. If the father is married to the mother at the time of the child’s birth or subsequently marries the mother of the child, they will also require Parental Responsibility.
If the father is unmarried to the mother at the time of the child’s birth then if the child was born after 1st December 2003 and the father jointly registered the child’s birth with the mother and his name appears on the Birth Certificate, then he acquires Parental Responsibility in this way. However, this could be taken away from him by a Court Order in the future.
People who are non-parents can obtain Parental Responsibility by obtaining a Residence Order or a Special Guardianship Order so that they can make decisions about a child’s upbringing in the same way as the parent.
If the Local Authority are involved with your child or may be do not believe you are acting appropriately as a parent, then they may apply to the Court for a Care Order which would result in them sharing Parental Responsibility with a parent.
A: If you are an un-married father and do not have Parental Responsibility in the ways outlined above, then Parental Responsibility can be obtained by you entering into an agreement with the mother which is signed and witnessed by a Court Official and then registered in a central office in London.
Alternatively if the mother is not agreeable to you sharing Parental Responsibility then you would need to make an application to the Court who would consider your relationship and commitment to the child and your motivation for making the application and would decide whether or not to grant an Order.
If you are a non-parent then Parental Responsibility can be acquired through a Residence Order which would confirm that a child should live with you or a Special Guardianship Order. Special Guardianship Orders are often used at the conclusion of Care Proceedings issued by Local Authorities where children are placed with extended family members as opposed to going into a foster placement. Parental Responsibility is given to the family member through the Special Guardianship Order but this is at a higher level than the parent so that if they cannot agree with the parent on a particular issue to do with the child’s upbringing in the future, they can exercise their Parental Responsibility to the exclusion of that parent.
A Special Guardianship Order can also provide financial support and ongoing support and assistance from the Local Authority should it be required.
Q: “My partner is harassing me, what can I do ?”
A: There are two possible solutions to such difficulties. The first option, which you are duty bound to explore, is whether the police can protect you under the Protection from Harassment Act. As such if you have suffered a violent incident or you have been subject to behaviour that amounts to the harassment of you, then you should contact the police and insist that they take a formal complaint from you. In the event that the police are unwilling to take any action on your behalf, then you may be entitled to a Family Law Induction.
Clearly, the greatest protection you will receive is via the police should they pursue a complaint on your behalf. If the person is arrested then the police have the power to request the Court to remand that person into custody or alternative impose bail conditions upon them which would prevent that person from contacting you or coming near to your home.
In the event the police are unwilling to take any action on your behalf then you may be able to make an application to the Court for an induction. If there has been recent violence used, then this application may be able to be made on an emergency basis and without notice being given to the person who is harassing you.
Should the police take action on your behalf, it may be at the first instance they will warn the person in regard to their behaviour. If that person subsequently causes you further harassment it is essential that you re-contact the police and make a further complaint and insist that criminal charges are brought against them. Should a person be brought before the Court for an offence of harassment, then the Court has the power to make an Order restraining them from contacting you, your home or anywhere else they deem appropriate for a fixed period. These offences are viewed very seriously and such a person breach a Restraining Order then this often results in a period of imprisonment.
A: The Local Authority can only intervene in the care of the upbringing of a child with the agreement of the parent or with an order of the Court (Emergency Protection Order/Care Order).
Within s.17 of Children’s Act 1989 the Local Authority are under a duty to promote the upbringing of children in need by their families and where appropriate provide family support services to children in need and their families provided this does not interfere with safeguarding the welfare of the child. As such the Local Authority are under a duty to explore providing services and potential alternative carers prior to making an application to the Court.
