We asked how and when finding advice from a family lawyer or using a mediator is beneficial…
Profile 1 – Grandparents
You are a grandmother and have been unable to see your grandchildren due to the breakdown of your own child’s relationship:
It is not uncommon for grandparents to experience difficulties in maintaining a relationship with their grandchildren following the separation of the children’s parents, especially if the grandchildren do not live with their own child. It can be particularly difficult where the separation was acrimonious.
Can you agree contact?
Spending time with your grandchildren is not dependent on your own child seeing the children, although it is usually easier and less stressful to arrange contact through your own child.
If this is not possible, you should see whether you can agree arrangements directly with the other parent. If there is acrimony, it may be helpful to stress that you are not trying to interfere or take sides, and that you simply want to maintain a relationship with your grandchildren.
If you are not able to reach an agreement yourselves you might want to consider mediation. This is a cost-effective, quick way for you and your grandchildren’s parents to attempt to resolve matters yourselves with the assistance of an impartial third party, without involving the courts.
Applying to the family court
If it is not possible to reach an agreement, it might be possible to apply to the court for an order that enables you to spend time with your grandchildren. Before making this application you will have to get permission from the court, which is known as ‘leave to apply’. This is because, ordinarily, grandparents do not have parental responsibility for their grandchildren.
When considering whether to grant permission, the court will assess the role you play in your grandchildren’s lives and your motives for making the application. If permission is granted, which is more likely than not, the court will then consider the practicalities of making a contact order in your favour.
The most important factor for the court in considering whether to make the application is the welfare of the grandchildren. The good news is that contact orders for grandparents are becoming more common as the courts are increasingly recognising the importance of the extended family.
If you find yourself in this situation, you can seek legal advice from a family solicitor. They should consider your options with you and, if necessary, can assist you in reaching an agreement or making a court application.
Profile 2 – Divorce
You are in your 50s, you have been married for 25 years and have two teenage children. Your marriage has broken down and your husband has requested a divorce.
When faced with this situation it is natural to feel anxious and uncertain about your future. Speaking to an experienced family lawyer may help you to understand your rights and the options available to you in relation to the divorce and the financial arrangements going forward.
A family lawyer should do all they can to reduce the amount of stress you are under and endeavour to deal with the situation as efficiently and cost-effectively as possible. It is a good idea to seek advice from a solicitor who is a member of Resolution, which means that they will be committed to a constructive and non-confrontational approaching to resolving family disputes.
In some very limited circumstances it is possible for parties to receive legal aid, so you may wish to investigate this with your solicitor.
What is involved?
When a marriage ends, especially one of this length, there are three main issues that a solicitor may advise on.
1. The divorce procedure that will bring the marriage to an end. This is usually a straightforward process dealt with on paper by completing certain prescribed forms.
2. Financial matters. It will need to be decided how your matrimonial assets should be divided and whether you and your spouse have sufficient income to meet your needs. This process will consider how to divide, where applicable, the matrimonial home, pensions and other assets and consider whether either of you will require maintenance from the other going forward.
3) The children. As your children are teenagers, of an age where they can express their own wishes and feelings, it is unlikely that you will need to work out overly detailed arrangements for them with your spouse. The family court is generally reluctant to get involved in arrangements for older children.
It is, however, important to ensure that children of any age are shielded from any animosity and involvement in the relationship breakdown.
Agreement or court?
It may be possible to deal with the financial and children matters by agreement between you and your spouse, with the help of your legal advisers. This can be quicker and more cost effective, but is not always possible when emotions are running high.
If an agreement cannot be reached, you would need to apply to the court, and it will consider all the circumstances and make an appropriate order
Reaching an agreement and the court process are not mutually exclusive. Sometimes it is very helpful to have the court timetable in place to ensure both parties engage and do what is necessary to reach a financial settlement e.g. provide full financial disclosure. But the court timetable does not prevent the parties reaching an agreement along the way and the court will actively encourage both parties to do this. The court process ensures a conclusion will be reached, as ultimately the court will decide how your assets should be divided between you if you cannot reach an agreement.
If you are not able to reach an agreement yourselves you might want to consider mediation, as above.
Another way to resolve financial matters (and children matters if applicable) is through family arbitration. This involves you and your spouse agreeing to use an arbitrator, who will be an experienced family solicitor, barrister or retired judge, to make a decision about your finances. The arbitrator’s costs would be paid for by you and your spouse and you both agree to be bound by the arbitrator’s decision. The court process can sometimes be slow and is a one-size -fits-all procedure. Arbitration can be tailored to the specific issues in your situation and the timetable can be fitted to you and your spouse. The process is also private and confidential.
Profile 3 – Cohabitation
You were divorced several years ago. You are now in a new relationship and are considering cohabiting with your new partner.
Moving in with a new partner is a big step for anyone, but if you have previously been divorced it may feel like an even more daunting prospect.
There is no such thing as a ‘common law spouse’, and at present cohabiting couples have no legal obligations to each other, unless they can rely on complex trust law. It is, however, possible to put in place various safeguards in order to protect your assets in case your relationship breaks down.
Seek legal advice
Whether you are purchasing a new property with your partner or one of you is moving into a property which the other owns in their sole name, take legal advice so that you are both aware of your rights and obligations towards each other.
You and your partner would need to seek advice from separate lawyers – it is usually not possible for one lawyer to assist you, as a couple as this would create a conflict of interest for the lawyer.
Declaration of Trust
If you are planning on buying a property together but are putting in unequal sums of money, a Declaration of Trust will set out these different contributions. Should your relationship then break down, your interests will be protected.
It is only ever possible to have a Declaration of Trust where the property is held as ‘tenants in common’ as opposed to ‘joint tenants’ so this is another factor to consider with a lawyer when purchasing a property jointly.
A Cohabitation Agreement, sometimes known as a ‘living together agreement’, is a contract which you and your partner enter into with the advice of lawyers. So long as some legal requirements have been met, the agreement is likely to be upheld by the court.
The agreement can cover a range of issues including who will be responsible for paying certain outgoings during the cohabitation, for example the mortgage and household bills, and what will happen if the relationship breaks down.
Obligations for unmarried parents
If you go on to have children and your relationship subsequently breaks down, the parent who ends up not living with the child is liable to pay child maintenance to the resident parent. In addition to this, it is also possible to apply for capital provision for the benefit of the child/children until they turn 16.
If you do not have a Will or your Will is not up to date, you may wish to rectify this. It is particularly important if you and your partner own your property as tenants in common and you wish for your partner to acquire your interest in the property in the event of your death.
This is because, unlike property held as joint tenants, your interest in the property will not pass automatically to your partner. Instead it will be determined by the terms of your Will or the laws on intestacy.
Conversely, if you want to preserve assets for your children, it is also important to document your wishes so that they are clear and unambiguous.
Profile 4 – Remarriage
You have been married previously. You are considering marrying your new partner but have concerns about protecting your assets for the benefit of your children.
If you have previously been through a divorce, it is not unusual to be concerned about protecting your assets on remarriage. You may wish to ensure that you are adequately protected in the event of this new marriage breaking down or ensure that your children from a previous marriage are protected in the event of your death.
It is possible to prepare a Prenuptial Agreement to determine how assets will be divided in the event that your marriage breaks down. Although Prenuptial Agreements are not recognised automatically by the English Courts, the courts will attach significant weight to the agreement if certain conditions have been met
For example, the agreement must be fair and meet the needs of both parties, and both parties must have entered into the agreement freely, following independent legal advice, at least 21 days before the date of the marriage.
Despite common opinion, Prenuptial Agreements are not only for the wealthy! They are an effective way of preserving assets which you may have inherited, acquired before the marriage or acquired as part of a family business for the benefit of your children in the future.
It is advisable to revisit the terms of the agreement whenever there are significant changes in circumstances, for example, if you go on to have children with your new spouse.
It is important to ensure that you have a valid and up to date Will if you wish to pass on certain assets to your children. Were you to remarry and did not have a Will in place, on the event of your death your spouse would get all your personal items (which are known as chattels) and the first £250,000 of your estate. Any Will that you do have in place would be void by your new marriage.
If you are about to remarry and have any concerns about protecting your assets, it is always advisable to seek legal advice from a family or private client lawyer.
Profile 5 – Civil Partnership
You are a woman in a civil partnership. You are considering having children but are unsure of the legal implications of the options available to you.
You will have undoubtedly worked through the pros and cons of the different methods available; time frames, cost, biological links and so on, will naturally have been big factors in coming to a decision.
The legal consequences
Another factor that also needs to be considered is what the legal consequences are of your chosen approach – do you have to have a genetic link to be a legal parent? Will your civil partner have equal parental rights as you? There is no single answer as the legal implications depend on the circumstances.
The most widely discussed method is donor insemination. That could be through a clinic or home insemination using sperm from a known donor. If you are in a civil partnership and the insemination is artificial then you and your partner will be the legal parents of the child, regardless of who is the birth mother.
You may prefer to have a relationship with the donor so that the three (or four if he also has a partner)of you can co-parent and raise the child together. If that is an option you are considering, you should consider a co-parenting agreement so that everyone is aware of the boundaries and there are no nasty surprises after the child is born.
Another approach would be for you to adopt a child or children. If you are matched to a child and you successfully obtain an adoption order, you and your partner would be the legal parents of the child.
You would both have equal rights in relation to the child and the rights of the biological parents would be extinguished upon the making of the adoption order.
An option that often features in the media is surrogacy, often a viable option for both same sex and heterosexual couples. If surrogacy is your favoured option, then, after the birth of your child, you would need to apply to the court for a parental order before you and your partner would have legal status as the child’s parents.
Once a parental order has been made you would then both have equal rights in relation to the child.
While we recognise that legal advice may not be the top of your priorities when you are working out when and how to start a family, it is important to ensure that you and your family are legally protected and understand the legal consequences and requirements of the different options available to you.
The Lester Aldridge family team deal with these and other issues on a regular basis.
If you would like to discuss any aspect of divorce, separation, arrangements for your children or wish to protect your assets prior to getting married, contact the family team on 01202 786161 or email [email protected].