Client Services : Matrimonial

Family and Divorce Solicitors

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For a FREE, NO OBLIGATION assessment of how we can help and how much it is likely to cost, please call us on 01788 576384 or complete our Online Enquiry Form.

MARITAL AGREEMENTS

A pre-marital or marital agreement is a contract entered into before or during a marriage. Such agreements attempt to regulate how the parties manage their financial affairs during the marriage and/or what should happen in the unfortunate event of a breakdown. They are also sometimes known as pre-nuptial or nuptial agreements.

Given the high rate of divorce these days, it is understandable that mature adults desire certainty and clarity and wish to avoid conflict. It is sensible to discuss finances rather than leave it to chance, especially in the following circumstances:

• Divorcees;
• Those wishing to protect their existing wealth; and
• People with children from a previous relationship.

However, the existence and terms of a marital agreement is only one of the many factors to be taken into account in the exercise of the Court’s discretion. The weight attached to it depends on what is fair and reasonable in the particular circumstances of each case.

Certain safeguards must be followed to avoid abuse. Even then, the problem remains of what the parties’ circumstances and the law will be in the future.

In summary, although marital agreements are not themselves enforceable, they may be highly influential.

Because of the potential pitfalls, expert advice is essential. For a fixed fee, we will guide you through the legal process.

MARRIAGE SETTLEMENTS

It should be stressed that marital agreements are different from a marriage settlement. A marriage settlement deals with property existing at that time and can be enforceable. Please contact us for further information.

DIVORCE

Introduction
There is only one ground for obtaining a divorce: namely that the marriage has irretrievably broken down.

The person who starts the divorce proceedings is known as ‘the Petitioner’ and his/her spouse is called ‘the Respondent’.

To satisfy the Court that there has been an irretrievable breakdown the Petitioner must prove one of the following five facts:

1. Adultery;
2. Unreasonable behaviour;
3. Desertion for two years;
4. Living apart for two years and the Respondent consents; or
5. Living apart for five years.

There are restrictions on when a divorce may be started and a divorce may be delayed or even refused in some circumstances. To avoid any slip ups, why not let us do the job properly?

Procedure

1. The Petitioner prepares the documents, including the original Marriage Certificate, Petition and a Statement of Arrangements for any children.
2. These are then sent to the Court, together with the fee (currently £300).
3. The Court either sends the Petition (and Statement of Arrangements for Children) to the Respondent direct or returns them to the Petitioner to do so.
4. The Respondent returns an Acknowledgement of Service form to the Court.
5. The Court sends a copy of the Acknowledgement of Service to the Petitioner.
6. The Petitioner applies to the Court for Decree Nisi.
7. The Court fixes a date for Decree Nisi (and approves the Statement of Arrangements for Children).
8. Decree Nisi is pronounced and sent to the parties.
9. The Petitioner applies to the Court for Decree Absolute six weeks later.
10. Decree Absolute is granted and sent to the parties.

In all, the whole process can take as little as four to six months from start to finish and there should be no need for either party to attend Court.

Please remember that this is a general guide only and assumes the following:

1. The divorce proceeds undefended;
2. The Petitioner is entitled to a divorce; and
3. (The Court is satisfied with the arrangements and proposals for children; and)
4. There are no delays.

The actual procedure followed will depend on the individual circumstances of each case.

Involving us from the outset gives you peace of mind that should any unexpected problems arise, especially in relation to children and/or money, we are at hand to act in your best interests.

We charge a fixed fee for a straight forward uncontested divorce where there are no children or property involved.

Alternatives
If you would prefer to regularise your separation without actually divorcing there are two options available:

1. Judicial separation
This involves a Court procedure which is virtually identical to a divorce. The essential difference is that the Court pronounces a Decree of Judicial Separation rather than a divorce and therefore you and your spouse remain married.

Provided the case is not defended and there are no children or financial issues, we should, once again, be able to agree a fixed fee.

2. Separation agreement
Many couples prefer to reach an agreement about children and matrimonial finances without involving the Court at all. This can be done by signing a separation agreement. Commonly, these provide that the parties to the marriage are to live apart and deal with arrangements for the children and maintenance and/or property issues. Whilst there are no restrictions on what can or cannot be included, it is important to bear in mind that should either person make a subsequent financial application to the Court, the Court is not bound by the financial arrangements contained in the separation agreement. Similar considerations apply to those set out above in relation to marital agreements. With our assistance, you can ensure that these conditions are met.

Separation agreements can also be varied by subsequent agreement between the parties.

We can usually prepare a separation agreement for a fixed fee.

Introduction
Settling financial matters is called ‘ancillary relief’.

Options
Spouses and former spouses have rights to make financial claims against each other by applying to the Court for orders for any or all of the following:

1. Maintenance (i.e. income payments);
2. Adjustment of property ownership (e.g. transfer of a house from joint ownership to the sole ownership of one spouse);
3. Lump sums (i.e. capital payments); and
4. Pension sharing/attachment.

These rights can only be brought to an end in two ways:

1. By a Court Order; and
2. Where someone obtains a divorce and then re-marries.

We can protect your position in a number of ways:

1. We can advise whether a final settlement is appropriate; and
2. We can tell you how to avoid being caught in ‘the re-marriage trap’.

Considerations
The Court considers the following factors when deciding what is a fair settlement:

1. The welfare of a child of the family;
2. The income, earning capacity, property and resources of each spouse;
3. The financial needs, obligations and responsibilities of each spouse;
4. The standard of living enjoyed by the family before the breakdown of the marriage;
5. The age of each spouse and the duration of the marriage;
6. Any physical or mental disability;
7. The contribution made by each spouse to the welfare of the family, including looking after the home and bringing up children;
8. The conduct of each spouse, but only if it is so bad it would be unfair to ignore it; and
9. Any serious disadvantage to either spouse which would be caused by ending the marriage.

Often a key factor is the reasonable needs of yourself and your spouse.

In most cases, the Courts no longer have power to make orders for child maintenance except by agreement; an application to the Child Support Agency has to be made for child maintenance to be assessed.

The parties are obliged to make full, frank and clear disclosure of facts, information and documents which are material and sufficiently accurate to enable proper negotiations to take place. Openness in all dealings is essential. A Financial Statement (Form E) is normally used for this purpose. We can complete this with you on a fixed fee basis.

This duty is ongoing and includes the duty to disclose any material changes after initial disclosure has been given.

Once disclosure has been completed, we can advise you on what might be a fair division, highlight the options for achieving this and negotiate on your behalf. An agreement must then be contained in a Court Order to be directly binding on your spouse.

Discussions
We always encourage Clients to try to speak direct with their spouse regarding finances, in the hope that this will make it more likely that an agreement can be reached. Mediation may help in this regard.

However, as such agreements can be upheld by the Courts, you should not accept any proposals without discussing them with us first. Your spouse may also refuse to negotiate further if you change your mind.

The matrimonial home
Most married couples own their property as ‘joint tenants’. This means that, if one of them dies, the survivor automatically becomes entitled to the whole property, even if the parties have separated or they are divorced. It is irrelevant whether or not a Will has been made.

We can prevent this from happening and ensure that your share in the property passes to who you want. Our fixed fee for arranging this includes the cost of preparing a Will.

If you are now living on your own in the property, you are entitled to a 25% reduction in the amount of Council Tax you have to pay. You may also qualify for Council Tax Benefit if you on a low income and your savings are less than £16,000. We suggest you contact your Local Authority for further information.

If, on the other hand, you have moved out of the property, you should notify the Local Authority in writing so that you do not remain liable to pay the full amount.

Pensions
The Court has various powers regarding pensions:

1. ‘Off-setting’
The person without significant pensions receives an equivalent payment from some other source. This is only possible where there are spare assets available after rehousing both parties.

2. ‘Pension sharing’
An existing pension fund is split to enable the other person to have their own pension.

3. ‘Pension attachment/earmarking’
Some of the pension is paid to the other spouse. Such Orders are complicated to draft and end when the receiving party remarries. If the paying party changes job an Order regarding a death in service benefit will be of no effect.

This is a highly complicated area of the law and almost every case is different. We can refer you to other professionals, such as Actuaries, for more specialist advice.

Joint bank accounts/credit cards
If you have a joint bank account or credit card with your spouse, you should act now to prevent money being withdrawn and joint and separate liability for any overdraft and/or expenditure. Please contact us for further guidance.

Documents
It is important that you keep all your financial documents, such as bank statements, credit card statements and pay-slips in a safe place, since you may need to produce them. Whilst it is usually possible to obtain copies, institutions such as Banks charge for duplicates.

Can We Help You?
For a FREE, NO OBLIGATION assessment of how we can help and how much it is likely to cost, please call us on 01788 576384 or complete our Online Enquiry Form.