Making a Clean Break of it!

I can't tell you how many people have come to me and said, "we haven't got anything so all we need is a Divorce" or "it's all sorted so we just need to get the Divorce done".

People assume that divorcing their husband or wife brings an end to all links between them. Leaving aside the ongoing link of any children, few people realise that financial claims between them will remain open beyond the point of their divorce unless they do something about them.

Those claims might include claims for maintenance, lump sums, property and pensions and, whilst they can be relatively easily dealt with on divorce, if they are not it can leave people defending claims from ex-spouses years after their Divorce.

It is, of course, understandable for those with limited marital assets or for those people who have agreed how they want to divide their assets to focus more on the divorce and less on dealing with the financial claims but you must be aware that additional work is needed to deal with the financial claims, their dismissal does not come as a consequence of the divorce process and forms no part of it.

If there are no assets of the marriage then you may simply need a "Clean Break Order" drafted and executed by you both - that dismisses all financial claims between you and prevents either party coming back against the other at a later stage.

(Be careful though - women on lower incomes and caring for dependent children might be better advised to keep their maintenance claims open, whilst dismissing the remainder of claims.)

If there are assets of the marriage but there has been agreement reached then a "Consent Order" needs to be drafted, setting out the agreement and dealing also with the dismissal of future claims.

Whether it is a Clean Break Order or a Consent Order that you need, the Court will have to approve it before it becomes legally binding - like I say, this is not an automatic part of the divorce process.

Whilst you might consider it unnecessary and not worth the extra £300 , a word of warning - there have been cases relatively recently involving lottery wins after divorce - the unassuming winner having to defend a claim from his ex-spouse who in the end was awarded some of the winnings - a cautionary tale

So please....make a clean break of it!!

 

Should I stay or should I go?

I’ve lost count of the number of times clients tell me that they are clear that their relationship has come to an end, for whatever reason, but they believe that they must stay living under the same roof as their spouse or partner, for fear that in leaving the property they will be relinquishing any interest in it or that their interest will in some way be affected.

With so many misconceptions about Family law – a bias towards mothers in Children Act cases and the concept of Common Law Marriage being just 2 that spring to mind, such a belief is not surprising.

It is often possible, of course, to agree that the other party leaves the property or, dependent on their behaviour, to obtain an Order enforcing their exclusion from the property. I leave aside those options in this piece.

My advice invariably is that, if it is financially viable for a client to leave the former shared property and they feel, emotionally or for any other reason that they cannot remain at the property, they should feel no pressure to stay to protect their interest.

It is in very few cases that a party leaving the former shared property in itself has any effect on the overall settlement.  Where a party leaves and then chooses not to deal with financial matters until some significant time after, when the occupying party perhaps has been paying the mortgage for years in the meantime, the occupying party might well have an argument as regards their contribution towards the mortgage, although it would be unlikely to wipe out the other’s claim in its entirety.

Where a marriage has been a long one and a party chooses to leave the former matrimonial home because the situation is untenable – if there are then financial negotiations over the following months, it is highly unlikely that the payment of the mortgage by the occupying party will have any impact on the settlement terms.

Likewise, where there has been a significant cohabiting relationship, the issues and arguments are likely to centre on the course of the whole relationship and not only its end.

It might, practically speaking, be best if leaving the property is done in a planned fashion and if the party leaving takes all of their personal belongings and paperwork (careful just to take your own paperwork or joint paperwork and nothing relating solely to the other party). If we are talking of a joint property, the leaving party will still have a right to enter and occupy the former shared property but my experience is that, if relations are difficult between couples, it is far better to have all of the items that you will immediately need with you when you leave – the rest can be dealt with later on.

What is far more important for a party to consider is protecting their interest if the property they are leaving is held in the other’s sole name.

For cohabiting couples, the non-owning party must rely on areas of trust law and intention is all important.

Registration of a caution with the Land Registry or at the very least some written confirmation that in leaving the property there is no acceptance that any interest is relinquished will be necessary.

For married couples, the situation is simpler. If the former matrimonial home is owned in one spouse’s name the non-owning party may register a Home Right against the property, to secure their interest. If a spouse owns other property (that has not been lived in as the marital home, or is no longer being used for that purpose) advice should be sought about registering restrictions against those other properties as well.

So, my advice….dealing with any Divorce or Separation takes its toll emotionally and it is important not only to have a good support network around you (family, friends, trusted Solicitor etc.) but to live in an environment that will allow you to deal with the variety of issues that will crop up without you feeling pressure, tension or hostility.

If that means leaving the former matrimonial home, and it is financially possible to do so, your interest in the property is in all likelihood not going to be affected and, if you are unsure or if the property is owned in your partner’s sole name, seek legal advice and your interest in the property can be secured in other ways.

Going it alone.....the best option?

Thanks largely to the proposed Legal Aid, Sentencing and Punishment of Offenders Bill more and more people will find themselves having to consider self-representation in Divorce and Family Law matters.

The concept of DIY Divorce has been around, of course, for some time – with online providers offering clients the opportunity of dealing with the forms themselves and with the whole process at arm’s length – but this change in the legal landscape will mean that people who don’t particularly want to deal with matters themselves or who want to see a Solicitor face to face, may be forced to consider the DIY option.

The Divorce process, admittedly, is largely procedural and whilst there are a few potential pitfalls, the majority of the paperwork required by the Court has been simplified to allow parties to manage the process without the need for legal advice – this is the procedure that many online providers deal with.

Far more complex, however, is the process undertaken to deal with marital finances or in negotiating arrangements for children. The case law, arguments and Family Procedure Rules provide a formidable hurdle for those who are not aware.

Whilst perhaps those couples who have no marital assets and no children may find dealing with the Divorce procedure manageable (albeit that they may fall foul of not dealing with their financial claims and allowing them inadvertently to continue), I can’t help but wonder how those who need to negotiate financial settlement and child contact issues will cope.

There is, of course, Mediation – a really useful tool for those couples who are prepared to attend sessions together and discuss the issues to reach settlement. The government proposes to invest a significant sum of money in Mediation over the next 24 months but I remain concerned that, without independent legal advice, people will be left adrift, trying desperately to sort through their many emotional and financial issues without guidance as regards what issues they should be pursuing, which they should leave and what they can hope to achieve by way of settlement – Mediators are not there to advise either party.

If Mediation fails to produce an agreement, the self-represented parties will be faced with the prospect of Court proceedings, with all the additional procedure and rules that brings and the thought of addressing a judge directly and in such a way as their arguments are clear.

This may all seem a little convenient, “aren’t you just concerned that you’ll have less work” I hear you say. Actually, no, I’m more concerned about the impact that self-represented litigants will have on the Court and the knock on effect that this will have for all clients, represented or not, including mine.

It is of little surprise that cases involving self-represented litigants often take a significantly longer time being heard in Court, because the judge must rightly ensure that each party understands what is happening but also because self-represented litigants do not necessarily understand the more relevant aspects of their case. When it’s personal, issues that would have been dealt with quickly had the parties been represented, can become almost insurmountable.

The rise in self-represented litigants is likely to require the Court to set aside more time for hearings, to ensure that each matter is dealt with fully, which in turn will lead to delays in other cases being listed – including those where parties are represented.

In addition, for those cases where one party is represented but the other is not, there can be costs implications for the represented party as a result of their Solicitor necessarily having to draft documentation for the Court, spend time explaining matters to the self-represented party at Court in line with professional rules and, ordinarily, dealing with increased correspondence and time spent dealing with issues that perhaps are not fundamental to resolution of the case – I am generalising, I know of several self-represented litigants who cope very well.

So you see, my concern is not only for people who will have to face the unpalatable prospect of representing themselves in negotiating their financial future or arrangements for their children but also the likely effect that this will have on my own clients in terms of delay and costs.

I am almost bound to say that I would advise that in all but the simplest cases, legal advice is key but, in honesty, good legal advice can save parties significant costs, help focus the parties on the relevant issues and ultimately ensure a fair resolution with as little emotional cost to the client as possible.

It is undoubted that the legal market is changing and firms will have to change their long established ways of working to ensure that people receive the best advice in a manner affordable to them – forgetting for a second that we are running businesses; we did all train as lawyers to advise and help people through their difficulties – at least I did.

With this in mind, our Family Law team has developed a range of costs solutions for clients, from free initial appointments, monthly payment plans, fixed fee divorce packages and bespoke plans to allow clients to access the advice that they so need in a way that is at least manageable.

So….go it alone?

How to Survive a Divorce...

With divorces in England and Wales having increased by nearly 5% to 2010 here are my tips for surviving the process.

1. Know your priorities
Once you have made the difficult decision to separate take legal advice about your next steps from a Solicitor that you can trust. You may be worried about the process as a whole and there may be a lot of information given to you at the outset but focusing on more immediate issues first, such as your housing and immediate income position will allow you time to deal with settling the other issues. Having clear aims throughout the process will keep you on track and focused.

2. Be emotional but don’t let emotion rule.
Acknowledge the emotions that you feel throughout the process, be those fear, stress, sadness, anger or worry. Surround yourself with friends and speak with them about your emotions but don’t allow those emotions to rule your decision making process. Hasty action based on your emotions will see your costs and the acrimony of your case increase. Remember that all Divorces are different and be careful about advice given to you by well-meaning people on the basis of their own experiences - always speak to your Solicitor.

3. Focus on the issues that will make a difference
There may be many points that, out of principle, you wish to make and, whilst you should speak to your Solicitor about them all, don't forget to take advice about those issues that are relevant in terms of settlement and those that will make a difference to your case. Be pragmatic - raising every point out of principle may make you feel good briefly but it will increase your costs which and that good feeling that you had won't last long.

4. Make progress
Divorce is a process and whether it takes 6 months or 2 years, there are rarely any quick fixes. It is important that some progress is made to allow both parties to move on but this should be at a comfortable pace for you.  However you wish for your case to be handled it is important always to consider that litigation and correspondence lasting years can drain you emotionally and financially and whilst no progress is made you may feel as though you have been left in limbo. Ensure that you are happy about the progress made throughout so that you and your spouse can move on.

5. Make any final settlement just that, final
After the Divorce process has run its course and a final settlement reached, try to draw a line under matters and look forward. Acknowledging the good times in your marriage and taking steps towards your future plans is the best way to move forward.

Sport Relief

Going the extra 3 miles…

I went the distance for Sport Relief on Sunday 25^th March 2012, clocking up 3 miles at Perdiswell, Worcester and raising £100 for the cause.

Used to going the extra mile for clients, I managed the run in 40 minutes, despite being unwell in the run up to the event.

I thought that I wouldn’t be able to take part, having been unwell, but it’s such a great cause and thinking of the people that the money will help kept me going.

Next up another great cause, The Walk for Worcestershire in July for Acorns Hospice!