Over the last say three decades it has become much more common for couples to live together without getting married – or just waiting a much longer time to do so. There are many reasons for this, one is financial – weddings can be expensive. Also, many couples want to experience living together before taking the plunge. Another reason is the changing views of society – couples living together is far more acceptable than it used to be. That being the case as family lawyers we are often asked what the legal position is for a couple where they weren’t married but are separating. If you find yourself in that position, this blog is for you.

The starting point is that there is no such thing as “common law marriage” – nor is there anything such as “common law man and wife.” These are all unhelpful and essentially meaningless phrases that have no legal standing in England and Wales.

When a couple divorces, the financial claims that arise after the marriage breaks down arise from a piece of legislation called the Matrimonial Causes Act 1973. The law that applies to a couple who have lived together rather than married is not as simple, and instead we potentially have to look at numerous pieces of legislation and case law for guidance on what the legal position might be. There are campaigns to try to change and simplify this, not least given the harsh impact the law can have on children, but any change is likely to be some way off, and certainly for the time being the law in this area can be tricky to navigate.

Most people are concerned in the first instance what will happen to their home, and property claims are where we usually start. It is helpful to start by trying to establish who has legal ownership of the home, which if you are uncertain, means a search at the Land Registry. If you are concerned the legal ownership does not accurately reflect what you and your partner agreed, consideration should be given to what the beneficial interests in the property are. In those circumstances it can be helpful to consider who contributed financially to what, whether that be in terms of the mortgage, an extension, or otherwise. The legislation we would need to take into consideration in those circumstances would be the Trusts of Land and Appointment of Trustees Act 1996. If court proceedings are brought under this legislation, they are often referred to by lawyers as “TOLATA” claims.

If you and your partner had children together, it is worth consulting the Child Maintenance website to check what if any child maintenance shall arise once you are living separately from your partner. Further, if your partner owns property, whether that be the former family home or otherwise, it is also worth considering whether any claim can be brought under Schedule 1 of the Children Act 1989, which can be a route to claim financial provision for children where a couple were not married. A “Schedule 1” claim often goes hand in hand with a “TOLATA” claim.

For the individual who has stayed home to look after the children and not worked, the advice that there is no legal claim that can be made following cohabitation for either maintenance to meet income needs, or in respect of pensions, can be devastating news.

As stated above, there are campaigns for change in the law to see those who live together and have children to be afforded greater legal protection, but for now the law can be messy, unclear, and some say unfair. Here at Franklins we can however advise in clear and practical terms about what your legal position is following separation from your partner. Equally we can also help you and your partner put together a legally binding agreement which will provide a clear framework as to what should happen if you separate, so that you can avoid an expensive legal battle should the worst happen.

We offer an initial fixed fee appointment for a cost of £195 at which we can advise on your particular circumstances, and help you understand your legal position, whether that be at the start or the end of your relationship.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk 

 

During a divorce, emotions often run high. We are often still asked whether it matters whose “fault” it was that the marriage broke down. Clearly there are always two sides to the story, but invariably we are told about the circumstances leading to the breakdown of the relationship, and asked whether this will impact the divorce proceedings at all from a legal perspective, and whether one party can be at an advantage if for example the other had an affair.

The answer to that question is a simple no. As from 6th April 2022 the law on divorce in England and Wales – and the “blame game” – is happily now a thing of the past. Previously a petition needed to be based on one of five “facts” –

Thankfully, reliance on these facts is now something consigned to history. Given that it is not compulsory nor indeed even possible for either party to blame the other, this undoubtedly makes the process less painful. In practice we have seen the new law reduce animosity and conflict, and indeed costs.

Another helpful change in the law in Spring 2022 was that a divorce cannot be “defended.” One spouse used to have the ability to “defend” a divorce, meaning that they could disagree with the fact the petitioner was relying upon when the papers were served on them. This could mean the process took longer, with some individuals even defending matters just to increase animosity. The removal of the ability to “defend” a divorce means the process is now much more streamlined. 

Furthermore, divorce has been simplified by what is essentially a two-stage process. Firstly, one party, or indeed the couple together, initiate the divorce process by submitting a notice of intention to divorce to the court. After waiting for a period of six months, a conditional order (previously known as a decree nisi) can be applied for. After an additional six weeks, the applicant can apply for a final order (previously known as the decree absolute) officially ending the marriage and achieving a divorce. This is all now done digitally via the court’s “on-line portal.”

Whilst the law and the process regarding divorce in England and Wales has been markedly simplified since the change in legislation, clearly it is still a huge step to end a marriage. It is also important not to forget about resolving the legal financial claims arising as a result of the divorce, and to understand how doing that should dovetail with the divorce application in terms of timing and otherwise. Even though a divorce is really easier than ever before, the legal implications of this remain huge and as such independent legal advice is always recommended.

Taking steps towards ending your marriage can be scary, but here at Franklins we are here to help you make sense of the legalities. We try to make the process of getting the advice you need as easy and pain free as possible. We offer an initial appointment for a cost of £195, during which we try to give you an understanding of your legal position and what the future might hold.

If you feel Franklins might be the right firm to help you following the breakdown of your relationship, and you would like to enquire about when your initial appointment could be scheduled, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk 

So you have decided following the breakdown of your relationship to try to resolve the issues arising between you and your ex in mediation, and found a mediator who is willing and able to help you. So far so good. Mediation can be an excellent way to reach agreement on the important decisions that will need to be made for your family by you and your ex amicably and cost effectively. But do you need a solicitor too?

We would say so, yes. Instructing a solicitor to advise you alongside the mediation process can help you navigate the process more effectively. While mediation is designed to be a collaborative and less adversarial approach to resolving the issues which almost inevitably arise following relationship breakdown, having legal representation can still be valuable for the following reasons:

Legal Knowledge and Expertise: the law surrounding relationship breakdown can be complicated. An experienced family solicitor will have a deep understanding of family law and can support you during the mediation process, making sure you understand that you know your rights, what to expect, and helping you to make informed decisions.

Objective and Rational Advice: the turmoil caused by relationship breakdown can be challenging, and it is not unusual for impulsive or irrational decisions to be made as a result. Working with a solicitor can help minimize the chance of that happening in mediation. A solicitor will provide objective advice based on legal expertise and experience, supporting you to make decisions that are in the best interests of both you and your family in the long run, even when emotions are running high.

Negotiation Strategy: Mediation involves a third party mediator facilitating discussions between you and your ex in a way that supports you both towards making joint decisions about your future. Inevitably, negotiations will be necessary. A skilled solicitor can help you develop a negotiation strategy, and increase the chances of ensuring your interests are protected and that you achieve a fair outcome.

Support within the process: While mediation is generally a more cooperative process, than for example court proceedings, conflicts can still inevitably arise. The starting point will be that solicitors are not present in the mediation sessions themselves, but that does not always have to be the case. If it is thought that solicitors being present could help rather than hinder the mediation process, and everyone agrees, solicitors can also be present during the mediation sessions to advise and support you.

Document Preparation: It is likely that at the conclusion of the mediation, legal documentation to reflect the agreement reached will be recommended. A solicitor can ensure that these documents accurately reflect the agreements reached and comply with any relevant legal requirements. If your solicitor is already familiar with the circumstances of your case, the process of drawing up the documents is likely to be easier, not least because they will have pointed out any issues with the proposed settlement before agreement is reached.

Peace of Mind: Relationship breakdown can be extremely stressful. Having a solicitor by your side can provide you with peace of mind, knowing that you have a professional guiding you through the legal aspects of the process.

Not many relish the prospect of contacting a solicitor, let alone a family solicitor, and here at Franklins we are realistic about that. We try to make the process of instructing us as easy and pain free as possible. We offer an initial appointment for a cost of £195, during which we try to give you an understanding of your legal position and what the future might hold.

If you feel Franklins might be the right firm to help you following the breakdown of your relationship, and you would like to enquire about when your initial appointment could be scheduled, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Getting divorced is often a stressful time. One of the most common questions asked is whether a solicitor is needed for a divorce or not. At a time of potentially substantial change, the added burden of the formal, legal aspects of filing for divorce can feel overwhelming. Consulting a solicitor when going through a divorce is often recommended for several important reasons. In this blog we break down and explore some of the key reasons why having a solicitor can be beneficial…

Legal Knowledge and Expertise: the law surrounding divorce and the related financial matters can be complicated – involving challenging legal processes, paperwork, and legislation. An experienced divorce solicitor has a deep understanding of family law and can guide you through the entire journey, making sure you understand that you know your rights, what to expect, and helping you to make informed decisions throughout the process. As for the mountain of paperwork involved in a divorce – a divorce solicitor can minimise the stress of that for you – by ensuring everything is filled out correctly and submitted on time.

Objective and Rational Advice: Divorce can be an emotional rollercoaster, and it is not unusual for impulsive or irrational decisions to be made as a result. Working with a solicitor can help minimise the chance of that happening, providing objective advice based on legal expertise and experience, supporting you to make decisions that are in the best interests of both you and your family in the long run, even when emotions are running high.

Asset Division and Financial Matters: Dividing assets and determining financial matters can be complicated, especially if there are assets such as shared properties, pensions, and / or debts involved. A solicitor can help to ensure that your financial interests are protected and negotiate a fair settlement for you.

Arrangements for children: If you have children, their well-being and living arrangements are arguably top of the list in terms of priority. A solicitor can help you navigate the law with regard to living arrangements for children, and work towards a fair arrangement which works for all. They can also advise on what maintenance might be payable on an ongoing basis, dependent upon your specific circumstances.

Out of court settlements: Many divorces are capable of being settled outside of court. A skilled divorce solicitor can represent you during negotiations, putting your best case forward and working towards a favourable settlement. They can also draft the legally binding documents that will be needed to protect you and finalise matters properly.

Court Representation: If your divorce needs to go to court, a solicitor can really help, and if needs be, instruct a barrister to act on your behalf. The potential pitfalls of attending court without legal representation are many, and having a solicitor or barrister by your side at such an important stage can markedly improve the chances of your case being properly presented to the court.

Not many relish the prospect of contacting a solicitor, let alone a divorce solicitor, and here at Franklins we are realistic about that. We try to make the process of instructing us as easy and pain free as possible. We offer an initial appointment for a cost of £195, during which we try to give you an understanding of your legal position and what the future might hold.

If you feel Franklins might be the right firm to help you with your divorce, and you would like to enquire about when your initial appointment could be scheduled, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Let’s face it, it’s really tricky to know where to start with this. In the wake of the breakdown of a marriage you will almost certainly be given that standard advice – go to see a solicitor. Most people don’t really have cause to instruct solicitors other than when buying or selling houses, or drawing up their will, so this can feel like a daunting prospect. In this blog we explain where to start.

It is always worth asking around for recommendations. Without one though, most people will start with Google, typing in the question at the start of this blog. Have a look at the firms that come up, consider their websites, and try to get a feel for the firms you find and whether you like the look of them. Ideally, you should look for a firm of solicitors with a “Family Team” – a team that specialises in only family work. You may find firms who specialise in only family work. Be aware though, that means if you want to update your Will or sell your property, which you may well do in the context of divorce, you will need to go to a different firm for that.

Once you have found a firm or firms you like the look of, you need to get in touch with them. This can be by phone, or sometimes via a website chat facility which allows you to message instantly with your details and start the ball rolling, like Franklins does. Quite soon after your initial enquiry though you should be speaking with a real person. Most firms offer an initial meeting, with no obligation to instruct after that. Here at Franklins we offer an initial fixed fee appointment for £195.

Before you speak with anyone though, give some serious thought to the kind of solicitor and firm that you want to work with. You should be trying to get a feel for:

At the beginning it can all feel rather overwhelming. Remember though that this will be all in a day’s work for the solicitor you instruct and that first contact and first meeting is not going to be nearly as awful as you think if you instruct the right firm and right solicitor.

If you feel Franklins might be the right firm to help you with your divorce, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

As Family Law Solicitors we’re often asked questions about injunctions. We’ve answered some of the most common queries below. Injunctions

What is an injunction?

An injunction is an order which can be made by a court insisting that a person or company carry out a certain act, such as handing over assets such as the family car, or, more commonly that they must not carry out a certain act, for example, preventing your spouse from selling off land at an undervalue.

Why would I need an injunction in a divorce?

Sadly, it is not uncommon during divorce proceedings to find normally law-abiding citizens suddenly behaving in a way that is designed to deceive the court and their former spouse.  This usually involves trying to hide assets or temporarily move property out of their name and into the name of a close friend or relative, so that when it comes to disclosing their assets to the courts the total value appears depleted, resulting in the spouse receiving a smaller amount.

If you suspect your former spouse is trying to sell off assets at an under value, or is transferring assets to a friend or relative, then you should seek early legal advice regarding an injunction.

You may also need an injunction in family proceedings if your former spouse refuses to agree to the sale of the matrimonial home, or if you have been the victim of domestic abuse and need protection from your former spouse.

Are there different types of injunctions?

There are many different types of injunctions, and the most commonly used in family disputes include:

Freezing order: A freezing order prevents property being disposed of prior to the conclusion of your divorce (sometimes known as a ‘Mareva’ injunction). It can be used to stop the depletion of other assets, such as gambling or giving away money in a bank account.  Sometimes an order can be made against a relevant company, for example if your former spouse holds most of their assets in a business.  A freezing order can be used overseas as well as in the UK.

Property injunction: A property injunction is used where one spouse refuses to agree to the matrimonial home, or other land or property, being sold. The courts have the power to force the sale of the property and can step in and sign the contracts and transfer deeds needed to give effect to the property sale.   A search order permits the applicant to search premises for recovery of evidence. Although used rarely in family proceedings, they have been permitted to retain documents necessary for a fair hearing.

Occupation order: An occupation order can stipulate who can live in the family home, who can enter the property, and who is responsible for paying the mortgage and other household bills. These orders are typically used in situations involving domestic violence, and the court must be satisfied that you will be at risk of significant harm if an order is to be granted.

Non-molestation order: A non-molestation order is also used on behalf of victims of domestic violence. This stipulates that the person named in the order cannot harass, pester or molest you.  The breach of such an order will have criminal ramifications for the perpetrator.

How do I get an injunction?

You will need to apply to the appropriate court to seek an injunction, and your solicitor will do this by filing a summons with a supporting affidavit.

It is crucial that the right evidence is produced to the court immediately.  Your grounding affidavit, which is a sworn document, must detail why you believe an injunction is necessary and what evidence you have to support it.  Any documents, or other evidence such as text messages, photographs or advertisements should be provided to the court.

By their very nature, injunctions are normally dealt with on an emergency basis and without notice being given to your former spouse (sometimes referred to as an ‘ex-parte’ application).  This means that the court initially only hears evidence from you.  If satisfied that an injunction is needed, the court will then make an order on an interim basis and set a date to allow your former spouse to make their own representations and defend themselves in court.

Can I get an injunction against me dismissed?

Yes, it may be possible to get an injunction against you discharged or for its terms to be varied.

It may well be a surprise to find out that an injunction has been granted against you, and you should speak to our specialist solicitors straight away.

The injunction will have a response date stated, which is when the court will next look at your case. This provides an opportunity for you to attend court and put your side of the story.  However, the injunction will remain in effect until such times as the court discharges it.

For the injunction to be discharged, you will need to provide supportive evidence for your defence which could include the following:

·         to contradict what your former spouse has said in their grounding affidavit;

·         to show that there is no risk of the assets being dissipated;

·         that you will suffer an unjust loss if the order is continued; or

·         that your former spouse has not disclosed all the relevant facts to the court.

How can I defend myself against an injunction?

An injunction can be defended on many fronts, and some common routes include:

·         Proving that you will suffer loss, and accurately documenting this for the court is vital.

·         Showing that your former spouse has not made a full disclosure, when he or she also has an obligation to be open and honest with the court.

·         Demonstrating that information in your former spouse’s affidavit is incorrect and cannot be relied upon in court.

·         Where your former spouse (or their solicitor) has not followed the correct legal process in obtaining and serving the injunction.

·         When your former spouse has delayed in applying for an injunction.

Will an injunction show up on a background check?

Injunctions are not judgments and will not show up like a county court judgment (CCJ) on a credit file.  However, for a pre-employment check, a freezing order in place may cause a delay if a credit check is required.

If a non-molestation order or occupation order is made, then the Police will have a record of it.  They may disclose it if they feel it is relevant to a DBS enhanced search, which is usually required for roles working or volunteering with vulnerable people.

How long does an injunction last?

This depends on the type of injunction granted.

For most injunctions, like freezing orders, they are typically made on an interim emergency basis for a week or two.  The case will then be listed for review, when the injunction may be extended for a longer period of time.  The injunction will not be extended longer than is necessary to give effect to the fair settlement of assets between the couple.  This is normally the conclusion of the divorce proceedings.

For injunctions related to domestic violence, such as non-molestation or occupation orders, they are usually granted for a set period of time, such as for six months or a year.  This is aimed at giving a breathing space following separation, in the hope that the order would no longer be needed.  If, after the expiry of an order, a further incident of abuse occurs, then a further order can be applied for.

Our family department here at Franklins has a wealth of experience in supporting clients in all matters relating to family law. Should you require any assistance in this regard please do not hesitate to contact us on 01908 660 966 (Milton Keynes) or 01604 828 282 for a confidential conversation on how we can help.

No one wishes to be feuding at Christmas time. To help support separated parents during this festive period, we haveparent and child at Christmas put together a few top tips for ensuring that Christmas contact is arranged without problems and disputes.

1. Make proposals in advance

One of the biggest problems we see as Family solicitors in the weeks before Christmas is parents attempting to arrange Christmas contact way into December. It is understandable that both parents will want to spend time with their child or children at Christmas time and therefore it is imperative that proposals are made far enough in advance to allow an open dialogue and negotiations in the child’s best interests. If verbal communication between the parents is not an option they should consider other methods of communication such as text message or email proposals. In the event that the parents are unable to agree directly this also means there is enough time to make a referral to mediation or consult a solicitor to aid in this process.

2. There is no set formula for Christmas arrangements

It is whatever works best for the child but here are some practical solutions.

3. Be careful not to give the child mixed signals and confusion

Many separated parents agree that they should spend Christmas day together to allow the children to open their presents and enjoy Christmas lunch with both parents. Whilst this can work well in some families, where parents are amicable and there are no third parties such as new partners to consider in many cases this simply doesn’t work. Firstly there is the possibility of the child witnessing animosity between their parents – which should not happen any day of the year let alone Christmas. Secondly, by seeing the parents working together and remaining amicable during Christmas day may confuse the child and provide them with false hope that mummy and daddy are going to reconcile. They may find this difficult to deal with when come Boxing day mummy and daddy are back in there separate houses with their separate lives!

4. Gifts

In addition to contact arrangements it may be prudent to have an open dialogue about gift purchases for your child. It is important that neither parent adopts a competition mentality around special occasions. Although your child will no doubt appreciate the latest Disney princess or games console, he/she would benefit far more by seeing that his/her parents can get along amicably and facilitate good quality contact through this special time.

5. Remember that the child or children are paramount

Arrangements must be made to ensure they have an enjoyable Christmas period and spend good quality time with both parents.

There is no better time than Christmas to put your differences aside and work together for your children. After all it is the season of good will.

Our family department here at Franklins has a wealth of experience in supporting clients in dealing with children matters and contact orders. Should you require any assistance in this regard please do not hesitate to contact us on 01908 660 966 (Milton Keynes) or 01604 828 282 for a confidential conversation on how we can help.

 
Blog disclaimer

There has been coverage in the press recently in relation to “Court orders depriving vulnerable children of their liberty“.  Having represented vulnerable Vulnerable childadults in relation to their children in proceedings issued by the local authority, their circumstances can be enormously difficult and often tragic. It could be that the parent or parents have gone through some trauma and for whatever reason not able to cope. Common examples include a mother with learning difficulties or a mother in an abusive relationship which she finds difficult to extract herself from.

Social Services (represented by the local authority) do not take children into care at a drop of a hat and in my experience there are situations where there are no alternatives. It does not have to be the end of the road and provided the parent or parents work with Social Services rather than against. Many of the children concerned do return home, with safeguards put in place. The cost of care proceedings is staggering and eats in the local council’s budget.

That said, where there are concerns in relation to vulnerable children of any age, their welfare has to come first and foremost.

It is not easy to find temporary foster parents able to take in a child who is likely to be traumatised and separated from mother and father. The situation has worsened with the pandemic to the extent that social services in England are struggling to find accommodation for the children.  This has led to vulnerable children, particularly teenagers, detained in temporary accommodation and housed in holiday lets, caravans and even canal boats. These measures have been described by judges as “Draconian measures”.

The burning question however is, what is being done to remedy the situation? Measures need to be put in place sooner than later to give these children a safe and stable environment.

For advice relating to issues concerning children please contact the Family Team at Franklins on 01908 660966 / 01604 828282 or email Family@franklins-sols.co.uk.

It happens time and time again that one spouse will say to their solicitor “I worked really hard to meet the mortgage payments and build up my pension and all whilst my spouse never had to work.” So does this mean those assets shouldn’t be shared upon divorce? 

The way the Court looks at this is when you choose to marry, you choose to share and contributions to a marriage are not just financial. For example, one spouse might stay at home and look after a couple’s children enabling the other spouse to go to work and build the family’s wealth or provide for their future by building up a pension. The one who stayed at home does not have those opportunities.

So what if both spouses work full time but one of them is always the one to drop off and collect the child from child care and take days off when the child is poorly, should they receive more than the other spouse?

This might be particularly relevant currently with many parents having to juggle their careers with home schooling during lockdown. Is their contribution worth more?

Well the answer to this is likely to be no. The roles you assume within a marriage are decisions made as part of the family and as was explained in the High Court case of MA v SK [2015], a spouse is not to be discriminated against for the way in which the parties chose to organise their respective roles during the marriage.

So is there gender inequality in divorce?

No, it matters not which spouse takes on which role within the family, each case will be approached in the same way.

If you are considering separating from your partner and want to talk about your circumstances then please contact our Family Team on 01604 828282 / 01908 660966 or email Family@franklins-sols.co.uk.

When Parliament is prorogued, any bills that have not yet received Royal Assent are dropped. This does not stop the bill being reintroduced after Parliament returns, but all progress made up to the point that Parliament is suspended is lost and the bill has to be re-considered and scrutinised all over again. This means that whilst many post-Brexit laws regarding immigration and trade fall away so does the bill reforming the law of Divorce, Dissolution and Separation, which was set to introduce the now commonly known “No Fault Divorce”.

The need for a “No Fault Divorce” came to the government’s attention after the Supreme Court determined in the case of Owens v Owens that a separated couple must remain married, because they had not demonstrated behaviour that meant they could no longer be expected to the live together as husband and wife. The Supreme Court expressed their concern with the law as it currently stands, but made clear that it is not their place to change the law; that is the role of Parliament. This has caused much campaigning about the need for reform to Divorce Law in England and Wales, so that couples can divorce with less disruption to their families.  It is hoped that Parliament will reintroduce the bill as soon as possible after it resumes on the 14th October 2019.

In addition to the Divorce, Dissolution and Separation Bill the Domestic Abuse bill designed to better explain the type of behaviour that constitutes domestic abuse and encourage victims to report such behaviour has also been dropped. Unlike the Divorce, Dissolution and Separation Bill, the Domestic Abuse bill was at the start of its consultation. However, it has still taken over two years to reach this point and Sir James Munby, the former president of the Family Division, makes clear that this is a vitally important bill and calls for it to be reintroduced as soon as Parliament resumes.

For more information about Family Law, visit our Family Solicitors page.

The new legislative agenda is due to be set out in the Queens Speech in October; if you have any concerns as to how this may affect your own circumstances, then for more information please contact the Franklins Family Law Team on 01908 660966/ 01604 828282 pr email family@franklins-sols.co.uk.