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SEPARATION DIVORCE AND CIVIL PARTNERSHIP DISSOLUTION COHABITATION DISPUTES CHILDREN RESOLVING FINANCIAL ISSUES PRE-RELATIONSHIP AGREEMENTS COLLABORATIVE LAW

Separation

"What are my options?" This is the question most frequently asked by clients with relationship difficulties.

The first option of course is to explore, perhaps with the assistance of Relate or other family consultants, whether the relationship is really at an end or whether there is some hope of reconciliation.

If there is a possibility of reconciliation, couples will often choose separation, either informal or formal. Other couples choose the separation route if they intend to divorce on one of the separation grounds, two years' separation with consent or five years' separation, to avoid the need for either to make formal allegations of adultery or "behaviour" against the other.

Even if the separation is informal we would recommend that you seek legal advice as soon as possible. It is obviously important that any significant decisions you take are based on full information and that you do not inadvertently take any steps that would prejudice your legal position or increase hostilities. We offer an initial free half hour interview during which we are able to give an overview of your legal situation. Sometimes clients wish to take action immediately, but frequently they need time for careful reflection, and will not return for weeks or even months.

It is of course possible to formalise agreement on financial matters in a Separation Agreement, which we can prepare for you. If the separation is followed in due course by a divorce, the separation agreement may become the divorce settlement, but only if full financial disclosure has been given and each party has had separate legal representation. If some exceptional and unforeseen circumstances arise between separation and divorce, for example serious illness or redundancy, the financial terms have to be re-negotiated. The only way to achieve financial finality is to have a formal Consent Order at the time of divorce or dissolution.

An important point to note is that pension sharing which is available on divorce or dissolution is not possible to achieve in a separation agreement. Thus clients who are approaching retirement age, or already retired, often seek the security that a pension sharing order can bring.

Divorce and Civil Partnership Dissolution

A divorce or dissolution, which brings a marriage or civil partnership to an end, is a serious step to take and can have a significant impact on all the members of a family, including the children. When a relationship runs into difficulties most parties consider the full range of options, including whether there is any possibility of reconciliation (which can be explored with the help of experienced professionals such as Relate or other family consultants), separation, perhaps on a trial basis, and divorce or dissolution.

If you wish to seek a divorce or dissolution we will advise you on the grounds and the procedure to be followed. Unless the divorce or dissolution is defended, it is essentially an administrative procedure and is dealt with separately from any proceedings which may be necessary relating to finances or children. We will prepare the necessary paperwork for you and guide you through the process. We will normally do this in accordance with the relevant Law Society Protocol which provides that it is good practice to notify the other party in advance of the intention to issue proceedings and to try and agree the wording. The purpose of doing it this way is to try and reduce hostility as much as possible.

However where there are international elements to the divorce or dissolution it may not be possible to comply with the Protocol. For example, if one or other of the parties was born abroad, the parties have lived abroad or have even spent significant parts of the year in a holiday home overseas, it is possible that the courts of another country might have jurisdiction over the divorce. Where there are competing jurisdictions we will give you detailed advice, often in conjunction with our network of contacts in family law practices overseas, so that you can make an informed decision as to where you would like to proceed. In these circumstances it may be important to act quickly and unilaterally to secure the jurisdiction of your choice.

Cohabitation Disputes

More and more couples are now choosing to live together, often without much thought for the legal and financial consequences. Many do not realise that the concept of the "common law husband" or "common law wife" is an urban myth.

Changes in the law are expected soon, but at the moment cohabiting couples are largely treated as legal strangers. There can be unexpected and uncomfortable consequences when a relationship breaks down and these can be quite complex cases to resolve.

Disputes will often involve the extent of the parties' respective entitlements to ownership and/or occupation of the home as well as financial support for the children. There is no special legal regime governing cohabitation as there is for married couples, and all issues relating to property and finances, are governed by the general rules of trust and property law. If a negotiated agreement cannot be reached it is possible in appropriate cases to seek the assistance of the Court.

Issues relating to children are more straightforward in that the Children Act does not distinguish between the children of married and unmarried parents. The welfare of the children is the paramount consideration in all cases.

We have considerable experience and expertise in this area and can advise you on all aspects of the breakdown of your relationship.

Children

The most important issue for most people is the welfare of the children of the family. After divorce / separation you will both remain parents and you will need to make arrangements for co-parenting in the future.

Research has shown that children normally cope with divorce better if the parents are able to co-operate and if the children maintain a good on-going relationship with both parents. Above all, children need reassurance that both parents love and care for them and will always be there for them.

We do everything possible to help clients reach agreement on the issues that may arise which can include:

We encourage parents to use Mediation or Collaborative Law in appropriate cases, although sometimes, and as a last resort, it will be necessary to involve the Court, particularly if an emergency has arisen.

In all cases, the Children Act requires that the welfare of the children should be the paramount consideration. We will focus on the interests of the children and we will provide you with practical and legal advice in a calm and constructive way.

Resolving Financial Issues

When a couple separate and/or divorce financial issues are normally extremely important. Where is each party going to live? How are their income needs going to be met? How are the family assets going to be divided?

In the immediate aftermath of separation there are often urgent interim financial issues to be resolved, particularly how the day to day living expenses of both parties are going to be met. Sometimes it is essential to take steps to ensure that assets are preserved and safeguarded. We will provide you with practical and legal advice and guidance during this difficult period.

Turning to long term solutions, there have been many misleading headlines recently in the national press. On divorce the law does not provide for an automatic entitlement or fixed percentage division of matrimonial assets or income. Instead the courts have considerable discretion to achieve a fair result, taking account of all the circumstances of the case. The first consideration is always the financial needs of any children. Then a number of factors are taken into account, including the resources available, the length of the marriage/partnership, the ages of the parties, any particular needs or responsibilities and the contributions they each have made, not only financial but also looking after the home and caring for the family. Thus, while equality will normally be the starting point, it will not necessarily be the finishing point.

Once we are satisfied that all the assets have been disclosed and properly valued, and we have discussed with you in detail what your priorities are, we will advise you on the weight to be given to the various factors in the circumstances of your case.

We will discuss with you the range of possible outcomes available to you, so that you can make sensible and informed decisions.

We also believe that it is very important to resolve financial issues in a cost effective way. After all, the legal costs of disagreement have to be met out of the assets available for the parties to share.  The costs of protracted litigation can be high and the emotional wear and tear on the parties very damaging. We do everything possible to help our clients reach a speedy, amicable and fair agreement on financial issues.

Pre-Relationship Agreements

When you are about to move in with your partner or get married/enter into a civil partnership, it may seem cynical and unromantic to consider the financial consequences if things go wrong, but it is probably statistically sensible. More importantly, it can help to avoid unexpected and unwelcome consequences and the expensive costs of litigation.

Collaborative Law

Collaborative law is an exciting way to resolve family cases. The parties and their solicitors agree that they will work together to sort things out away from the Court in a series of face to face meetings. Instead of conventional negotiations by letter and telephone you both agree to resolve issues round the table. You have your own lawyer with you all the time and thus benefit from legal advice throughout.

The main advantage of the process is that you are in control of the agenda, the pace and the outcome. You can discuss the things that worry you most and you have control of the key decisions about the future of your family. Experience shows that in the collaborative process parties are often willing to explore a wider range of creative, tailor-made solutions than would arise in more conventional processes.

If it is necessary to involve other professionals such as accountants, pension specialists, financial advisers, valuers, and child experts, these people will be jointly instructed and will attend round table meetings if necessary.

Collaborative law can be particularly beneficial where there are children. Parents continue to be parents after relationship breakdown and it is useful to be able to establish a constructive dialogue for co-parenting. Also of course children benefit from knowing that their parents are working together to sort things out.

Collaborative law is not always appropriate, for example if there has been domestic abuse. Lynn Henderson is an experienced collaborative lawyer who will be able to advise you as to whether Collaborative law would be suitable in the circumstances of your case.