Explanation of New No-Fault Divorce Rules

Explanation of New No-Fault Divorce Rules

Explanation of New No-Fault Divorce Rules

On 25 June 2020, The Divorce, Dissolution and Separation Bill received Royal assent and became an Act of Parliament. The new Law will come into effect on 6 April 2022 and promotes no-fault divorce by removing the requirement to assign blame in divorce applications or waiting for years before making an application for divorce.  The aim of the changes is to reduce the impact of unnecessary conflict on couples and children during a divorce. The divorce process will also now be entirely online.

Under a no-fault divorce, a couple can file for divorce once they have been married for at least 12 months.

    • There is no longer a need to establish one of the previous five facts required for divorce. The new requirement is only for a statement to be made that the marriage has irretrievably broken down.
    • It will no longer be possible for one party to contest the divorce, although there will still be some grounds that will allow an application to be challenged. The Court must accept the statement and make a divorce order.
    • Couples will be able to make a joint application for divorce.
    • A Decree Nisi will now be called a Conditional Order and a Decree Absolute will be called a Final Order.
    • A new minimum time period of 20 weeks from the date of the application to the date of the Conditional Order will be introduced.
    • A further 6 weeks will then have to pass before individuals can apply for a Final Order. This change allows time for agreement to be found in respect of arrangements for children and finances. If you do not apply for a Final Order within 12 months of getting the Conditional Order, you will have to explain the delay to the court.
    • It will be necessary to have a Conditional Order for divorce before the Court can make an order finalising financial arrangements. This applies whether the terms are agreed between the parties or the Court imposes a financial order. There are significant implications of the Final Order, and it is best to finalise any financial settlements before applying for a Final Order.

As with any divorce, it is almost impossible to estimate a total cost because each case is different. However, with the no-fault divorce, it is hoped that more amicable and constructive discussions will lead to better and less expensive outcomes. As ever though, this will come down to the personalities of the couple involved and the individual circumstances of their case.

Elaine Parkes Solicitors have family law solicitors in offices across the East Sussex and Kent including Brighton, Hastings and Tunbridge Wells and are available now to discuss this significant legal development in UK divorce law.

Contact us now to arrange an appointment to discuss how Elaine Parkes Solicitors can help you.

The Impact of Coronavirus on the UK Family Courts

The Impact of Coronavirus on the UK Family Courts

The Impact of Coronavirus on the UK Family Courts

The family court systems, like so many things, have been significantly impacted by the Coronavirus pandemic. From travel bans to lockdowns, social distancing requirements to legislation reform, the family court experience following this year may look very different.

Some cases have switched to remote hearings. Some have been postponed, and many Elaine Parkes Solicitors clients have contacted us with concerns about how the crisis will impact their legal proceedings.

Alongside this disruption, and pressure on an already stretched court system, there have been substantial increases in the number of domestic abuse situations.

According to the Family Court Statistics, these cases rose by 24% in the quarter to June 2020 compared to the same period in 2019.

Here we’ll recap how the virus has impacted the family courts, and what new measures might affect the format and timing of new cases – and what options are available to you, if you are keen to move forward.

Remote Family Court Hearings

One of the positive developments is that the family courts have progressed in their capacity to facilitate remote hearings. In simpler cases, and where the participants have the requisite technology, a video conferencing solution enables a judge to hear a case outside of the courtroom.

This option is usually faster, and more comfortable for participants who can attend from their home, or their solicitors’ offices, without the formality of a court hearing.

Where there are limited hearing spaces available, priority is given to those more serious cases where a swift judgement is crucial.

Due to the speed offered by a remote hearing, divorce cases in early 2020 were resolved faster, with 54% of hearings held via video call – compared to just 28% in the year before.

The average time taken for Decree Nisi and Decree Absolute hearings has both reduced.

However, all other types of family hearings have taken longer to resolve, with increasing demand and reduced court availability leading to many cases considered non-urgent being delayed or postponed.

Cases around care orders and child supervision continue to take longer. The average time for such a case to reach the first disposal is up by seven weeks from 2019, at 40 weeks during the quarter July to September 2020.

In response, new venues have been created, called the Nightingale Courts. There remains a significant backlog, which does mean that new cases will potentially take longer to be heard for at least the next few months.

Where circumstances are considered urgent, there are emergency hearings available – do get in touch if you have a family matter that requires expedited legal support.

What Can I Do if a Family Court Case Has Been Put on Hold?

The courts are one of many ways to resolve a family matter. Our teams deal with every aspect of family law, from separations to custody agreements and cohabitation to transferring ownership of assets.

While it may be necessary to wait for a court date, several other options could potentially help you reach a resolution faster.

Please note that most private proceedings are not eligible for Legal Aid – but if you’re interested in learning more, do get in touch, and we can advise around anticipated costs and timescales.

Alternatives to court hearings include:

  • Financial Dispute Resolution Hearings
  • Mediation
  • Arbitration
  • Collaborative Law

A Financial Dispute Resolution Hearing (FDR) is often preferable where a case involving financial matters has been delayed indefinitely in the court system.

An FDR is a private hearing and can be a way for the parties involved to reach an agreement, with a Judge’s indication about what outcome they would consider fair.

Deciding to opt for a private FDR can be relatively expensive. Still, where divorce proceedings have been postponed for a substantial period, and where the parties involved are keen to move forward with a solution, it may be viable.

You can also hold a private FDR at a location of your choosing, opt for a video conference where an in-person hearing is not possible, to ensure proceedings can go ahead around pandemic movement and social distancing restrictions.

Can I Opt for Arbitration or Mediation to Resolve a Divorce Case?

Another option is to consider mediation or arbitration – both of which are private proceedings carried on outside of the court system, and available at your convenience.

There is also an option called collaborative law. This means you and your ex-partner meeting with your respective solicitors, who must be trained in collaborative law, and trying to reach a mutually agreeable outcome.

A collaborative law process included a legally binding consent order, where you agree on how you will share your finances. You can then move ahead with a divorce petition, without any contention about what will happen to your jointly owned assets.

Family arbitration is another potential solution, whereby you appoint a Family Arbitrator who will make a decision. The benefit is that you can choose your Arbitrator and decide when and where the hearing takes place.

As with a decision passed down by a judge, the Arbitrators’ decision is final and legally binding, and although it can be less costly than a court hearing, you do need to budget for the arbitration fees involved.

Mediation can also be quicker than waiting for a rescheduled court date – although you and your partner will need to be prepared to discuss your situation, and try to reach an amicable resolution.

A Mediator cannot make a decision for you but will help you negotiate and reach a conclusion.

In any of these alternative scenarios, you will need to disclose information such as:

  • Your finances, assets and debts.
  • Bank and savings accounts.
  • Outgoings and living expenses.
  • How much you earn.

If you are considering your options, and would like to conclude a matter of family law without waiting for a court date to be scheduled, or rescheduled, give the Elaine Parkes team a call. We will help you decide on the most appropriate option.

A lot depends on what issues require a resolution and the circumstances. Still, if you are struggling with court delays and the impact on your family, there may be a suitable solution available.

The Role of Family Courts in Domestic Abuse Situations

The Role of Family Courts in Domestic Abuse Situations

The Role of Family Courts in Domestic Abuse Situations

Domestic abuse, in any form, is a terrible experience. While moving away from such a situation and seeking legal support with divorce proceedings, and child custody matters are vital, it can be a significant challenge for abuse survivors.

Tackling the court system, potentially fearing a confrontation with an abusive ex-partner, and the need to ensure a safe future for children can all add a substantial weight of stress.

Firstly, we are here to help. Elaine Parkes Solicitors are experts in every aspect of family law and can provide confidential advice to ensure you get the support you need.

From emergency injunctions to safeguarding your home, there are very many ways to protect yourself and your children, with Legal Aid available to assist in covering any associated legal costs.

It is essential to know how the family courts can help and what resources they offer to support domestic abuse victims. While court proceedings can be daunting, the process is there to formalise your protection and rights, with the backing of the legal system to enforce any rulings passed down by a judge.

Here we have summarised what options you have to move on from an abusive relationship, and how the UK courts can help you navigate the process successfully.

For more information and a private discussion about the best route for you, please do get in touch with our Hastings or Brighton teams covering much of West and East Sussex.

How the Domestic Abuse Bill Has Changed the Court Experience

The Domestic Abuse Bill is part of a significant overhaul of the family court system. It seeks to address imbalances that have previously made court proceedings challenging for domestic abuse victims.

Examples of reforms include:

  • Improved barring order systems, empowering judges to prevent abusers from protracting the court process and forcing victims to keep attending further hearings.
  • Increased protection for victims to avoid confrontations, including separate entrances to the court building, and protective screens.
  • The recognition that abuse is not only physical but can include emotional abuse, coercion, economic abuse and controlling behaviours – all of which are treated equally seriously.
  • Prevention of cross-examination of victims by perpetrators of abuse.
  • Inclusion of domestic abuse protections for victims outside of cohabiting scenarios – such as family members and ex-partners who were not living together when the abuse occurred.

In the interest of supporting victims in expediting the court process, judges have been awarded greater powers. That includes the ability to prevent aggressive questioning, to prevent re-victimising by exposing abuse sufferers to unnecessary stress.

Initially, such changes will be introduced as a pilot scheme, with judges encouraged to intervene when they deem it necessary, and control lines of enquiry.

These changes are vital to supporting domestic abuse survivors and ensuring that hearings – whether criminal or relating to matters of family law – have a successful outcome without creating further trauma.

Many family matters where there has been an instance, or instances of domestic abuse, require interventions from Cafcass, the Children and Family Court Advisory and Support Service.

If I Divorce an Abusive Spouse, Will I Have to Confront Them in Court?

In short, no, you can proceed with a divorce, or a child custody hearing, for example, without having to confront an abusive ex-partner directly. Courts are there to hear a case and pass a decision, and must not expose domestic abuse victims to further potential harm.

Given changes to court hearing formats, and the introduction of video conferencing hearings where in-person proceedings are not possible, the family courts’ capacity to facilitate remote hearings has vastly improved.

In November 2020, the Family Justice Council published a guide outlining how remote hearings and hybrid hearings (where there is a mixture of in-person and remote hearings) should be held.

There are many different options, the most suitable of which will depend on the circumstances and what sort of case is being heard, by which part of the court system.

  • Child safety is paramount, and consideration must be made to what information a child might be exposed to – for example, if a parent is recounting an abusive situation.
  • Video conferencing may be blurred to disguise the background from an abuser.
  • Vulnerable people may be allowed to join remote hearings via audio-only, and are not required to give evidence or attend via live video stream where this poses an issue.
  • Solicitors or lawyers may host video hearings from a neutral, safe space rather than attending from a private home.
  • Hybrid hearings can include the victim and their legal representation in the courtroom, with the abuser attending via a remote link – this is essential where the court does not have the facilities for separate entrances, waiting rooms and screens to protect the victim.

If you have suffered domestic abuse, and wish to explore the options to safeguard you during a family court hearing, do get in touch with our teams. There are many ways to protect your privacy and well-being, and the Elaine Parkes Solicitors experts can support you in implementing these measures.

Should you be concerned about forthcoming legal proceedings, and potential exposure to conflict due to an abusive situation, there is help available to keep you safe.

How Can Cafcass Help in a Domestic Abuse Situation?

Cafcass represents the interests of children in family courts and can decide what actions are necessary to protect young people’s interests.

They are an independent organisation, and work with, although separately from, the courts, health authorities and social services.

In some cases, the family court may ask Cafcass to assess a situation, which might involve interviewing both parents and children. There is a specific framework that Cafcass follows where domestic abuse has occurred or is suspected.

Family courts hear cases relating to matters such as child custody, adoptions, injunctions, and divorce proceedings, and Cafcass helps children through the process, often appointing a Family Court Advisor to assist.

If you are facing a legal situation with an abusive ex-partner or would like help navigating the family courts, Cafcass can provide support to alleviate any pressures and ensure your children are safeguarded throughout.

For more information and guidance about family court hearings, legal support following a domestic abuse situation, and professional advice to secure a successful outcome for you and your family, get in touch to arrange a good time to talk.

Reaching a Divorce Settlement – Private Arbitration vs Formal Court Proceedings

Reaching a Divorce Settlement – Private Arbitration vs Formal Court Proceedings

Reaching a Divorce Settlement – Private Arbitration vs Formal Court Proceedings

Divorce can feel like a daunting prospect, but it doesn’t have to be a long, drawn-out process involving costly court hearings.

The team at Elaine Parkes Solicitors works with a wide variety of clients across East and West Sussex. We always look for the best options for you, be that mediation, arbitration or something else that we feel will be a preferable resolution to enable you to move forward.

There are many benefits to considering private arbitration, not least being that the process usually provides a faster way to reach an agreement while courts remain closed or under limited capacity following the Coronavirus pandemic.

Let’s look at the difference between mediation and arbitration, and when these options are preferable to formal court proceedings.

What is the Difference Between Divorce Mediation and Arbitration?

Arbitration is a process where a couple meets with an independent Arbitrator, and works through negotiations. The Arbitrator will award a decision on any disputed issues.

Arbitrator’s Awards cannot usually be appealed. An arbitration process can be used alongside in-court proceedings if the divorcing couple has reached an impasse and needs assistance to reach a settlement.

Mediation is slightly different, in that the parties negotiate directly, and the Mediator does not have the power to make a decision.

Instead, they work with both divorcing people to reach a mutually fair decision.

Such hearings are private and can be used to negotiate the outcome of many aspects of a divorce, from financial considerations to making childcare arrangements.

Arbitrators are professionals, and usually experienced solicitors, legal executives, retired judges or barristers. You can choose which Arbitrator to appoint, which is valuable if there are specific issues that require expertise in that field.

Both divorce mediation and arbitration are usually carried out in a neutral place, such as a conference room at your solicitors’ office. Meetings can be scheduled at your convenience – rather than waiting for a court date to be assigned, which is heavily dependent on capacity and availability.

For many of our clients, the key benefit to arbitration or mediation is that it allows you to remain in better control of the process, and feels more manageable and less pressured than the formality of the court.

Most people going through a divorce try to balance the desire to have everything completed as quickly and smoothly as possible, while also making sure they reach the best outcome and achieve a fair distribution of assets – which is where these alternatives to court proceedings deliver.

Are There Advantages to Using Private Arbitration in Divorce Proceedings?

There are many different ways in which arbitration might be more appealing than a court hearing – some of the most common reasons our clients opt for arbitration include:

  • Reaching a resolution faster than waiting for a court date.
  • Being able to choose your Arbitrator based on your budget and any specific issues that require expert oversight.
  • Control of the situation, with the ability to decide which issues the Arbitrator will rule, meaning you don’t need to cover old ground on matters which you have already agreed upon.
  • Flexibility, with private meetings and scheduling appointments at your mutual convenience.
  • Confidentiality, a crucial factor for many divorcing couples who do not wish private information to be publicised or reported in the media.
  • Potential to save on costs – Arbitrators must, of course, be paid, but by restricting the process to those matters where you require an independent decision, you can reduce the time needed and reach outcomes more quickly.

We appreciate how tense a divorce can be, and never underestimate the need to have some elements of the process that you can stay in control of.

During a stressful period, being able to travel to our offices in Hastings or Brighton, rather than having to attend a fixed court date is often more convenient for all parties.

If you do need to attend court or require a hearing in addition to arbitration proceedings to agree on a specific point of contention, the appointed location will depend on what sort of issues are to be decided.

Usually, the Family Division of the High Court deals with matters of family law. That means being heard by a district judge in a County Court or Family Proceedings Court (a type of Magistrates Court with a speciality in family matters).

The Regional Divorce Centre covering Hastings, Brighton and much of the southeast is in Bury St Edmunds. Matters of family law relating to child custody are usually heard at Brighton County Court – although much depends on the situation and what type of issues require a court hearing.

There are options to have a Family Court hearing remotely, via video conferencing, in urgent situations – let us know if you require emergency support and we will assist you in finding the help you need.

You can find the nearest court to you by using the Gov.uk service online.

Is Private Arbitration Cheaper Than a Divorce Court Hearing?

Of the many considerations when going through a divorce, costs are always an important one.

While it may be essential to seek professional help to decide on property ownership rights or agree on how child custody is divided, it remains critical to be able to manage the financial burden associated with court hearings or legal fees.

Arbitration isn’t necessarily a cheap process, but given your ability to manage which issues are decided on by the Arbitrator, you can minimise the required time and reduce the overall costs.

Please note that you cannot get legal aid to appoint an Arbitrator, and that amount it costs depends on how long the proceedings take, where you live, and which Arbitrator you select.

However, divorce hearings can be substantially more expensive, and often run into thousands of pounds depending on the case’s complexity.

As a rough indication, a straightforward arbitration process can cost in the region of £1,000 – which you and your ex-partner will usually split as a shared expense.

The key to a successful arbitration is to appoint a professional who has sufficient experience in family law. The Elaine Parkes Solicitors teams in Hastings and Brighton can recommend outstanding local family Arbitrators, who offer flexible, efficient services to reach positive outcomes to finalise your divorce and reach a fair conclusion.

If you are interested in private arbitration or would like more information about how the process works, please get in touch. Our teams are always available to help guide you through your divorce options, with advice on the ideal proceedings for your circumstances.

Why Cohabitation Agreements are Crucial for Unmarried Partnerships

Why Cohabitation Agreements are Crucial for Unmarried Partnerships

Why Cohabitation Agreements are Crucial for Unmarried Partnerships

Families come in all shapes and sizes and living together as an unmarried couple, or house sharing with friends is common.

Here in the southeast, property prices continue to be among the highest in the UK, so purchasing your first home is a challenge for many people. Particularly in Brighton, shared ownership house purchases are a popular way of getting onto the property ladder.

While we’ve all heard of common law marriage, the reality is that an unmarried couple does not have the same financial rights as those in a civil partnership or marriage.

Let’s consider how cohabitation agreements work, and why they are vital to protect your interest in your home should anything happen in the future.

What are the Benefits of a Cohabitation Agreement?

Many Elaine Parkes clients seek such an agreement when deciding to buy a property, or when another life event occurs, such as having children – but there is no bad time to think about your future.

Just as people with significant personal assets might consider a prenuptial agreement, a cohabitation agreement is a ‘just in case’ provision that ensures both you and your partner have security in place.

Many complex scenarios can arise where an unmarried couple separates, and own property together:

  • If you own a home together, then usually ownership will be presumed to be shared equally.
  • Should a property be in the name of one partner – which is common when a couple moves in together to an existing home – that individual retains the property’s legal ownership.
  • Non-legal claimants need to prove that they are entitled to a proportion of the home, and will need to file a claim under the Trusts of Land and Appointment of Trustees Act 1996. This process can be lengthy, expensive, and requires expert advice to stand a chance of being successful.
  • Rights to a property where your name is not shown on the deed must be evidenced by records of financial contributions and documentation that indicates that you were considered an equal owner of the property in effect if not officially.

Claims against a property owned in the name of an ex-partner are possible. Still, a cohabitation agreement is a sure-fire way to reduce the stress, time, and inspections of your personal finances that such a claim requires.

Agreements are also valuable in a rented property scenario. They ensure that both partners agree to things such as financial obligations, and who will take over the tenancy should the relationship come to an end – particularly if only one person is named on the rental agreement.

Which Areas are Covered in a Cohabitation Agreement?

Your agreement with your partner is personal to you – and can cover a wide range of areas.

The essential factor is to discuss what you’d like to include and make joint decisions about the agreement’s provisions.

All parties must understand what the agreement means and seek independent legal advice before signing. If you are unsure about the best structure for your cohabitation agreement, do get in touch, and the Elaine Parks Solicitors team can provide guidance.

Some of the conditions of a cohabitation agreement might relate to:

  • Property ownership and obligations to cover the associated mortgage or rental costs.
  • Financial assets including joint bank accounts, savings and pension schemes.
  • Other assets either bought while cohabiting or before the relationship.
  • Arrangements for children, such as contributing to costs and living expenses.
  • Who will house pets should the relationship break apart.

As you can see, a cohabitation agreement isn’t solely about your ownership rights to a property. It also covers many aspects of living together, including considerations about the rights of your next of kin.

Many partnerships also look at other safeguards, such as putting a Will in place alongside a cohabitation agreement.

Once you have a cohabitation agreement in place (which takes the form of a deed), you may need to update it should any significant events happen, such as selling a property, buying a substantial asset or having children.

Who Can Enter Into a Cohabitation Agreement?

This sort of deed isn’t solely for romantic couples that decide to live together – they are equally relevant for people who share a property in any other set of circumstances.

You can tailor your agreement as required, for example, including overseas assets, such as a holiday home, according to the law in the country where it is held.

Cohabitees who require an agreement might be:

  • Individuals who share a property.
  • Co-tenants of a home.
  • Friends or relatives that live together.
  • Co-parents who live in the same home but are not in a relationship.
  • Romantic couples who are not married or in a civil partnership.
  • People who rent a property together for business purposes.

Do I Have Automatic Rights to My Home if Cohabiting with an Unmarried Partner?

The reason a cohabitation agreement is crucial is that legislation is not always relevant to different living circumstances.

If one partner is named on a deed of ownership or tenancy agreement, it can take a significant amount of time to file a claim, should that relationship end.

In some cases, it can also be challenging to find evidence to show the intent of the original informal agreement. This must prove that, when you and a partner initially moved in together, your mutual understanding was that you both had the same rights to the property you shared.

Should a relationship break down be contentious, that might mean needing to submit bank statements or proof of financial transactions showing who paid the rent or mortgage payments, and which partner covered costs such as utility bills and council tax.

There is a Bill called the Cohabitation Rights Bill, which has been in circulation for several years – and had its first reading in the House of Lords back in February 2020.

In time, should the Bill be passed, it would mean that cohabitants have automatic financial protection, whether relating to cohabitants who have gone their separate ways, or when a person passes away and is survived by a cohabitant to whom they were not married or in a civil partnership with.

However, in the meantime, it remains vital for cohabiting partners to be proactive about protecting their rights and entitlements.

A cohabitation agreement is an excellent way to clarify exactly what those rights are, as a safety net for both partners.

For more information about cohabitation agreements, and what safeguards they offer, get in touch with the Elaine Parkes Solicitors team to arrange a good time to talk.