Q: Alan and Bertha have decided to separate but Alan has strong objections to divorce due to his Catholic beliefs. Is there an alternative to divorce for them?

A: Yes, they can apply to the Family Court for a Judicial Separation Order (JS). This order releases the parties from their marital obligations without ending the marriage, which might be more acceptable to Alan.

Q: What is the procedure for obtaining a Judicial Separation Order?

A: The procedure is similar to obtaining a divorce but it is not necessary to state that the marriage has irretrievably broken down. The application must be made on paper to the Court, not via the Divorce Online Court portal. There is no Conditional Order of Judicial Separation; the Court will fix a hearing date to pronounce the JS Order once it is satisfied it has jurisdiction and the marriage is valid.

A: Bertha can acknowledge service of the JS application and file a formal response (an Answer). She can then issue an application for divorce within 21 days of acknowledging service and the matter will then proceed as a divorce.  It is therefore sensible, if application is made for Judicial Separation, that the couple agree on this method for moving forward.

Q: Are financial remedies available if Alan and Bertha cannot agree on finances?

A: Yes, the court can make all the financial orders on a JS Order that it can on a divorce, except for a Pension Sharing Order and a Clean Break Order. The court can make a Pension Attachment Order instead, which provides payments from the holder’s pension upon retirement.

A: They cannot divorce within the first year of marriage but can apply for a JS Order for legal recognition of their separation. After one year, they can apply for a divorce if they wish.

Q: Does a JS Order affect gifts in wills between spouses?

A: No, gifts in Wills are not revoked by a JS Order. However, if Alan dies without a Will, after obtaining a JS Order, Bertha would receive nothing from his estate as she would be considered to have predeceased him.

Q: Are Judicial Separation Orders available to Civil Partners and same-sex married couples?

A: Yes, all the issues set out above apply equally to Civil Partners and same-sex married couples.

A: Yes, it is advisable to get legal advice on Wills and the financial and tax consequences of separation. Early legal advice is important to understand the best ways forward and steps to be taken.  Our specialist Family Law Solicitors at Elaine Parkes are ready to advise and help .

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When a couple are considering financial issues on divorce, the first step is to ascertain what is in the matrimonial pot, i.e. what is Matrimonial Property. The Court needs to know this before a financial settlement is made and property/assets divided. Matrimonial Property will generally comprise the matrimonial home and assets (savings, investments, shares, property, pensions, antiques and so on) built up during the marriage and which usually arise through the joint or individual efforts of the parties.  An inheritance does not easily fall into this definition of Matrimonial Property as it has not arisen as the result of the efforts of either party.  

It can be regarded as Non-Matrimonial Property. However, that does not mean that it is automatically excluded from being taken into account by the Family Court when looking at finances.

The Court will apply the sharing principle to Matrimonial Property, so that it is divided equally between the parties.   The Court can depart from an equal division if the needs of the parties require that, for example one party earns less than the other and their housing needs cannot be met unless the matrimonial assets are divided other than equally.   

The Courts have also applied the principle of ensuring that a parties’ needs are met by taking into consideration Non-Matrimonial Property and dividing that between the parties, although not necessarily in equal shares.  The sharing principle does not apply to Non-Matrimonial Property, so it is not divided equally, but such property can be used to ensure that a parties’ needs are met. It has therefore followed that the Courts will also apply the same principles to inherited property as, strictly speaking, it is Non-Matrimonial Property and, in some instances, will be used in a settlement.

Although every case will, of course, turn on its own particular facts, some broad principles can be sketched out.  Where property is inherited during the marriage, and separation takes place several years later, it is likely that property will be taken into account, but not necessarily divided equally. 

In this scenario a further distinction can be drawn.

Where the inherited property has been used within the marriage (for example a legacy of £50,000 has been used in part by the couple to pay off debts or buy a new family car) then it can be regarded by the Court as having become, in  part or whole, Matrimonial Property.  It has become what the court describes as “matrimonialised”.   The property can therefore fall to be divided between the parties, although not always equally.

In a case in 2022, the High Court decided that, although the husband’s business assets were derived from inheritance, some of those assets were used as investments during the marriage.  The wife had also worked in the business as a Director, therefore those inherited assets had been matrimonialised and were taken into account but discounted by 50% (so only one half was taken into consideration when dividing the assets) to reflect their inherited origin.

Inherited wealth that has been used wholly or partly within the marriage for the benefit of the couple and their children is likely to assume a matrimonial quality, either in whole or part, and be taken into account on divorce.

Where parties separate shortly after one of them inherits property, there will be less scope to argue that the property should be taken into account unless the parties’ needs require the property to be “invaded”, as the Courts have put it.  There will have been less time for the inherited property to be matrimonialised and therefore taken into account as matrimonial property, in whole or part.

These principles can also apply where the property is inherited after separation.  The Courts have concluded that the assessment of the parties’ finances must take place at the date of any trial, which will often take place some time after separation.  Therefore, the inherited property will not automatically be excluded and the principles set out above will apply.

There are certain types of property which can, on occasion, be treated differently by the Courts. For example, an heirloom of both financial and sentimental value which was intended to be passed down through the generations of a family could well be dealt with differently to an inherited portfolio of stocks and shares.

In one case from 2021, the wife had inherited Trust assets that had passed down through her family which, absent the divorce, were intended to pass on to future generations. The husband had managed the assets, but they remained separate and had not been “mixed” with other matrimonial assets and his management had not significantly increased their value. The fact that they had remained separate and were intended to be preserved for future generations led the Court to hold they were not matrimonialised and therefore not subject to the sharing principle.

Each case depends on its own circumstances. Inherited property will not automatically be excluded.  The longer the time that has elapsed since the inheritance equates to the likelihood of it being regarded as Matrimonial Property, especially if the inheritance has been used within the marriage.  However, as will be seen from the 2021 case referred to above, even if it appears that the asset has been used during the marriage, this does not always mean the inheritance should be taken into account.

Even if the inheritance is not used at all within the marriage, it could still be taken into account by the Courts (although not, as a starting point, shared equally) if the needs of the parties’ are such that it has to be “invaded”.

Written by Simon Brown

In every case where issues of inherited property arise, it is always best to get specialised legal advice.  Call now to speak to our experienced Family Law Solicitors about your matrimonial finance matter.

As the school holidays approach, arrangements for children may become more complex. Separated parents do not always agree on holiday plans for their children. What can one parent do if they do not agree to the holiday plans of the other parent?

Holidays Abroad & Outside of the Jurisdiction of the Court

Where A Child Arrangements Order (CAO) is in place

Where a CAO is in place, then the person who is named as with whom the child lives is entitled to take the child abroad and out of the jurisdiction for a period of up to, but less than, a month. They do not need the consent of the other parent to do this. Should the period be for a month or longer, then the consent of the other parent would be required.

In the event that either parent does not approve of a planned holiday (of less than a month) they can apply to the Court for a Prohibited Steps Order (PSO) to prevent the child being taken on the holiday. The Court will decide the application on the basis of what is the best interests of the child – the child’s welfare will be paramount. Should the Court be of the view that the holiday will be in the best interests of the child, then it will be allowed to go ahead.

It is also open to the parent who is proposing a holiday for a month or more (where there is no agreement) to apply to the Court for a Specific Issue Order (SIO) permitting the child to go on the holiday. Again, this will be dealt with in accordance with the best interests of the child.

Where no Child Arrangements Order is in place

Where there is no current CAO, the parent intending to take the child abroad would need the consent of the other parent. Should the travelling parent not obtain consent, but take or send the child abroad (where the child is under 16), they will be committing the offence of Child Abduction. It is, therefore, prudent to obtain a consent in writing from the other parent.

Where there is no agreement then, as above, the parent wishing to take the child on holiday can apply to the Court for a SIO, or the parent not in agreement can apply for a PSO. Any applications would be dealt with on the basis of what is in the best interests of the child.

Holidays within England & Wales

Where one parent does not agree to the holiday, then they can apply for a PSO to stop the child being taken on the holiday. Equally, the other parent wishing to take the child on holiday can apply for a SIO. It will be the welfare of the child that will decide the issue.

Mediation

Points to Note

On a practical level, if you are looking to make an application for permission to take a child abroad, the sensible approach is to have, as a minimum, evidence of the return flights, details of the holiday accommodation (where and how long the stay is), with evidence of the booking and why you consider it to be in the best interests of the child.

To oppose an application for a SIO, or to apply for a PSO (because you do not want the holiday to happen), it will be necessary show why you believe it is not in the best interests of the child; for example that the proposed destination is not safe or that the holiday will be in school term time, if that is the case.

Elaine Parkes Solicitors are ready to help with any disputes over children and holidays. Call now on 01424 883183

Cohabitation Agreements – Protecting your Financial Future

In this article we look at Alan and Bertha, who are unmarried and have lived together for some time.

When they separate, can either bring claims as a Common Law spouse against the other?

In short, the answer is no. There is no such legal concept of the Common Law wife or spouse. It is a social myth that has grown over the years that, if an unmarried couple live together for a long period of time, they acquire legal status through a Common Law marriage. This is not true.

On an unmarried couple separating, even if they have been together for years and had children, neither of them can bring any financial claims (in respect of property , pensions or maintenance, etc.) against the other under Divorce legislation.

Are there any legal claims that either of them can bring on separation?

The answer is, it depends. If they jointly own their home and there is dispute regarding who is entitled to live there or how the sale proceeds are divided, then there are legal remedies. A dispute over ownership would be resolved under Property and Trusts Law.

If Alan and Bertha have children under the age of 18 and Bertha wants to remain living at the home with the children, she could bring a claim against Alan under the Trusts of Land and Appointment of Trustees Act 1996, seeking orders that permit her and the children to remain at the house. We will not go into the issues of such a claim but simply point out that the possibility exists.

Even if, for example, Bertha owned the family home in her sole name, Alan could potentially have a claim in relation to a share of the sale proceeds. However, this would be more complicated as Alan would have to essentially rely on Trust Law, and it would be necessary to look at the details of how the property was purchased, and possibly those of the family life since that time. Again, we will not go into the details of such a claim here, but are simply pointing out the possibility.

Where Alan and Bertha have children then, following separation, claims for maintenance for the children would be dealt with by the Child Maintenance Service, which administers a statutory scheme calculating maintenance according to income and the number of nights the children spend with each parent. Should either Alan or Bertha be high income earners (earning over £156,000.00 gross per year) then it is possible that further claims for top-up maintenance could be made to the Family Court. Such claims are outside the scope of this article.

What happens if one of them dies while they are living together?

Ironically, if Alan and Bertha had not separated but Alan had died after they had been living together for more than two years and he had left nothing in his Will to Bertha, she would be able to bring a claim against Alan’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that he has failed to make reasonable financial provision for maintenance for Bertha. This would put Bertha in a similar (but not identical) position as the spouse.

It can be seen that, when an unmarried couple separate and there are disputes between them, there are various laws they can possibly turn to but, unlike separating married couples, there is no single law that can help.

Is there anything that Alan and Betha could have done at the start of their relationship to try and avoid this pick and mix of law?

Yes, they could have entered into a Cohabitation Agreement. This can set out their respective rights and responsibilities in relation to the property they live in and financial arrangements between them both during cohabitation and the arrangements to apply if they separate. The agreement can record who owns what in relation to personal property, such as cars or furniture, and who will be entitled to what should they separate.

In respect of the house they live in, a Cohabitation Agreement can set out their respective interests in the property, who pays the mortgage/rent and bills (shared or otherwise), and what happens if the couple split up – for example, the Agreement can set out that the house is to be sold and how that sale takes place (arrangements for the appointment of estate agents, etc.).

A Cohabitation agreement would allow Alan and Bertha the freedom and flexibility to organise their financial affairs as they wish, both during and after cohabitation. It is possible to try to include a clause that, following separation, one of them is to make payments (akin to maintenance) to the other for a period of time, to allow for the adjustment to single life.

Are Cohabitation Agreements enforceable?

It has to be said that, as Cohabitation Agreements are not created by Statute Law, there have been some reservations about their enforceability. The Law Commission have said that such Agreements are likely to be governed by Contract Law.

It is therefore essential that, when a Cohabitation Agreement is prepared, regard is had to the principles of Contract Law to ensure it does not fall foul of any of them. It is possible that provisions relating to real property (the house) may be more likely to be upheld than, for example, “maintenance clauses”, as there are no statutes dealing with the latter, but there is the former.

Given all the issues that can be covered in a Cohabitation Agreement and the importance of ensuring it is drafted correctly, it is best to take legal advice. Call Elaine Parkes Solicitors now to talk through the options for protecting your finances.

Written by Simon Brown

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.