If a separation is contemplated it is important to seek separate and independent legal advice as soon as possible. If couples wish to separate it is advisable to enter into a separation agreement and Fiona can provide expert legal advice with regard to this process, the procedures and law involved and the various options available to you.
In England and Wales, there is one ground of divorce, namely irretrievable breakdown of the marriage. However it is important to be aware that in order to present a petition of divorce to any Court one of the five facts must be used in addition, namely adultery, unreasonable behaviour, two years’ separation with consent, desertion and five years’ separation. Fiona can provide expert legal advice with regard to the necessary procedures involved in order to obtain a decree absolute, which is the final decree which dissolves your marriage.
Civil partnership dissolution
The Civil Partnership Act 2005 allowed same sex couples to register their civil partnership. Amendments to the Matrimonial Causes Act 1973 conferred the same rights to civil partners on dissolution of their civil partnership as those that already existed to a heterosexual couple on divorce. As with separation and divorce, Fiona can offer expert legal advice with regard to the procedures involved in respect of dissolution.
Resolution of all financial issues on separation/divorce/dissolution
Any married couple or civil partners contemplating separation, divorce or dissolution must consider the financial claims that each has against the other. These can be summarised as follows:-
- A spousal maintenance claim
- A lump sum claim
- A property adjustment claim
- A pension claim
These claims exist until they are dismissed by a Court either by attending Court before a District Judge or by not attending Court and submitting an order which has the consent of both parties. Such an order is usually referred to as a consent order and must be approved and sealed by a District Judge. Fiona can provide expert legal advice in respect of these claims and your entitlements and the various procedures involved in obtaining an order from the Court.
With regard to the procedures involved in obtaining an order, there are various different options available as follows:-
- Negotiations through solicitors culminating in the drafting of a consent order by solicitors;
- Mediation culminating in a memorandum of understanding. It is advisable for both parties to seek separate and independent legal advice from solicitors throughout the mediation process. The memorandum of understanding is then used to draft the consent order as above;
- The collaborative process (see separate page) culminating in the drafting of a consent order as above;
- Court proceedings which if not settled ultimately end in a final hearing where a District Judge will hand down his or her judgment which must then be drafted as an order of the Court by the respective parties’ legal representatives.
Fiona can provide expert legal advice as to the option appropriate to you in your particular circumstances.
The best way to resolve issues relating to children (which are usually concerning residence and/or contact) is by agreement between the parents themselves. If this can be achieved perhaps by mediation or the collaborative process then no court intervention or order is necessary.
However if no solution can be found by agreement then either party can apply for an order from the Court under Section 8 of the Children Act 1989. Under this statute the welfare of each child is the paramount consideration.
The Court “shall have regard in particular to:-
- The ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding);
- His or her physical, emotional and educational needs;
- The likely effect on him or her of any change in his or her circumstances;
- His or her age, sex, background and any characteristics of his or her which the Court considers relevant;
- Any harm which he or she has suffered or is at risk of suffering;
- How capable each of his or her parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his or her needs;
- The range of powers available to the Court under this Act in the proceedings in question.”
Fiona can provide expert legal advice in respect of any of the above issues, whether that be seeking an agreement or an order of the Court.