Dangers of a DIY Divorce

Dangers of a DIY Divorce

This month marks the second anniversary of the introduction of ‘no-fault’ divorce in England and Wales. Since the law came into force on 6 April 2022, one of the biggest shifts we have noticed at FM Family Law is the rise in separated couples managing their own divorce/dissolution without the benefit of specialist legal advice. In this article we highlight some of the main risks associated with a DIY divorce/dissolution when finances are left unresolved.

 

It is perhaps unsurprising following the introduction of the ‘no-fault’ divorce law that separating couples are looking to take matters into their own hands. The DIY route is a tempting option for those looking to save costs in the short term, especially amid the ongoing costs of living crisis.

 

Crucially though, if you have chosen to DIY your divorce or dissolution it is important to understand that the final order in the divorce/dissolution does not automatically deal with any financial aspects arising from your separation.

 

There can be significant risks and financial losses if the financial outcome (culminating in a court-approved order) is not formalised, such as:

 

1. Loss of survivor benefits

On divorce/dissolution, you will cease to be entitled to any widow’s, widower’s or civil partner’s pension under your former spouse/civil partner’s pension scheme. This could represent a potentially valuable asset and future source of income which will be lost in the event your former spouse/civil partner predeceases you.

 

2. Re-marriage trap

Depending on how your divorce application was completed, if you remarry or enter into another civil partnership without first resolving the finances from your previous marriage/civil partnership, you may be caught by the ‘re-marriage trap’. This would bar you from being able to make certain financial claims against your former spouse/civil partner.

 

3. Unwanted tax issues

There could be potential tax implications for you or your former spouse/civil partner that apply. Without input from a specialist tax advisor, you could be liable to pay tax you did not expect. A tax advisor can also help explain your options for structuring a financial settlement in the most tax efficient way so as to mitigate any tax liabilities.

 

4. Litigation

You and your former spouse/partner may have agreed between yourselves how your finances should be divided at the time of your divorce/dissolution, but without the protection and certainty of a binding and enforceable court order, there is nothing to prevent either of you from later changing your minds. If you are unable to agree a way forward (for example, whether or not your original agreement should be upheld), then it might become necessary to engage dispute resolution services or involve the court.

 

5. Impact on immigration

A divorce or dissolution could impact on your, or your former spouse/partner’s, immigration or visa status as well as your, or their, ability to stay in the UK.

 

6. Risk of family home rights of occupation ending

Marriage and civil partnerships give rise to ‘home rights’ which applies when the family home is owned in one spouse/civil partner’s sole name. This means the non-owning spouse/civil partner is entitled to occupy the family home and, if they have already left, they are entitled to enter the property with permission from the court. However, this right automatically comes to an end on completion of the divorce/dissolution, unless there is a court order in place extending this right.

 

Above are just some examples of how managing your own divorce/dissolution without expert legal guidance could result in unintended and unexpected consequences. Unravelling issues caused by DIY solutions can make for a painful and stressful process requiring input from professional advisors, potentially costing you more in the long term.

 

It is always best to seek specialist advice at an early stage so you can make informed decisions about you and your family.

 

At FM Family Law, we are costs conscious and we are dedicated to ensuring specialist family law services are available to you to suit your budget.

 

If you would like advice in relation to your separation and resolving the related financial matters, please do not hesitate to get in touch with me and I will be pleased to advise further.

Carla Morphett

Carla Morphett

Associate and Practice Development Lawyer

Not to be reproduced without permission.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.

FM Family Law launches voucher scheme for Family Mediation Week 2024

FM Family Law launches voucher scheme for Family Mediation Week 2024

FM Family Law is proud to be supporting Family Mediation Week this year which runs from 22 January to 26 January 2024. This is a great opportunity to raise awareness of family mediation and the many benefits it can bring families experiencing separation.

Mediation is a way for you to discuss and resolve issues away from lawyers and away from court. The role of the mediator is to remain neutral, facilitate and support discussions, as well as to help explore various options. Where appropriate, family mediation can be a great option for you to take control, make decisions together and build a positive future for themselves and their family, particularly if there are children involved.

In support of Family Mediation Week, FM Family Law is pleased to announce that we will be offering a voucher scheme. The voucher will provide a contribution of £500 (£250 each) towards the cost of the first two joint mediation meetings. The voucher will be available on request and is subject to availability. Full details and terms below.

We have three experienced Resolution Family Mediators at FM Family Law: Sue Bailey, Christina Hale and Emma Wager.

If you would like to enquire about booking your mediation meeting with one of our mediators please contact us:

Contact us on 01223 826000 (Cambridge) or 01603 343660 (Norwich) to enquire.

You can also read more about our family mediation service here.

Terms and Conditions

  1. Each joint mediation meeting is charged at £500 inc vat (£250 inc vat per participant) for 90 minutes at the standard rate, thus the total cost for two joint mediation meetings at the standard rate would be £1,000 inc vat (£500 inc vat per participant).
  2. The voucher offers a total discount of £500 inc vat (£250 inc vat per participant) exclusively against the cost of the first two joint mediation meetings with FM Family Law, therefore the voucher will reduce the cost of each joint mediation meeting to £250 inc vat (£125 inc vat per participant).
  3. To qualify for the voucher:
    – The voucher scheme must be specifically requested at the time of booking;

    – each participant must have completed their initial intake meeting with their mediator;
    – should both participants agree to mediate after their respective first individual meetings, and the mediator considers the matter appropriate for mediation, then the first two joint mediation meetings will be arranged, invoiced and paid in advance.
  4. The voucher applies providing there are two joint mediation meetings or more. If in fact only one joint mediation meeting takes place, no refund is offered to participants as the £250 inc vat cost after applying the voucher is to cover the cost of the first two joint mediation meetings.
  5. The voucher does not apply to other work related to mediation or to further mediation sessions, the costs of which can be provided on request.
  6. If the first two joint mediation meetings over run the allotted 90 minutes (each) then the extra time will be invoiced after the meeting.
  7. The voucher has no cash value and cannot be transferred, or exchanged for alternative services.
  8. This offer is limited and subject to availability, and FM Family Law reserves the right to modify or withdraw the scheme at any time.
  9. Meetings will be allocated on a first come, first serve basis.
  10. FM Family Law reserves the right to refuse or terminate mediation services if any participant breaches the terms and conditions outlined herein.

By participating in this voucher scheme, participants agree to abide by these terms and conditions.

Co-nesting following relationship breakdown

Co-nesting following relationship breakdown

WHAT IS CO-NESTING?

A living arrangement, colloquially referred to as ‘nesting’ or ‘bird-nesting’, and which we at FM Family Law consider is best described as ‘co-nesting’, involves continued co-parenting within the same ‘nest’.

Co-nesting is when the family home is kept as a home for the children, and separating parents take it in turns to live in the former family home and at alternative accommodation. This enables separating parents to continue to care for their children. It’s an arrangement  that we are seeing become increasingly popular. It can be used in the early stages of separation, also enabling parents to take their time to work out their longer term living and shared parenting arrangements.

 

WHAT’S GOOD ABOUT IT?

Co-nesting can have many advantages, especially for children.  It allows children to maintain a sense of stability and continuity, making it less difficult for them to cope with their parents’ separation. They get to stay in their own rooms, go to the same schools, and have their own routines.  In that sense, it allows arguably a more child-centred approach to separation as a lot of the burden of adjusting and moving falls to parents and not their children.

When not at home, parents may choose to stay with friends or family, in a hotel, house-sit, rent a room in a shared house, or split the cost of a small apartment or house big enough for one person at a time. There may be financial advantages in the short term, as the family is not having to fund the cost of two households large enough for the children to stay in which is particularly prudent in the current cost of living crisis.

 

IS IT SUITABLE?

Co-nesting typically requires a high level of cooperation and communication. It  can be emotionally and financially challenging.  There needs to be some level of respect and trust between parents as they are co-existing in the same space, albeit at different times.  But for some separated parties, it can be a valuable child focused way to co-parent their children and maintain a sense of stability for their family.

Generally, co-nesting is more suitable where the separation is amicable and there is a good level of healthy communication between parents. It is unlikely to be appropriate in cases where there are allegations of domestic abuse or child abuse or if there are safeguarding concerns.

 

TOP TIPS

There are a number of ways parents can set themselves up for co-nesting success.

 

1. AGREE GROUND RULES

Before the new living arrangement begins, parents should sit down and agree the ‘rules of engagement’, to include communicating their expectations, anticipated timeframe, preferences and boundaries (which may include agreeing that new partners may not attend the home).

Parties may decide to continue to have dinner together once a week in the family home, or simply agree that a civil and brief handover in the hallway when the other party returns home is all that’s needed.

 

2. CREATE A SCHEDULE

This could include a clear schedule for each parent’s time in the house and a schedule for activities and chores.  It is vital that both parents have a clear agreement about where each of them will be and when for the arrangement to succeed. The use of a parenting communication app, such as Our Family Wizard may assist with maintaining a healthy dialogue of communication.

 

3. INVOLVE THE CHILDREN

If the children are of an appropriate age, parents could involve them in the decision-making process and consider their needs and preferences. This would be usual for children of around 10 years of age and upwards.

 

4. HAVE A BACKUP PLAN

Parents should always have a backup plan in the event something unexpected arises. This can include in instances of sickness or issues with travel.

 

CAN CO-NESTING WORK LONG-TERM?

While it may sound like a positive outcome for co-parenting in the short to mid term, and at critical stages in a child’s life, it is unlikely that co-nesting will work effectively as a long-term solution.

It is inevitable that co-nesting maintains a level of connection between the adults, which of course may bring difficulty at a time when people may need to feel a sense of closure moving on or starting afresh. This may be exacerbated further when one party commences a new relationship, if not handled sensitively.

Co-nesting also fails to achieve financial separation between parties, which may leave parties feeling vulnerable and unable to achieve independence.

In the shorter term however parents who are able to agree a co-nesting plan for their children might be more successful in being able to navigate and agree some of the more challenging longer term aspects of their separation. Arguably, the value of a co-nesting plan provides an excellent foundation for separating parents to later embark on the next stage of their own lives after divorce or separation.

If you wish to discuss your co-nesting options, or the fallout of your separation in greater detail, please do not hesitate to get in touch with me and I shall be pleased to advise further on whether this will work for you and your family.

Kerry Read

Kerry Read

Solicitor

01603 343669

Not to be reproduced without permission.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.

A key message from FM Family Law on so-called Divorce Day 2024

A key message from FM Family Law on so-called Divorce Day 2024

“Divorce Day” is generally considered by the media to occur on the first working Monday of the new year. Allegedly it is the day on which there is a rush to engage a lawyer or to apply to the family courts to start the divorce process. This alleged peak in enquiries about separation/divorce is thought to arise at the end of the festive holiday season and or the start of a new year. Certainly it can be a particularly sensitive and intense time for some families. The alleged rush may also be caused as a result of some couples wishing to avoid upsetting family dynamics over the holidays and instead deferring to take action about their relationship until the new year.

In what has developed into our annual “Divorce Day” message, FM Family Law does not support any media hype that encourages hasty decisions about a family breakdown or which has a risk of glamorising what can be a painful break up.  We do not encourage our clients to make rash and hasty life-changing decisions. We are mindful that the holiday season can be a stressful time, and that the new year can also bring a renewed sense of hope and a desire for change. However, divorce or separation is a major life event that can have significant financial, emotional, and practical consequences and is not something that should be considered lightly.

If you are experiencing relationship issues, before making any major decisions, we encourage you to take time to reflect and ensure you get all the support you need to be in the best headspace for making life changing decisions. Here are some things you can do to help:

1. Talk to someone: It can be helpful to talk to someone about your feelings and concerns if you feel unable to speak to your partner. You may want to consider speaking with a professional therapist or counsellor, or confide in a trusted friend or family member.

2. Reflect: It can be helpful to take a break from the situation and give yourself some time and space to think independently. This might involve taking a short day trip, going for a walk, or engaging in a hobby that you enjoy.

3. Practice self-care: Make sure to prioritise your physical and emotional well-being. This may involve exercising, hydrating, reducing alcohol consumption, eating well, getting enough sleep, and finding ways to relax and de-stress.

4. Professional guidance: There are many resources available to help you navigate the challenges of a relationship breakdown. You may want to consider joining an online or face to face support group or seeking guidance from a trusted professional, such as a counsellor, divorce coach, family lawyer or family mediator.

5. Initial no obligation legal advice: FM Family Law have 10 specialist family lawyers, 3 of which are also trained mediators, who can offer tailored advice and support to help you work out the right way forward for you.

The initial impulses of the new year may pass, but the impact of a decision to separate or divorce will be long-lasting. So on “Divorce Day”,  FM Family Law encourages you to take a moment to reflect, prioritise your mental wellbeing, and seek support before making any major decisions for your future.  Once you have done that, and if you still wish to move forward with a separation or divorce, then we would be happy to support you – please do not hesitate to contact us here.

Death and Divorce

Death and Divorce

The Supreme Court has ruled unanimously that financial claims on divorce cannot be pursued after the death of one of the spouses. The court upheld the long-held position that the court’s power to order financial relief could only be exercised as between living parties to a former marriage.

The case arose from a married couple who were divorced in Pakistan. The former wife pursued (as she was able to) her financial claims on divorce in England. Before those claims were concluded, the former husband died. The former wife applied to the court for permission to pursue her claim after his death against his estate.

The established view is that a financial claim on divorce is purely personal to the parties involved. The claim could not survive the death of either spouse and could not be pursued against the estate of the deceased. The judge sitting in the lower court had little option but to dismiss the former wife’s claim as the court was bound by a prior decision made in a higher court on this very matter. However, the judge recognised the illogical nature of the conflicting outcomes in prior cases where death occurred shortly before or after trial and granted permission to the former wife to proceed with her appeal by ‘leapfrogging’ to the Supreme Court. In a sad twist, the former wife died shortly afterwards but the court allowed the appeal to be continued by her estate since it involved important points of law since questions had arisen on the continued validity of the established view due to a number of developments.

One consideration is that if a spouse dies before concluding financial claims on divorce, the Inheritance (Provision for Family and Dependants) Act 1975 permits a claim by the surviving spouse against the deceased spouse’s estate. This can also apply even if the spouses were divorced before death. However, this legislation is only available where the deceased is domiciled in England and Wales (i.e. this country was considered their permanent home). With an increasingly globalised population, and very wide rules on where a divorce can be obtained, this means many individuals are not necessarily able to rely on the 1975 Act to continue their financial claim against their former deceased spouse.

The court also considered that in Barder cases, an unforeseen circumstance, such as one party’s unexpected death, might invalidate the basis of the original financial order. This can lead to the possibility of the court making fresh provision for the benefit of the estate of the now deceased party. With this in mind it is difficult to understand how this is consistent with the view that financial claims end on death.

The Supreme Court however confirmed the correctness of the established view. The Court emphasised the proper construction of the statutory provisions governing financial remedy on divorce and that it was intended by Parliament that financial claims would end on death. To change this would require the government to reform the law.  

The Court in its judgment did however acknowledge the injustice caused by the extinction of claims upon the death of a party. This is particularly so in this case since the divorce had already been finalised, and the financial provider (in this case the husband) died not domiciled in this country. The court also noted that the delay in the final hearing (which would have concluded matters possibly before his death) appeared to be as a result of issues with the former husband’s disclosure.

This case highlights the importance of trying to resolve matters in good time as well as appreciating the potential implications of the death of either party for the survivor before financial claims have been finalised. Further, that if there are concerns regarding a party’s health and/or there are additional complications as a result of a divorce concluded abroad or an individual who is not domiciled in this country, then it is important to seek legal advice at an early stage.

If you would like to discuss the issues addressed in this article then our expert lawyers can support you. Please contact a member of our team here.

Judgment of Unger v Ul-Hasan [2023] UKSC 22 available here.

 

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance. The above should not be reproduced without consent.

Prenuptial agreements are more common than you think

Prenuptial agreements are more common than you think

 A fifth of UK couples who had their first wedding since 2000 have a prenuptial agreement (or ‘pre-nup’). 

This latest research commissioned by The Marriage Foundation is thought to be the first of its kind which offers a real and genuine insight into the personal decisions that couples make about their relationship. How a couple decides to manage their financial affairs is completely private to them and trying to collect data on this is tricky to say the least – so it is understandable why we have absolutely no idea how popular pre-nups are (until now).

With many weddings having sadly been postponed due to the pandemic, if you have a 2022 wedding to look forward to then there is plenty of time to put any necessary plans in motion. Having time on your side is particularly helpful as one of the factors to consider when entering into a pre-nup is timing. It is important you do not leave it too late.

What is a prenuptial agreement?

A prenuptial agreement is a document entered into before marriage that sets out how a couple’s assets will be divided should their relationship subsequently break down and/or set out arrangements for how to manage their finances and other practical matters during the marriage.  It is a type of relationship agreement – you can read more about what these are here.

Pre-nups are likely to be upheld in most cases so long as certain factors have been considered by the couple when entering into it. We can discuss this with you to ensure the right criteria is met.

Who can get a prenuptial agreement?

Anyone!  There is no need to qualify or be eligible to get a pre-nup, but there are certain situations which might motivate one or both future spouses to protect their wealth before tying the knot. For example:

1.       When one or both spouses have previously been married – they may wish to better plan in the event of a relationship breakdown and/or protect their assets for the benefit of any children from a previous relationship.

2.        Entering into a marriage when one spouse has significantly more wealth than the other which was built up prior to their relationship.

3.        When one or both spouses are expecting to receive significant wealth in the future such as through family inheritance, career progression or financial investment.

4.        Marrying later in life as this can increase the chance of 1 and 2 above becoming relevant.

    Interestingly, the Marriage Foundation research reveals that 44% of individuals in a higher managerial role had signed a pre-nup and the prevalence of pre-nups amongst couples in the other social groups were fairly evenly distributed.   This confirms that pre-nups are not just reserved for the super-rich and famous, which is a common misconception.

    Pre-nups provide greater clarity as to how assets may be divided upon separation and can therefore help avoid the unpredictability, potential legal costs and emotional stress often associated with an acrimonious separation.

    If you would like to discuss the benefits of having a pre-nuptial agreement or any other issues covered in this article please do not hesitate to contact the team – we would be happy to help.