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February 19, 2019
Summary of Resolution and Law Society Briefing on Practical Recommendations in the Circumstances of No Deal on EU Exit

Summary of Resolution and Law Society Briefing on Practical Recommendations in the Circumstances of No Deal on EU Exit

Natasha Isaac, pupil at 1 Crown Office Row, summarises the latest guidance on family law in the case of No Deal Brexit issued by Resolution and the Law Society, with input from David Hodson OBE MCIArb and Daniel Eames. Find out more on the Law Society website here, or members of Resolution can get the guidance here.

  1. If the UK leaves the EU on 29 March 2019 with no deal EU law will immediately cease to apply at 11pm on 29 March 2019. There will be reliance on national and international law, such as the Hague Conventions.
  2. The government is introducing a series of statutory instruments to apply in these circumstances. The Jurisdiction and Judgments (Family)(Amendments etc) (EU exit) Regulations 2019 includes the important, extensive and substantial transitional arrangements.
  3. In general terms an EU member state will not give effect to a UK order made before 29 March 2019 unless the required registration procedure was also concluded before 29 March 2019. This process varies between divorce, finance and children matters.

Divorce

Forum

  1. At the moment where divorce (or similar) proceedings could be brought in England, Wales or another EU member state forum is decided on where proceedings are first lodged.
  2. On leaving with no deal, the lis pendens rule will end and forum cases involving an EU member state will be decided on the basis of forum non conveniens – the ‘close connection’ test as presently prevails in non-EU cases.
  3. Advice from the other country should be taken as it it not known how member states will respond.

Divorce

Jurisdiction

  1. Existing divorce jurisdiction will continue as national law, save that sole domicile would also now be immediately available in all circumstances.

Divorce

Recognition in EU members states

  1. On leaving with no deal roughly half of Eu member states who are signatories to the 1970 Hague Convention are highly likely to recognise divorces in England and Wales. 15 member states are not parties. Practitioners should consider obtaining decree absolute before 29 March 2019. Legal advisers should consider discussion of expediting the proceedings with clients.

Maintenance Orders

  1. Leaving with no deal will mean that the EU Maintenance Regulation comes to an end, but this will be immediately replaced on 1 April by the 2007 Hague Maintenance Convention.
  2. There might therefore be maintenance cases between UK countries which may be more or less beneficial to be commenced before Exit Day; the EU requirements regarding also completing the registration process would not apply intra-UK. This is most likely to be relevant in some Anglo Scottish cases.

Sole Domicile Jurisdiction Financial Applications

  1. Practitioners who have existing, ongoing, sole domicile cases where their client would want to make needs-based claims should give consideration to adjournments until after Exit Day when the court would be able to make needs-based orders.

Pension Sharing

  1. Sometimes this jurisdiction is not available, simply because the parties have no ongoing UK connection apart from the existence of a pension here. Accordingly, reliance is made on Art 7 EU Maintenance Regulation, which provides for a so-called “forum of necessity”. This will cease to be available on Exit Day if there is no deal.

Children

  1. Brussels II allows contact orders and orders for the return of a child to be directly enforced provided there is an Annex III and IV Certificate respectively.
  2. In considering whether to make any expeditious applications before 29 March, practitioners will need to consider the respective substantive laws and procedural requirements under Brussels II and 1996 Hague. This is true in respect of both outgoing and incoming cases from the EU.

Conclusion

  1. Practitioners are likely to receive further updates in this rapidly developing area and must consider their cases individually including advice from lawyers abroad where necessary.
  2. There is limited time before 29 March and practitioners may need to consider expediting proceedings.

 

Natasha Isaac | Divorce and Finance

This article was originally published on the 1 Crown Office Row website.

February 8, 2019
Family legal terms explained: Matrimonial

Family legal terms explained: Matrimonial

The legal jargon involved in divorce and financial proceedings can be difficult to understand. We have summarised and explained some of the most frequently used legal terms to help you understand what they mean.

An expert family barrister can help guide you through the process and represent you in court if necessary. If you would like to instruct one of our team of experienced family lawyers, read our simple step-by-step guide then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next.

Ancillary Relief

In England and Wales applications for financial relief following the presentation of a petition for divorce are known as ‘ancillary relief’ under the Matrimonial Causes Act 1973 because these applications are ‘ancillary’ to a divorce petition. In the Family Procedure Rules the term used is ‘financial order’ or ‘financial remedy’. Both terms are routinely used in court.

Clean Break

A clean break means the financial ties between you and your spouse are concluded. Therefore, for example, there would not be an order for ongoing maintenance. In some cases this may involve paying a lump sum to your spouse. Clean break cases might also involve pension sharing orders because the pension split happens as a single percentage-based transfer arrangement once the decree absolute is received by the parties.

Consent Order

A consent order is an order of the court, which was made by agreement between the parties. To make an agreement legally binding, the parties would need to submit it to court for the Judge to consider whether to make it into a consent order.
It is important that such an order is comprehensive. This sort of order will be signed, dated and submitted to the Court so that the Judge can assess whether the agreement constitutes fair and proper financial provision for the parties.
If a consent order is filed without a hearing it should be sent with Form D81 (a statement of information) and Form A for dismissal purposes.

Decree Absolute

Six weeks after the decree nisi has been granted the petitioner can apply for a decree absolute which is the legal document that ends the marriage. If four and a half months have passed since the decree nisi was granted the respondent can apply for decree absolute.

Decree Nisi

This is a request to proceed. The petitioner will fill in a form for the decree nisi, and usually files this with the respondent’s response document. The judge will consider whether there are grounds to grant decree nisi.

Disclosure

Disclosure, and updating disclosure, is the term used for the evidence supplied in respect of your finances – submitted as part of your Form E, and then updated for hearings. This will include bank statements, mortgage statements, details of loans and pensions etc.

FDA

An FDA is a First Directions Appointment in financial proceedings. The purpose of this hearing is to decide what more information (following an exchange of Forms E) the parties and the court needs to make orders. The usual practice is for the parties to arrive early at court for the lawyers to attempt to agree the questionnaires and case management directions to reduce the time spent before the judge.

FDR

This is the second court appointment in financial proceedings. An FDR (Financial Dispute Resolution) hearing is a without prejudice hearing (ie any offer or concession made for or during this hearing, in an attempt to settle a dispute, cannot later be used against the person who made it at the trial). At this appointment the judge may give an indication on some or all of the issues in your case, in order to enable the parties to gain a better understanding of the view a judge might take if on issues if the case went to trial. The FDR is without prejudice which means that if matters cannot be resolved the judge at the FDR is not permitted to be the judge at the final hearing. The judge does not hear evidence at this hearing. It is usual practice for both parties to arrive early to discuss their positions with a view to settlement.

Financial Remedy

This is the term used in the Family Procedure Rules to describe forms of financial relief which can be ordered by the Court. The main rules can be found in Part 9 of the Family Procedure Rules.

Form A

Form A is the Notice of Intention to Proceed with an application for a financial order. You can find a template here. An application costs £225 and you’ll need to send two copies to the court. This is the first form you would file in financial proceedings.

Form E

Form E is a detailed financial statement which you will need to produce and send to the court and the other party before an FDA. You can find a template here.

Form H

Form H is an estimate of legal costs incurred, which is required for each hearing. You can find a template here.

Lump Sum Order

A lump sum order is an order for one person to pay another a lump sum. A lump sum can be paid in instalments.

Mesher Order

This is a court order which governs how the family home will be dealt with after divorce. It allows the sale of the family home to be deferred for a certain length of time or until a specific “trigger” event takes place, such as when the children are 18 or if the resident party has cohabited with a new partner for a certain length of time. This order will decide how the equity will be split between the two parties.

Order for Sale

The court can make an order under the Matrimonial Causes Act 1973 to adjust the parties’ resources to achieve a fair outcome. One of the orders it can make is an order for sale of property. This may be necessary in order to ensure both parties are housed.

Pension Sharing Order

A pension sharing order is an order, which transfers part of a pension pot to the other party. It enables a clean break between the parties as the assets are split immediately. The order will set out how much of the pension will be given to each party as a percentage, and decide who should pay the costs. This order must be made by the court for the pension provider to give effect to it. A pension sharing order will also be filed with Form P1 which sets out the material details of the relevant pension and the arrangement for the percentage to be transferred into.

Petition

The petition is the document that starts the divorce process.

Petitioner

The petitioner is the spouse who writes the ‘petition’ and serves it on the other spouse. The petitioner will send two copies, together with a fee, to the nearest divorce court.

Property Adjustment Order

These orders deal with property rights and are used to transfer property from joint names to one name, or from one name to another. There is no definition of what such property should look like, as long as it is sufficiently identifiable, i.e. ‘property’ does not necessarily mean ‘family home’.

Questionnaire

This is the document both parties may submit if they seek to clarify anything that the other party has, or has not, written in their Form E. The questionnaire will be considered by the Court at the FDA.

Respondent

The respondent is the spouse who receives the petition from the petitioner.

Schedule 1 Cases

Schedule 1 pertains to Schedule 1 of the Children Act 1989. These cases concern financial provision for children. Applications under Schedule 1 can include: top up maintenance, lump sums, carers allowance, transfer/purchase of property, etc.

Section 25 Factors

The Section 25 Factors are what the court looks at to help it decide whether to make an order requested in family proceedings. The court will approach this exercise having regard to all the circumstances in the case. The first consideration will be the welfare of the children of the family and the starting point is provision of accommodation for the children. The overarching objective is fairness – avoiding discrimination between the party who has been the homemaker and the party who has been the breadwinner.
“Section 25” refers to the relevant part of the Matrimonial Causes Act 1973. The factors include matters such as the income, financial obligations and conduct of the parties and the needs of the child. A full list can be found here.

Separation

Legal separation is different to divorce. A separation is when you and your former spouse have stopped living as a couple. A legal separation is the process by which a couple can agree a written document which records their intention to split their assets. Some couples choose to separate instead of divorce because it is cheaper or for other reasons, such as when their religious beliefs do not agree with or allow divorce; or if they have been married for under a year. A separation agreement recorded by the court will not be binding but can be looked at in the event of any dispute. The document filed with the court for a legal separation is the same petition that you would submit if you were getting a divorce, and you will also need to pay a court fee.

Spousal Maintenance

Spousal maintenance is money that is paid by one spouse to the other following a divorce. It is usually paid on a monthly basis either for a defined period or it could be for the remainder of the parties’ life. The amount you receive depends on how much you need to live on, how much income you have and how much you could possibly earn in the future, amongst other factors.

Undertaking

An undertaking is a solemn promise to the court. If you break an undertaking you could be fined or sent to prison. It is as binding as an order of the court.

Natasha Isaac | Divorce and Finance

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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November 1, 2018
But who gets the dog? – Pet custody in divorce and separation

But who gets the dog? – Pet custody in divorce and separation

On the breakdown of a relationship (whether a marriage or civil partnership or of co-habitation), the focus will usually be on the arrangements for any children of the family and sorting out the finances. Much time, money and effort is often spent arguing about these important things. However, there is nothing in the Children Act 1989 that allows you to apply for ‘custody’ (in common parlance) of the family dog (however much they may be like a child to you!). Similarly, there is no provision when you are completing your financial disclosure (Form E) in financial remedy proceedings to stake a claim to your furry friend (unless perhaps it is a prize winning poodle worth many thousands of pounds). This begs the often asked question of “But who gets custody of the dog?”.

Domestic animals are in fact personal property – in the same way that we can own a laptop, a piece of jewellery or a car. For some items, like a car, there is an official record of the “Registered Keeper”, which while not conclusively proving ownership, is good evidence of who the owner is. However, for most items of personal property there is no such record and therefore other factors will need to be considered to work out their owner.

The main factor will usually be who paid for the pet in the first place. A written contract is likely to be conclusive. However, if the pet was a gift, then factors such as who is the only or main contact at the vet and who pays for the food etc may become relevant.

Importantly, the Court can only declare the owner of the pet – either in a claim in the civil courts or potentially in the family court under the Married Women’s Property Act 1882. It has no power to make orders imposing a shared care arrangement with the dog spending every other weekend and a night in the week with one ‘parent’. If you want to achieve this type of arrangement, then this is best done through mediation.

If you have a pet swan then be careful, all white swans swimming in open and common rivers belong to the Crown by prerogative right (Case of Swans (1592) 7 Co Rep 15b at 16a).

What about puppies or kittens? The general rule is that the young will belong to the owner of the mother until they are sold or given to someone else (interestingly this rule doesn’t apply to cygnets).

If you believe that you are the rightful owner of the family pet, then it may be that you have a valid claim to have that pet returned to you. Conversely, if you have the pet in your possession and are being hassled about it, you could seek a declaration from the Court that you are the rightful owner to head off any claim by your ex-partner.

Finally, couples can avoid these disputes by thinking ahead and including carefully worded provisions in a pre-nuptial agreement or cohabitation agreement as to what is to happen to any pets in the event of relationship breakdown.

If you would like help with a dispute about a family pet, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.

David Lewis-Hall Divorce and Finance

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September 28, 2018
Case synopsis – Divorce & Finance

Case synopsis – Divorce & Finance

Love is a wonderful thing. But it can cloud judgement. A lady came to Direct Access Barrister Paul Ashwell for advice. She had sold a share in her home to her former partner for less than it was worth. She had signed a one-sided agreement about their rights that he had written. A solicitor had given her what should have been independent advice though it wasn’t. The former partner, who had sometimes been violent, sued her. She risked losing her home.

Paul met her and she explained what had happened. He advised her about the court procedure, drafted a court document for her, advised her on what the court would do if the dispute reached a trial, and on the advantages of negotiation. He explained that, although she would need to employ solicitors, he would remain “on-call” if needed. Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell | Divorce and Finance

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August 28, 2018
Supreme Court rules against the Government on Civil Partnerships

Supreme Court rules against the Government on Civil Partnerships

R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent) [2018] UKSC 32

Link to judgment here: Judgment on BAILII (HTML version)

In a unanimous judgment on June 27 2018, the Supreme Court ruled that the current Civil Partnership law was incompatible with Article 14, read in conjunction with Article 8. of the European Convention on Human Rights.  The European Convention is incorporated into UK law by the Human Rights Act 1998.

The Civil Partnership Act 2004, which came into effect on the 5th December 2005, introduced civil partnerships, but they are only available to couples of the same sex. This case was brought by a heterosexual couple who wished to enter into a civil partnership but were refused under s.3 of the Act when they tried to register at Chelsea Town Hall back in October 2004.

Following a Judicial Review, and an appeal to the Court of Appeal, the Supreme Court heard the case in May 2018.  The couple argued that not allowing them to enter into a civil partnership because they were not a same-sex couple was discriminatory.  By the time the case reached the Supreme Court it was accepted that access to civil partnerships falls within the ambit of article 8; that there is a difference in treatment between same sex couples and different sex couples in relation to the availability of civil partnerships; that this difference in treatment is on the ground of sexual orientation, a ground falling within article 14; and that the appellants are in an analogous position to a same sex couple who wish to enter into a civil partnership.  The question for the Court therefore was whether the government could show that unequal treatment of same-sex and different sex couples was justified.

The Court found that the current legislation was discriminatory, as same-sex couples can now enter into same-sex marriages or civil partnership but heterosexual couples cannot enter into civil partnerships. The fact that the Civil Partnership Act 2004 was not repealed when the Marriage (Same Sex Couples) Act 2013 was enacted created the difference in treatment.

The Government is now under considerable pressure to urgently review the law.

The rights granted to a couple under a Civil Partnership (such as pension benefits, inheritance and tax reliefs) mirror those enjoyed by married couples. There are however some differences should the relationship break down and the partnership come to an end.

To end a marriage by divorce you must show that your marriage has ‘irretrievably broken down’. This can be for one of five reasons:

  1. Adultery
  2. Unreasonable Behaviour
  3. Desertion (your spouse has left you)
  4. If you have lived apart for at least 2 years and you both agree to divorce
  5. If you have lived apart for at least 5 years regardless of whether your spouse agrees to divorce

To end a Civil Partnership you require a ‘dissolution order’. It is similar in process to a divorce in that you still need to show that your Civil Partnership has ‘irretrievably broken down’. To do this you can use the reasons listed above for marriage, with the exception of adultery. This is because adultery in law means that your husband or wife has had sexual intercourse with someone of the opposite sex. As Civil Partnerships are only available for those of the same sex (at least for now!), adultery therefore does not apply. However, such sexual infidelity could be characterised as Unreasonable Behaviour for the purposes of dissolution.

If you are considering divorce or dissolution there are many factors to consider, including the division of your finances and who will look after any children you have together and how contact with the children may be arranged.

Ending a marriage or civil partnership can be a stressful and emotional process and disputes may arise in even the most amicable divorce. A barrister will be able to advise you on all aspects of your case and to represent you in Court if necessary. If you are thinking of instructing a lawyer to help proceed with your divorce, you may find it helpful to read our advice on how to choose a divorce lawyer.

Our Public Access Barristers have a wide range of experience of divorce law. To get in touch with a member of our team, read our simple step-by-step guide, then contact our clerks who will put you in touch with the barrister best able to accommodate your needs.

By David Reader | Divorce and Finance

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July 24, 2018
Cohabitants. What are my rights to financial provision?

Cohabitants. What are my rights to financial provision?

As any family law student knows, the law in England and Wales does not at present afford to those of different sex who have lived together as if they were husband and wife, the same rights to claim financial relief against each other as are afforded to legally married couples during cohabitation or upon divorce or judicial separation. There is no legal right to financial support available to cohabitants of different sex as is the case in Scotland.

Regrettably, many people south of the border still labour under the misapprehension that the relationship of common law husband and wife is a recognised status in law with equivalent rights during the relationship and upon separation to those who are or have been legally married.

Hard cases like Burns v Burns in 1984 abound in the law reports. Notwithstanding a 19 year relationship that outwardly bore the hallmarks of a traditional marriage and having borne and raised two children, Valerie Burns (who had even changed her name by deed poll) was unable to establish a beneficial interest in her erstwhile partner’s property which had been their family home because she was obliged to rely on principles of civil law which did and do not recognise or incorporate the principles of sharing, needs and/or compensation which would have been the case had the parties been married and then divorced.

Whilst later decisions of the higher courts in Oxley v Hiscock [2004] and Stack v Dowden [2007] have helped by enjoining a court to consider the whole course of dealing between the parties in relation to a home when considering claims by a cohabitant under the Trusts of Land and Appointment of Trustees Act 1996 for an interest in the property, the question as to whether the claimant has a beneficial interest rather than its extent, is still decided by applying principles of trusts law or equitable principles such as proprietary estoppel, which often present insuperable evidential difficulties to a claimant.

Despite recommendations from the Law Commission [Law Com No. 307] for change to reflect the growing trend in society towards cohabitation, the support of many members of Parliament and in the legal professions for change, the government has baulked at introducing comprehensive legislation to remedy the injustices that can arise when a different sex relationship of more than a transient nature or duration breaks up permanently.

In such circumstances, if the parties involved are unable to resolve their differences and claims through mediation or other alternative dispute resolution procedures, or have not previously entered into a legally binding cohabitation agreement which can be enforced, they have to resort to the civil law (a patchwork of legal principles) in relation to any claim to property or to limited statutory rights for financial provision in certain situations.

Thus, in the context of the family home, (usually in circumstances where molestation or harassment has occurred) a cohabitant has the right to claim relief for the sole occupation and maintenance of the home previously enjoyed with an erstwhile partner under the Family Law Act 1996. However, the right to such provision (in terms of the discharge of rent, mortgage payments or other outgoings and repairs affecting the dwelling house) can only be of limited duration and can-not exceed 12 months. Unless the needs of minor children can be invoked, no right to any other form of maintenance or ongoing financial support is available to the unmarried cohabitant.

For a different sex couple who object in principle to marriage, change is long overdue but the recent judgment of the Supreme Court in R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) (Respondents) [2018] UKSC 32 given on 27 June in which the court ruled that it was discriminatory to restrict civil partnerships to same sex couples, may mean the government will now move quickly to support the proposed changes to the Civil Partnership Act 2004 by Mr Tim Loughton MP designed to achieve the extension of civil partnerships to different sex couples.

By James King-Smith  | Divorce and Finance

James has been a practising barrister since 1982. He has been specialising in matrimonial and family finance claims for over 15 years and has a particular interest in dealing with financial claims between cohabitees. He has been trained  as a civil and commercial mediator by the ADR group and has acted as mediator in numerous financial disputes between cohabitees. He accepts work in all areas of family financial disputes and is able to conduct mediations in disputes between cohabitees and  private financial dispute resolution appointments in chambers in Brighton or London or elsewhere at the parties’ convenience.

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April 27, 2018
Divorce: Basic steps to getting financial orders

Divorce: Basic steps to getting financial orders

Divorce cases can be extremely complex and emotionally draining. It can be possible to come to an early agreement through mediation or negotiation, but even the most amicable divorce can lead to disputes around finances.

If on divorce the parties cannot agree to share the assets and property from the marriage than one of them will have to apply to the court for financial orders.

The orders that can be applied for are:

  1. an order for maintenance pending the outcome of proceedings
  2. a lump sum order
  3. a secured provision order
  4. a property adjustment order
  5. a periodical payments order
  6. a pension sharing order
  7. a pension attachment order
  8. a pension compensation sharing order
  9. a pension compensation attachment order

The application for financial orders is submitted on a Form A which is available to download or from your local family court office. A fee for submitting the Form A is charged which is currently £255.

Once the application has been processed the court will issue directions for a First Directions Appointment. This sets out the preliminary steps to be taken and a fixed court appointment before a Judge.

This process and the further steps set out below are similar in all cases regardless of the nature and extent of issues, or the value of your assets.

The main procedural steps are:

Full and frank financial disclosure

This is carried out by a series of detailed statements made on a standard form called a Form E, which can also be downloaded or otherwise obtained from the court office. Each party completes one of these forms and exchanges it with the other party. It covers property, bank accounts, pensions, income etc, all supported by documentary proof. Once each party has exchanged their Form E the other party can request further information in the form of a Questionnaire. The judge will consider the questionnaires at the first appointment and direct which questions need to be answered to ensure that the issues are relevant and proportionate to the costs.

First Directions Appointment (FDA).

This is an evidence gathering hearing. If the parties cannot agree the value of assets then the court will consider whether the parties need to instruct an expert to value property, such as a chartered surveyor. If there is a family business or tax issues then an accountant may have to be instructed. The court will also consider whether more information is required on pension assets, if they are available. As stated above the court will also consider the Questionnaires.  The purpose of all this is to ensure, as far as possible, that the court and parties have all the evidence for the Financial Dispute Resolution hearing so that agreement can be reached.

The financial dispute resolution (FDR) hearing.

The purpose of the FDR is to encourage settlement without the need for a final hearing in which the judge will decide the issues on contested evidence. The advantage is that settlement will cost the parties less. The FDR is an opportunity for the parties and their lawyers to negotiate at court and to benefit from the input of the judge. The judge will have seen all the papers, including offers and counter offers exchanged. The hearing will last for approximately one hour. Parties will need to attend court an hour beforehand to facilitate discussions and negotiations. They don’t need to give evidence at this hearing. The judge will listen to legal submissions from both parties. The judge will then give guidance on any matters in dispute and will assist the parties by giving an indication as to the likely order the judge would make if determining the case. Importantly, the judge at the FDR will not be able to conduct the final hearing. This is to encourage open negotiations at the FDR and for the judge to give a view.

The final hearing

The final hearing is the last resort and can be very costly for parties. Both parties will most likely have a barrister to represent them at final hearing, which involves preparation of a trial bundle submitted to court in advance and preparation of legal skeleton arguments. Both parties will be required to give evidence under oath and face questions from the other party’s legal representative. The final decision will be made by the judge with reasons given in a judgment.

How do I instruct a divorce barrister?

Our Public Access Barristers have a wide range of experience of divorce law. They can advise you on all aspects of your case and represent you in Court if necessary.

To get in touch with a member of our team, read our simple step-by-step guide, then contact our clerks who will put you in touch with the family barrister best able to accommodate your needs.

By Nigel Taylor | Divorce and Finance

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February 23, 2018
What is an order for periodical payments? 

What is an order for periodical payments? 

In terms of divorce and separation, a periodical payment order is the term for spousal maintenance i.e. ongoing (usually monthly) payments made by one party to the other.  The Court has the power to order that periodical payments will commence upon granting of decree for divorce as part of the parties’ financial remedy proceedings.  Prior to that, the Court has the power to order ‘interim maintenance’ or ‘maintenance pending suit’. 

There is not a fixed calculator to guide the amount of spousal maintenance.  Whether the Court makes a periodical payment order and indeed, the level of this maintenance depends on the circumstances of the case.   Fundamentally, when considering an order for periodical payments, the Court will need to determine: 

  • What are the parties’ incomes, or earning capacity; 
  • What does each party need; 

The Court will assess whether the payer has sufficient income to meet their needs, and whether they should make a regular payment to help the other party meet their needs.  The Court will then go on to assess the term of the payments.  They can be short-term orders to assist the weaker party to transition to independence, or long-term if such a transition is not possible.  An order for periodical payments may not extend beyond the joint lives of the parties or the re-marriage of the individual receiving the maintenance.

If you consider that you may be entitled to an order for periodical payments, or you may be liable to pay spousal maintenance, it is worth getting early advice from a lawyer about what a Court would likely order.  The level and term of spousal maintenance is one of the most complex and fraught types of application before the Family Court, and there are many types of financial orders that can be applied for.  

Our specialist Clerks can match you with a family barrister who best fits the demands of your case. Read our simple 4-step guide to instructing a Direct Access Barrister, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Anita Mehta | Divorce and Finance

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January 26, 2018
How do I find a good divorce lawyer? 

How do I find a good divorce lawyer? 

Divorcing can be a challenging, stressful and emotional process. Each case is unique and though it can be possible to come to an early agreement through mediation or a negotiated settlement, cases can sometimes be more complex and require Court hearings. Even the most amicable divorce may see disputes arise when it comes to resolutions about the things that matter most – your children, your home and your financial security.  

It’s therefore crucial that you find a lawyer who is able to provide you with the support and advice you need and, where necessary, to represent you in Court. The choice of who to instruct is a decision for you alone and it is important to find somebody who you feel comfortable working with in order to get the best possible outcome in your divorce. 

Instructing a family barrister directly 

Many people are not yet aware that it is now possible to instruct a barrister to advise or represent you during your divorce without going through a solicitor first – through what is known as the Public Access Scheme. A Public Access barrister is an expert in their field of law who specialises in advising clients and providing representation for them at Court if necessary. They can also assist in drafting documents, and their Court experience as a specialist advocate gives them the knowledge to help you to understand your options and give you realistic advice about your prospects. Our barristers can also offer you advice on mediation as well as providing the mediation service itself.   

It can often be more practical and cost-effective to let a barrister handle your case directly through this public access scheme, than to use a solicitor.  

Our award-winning, specialist legal Clerks are well placed to help match you with a family barrister who best fits with the demands of your case and you will be able to discuss your particular needs to make sure you find the best lawyer to represent you. You will be able to discuss the work that you require help with and agree fees in advance so that you know where you stand. However, not all cases are suitable to be handled by a Public Access Barrister, in which case we would refer you to a solicitor with the expertise you require. 

How to choose a divorce lawyer

When selecting your barrister, there are a number of things you should bear in mind:  

  • Make sure you choose a specialist in family law. A specialist will have the relevant knowledge and experience to handle your case effectively. They will be up-to-date on changes in the law and recent pertinent rulings. 
  • Ensure you feel comfortable with your barrister. The divorce process could take a number of months or it could take much longer – so it is essential you have the right person supporting you. At the initial consultation, pay attention to whether the barrister listens carefully to your information and concerns, whether you are comfortable opening up to them and whether you feel confident in their abilities. And if you would prefer a male or female barrister to take on your case, make sure you state this when you first speak to the clerk.  
  • Find out what other people are saying about them. Read testimonials from former clients to give you an idea of the barrister’s experience and take into account any relevant legal accreditations. Our practice is graded Tier 2 on the Chambers & Partners Legal 500 list – a prestigious ranking system which provides a clients’ guide to the best law firms in the UK. We’re very proud of this ranking, which underlines the superb reputation of our practice.   
  • Allow plenty of time. Barristers’ diaries get filled up well in advance with court bookings, so approach the lawyer of your choice in good time to allow them to consider your papers and advise you accordingly. This will ensure you are dealing with someone you are comfortable with and confident about, rather than someone who is available to work with you at the last minute.  
  • Ask lots of questions at the initial meeting. A good barrister will appreciate this approach. Ask us about our practice and experience. Think about what you want from your barrister – whether you need mediation, advice on your case, answers to a technical question, or representation in court 

What do I do now 

Choosing a lawyer is a very personal choice. You need to have the utmost trust and confidence in the person advising and/or representing you as they try to make the process as straightforward and stress-free as possible for you. 

If you are ready to start the process of instructing a divorce lawyer, read our simple step-by-step guide then get in touch with our clerks in our central Brighton office who will be able to advise you on what to do next.

By Anita Mehta | Divorce and Finance

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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June 22, 2017
Should matrimonial assets always be shared between the parties on an equal basis?

Should matrimonial assets always be shared between the parties on an equal basis?

What about when the case involves a ‘short marriage’?

The Court of Appeal has recently handed down judgment in the case of Sharp v Sharp [2017] EWCA Civ 408. The lead judgment is by Lord Justice McFarlane who describes the issue to be grappled with as follows:

‘In White v White [2001] 1 AC 596 (‘White’) the House of Lords established what has become a principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. The present appeal requires this court to consider whether that is inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together. Although the possibility of a relaxation of the sharing principle in such circumstances has been described in earlier cases, this is the first occasion that the point has arisen directly for determination at Court of Appeal level since White and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618 (‘Miller’).’ (see paragraph 1)

The wife was a trader and the husband worked in IT. They initially both had basic salaries of around £100,000pa, but the wife received annual bonuses of around £10 million pounds during the marriage. The marriage lasted for around 6 years, including 18 months of pre-marital cohabitation.

McFarlane LJ considers in depth the relevant legal cases, which is outside the scope of this news article.

McFarlane LJ was clear at paragraph 75 that:
‘Nothing that is said in this judgment is intended in any manner to unsettle the clear understanding that has been reached post-White on the approach that is to be taken to the vast majority of cases. The focus of the present appeal, which is very narrow, is upon whether there is a fringe of cases that may lie outside the equal sharing principle.’

However, the court held that in a case such as this:

‘…fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation.’ (see paragraph 97)

The court limited the husband’s total share to £2 million from a total pot found to be £6.9 million at first instance, but excluded the wife’s liquid capital from being part of the matrimonial assets for equal sharing. The husband received one half of the capital value of the two properties (his share was £1.3 million) and was provided with an additional award amounting to £700,000 to reflect a combination of the following 3 factors:
‘(a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he is to retain; and (c) some share in the assets held by the wife’ (see paragraph 114)

In the writer’s opinion, this case is likely to add to, rather than settle, the on-going discussion about the applicability of cases such as White and Miller to the division of matrimonial assets between the parties in ‘short marriage’ cases.

If you have a case that you would like help with then please use our easy to use ‘enquiry form’ which can be found here.

Further reading:

White v White [2001] 1 AC 596
(http://www.bailii.org/uk/cases/UKHL/2000/54.html)

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618
(http://www.bailii.org/uk/cases/UKHL/2006/24.html)

Sharp v Sharp [2017] EWCA Civ 408 (http://www.bailii.org/ew/cases/EWCA/Civ/2017/408.html)

Daniel Miller has been a practising family barrister since 2005.

He practises in all areas of family law, with a focus on financial remedy cases. He has had extensive exposure to financial remedy cases at all levels, which frequently involve disputed company assets, international issues, and trusts. He accepts work both under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.

Make an Enquiry

Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

Enquire