Recently Asked Question and Answers on Family Law

Recently Asked Question and Answers on Family Law

Question 1: My estranged husband has transferred all of his assets to his brother. Will this affect our Divorce?

There is an obligation on husbands and wives when they separate or divorce to be open and honest with each other and to act appropriately. If he has transferred assets in an attempt to deplete your financial entitlement the Court has the power to overturn such a transaction and to take that into account as part of a Divorce settlement.

Question 2: Are maintenance Orders linked to inflation? How could they be increased?

Maintenance Orders for an ex-husband or ex-wife are not automatically linked to inflation. The Order dealing with the maintenance can include a provision linked to the Retail Price Index but that is unusual. Maintenance can be increased by agreement or an Order can be varied if there is a change in circumstances so an Application can be made to a Judge. This is in relation to maintenance for an ex-wife or ex-husband but maintenance for children can only be dealt with by the Child Maintenance Service if agreement is not reached as the Courts have only limited powers over and above what the Child Maintenance Service can assess the level of maintenance at.

Question 3: My wife has been violent to me in the past. I have been told to get a Civil Injunction but what is it and what does it do?

An application can be made for an injunction which is a Court Order to protect a victim of domestic violence. Any violence is a criminal offence and can be reported to the police for criminal action to be taken. This should always be the first step as the police may be able to take the quickest action and may be able to put measures in place for your protection such as ensuring your address is noted on their system for a quick response, installing panic alarms in your property, and prosecuting any offences via the criminal justice system, which can include obtaining a Restraining Order against the person concerned. In the alternative, or alongside any action the police may take, a civil injunction, such as a Non-molestation Order, may be required. Much like a Restraining Order, which is obtained through the criminal courts following a prosecution, a Non-molestation Order can provide for measures that protect you such as prohibiting your partner from contacting you or coming near you or your property. Once a Non-molestation Order is in place, its breach can be enforced as a criminal offence by the police or through the civil courts as a contempt of court.

Question 4: If I have joint custody or sole custody of our daughter would I still have to pay my ex-wife maintenance?

The Child Maintenance Service makes assessments in relation to the payment of maintenance to children if parents cannot agree. Whether maintenance would have to be paid does depend on the particular circumstances and the amount of time that a child spends with each parent.

Question 5: What is a Financial Clean Break Order and what does it do? Can it be challenged in the future like in these Court cases I see?

A Financial Clean Break means that a husband and wife will not be able to make any future financial claims against the other after their Divorce. In particular it would normally include the provision of all claims for maintenance, capital and against the Estate of the deceased on the death of one of them. It is rare for a Court Order to be challenged and there would need to be a good reason for this. There have recently been a number of high profile cases where Court Orders have been re-opened because of the lack of honesty and financial disclosure given by a husband. Usually however a settlement that is agreed and contained in a Consent Order which adds provision for a Clean Break is not capable of being challenged.

Question 6: My Dad only lent me the deposit for our flat if I make my fiancée sign a pre-nup. What if he won't?

A Pre-Nuptial Agreement can set out the terms that are accepted should apply if there were to be a Divorce. Very often pressure is exerted from members of family that give or lend money to a son or daughter if they are concerned about what would happen on a subsequent Divorce. Signing a Pre-Nuptial Agreement is entirely voluntary and cannot be forced on anyone.

Question 7: My estranged husband wants to come back to try again. My cousin told me about post-nups in the USA – what are they?

A Post-Nuptial Agreement is similar to a Pre-Nuptial Agreement but is entered into after a marriage. They have generally been accepted in this country as being even more enforceable than a Pre-Nuptial Agreement. They are intended to set out what a husband and wife intend should happen if their marriage breaks down and there is a Divorce. Pre-Nuptial Agreements and Post-Nuptial Agreements are becoming more common in this country and are now widely accepted by the Court as binding so long as there are safeguards in place to ensure that they are fair. It is now no longer left to the rich and famous to have such agreements.

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