Recently Asked Questions and Answers on Family Law

Recently Asked Questions and Answers on Family Law

Q. Can you advise on collaborative divorce? What's that?

The collaborative approach to divorce is a different from the traditional 'correspondence based' approach to resolving issues on a relationship breakdown. Instead of instructing solicitors to write on your behalf to your ex partner's solicitors to try to negotiate the issues outstanding, each of you would instruct your own collaboratively trained solicitors and discussions would take place in "four way meetings". Both of you and your solicitors attend these meetings, and advice and support is given throughout the process.

The aim of the collaborative process is to reduce hostility and encourage ongoing discussions and communication. The benefits of this can be reaped in the future, as you are more likely to remain on better terms with your ex-partner and you would be working together to reach an outcome that best suits your family's needs.

By signing up to the collaborative process, you would be agreeing not to issue proceedings at Court. If, at any stage, the discussions break down this would bring an end to the collaborative process. If one of you then makes an application to the Court, both solicitors have to stop acting. This can be another good incentive to reach an agreement through the collaborative process.

Clapham & Collinge offer advice on collaborative divorce and would be happy to assist in the proceedings.

Q. What alternatives are there to a traditional divorce if I want to remain on good terms with my partner?

There is only one way to legally formalise a separation and that is to start divorce proceedings. We are members of Resolution, which sets down a Code of Conduct for family solicitors, with the aim that all cases are conducted in a constructive and solution based way. It would be the aim that you would remain on good terms with your partner throughout the proceedings, with any issues being resolved through consent and co-operation.

There are other alternatives to divorce, although these do not formally bring the marriage to an end. You could consider entering into a Separation Agreement, which would regularise your separation and could deal with matters such as the finances or arrangements for children. Whilst Separation Agreements are not wholly legally binding, they are persuasive, and would form the basis of a formal agreement on the finances in any later divorce proceedings. It's therefore best to be very thorough when entering these Agreements to ensure you are happy with the terms, as it is likely you would be bound by them at any later date.

Q. If I'm going through a divorce how can I ensure my children are protected during separation?

The children should be protected from any adult arguments, so you and your spouse should try to be very careful about what is said to them about the separation. Appropriate levels of contact should be promoted and maintained to make sure the children retain a good relationship with both of their parents and it would be hoped that you will be able to make all the necessary arrangements for this between you.

In terms of protecting the children financially when it comes to dividing the family assets, the needs of minor children of the family is the first consideration of the Court. In particular, the Court will be keen to ensure their housing needs are met.

Q. If I'm main provider and separate from partner will I be entitled to a share of the family home or will I have to leave?

Separation often involves legal and practical considerations. For example, your legal entitlement to the property would need to be resolved and also the practicalities of how bills, mortgage and outgoings will be paid. If there is a joint mortgage on the property, then you both have a joint and several liability in respect to this. This means that one or both of you would need to ensure the mortgage is paid or risk repossession. You would still have this liability even if you weren't living in the property.

How to deal with your entitlement will differ depending on if you are married or if you are cohabitees. Firstly if you are cohabitees and you own the property jointly, you would both have the right of occupation. You will not lose your legal entitlement to the equity if you were to move out of the property, and ultimately this would need to be sorted out.

As joint owners, your entitlement to the property will follow your legal ownership. So, for example, if you are Joint Tenants then you are each entitled to 50% of the net equity unless you agree otherwise. If you bought the property as Tenants in Common and you entered into a Declaration of Trust to confirm that you own the property in different shares, then your entitlement to the property will follow the Declaration.

You would be entitled to make an application to Court for an Order for Sale in order to access your equity if you are unable to reach an agreement with your ex partner. However, if there are minor children living there, the Court may delay the Order for Sale until they are older if this is the only way to meet their needs.

If you are married then the approach to dividing family finances is different, and more focused on needs and particularly the needs of minor children of the family. The house, along with all the other family finances, would be considered as part of the wider negotiations. The starting point is an equal division of all assets, although all of your circumstances are considered and certain factors may make it appropriate to divert from this.

Again, married couples have a right of occupation even if the ownership of the property is in one person's name only. When it comes to who moves out of the property, this is something that needs to be agreed between you and the practical considerations of covering the outgoings would need to be carefully arranged.

Q. If we have a joint mortgage and we divorce who takes responsibility for repaying the mortgage? What happens?

A joint mortgage is a joint and several liability. This means that both or either of you will have to ensure the monthly mortgage payments are made. Therefore, it is not possible to simply pay half and then bear no responsibility for the other half of the payment, the risk is the lender would still take action against you in the case of default. Equally, there is no mechanism to force the other person to contribute towards the mortgage although it would be in their best interests to avoid the mortgage getting into default. As a result, making arrangements for the payment of the mortgage can often be a practical issue that needs to be resolved by agreement.

If you have separated, it may often be the case that the person remaining in the home takes over payment of the mortgage as they have the benefit of living in the property and the person who has moved out often then has living costs of their own. However, the liability in respect of the mortgage is ongoing for the person who has left the property, so it is important that discussions are had and an agreement reached in respect to how the mortgage is made.

In the long term, an agreement would need to be reached about what should happen with the house, whether it should be sold or transferred for example. This may well form part of the wider discussions about the separation.

Q. If we have a joint bank and savings accounts what happens to the money if we divorce?

All family assets are considered when looking at the finances on divorce. Often the first step is to agree to share financial information about all joint and sole assets so that the full extent of the family finances are known. From there, you can start to negotiate what would be a fair outcome and this would include what should happen to your joint savings.

If one party clears an account this would be revealed by the disclosure process. The other party can be compensated for this by way of other assets if necessary.

To find out more or discuss your individual requirements in further detail, our dedicated Family Law Solicitors are on hand to offer legal advice and support. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.