‘Family Law’ is an umbrella term which refers to all of the various areas of law affecting families and family relationships (whether heterosexual or homosexual), from (the agreements made between a couple prior to or post) cohabitation or marriage/civil partnership to the financial and other consequences of relationship breakdown, including making arrangements for any child(ren). Additionally, it covers all aspects of the relationship between a parent and a minor child, whether or not the parents share a biological connection with the child are and whether or not the parents are or were in a relationship.
What is a Family Lawyer?
A Family Lawyer is a lawyer practising in the area of Family Law. He or she would usually be a specialist/expert solicitor in this area of La, as not all lawyers are able to give Family Law advice.Which areas of law are included under ‘Family Law’?
A divorce legally brings a marriage to an end and leaves the couple free to re-marry should they so wish. In England and Wales there is only one ground for divorce and that is – that the marriage has broken down irretrievably. The fact of such irretrievable breakdown must be evidenced by one (or more) of five supporting facts, the first three of which are the ‘fault facts’:
a. Adultery *
b. Unreasonable behaviour
c. Desertion for 2 years
d. Separation for 2 years with the consent of the other spouse to the divorce
e. Separation for 5 years
* not applicable in the case of same sex marriages, the definition of adultery under English Law involving penetrative sex between a man and a woman
Arrangements for Children
When a relationship breaks down, the key issues to be decided in connection with any children are with whom they will primarily live and how much time (if any) they will spend with the other parent.
A child arrangements order (made pursuant to section 8 of the Children Act 1989) means an order directing with whom a child is to live (a child arrangements ‘lives with’ order) and with whom a child is to spend time or otherwise have contact (a child arrangements ‘spends time with’ order). Thus, whilst a ‘lives with’ order confirms with whom a child is to live, a ‘spends time with’ order deals with whom the child is to see or otherwise have contact. Such order could be either direct (face to face contact whether on a visiting or staying/overnight basis) or indirect (by letter, telephone, email, text, Skype, FaceTime etc).
Other orders that may be sought include the obtaining of parental responsibility for a child by an unmarried father, a specific issue order (eg in relation to the appropriate schooling or religious education for a child where there is no agreement between the parents) or a prohibited steps order (eg to prevent a child’s removal from a particular school or from leaving the UK).
A financial settlement is simply an agreement or court order dealing with the division of assets between the separating parties, any ongoing financial provision (maintenance) by one to the other and the severing, as far as it is possible to do, of their financial relationship post-divorce/post-civil partnership dissolution. Depending on the amount and the nature of the assets and how reasonable each spouse/civil partner is willing to be as regards the other, sorting out the division/sharing of their physical property (eg the family home) and pensions and the amount and duration of any maintenance can be an even more daunting task when they do not know where to start or what indeed each of them would be entitled to. That is where expert legal advice is required.
Civil Partnership Dissolution
Legally, a dissolution order brings a civil partnership to an end and leaves the couple free to re-marry or enter into a new civil partnership. As the law currently stands, only same sex couples can register as civil partners of each other, but the legal status of civil partners is akin to that of married partners (whether opposite sex or as of March 2014, pursuant to the Marriage (Same Sex Couples) Act 2013, same sex partners). As with Divorce, in England and Wales, there is only one ground for the dissolution of a civil partnership and that is – that the civil partnership has broken down irretrievably. The fact of such irretrievable breakdown must be evidenced by one (or more) of four supporting facts set out at s 44(5)(a)-(d) of the Civil Partnership Act 2004, the first two of which are the ‘fault facts’:
a. Unreasonable behaviour
b. Desertion for 2 years
c. Separation for 2 years with the consent of the other partner to the civil partnership dissolution
d. Separation for 5 years
A pre-marital/prenuptial or pre-civil partnership registration agreement (referred to colloquially as a prenup!) is a formal written agreement between a couple entered into prior to their marriage or civil partnership. It typically sets out what has been agreed between them should happen with regard to the ownership of financial assets and property in the event of the breakdown of their marriage/civil partnership. It is often said that prenups are not very romantic and that they are evidence of incompatibility or of a lack of a trust by the party wishing to enter into one in the other. Not so. If marrying or entering into a civil partnership for a second (or third) time or later in life, you may have acquired wealth and assets which you would want to protect or preserve for children from an earlier marriage or for family members. It could well make sense to enter into a prenuptial agreement to protect and preserve what is being brought into the marriage/civil partnership.
High Net Worth Divorce (or Dissolution)
Oftentimes, cases involving wealthy clients (including high earners and those with substantial capital assets) are, for want of a better description, termed ‘high net worth’ divorce (or dissolution) cases. In many cases, one or both of the parties will have come into the marriage or civil partnership having amassed substantial wealth through work, gifts or inheritance. There are equally as many cases where the family wealth has largely been built up during the marriage. For wealthy couples getting divorced or dissolving a civil partnership, the nature and extent of their wealth can add a layer of complexity and it vital therefore that advice is sought from an expert Family Lawyer.
International Divorce (or Dissolution)
International divorce/dissolution cases are those where either spouse/civil partner has international connections (whether by birth, working or living in a particular country or as a result of owning or having an interest in assets/property held in a particular country). Unsurprisingly, these cases can be very complicated, as financial settlements and other consequences of divorce/dissolution can differ enormously from country to country. A particular factual situation may produce a very different result if adjudicated outside of the UK and so a lot depends on where the divorce/dissolution takes place. That is why if your case has an international element, you should obtain specialist legal advice before taking any action.
The family home can be a violent and unsafe environment for some families whether married or unmarried, homosexual or heterosexual. Domestic violence can occur in middle class households just as much as in working class ones. It can touch all communities, all races and all ages. Even after a couple separate, violence may still occur. Depending on the effects of an assault, criminal and/or civil remedies may be available to the victim. A Family Lawyer can, if needed, apply to the court on your behalf for a non-molestation order (to prohibit further acts of violence, threats of violence or other forms of domestic abuse) or an occupation order (to potentially restrict the violent partner’s access to the family home).
‘Domestic abuse’ can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including but not limited to forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment’.
The word ‘cohabitation’ has come to denote the situation where two people live together as husband and wife or as civil partners in a family framework analogous to marriage or civil partnership without actually having gone through a ceremony of marriage or entering into a civil partnership. When cohabiting couples break up/separate, the rights and remedies available to them can differ markedly from those available to spouses and civil partners. Certainly, where advice is sought on the breakdown of the relationship or on death, the emotional effects and social consequences as well as the legal implications may be far more complex where the relationship involved cohabitation than otherwise would be the case. Again, before making any major decisions following the relationship breakdown, specialist advice should be sought.
Mediation is a non-court based way for separated/separating couples to resolve disputes about finances and/or their children. Mediation is voluntary and confidential. Mediation can be particularly effective when dealing with the arrangements for children (including with whom they will live as their primary carer and the level of contact they will have with the other parent, hether the children will spend equal time with each parent, arrangements for their schooling – choice of school and if applicable payment of school fees – and financial support for them). Mediation is not for everybody, but it is a good option for many. It is important that both parties feel safe and supported during mediation. Therefore, before a mediation starts the mediator will assess whether there are any safety concerns and whether the couple and their issues are suitable for mediation.
Family Arbitration is a non-court based way for separated/separating couples to resolve disputes about finances and/or their children. Arbitration is a process available to parties who are unable to reach an agreement, but who do not want to enter the more adversarial court process.
Arbitration is an option for resolving disputes that could and should be considered at all stages of a case. It can be utilised for decisions on discrete points that may be blocking resolution of issues in mediation or are holding up a negotiated agreement through solicitors.
The Collaborative Family Law process is a voluntary and largely confidential non-court based way for separated/separating couples to resolve disputes about finances and/or their children. It provides an open and non-confrontational approach to resolving matters. Each party appoints his or her own collaboratively trained family lawyer and the parties and their respective lawyers all meet together to work things out face to face. Each party will have their lawyer by their side throughout the process and so will have their support and legal advice as the meetings progress. Each person involved (the parties and the collaborative lawyers) must at the outset sign an agreement that commits them to trying to resolve all issues without going to court. The solicitors are prevented from representing the parties in court if the collaborative process breaks down, which ensures that everyone is absolutely committed to finding the best solutions by agreement,rather than through court roceedings.
Why choose Josiah-Lake Gardiner when looking for a Family Law solicitor?
Relationships are hard and not all have a happy ending. A bitter separation can lead to feelings of anger, resentment and shame. It can cloud how you approach new relationships. Also, it can impact how you view or value your continuing relationship with your spouse/civil partner or former cohabitant, particularly when you have children together and need to continue to function as parents and ongoing role models for your children. Our experienced team of solicitors will always endeavour to minimise the emotional distress of relationship breakdown on all members of the family, with particular emphasis on assisting clients to minimise as much as it is possible to do the emotional impact on any children of the family. It may be that you and your partner will, with our help, be able to secure an out of court agreement, but if you do have to go to court, our expert team will be by your side to guide, advise and assist you at every stage of the process, ensuring that your interests are safeguarded and your concerns addressed. It is not for nothing that Josiah-Lake Gardiner has, for a number of years, been named one of the UK’s leading Family Law firms by the independent legal guide The Legal 500. For more information or for answers to your Family Law questions, you should make an appointment with one of our expert solicitors.