Family Law

Family Law - Matrimonial, Financial Relief and Children Act

Whether it is Injunctive relief, Divorce, Financial provision, Private or Public Child Law matters, we provide a consistent and committed service. We provide advice and assistance in the following areas:

Divorce

The purpose of a divorce is to terminate a marriage between two people. However, you can only obtain a divorce if you have a legal reason for the court to then decide.

• Your partner has committed adultery and you find it intolerable to continue living with him
• Your partner has been abusive or behaved in such a way that it would be unreasonable to continue living with him.
• Your partner has purposefully left you for a continuous period of at least two years or more.
• You have been living separately from your spouse for two years or more and they consent to the divorce being granted.
• You have been living separately from your spouse for five years or more, whether or not your spouse agrees to the divorce.

Either person in the relationship has the right to file for a divorce if one or more of the conditions above have been met. At AH Page, we aim to help our clients go through the process of divorce and provide you with the best support.

Property and Finance

The factors that the Court will take into account are set out in the Matrimonial Causes Act and include the treating of any welfare of any minor child of the family when dealing with an application for a Financial Order. However, the Court will also consider the following:

a)
1. The income, earning capacity, property and other financial resources, which you and your spouse has or is likely to have in the foreseeable future, including, in the case of earning capacity, any increase in that capacity which would in the opinion of the Court be reasonable to expect you and your spouse to take steps to acquire;
b)
2. The financial needs, obligations and responsibilities which each of you have or are likely to have in the foreseeable future;
c)
3. The standard of living enjoyed by the family before the breakdown of the marriage;
d)
4. The age of you and your spouse and the duration of the marriage;
e)
5. Any physical or mental disability that either you or your spouse may have;
f)
6. The contributions which each of you have made or are likely to make in the foreseeable future, for the welfare of the family, including any contribution by looking after the home or caring for the family;
g)
7. The conduct of you and your spouse, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard it;
h)
8. In the case of proceedings for divorce or nullity of marriage, the value to you and your spouse of any benefit which, by reason of the dissolution or annulment of the marriage, you or your spouse will lose the chance of acquiring. This could be a pension, for example.
i)
9. With regards to the exercise of the power of the Court, in relation to a child of the family, the Court shall in particular have regard to the following:

(i)
1. The financial needs of the child;
(ii)
2. The income earning capacity (if any), property and any other financial resources of the child;
(iii)
3. Any physical or mental disability of the child;
(iv)
4. The manner in which he/she was being trained and in which either you or your spouse expected him/her to be educated or trained;
(v)
5. Considerations mentioned in relation to you and your spouse in paragraphs (i), (ii), (iii) and (iv) above.

In Financial proceedings, where either you or your spouse has, or is likely to have any benefit under the Pension Scheme, the Court shall additionally consider whether a Financial Provision Order should be made and if it feels that it should have, the terms of the order could be effected having regard to any such matters. If the Court does decide to make a Financial Provision Order, it can make provision for dealing with pensions. More likely, the Court may make a greater or less Financial Provision Order to take into account loss of pension benefit as a result of the breakdown of the marriage.

Fraudulent disposal of property

If you believe your spouse has disposed of or dissipated any of the assets, then you can apply to the Court to set aside a transaction. You will need to demonstrate the following:

1. This disposition is about to take place;
2. This took place less than three years ago;
3. This will have the effect of defeating the Applicant’s claim for ancillary relief.

Injunctive Relief

Domestic violence means any violence or threat of violence that takes place in or outside the home between family, household members or partners in existing or previous relationships. It can include mental, emotional, financial, physical and sexual violence. This includes harassment, for example persistent letters, text messages or emails and psychological or mental abuse.

Remedies

An injunction is a type of court order which forbids an abuser from doing certain things. If the abuser disobeys the order, he can be punished by being fined or sent to prison. There are two kinds of injunction available under the Family Law Act 1996 – non-molestation orders and occupation orders.

A victim can only apply for these types of orders if they are associated to their abuser. They are only associated to the abuser if they:

• Are or were married in a civil partnership
• Are or were living together as a couple (including same sex relationships)
• Are or were engaged to be married or agreed to enter into a civil partnership
• Are or were living in the same household (this includes flat mates)
• Are related (this includes half-blood and step relationships, people who would be in-laws if you were married or in a civil partnership and now includes first cousins)
• Are parents of the same child or involved in the same family court case
• Are or were involved in the same family court case
• Are or were involved in an intimate relationship of significant duration

A non-molestation order will protect you from violence or harassment.

The abuser does not have to have been physically abusive towards the victim. The non-molestation order can:

• Forbid the abuser from being violent towards the victim or any children in their family
• From threatening violence or from harassing, pestering or intimidating the victim in many different ways
• Stop him/her from coming within a certain distance of their home
• Forbid him/her from damaging or disposing of their belongings

A non-molestation order can still be applied for even if the victim still wants to remain in the same household. An occupation order deals with who lives in their home. A non-molestation order will protect you from violence or harassment. It can:

• Order the abuser to move out of the home or to stay away from the home
• Order him/her to stay a certain distance away from the home
• Order him/her to stay in certain parts of the home
• Order him/her to allow the victim back into the home if he/she has locked them out
• Order him/her to pay the mortgage, rent or bills for the home
• Order him/her not to damage or destroy the home

The type of occupation order they can apply for depends on whether the victim or the abuser are legally entitled to occupy the property and on the type of relationship they have.

You can apply for an injunction if you have been the victim of domestic violence. The court order will either protect you or your child from being harmed or threatened by the person who has abused you (non-molestation order) OR it will decide who can live in the family home and enter the surrounding area (occupation order).

AH Page Solicitors are able to offer services for people suffering from domestic violence and abuse. If our clients are not granted legal aid, we will assist as best as we can and may give advice free of charge.

Children (Private)

Deciding what should happen to your children when you and your spouse have split up can be difficult. You might not be able to agree who your children should be with, or who they should see. Going to court should be a last resort. There are many other ways of reaching an agreement on what should happen with your child.

Family meditation is one way of settling differences during and after separation or divorce. A trained mediator will help you and your ex-spouse to make arrangements for looking after your children and or finances. A mediator is a qualified independent person who will not take sides or try to get you back together.

A child arrangements order decides with whom a child is to live, spend time or otherwise have contact (which can include through letters of telephone calls), and when this should take place. For example, if your child lives with your ex-spouse and you want to see your child at weekends, or you cannot agree which parent the child is to live with, you might want to apply for a child arrangement order.

A specific issue order relates to something specific that either parent raises about the way the other parent is looking after the children. For example, you and your ex-spouse may not be able to agree on where your children should go to school.

A prohibited steps order stops a parent from doing certain things without the court’s permission. For example, you or your ex-spouse might need to get the court’s permission before taking the children abroad.

We are passionate on client service and achieving the best possible outcome in each individual case. As members of Resolution, we provide a conciliatory approach to all Family matters and encourage out of Court resolutions rather than protracted litigation wherever possible.

Our Family Department includes members of the Family Law Advanced Panel who are able to provide specialist advice in areas of Domestic Violence and Finance applications.

For those who are eligible, we are able to offer Legal Aid in various areas of Family Law.

If Legal Aid is not available, we are able to provide high quality advice and Court representation, including on a fixed fee basis from initial consultation to the conclusion of your case.

In the case of an emergency concerning Domestic Violence, you can contact us on the following number: 020 8554 1985
A member of the team will be able to deal with your queries as quickly and as efficiently as possible.

Children (Public)

Section 20 – Accommodation

If the Local Authority does not feel that the child can remain living with you or your spouse whilst such an assessment is carried out, they may ask you to agree to the child being accommodated under a Section 20 Agreement. The Local Authority may not provide accommodation for the child if anyone with parental responsibility for the child objects.

In such circumstances where a child is accommodated under Section 20, the person with Parental Responsibility (you and/or your spouse) has a right to remove the child at any time, as it is a voluntary agreement. However, where the Local Authority are carrying out investigations, they are likely to bring immediate Court action if either you or your spouse attempt to remove the child against their advice.

Generally, parents are advised to cooperate with the Local Authority. The onus is then on the Local Authority to show that it has done everything reasonable to assist the child and its parents.

Emergency Protection Order

The Local Authority may apply for an Emergency Protection Order where they believe that a child may be at risk. An Emergency Protection Order can authorise the Local Authority to remove a child from where he is (e.g. from his home) to a safe place, or to keep him in a safe place (e.g. hospital). To get such an Order, the Local Authority have to show that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by and on behalf of the Local Authority, or does not remain where he is. It may also apply for an EPO on the grounds that the enquiries the Local Authority are trying to make are being frustrated, e.g. access to the child is being unreasonably refused.

Care Orders

The Local Authority may apply for a Care Order and this is:

A.
1. Placing the child with respect to whom the application is made in the care of the designated Local Authority.
B.
2. Putting him under the supervision of the designated Local Authority.

When the Local Authority makes an application for a Care or Supervision Order, the mother is a party to the proceedings, as is a father who has Parental Responsibility, or anyone with a Residence Order in respect of the child. Fathers without Parental Responsibility will be notified about the Court proceedings and can apply to be joined to the proceedings. Sometimes other family members, who have been involved with the children, can also apply to be joined as party to the proceedings, if the Court agrees to this.

The child has their own Solicitor who is appointed from a special panel of Solicitors who represent children (the Children Panel). The Court will also direct a Guardian to represent the child’s interests. The role of the Guardian is set out in more detail below.

The Law

The Local Authority will usually apply for an Interim Care Order at the first hearing. Both you, the Guardian and the children’s solicitor can make representations about this. If you do not consent to the Interim Care Order, there may have to be a contested hearing in order for the Court to decide whether or not there should be an Interim Care Order. The advice given as to whether or not to consent to an Interim Care Order varies in every case depending on the individual circumstances.

The average duration of a care case is approximately 26 weeks, but this depends on the individual circumstances of each case and in some cases can be less or in excess of this. There will be a succession of hearings between the first hearing and the final hearing, known as interim hearings. At the outset of proceedings, the Court will lay down a procedural timetable setting out when parties should file statements and when and what reports are needed. The purpose of the interim hearings is to ensure that work that is required to be done before the final hearing is completed, and to deal with any other issues as they arise.

The Threshold Criteria

The Court cannot make a final Care or Supervision Order unless it is satisfied that:

(a)
1. The Children are suffering or likely to suffer significant harm and
(b)
2. That the harm or likelihood of harm is attributable to:

(i)
1. The care given to the child is not what it would be reasonable to expect the parent to give him or
(ii)
2. The Children are beyond parental control.

If the Court decides to make a Care Order at the Final Hearing, then a Care Order remains in force until a child is 18.

Cohabitation / The Unmarried Family

When two people live together, there is no body of legislation in place to protect them as there is with married couples. The basic rule is that property can only be dealt with on the basis of pure property law principles. The parties will need to answer the question, “Who owns this?” rather than “To whom should this go?”

Where property is held in joint names, the law assumes that it is held equally, i.e., 50:50, unless there is evidence of an agreement either verbally or in writing that the shares are in some different proportion. When the position is set out in writing the position is normally clear cut. However, where there is no written agreement and where one of the parties claims a substantial and significant contribution to the purchase, upkeep or improvement of the property then the Court can make a determination that the shares are held other than equally. This very much depends on the strength and reliability of evidence.

Beneficial ownership – Establishing a Trust

If the property is held in one name, then there is an assumption that that party owns all of the beneficial interest in the property. In this situation, the other party will have to establish a claim in equity. There are various methods by which a party can establish a trust (and therefore proof of a share) in the beneficial ownership of a property. If the action is successful and a trust is established, then the non-legal owner will be entitled to a share in the property equal to his/her beneficial interest as determined by the Court in accordance with land law principles.

An express trust instrument or declaration of trust, will establish a clear beneficial interest in the property. The declaration of trust can be included in the purchase deed relating to the property but it is preferable if it is created as a separate trust deed.

A resulting trust in the property will be established if there is evidence of an agreement to share the property beneficially plus evidence that the non-owning party acted to their detriment in reliance on the agreement.

A constructive trust is established when no evidence of an agreement is present but a common intention to share the property beneficially is inferred by the conduct of the parties. An example of this would be where one party has made direct contributions towards the purchase price or the mortgage repayments.

If a party believes they have a beneficial interest in the property, they should register their interest either by means of a pending land action (in unregistered land) or a unilateral notice (in registered land).

Pre-Nuptial / Post Nuptial Agreements

Pre-Nuptial Agreements are not binding yet but, in some cases, will carry decisive weight. They are becoming of greater interest and weight within matrimonial proceedings. Pre-Nuptial Agreements are very different from Post-Nuptial Agreements.

The general rule is that these Agreements can assist, but they will not dictate.

The reason that one party usually seeks to enter into a Pre-Nuptial Agreement, is that they are the financially-stronger party and they seek to protect assets from the discretionary awards made by the Courts. If there was no Pre-Nuptial Agreement, the Court would make an award, taking into account the length of the marriage, the needs of the parties and the standard of living they have become accustomed to and all other factors set out in S25 of the Matrimonial Causes Act 1973.

Everyday cases where someone may want a Pre-Nuptial/Post-Nuptial Agreement

1. Family money at start of marriage
2. Those who can’t stop marrying, divorcing and remarrying
3. Where there are children from a previous relationship whom clients wish to protect financially
4. International marriages, potential for forum shopping on divorce
5. Reconciling divorced parties
6. Parties who need religious divorce (GET/Talak)

Islamic Divorce

Islamic Family Law was introduced over 1,400 years ago. The Quran lays out a legal system for divorce proceedings.

There needs to be a declaration for divorce being made. The parties are then advised to carry out some mediation sessions in order try and resolve the matter. Following this there should be a 3 months waiting period given, this is known as “iddat”. This takes place in order to allow for reconciliation and determination of paternity of unborn children.

There are 4 different types of Islamic Divorce which can take place: ‘Talaq’, ‘Khula’, ‘Faskh’ and ‘Tasweed’.

• Talaq: is when the man unilaterally gives a divorce to the woman. However he then has to pay the Mehr financial settlement in full.
• Khula: is where the wife would, without giving a reason, ask the husband for a divorce. The wife would then also need to return her Mehr back to the husband and only then can the divorce be complete. This is regardless of the fact of whether the husband contests to the divorce.
• Faskh: here the wife may apply to an Islamic Court or to the Sharia Council to divorce her husband. She must give reasons as to why she believes that her husband has broken down the marriage contract. It is then up to the court to decide if the man is guilty. If the decision of the court is made in favour of the wife then she allowed to keep her Mehr and the divorce is granted.
• Tafweed: when the rights of a woman to divorce are included in the marriage contract. These can be either unconditional or conditional depending on certain events.

A.H. Page work alongside the Muslim Arbitration Tribunal in the event that you are seeking a “Khula”. The conduct that can empower the Islamic Divorce Panel with the Muslim Arbitration Tribunal to dissolve the marriage, are in the following instances:

1. The Respondent does not respond to any of the Khula Notification Letters and the Muslim Arbitration Tribunal is satisfied that there were no valid grounds as to why the Respondent failed to respond; or
2. The Respondent refused to grant a Declaration of Divorce and refused to grant the Applicant a Khula or negotiate the terms of the Khula; or
3. The Respondent failed to attend the Mediation Hearing and he had been informed of the date and time the Mediation hearing was to take place and the Muslim Arbitration Tribunal is satisfied that no valid grounds exist as to why the Respondent failed to attend

The Muslim Arbitration Tribunal shall write to the Respondent (“The Dissolution of Marriage Notification Letter”). The Dissolution of Marriage Notification Letter shall inform the Respondent that his marriage with the Applicant has irretrievably broken down and that this correspondence serves as a last and final chance for the Respondent to engage in this process and he should therefore either grant the Applicant a Divorce or grant the Applicant a Khula, failing which, the IDP shall dissolve the marriage.