Divorce
ELA provide a divorce advice, support and information on any matter concerning you. The welfare of the child is paramount and we promote mediation and counselling as well as good, professional legal advice. We also promote collaborative law as a new dignified approach to divorce.
Our family solicitors provide professional, informative advice and support.
Divorce in England & Wales is currently granted on the basis of the irretrievable breakdown of marriage. The Family Law Act 1996 which was passed by Parliament would have amended the law in quite significant ways but it now appears that many of its provisions may never be brought into effect. There are currently five so-called "grounds" which can be relied upon as evidence of irretrievable breakdown:- adultery, unreasonable behaviour, desertion, two years’ separation with consent, five years’ separation without consent.
In practice most divorces are based either on unreasonable behaviour or adultery. The reason for this is that neither of these two grounds involve the wait which the other grounds involve. When a marriage breaks down it is not usually too difficult to find some instances of unreasonable behaviour on either or both sides and so this is, not unnaturally, seen as a route to a quick divorce. Once at least one spouse has become convinced there is no future to the marriage he/she usually prefers to end it sooner rather than later. Indeed, there are good reasons not to delay.
It is normally possible to allow a divorce to proceed without acrimony and neither party need ordinarily attend court. It is, however, often a tricky issue to handle at the outset and, although it is perfectly possible to have an "amicable" divorce and very many people do so each year, the way it is dealt with in the initial stages can have a major impact on what happens later.
Unfortunately, there are a number of matters on a divorce petition whose meaning is not immediately obvious to a lay person and these technicalities often cause difficulties where there need not be any. ELA can help to explain the legal terms and processes before and during the legal divorce process. Indeed, it is very often the receipt of the divorce petition and the "Acknowledgment of Service" which prompts a client to consult a solicitor for the first time about a divorce.
In point of fact it is very rarely possible to defend a divorce for two main reasons. Firstly, the very fact that one party to the marriage has presented a divorce petition is a fairly clear indicator of a serious breakdown in the relationship. Secondly, Legal Aid is very rarely available to defend a divorce mainly for the reason given above. Although divorce petitions can be contested that is uncommon and most solicitors would only recommend such a course if there was some clear advantage to be gained by doing so. Such cases are rare although very occasionally there are good reasons to file a cross petition. ELA can help you in all cases.
Marriage
ELA can advise on all your legal marriage related issues, however, we won’t advise you on the dress or tuxedo to wear!
Unless you are marrying in the Church of England or Church in Walesby Banns or Common Licence, notice of marriage has to be given personally to your local superintendent registrar(s) at the Register Office in the district in which you and your partner reside. A notice of marriage states the names of the parties to the marriage, age, marital status, address, occupation nationality and the intended venue for the marriage. It is a legal document
covered by the Perjury Act 1911. ELA can provide this document, and help you to understand and fill it out.
Both of you must have lived in a registration district in England or Wales for at least seven days immediately before giving notice at the register office. If you both live in the same district, you should both attend your local register office together to give your notices of marriage. If you live in different registration districts then each of you will need to give notice separately in your respective district. After giving notice you must wait a further sixteen days before the marriage can take place, (for example, if notice is given on 1 July the marriage may take place on or after 17 July).
Your marriage cannot go ahead unless the legal formalities have been completed. ELA advise on the correct procedure of the process of marriage so that you can celebrate without delay.
Notices of marriage must be given in person to the superintendent registrar by you and your partner. No one else can do so on your behalf.
Where an advance booking for a marriage has been made, it is essential that a formal notice is given to the superintendent registrar, once you are legally able to do so.
Registration Officers have a statutory duty to report any marriage they suspect has been arranged for the sole purpose of evading statutory immigration controls.
There are nationally set fees for giving notice to the superintendent registrar and the registrar's attendance at the marriage at a register office or religious building. However, the fee for the attendance of the superintendent registrar and registrar at a marriage in an approved premises (for example, at a hotel) is set by the local authority. The superintendent registrar of the district where you wish to marry will be able to provide you with details of the fees payable.
On the day of the wedding you will need to bring with you at least two other people who are prepared to witness the marriage and sign the marriage register.
If you wish to know more about marriage ceremonies at register offices or at approved premises please ask the superintendent registrar for details. While a marriage ceremony in the presence of a superintendent registrar cannot, by law, contain any religious aspects, it may be possible, with agreement, to include non-religious music and/or readings and for the wedding to be videoed.
A notice of marriage is valid for twelve months. However, you may be able to make an advance (provisional) booking with the superintendent registrar of the district where you wish to marry. The superintendent registrar will be able to give you more precise information on this.
Two unmarried people of opposite sex and at least 18 years of age are free to marry, provided they are not closely related members of the same family. Persons between the ages of 16 and 18 may marry under the same conditions, but with the written consent of their parents or other lawful guardians (or, in the final instance, of an English court of law. If the parents or guardians are overseas, their signatures should be witnessed by a notary or consular officer).
When giving notice of marriage, proof of identity is required in the form of a passport or birth certificate. Those who have been previously married will be required to produce documentary evidence of the death of their former spouse or of the dissolution of the marriage, in the form of a certified copy of a death certificate or divorce decree.
Under the Marriage Act, 1994, which came into effect in 1995, a marriage may take place in a place of religious worship, register office or public premises officially registered for marriages by the Registrar General for England and Wales. Civil marriages may now therefore occur in "seemly and dignified venues," such as stately homes, civic buildings or hotels (but not open-air venues) which have been officially registered for the purpose. Lists of such premises are available from the register office in the area of interest.
Civil Ceremonies
One of the following certificates is required for marriage to take place in a register office (the office of a Superintendent Registrar), a building approved for civil marriages or a place of religious worship registered for the solemnisation of marriages by the Registrar General. Although a period of residence is required in the district of registration, the marriage may take place at a venue in a different part of the country if it is specified at the time of registration.
Both parties are required to give notice and must have been resident in the district where notice is given for the seven preceding days. A period of 21 clear days must then pass before the Superintendent Registrar can issue the certificate, after which the marriage can take place any time within twelve months.
Although only one party is required to give notice, both must be in England or Wales on the day it is given. One of the parties must have resided in the registration district for 15 days immediately preceding the giving of notice. The notice must also specify the building in which the marriage is to take place. One clear day must pass before the Registrar can issue the certificate and licence, after which the marriage may take place any time within the following twelve months.
Church of England Ceremonies
A Church of England marriage may be solemnised after either of the preliminaries listed below:
The Publication of Banns
Application for the publication of banns should be made to the clergyman of the parish in which each party is resident. Banns must be published on three consecutive Sundays, after which the couple are free to marry at any time within three months.
or
Common Licence
This procedure dispenses with the need to have banns published. One of the parties must sign an affidavit that there is no legal impediment to the marriage and that one of the parties has been resident in the parish where the marriage will take place for at least fifteen days prior to the licence being issued. The marriage may then take place at any time within the next twelve months.
Church authorities advise that marriage in a Church of England between two foreigners or between a foreigner and a British subject should be by licence and not after banns.
So whichever method you choose for your wedding, you can see it is a complicated road before the big day. ELA can ease this pressure and ensure that you get all the legal aspects out of the way so you can concentrate on other more enjoyable aspects of your wedding.
Separation
Matrimonial law is a sensitive issue. Many issues guide how you feel, however, the law dictates processes which need to be adhered to. ELA can help explain the legal issues at hand when you separate from a long term partner or spouse.
You might wonder whether you will have to leave your house. The answer is that no one has to leave the house. Often it is just emotionally and physically safer for both of you and for the children for one person to leave. However, if you do leave the house without your children then you can face significant disadvantages.
If you move out you will often be the one who needs to start the ball rolling to get your entitlements; and you may never get your fair share of the household contents unless you do this when you leave.
The children (if you have any) should be taken great care of. Often one person has been the primary caregiver for the children and usually they will become the parent with whom the children reside, you can object to this being in the best interests of the children. The children have contact with the other parent. It is often best for the children and you if you and your partner can agree on these arrangements as they will be easier for you all to use in the future.
ELA can advise you if you would like to move away, or if you partner wants to move away – perhaps to another country. If you don't give permission and your partner moves then they can often be forced to move back.
You must act quickly in this case – ELA can inform of the legal position and help you to fight for your parental rights.
The mortgage is the next large issue requiring discussion. Who ‘gets’ the property is a matter for agreement until your property settlement. Usually the person living in the house is seen as a tenant who should pay a fair rent for the house. A fair value is often represented by the amount of the mortgage repayments.
Similarly, you usually keep the car you were driving when you separated and an adjustment will be made in the final property settlement for its value.
You might also have questions about joint money – perhaps joint savings or a joint account – even a trust for the children. Remember that what you use will be counted in the final property settlement. Do not drain the account; it is not a good start to your future negotiations.
The residential parent will bear the primary cost of caring for the children but the other parent will pay Child Support. The base amount that must be paid is calculated on the parents’ respective incomes using the formulae; these can be obtained from ELA.
Both you and your partner have the right to live in the house. If your personal safety or privacy are compromised, or if your partner has moved themselves and their personal possessions out then you can change the locks.
Adoption
ELA can advise you on the legal’s of adoption. The process itself of course takes some time, however, it is important to get the correct procedures in place to ensure that the child/ren are adopted correctly by law. This is important not only for the law, but to save confusion later down the track when you discover the adoption is not actually valid. ELA provide the best advice.
Adoption agencies are agencies through which children are offered for adoption, these may be for example, private agencies or local authorities. Adoption agencies should consider the suitability of an adopter and should offer counselling services, explain the legal implications and procedure and provide written information about the adoption.
An adoption agency before "placing" a child for adoption must carry out certain investigations. They should compile a case record for each child covering the history of the child and it's parents, including their health, and also prepare medical reports.
They should also find out about the wishes and feelings of a parent about consenting to adoption and their wishes for the child's religious and cultural upbringing.
Where the father does not have a "Parental Responsibility Order" and his identity is unknown the agency should still try and find out if he intends to apply for a Parental Responsibility Order.
The agency should also compile a case record on the adoptive parents, dealing with for example, the reasons for adopting, their experience in caring for children etc.
The application of the adopter will be referred to the adoption panel and they will send the adopter a copy of the agency's assessment of them, giving 28 days for them to make written comments on the assessment. The agency must pass on those comments to the adoption panel.
If a child is in the care of the local authority or a voluntary organisation, then that local authority or voluntary organisation has parental responsibility for the child. Their consent must be sought before the application is put before the adoption panel.
The panel will recommend whether adoption is in the child's best interests, whether an application should be made for a "placement order" dispensing with the need for a parent's consent and whether the adopter is suitable to adopt that particular child or any child. The adoption panel will inform the agency of its recommendations.
The agency will then inform the adopters in writing as to whether they are suitable.
If they are unsuitable reasons must be given. The adopter has 28 days to make representations if they are refused as adopters. Otherwise the adoption panel will make a final decision.
If accepted an adopter will be sent information about the child's history and background.
The agency must also notify the local authority, health authority, local education authority and the adopter's doctor.
The agency will visit the child after he or she has been placed with the adopters (within 1 week) to check on the child's wellbeing and prepare a report.
The agency should provide the adopter with advice and assistance, and monitor the child's health. The agency must review the child's placement regularly.
Under the Adoption and Children Act 2002, an Adoption and Children Act Register is to be established to suggest links between children and approved adopters. Local authorities now also have a duty to maintain an adoption service and provide adoption support services. The Act will also introduce a new independent review mechanism for prospective adopters who feel that their application has been unfairly turned down.
Gay marriage
The first ceremonies under the Civil Partnerships Act can took place in Northern Ireland on 19 December, followed by Scotland the next day and England and Wales on 21 December. Of course same sex marriage, or union, is now legally recognised in the United Kingdom. ELA can advise you on all matters regarding same sex marriage, whether it be where to register the ceremony, or what papers need to be signed and by whom.
Under the law, couples who want to form a partnership must register their intentions with local councils. Unlike marriages, the signing of the legal partnership papers does not need to happen in public.
The Act creates a new legal relationship of civil partnership, which two people of the same-sex can form by signing a registration document. It also provides same-sex couples who form a civil partnership with parity of treatment in a wide range of legal matters with those opposite-sex couples who enter into a civil marriage.
Important rights and responsibilities will flow from forming a civil partnership, helping same-sex couples to organise their lives together. Provisions in the Act include:
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a duty to provide reasonable maintenance for your civil partner and any children of the family;
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civil partners to be assessed in the same way as spouses for child support;
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equitable treatment for the purposes of life assurance;
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employment and pension benefits;
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recognition under intestacy rules;
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access to fatal accidents compensation;
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protection from domestic violence; and
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recognition for immigration and nationality purposes.
Family courts
Family courts are different from ordinary courts of law in that they concentrate on the welfare of the individuals involved, especially children, to a higher extent than the ordinary courts. ELA can help you with all your queries about family courts and your personal issues which need addressing.
The Children and Family Court Advisory and Support Service (CAFCASS) looks after the welfare of children involved in family court proceedings. CAFCASS officers are independent, qualified in social work and experienced in working with children and families. Their roles include:
Children’s guardian
Children’s guardians represent the rights and interests of a child during cases where social services have become involved (public law proceedings) or in contested adoptions.
In particular they can:
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appoint a solicitor who specialises in family law for the children
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advise the court about what needs to be done before it can make a decision
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write a report for the court saying what they think would be best for the children. This report must tell the court about the wishes and feelings of the children
To do their job, children’s guardians spend time getting to know the children and members of their family. ELA can put you in touch with such officers and answer your question on any legal family matter concerning your family.
Children and family reporter
Children and family reporters help families agree arrangements for their children. They will usually meet with the parents or adults to see if issues can be agreed without recourse to the courts (known as mediation). If no agreement can be reached the children and family reporter will write a report for the court. This report will explain what enquiries have been made and what they think is best for the children. Generally in these cases, CAFCASS officers are the sole representatives of the child’s best interests and source of independent advice to the courts.
A mediation service is not available for public law or adoption proceedings.
Officer in adoption
The role of the CAFCASS officer in adoption depends on whether parents agree to the adoption. If the parents agree, then a reporting officer makes sure parents understand what adoption means for them and for the child and then writes a short report for the court. If a parent does not agree, or if there are special circumstances then a children’s guardian will do an in-depth investigation and write a report to tell the court whether they think adoption is in the interests of the child.
Adoption applications
Adoption is a legal act that permanently transfers parental responsibility for a child from one family to another, including adopting stepchildren.
Contact and residence
When parents are separating or divorcing and can't agree on arrangements for their children, the family courts can issue a Contact or Residence Order that will determine visiting rights and where the child will live.
Children in care
Social services can ask the courts to issue:
if they feel it would be in the child’s best interest or is for the child’s safety.
A CAFCASS (The Children and Family Court Advisory and Support Service) practitioner will advise the court so that the decisions they make are in the best interests of children. ELA can help make the system more approachable. We can help you approach the courts, and help you to get the right support you need.
Child custody
Parental rights are a controversial subject. ELA can provide information and support about the legal issues surrounding child custody. Whether you are the biological parents, grandparents, or just a person with a great interest n the child, we can advise you of your rights and the next steps and processes you need to take in order to be granted custody of the child/ren.
Divorce can spark bitter battles over parental rights to access their children. In many cases, women are favoured as holding custody of their children. This has caused outrage among some father’s groups. They campaign for increased access to their children and more balanced court decisions over access. However other groups say a balance already exists. Whatever your beliefs, moral, sexual, religious or otherwise, ELA can help you. You might need advice on how to approach the other parties successfully. Alternatively, you might require assistance completing the required forms, or you might need some help in court. Whatever your child custody needs, we can help you achieve the best outcome.
Pre-nuptial agreements
Prenuptial or Premarital Agreements are not enforceable in the English Courts. However, the government have discussed whether they shall be legally enforceable in the future. They have even mooted the discussion. While they are currently unenforcaebale, in the future, this might not be the case. It might be worth getting one, in order to save time, money and personal anguish in the future. These are all questions you need to decide, however, ELA can inform you of your legal rights once you separate, or get married.
The Court retains jurisdiction to decide how assets should be divided between parties in the event of a divorce or separation, and the Court will not be bound by any Prenuptial Agreement. The English Law is unusual from this point of view as many other countries including America, Australia and New Zealand and many European countries do regard Prenuptial Agreements as binding. If a Prenuptial Agreement is entered into abroad and the parties divorce in England the English Courts will still not be bound by the agreement.
The English Courts have begun to take some notice of Prenuptial Agreements. Whilst a Judge will not be bound by those agreements it is a factor that a Judge may take into account when deciding any financial application. In recent cases Judges seem to have been taking more notice of Prenuptial Agreements, in these cases the Judges have not followed the provisions of the Prenuptial Agreements precisely, for example where the Prenuptial Agreement has limited the money a wife is entitled to following a divorce Judges have awarded the wife more than the sum provided in the Agreement but less than the wife might have received if there had been no agreement.
An Agreement will only have any effect if both parties had all the information about finances available and both parties received independent legal advice before the Agreement was signed. It is therefore important for each party to have their own solicitor and for full details of the parties' finances to be recorded either in the Agreement or in a document attached to it.
Some Prenuptial Agreements try to set out the arrangements relating to any children in the event of a marriage breakdown. The Government proposals provided that arrangements relating to children would not become enforceable, it is therefore unlikely that arrangements relating to children in a Prenuptial Agreement would have any significant effect on orders that might be made by a court following the breakdown of a relationship.
Although Prenuptial Agreements are not strictly enforceable they can be appropriate in some cases, particularly as the Courts now seem to be taking more notice of them. A Prenuptial Agreement may be appropriate where one party is much wealthier than the other and wants to try and ensure that in the event of a divorce the other party cannot start by claiming half of the total assets.
The other situation in which Prenuptial Agreements are sensible relates to second marriages, particularly if there are children from the first marriage. The children’s parents may well want to ensure that any money or property that they have at the time of the marriage is preserved for those children, rather than going to the new husband or wife.
The extent to which a Court will take notice of a Prenuptial Agreement will depend on the particular circumstances of each case, it is likely that if the marriage is a short one a Court will take much more notice of the agreement than for a long marriage. Similarly the birth of children may affect the Courts view of the Agreement, particularly where this affects the mother’s ability to work.
Prenuptial Agreements should be tailored to deal with each particular couple but often include some of the following provisions:
(i) Property retention
(ii) The running of the family home
(iii) Joint household items e.g. electronic items and furniture.
(iv) Claims against the Estate
(v) Arrangements regarding children
ELA have experts to advise you about your separation rights and divorce queries. We can assist with all matters regarding your children – biological or otherwise. Child support and child custody might be issues that concern you. ELA also advises on your day in the family Court, adoption and the breaching of pre-nuptial agreements.
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