Family Law Solicitors in Essex, Colchester, Chelmsford & London - FJG
Solicitors in Essex, Colchester, Chelmsford, London – Fisher Jones Greenwood
Services for you

Our solicitors offer friendly and professional legal advice over a wide range of areas and issues. From our network of offices across Essex and London we are able to help you and your family in all walks of life, no matter when it is that you are in need of a solicitor.

Family Law

Our family team is based in five offices located across Essex and is recommended at the highest level in Legal500 and Chambers legal directories.  We have Resolution accredited specialists in financial remedies, children matters and domestic abuse, solicitors who are specialist members of The Law Society’s Children Panel, and solicitors who are qualified to practise as Higher Court Advocates.

Through all situations we will do our best to help you resolve your problems without going to court.  We have solicitors  in our team who are trained collaborative family lawyers and we offer mediation services through trained and experienced mediators directly to people who would prefer to resolve their issues through mediation.  We also offer the service of family arbitration, a new way of resolving financial disputes, which is completely confidential and avoids the intrinsic delay and costs of court proceedings.

Solutions that we offer include a range of options that meet all needs ranging from a fully supported service through to fixed fees for some types of work.  We also have an innovative pay-as-you-go service, where you can just pay for the type of assistance that you require, as and when you need it.

We have always had an extremely strong commitment to providing services to all members of the community and we are one of the few leading firms still to offer legal aid, where this is still available.

These pages provide free information on family law matters as well as details of how we may be able to help you.  Naturally, this information can only ever be of a general nature and you should always obtain detailed legal advice which fits your circumstances at the earliest opportunity before you start any discussions or mediation.  We offer a no obligation fixed fee interview for £99.00 for you to find out where you stand.

If you have any comments on the contents of the family pages of this website or there is anything else that you think would be helpful for us to include in the future, please contact us at family@fjg.co.uk or by using the enquiry form at the top of this page.

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

This section deals with the procedure involved in obtaining a divorce. Information about financial matters and children issues relating to divorce and separation can be found here.  We offer an undefended divorce fixed fee package.

For most people considering divorce in England and Wales the question of where to issue the divorce proceedings is straight forward. However, if you are a citizen of another country or have been living abroad for a period of time you should obtain legal advice as soon as possible about where divorce proceedings should be issued. Different countries deal with financial and children issues in different ways. It is usually the case that the person who issues their application first has the case decided in accordance with the law of that country.

Who Can Get Divorced?

You can start proceedings if you:

  • Have been married for one year or more
  • Either party is currently living in England or Wales, or has been for the year prior to the application. It does not matter where the actual marriage took place
  • Your marriage has ‘broken down irretrievably’

Irretrievable Breakdown of a Marriage – the Five ‘Facts’

You can only establish irretrievable breakdown if you can prove one of the following facts:

  • Your spouse has committed adultery and you find it intolerable to live with them
  • Your spouse has behaved unreasonably
  • Your spouse has deserted you for a continuous period of 2 or more years
  • You have lived separate and apart from your spouse for a period of at least 2 years, and your spouse agrees to the divorce
  • You have lived separate and apart from your spouse for a period of at least 5 years (whether or not your spouse agrees to the divorce)

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

With offices in Fleet St, Chelmsford, Colchester, Billericay and Clacton-on-Sea, Fisher Jones Greenwood is ideally positioned to serve clients throughout Essex and Central London. Get in touch today to see how we can help you.

Procedure

Timetable

After one year of marriage either party to the marriage may apply for a divorce, and is then referred to as the ‘petitioner’. A completed divorce petition and a statement of arrangements for any children is sent to the court, together with the marriage certificate. A court fee (currently £550.00) has to be paid at this stage unless the petitioner is exempt from paying the court fee because of low income.

The divorce process

In most cases you are expected to try to agree the contents of the divorce petition before it is sent to the court. This makes it much more likely that the divorce will proceed without any argument. We can advise you on what particulars of behaviour will be acceptable to the court to show that your marriage has irretrievably broken down. It is not necessary to name a third party to a petition based upon adultery.

The divorce petition

All petitions follow a similar format. The final section, known as the ‘prayer’, which asks for the divorce to be granted, also deals with the question of who should pay the costs of the divorce and what financial claims are being included. There are a number of costs options to consider. Often the petition includes a request for every possible type of financial provision. This is usually advisable for procedural reasons and it does not mean that each claim will be pursued.

Arrangements for the children

The court will not make an order setting out the arrangements for the children in the divorce proceedings. If there is a dispute about the arrangements for the children that cannot be resolved any other way, for example by mediation, then the court may need to decide on the arrangements for the children in separate proceedings.

For further information about children issues on divorce follow the link.

Within a few days of submitting the petition

The court sends a copy of the petition to the other spouse, known as the ‘respondent’, or to their solicitor. A copy of the petition will also be sent to any other person named in it, who may be called the ‘co-respondent’ or ‘party cited’. The court encourages petitioners not to name any third parties because this can complicate the process.

In addition the court sends a form called an ‘acknowledgement of service’ for the respondent to complete and return to the court. This shows that they have received the documents, and asks if they intend to defend the case and whether any claim for costs is disputed.

Within 8 days of receiving the petition

The respondent has to complete and return the acknowledgement of service to the court.

If the respondent intends to defend the petition they must file a defence, known as an ‘answer’, within 29 days of receiving the petition. If an answer is filed, the proceedings then become defended and the following timetable does not apply. The court will normally list the case for a short directions hearing where it will expect the parties to try to agree how the case can proceed without a full court hearing. It is rare that defended proceedings result in a full court hearing, but a delay inevitably occurs in finalising the divorce.

If the respondent or co-respondent fails to return the acknowledgement of service you will need to prove that they have received the petition. We may need to do this by arranging for someone to serve the papers on them personally, or by asking the court to specify some other way of notifying them of the proceedings. The court may decide that there is other evidence, such as a letter mentioning the contents of the petition, which satisfies the court that the respondent has received the petition. Exceptionally the court might agree to dispense with service altogether.

Within a few days of the court receiving the acknowledgement of service

The court sends the petitioner’s solicitor a copy of the acknowledgement.

If the petition is undefended, the petitioner can then apply for the decree nisi or first decree of divorce.

The petitioner has to sign a statement which confirms that the contents of the petition are true. The statement is then filed with the court, together with a request for a date for the decree nisi to be pronounced.

Within the next few weeks

On receiving the request for the decree nisi, the district judge reviews all the papers and, if they are in order, fixes a date for the decree nisi. The solicitors for the petitioner and respondent are notified of a date for the hearing of decree nisi, at which neither party needs to attend unless the decree is disputed or there is an argument about costs. The decree nisi is then granted and a sealed copy is sent to both parties.

Six weeks and one day from grant of decree nisi

The petitioner may apply for the decree absolute, or final decree of divorce, by sending the application to the court.

The decree absolute is usually made within a few days and the marriage is then dissolved. A sealed copy is sent to both parties.

If the petitioner fails to apply for the decree absolute, the respondent may do so 3 months after the date when the petitioner could first have applied. The petitioner will be notified of this application and both parties will usually need to attend court when the judge considers the application. The judge may refuse or adjourn the application if, for example, financial matters have not been resolved and the petitioner would lose important legal or financial rights if a decree is granted.

Separation for Married Couples

Sometimes people are not ready to be divorced immediately, but just wish to live separately without going through a formal process. They may wish to live separate lives, sometimes in the same property, and often wish to organise their financial affairs in a way which reflects the fact that they are now living separate lives.

In practical terms, living separate lives in the same household can be difficult to manage for any significant length of time. For separation to count towards periods of time for divorce, the separation has to be substantial and you should take our advice as to what the court is likely to treat as living separately before making any decision about living together in the same property with a view to obtaining a divorce or dissolution of civil partnership based upon periods of separation.
Judicial Separation

A petition for judicial separation does not dissolve the marriage but it does allow an application to be made to the court for some of the financial orders that the court could make in connection with that divorce. For instance, the court does not have power to make a pension sharing order following judicial separation.

The procedure is very similar to obtaining a divorce and the same facts have to be proved. As the process is virtually the same, most people make the decision to proceed with divorce and judicial separation is rarely used except where there is a religious or other objection to divorce.

Where couples decide to separate but do not wish to go through divorce immediately they will often wish to reach agreement as to how financial matters should be resolved, perhaps a sale of the home or the transfer of the home from one to the other in return for the payment of a lump sum. In these circumstances it is important to record the financial agreement in a separation agreement. The separation agreement should record the circumstances of both parties and all the terms of the settlement.

Under English law it is not possible to bind the decision of the court in subsequent divorce. This means that where there is a separation agreement there is no absolute guarantee that a court in subsequent divorce will not make a different financial order from that which has been agreed. However, a court would have to take into account the fact that there has been a separation agreement and in normal circumstances the judge would have to find good reason to depart from a separation agreement entered into by the parties willingly and with a full appreciation of all the facts.

It is important to remember that even though you are separated by agreement that you still remain married. This has important consequences particularly so far as the rights to benefit under pensions or death in service payments and also the right to benefit from your spouse estate in the event of their death. It is therefore important that you make a Will to reflect the change in your circumstances and also make the necessary arrangements with employers and in relation to pension schemes.

For more information about separation and separation agreements please contact one of our Family Law Specialists.

This section deals with the procedure involved in obtaining a dissolution of civil partnership. Information about financial matters and children issues relating to dissolution of civil partnership and separation can be found here.  We offer an undefended dissolution of civil partnership fixed fee package.

For most people considering dissolution of civil partnership in England and Wales the question of where to issue the dissolution of civil partnership proceedings is straight forward. However, if you are a citizen of another country or have been living abroad for a period of time you should obtain legal advice as soon as possible about where proceedings can or should be issued. Different countries deal with financial and children issues in different ways. It is usually the case that the person who issues their application first has the case decided in accordance with the law of that country.

Who can get dissolution of civil partnership?

You can start proceedings if you:

  • Have been in a civil partnership for one year or more
  • Either party is currently living in England or Wales, or has been for the year prior to the application.  It does not matter where the actual civil partnership took place
  • Your civil partnership has ‘broken down irretrievably’

Irretrievable breakdown of a civil partnership – the four ‘facts’

You can only establish irretrievable breakdown if you can prove one of the following facts:

  • Your civil partner has behaved unreasonably
  • Your civil partner has deserted you for a continuous period of 2 or more years
  • You have lived separate and apart from your civil partner for a period of at least 2 years, and your civil partner agrees to the dissolution of civil partnership
  • You have lived separate and apart from your civil partner for a period of at least 5 years (whether or not your civil partner agrees to the dissolution of civil partnership)

The Marriage (Same Sex Couples) Bill received Royal Assent on 17 July 2013.  The first same-sex marriage will take place in March 2014 and so, the first same-sex divorce may take place from March 2015.  The procedure for same-sex divorce will be very similar to the civil partnership dissolution (as outlined above).

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

Procedure

Timetable

After one year of civil partnership either party to the civil partnership may apply for a dissolution of civil partnership, and is then referred to as the ‘petitioner’. A completed dissolution petition and a statement of arrangements for any children is sent to the court, together with the civil partnership certificate. A court fee (currently £550.00) has to be paid at this stage unless the petitioner is exempt from paying the court fee because of low income.

The dissolution of civil partnership process

In most cases you are expected to try to agree the contents of the dissolution petition before it is sent to the court. This makes it much more likely that the dissolution will proceed without any argument. We can advise you on what particulars of behaviour will be acceptable to the court to show that your civil partnership has irretrievably broken down.

The dissolution petition

All petitions follow a similar format. The final section, known as the ‘prayer’, which asks for the dissolution of the civil partnership, also deals with the question of who should pay the costs of the dissolution and what financial claims are being included. There are a number of costs options to consider. Often the petition includes a request for every possible type of financial provision. This is usually advisable for procedural reasons and it does not mean that each claim will be pursued.

Arrangements for the children

The court will not make an order setting out the arrangements for the children in the dissolution proceedings. If there is a dispute about the arrangements for the children that cannot be resolved any other way, for example by mediation, then the court may need to decide on the arrangements for the children in separate proceedings.

For further information about children issues – follow the link.

Within a few days of submitting the petition

The court sends a copy of the petition to the other civil partner, known as the ‘respondent’, or to their solicitor.

In addition the court sends a form called an ‘acknowledgement of service’ for the respondent to complete and return to the court. This shows that they have received the documents, and asks if they intend to defend the case and whether any claim for costs is disputed.

Within 8 days of receiving the petition

The respondent has to complete and return the acknowledgement of service to the court.

If the respondent intends to defend the petition they must file a defence, known as an ‘answer’, within 29 days of receiving the dissolution petition. If an answer is filed, the proceedings then become defended and the following timetable does not apply. The court will normally list the case for a short directions hearing where it will expect the parties to try to agree how the case can proceed without a full court hearing. It is rare that defended proceedings result in a full court hearing, but a delay inevitably occurs in finalising the dissolution.

If the respondent fails to return the acknowledgement of service you will need to prove that they have received the petition. We may need to do this by arranging for someone to serve the papers on them personally, or by asking the court to specify some other way of notifying them of the proceedings. The court may decide that there is other evidence, such as a letter mentioning the contents of the dissolution petition, which satisfies the court that the respondent has received the petition. Exceptionally the court might agree to dispense with service altogether.

Within a few days of the court receiving the acknowledgement of service

The court sends the petitioner’s solicitor a copy of the acknowledgement.

If the dissolution petition is undefended, the petitioner can then apply for the conditional order.

The petitioner has to sign a statement which confirms that the contents of the petition are true. The statement is then filed with the court, together with a request for a date for the conditional order to be pronounced.

Within the next few weeks

On receiving the request for the conditional order, the district judge reviews all the papers and, if they are in order, fixes a date for the conditional order. The solicitors for the petitioner and respondent are notified of a date for the hearing of conditional order, at which neither party needs to attend unless the order is disputed or there is an argument about costs. The conditional order is then granted and a sealed copy is sent to both parties.

Six weeks and one day from grant of conditional order

The petitioner may apply for the final order by sending the application to the court.

The final order is usually made within a few days and the civil partnership is then dissolved. A sealed copy is sent to both parties.

If the petitioner fails to apply for the final order, the respondent may do so 3 months after the date when the petitioner could first have applied. The petitioner will be notified of this application and both parties will usually need to attend court when the judge considers the application. The judge may refuse or adjourn the application if, for example, financial matters have not been resolved and the petitioner would lose important legal or financial rights if a decree is granted.

Separation

Sometimes people are not ready to have their civil partnership dissolved immediately, but just wish to live separately without going through a formal process. They may wish to live separate lives, sometimes in the same property, and often wish to organise their financial affairs in a way which reflects the fact that they are now living separate lives.

In practical terms, living separate lives in the same household can be difficult to manage for any significant length of time. For separation to count towards periods of time for dissolution of civil partnership, the separation has to be substantial and you should take our advice as to what the court is likely to treat as living separately before making any decision about living together in the same property with a view to obtaining a dissolution of civil partnership based upon periods of separation.

Civil Partnership Separation Order

A petition for a separation order does not dissolve the civil partnership but it does allow an application to be made to the court for some of the financial orders that the court could make in connection with that dissolution of civil partnership. For instance, the court does not have power to make a pension sharing order following separation order.

The procedure is very similar to obtaining a dissolution of civil partnership and the same facts have to be proved. As the process is virtually the same, most people make the decision to proceed with dissolution of civil partnership and a separation order is rarely used except where there is a religious or other objection to dissolution of civil partnership.

Where couples decide to separate but do not wish to go through dissolution of civil partnership immediately they will often wish to reach agreement as to how financial matters should be resolved, perhaps a sale of the home or the transfer of the home from one to the other in return for the payment of a lump sum.  In these circumstances it is important to record the financial agreement in a separation agreement. The separation agreement should record the circumstances of both parties and all the terms of the settlement.

Under English law it is not possible to bind the decision of the court in subsequent dissolution of civil partnership proceedings. This means that where there is a separation agreement there is no absolute guarantee that a court in subsequent dissolution proceedings will not make a different financial order from that which has been agreed. However, a court would have to take into account the fact that there has been a separation agreement and in normal circumstances the judge would have to find good reason to depart from a separation agreement entered into by the parties willingly and with a full appreciation of all the facts.

It is important to remember that even though you are separated by agreement that you still remain civil partners. This has important consequences particularly so far as the rights to benefit under pensions or death in service payments and also the right to benefit from your civil partner’s estate in the event of their death. It is therefore important that you make a Will to reflect the change in your circumstances and also make the necessary arrangements with employers and in relation to pension schemes.

For more information about separation and separation agreements please contact one of our Family Law Specialists.

Domestic Abuse is an extremely serious concern for both men and women and can come in many different forms including violence, threats of violence, harassment, intimidation, sexual abuse, emotional abuse, financial abuse and controlling behaviour.

At Fisher Jones Greenwood we are here to help and these pages provide details of how our lawyers can assist you as well as providing answers to frequently asked questions, setting out your options and putting you in touch with the right people.

We have an experienced team of expert solicitors working with men and women victims of domestic abuse who are able to help you from our offices in Colchester – Town Centre and Colchester Business Park, Clacton, Chelmsford and Billericay.

Legal Aid is still available for the victims of domestic abuse who are financially eligible.

If you have any questions about domestic abuse please contact us and ask to speak to one of our Domestic Abuse Specialists. Our service is entirely confidential.

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

How FJG can help

At Fisher Jones Greenwood we can help anyone suffering from significant domestic abuse who needs the protection of a court injunction. There are two types of injunction orders:

Non-Molestation Orders prevent someone from being violent, abusive, threatening, intimidating, attending at your workplace or communicating with you.

Occupation Orders which regulate the occupation of a family home and how costs such as rent or mortgage should be paid.

There are a wide range of people that we can help in these situations:

– Wives and former wives
– Husbands and former husbands
– Civil partners and former civil partners
– Cohabitants and former cohabitants
– Close relatives – such as parents, siblings, uncles, aunts
– Parties in an intimate relationship
– Same sex couples

In these situations, our experienced team of experts will look to help you as quickly and efficiently as possible:

Speed – Due to our proximity to the Colchester and Chelmsford courts, and the good working relationship our team have with the court staff, we can often obtain injunctions within one hour.

Convenience – We can meet clients in our offices in Colchester, Chelmsford, Billericay or Clacton. If it is necessary to attend court to give evidence, then the cost of travel to Court may also be covered by legal aid if you are eligible.

Experience – With experts based at all our office locations, our team has years of experience in dealing successfully with domestic violence cases and will make sure that you always get the best possible service.

We know how serious domestic violence can be, so if you are suffering from domestic abuse then please get in touch with our understanding team of Domestic Abuse Specialists today. As we deal with a wide range of services for individuals, we may also be able to help with any other family, matrimonial, housing, criminal or commercial problems that you may have.

Forced Marriages

A forced marriage is one where a party is coerced into entering the marriage against their will so that the marriage takes place without the willing consent (or lack of ability to consent with certain disabilities) of both parties.

Forced marriage is an abuse of human rights and a form of domestic/child abuse. It is never acceptable nor justifiable on religious, cultural or any other grounds. The UN Convention on Consent to Marriage states that “No marriage shall be legally entered into without the full and free consent of both spouses”.

A forced marriage is not the same as an arranged marriage. Arranged marriages are an important part of some cultures and religions. In an arranged marriage there is always a choice and either party can reject any proposed arrangement

Pressure to enter into a forced marriage may come in several forms including:

  • physical threats
  • physical abuse
  • emotional blackmail

Pressure may come from the other party to the proposed marriage, other family members, third parties or a mixture of both.

There are different remedies available to assist and protect, depending on whether the victim is an adult (over 18) or a child. We can help advise you on your options, assist you in accessing those remedies and discuss safety plans.

One possible remedy is a forced marriage protection order. An application can be made by a victim or certain third parties on their behalf. A power of arrest can also be attached which means that if the order is breached then the police can arrest the person or persons who breach the order.

If you have experienced a forced marriage or feel you are being forced into a marriage to which you do not consent, then please get in touch with our team of Domestic Abuse Specialists today.

Useful Links

Colchester & Tendring Women’s Refuge   www.colchester-refuge.org.uk    T: 01206 500 585

Chelmsford Women’s Aid  T: 01245 493114

Basildon Refuge    T: 01268 581591

Safer Places  www.saferplaces.co.uk  info@saferplaces.org.uk    T: 03301 025811

Women’s Aid    www.womensaid.org.uk    T: 0117 944 4411

Shelter    www.shelter.org.uk    T: 0808 800 4444

The Freedom Programme    www.freedomprogramme.co.uk    T: 01547 520228 / 24 hour hotline: 0808 2000 247

Home Start    www.home-start.org.uk    T: 0800 068 63 68

Essex Police    www.essex.police.uk    T: 01245 491 491 – Ask for the DVLO (Domestic Violence Liason Officer)

Citizens Advice Bureau    www.citizensadvice.org.uk    T: 08444 770 808

Samaritans    www.samaritans.org    T: 0845 7909 090

Chelmsford Borough Council Domestic Abuse Page     www.chelmsford.gov.uk

Colchester Borough Council    www.colchester.gov.uk

Forced Marriage Unit on the FCO website     www.fco.gov.uk

Mankind Initiative     www.mankind.org.uk

We have solicitors who are Resolution accredited specialists in providing advice about financial matters to separating couples.  Very different considerations apply to those couples who are married, or in a civil partnership, from those who are not married, or in a civil partnership.

It is very important to seek specialist advice relevant to the facts of your individual case.

For more information in relation to financial matters please contact one of our Family Law Specialists using the link to the enquiry form above.

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

For people who are married

We will do our best to help you resolve your problems without going to court.  We offer a number of alternative ways for separating couples to resolve financial issues, including mediation, collaborative family law and family arbitration. You will find a guide on selecting the right option for you prepared by Resolution here.

How are financial matters decided if you are getting divorced or applying to dissolve your civil partnership?

The overall objective is to achieve fairness. However, a court’s decision on what is fair is governed by S.25 of the Matrimonial Causes Act 1973, interpreted in the light of guidance provided by previous decisions which are binding upon it. It is important to understand what a court would regard as fair, because, even if you reach an agreement, it only becomes absolutely binding once the court has made an order, which it will only do if the judge considers it to be fair.

First consideration is always given to the welfare of any child of the family who has not attained the age of eighteen.

Then the court applies S.25(2) MCA 1973, which is reproduced here. The court’s approach is often summarised under the following heads:

Needs: Meeting the needs of the parties is often the overriding factor

Sharing: Once the needs of the parties have been met, how should any remaining assets be shared?

Compensation: Has one party given up something, for example a well-paid career to look after the children, for which they should be compensated?

Balancing these factors can be complicated and expert advice as to how a court would apply the law is essential.

Special considerations apply to the following:

Businesses

Sometimes one or both parties may be involved in running a business. It is important to ensure that proper account is taken of the value of the business. This can be simply a question of looking at its balance sheet but on other occasions, an expert valuation is required. Often a business will provide the main income for the family and  creative solutions may be needed to ensure that the income generation of the business is not prejudiced. Financial arrangements concerning businesses can also raise taxation issues which need to be addressed as part of any financial settlement.

Family assets, for instance properties, can be held inside limited companies and expert advice is required before deciding how these should be dealt with.

Inheritances and other contributions from outside the marriage or civil partnership

The question of how inheritances or other contributions from outside a marriage or civil partnership should be dealt with can often cause complications, particularly in determining the extent to which they are matrimonial property and how they may need to be used to meet the parties’ needs.

Pensions

Pensions can sometimes be worth hundreds of thousands of pounds. The CEV provided by pension providers does not always provide an accurate reflection of the true value of the pension. A pension can be regarded as a capital asset, or as an income stream, or sometimes both, depending on the circumstances of the case, and expert advice should always be sought. Sometimes a pension actuary’s report is required, to provide expert guidance as to how a pension asset should be shared.

Pensions can be shared, used to provide lump sums or maintenance or offset against other assets. The solution needs to be tailored to each individual case. If a pension is to be shared, we have links with financial advisers who are accredited to deal with pensions in connection with divorce to whom we can recommend you for advice as to your options, ensuring you make the best decisions to meet your future pension needs.

Mortgages

If a property is to be transferred from one party to another, the receiving party cannot always secure the release of the transferor from the mortgage. They will be expected to do their best to do so, but if they cannot, this can leave the transferring party liable for a mortgage on a property he or she does not own, unable to obtain a new mortgage, and potentially liable for debt, or damage to their credit rating, if the mortgage goes into arrears or if the property is repossessed.

Life Policies

A life policy or other investment should never be surrendered or cashed in without taking the advice of a qualified financial adviser, as valuable benefits could be lost forever. We have links with financial advisers who are accredited by Resolution to deal with assets in connection with divorce who can provide you with advice as to your options.

If there is to be continuing maintenance for a spouse or civil partner or for children, a security or policy may be required to provide that the payments continue in the event of the paying party’s death or illness.

Spousal or Civil Partner Maintenance and Clean Breaks

Sometimes continuing maintenance for a spouse or civil partner is appropriate, which may be for the parties’ joint lives or for a fixed period. If there is to be no continuing maintenance, additional capital provision  is sometimes made to reflect this on a ‘clean break’ basis.

The parties’ rights to claim against the estate of other on death may also need to be dismissed as part of a clean break.

Maintenance for Children

Financial provision for children may also need to include private school fees or health insurance. Provision can be agreed and, if so incorporated into a court order but if it cannot be agreed an assessment may have to be made by the Child Maintenance Service (CMS), previously the Child Support Agency (CSA).

Consent Order

If you reach an agreement with your spouse, it is extremely important that it is properly recorded in a legally binding document, otherwise the settlement can be reopened at a later date. The consequences of failing to properly record a financial settlement in a legally binding document were highlighted in the case of Wyatt v Vince where a party was allowed to make an application for financial provision over 20 years after the divorce and 32 years after the initial separation, even though at the time of the divorce the parties had no assets. By the time that the court came to deal with the application the parties’ financial circumstances had changed significantly.

If you are intending to divorce immediately, this will be by way of an order made by consent within the divorce proceedings. Some separating couples do not wish to divorce immediately and in those circumstances should record their financial settlement in a separation agreement.

A consent order needs to be approved by a judge. This is usually done by submitting the proposed order to the court. It is not usually necessary to attend court. Once a consent order has been made, it is final and binding. There are some very rare circumstances where a consent order can be set aside, for example if there has been fraud, misrepresentation, or a very significant change in the circumstances, such as the death of a party shortly after the order, but this is very unusual.

Our team of Family Law Specialists can advise you as to what should be included in a consent order, and they can prepare the document for you, taking you through the process to obtain a consent order approved by the court.

Seperation Agreement

A separation agreement can be used to record a financial settlement in situations where a separating couple do not want to divorce immediately.

Due to the fact a separation agreement is not approved by a judge, in subsequent divorce proceedings the court could decide to make a different order. The judge would however have to decide that on the facts as they existed at the time the court considered the case, there was good reason to depart from the agreement in the separation agreement.

However, no one should sign a separation agreement without expecting that they will be held to its content.

Our team of Family Law Specialists can advise you as to what should be included in a separation agreement, and they can prepare the document for you.

For people who are not married

It is a myth that unmarried couples acquire a financial interest in the other’s property because they have lived together and have become a so-called ‘common law’ husband or wife. Unmarried couples do not have the same rights as couples who are married or civil partners.

There is no one law that governs the financial circumstances of unmarried couples if they separate. Instead, if agreement cannot be reached, financial issues are resolved using a number of different legal principles including property and trust law. This can be extremely complicated and you should obtain legal advice on your specific circumstances.

If you own your property jointly, then the terms of the title documents will be relevant. However, in determining when a property should be sold the court will have to consider a number of factors, including the purpose for which a property was acquired and the welfare of a child under the age of 18 for whom the property is a home.

If you occupy a property in the name of the other person then you may not have any rights at all, other than a right not to be evicted from your home without a court order. However, you may acquire rights if you have contributed financially or something which has a financial value, or if there was an understanding that you would have a financial interest in a property.

You will not have a right to claim maintenance for yourself, although if you have children living with you, you may have a right to claim child support for them, and also lump sum payments provided that you can show that they are for the benefit of the child. You may be able to obtain an order that allows you to continue living in the family home while the children living with you are under 18.

As disputes between unmarried couples frequently involve a dispute about who said what and whether there was ever any intention to share in property, a properly drafted agreement entered into at the commencement of a relationship, setting out a couples’ financial circumstances and recording what their intentions are with regard to those circumstances, has the potential to avoid future costly court proceedings in some cases (see living together agreements).

Nuptial Agreements

It is not possible to enter into an agreement that prevents a court in England and Wales from exercising it’s powers on a divorce or dissolution of civil partnership.

However, in a leading case in 2010 the Supreme Court in England recognised that an agreement entered into before a marriage, and the same would apply to a civil partnership, may make provisions that are different from what a court would otherwise consider to be fair. It said that in those circumstances, the principle to be applied is that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

Nuptial agreements can be made before or during a marriage or civil partnership and, if entered into in connection with a couples’ separation it is usually referred to as a separation agreement.

No one should enter into a pre-nuptial agreement and not expect to be held to its terms by a court in subsequent divorce or dissolution of civil partnership proceedings.

The court also said that a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but respect should be given to the rights of individuals to make their own decisions and to the reasonable desire to make provision for existing property and that in the right case a nuptial agreement can have decisive or compelling weight.

Nuptial agreements are often entered into by couples who are financially independent or who have wealth that is inherited or from a previous relationship which they agree should be preserved for future generations.

In subsequent divorce or dissolution proceedings a court will still have to consider the factors set out in the Matrimonial Causes Act, so it is important to take advice as to how a court would view the settlement terms in a subsequent divorce or dissolution. First consideration remains the welfare of the children of the family. The court would almost certainly wish to see both parties reasonable needs met, in so far as this is possible.

Any agreement should also take into account a couples’ future plans, including whether they intend to have children, and whether the agreement should be reviewed after a period of time or in the light of a change of circumstances and what should happen to jointly acquired property.

For more information about nuptial and other family agreements please contact one of our Family Law Specialists. It is usually possible for us to prepare a nuptial agreement or other family agreement for a fixed fee.

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

Living Together Agreements

With many people living together without getting married or entering into a civil partnership, living together agreements are becoming increasingly common.

A living together agreement, sometimes known as a cohabitation agreement, will usually set out the financial circumstances each party brings to the relationship, how they will deal with their financial circumstances while they live together and what should happen should they separate.

It is a myth that unmarried couples acquire a financial interest in the other’s property because they have lived together and have become a so-called “common law” husband or wife. For further information about financial matters for people who are not married use this link.

Financial claims between people who have lived together can be very complicated and expensive to resolve. Often there is a dispute about who said what and whether there was ever any intention to share in property that one party brought to the relationship. A properly drafted agreement entered into at the commencement of a relationship, setting out a couples’ financial circumstances and recording what their intentions are with regard to those circumstances has the potential to avoid future costly court proceedings.

Any agreement should take into account a couples’ future plans, including whether they intend to have children, and whether the agreement should be reviewed after a period of time or in the light of a change of circumstances and what should happen to jointly acquired property.

For more information about living together and other family agreements please contact one of our Family Law Specialists. It may be possible for us to prepare a living together agreement or other family agreement for a fixed fee.

Overview

Adults

If you are over 18 years old, you may change your name whenever you want.  You do not have to follow a legal procedure to change your name,  but you may need evidence of your change of name to provide to change official documents, for example your passport or driving licence.

Fisher Jones Greenwood can provide you with a change of name deed for this purpose.  You will need to provide us with certain details and once we have drafted the document, you can attend at one of our offices in order to sign the Deed and this will be witnessed by one of our solicitors.  We then will provide you with six certified copies for you to send to the relevant organisations.

Young People

If there is a child arrangements order (specifying with whom the child should live), care or special guardianship order in force dated after 1 September 2009, this will last until the child reaches 18 unless the court directs otherwise.  Here, consent to the change of name from everyone with parental responsibility will be required until the child reaches 18.

Otherwise young people are legally entitled to execute a change of name deed from the age of 16 years without parental consent unless there is a court order in force which prohibits the change of name.

Legally, the decision to change their name is their own and there will, in general, not be good reason why the wishes of someone with parental responsibility should override the wishes of the 16 year old unless there are exceptional factors that need consideration.

Children

For a child under the age of 16, any parent with parental responsibility can sign a change of name deed, but you will need the other parent’s consent, whether or not there is a child arrangements order in force.

If the other person will not give their consent, then you can make an application to the court for a specific issue order or a prohibited steps order, so the court will decide.  If the child is over 16 years old, they must also consent to the change of name.  The court, in these cases, will have regard to the welfare checklist.

The court is very clear, however, that changing a child’s name is a major step and should not be undertaken lightly, the courts also take into account the importance of the child’s identity and the recognition of the biological link with the child’s father.

Our firm will, therefore, not carry out a change of name deed for a child, without the consent of both the child’s parents.

What is the cost of a change of name deed?

£90 including VAT

See our fixed fee pages for further details.

Do I need to come in to the office?

Yes, because your signature (and that of the child’s father on a change of name deed for a child) will need to be witnessed by one of our family law specialists.

My son or daughter has not seen their dad since they were a baby and I want to change their name to mine, do I have to have his consent?

In order for Fisher Jones Greenwood to prepare a change of name deed on your behalf, you will either need to attend the office with the father of the child in order to both sign the deed or to bring in a written letter of consent from the father of the child.

If you wish to change your name, or that of your child – please contact our Family Law Specialists for advice and assistance.

  • For our Colchester office please contact Natasha Withey on 01206 835327 or nwithey@fjg.co.uk
  • For our Chelmsford office please contact Naomi Bridge on 01245 457093 or nbridge@fjg.co.uk

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

At Fisher Jones Greenwood we follow the Resolution code of practice which means that we are committed to taking a conciliatory and constructive approach to resolving problems arising from family breakdown. Resolution provide a booklet aimed at helping people choose the right process for their situation.

There are a number of different options, and we can help you decide the right one for you and your family.

DIY

If you are on good terms with your ex-partner, you can speak to them directly about the issues and attempt to come to an agreement. However, in situations where there is the emotional turmoil of a relationship breakdown as well as the restructuring of lives that follows, it is sometimes difficult to be objective. There are also often complex issues such as pensions that need to be considered.

It is important that you seek independent legal advice so you are aware of your position before entering into any discussions so that you ensure that you have considered all the relevant issues and have all the information that you need. You should also make sure that you have legal advice before finalising any agreement, to ensure that what you have agreed is fair to both of you and so that it can be explained to you how the agreement should be organised to comply with legal requirements.

Should you reach a private agreement between yourselves, you should have the agreement recorded in a separation agreement or preferably made into a court order by consent. If you do not do so, you run the risk of the other person coming back, sometimes at a much later date, and asking for a financial order at that time.

Mediation

Mediation is a flexible, speedy and cost effective way to resolve disputes. It is a confidential process that enables you and your ex partner to explain and then discuss what your needs and concerns are to each other in the presence of an independent third party – a trained mediator – so that you can reach an agreement between yourselves. The mediator is neutral, so they will not take sides or give advice. It is important that you seek your own legal advice before attending mediation so that you know the process, have information about the things that you need to discuss, and understand the implications of any proposals which might be raised. If you reach an agreement, the mediator will prepare a summary of this (called a ‘Memorandum of Understanding’) and if you are both happy with the contents, Fisher Jones Greenwood can arrange for this to be formalised.

Anyone wishing to apply for a court order linked to either children or financial matters as a result of the breakdown of their relationship is required to undertake a mediation information and assessment meeting (MIAM) with a trained mediator first (unless they can show they are exempt from having to consider mediation, for example, if domestic violence is involved).

Mediation can be particularly beneficial where there will be a continuing relationship following dispute resolution – such as in family cases. It can reduce hostility and improve chances of long-term co-operation between parents and couples.

Fisher Jones Greenwood has trained mediators, who can undertake an assessment meeting with you. Please see our separate mediation pages for more information.

Collaborative Law

Collaborative family law is a different approach to resolving divorce and family disputes without the financial and emotional expense of going to court.

In collaborative family law you and your partner sit down with your solicitors and openly and honestly work out all the issues in a dignified and respectful way.

Collaborative family law is less confrontational and is focussed on finding solutions leading to an arrangement on which you have both agreed and which works best for you and your family. It provides an alternative to the uncertainty of the decision being taken out of both of your hands by a judge in court.

How does the process work?

The process itself consists of a series of meetings.

You will both already have met with your collaboratively trained solicitors as part of a screening process, where your solicitor would have examined the various ways of resolving disputes in order to discuss with you if the collaborative process is right for you.

Four Way Meetings

Issues are discussed by you, your partner and your respective solicitors in a series of four way meetings. The number of meetings which may be necessary will vary from case to case depending on your individual circumstances.

At the first four way meeting, both solicitors will make sure that you both understand the process and are committed to resolving matters without court proceedings. If everyone is happy to proceed, an agreement called the ‘Participation Agreement’ will be signed to confirm that the Collaborative process will be used. This agreement is records that everyone is committed to finding the best solutions by agreement. It records that the solicitors will not represent you in court proceedings except to put any agreement into effect. This is important because it re-enforces the commitment of both parties and the solicitors to reaching an agreement in the collaborative process.

Further four way meetings

Subsequent meetings will usually take place to deal with exchange of financial information and may involve other professionals, for example financial advisors, family consultants, pension consultants, accountants or valuers if their contributions will be helpful. These experts can advise both of you with a view to producing a broader range of more creative solutions for the benefit of you and your family.

Once all the matters are resolved, a final meeting will take place at which documents prepared by the solicitors setting out the agreements reached will be signed and, in financial cases, will usually be sent to the court with a request that an order is made by consent in the agreed terms.

Family Arbitration

Family arbitration is a form of dispute resolution for resolving financial disputes in family cases.

Arbitration is an established way of resolving disputes which has been used for many years in commercial contracts and business agreements. It is now available in family cases involving finances and property arising from marriage, civil partnership or other relationship breakdown.

Family arbitration is also suitable for financial claims on relationship breakdown where there are children (under the Children Act 1989), claims over ownership of land (under the Trusts of Land and Appointment of Trustees Act 1996) and claims against a deceased person’s estate (under the Inheritance (Provision for Family and Dependants) Act 1975).

Our head of family team, Simon Osborn, is a qualified family arbitrator and a member of the Chartered Institute of Arbitrators. Simon is available to either act as family arbitrator at any one of our six offices in central London and across Essex, or to represent you in your family arbitration. Simon can be contacted by telephone 01206 835326 or at sosborn@fjg.co.uk.

Negotiation

We will discuss with you what you wish to achieve, usually focussing firstly on the needs of any children, and the needs of both parties.

In financial cases we will advise you what, and how much, information you will require to exchange with your partner and will help you understand what it means.

We will discuss with you how a court would look at your circumstances and then negotiate with your partner’s solicitor to try to reach an agreement. This can be done in writing or at a round the table meeting.

Once an agreement has been reached we will advise you how to record that agreement in writing so that it becomes binding to both of you.

Going to Court

The vast majority of family cases are resolved by agreement and do not involve any attendance at court. However, sometimes court proceedings are inevitable where parties cannot reach agreement or there are issues around urgency or safety for example, in relation to child abuse or domestic violence.

If you do need to attend court, at Fisher Jones Greenwood we have one of the strongest teams of family law specialists in the east of England offering family services from our six offices located in central London and across Essex.

The strength of our team means that we offer a complete range of family services.

Our Public Law Specialists represent both parents and children. Our Domestic Abuse Specialists work closely with refuges and other agencies to assist victims of domestic abuse. Our Financial Specialists are experienced in dealing with complex financial cases often involving family businesses, pensions, multiple properties and assets abroad.

We also have Children Specialists who assist parents in resolving issues about the arrangements for their children. Our experience includes dealing with the most complex cases including cases where children have been taken, or are about to be taken, abroad.

Our Family Law Specialists are trained at the highest level. In our experienced team we have Resolution accredited specialists in areas which include financial remedy, children matters and domestic abuse, solicitors who are specialist members of The Law Society’s Children Panel and solicitors who are qualified to practice as Higher Court Advocates. If clients need to be represented in court proceedings they can be sure that they will have the best possible representation.

We offer a £99 KNOW WHERE YOU STAND FIXED FEE INTERVIEW to discuss your individual situation, how we can help you, and which processes are right for you and your family.

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

To see our Mediation page Click Here

 

Divorce FAQs

How much will my divorce cost?

When both partners cooperate your divorce can be carried out on an undefended basis and we can deal with all the paperwork and formalities for a fixed fee.

If you are unemployed or on a low income you may not have to pay court fees, or may be able to claim back any court fees you have already paid. Please ask us for further details or go to our fee exemption page.

If you are unemployed or on a low income and can show that you have been the victim of domestic abuse, you may be eligible for advice under the legal help scheme, which means the Legal Aid Agency will pay most, if not all, of your costs of getting a divorce. There are conditions attached. Please ask us for further details or go to our legal aid page.

How long will it take?

The average divorce takes 4-6 months from filing the divorce petition to obtaining a decree nisi. The decree absolute can be applied for six weeks and one day later but if there are other issues, such as financial claims, to be resolved, then this can delay the final decree.

What about financial matters?

It is not necessary to reach full agreement about your finances before you are granted your divorce. However, in some cases, such as where you may be entitled to a pension on your spouse’s death or where your matrimonial home is in your spouse’s sole name, you could lose important rights if your marriage is dissolved before these issues are resolved. You should not therefore apply for the final decree without discussing it with us first.

If you are the respondent to the divorce, and are concerned that you may be affected by a final decree, you should speak to us before the date when your spouse can apply for decree absolute to discuss what can be done to protect your position.

For further information about financial issues on divorce follow this link.

Will I have to appear in court?

You will not have to appear in court unless the proceedings are defended, or there is disagreement about who should pay the costs, about the children, or about financial matters which needs to be resolved at a court hearing.

Are the proceedings public?

Family law proceedings, including all the court papers, are usually private. However, the press can publish the fact that your divorce has been pronounced and the ‘fact’ on which your divorce was based. They cannot disclose any details of adultery or unreasonable behaviour.

Civil Partnership FAQs

How much will my dissolution of civil partnership cost?

When both civil partners cooperate your civil partnership can be dissolved on an undefended basis and we can deal with all the paperwork and formalities for a fixed fee.

If you are unemployed or on a low income you may not have to pay court fees or may be able to claim back court fees you have already paid. Please ask us for further details or go to our fee exemption page.

If you are unemployed or on a low income and can show that you have been the victim of domestic abuse, you may be eligible for advice under the legal help scheme, which means the Legal Aid Agency will pay most, if not all, of your costs of getting a dissolution of civil partnership. There are conditions attached. Please ask us for further details or go to our legal aid page.

How long will it take?

The average dissolution of civil partnership takes 3 months from filing the dissolution petition to obtaining a conditional order. The final order can be applied for six weeks and one day later but if there are other issues, such as financial claims, to be resolved, then this can delay the final order.

What about financial matters?

It is not necessary to reach full agreement about your finances before you are granted your final order. However, in some cases, such as where you may be entitled to a pension on your civil partner’s death or where your home is in your civil partner’s sole name, you could lose important rights if your civil partnership is dissolved before these issues are resolved. You should not therefore apply for the final order, without discussing it with us first.

If you are the respondent to the dissolution, and are concerned that you may be affected by the final order, you should speak to us before the date when your civil partner can apply for the final order to discuss what can be done to protect your position.

For further information about financial issues on dissolution of civil partnership follow the link.

Will I have to appear in court?

You will not have to appear in court unless the proceedings are defended, or there is disagreement about who should pay the costs, about the children, or about financial matters which needs to be resolved at a court hearing.

Are the proceedings public?

Family law proceedings, including all the court papers, are usually private.

Domestic Abuse FAQs

What is domestic abuse?

The Home Office defines domestic abuse as:

“any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:

  • psychological
  • physical
  • sexual
  • financial
  • emotional

Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”.

Who can apply for an injunction order?

To apply for an injunction order under the Family Law Act 1996 a person has to be associated to the other person. Associated persons are spouses/civil partners, former spouses/former civil partners, co-habitants/former co-habitants, close relatives, for example a parent or a brother/sister, parties in an intimate relationship or same sex couples.

If I am not associated to the other person what help can I receive?

If you cannot apply for an injunction order under the Family Law Act e.g. because you are having problems with a neighbour then you can seek assistance from the Police. The Police do have powers under the Protection from Harassment Act 1997 to prosecute a person who is causing harassment to another.

What types of injunction order are there?

There are two types:-

  1. Non-molestation order which prevents a person from acting in a certain manner, for example not to use violence, not to intimidate, pester or harass or not to communicate with the victim.
  2. Occupation order which regulates the occupation of a property. An occupation order can exclude one party from a property entirely or regulate how the property should be lived in. Orders can also be made for the payment of mortgage or rent and maintenance of the property.

How do I apply for an injunction order and how much will it cost?

Legal aid is available for victims of domestic abuse subject to financial circumstances. You will need to bring details of your financial circumstances with you when you come to see us and we will check your eligibility if you wish to apply for legal aid.

In the first instance we will always consider your eligibility for legal aid. In some cases where you are assessed as eligible for legal aid it may still be necessary for you to make a contribution on a monthly basis from your income or a lump sum from any capital you may have.

If you are not eligible for legal aid your fees will vary depending on the complexity of the case and the duration of any hearings listed.  We will provide you with an estimate of the likely fees which you will incur at your first meeting with us. Expenses may also be incurred in relation to the service of court orders.

We will make your application to the court supported by a statement by you setting out the grounds for the application and what orders you are seeking. The application is issued by the court quickly and a hearing date is fixed at short notice, usually within a week. In cases of extreme urgency an order may be made the same day. We have offices close to the court buildings and a good relationship with the court staff which means that we can act quickly.

How long will it take to obtain an injunction order and how long will it last?

If you are in immediate danger, we can make the application to court on the same day without the other person being there. This is called a ‘without notice application’. In order to grant an application for an order without notice the court will need to be satisfied that: you or any child are at risk of significant harm if an order is not made immediately; you will be deterred or prevented from applying to the court by the other person if you have to wait; or the other person is likely to avoid being served with notice to appear before the court and you or any child are likely to be prejudiced by any delay . If the court grants a ‘without notice’ order, you may have to return to court for a full hearing once the other person has been served with the order and, of course, if they decide to challenge the order.

If the application is on notice, the other person will be told of the date of the hearing and generally the court will allocate the first available date a few days later.

Orders are normally for a specified period of time but can be renewed. Generally they are valid for one year. In extreme cases, an order can be granted for an indefinite period of time.

What happens if an injunction order is breached? Will the police take it seriously?

A non-molestation order comes with an automatic power of arrest. An occupation order can have a power of arrest attached if there have been violence or threats of violence. If a power of arrest has been attached, once the order has been served on the other person it will then be served upon your local police station. If there is a power of arrest and the other person ignores the terms of an injunction order and commits a breach, you would need to call the police. They can arrest them immediately as the breach of an injunction order is a criminal offence. If found guilty the offender can be punished with up to 5 years imprisonment or a fine or both.

Will I have to go to court to obtain the injunction? Will the hearing be made public and who is allowed in court?

The application will be in a private court (generally at the local county court) and no one who is not directly concerned with your case will be allowed in. This means neither you nor the other person will be allowed to take a friend or member of the family in with you, but they can stay in the waiting room. No members of the public will be in court and therefore your privacy will be respected.

Can the court force the other person to leave the house? If so will they have to continue to pay the mortgage or rent?

An occupation order will set out who can live in the family home, or how you live in the property, for example use of different parts at different times, and can also restrict the other person from entering the surrounding area. If you do not feel safe living with the other person, or if you have left home because of violence, it may be possible to obtain an occupation order to allow you to return . The court will apply a ‘balance of harm’ test when deciding whether to make the order. The main considerations taken into account by the court are: the housing needs and housing resources of each of the parties and of any relevant child; the financial resources of each of the parties; the likely effect of any order on the health, safety or well-being of the parties and of any relevant child; and the conduct of the parties in relation to each other. Where an occupation order is in force the court can also state who should pay the rent or mortgage and other outgoings on the property, who has to maintain the property and whether the party in occupation should pay a “rent” to the other person. This is of course dependant on the financial circumstances of the case.

Will an injunction order prevent the other person from seeing the children?

This depends on the circumstances of the case. If there has been abusive behaviour towards you with the children present or towards the children directly then the court will have to consider what contact with the children should take place, if any. If you are happy for contact to take place with the children then this can be arranged. We can advise you what steps can be taken to ensure that the children and you are safeguarded.

The other person has never hit me, but he is emotionally abusive and threatening. Can I still get an injunction order?

Yes. It is still possible to obtain a non-molestation order against the other person, despite there having been no violence. When the court decides whether to exercise its powers, the court shall have regard to all the circumstances of your case including the need to secure the health, safety and wellbeing of both you and any relevant children. The behaviour can also include conduct that does not amount to violent behaviour and applies to any conduct which can be regarded as constituting a degree of harassment that requires intervention. It would also be necessary to show the impact that the behaviour is having upon you and also, if relevant, your children.

It can be slightly harder to obtain an occupation order where there has been no direct violence but again it does depend on the circumstances of your case. As set out above the court will need to apply the balance of harm test when making any decision. I am scared as to how the other person might react when he/she knows about the injunction order. How can I be protected?

As soon as the other person is made aware of the terms of a non-molestation order, normally by being handed the papers by a trained process server instructed by us, they are bound by those terms. If they breach the order then that should be reported to the police who should take action to enforce the injunction.

What happens if we reconcile, will the injunction order still remain in place? If we want it discharged, what do I have to do?

The order will remain in place until either it comes to an end on the expiry date, or the court makes an order discharging it. If you were to reconcile with the other person you should apply to the court for the injunction to be discharged. This requires the completion of a simple form in which you will be required to provide information as to the reason why you wish to discharge the order. The Judge may well make the order without you needing to attend court, or may wish to see you to establish that by discharging the order they will not be leaving you or any children in a vulnerable or dangerous position.

If you reconcile and you leave the injunction order in place, there is a risk that, if the police become aware that the other person is in breach of the terms of the order, they could be arrested and charged.

Will the fact that I have not reported their behaviour to anyone before, such as the police, affect my chance of getting an injunction?

No it will not. The majority of domestic abuse goes on behind closed doors, and is never reported to the police. Of course some victims are concerned that, if they were to report the behaviour to the police, and the police did not take any action, they would be at even greater risk of suffering harm. Therefore the court does not necessarily expect you to have reported any behaviour to the police before. When making an application to the court you will be required to make a statement supported by a statement of truth. This confirms to the court that you are telling the entire truth. In the first instance the court will rely on your statement. If the other person wishes to challenge the order, then the court will list a hearing where you would both be given the opportunity to give evidence and a Judge would decide who was telling the truth.

If I do not want to proceed with an injunction order, what else can be done?

We fully understand that every case is different, and may not always be appropriate for an injunction. In some cases a simple warning letter to the other party is sufficient. It makes clear the reasons why their behaviour is inappropriate and that it must not continue. They are informed that if their behaviour does not change then you apply to the court for an injunction order.

Will social services be told about my the other person's abusive behaviour?

Social services will not automatically be informed of the other person’s abusive behaviour unless you or another party has informed them. If the police have been called as a result of the other person’s abusive behaviour and the police are concerned about the welfare of any children concerned then the police can themselves make a referral to social services. The fact that you intend to apply to the court for an injunction will show social services that you are safeguarding the children.

Information about Finances FAQs

What kinds of orders can be made?

Property Transfer Orders
These are orders for property (often, but not always, a house) to be transferred from one party to another party. Sometimes this may be subject to the payment of a lump sum, or on other occasions the transferor may keep a deferred charge, payable at a later date. Provision will be needed for the circumstances when the transferor receives payment, and for what should happen if the transferee cannot take on the mortgage.

Sale of Property
Sometimes a property has to be sold so that the parties can downsize, or capital realised. But there may be an issue as to how the proceeds should be divided to meet the needs of children or the parties, and to achieve fairness in accordance with the principles applied by the court.

Lump Sum
These are orders for the payment of a capital sum, sometimes connected with the transfer of property.

Periodical Payments (Maintenance)
These are available for spouses or civil partners, and for children if the parties reach agreement.

Pension Sharing Orders
This is an order which transfers a percentage of one party’s pension to the other, giving them a pension in their own right. Sometimes this is an internal transfer (i.e. the pension is in the same scheme as the transferor’s) and sometimes it is an external transfer, so that the pension is invested in a completely different arrangement.

Pension Attachment Orders
These are rarer than pension sharing orders and are only advisable in specific cases. They are essentially lump sum and/or maintenance orders paid direct by the pension provider to the recipient. One major disadvantage is that a pension attachment order for maintenance comes to an end on the death of the payer or the recipient, or on the remarriage of the recipient, whereas a pension sharing order continues beyond the death of the payer or the remarriage of the recipient, as it is the recipient’s pension in their own right.

What procedure is followed if you have to go to court?

Before starting any court proceedings you are expected to have considered using mediation or some other form of dispute resolution such as collaborative family law or family arbitration

The proceedings are started by sending the court a form A setting out the order that the court is being asked to make. This has to be accompanied by an FM1 confirming that the applicant has attended mediation or a mediation information meeting. A fee (currently £255.00) is payable to the court.

When it receives the form A the court fixes a first appointment between 12 and 16 weeks ahead. That date is notified to the respondent and the applicant.

Before the first appointment both parties must complete and verify by statement of truth a statement of their financial affairs in form E supported by documentary evidence. This is an important document and must be completed taking into account the order that you are hoping to achieve. This must be sent to the court and exchanged with the other side not less than 35 days before the date of the first appointment.

At least 14 days before the first appointment each party must send to the court and serve on the other side

  • A statement of the issues between the parties that need to be resolved.
  • A chronology:
  • A questionnaire setting out any further information or documents that are required
  • A notice in form G stating whether that party will be in a position to treat the first appointment as a ‘financial dispute resolution’ appointment.
  • At the hearing each party must produce to the court in form H an estimate of costs incurred to date and to be incurred in the proceedings.

Both parties must attend the first appointment unless the court orders otherwise.

At the first appointment the judge must conduct the proceedings with the intention of ‘defining the issues and saving costs’. In particular the judge must decide the extent to which outstanding requests for information must be answered and what if any documents requested must be produced. Having done that the judge must then go on to give directions, for instance:

– for valuation of any assets – including where appropriate joint instructions to an expert or in pension cases require either party to obtain a valuation of their pension
– for the obtaining and exchanging of other expert evidence, if appropriate
– for the filing of further evidence by either party including all details about the background of the breakdown and any contested issues of fact.

The judge is under a duty to limit disclosure to what is proportionate to the issues between the parties.

Unless the case is considered inappropriate the Judge must then list the case for a financial dispute resolution (FDR) appointment.

At the FDR both parties are required to attend and seek to negotiate a settlement. Everything said at the FDR is confidential. The judge is available to help the parties reach agreement by giving an indication on any issues of disagreement between the parties. Most cases will settle at this stage.

If the case does not settle the judge will give directions for a final hearing. The judge will normally warn the parties that by going ahead their costs are likely to double. That judge will no longer take part in the case and the FDR papers will be returned to the parties.

There is still the opportunity for the case to settle, but if it does not, the parties will have to attend the final hearing where the judge will hear evidence and the parties will be cross examined. The judge will then make a decision.

What do you need to do if you have reached an agreement?

If you have reached an agreement it is very important that the agreement is recorded in a way that is binding on both of you, otherwise both parties run the risk that the other will be make a claim against the other at a later date.

Important: If you have reached an agreement in mediation then, if you are financially eligible, you can still get legal aid to have the agreement put into a binding document.

There are two ways in which an agreement can be documented.

Consent Order: This is an order drawn up by solicitors and sent to the court with a request that the judge make the order. The judge will only make an order if it is considered to be fair and reasonable in the light of the factors which the court takes into account.

Separation Agreement: This is a contract. It is not subject to approval by a judge. A judge would have to take it into account if one party decides to ignore the agreement but if the judge considers that, in the circumstances prevailing at that time, it would not be fair to hold the parties to their agreement, the court can make a different order from that agreed in the separation agreement.

Further details can be found by clicking here.

What can you do if you are getting married and would like to arrange your affairs using a pre-nuptial agreement?

For more information on pre-nuptial agreements, visit our dedicated web pages.