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FAQs - Free Divorce Advice

How can I get free divorce advice?

You can get free divorce advice by asking a question to our expert team of free divorce advice lawyers through our online enquiry form or live online chat with one of our divorce solicitors.

What will be covered by free divorce advice service?

Free divorce advice will cover the general divorce advice concerning your divorce and separation matter.

Can I get free divorce advice if my divorce matter is complicated or urgent?

Free divorce advice is not for those persons who have very complicated divorce case as full assessment of the divorce case needs to be carried out before giving divorce advice in complext divorce matters. You can schedule an appointment for detailed divorce advice session to discuss your divorce matter with one of our divorce solicitors if your divorce case is complex or extremely urgent. 

Can I get free divorce advice?

Yes, you can get free divorce advice online through our enquiry form if your matter is not complex or urgent.

How long free divorce advice solicitors will take to respond to my free divorce advice enquiry?

Our free divorce advice solicitors aim to respond to all free divorce advice enquiries within 24 hours of receiving such free advice enquiries.

FAQs - Getting A Divorce In England & Wales

What is a divorce?

Divorce in England & Wales is a legal process to end marriage between husband and wife after the relationship between them has broken down irretrievably. An application for divorce in England & Wales is made using application form D8.

How soon can I get divorced in England & Wales after my marriage?

You can get divorced in England & Wales only after you have been married for at least one year.

If you marriage was not consummated, you may be able to apply for annulment of your marriage even if you are married for less than a year.

What are the requirements to get divorced in England & Wales?

You can get divorced in England & Wales if all of the following are true:

  • you’ve been married for over a year
  • your relationship has permanently broken down
  • your marriage is legally recognised in England & Wales (including same-sex marriage)
  • Either you or your husband/wife is habitually resident in England & Wales

What is a 'clean break' divorce?

A clean break divorce is where no ongoing financial commitments remain between you and your spouse. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one spouse to the other.

A clean break is only possible in relation to the financial claims between spouses. It is not possible to have a clean break in relation to financial obligations towards your children.

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement order. It’s important to do so, even if you don’t have any assets to divide at the time of the divorce. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Can I get divorced in England & Wales if I got married abroad?

Yes, you can start divorce proceedings in England provided that you have a valid marriage certificate (and certified translation, if the marriage certificate is not written in English). The key issue is determining whether the marriage is valid and legal in the country within which the ceremony took place, with the local custom being observed. If the marriage has been carried out in accordance with the local laws and customs of the country in which it took place, it is usually a valid legal marriage.

You should also meet all of the following requirements for getting divorced in England & Wales:

  • you’ve been married for over a year
  • your relationship has permanently broken down
  • your marriage is legally recognised in England & Wales (including same-sex marriage)
  • Either you or your husband/wife is habitually resident in England & Wales

What other matters may also arise in divorce proceedings?

Depending on the personal circumstances of the petitioner and the Respondent, the following other matters may also arise in the divorce proceedings:

How long does the divorce process take?

This varies from court to court and from case to case, depending on the complexity of the case. An uncontested divorce with no financial settlement issues can take up to 6 months whereas a contested and complicated divorce can take much longer than 6 months and time would vary depending on the complexity of the matter.

How much does it cost to file a divorce in England?

The court fee for filing a divorce in England & Wales is £550 which needs to be paid at the time of submitting your divorce petition to the family court.

What is difference between uncontested and contested divorce in England?

Uncontested Divorce

An uncontested divorce is a divorce process where the Respondent to the divorce does not defend or contest the divorce. It is possible for the Respondent to disagree with the grounds for divorce yet agree to divorce taking place on the grounds that the relationship has irretrievably broken down between the Petitioner and the Respondent.

Contested Divorce

A contested divorce is one where the Respondent to the divorce petition decides to contest or defend the divorce. In other words, Respondent objects to divorce taking place in a contested divorce. A contested divorce is a more complicated procedure and will involve the divorcing couple having to attend family court for hearings. In very rare cases, Respondent can succeed in contesting a divorce in England & Wales. In the event of Resondent failing to defend the divorce, the family court is likely to make a legal costs order against the Resondent.

What are grounds for getting divorced in England & Wales?

There are 5 grounds for getting divorced in England & Wales which are as follows:

  • Adultery - The Petitioner alleges that the Respondent committed adultery and the marriage has broken down irretrievably.
  • Unreasonable Behaviour - The Petitioner alleges that the Respondent has behaved unreasonably and the marriage has broken down irretrievably.
  • Desertion Of The Petitioner By The Respondent - The petitioner can apply for divorce on the grounds that the Respondent deserted the petitioner more than 2 years ago and the marriage has broken down irretrievably.
  • 2 Years Separation And Respondent Consenting To Divorce - Petitioner and Respondent have lived separately for 2 years; Respondent consents to divorce taking place and the marriage has broken down irretrievably.
  • 5 Years Separation - Petitioner and Respondent lived separately for 5 years and the marriage has broken down irretrievably.

What is a Decree Nisi?

A decree nisi is a document that says that the court does not see any reason why you cannot divorce. You can apply for a decree nisi if your husband or wife does not defend your divorce petition.

What is decree absolute?

The decree absolute is the legal document that ends your marriage. You need to wait at least 43 days (6 weeks and 1 day) after the date of the decree nisi before you can apply for a decree absolute.

What documentary evidence do I need to apply for divorce?

To apply for a divorce you’ll need:

  • your husband or wife’s full name and address
  • your original marriage certificate or a certified copy (and a certified translation if it’s not in English)
  • proof of your name change if you’ve changed it since you got married - for example your marriage certificate or a deed poll

You must try to find your husband or wife’s current address if you do not know it. The court will need it to send them a copy of the divorce petition.

What happens if the respondent refuses to acknowledge the divorce petition?

If you can prove that your spouse received the divorce petition, you can apply for the deemed or substituted service. You can prove service by using a court bailiff or process server. 

Will I have to go to court for divorce petition?

Unless your spouse contests the divorce petition you filed, you do not have to go to court for divorce to take place. Only in contested divorce cases, the parties will  have to attend court hearing for the divorce to be decided by the court.

Who pays the legal costs in a divorce case?

Who pays the divorce legal costs will normally depend on the grounds for divorce. If your petition is based on unreasonable behaviour or adultery then you may be able to apply to the court for your legal costs to be paid by your spouse.

You should reach an agreement on the issue of costs at the outset of the divorce so that needless conflict is avoided down the line. If you are hoping that your costs will be covered by the other side, then be sure to discuss the matter with your divorce solicitor during your first interview.

Do I need a divorce solicitor for my divorce case?

Whethe or not you need a divorce solicitor to handle your divorce case is dependent on the complexity of the divorce matter and your ability to handle legal matters on your own. You normally engage a divorce solicitor for your divorce case in the following circumstances:

  • if you know that your spouse is likely to contest the divorce and will be unwilling to divorce;
  • if there are children involved and your spouse may not be willing to reach a mutual agreement regarding child arrangements;
  • If you and your spouse own significant assets or are in business together;
  • if there are overseas connections;
  • if one of you has been declared bankrupt;
  • if you wish to be claim spousal maintenance and be financially dependent on your spouse;
  • if the whereabout of your spouse are unknown;
  • if your spouse is unlikely to respond to your divorce petition.

What is a divorce mediation?

Divorce mediation is a method by which separating couples can agree and resolve the typical issues involving finances and children that arise during the divorce process. The mediator is a trained individual who is impartial and will act much like an umpire, guiding you and your spouse through face to face discussions about important matters such as divorce financial settlement and child arrangements.

Once an agreement has been reached, the mediator will draft a ‘Memorandum of Understanding’ to formally set out the proposals. Your divorce solicitor will then use the ‘Memorandum of Understanding’ to draw up your official agreement and further advise you.

Mediation is not suitable for all situations, but it is the right approach for many people and if there is a need for court proceedings to be issued then you will usually be expected to at least have attended a meeting concerning mediation (a Mediation Information and Assessment Meeting – MIAM). If your divorce solicitor believes that a MIAM is not appropriate or necessary, perhaps because divorce proceedings need to commence urgently or because domestic violence is involved, then they will let you know.

Will child arrangements issues decided by the court during divorce proceedins?

Unless the parents have reached an agreement with regards to child arrangements, one of the parties to the divorce proceedings will have to file a ‘Statement of Arrangements for Children’. This form provides the court with basic details about the children including their dates of birth, where they go to school and who is responsible for their care when the parents are working, if relevant. The form only serves to provide information and will not form the basis of any decision of the court.

In most cases, the parents will make these decisions themselves where possible, sometimes using mediation to assist in keeping discussions on track and in the best interests of the children.

It is worth noting that the court does hold the power to order that a Decree Absolute is not granted until it is satisfied with the arrangements for the children, although it is rarely the case that there will be any objection by the court provided the arrangements are reasonable and there are no concerns surrounding child protection.

FAQs - Annulment Of Marriage/Civil Partnership UK

What is a void marriage or civil partnership?

Void marriage or civil partnership means it was never legally valid. You can annul a marriage or civil partnership if it was not legally valid in the first place, for example:

  • you’re closely related to the person you married or registered civil partnership with
  • one or both of you were under 16
  • one of you was already married or in a civil partnership

If a marriage or civil partnership was never legally valid, the law says that it never existed. However, you may need legal paperwork (a ‘decree of nullity’) to prove this - for example if you want to get married again or register your civil partnership again.

What is a voidable marriage or civil partnership?

A voidable marriage or civil partnership means a marriage or civil partnership which was legally valid, but meets one of the reasons that makes it ‘voidable’.

You can annul a voidable marriage or civil partnership for a number of reasons, such as:

  • it was not consummated - you have not had sexual intercourse with the person you married since the wedding (does not apply for same sex couples)
  • you did not properly consent to the marriage or civil partnership - for example you were forced into it
  • the other person had a sexually transmitted disease (STD) when you got married or registered civil partnership
  • the woman was pregnant by another man when you got married
  • one spouse or civil partner is in the process of transitioning to a different gender

How soon can I apply for annulment of my marriage or civil partnership?

You can apply for annulment of your marriage or civil partnership soon after your marriage or civil partnership. Unlike divorce or civil partneship dissolution, you do not have to wait for a year.

How can I apply for annulment of marriage or civil partnership?

You can apply for annulment of marriage or civil partnership by filling in a nullity petition. You should send 2 copies of the petition to your nearest family court and keep your own copy.

How much is the court fee for nullity petition?

Filing a nullity petition in family court in England & Wales costs £550.

Within how many days, the Respondent to the nullity petition is required to respond to the nullity petition?

The Respondent to the nullity petition must respond to your nullity petition within 8 days, saying whether they agree for the marriage or civil partnership to be be annulled.

When can I apply for decree nisi for annulment of my marriage or civil partnership?

Once the Respondent has responded to the nullity petition and has agreed to the marriage or civil partnership annulment, you can apply for a decree nisi. The decree nisi will confirm that the court does not see any reason why the marriage or civil partnership cannot be annulled.

What is a statement in support of nullity petition?

You must also fill in a statement confirming that what you said in your nullity petition is true.

Use one of the forms below, depending on whether your marriage is ‘void’ or ‘voidable’:

When can I apply for decree of nullity to annul my marriage or civil partnership?

You can apply for a decree of nullity (decree absolute) 6 weeks after you get the decree nisi.  A ‘decree of nullity’ is the final legal document which says that the marriage or civil partnership has been annulled.

To apply for a decree of nullity, you need to fill in the notice of application for decree nisi to be made absolute.

Do I need to go to court for annulment of my marriage or civil partnership?

In most cases, you do not need to go to family court for annulment of marriage or civil partnership and the court will deal with the matters on papers.

FAQs - Divorce Financial Settlement

What Assets Are Split In Divorce Financial Settlement?

The adjustment of assets/finances covered by the financial court order may include the following:

  • property
  • money
  • shares
  • savings
  • pensions
  • debts
  • children/spousal maintenance

Does Spousal Behaviour Affect The Divorce Financial Settlement?

Normally, the behaviour of your spouse including adultery or unreasonable behaviour does not affect the divorce financial settlement. The grounds for divorce you use to obtain a divorce have no bearing on your financial settlement. Extreme behaviour may be taken into account by the court, for example, if one partner's violence has had a lasting effect on the other. If one partner recklessly or deliberately sabotages the financial position, for example, by spending recklessly or destroying assets, this could also be taken into account.

What is a ‘clean break’ divorce financial settlement?

A clean break divorce financial settlement is where no ongoing financial commitments remain between you and your spouse. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one spouse to the other.

A clean break is only possible in relation to the financial claims between spouses. It is not possible to have a clean break in relation to financial obligations towards your children.

What if I don’t have any assets to split?

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement. It’s important to do so, even if you don’t have any assets to divide at the time of the divorce. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Will any payments I make to my spouse while we are separated affect the final divorce settlement?

Not usually. It may be unwise to make excessively large payments to your spouse, because it might be argued that this shows both their need for such payments (or an equivalent transfer of assets) and your ability to pay.

Even so, any financial settlement should take into account the longer-term history of the marriage and future financial prospects.

On the other hand, if your spouse needs maintenance while you are separated, it would normally be sensible to provide it. Failure to do so is likely to make your spouse more hostile towards you.

Your spouse might apply to the court for an interim financial order requiring you to pay an appropriate level of maintenance. Both of these are likely to increase the overall level of ill feeling - and costs - in reaching a final agreement.

What effect will it have if I move out of the family home before we are divorced?

You will still have the same rights to occupy the home as you had before and can move back in if you choose.

There may be practical problems if, for example, your spouse changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need - such as important documents - with you in the first place.

There may also be other considerations so it is advisable to take advice before moving out.

Are there any precautions I should take during a divorce, for example, to stop my spouse taking cash from our joint account?

If your spouse can make withdrawals from a joint account without your agreement, you run the risk that some or all of the money will be taken. You will also be jointly liable for any debts run up on the account.

If you need access to the money or if you suspect that your spouse may misuse it, you may want to close the account. The same applies to any other form of joint borrowing or spending facility, such as a joint credit card.

However, if you suddenly freeze accounts that your spouse needs for living expenses, this will create problems. Your spouse will want you to make appropriate maintenance payments and may apply to the court for an interim financial order.

If your spouse is the sole owner of the family home, you should apply to the Land Registry to register an interest in the property. This will prevent the house being sold without your consent.

Is our divorce settlement affected if one of us remarries or starts cohabiting with a new partner?

If you remarry without having reached a financial settlement with your former spouse, you may lose the right to make any financial claim against your former spouse. He or she will still have the same right to make a financial claim against you as before.

If you have previously reached a clean break settlement, the remarriage (or cohabitation) will normally have no effect - you have already made a once and for all agreement.

If you are paying your former spouse maintenance (this does not include child maintenance), maintenance ceases if the recipient remarries (but not if the recipient merely starts to cohabit).

In any case, if your former spouse's financial position improves, you can apply to the court to stop paying maintenance or to pay a reduced amount.

If you are receiving maintenance from your former spouse, you should normally continue to do so after he or she remarries.

How long will it take to sort out our divorce and financial settlement?

Obtaining a divorce typically takes about six months. The process can take longer if anyone fails to deal with the various pieces of paperwork promptly.

How long financial settlement takes depends very much on your relationship with your spouse and the complexity of your financial affairs. Often, the financial settlement can be negotiated over the same period as the divorce proceedings, and is then confirmed by a consent order.

Where there is an agreed financial outcome, it is possible to obtain a court order embodying the agreement (consent order) and your decree absolute within 6 months from start to finish.

Where an agreement is not reached, it could take between 12 – 18 months to conclude form the date an application for financial settlement is made to the court.

Who pays the legal fees for a divorce financial settlement?

In most cases, both parties will have their own solicitor and will be responsible for their own legal fees. Only in unusual circumstances will the court consider conduct in the proceedings or the process of disclosure as a justification for an order for costs being made against the other party.

While negotiating a financial settlement you each use - and are responsible for paying - your own lawyer. As part of the settlement, however, one of you might negotiate that the other should pay part or all of their legal fees.

You can keep your legal fees down by agreeing as much as possible among yourselves. Fees can mount up if hostile spouses insist on conducting all negotiations through lawyers while arguing over trivial details. 

What orders can the court make in divorce financial settlement?

The court has power to make orders for a spouse including:-

  • Periodical payments (maintenance or alimony)
  • Secured provision (maintenance that is charged against an asset)
  • Lump sum (a cash payment)
  • Transfer of property (where one legal ownership of an asset is taken away from one spouse and transferred to the other)
  • (except upon decree of judicial separation) a pension  attachment and a pension sharing order
  • Agreed child maintenance orders, school fees orders and/or top up orders where there is a maximum Child Maintenance Service assessment.

Can money one of us expects to inherit be taken into account when we divorce?

Usually not unless you are about to receive the inheritance.

Will a prenuptial agreement protect my assets if we divorce?

Pre Nuptial Agreements are not legally binding in the UK but are considered to be pursuasive for the judge to exercise discretion in deciding the financial settlement by giving weight to the pre nupital agreement. Pre-Nups, Post Nups and Pre-civil registration agreements cannot exclude the authority of the Court when dealing with financial issues when a marriage or civil partnership irretrievably breaks down. When divorce arises, the court has discretionary powers to distribute assets as the Judge sees is in the best interest of the parties/children/individual circumstances. The prenuptial agreement which has been entered into fairly and after taking appropriate legal advice may have persuasive authority for the judge to exercise discretion and give weight to the same in distribution of assets.

The caveat is that while UK courts will recognise prenuptial agreements, they also still have the ultimate discretion to ignore any agreement reached if the agreement is deemed to be unfair to any children of the marriage.

What can I do if I find out my spouse has assets or income not disclosed when we agreed the divorce settlement?

You can go to court to get the financial settlement altered.

What can I do if I cannot afford the maintenance payments to my former spouse?

You can go to court to ask them to change the maintenance order to reflect your circumstances. For example, you might do this if you lose your job and cannot find another one.

Is it possible to reopen a divorce financial settlement?

It is possible to reopen a divorce financial settlement, but extremely rare. In most circumstances, once a financial settlement has been officially recorded in the form of a consent order, the financial ties between the divorcing couple are broken and neither of them will be entitled to make financial claims in the future.

However, a precedent set during the case of Barder vs Barder (1987) means that a court may allow a financial settlement to be reopened if something later happens that alters the principle on which the original consent order was made.

Before the court will agree to reopen a settlement, four key factors need to be satisfied:

  • A new event(s) occurs that invalidates the basis, or fundamental assumption, on which the original consent order was made.
  • The new event(s) must have occurred within a relatively short time after the consent order was made.
  • The request to re-open the financial settlement is made soon after the new event occurs.
  • The appeal does not prejudice any rights to assets acquired by third parties (for example, if a house has been sold to an unconnected third party).

Successful applications to reopen financial settlements are rare but they do happen – for example, in the case of Critchell v Critchell (2015).

Am I entitled to spousal maintenance after a divorce?

This will depend on many factors including:

  • How long you were married
  • The standard of living you enjoyed before the divorce
  • Your respective financial needs and the financial needs of any dependent children
  • The current earnings of each party
  • The potential earning capacity of each party in the future
  • The contribution made to the marriage, either financial or by caring for children and looking after the family home

For example, if a young couple with no children have been married for only a short time and both are working, then it may be fair for them both to leave the marriage with no ongoing financial ties and taking with them what they brought into the marriage.

If a couple have been married for 25 years and by agreement the wife gave up a career to bring up the family at home, while the husband became the sole bread winner, then the wife's future earnings capability may be severely compromised.

In these circumstances the wife should not be penalised for her lack of earnings ability and may be entitled to ongoing spousal maintenance.

How courts deal with pensions in divorce financial settlement?

When a marriage or civil partnership ends, courts deal with the pension arrangements in one of 3 ways.

  1. You’re given a percentage share of your former partner’s pension pot. This is known as pension sharing. The money that you get from the pension pot of your former spouse or civil partner is then legally treated as your money.
  2. The value of a pension is offset against other assets. This is known as pension offsetting. For example: you keep your pension and your former spouse or civil partner keeps the home.
  3. Some of your pension is paid to your former partner. This is known as pension attachment or sometimes pension earmarking. This is like a maintenance payment directly from one person’s pension pot to their former spouse or civil partner. Under this arrangement, money from your tax-free lump sum can also go to your former spouse or civil partner.

FAQs - Financial Settlement In England After An Overseas Divorce

Can I apply for divorce financial settlement in England after my overseas divorce?

You can apply for divorce financial settlement in England after your overseas divorce if you obtained no financial settlement or the financial settlement made in the other country was inadequate and parties to the divorce have sufficient connection to England.

What are the circumstances under which a financial relief in England after an overseas divorce is likely to be a viable option?

In practice, an application for financial relief in England after overseas divorce is most likely to become a viable way to proceed in cases where the foreign divorce was in a jurisdiction where the courts:

  • do not have jurisdiction over foreign property;
  • have no, or under-developed, mechanisms to force financial disclosure;
  • demonstrate favouritism towards nationals over expat spouses;
  • have no mechanism to share pensions;
  • demonstrate favouritism towards those of one religion over another; or
  • have no or under-developed mechanisms to enforce agreements and orders.

Under what provisions of Family Law, an application for financial relief in England can be made after a foreign divorce?

Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) allows a person who has been divorced abroad to apply for financial relief in England after an overseas divorce. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on divorce by a foreign court in a situation where the parties had substantial connections with England.

What are the two stages for financial relief in England after an overseas divorce?

The 2 stages for financial relief in England after an overseas divorce are as follows:

First Stage: Sermission Stage

First, the Court’s permission must be obtained to make an application for a financial award. The process begins with a without notice application for permission to proceed. The applicant must show that they have a 'substantial ground' for the application to proceed. The permission stage is designed to filter out weak applications before the respondent is put to the significant costs of defending an application that may be fatally flawed or have little merit.

At the permission stage the applicant must be able to show that they satisfy the jurisdictional requirements and that the legal test set out in in the leading case of Agbaje v Agbaje [2010] has been met.  The threshold is not high but higher than a "good arguable case".

Second Stage: Divorce Financial Settlement Proceedings After Grant Of Permission

After the permission to proceed with financial settlement has been granted by the court in the first stage of the process, the court procedure for second stage is the same as for an in-country divorce financial settlement.

What are the jurisdiction requirements for permission to be granted by the family court for financial relief in Engalnd after an overseas divorce?

In order to bring a claim in England, the parties must have sufficient connection to England as follows:

  • Either party is domiciled in England and Wales at the time of the foreign divorce or at the time of the application; or
  • Either party has been habitually resident in England and Wales for 12 months at the time of the foreign divorce or at the time of the application; or
  • One party has an interest in a dwelling house in England and Wales which had been a matrimonial home (when claims are limited to the value of the house);
  • Other narrow criteria following recent EU legislation.

What are the leal requirements for grant of permission to apply for financial relief in England after an overseas divorce?

For Part III proceedings to initiate in England, both the marriage as well as divorce must be legally recognised and valid under English law. Part III proceedings can only be brought if the applicant has not remarried.

The legal test on an application for permission is set out at paragraph 33 of Agbaje:

"... the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts. It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."

Further guidance can be found in Traversa v Freddi [2011] at paragraph 30 and 31:

"It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter.

At the hearing of the section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following sections erect. Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge."

What factors are taken into account by the court when considering permission application for financial relief in England after an overseas divorce?

Followring are the factors that the judge must take into account when assessing whether the applicant has satisfied the legal test set out in Agbaje are detailed in s16(2), MFPA 1984:

  • the connection that the parties to the marriage have with:
    • England and Wales;
    • the country in which the marriage was dissolved or annulled, or in which they were legally separated; and
    • any other country outside England and Wales;
  • any financial benefit that the applicant, or a child of the family, has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or operation of the law of a country outside England and Wales;
  • where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;
  • any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales, and, if the applicant has omitted to exercise that right, the reason for that omission;
  • the availability in England and Wales of any property in respect of which an order in favour of the applicant could be made;
  • the extent to which any order made is likely to be enforceable; and
  • the length of time that has elapsed since the date of the divorceDissolution Of Civil Partnership, annulment or legal separation.

How important is the detailed personal statement of the applicant for an application for permission to apply for financial relief in England after an overseas divorce?

The application for permission must be supported by a very detailed personal statement in support of the Application. Such supporting statement of the Applicant should meticulously address:

  • the background of the case,
  • why both the marriage and the foreign divorce is entitled to be recognised as valid in England & Wales; and
  • how the jurisdictional requirements are satisfied.

The statement should demonstrate that the merits tests set out in the legislation and case law have been met. Where available, very full documentary evidence should be exhibited to the statement. The statement in support of the application is also a good opportunity to discuss in detail the overall merits of the case beyond the application for permission.

Do I need country expert report for permission to apply for financial relief in England after an overseas divorce?

The court must take into account the financial benefit that has been, or is likely to be, received in the foreign jurisdiction, and if the applicant has the right to apply for relief, and reason why that right has not been exercised. These factors cannot properly be addressed without evidence as to the law of the foreign jurisdiction. The applicant should therefore consider obtaining a short expert report from a specialist in the relevant jurisdiction to be attached to their statement in support of their application for permission.

Why financial settlement claim in England after an overseas divorce?

If you have already been divorced abroad and obtained no financial settlement or the financial settlement made in the other country was inadequate, you may be able to apply to the English Court for a financial settlement order against your former spouse. 

The English family courts have the ability to grant divorce financial provision even though a divorce may have been previously pronounced abroad and financial provision already made. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on divorce by a foreign court in a situation where the parties had substantial connections with England.

There are still some appalling injustices in some countries abroad which is where the English legislation helps to redress some of these cases. It is an opportunity for fairness and justice for some international families. Part III proceedings can also usefully be used where the law of the country where the divorce occurred does not allow orders to be made in respect of offshore property. It can also be used to obtain a pension sharing order in respect of an English pension in circumstances where other issues are dealt with in the foreign divorce and a foreign divorce pension sharing order will have no validity for the English pension company.

However, it is not for England to act as a court of appeal of other countries with similar approaches to England. Neither is it an opportunity to have two ‘bites of the cherry’.

Where the connection with England is strong, it may be appropriate for there to be such provision as would have been made had the divorce been in England. Where the connection is not so strong and there has already been adequate provision, it will not be appropriate for Part III to be used as a simple "top up".

FAQs - Spousal Maintenance UK

What is spousal maintenance UK?

Spousal maintenance is maintenance that is paid by a husband or a wife to their former spouse following a divorce and is in addition to the child maintenance. Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (term of years) or for the remainder of the parties’ life (known as a “joint lives order”). Spousal maintenance ends if the recipient remarries or if either party dies. It may be varied or dismissed by the courts on a change in circumstances.

How long does spousal maintenance last in England & Wales?

If the marriage or civil partnership is short (typically, less than five years), it might not be paid at all or only for a short period through what's called a 'term order'. Where a couple has been together for a long time, or where an ex-partner is unable to work, it can be paid for life.

When does spousal maintenance stop?

Spousal maintenance usually stops if:

  • The payment term ends;
  • You or your ex-partner die, or
  • The person receiving spousal maintenance remarries or enters another civil partnership

It doesn’t necessarily stop if they live with a new partner without marrying or entering a civil partnership, although the person paying it could use this as a reason to apply to the courts to get the spousal maintenance amount reduced.

Who is entitled to claim spousal maintenance?

When a couple separate whether one party is entitled to claim spousal maintenance from the other is a common concern. There are several factors that need to be considered. To establish whether you are likely to be entitled to spousal maintenance you should ask yourself the following questions:

  • What are your financial needs and income potential? Can these needs be met without the support of your former spouse?
  • Have you been married for a long time and given up work to support your spouse or family by becoming the home maker?
  • Are you of an age where establishing a career, to deliver the kind of lifestyle you have been used to, would be difficult?
  • Would you be financially better off having a financial clean break and lump sum from your from your former spouse, rather than maintenance?
  • Are you prepared to take your case to court, if your former spouse will not agree to spousal maintenance?
  • Are you planning to re-marry? (if you do you will lose your right to spousal maintenance)

The conditions under which spousal maintenance might be paid vary, as every marriage varies. If a couple have been together for a long time and one party has given up work to run the home whilst the other has developed a career and been the family breadwinner there are arguments to say that the homemaker is entitled to financial support, in the form of spousal maintenance, if the marriage breaks down and on the basis that the spouse in need cannot support themselves financially from income they have coming in from other sources.

As is often the case with family law, every case is different. It is therefore important to take advice from a divorce and family lawyer. They will be able to consider your circumstances and advise on the likely success of your case.

How can I calculate spousal maintenance?

There are no hard and fast rules relating to spousal maintenance calculation.

In deciding whether spousal maintenance is appropriate and for how long, the court will consider a number of factors including:

  • the length of the marriage
  • whether there are minor children
  • whether there is an income disparity between the couple
  • how their housing needs are met
  • whether a spouse has a continuing financial need
  • whether a spouse has a diminished earning capacity.

Spousal maintenance is ordered by the court to enable the financially weaker spouse a period of time to adjust to being financially independent, without significant hardship. There is no set formula.

FAQs - Special Guardianship Order

What is a Special Guardianship Order?

A special guardianship order is a court order made under the Children Act 1989 appointing one or more persons to be a child's 'special guardian'. Application for Special Guardianship Order may be made by an individual or jointly by two or more people to become special guardians. Joint applicants do not need to be married. Special guardians must be 18 or over.

What is the purpose of a Special Guardianship Order?

A special guardianship order is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement as per family court order. The Special Guardianship Order gives the special guardian parental responsibilities, and leaves the guardian free to make decisions about how to bring up your child or children. The special guardianship order does not change birth parent's legal relationship with the child, so they remain a member of birth parent's family even though they are living with their special guardian.

Who can apply for a Special Guardianship Order?

Close relatives of a child can apply to be their Special Guardian – and this might involve grandparents, an uncle or aunt, or a godparent or a close family friend applying to the court for a Special Guardianship Order.

The following people may apply to be special guardians:

  • Any guardian of the child;
  • Any individual who has a child arrangements order or any person where a child arrangements order is in force and who has the consent of the person in whose favour the child arrangements order is made;
  • Anyone with whom the child has lived for at least three years out of the last five years;
  • Anyone with the consent of the local authority if the child is in care;
  • A local authority foster parent with whom the child has lived for at least one year preceding the application;
  • Anyone who has the consent of those with parental responsibility;
  • Anyone who has the leave of the court.

NOTE: You must be over 18 years of age and you can apply on your own or jointly with another person.

Who cannot apply for a Special Guardianship Order?

A parent of a child may not be appointed as the child's special guardian.

What is a local authority report for a Special Guardianship Order?

Local authorities are required to produce to the court a report on all children, not just those who are looked after, when an application is made. On receipt of notice of an application, or if the court makes a request, the local authority must investigate and prepare a report to the court about the suitability of the applicants to be special guardians.

The regulations say that the local authority report should include certain key information about the child such as:

  • Whether the child has brothers and sisters and details of both parents.
  • The relationship a child has with other family members and the arrangements for the child to see or keep in touch with different family members.
  • Details of the child's relationship with his/her parents.
  • The parent/s' and the child's wishes and feelings.
  • The prospective Guardian's family composition and circumstances.
  • Parenting capacity.
  • Medical information on the child, prospective special guardian and the birth parent(s).
  • An assessment of how a Special Guardianship Order would meet a child's long term interests as compared with other types of order.

This report must include information about the child, the child’s wishes, the child’s birth family, contact arrangements, the prospective special guardian and recommendations about whether or not an order should be made (See the schedule to the relevant regulations for further details). The local authority is expected to start work on this report, or arrange for someone else to do it, as soon as possible after receiving the notice. The court cannot make an order without having received a report. Local authorities are expected to ensure that the social worker who prepares the report is suitably qualified and experienced, but there are no restrictions on who can write the report as there are for adoption.

What support services are provided by local authorities?

Each local authority must make arrangements for the provision of special guardianship support services which may include:

  • Financial assistance (means tested);
  • Assistance with the arrangements for contact between a child, his/her parents and any relatives that the local authority consider to be beneficial;
  • This assistance can include cash to help with the cost of travel, entertainment, and mediation to help resolve difficulties on contact;
  • Respite care;
  • Counselling, advice, information and other support services;
  • Services to enable children, parents and special guardians to discuss matters, this might include setting up a support group;
  • Therapeutic services for the child.

What decisions Special Guardians cannot make on their own?

The special guardians cannot make the following decisions on their own:

  • Changing the child's surname;
  • Granting the child permission to marry;
  • Placing the child for adoption;
  • Consenting to the child being sterilised;
  • Granting parental responsibility to a father or step parent.

What option is available to a party with parental responsibility who disagrees with an application for special guardianship order?

If a party with parental responsibility disagrees with an application for special guardianship they can make an application to the Court and apply for a Specific Issue Order or a Prohibited Steps Order. Although it is recommended that any disagreements are resolved through mediation, the Court will always make their decision based on what is considered to be best for the child, taking into account the report prepared by the Local Authority.

What factors the family court will consider to make a Special Guardianship Order?

When considering whether to make a Special Guardianship Order, the family court’s primary consideration is the best interests of the child concerned.

The family court will also have regard to:

  • the wishes and feeling of the child concerned (as far as they can be obtained and in light of the child’s age and level of understanding);
  • the child’s physical, emotional and educational needs;
  • the likely effect on the child of any change in his/her circumstances;
  • the child’s age, sex, background, and any other characteristic which the court considers relevant;
  • any harm which the child has suffered or is at risk of suffering;
  • how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  • the range of powers available to the court under the Children Act in the proceedings in question.

Before making a special guardianship order, the court must also consider whether there are any existing orders, such as a child arrangements order and whether it is necessary to vary or discharge these, or make such an order in addition to a special guardianship order, such as a child arrangements to set out the arrangements for the child to spend time with their parents.

Can I get a Special Guardianship Order for my child removed or varied?

Although a Special Guardianship Order is usually in place until a child is 18, if there has been a significant change in circumstances the order can be changed in one of two ways:

  • The terms of the order can be altered;
  • The order can be removed completely and the child returned to their parents

Anyone wishing to end a Special Guardianship Order must apply to the court, where the evidence will then be examined to determine if the change in circumstances is significant enough to vary  the original order. The court will also take into consideration the likely impact of their decision on the child and how disruptive another change in living arrangements would be for them.

What are the alternatives to a Special Guardianship Order?

In the situation where a child is considered to be at risk of harm if they remain in the family home, there are a few alternatives to a Special Guardianship Order which are as follows:

Foster Care

Unlike a Special Guardian, a foster carer does not have parental responsibility for a child and so is unable to make key decisions about the child’s care and upbringing. Even if the placement is long-term, foster care does not always afford the child the sense of security and belonging that can be gained through a Special Guardianship Order.

Child Arrangements Order

A Child Arrangements Order is a Court Order that sets out details of who is responsible for the care of a child. This type of Court Order is usually used in cases where the parents cannot agree between them how to split the care of their child/children.

A ‘child arrangements order’ decides:

  • where your child lives;
  • when your child spends time with each parent;
  • when and what other types of contact take place (phone calls, for example).

‘Child arrangements orders’ replace ‘residence orders’ and ‘contact orders’. Parents with these orders do not need to re-apply.

Adoption

Adoption severs all connection between the child and their birth parents, placing them permanently with another family. Birth parents lose all parental responsibility once the court order has been issued and links with the wider biological family are also lost in the majority of cases.

Does Special Guardianship Order give parental responsibility?

A Special Guardianship Order gives the special guardian legal parental responsibility for the child which is expected to last until the child is 18. But, unlike Adoption Orders, these orders do not remove parental responsibility from the child’s birth parents, although their ability to exercise it is extremely limited.

In practice, this means that the child is no longer the responsibility of the local authority, and the special guardian will have more clear responsibility for all day-to day decisions about caring for the child or young person, and for taking important decisions about their upbringing, for example their education. And, importantly, although birth parents retain their legal parental responsibility, the special guardian only has to consult with them about these decisions in exceptional circumstances.

How long does the Special Guardian Order last?

A Special Guardianship Order usually lasts until your child is 18 years old. However, if circumstances change significantly the Family Court can vary or even discharge the Order.

FAQs - Civil Partnership Dissolution

What is civil partnership dissolution?

Civil partnership dissolution in England & Wales is a legal process to end civil parnership between civil partners after the relationship between them has broken down irretrievably. An application for civil partnership dissolution in England & Wales is made using application form D8.

How soon can I get my civil partnership dissolved in England & Wales after registration of my civil partnership?

You can get your civil partnership dissolved in England & Wales only after you have been in civil partnership for at least one year.

If your civil partnership was not consummated, you may be able to apply for annulment of your civil partnership even if you have been in civil partnership for less than a year.

What are the requirements to end civil partnership in England & Wales?

You can end your civil partnership in England & Wales if all of the following are true:

  • you’ve been in civil partnership for over a year
  • your relationship has permanently broken down
  • your civil partnership is legally recognised in England & Wales (including same-sex marriage)
  • Either you or your civil partner is habitually resident in England & Wales

What is a 'clean break' civil partnership?

A clean break civil partnership is where no ongoing financial commitments remain between you and your civil partner. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one partner to the other.

A clean break is only possible in relation to the financial claims between civil partners. It is not possible to have a clean break in relation to financial obligations towards your children.

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement order. It’s important to do so, even if you don’t have any assets to divide at the time of the civil partnership dissolution. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Can I end civil partnership in England & Wales if I got married abroad?

Yes, you can start divorce proceedings in England provided that you have a valid civil partnership certificate (and certified translation, if the civil partnership certificate is not written in English). The key issue is determining whether the civil partnership is valid and legal in the country within which the ceremony took place, with the local custom being observed. If the civil partnership has been carried out in accordance with the local laws and customs of the country in which it took place, it is usually a valid legal civil partnership.

You should also meet all of the following requirements for ending civil partnership in England & Wales:

  • you’ve been in civil partnership for over a year
  • your relationship has permanently broken down
  • your civil partnership is legally recognised in England & Wales (including same-sex marriage)
  • Either you or your civil partner is habitually resident in England & Wales

What other matters may also arise in civil partnership dissolution proceedings?

Depending on the personal circumstances of the petitioner and the Respondent, the following other matters may also arise in the divorce proceedings:

How long does the civil partnership dissolution process take?

This varies from court to court and from case to case, depending on the complexity of the case. An uncontested civil partnership dissolution with no financial settlement issues can take up to 6 months whereas a contested and complicated civil partnership dissolution can take much longer than 6 months and time would vary depending on the complexity of the matter.

How much does it cost to file a civil partnership dissolution in England?

The court fee for filing a civil partnership dissolution in England & Wales is £550 which needs to be paid at the time of submitting your civil partnership dissolution petition to the family court.

What is difference between uncontested and contested civil partnership dissolution in England?

Uncontested Civil Partnership Dissolution

An uncontested civil partnership dissolution is a dissolution process where the Respondent to the civil partnership dissolution does not defend or contest the ending of civil partnership. It is possible for the Respondent to disagree with the grounds for civil partnership dissolution yet agree to civil partnership dissolution taking place on the grounds that the relationship has irretrievably broken down between the Petitioner and the Respondent.

Contested Civil Partnership Dissolution

A contested civil partnership dissolution is one where the Respondent to the dissolution petition decides to contest or defend the civil partnership dissolution. In other words, Respondent objects to civil partnership dissolution taking place in a contested civil partnership dissolution. A contested civil partnership dissolution is a more complicated procedure and will involve the couple having to attend family court for hearings. In very rare cases, Respondent can succeed in contesting a civil partnership dissolution in England & Wales. In the event of Resondent failing to defend the civil partnership dissolution, the family court is likely to make a legal costs order against the Resondent.

What are grounds for ending civil partnership in England & Wales?

There are 5 grounds for ending civil partnership in England & Wales which are as follows:

  • Adultery - The Petitioner alleges that the Respondent committed adultery and the civil partnership has broken down irretrievably.
  • Unreasonable Behaviour - The Petitioner alleges that the Respondent has behaved unreasonably and the civil partnership has broken down irretrievably.
  • Desertion Of The Petitioner By The Respondent - The petitioner can apply for civil partnership dissolution on the grounds that the Respondent deserted the petitioner more than 2 years ago and the civil partnership has broken down irretrievably.
  • 2 Years Separation And Respondent Consenting To Ending Civil Partnership - Petitioner and Respondent have lived separately for 2 years; Respondent consents to end civil partnership and the civil partnership has broken down irretrievably.
  • 5 Years Separation - Petitioner and Respondent lived separately for 5 years and the civil partnership has broken down irretrievably.

What is a conditional order of dissolution?

A conditional order of dissolution is a document that says that the court does not see any reason why you cannot end civil partnership. You can apply for a conditional order of dissolution if your civil partner does not defend your civil partnership dissolution petition.

What is a final dissolution order?

The final dissolution order is the legal document that ends your civil partnership. You need to wait at least 43 days (6 weeks and 1 day) after the date of the conditional order of dissolution before you can apply for a final dissolution order.

What documentary evidence do I need to apply for civil partnership dissolution?

To apply for a civil partnership dissolution you’ll need:

  • your civil partner’s full name and address
  • your original civil partnership certificate or a certified copy (and a certified translation if it’s not in English)
  • proof of your name change if you’ve changed it since you registered your civil partnership - for example your civil partnership certificate or a deed poll

You must try to find your civil partner’s current address if you do not know it. The court will need it to send them a copy of the civil partnership dissolution petition.

FAQs - Civil Partnership Dissolution Financial Settlement

What Assets Are Split In Civil Partnership Dissolution Financial Settlement?

The adjustment of assets/finances covered by the financial court order may include the following:

  • property
  • money
  • shares
  • savings
  • pensions
  • debts
  • children/spousal maintenance

Does Partner's Behaviour Affect The Civil Partnership Dissolution Financial Settlement?

Normally, the behaviour of your partner including adultery or unreasonable behaviour does not affect the civil partnership dissolution financial settlement. The grounds for civil partnership dissolution you use to obtain a divorce have no bearing on your financial settlement. Extreme behaviour may be taken into account by the court, for example, if one partner's violence has had a lasting effect on the other. If one partner recklessly or deliberately sabotages the financial position, for example, by spending recklessly or destroying assets, this could also be taken into account.

What is a ‘clean break’ civil partnership dissolution financial settlement?

A clean break civil partnership dissolution financial settlement is where no ongoing financial commitments remain between you and your civil partner. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one spouse to the other.

A clean break is only possible in relation to the financial claims between civil partners. It is not possible to have a clean break in relation to financial obligations towards your children.

What if I don’t have any assets to split?

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement. It’s important to do so, even if you don’t have any assets to divide at the time of the civil partnership dissolution. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Will any payments I make to my civil partner while we are separated affect the final civil partnership dissolution settlement?

Not usually. It may be unwise to make excessively large payments to your civil partner, because it might be argued that this shows both their need for such payments (or an equivalent transfer of assets) and your ability to pay.

Even so, any financial settlement should take into account the longer-term history of the marriage and future financial prospects.

On the other hand, if your civil partner needs maintenance while you are separated, it would normally be sensible to provide it. Failure to do so is likely to make your civil partner more hostile towards you.

Your civil partner might apply to the court for an interim financial order requiring you to pay an appropriate level of maintenance. Both of these are likely to increase the overall level of ill-feeling - and costs - in reaching a final agreement.

What effect will it have if I move out of the family home before our civil partnership is dissolved?

You will still have the same rights to occupy the home as you had before and can move back in if you choose.

There may be practical problems if, for example, your civil partner changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need - such as important documents - with you in the first place.

There may also be other considerations so it is advisable to take advice before moving out.

Are there any precautions I should take during a civil partnership dissolution, for example, to stop my civil partner taking cash from our joint account?

If your civil partner can make withdrawals from a joint account without your agreement, you run the risk that some or all of the money will be taken. You will also be jointly liable for any debts run up on the account.

If you need access to the money or if you suspect that your civil partner may misuse it, you may want to close the account. The same applies to any other form of joint borrowing or spending facility, such as a joint credit card.

However, if you suddenly freeze accounts that your civil partner needs for living expenses, this will create problems. Your civil partner will want you to make appropriate maintenance payments and may apply to the court for an interim financial order.

If your civil partner is the sole owner of the family home, you should apply to the Land Registry to register an interest in the property. This will prevent the house being sold without your consent.

Is our civil partnership dissolution settlement affected if one of us remarries/registers civil partnership or starts cohabiting with a new partner?

If you remarry/register civil partnership without having reached a financial settlement with your former civil partner, you may lose the right to make any financial claim against your former civil partner. He or she will still have the same right to make a financial claim against you as before.

If you have previously reached a clean break settlement, the remarriage or re-registration of civil partnership (or cohabitation) will normally have no effect - you have already made a once and for all agreement.

If you are paying your former civil partner maintenance (this does not include child maintenance), maintenance ceases if the recipient remarries (but not if the recipient merely starts to cohabit).

In any case, if your former civil partner's financial position improves, you can apply to the court to stop paying maintenance or to pay a reduced amount.

If you are receiving maintenance from your former civil partner, you should normally continue to do so after he or she remarries.

How long will it take to sort out our civil partnership dissolution and financial settlement?

Obtaining a civil partnership dissolution typically takes about six months. The process can take longer if anyone fails to deal with the various pieces of paperwork promptly.

How long financial settlement takes depends very much on your relationship with your civil partner and the complexity of your financial affairs. Often, the financial settlement can be negotiated over the same period as the civil partnership dissolution proceedings, and is then confirmed by a consent order.

Where there is an agreed financial outcome, it is possible to obtain a court order embodying the agreement (consent order) and your decree absolute within 6 months from start to finish.

Where an agreement is not reached, it could take between 12 – 18 months to conclude form the date an application for financial settlement is made to the court.

Who pays the legal fees for a civil partnership dissolution financial settlement?

In most cases, both parties will have their own solicitor and will be responsible for their own legal fees. Only in unusual circumstances will the court consider conduct in the proceedings or the process of disclosure as a justification for an order for costs being made against the other party.

While negotiating a financial settlement you each use - and are responsible for paying - your own lawyer. As part of the settlement, however, one of you might negotiate that the other should pay part or all of their legal fees.

You can keep your legal fees down by agreeing as much as possible among yourselves. Fees can mount up if hostile civil partners insist on conducting all negotiations through lawyers while arguing over trivial details. 

What orders can the court make in civil partnership dissolution financial settlement?

The court has power to make orders for a spouse including:-

  • Periodical payments (maintenance or alimony)
  • Secured provision (maintenance that is charged against an asset)
  • Lump sum (a cash payment)
  • Transfer of property (where one legal ownership of an asset is taken away from one civil partner and transferred to the other)
  • (except upon decree of judicial separation) a pension  attachment and a pension sharing order
  • Agreed child maintenance orders, school fees orders and/or top up orders where there is a maximum Child Maintenance Service assessment.

Can money one of us expects to inherit be taken into account in civil partnership dissolution financial settlement?

Usually not unless you are about to receive the inheritance.

Will a pre-civil registration agreement protect my assets if we dissolve our civil partnership?

Pre-civil registration Agreements are not legally binding in the UK but are considered to be pursuasive for the judge to exercise discretion in deciding the financial settlement by giving weight to the pre-civil registration agreement. Pre-Nups, Post Nups and Pre-civil registration agreements cannot exclude the authority of the Court when dealing with financial issues when a marriage or civil partnership irretrievably breaks down. When civil partnership dissolution arises, the court has discretionary powers to distribute assets as the Judge sees is in the best interest of the parties/children/individual circumstances. The pre-civil registration agreement which has been entered into fairly and after taking appropriate legal advice may have persuasive authority for the judge to exercise discretion and give weight to the same in distribution of assets.

The caveat is that while UK courts will recognise pre-civil registration agreements, they also still have the ultimate discretion to ignore any agreement reached if the agreement is deemed to be unfair to any children of the civil partnership.

What can I do if I find out my civil partners has assets or income not disclosed when we agreed the civil partnership dissolution settlement?

You can go to court to get the financial settlement altered.

What can I do if I cannot afford the maintenance payments to my former civil partner?

You can go to court to ask them to change the maintenance order to reflect your circumstances. For example, you might do this if you lose your job and cannot find another one.

Is it possible to reopen a civil partnership dissolution financial settlement?

It is possible to reopen a civil partnership dissolution financial settlement, but extremely rare. In most circumstances, once a financial settlement has been officially recorded in the form of a consent order, the financial ties between the couple are broken and neither of them will be entitled to make financial claims in the future.

However, a precedent set during the case of Barder vs Barder (1987) means that a court may allow a financial settlement to be reopened if something later happens that alters the principle on which the original consent order was made.

Before the court will agree to reopen a settlement, four key factors need to be satisfied:

  • A new event(s) occurs that invalidates the basis, or fundamental assumption, on which the original consent order was made.
  • The new event(s) must have occurred within a relatively short time after the consent order was made.
  • The request to re-open the financial settlement is made soon after the new event occurs.
  • The appeal does not prejudice any rights to assets acquired by third parties (for example, if a house has been sold to an unconnected third party).

Successful applications to reopen financial settlements are rare but they do happen – for example, in the case of Critchell v Critchell (2015).

Am I entitled to spousal maintenance after a civil partnership dissolution?

This will depend on many factors including:

  • How long you were in civil partnership
  • The standard of living you enjoyed before the civil partnership dissolution
  • Your respective financial needs and the financial needs of any dependent children
  • The current earnings of each party
  • The potential earning capacity of each party in the future
  • The contribution made to the civil partnership, either financial or by caring for children and looking after the family home

For example, if a young couple with no children have been married for only a short time and both are working, then it may be fair for them both to leave the civil partnership with no ongoing financial ties and taking with them what they brought into the civil partnership.

If a couple have been in civil partnership for 25 years and by agreement the wife gave up a career to bring up the family at home, while the husband became the sole bread winner, then the wife's future earnings capability may be severely compromised.

In these circumstances the wife should not be penalised for her lack of earnings ability and may be entitled to ongoing spousal maintenance.

How courts deal with pensions in civil partnership dissolution financial settlement?

When a civil partnership ends, courts deal with the pension arrangements in one of 3 ways.

  1. You’re given a percentage share of your former partner’s pension pot. This is known as pension sharing. The money that you get from the pension pot of your former civil partner is then legally treated as your money.
  2. The value of a pension is offset against other assets. This is known as pension offsetting. For example: you keep your pension and your former civil partner keeps the home.
  3. Some of your pension is paid to your former partner. This is known as pension attachment or sometimes pension earmarking. This is like a maintenance payment directly from one person’s pension pot to their former civil partner. Under this arrangement, money from your tax-free lump sum can also go to your former civil partner.

FAQs - Financial Settlement In England After An Overseas Civil Partnership Dissolution

Can I apply for civil partnership dissolution financial settlement in England after my overseas civil partnershio dissolution?

You can apply for financial settlement in England after your overseas civil partnership dissolution if you obtained no financial settlement or the financial settlement made in the other country was inadequate and parties to the civil partnership dissolution have sufficient connection to England.

What are the circumstances under which a financial relief in England after an overseas civil partnership dissolution is likely to be a viable option?

In practice, an application for financial relief in England after overseas civil partnership dissolution is most likely to become a viable way to proceed in cases where the foreign civil partnership dissolution was in a jurisdiction where the courts:

  • do not have jurisdiction over foreign property;
  • have no, or under-developed, mechanisms to force financial disclosure;
  • demonstrate favouritism towards nationals over expat spouses;
  • have no mechanism to share pensions;
  • demonstrate favouritism towards those of one religion over another; or
  • have no or under-developed mechanisms to enforce agreements and orders.

Under what provisions of Family Law, an application for financial relief in England can be made after a foreign civil partnership dissolution?

Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) allows a person who has ended civil partnership abroad to apply for financial relief in England after an overseas civil partnership dissolution. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on civil partnership dissolution by a foreign court in a situation where the parties had substantial connections with England.

What are the two stages for financial relief in England after an overseas civil partnership dissolution?

The 2 stages for financial relief in England after an overseas civil partnership dissolution are as follows:

First Stage: Sermission Stage

First, the Court’s permission must be obtained to make an application for a financial award. The process begins with a without notice application for permission to proceed. The applicant must show that they have a 'substantial ground' for the application to proceed. The permission stage is designed to filter out weak applications before the respondent is put to the significant costs of defending an application that may be fatally flawed or have little merit.

At the permission stage the applicant must be able to show that they satisfy the jurisdictional requirements and that the legal test set out in in the leading case of Agbaje v Agbaje [2010] has been met.  The threshold is not high but higher than a "good arguable case".

Second Stage: Divorce Financial Settlement Proceedings After Grant Of Permission

After the permission to proceed with financial settlement has been granted by the court in the first stage of the process, the court procedure for second stage is the same as for an in-country civil partnership dissolution financial settlement.

What are the jurisdiction requirements for permission to be granted by the family court for financial relief in Engalnd after an overseas civil partnership dissolution?

In order to bring a claim in England, the parties must have sufficient connection to England as follows:

  • Either party is domiciled in England and Wales at the time of the foreign civil partnership dissolution or at the time of the application; or
  • Either party has been habitually resident in England and Wales for 12 months at the time of the foreign civil partnership dissolution or at the time of the application; or
  • One party has an interest in a dwelling house in England and Wales which had been a matrimonial home (when claims are limited to the value of the house);
  • Other narrow criteria following recent EU legislation.

What are the leal requirements for grant of permission to apply for financial relief in England after an overseas civil partnership dissolution?

For Part III proceedings to initiate in England, both the civil partneship as well as dissolution of civil partnership must be legally recognised and valid under English law. Part III proceedings can only be brought if the applicant has not remarried or re-registered his/her civil partnership.

The legal test on an application for permission is set out at paragraph 33 of Agbaje:

"... the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts. It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."

Further guidance can be found in Traversa v Freddi [2011] at paragraph 30 and 31:

"It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter.

At the hearing of the section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following sections erect. Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge."

What factors are taken into account by the court when considering permission application for financial relief in England after an overseas civil partnership dissolution?

Followring are the factors that the judge must take into account when assessing whether the applicant has satisfied the legal test set out in Agbaje are detailed in s16(2), MFPA 1984:

  • the connection that the parties to the civil partnership have with:
    • England and Wales;
    • the country in which the civil partnership was dissolved or annulled, or in which they were legally separated; and
    • any other country outside England and Wales;
  • any financial benefit that the applicant, or a child of the family, has received, or is likely to receive, in consequence of the civil partnership dissolution, annulment or legal separation, by virtue of any agreement or operation of the law of a country outside England and Wales;
  • where an order has been made by a court in a country outside England and Wales requiring the other party to the civil partnership to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;
  • any right that the applicant has, or has had, to apply for financial relief from the other party to the civil partnership under the law of any country outside England and Wales, and, if the applicant has omitted to exercise that right, the reason for that omission;
  • the availability in England and Wales of any property in respect of which an order in favour of the applicant could be made;
  • the extent to which any order made is likely to be enforceable; and
  • the length of time that has elapsed since the date of the divorceDissolution Of Civil Partnership, annulment or legal separation.

How important is the detailed personal statement of the applicant for an application for permission to apply for financial relief in England after an overseas civil partnership dissolution?

The application for permission must be supported by a very detailed personal statement in support of the Application. Such supporting statement of the Applicant should meticulously address:

  • the background of the case,
  • why both the civil partnership and the foreign dissolution of civil partnership is entitled to be recognised as valid in England & Wales; and
  • how the jurisdictional requirements are satisfied.

The statement should demonstrate that the merits tests set out in the legislation and case law have been met. Where available, very full documentary evidence should be exhibited to the statement. The statement in support of the application is also a good opportunity to discuss in detail the overall merits of the case beyond the application for permission.

Do I need country expert report for permission to apply for financial relief in England after an overseas civil partnership dissolution?

The court must take into account the financial benefit that has been, or is likely to be, received in the foreign jurisdiction, and if the applicant has the right to apply for relief, and reason why that right has not been exercised. These factors cannot properly be addressed without evidence as to the law of the foreign jurisdiction. The applicant should therefore consider obtaining a short expert report from a specialist in the relevant jurisdiction to be attached to their statement in support of their application for permission.

Why financial settlement claim in England after an overseas civil partnership dissolution?

If you have already ended your civil partnership abroad and obtained no financial settlement or the financial settlement made in the other country was inadequate, you may be able to apply to the English Court for a financial settlement order against your former civil partner. 

The English family courts have the ability to grant financial provision even though a civil partnership dissolution may have been previously pronounced abroad and financial provision already made. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on civil partnership dissolution by a foreign court in a situation where the parties had substantial connections with England.

There are still some appalling injustices in some countries abroad which is where the English legislation helps to redress some of these cases. It is an opportunity for fairness and justice for some international families. Part III proceedings can also usefully be used where the law of the country where the civil partnership dissolution occurred does not allow orders to be made in respect of offshore property. It can also be used to obtain a pension sharing order in respect of an English pension in circumstances where other issues are dealt with in the foreign civil partnership dissolution and a foreign civil partnership dissolution pension sharing order will have no validity for the English pension company.

However, it is not for England to act as a court of appeal of other countries with similar approaches to England. Neither is it an opportunity to have two ‘bites of the cherry’.

Where the connection with England is strong, it may be appropriate for there to be such provision as would have been made had the civil partnership dissolution been in England. Where the connection is not so strong and there has already been adequate provision, it will not be appropriate for Part III to be used as a simple "top up".

FAQs - Challenging Non-Molestation Orders/Applications

Can I challenge a non-molestation order/application?

You can challenge a non-molestation order/application made against you if you believe that the non-molestation order or application against you is baseless and not corroborated by any evidence.

Can a non-molestation order be cancelled or removed?

The person who the non-molestation is against (Resondent) cannot have it cancelled or removed. Only the person in whose favour the order was made (Applicant) can ask the court to remove or cancel it by writing to the court and explaining what the situation was and what it is now,why you would like the non-molestation order to be removed and what the benefit would be if it was removed.

What is the cost of challenging a non-molestation order?

There is no court fee to contest the non-molestation order. The over all fee charged by the solicitors for contesting non-molestation order is dependent on when the proceedings to challenge non-molestation order conclude.

You can schedule an appointment for detailed advice and consultation for challenging non-molestation order for just £80 (VAT included) during our office hours or £100 (VAT included) outside our office hours.

Our fixed fee non-molestation solicitors in London can act for various stages of contesting a non-molestation order or application on fixed fee basis. The agreed fixed fee will be dependent on the volume of work involved in the case and the complexity of the matter. Please be advised that our fixed fees do not cover the Barrister's fees. Click Here to check our fixed fees for challenging a non-molestation order/application.

If you instruct us on hourly rate basis, our hourly rate for providing legal help and assistance with contesting non-molestation order ranges from £120 + VAT per hour to £200 + VAT per hour depending on the complexity of the matter.

How can I apply to change or set aside a non-molestation order?

You can apply to change or set aside a non-molestation order by filing application to the family court using application form FL403. Our specialist team of non-molestation solicitors can provide the required legal help and support for changing or setting aside a non-molestation order.

Can I make a cross application after receiving an ex parte non-molestation order?

Yes, you can make a cross application for non-molestation order after you have received the ex parte (without notice) non-molestation order against you. Such application should ideally be made before the first hearing date.

What is cross undertaking in a non-molestation order first hearing?

As a result of cross application by the Respondent against the petitioner, both parties may give undertaking not to harm or harrass each other by giving undertaking or promise to the court. Such undertaking or promise by each party is called cross undertaking.

FAQs - Child Arrangements Order

What is a child arrangements order?

A Child Arrangements Order is a Court Order that sets out details of who is responsible for the care of a child. This type of Court Order is usually used in cases where the parents cannot agree between them how to split the care of their child/children.

A ‘child arrangements order’ decides:

  • where your child lives;
  • when your child spends time with each parent;
  • when and what other types of contact take place (phone calls, for example).

‘Child arrangements orders’ replace ‘residence orders’ and ‘contact orders’. Parents with these orders do not need to re-apply.

How can I apply for child arrangements order?

You can apply for child arrangements order by completing application form C100 online.

Am I required to attend a Mediation Information and Assessment Meeting (MIAM) before applying for child arrangements order to the family court?

Under the Children and Families Act 2014, before making an application to court for a Child Arrangements Order (or other relevant family application), a prospective applicant must attend a family Mediation Information and Assessment Meeting (‘MIAM’), to ascertain whether the issues can be resolved by mediation rather than by application to court.

This does not apply where:

  • There is evidence of domestic violence;
  • There are child protection concerns;
  • The application must be heard urgently because delays would, for example, risk the safety of the child or the applicants, cause miscarriages of justice or hardship to the applicant;
  • There has been previous MIAM attendance or a MIAM exemption; or
  • Circumstances mean that MAIM attendance may not be a reasonable or appropriate requirement.

It is the responsibility of the prospective applicant or that person's legal representative to contact a family mediator to arrange attendance at a MIAM. As part of our legal services, our child arrangements lawyers will refer you to a family Mediation Information and Assessment Meeting (‘MIAM’) and thus try to get the child arrangements issues resolved without the need for an application to family court for child arrangements order.

 

How much does a Child Arrangements Order Cost?

The court fee for filing child arrangements order application in the family court is £215 which has to be paid at the time of filing the application. Petitioners with very low income may qualify for court fee exemption.

The costs of legal advice and support will depend on the complexity of your case and whether agreement can be reached at an early stage, or the case goes all the way through to a final hearing.

Our Fixed Fees For Child Arrangement Order

Our fixed fees for various stages of the child arrangement order are given in the fee table below. The agreed fixed fee will be dependent on the volume of work involved in the case and the complexity of the matter. Please be advised that our fixed fees do not cover the Barrister's fees. Click Here to check our fixed fee for child arrangement order.

Our Hourly Rates For Child Arrangement Order

  • Our child arrangements solicitors can act for your matter on hourly rate basis with hourly rate from £120 + VAT to £200 + VAT per hour in relation to your child arrangements order application. The agreed hourly rate will be dependent on the complexity of the matter.

What factors are considered by the family court judge in making a child arrangements order?

The Court will consider the following:

  • The primary consideration is to the welfare of any children;
  • The wishes and feelings of the child concerned;
  • The child’s physical, emotional and educational needs;
  • The likely effect on the child if circumstances changed as a result of the court’s decision;
  • The child’s age, sex, background and any other characteristics that will be relevant to the court’s decision;
  • Any harm the child has suffered or may be at risk of suffering;
  • The capability of the child’s parents (or other relevant people) in meeting the child’s needs;
  • The powers available to the court;
  • The court will also consider if making no order is suitable in the circumstances.

Who has the parental responsibility as a result of a child arrangements order?

A person named in the Child Arrangements Order as a person with whom the child is to live, will have Parental Responsibility for the child while the Order remains in force. Where a person is named in the Child Arrangements Order as a person with whom the child is to spend time or otherwise have contact, but is not named in the Order as a person with whom the child is to live, the Family Court may also provide in the Order for that person to have Parental Responsibility for the child while the Order remains in force.

Can I change my Child Arrangements Order?

It is possible to vary the Child Arrangements Order once it has been issued by the family court. If the variation can’t be agreed with the other party directly, then a further application to the family court will have to be made whereby a procedure similar to the initial application will be followed. The Court will need to reassess the facts to see what has changed to justify amending the child arrangements Order before deciding on what is in the child’s best interests.

Parents can still make agreements to the child’s care outside of the Order, as most Orders will provide for changes to arrangements by agreement. However, these are usually one-off arrangements and if a wholesale change is to be made, then it’s better to vary the Order formally to ensure it can be enforced.

How long does a Child Arrangements Order last?

The Child Arrangements Order will last until the child is 16, or in some exceptional circumstances, until 18. If you reconcile with your ex-partner and move back in together, then the Child Arrangements Order will cease after you’ve lived together for six months.

How long does it take to get a Child Arrangements Order?

Applications to the Family Court for Child Arrangements Order follow a standard procedure; however this can be adapted by the Family Court to suit the needs of your case. In any event, you should not expect your Child Arrangements Order case to be resolved immediately. Sometimes, cases can go on for a period of several months.

Can a child apply for a Child Arrangements Order?

A child cannot apply to the Family Court for a Child Arrangements Order.

Certain categories of people are entitled to make an application for a Child Arrangements Order under Section 8 without having to seek permission from the court first, and they are:

  • the parent, guardian or special guardian of a child;
  • any person who has parental responsibility;
  • anyone who holds a residence order in respect of the child;
  • any party to a marriage or civil partnership where the child is a child of the family;
  • anyone with whom the child has lived for at least three years;
  • anyone who has obtained the consent of:
    • the local authority if the child is in their care; or
    • everyone who has parental responsibility for the child.

Other people can make an application to the court for permission to issue an application for a Child Arrangements Order. It is usually via this route that wider family members such as grandparents are able to apply for orders in respect of their grandchildren. In deciding whether to give permission the court will take into account, among other things:

  • the nature of the application;
  • the applicant’s connection with the child; and
  • the risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.

 

 

What is a 'Specific Issue Order'?

A ‘specific issue order’ is used to look at a specific question about how the child is being brought up, for example:

  • what school they go to
  • if they should have a religious education

You can also apply for a ‘prohibited steps order’ to stop the other parent from making a decision about the child’s upbringing.

What is Cafcass report for Child arrangements Order?

A Cafcas officer is a amily court adviser from the Children and Family Court Advisory and Support Service (Cafcass). The court can ask Cafcass to provide a report on your case to help decide what’s best for the child. Cafcass report is also known as Section 7 report. 

A Cafcass officer will prepare this report after meeting with both parties and the child (alone where possible and only If the child has sufficient maturity and understanding). You’ll get a copy of the report when it’s written.

How can I ask the court to enforce the Child Arrangements Order?

If your ex-partner is not following the Child Arrangements Order, you can apply to the Family Court for enforcement of the Order by using appliation form form C79 with appropriate court fee. The court will look at the facts again to see if anything has changed.

If the court enforces the order

Depending on your situation and what you’ve asked the court to decide they might make:

  • an ‘enforcement order’ - this means your ex-partner has to do between 40 and 200 hours of unpaid work
  • an ‘order for compensation for financial loss’ - this means your ex-partner has to pay back any money you’ve lost because they did not follow the order (for example if you missed a holiday)

You can go back to the court if your ex-partner still does not do as the court ordered.

If the court does not enforce the order

The court might not enforce the existing order if they think that your ex-partner is not following it because:

  • they have a good reason
  • it’s better for your children to do something different

You can go back to the court if you do not agree with their decision or your situation changes.

How can I end a Child Arrangements Order?

You can use application form C100 apply to the family court to end (discharge) a Child Arrangements Order that’s not working, or is not relevant to you and your children any more.

If your order ends at a fixed time (‘time-limited’), you can make your own Child Arrangements Agreement afterwards without mutual consent and without involving the court. 

What is the Family Court procedure for a Child Arrangements Order?

The child arrangements order application is made usig application form C100. The child arrangements order application would need to explain the orders sought and the issues at hand. The family court will consider the child arrangements order application bundle before they issue it and thereafter the formal proceedings commence.

First Hearing Dispute Resolution Hearing (FHDRA)

If the child arrangements order application is issued, the court will normally list the matter for the First Hearing. This is known as the First Hearing Dispute Resolution Hearing (FHDRA). The aim is to consider the parties' issues and identify the steps to resolve the issues. This hearing will also normally be attended by a Children and Family Court Advisory and Support Service officer (CAFCASS). They aim to safeguard the best interests of the children. The purpose of attendance at this hearing is for everybody to try to help the parties to resolve the issues. This is not always possible. If the parties cannot reach agreement, the court will set directions (i.e. to exchange witness statements) to progress the matters.

Dispute Resolution Hearing (DRA)

The next hearing that can be listed is a Dispute Resolution Hearing (DRA). The aim of this hearing is to try to resolve the disputes or at the very least narrow the points of contention. The on-going evidence directed would be considered and this will often also include consideration of any report(s) from CAFCASS. If the issues are not resolved, the matter will likely be listed for a final hearing.

Final Hearing

It is very important that the parties try to settle the issues at each stage of the case. This is with a view to avoiding the substantial legal costs that can often be attached to a final hearing. During this hearing, the court would consider the outstanding issues and evidence submitted. It is likely that at this stage you will be questioned by both your legal representative and the other party’s legal representative.

The family court Judge will then consider the issues and make a judgement which shall be enshrined within a child arrangements order.

What happens at a Child Arrangements Order hearing?

There will normally be more than one court hearings for the Child Arrangements Order and each hearing is slightly different. At the first hearing, the family court will be focused on understanding what issues are in dispute and working out the next steps to take before a decision is taken. The court will try to encourage the parties to resolve the matter by agreement. If this is the case the court will convert the agreement into a consent order and this will end the case.

If agreement cannot be reached and the case progresses, further court hearings may be required at which the court may consider evidence from CAFCASS and the more detailed facts of the case. This could include a Fact Finding Hearing or a Dispute Resolution or Review Hearing. It is usual for both parents to give evidence if the case proceeds to a Fact Finding Hearing. A significant amount of information will be gathered for a final hearing and both parents will usually give evidence at that hearing along with CAFCASS or other experts, if involved.

Can a grandparent apply for a Child Arrangements Order?

It is not completely uncommon for grandparents to apply for a child arrangements order in order to see their grandchildren following the divorce or separation of their parents. Grandparents however need to go through an additional stage, before they apply for a Child Arrangements Order. They need permission from the court to make a Child Arrangements Order application.

Once permission has been granted, a grandparent will then need to apply for a Child Arrangements Order. When making an application for a Child Arrangements Order, a grandparent will need to show to the family court that they have tried to resolve matters through mediation (or another means of alternate dispute resolution). If a grandparent has not already attended mediation, they must do so before making an application for Child Arrangements Order. If mediation is unsuccessful or otherwise deemed to be unnecessary or unsuitable, the mediator will complete a “MIAM certificate” which will enable a grandparent to proceed with an application for a Child Arrangements Order. Once an application is made to the family court for a Child Arrangements Order, a grandparent could be required to attend three hearings to finally determine matters, unless suitable contact arrangements can be agreed in the meantime.

Generally speaking, there is no presumption in favour of grandparents to have contact with their grandchild(ren), however, Thorpe LJ in Re J (a child) [2002] EWCA Civ 1346 recognised the “valuable contributions” grandparents make. This has also been recognised by the government with proposed plans to introduce shared parental leave for grandparents.

What is an 'Interim Child Arrangements Order'?

An Intermim Child Arrangements Order is a temporary Order, put in place for example to return the child to the care of one parent or to make sure some contact is taking place, while further court hearings take place. The term interim order refers to an order issued by a court during the pendency of the litigation. 

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