Divorce & Family Law Solicitors in Henley & Reading
When there is a divorce, or relationship breaks down, often important decisions and arrangements regarding finances or children need to be made at an already emotional time.
Our family solicitors provide sensitive and practical solutions, whether it is a marriage, civil partnership or an unmarried couple, to help both parties to move on with minimum animosity.
On the occasions when agreement cannot be reached, we are able to guide our clients through the Court process to protect their interests. Our advice is always provided with the support, discretion and sensitivity that our clients require.
Every case we deal with is handled by a highly qualified family lawyer, some of whom are trained in collaborative law, and our family team includes members of:
- Resolution (formerly the Solicitors Family Law Association)
- Law Society’s Family Law Accreditation Scheme
- Law Society’s Children Law Accreditation Scheme
With this on-going commitment to the provision of a comprehensive and professional divorce and family law advice, helping matters be resolved fairly and with the minimum of fuss, we have seen our family law expertise grow from one solicitor in 1998, to a team of family solicitors across two offices in Reading and Henley on Thames. This gives you the choice of being represented by lawyers with different areas of specialism, seniority and personality.
At THP Solicitors, we take every care to help our clients minimise conflict, protect their family and start to regain control of their lives. Central to our approach is our long and valuable experience in collaborative practice. This way of working helps everyone to focus on the overall needs of the family, and to achieve a negotiated agreement outside of the Courts where possible.
Contact our Family Law Team
We can support and guide you through the process and find the divorce route which is best for you. This might be negotiations through solicitors, collaborative law or an application the Court.
Divorce dissolves a marriage, and you can apply for a divorce where you have been married for a year. It generally makes no difference in relation to wider issues of financial matters or arrangements for children, who is divorcing whom, or upon what basis.
What are the grounds for a Divorce?
Whilst a new process is on the horizon that provides for a divorce without having to attribute fault or blame to either party, as it stands at present the only “ground” for divorce is that the marriage has irretrievably broken down, and to satisfy a Court that the marriage has irretrievably broken down, you need to be able to rely on one of the five “facts”:
- Adultery: This is if your spouse has had an affair and you find it intolerable to live with them.
- Unreasonable Behaviour: This is when your spouse has behaved in such a way that you could not reasonably be expected to continue to live with them.
- Desertion: This is based on your spouse leaving you without agreement or good reason for two years or more.
- Two Year Separation: This can be used if you have lived apart from each other for two years or more and your spouse consents to the divorce.
- Five Year Separation: If you have lived apart for five years or more you can apply for a divorce even if your spouse does not agree.
Most people will find that they have grounds for divorce on the basis of unreasonable behaviour (if nothing else), since the threshold for establishing ‘unreasonable behaviour’ is not particularly high. Where proceedings are not defended, nothing is admitted, proven or found. The “Respondent” party would not be admitting the unreasonable behaviour, they would just be choosing to let the divorce go ahead.
What is the Divorce Process?
- A divorce petition is sent to the Court or completed online. Ideally the content and basis of the petition are agreed before it is submitted to the Court, to avoid contention at a later date.
- Once the divorce petition, the original marriage certificate (or a certified copy of the original), the Court fee (or fee exemption form if appropriate) and the correct number of copies have been filed with the Court, the “Petitioner” receives a note of the Court case number and the documents are served on the Respondent by post. The Respondent also receives an Acknowledgement of Service form which they need to complete and return, confirming amongst other things that they have received the papers, and indicating whether or not they intend to defend the divorce.
- The Court will forward a copy of the Acknowledgement of Service form to the Petitioner once it is received, and (assuming the Respondent has not indicated an intention to defend the divorce – divorces are not normally defended, but contact our team for more information about the process and your options in the event that proceedings are defended), the Petitioner can then apply for “Decree Nisi”, whereby the District Judge will review the papers and consider whether or not the Petitioner is entitled to a divorce.
- If the District Judge considers that all is in order, and that the Petitioner is entitled to a Decree of divorce, the Court will list a date for the pronouncement of the Decree Nisi and inform you of the date. It is not necessary for anyone to attend Court on the date of the Decree Nisi (unless there is a dispute about the Decree or on the issue of costs), and a few days later a copy of the decree will be sent to you.
- Six weeks and one day after the Decree Nisi has been pronounced, the Petitioner can apply for the Decree to be made Absolute by way of simple and swift paper application, and which is what brings the divorce and marriage to an end.
What is the difference between Decree Nisi and Decree Absolute?
Upon Decree Nisi, the District Judge has certified entitlement to a divorce, but the parties are not yet divorced. It is only 6 weeks and one day later that the Petitioner can apply for Decree Absolute, which is what brings the marriage to an end.
It may be advisable to postpone applying for Decree Absolute if, for example, financial matters have not by then been resolved and formalised. The parties’ spousal entitlements upon the death of the other cease to apply when the divorce has been concluded for example.
It will become open to the Respondent to apply for Decree Absolute if the Petitioner does not, but for more information and options here, contact our team.
It is important to remember that if you go through the process of the divorce, and nothing more, then whilst you will be divorced, you could be left exposed for the future. It is important to formally tie up financial matters between you, and have an agreement enshrined in a Consent Order. In the absence of an Order, unless and until a party remarries, their financial claims against their ex-spouse arising from the marriage remain live, and they could bring a claim for financial relief and claim some of your wealth in future, even many years after you were divorced.
How we can help
For a confidential discussion about the divorce procedure, please contact Richard Rodway in our Henley office or Julia Drury in our Reading office, both of whom will be happy to have a conversation with you about how we can support you and your family and find the best divorce route for you.
Financial Settlements in Divorce
A divorce is a difficult time for all those involved and issues relating to shared assets and ongoing financial arrangements are probably one of the most complex aspects of any relationship breakdown.
When a marriage ends it is sensible for the couple to formally resolve, once and for all, the outstanding financial matters between them. In England and Wales, even after a divorce is complete, unless and until a spouse remarries, they can still bring a financial claim against their former spouse, potentially many years after the divorce has been finalised, unless a financial settlement has been reached, and enshrined in an Order of the Court by consent. Where matters are agreed, this will be dealt with as a paper (or online) process, and no one need attend Court.
It will give each party the security and certainty of knowing that any financial agreement reached will be binding and enforceable after the divorce.
Finances on Divorce
There are many issues to consider when separating finances on divorce and matters that make matters more complicated include:
- One or both spouses owns a business
- One spouse is financially dependent on the other
- One spouse does not agree to the divorce
- There are dependent children to consider
- One spouse has an issue which affects their ability to earn an income
- There is a disparity in assets e.g. one has more property in their name or a larger pension pot
- There are complex assets, potentially outside the UK, or which are subject to third party interests
- There is a concern over one spouse dissipating or concealing assets / income
Financial Orders in Divorce
If a divorcing couple can reach an agreement on the division of assets and financial provision, they can invite the Court to make a Consent Order, enshrining that agreement. If an agreement cannot be reached, then either party can apply to the Court to have the Court decide upon the terms of and impose a settlement on the parties. This application for a “Financial Remedy” can take several months and a minimum of 2 Court hearings, and it is open to the parties to settle and agree to the terms of a Consent Order at any point.
Where the parties can agree terms of settlement they can be more creative as to the terms of the settlement and Court Order. The Court will not approve and make an Order in the agreed terms if it does not consider that the Order is fair. Left to its own devices, the Court is more limited in terms of what it can Order and impose upon the parties, but Orders can cover:
- Sale of properties and division of sale proceeds
- Transfer of properties / assets from one party to the other, or from joint names to sole name
- Pension Sharing / Pension Attachment / Pension Earmarking Orders
- Lump sum payments
- Spousal maintenance
- Child maintenance (in certain limited and prescribed circumstances given that jurisdiction for child maintenance ordinarily rests with the Child Maintenance Service)
- Division of contents (including pets) – although it is much more preferable and normal for the parties to agree division given that it is normally disproportionate to have the Court adjudicate
The grounds for divorce used to obtain a divorce generally have no bearing on financial settlements. The factors which the Court will consider are set out at section 25 of the Matrimonial Causes Act 1975. The factors are in no particular order and some will be given greater weight than others, depending on the detailed circumstances of the case. They are as follows:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has, is likely to have or could reasonably be expected to have in the foreseeable future
- the financial needs, obligations and responsibilities of each party
- the standard of living enjoyed by the family
- each party’s age and the length of the marriage, including any prior cohabitation
- any physical or mental disability of either party
- any contributions made by each party to the welfare of the family
- the conduct of either party to the extent that it is relevant to the financial settlement
- the value of any benefit that either party will lose as a result of the divorce
The welfare of any children under the age of 18 must be the first consideration.
Should there be concerns about the other party disposing of assets before a judgment can be obtained, we are experienced in emergency arrangements to protect assets, such as issuing a freezing injunction.
It is important to note that a divorce revokes existing Wills and ends automatic inheritances between spouses, so divorcing couples should review their Wills or make one if they do not have one.
How we can help
We have extensive experience in dealing with the financial consequences of divorce, can help you with the protection and distribution of jointly owned assets, and adopt a realistic approach to achieve a speedy and cost-effective resolution of financial issues.
We aim to achieve the best possible result for our clients and settle finance issues without the need to go to Court but where this is not possible, we have a successful track record in taking tough action in Court proceedings.
Child Contact & Arrangements
Should your relationship breakdown we can advise on the best course of action to try and reach an agreement with the other parent regarding child arrangements or other issues relating to the child(ren). If an agreement cannot be reached between the parents, we will suggest that mediation is attempted (save in exceptional circumstances), which is a requirement before Court proceedings can be issued. If mediation is not successful, then there may be no choice but to seek the assistance of the Court by making a formal application.
The welfare of the child(ren) is the most paramount concern for a Court when considering what would be an appropriate arrangement between the parents. Settlement is encouraged at every stage of the proceedings and it would be as a last resort that the Court would impose arrangements upon parents. This will only happen in circumstances when the parents really cannot agree between themselves.
Every application that is made to Court in relation to a child is referred to CAFCASS (Child And Family Court Advisory and Support Service) who will undertake required safeguarding checks with both the police and children’s services ahead of the first hearing. A telephone call with both parents will also be scheduled to ascertain if they have any safeguarding concerns about the other parent. CAFCASS will provide a Safeguarding Letter to both the Court and the parents before the first hearing and this sets out recommendations as to how the case should progress.
The first hearing will take place approximately 4-6 weeks after the Court receives the application and both mediation and CAFCASS will be present during the hearing to try and help the parties reach an agreement if at all possible.
If no agreement can be reached and a final hearing is listed, the Court will require that both parties file their written evidence beforehand. A final decision is made taking into account the welfare checklist which can be found at section 1(3) of the Children Act 1989:
- The ascertainable wishes and feelings of the child concerned (considered 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 if circumstances changed as a result of the Court’s decision
- The child’s age, sex, background and any characteristics of the child 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 in the proceedings in question
The Court is able to make determination in relation to a wide-range of issues in respect of a child in relation to which the parents cannot agree, for example, with whom the child is to live, how often and for how long they should spend time with each parent, where the child should attend school, whether the child should receive specific medical treatment etc.
The most common application is for a “Child Arrangements Order” (formerly Residence and Contact), which asks the Court to determine what the arrangements for the child should be in terms of spending time with each parent.
What is the difference between Divorce and Separation?
A married couple may not feel ready or able to go through with a divorce, but want to separate and take some steps to protect their respective interests, and formalise matters between them, to provide some degree of certainty and stability.
The couple could enter into a Separation Agreement, dealing with, for example:
- division of assets and debts
- spousal support
with a term of the agreement being that if and when divorce proceedings are commenced in the future, the parties will simply invite the Court to make a financial Order consistent with the terms of the Separation Agreement.
Whilst a Separation Agreement will not bind the Court in the event of a dispute arising in divorce proceedings at a later date, the Separation Agreement is something that the District Judge would have regard to in determining that dispute, and hence why it is important to get legal advice when drafting a separation agreement.
Where a couple are not married, a Separation Agreement, if entered into properly, would provide for a binding contract between them,
How we can help
If you would like more information in respect of the separation or divorce process please contact our family team for advice on how we can protect your interests.
Civil partnerships are legal unions previously only available to same-sex couples, but they are now available to UK heterosexual couples.
What are the legal differences between Civil Partnerships and Marriage?
Civil Partnerships award essentially the same rights to couples as marriage does but there are a few notable differences between Civil Partnerships and Marriage including:
- Civil partners cannot legally call themselves ‘married’.
- The actual Civil Partnership event can only be a civil event, not a religious ceremony
- Marriages are ended by divorce and Civil Partnerships by dissolution, and for dissolution to occur the couple must have remained within the civil partnership for at least one year.
- A Civil Partnership is not voidable on the basis of non-consummation
- Adultery is only a ground for dissolution of a civil partnership if it is committed with a person of the opposite sex
- Unlike marriage, not all countries recognise civil partnerships – so when it comes to travelling or emigrating, problems occasionally arise.
Our family law team advises on all of the legal issues relating to civil partnerships, including:
- Drafting pre-civil partnership agreements to help couples organise their finances during the partnership and to provide for the division of assets if the relationship breaks down.
- Working with our private client department to advise you on Wills and property issues.
- The legal process for ending a civil partnership called a dissolution.
- The financial aspects of a dissolution.
- Any child issues
How we can help
Our family law team can advise you on all aspects of Civil Partnerships, from pre-civil agreements to the dissolution process.
Recent figures reveal that non-married co-habiting couples are the fastest growing family type in the UK, accounting for around 18% of families in the UK and rising.
Alarmingly, it is estimated that over 60% of people in the UK in this type of relationship mistakenly believe they have a ‘common law marriage’ which provides them with various rights and protections regarding finances etc. In fact, the law does not recognise the concept of a “common law marriage” in the UK and unmarried couples do not acquire any legal status between them, no matter how long they have been together.
Legal Rights of Unmarried Couples
In the UK if an unmarried couple breaks up, they do not have automatic rights to claim financial support from each other, no matter how long they have been together, even if that support is needed. If they have children of course, the resident parent can seek child support from the non-resident parent (at rates prescribed, assessed and if necessary collected by the Child Maintenance Service).
Other differences from legally married couples include:
- Should one partner die the surviving partner will not automatically inherit anything from their estate – unless the couple jointly own property (subject to how that joint ownership is set up)
- An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension-sharing (although they may be able to make a claim in respect of and on account of the child(ren))
- Cohabiting partners cannot access their partner’s bank account if they die
Until there is a change in the law, co-habiting couples should document what the agreements should be regarding their financial arrangements, both during their relationship and in the event that they separate, in a ‘Co-habitation Agreement’ otherwise known as a ‘Living Together Agreement’ or ‘Declaration of Trust’.
Arrangements covered in a Co-habitation Agreement could include:
- How much each party contributes to household bills such as mortgage payments, rent, utilities etc.
- Who owns what regarding expensive assets such as electronics, furniture or cars
- How joint debts or bank accounts are managed
- What percentage of a property each person owns
- Who owns and will take responsibility for any pets if you separate
Co-habiting couples should also make sure that they have Wills, as the surviving co-habitee will not be able to rely on the rules of intestacy to protect them.
What if Co-habitees don’t have a Co-habitation Agreement and split up?
If a cohabitating couple separate it may be that a property is owned by both parties or that one party is the sole owner of the property and the other party wants to claim an interest in it. Where there is a dispute as to what the respective parties are entitled to, it is open to either party to apply to the Court for an Order
- declaring what their respective interests in the property are, and
- an Order for sale to enable the parties to realise their interests in the property.
The Court will want to understand what the common interest was of the parties at the time the property was acquired, and how that has evolved (if at all) over time. There can be no clearer statement of intent as to common intention than a Declaration of Trust, or a Co-habitation Agreement, which has been properly drafted and entered into.
Where children are involved it may be that, irrespective of what the parties’ respective interests in the property are, it is necessary to make an application to the Court to ensure that the children’s best interests are observed, and that they are adequately housed.
Disputes could be dealt with at mediation or through the Collaborative process, without recourse to the traditional approach of matters being negotiated through correspondence and / or through litigation through the Courts.
How we can help
If you need advice about cohabitation agreements or proceedings, our solicitors have the specialist knowledge to deliver expert advice and help you take the next steps to protect your interests.
In the UK if an unmarried couple breaks up, they do not have automatic rights to claim financial support from each other, no matter how long they have been together, even if that support is needed.
Pre/Post Nuptial Agreements
No-one goes into a marriage or other relationship contemplating that it won’t last but the reality is that unfortunately, some relationships do come to an end. It often helps if, at the outset of the relationship, the parties have some open discussions and reach a consensus as to what would happen if they separate in the future.
Deciding whether or not a prenuptial agreement is right for you and your future spouse is a decision you need to make together. Every couple’s financial situation is unique, and you should both talk frankly about your current circumstances, and how they may change following your marriage.
If any of these circumstances apply to you, or your future spouse, a prenup may be particularly advisable.
- One brings significantly more assets or wealth to the relationship than the other
- One partner earns significantly more than the other
- One part has significant debts
- If one partner has children from a previous marriage
- One or both partners own a business
Pre-nuptial agreements are largely used to protect pre-marriage property and assets, (especially if there is a disparity between how much each party brings to the relationship or attitudes towards spending). The Court has a wide discretion as to what Order to make when dividing assets as part of a divorce, whether they are assets in joint names, individual names, acquired during the marriage or prior. What will be appropriate depends on the facts of a particular case. A pre-nuptial agreement is designed to persuade the Court from declining to use that wide discretion, and to not deviate from the terms of the pre-nuptial agreement. It is important to note that pre-nuptial agreements are not binding on the Court in England and Wales, and are but one of several factors the Court will have within its contemplation, but when entered into in compliance with prescribed best practice, case law supports the view that the Court will abide by the terms of a pre-nuptial agreement unless the terms are unfair.
How we can help
If you want to agree at the outset of your relationship what would happen should you split up, have personal assets you wish to protect, want to formalise the financial aspects of your relationship before marriage or civil partnership, or are being asked to sign an agreement and would like a legal opinion, please contact our Family team.
It is unacceptable for anyone to inflict domestic abuse on another under any circumstances. Domestic violence or abuse can take many forms:
- Financial abuse
What a person has experienced, or may be experiencing, may happen again and swift and positive action may be necessary. It doesn’t just affect the parties involved, but has huge consequences for family and friends, and particularly any children.
If the circumstances warrant it, it may be possible to apply to the Court for a Non-Molestation Order prohibiting someone, whether they are a spouse, partner, family member, neighbour, or anyone else who is causing harm, from pestering, intimidating or worse. Failure to comply with an injunction is punishable by imprisonment or other sanction, depending on the severity of the non-compliance.
In certain cases, it may be possible to have someone removed from a home or prevented from visiting it, known as an Occupation Order.
How we can help
Our family team are experienced in domestic abuse cases, dealing regularly with difficult relationships and sensitive circumstances. We can provide emergency advice on how to protect you and any children involved and if you are at immediate risk, quickly to obtain a Court injunction prohibiting someone from intimidating or behaving violently.
We can provide emergency advice on how to protect you and any children involved and if you are at immediate risk, quickly to obtain a Court injunction prohibiting someone from intimidating or behaving violently
Collaborative Law in Family Case
Collaborative law is a modern method of assisting couples to resolve disputes, whether they be married or umarried, whether in relation to finances or children, without going to Court.
It is a transparent four-way (the couple and their respective collaborative lawyers) joint venture for a common goal, namely resolving outstanding matters between them in a co-operative, amicable and pragmatic way. Negotiations take place through a series of meetings between the collaborative lawyers and the couple, positively contracting out of the “traditional” route of correspondence between lawyers and, potentially, Court proceedings/
The parties are at the forefront of the process, with their lawyers assisting them rather than driving the process. It’s a transparent, dignified and non-confrontational approach to reaching a resolution, with the parties committed to providing relevant information and disclosure openly and honestly. Such agreements are subsequently submitted to the Court for approval to ensure the agreements are binding and enforceable.
How we can help
At THP Solicitors, we take every care to help our clients minimise conflict, protect their family and start to regain control of their lives. Central to our approach is our long and valuable experience in collaborative practice and our lawyers would be happy to discuss the process with you.
Collaborative Law is a transparent, dignified and non-confrontational approach to reaching a resolution, with the parties committed to providing relevant information and disclosure openly and honestly.
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