Inspiring separating couples to make their own informed decisions

Archive for the ‘Relationship Breakdown’ Category

Unbundling of Family Law Services

As a result of the legal aid cut backs, family solicitors are now ‘unbundling’ their legal services to meet the demands of the emerging client base that cannot afford to instruct Solicitors on a traditional retainer basis. Please read the update on the Law Society Website here.

For those of you who are going through the traumatic time of a family break up or are contemplating separation/divorce from your partner, the above news will be of help to you if you are worried about securing legal services that is affordable.

Effectively, unbundling allows you to obtain legal services on a pay as you go basis on areas of your case that you feel it is absolutely necessary for you get  legal advice and /or representation without having to instruct your solicitor to have full conduct of your matter on a formal full retainer basis.

There will have to be a clear understanding about what steps your solicitor is instructed to undertake on your behalf e.g. providing initial advice on law and procedure, ad hoc advice to help you represent yourself in Court proceedings or checking and drafting documents.  The case will  be ‘client-led’ as opposed to ‘solicitor-led’. This allows you to stay in control of your case and limits your legal costs moving forwards. So, your solicitor will offer legal services on what is known as a ‘partial retainer’. If you would like to find out more information about how this works in practice please see the Practice Note issued by the Law Society for Solicitors here.

This kind of service will only be suitable for those of you feel confident and competent to take control and charge of your case with bespoke services and support from your Solicitor.

If you are contemplating separation or divorce from your partner or you have already separated, I would suggest that you consider in the first instance, the services of a family mediator to reach your own informed decisions about property, finance and/or children.

Family mediation will prove to be a less  stressful  and a more dignified option to resolving your differences. It will limit both the financial and emotional costs of your break up. For more information visit the Family Mediation pages on my website.

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The Children & Families Bill – What Separating Parents Need To Know

H.M. King George VI and Queen Elizabeth in the...

There are a lot of Bills that do not become law but the Children & Families Bill is one that is very likely to be given Royal Assent soon, no doubt with a number of recommended amendments after it has been scrutinised by both the House of Commons and House of Lords. To have a better understanding of how Bills become law, please visit the Parliament Website.

The Bill sets out to make provision for vulnerable children and support for strong families. It will reform the current systems for Adoption, Family Justice, children with special educational needs (SEN) and looked after children.

Of particular importance to separating parents is the reforms proposed to the Family Justice System to help deliver better outcomes for families and children facing family break up or where children may have to be taken in to the care of the local authority.

The proposals are made as a direct result of the Family Justice Review to improve our Family Justice System. The key areas that will concern you if you are contemplating separation or you have already separated and you have dependant children are:

  1. The Bill proposes to replace the current ‘residence and contact orders’ with a new ‘child arrangements order’. This means that the Court will be asked to regulate arrangements for the child/ren and make decisions on whom the child should live, spend time or have other types of contact with if you cannot reach your own agreements either directly, via family mediation or other forms of dispute resolution. This should encourage both separating parents and the Court to focus on the content of any agreements/Orders, rather than the title/labels given to the arrangements.
  2. There will be a presumption of joint parental involvement (shared parenting) unless such involvement will put the child/ren at risk of suffering harm. It is hoped that this proposed amendment will reinforce the principle that both parents should play a key role in their child’s life/upbringing after separation subject to it being safe and consistent with the child’s welfare.
  3. Making it a mandatory requirement to attend a mediation information and assessment meeting (MIAM) with a regulated family mediator to find out about family mediation and other out of Court options to resolve disagreements about the child/ren’s arrangements before going to Court. Research studies have shown that family disputes resolved via mediation are less acrimonious than those that are settled through the Court system. Also, decisions made by agreement are more likely to be kept as opposed to Court imposed Orders.
  4. Introduction of a 26 week limit for cases to be concluded when an application has been made by a local authority to take a child/ren into its care. This to avoid the current unacceptable delays in such cases.

Please read the fact sheet provided on the Department of Education website for more information on the proposed changes. It is intended that this Bill will become law by April 2014.

Unmarried Couples & Unfair Property Laws

Marriage Day

Breaking up is never easy…but there is a better way…

 

There has been much debate about the unfair property laws that affect separating unmarried couples in the UK.

Not withstanding a call for reform from lead bodies and Judges that work within the family law sector, the Government has resisted implementing proposed changes that would make the system fairer for separating cohabitees.

Cohabitation or Living Together Agreements are becoming increasingly popular in the UK as a result of the injustice  that the current laws are causing. 

It is a well known fact that marriage rates are falling and people are choosing to live together instead. However, as the law stands now, there is very little legal protection for cohabitees who suffer a relationship breakup and need to resolve disputes that may have arisen in respect of property and/or children.

You will often hear the term “common law husband and wife.” It is a mistake to think that if you live with someone for a period of time you acquire the same rights as a husband and wife. This is not true. Cohabitees cannot rely on the Family Court to determine an appropriate financial settlement for them as Divorcees can. The law relating to unmarried couples and property rights is very complex and can lead to harsh outcomes because the Judge’s hands are tied by the existing laws. Please read related article below.

For this reason, more people are turning to Cohabitation Agreements to record the financial arrangements that are to apply in respect of their cohabitation and what should happen in the event that the relationship fails. Living Together Agreements are contracts that can include provisions dealing with income, property, children, wills and legacies, ownership of chattels and many other matters that may be relevant to you and your partner.

It is in your best interest to take legal advice on having a Cohabitation Agreement drawn up.  With out a doubt, this will save you and your partner a lot of heart ache and costs of litigation in the event that your relationship comes to an end.

Also, if you are buying a property together than consider having a declaration of trust drawn up or making it clear on your purchase documents how you both intend to hold the beneficial interest (capital) in the property. The Land Registry has devised a new Form JO to make it simpler for cohabiting couples to declare their intentions. For more information, see the Land Registry’s public guide to joint ownership here.

If you are contemplating separation from your partner or you have already separated, I would suggest that you consider in the first instance, the services of a family mediator to reach your own informed agreements about property, finance and/or children.

Family Mediation (in suitable cases) will prove to be a less  stressful option to resolving your disputes and will limit both the financial and emotional costs of your break up.

Separating Couples:How Will the Welfare Reforms Affect You?

Bedroom

Bedroom Tax (Photo credit: Moyan_Brenn_be_back_on_Jan_20th)

On 12th March 2012 the Welfare Reform Act was given the green light – this will be the biggest changes in the UK Welfare system over the past 60 years.

The key  aim is to make the benefits and tax credit system fairer and simpler to understand and administer. For a more detailed account  of the main elements of the changes,please visit the DWP website.

The changes that may affect you are:

  •  The introduction of Universal Credit, which will give you a single  payment direct into your bank account with a proposed cap of £500.00 per week for a couple or single parent with dependant child/ren and £350.00  per week cap for a single adult person. This will replace :
    • Income-based Jobseeker’s Allowance
    • Income-related Employment and Support Allowance
    • Income Support
    • Child Tax Credit
    • Working Tax Credit
    • Housing Benefit
  • Bedroom tax. The reforms will cut the amount of  Housing Benefit that you can get if you are deemed to have a spare bedroom in your rented home. Separated parents who share the care of their children and who have an extra bedroom to accommodate this  will be unfairly penalised under the new rules as there must be a designated ‘main carer’ for the child/ren who receives the extra benefit. The  cut proposed is 14%  if you are deemed to have one spare bedroom and 25%  if you are deemed to have two or more spare bedrooms. In cash terms this can be on average, a loss of £15.00 per week. For more information, please visit the National Housing Federation website.

If you are contemplating separation be ready for the  impact of the new Welfare Reforms and make sure that consideration is given to how they may affect you and your ex partner and more importantly any children of the family.

Please remember, when considering how to deal with your separation/divorce, it will serve you, your ex partner and any children of the family to give consideration to out of Court settlements via Dispute Resolution options like, family mediation.  Such options are not suitable in every case and in some circumstances, the matter should be placed before for the Court for significant issues to be determined by a Judge/Magistrates.

Research studies have shown that family disputes resolved via mediation (where the case is assessed suitable for mediation) are less acrimonious than those that are settled through the Court system. Further, decisions made by you and your ex partner by agreement are more likely to be kept as opposed to Court imposed Orders.

New website – Law in 27 EU Countries – Helping European Separating Couples

   

European flag outside the Commission

European flag outside the Commission (Photo credit: Wikipedia)

The Notaries of Europe with the support of the European Commission have launched a very helpful website for separating international/European couples to help them gain access to comprehensive and reliable information on the complex area of law relating to their separation in 21 different languages.

This is a very useful tool to help people to make use of their rights as European Citizens. The website clarifies the different applicable laws on matrimonial property regimes and property consequences of registered partnerships affecting the separating couple in each European Country. Please see the press release on the Notaries for Europe website here for more information.

If you are contemplating separation or Divorce and either or both of you are European Citizens, this website will help you by answering  the following questions for the 27 EU Countries:

• 1 Which law applies?
• 2 Is there a statutory matrimonial property regime and if so, what does it provide?
• 3 How can the spouses arrange their property regime?
• 4 Can or must the matrimonial property regime be registered?
• 5 What are the consequences of Divorce/separation?
• 6 What are the consequences of death?
• 7 Does your national law provide a special matrimonial property regime for multi-national couples?
• 8 What does the law provide for the property of registered and non-registered partners?
• 9 Which is the competent authority to turn to in cases of disputes and other legal issues?

If you are considering separation or Divorce,  please in the first instance, give consideration to the out of Court options to resolving any disagreements that you may have either family mediation or in more complex cases, consideration should be given to the collaborative approach, which allows legal advice during meetings.

New Year Blues – Divorce Day

The first working day back in the New Year is classed as ‘Divorce Day’ by most lawyers. Usually after the festive season those couples who have kept it together for the sake of their children or simply to avoid the stress of a breakup during what should be happy times, make the decision that something needs to be done to end the façade and on going struggles/misery by taking formal steps to end their relationship.

It takes a lot of courage and a strong person to take this bold step but with the right advice and support unhappy couples can make the right decisions about where their relationship is going. Unhappy relationships don’t have to end in Divorce/separation – sometimes all that is needed is  time apart to allow you and your partner the time and space to reflect upon what the real issues are in your relationship. Can they be resolved with professional help and support? Visit the useful links  page for information an agencies such as Relate that may be able to help.

If there is no third-party involvement by either party and no serious issues about the safety or welfare of either party or any child/ren of the family then in some cases the answer maybe to have counselling, therapy, coaching through professionals trained to help couples in such circumstances – to help you get back on track to re-kindle your love and admiration for each other. There are no quick fixes and both you and your partner would have to be committed to this process to have a good chance of succeeding in a reconciliation.

However, sadly in a lot cases you and your partner will have reached the point of no return and therefore serious consideration will need to be given to formalising your separation. The Government is encouraging separating couples to consider family mediation as their first port of call to avoid protracted Court proceedings and the added stress and costs of the traditional Court based approach. Read the related articles below.

Where a case is suitable for mediation, I would strongly recommend that you and your partner at least keep an open mind about the out of Court option and give family mediation a fair go. You have nothing to lose and everything to gain.

Government’s New Sorting Out Separation App

Having to go through separation/divorce can be classed as one of the most stressful experiences in your lifetime.

Some would say that it is far more difficult to cope with than the bereavement of a close family member or friend – it is a ‘living bereavement’.

Whilst there are grave concerns about the impact of the cuts to family legal aid that come into force in April 2013, thankfully there is help at hand for those of you who will not qualify for family legal aid as a result of the cutbacks and cannot afford the services of a solicitor.

The Government has launched an online application/website  for separating couples to give you much needed help, support and guidance. It covers the following topics with useful contact information, tools, videos and links to help you make informed decisions after a break-up:

  • Children &  Parenting
  • Health
  • Housing
  • Legal
  • Money & Finance
  • Relationships & Conflicts
  • Work & Benefits

By answering a series of questions, the web app will give you a personalised action plan. Click here to check out the new sorting out separation web app.

However, where  you are unsure about your respective rights and responsibilities or where there are complex issues arising out of your separation, a word of caution, it is always sensible to get specialist legal advice. Many solicitors offer an initial fixed fee service, which can prove to be invaluable.

To help you and your ex-partner have a dignified and amicable separation allowing for future co-operative parenting, family mediation, when suitable, can be a better way of reaching out of court agreements.

Related articles

 

New FM1 Form For MIAM’s

The Ministry of Justice (MoJ) has issued the following press release regarding the new FM1 form for MIAM’s.

The MoJ anticipates that the press release will highlight the wider plans to reform the family justice system, which encourages more people to consider mediation and other types of out of court resolution.

Having considered the new form, whist it has the benefit of giving additional information about mediation, for completing the form and on sources of help (on pages 4 & 5), the wording in some parts of the form could have been written better for people to understand.

Press Release

On 1 December 2012 the Ministry of Justice is launching a new version of the Family Mediation Information and Assessment Form (FM1).  The form should be completed by anyone applying to the Courts for assistance in resolving a dispute about parenting or finances following relationship breakdown.

This requirement forms part of the Pre-Application Protocol for Private Law Proceedings, issued by the President of the Family Division in April 2011. This asks that parties involved in disputes of this nature attend a Mediation Information Assessment Meeting (MIAM) to learn about mediation before making an application to the Courts.

A Self-Represented Litigant, their legal representative, or an accredited family mediator trained to carry out a MIAM, must sign the relevant section(s) of the form confirming that either an exemption applies, mediation is not suitable or mediation was attempted but failed. The form should be filed at court on application.

Legal and mediation practitioners are reminded of the need to advise their clients – potential applicants and respondents – of the current requirements.

The new version of form FM1 will be available on the HMCTS Form Finder from 1 December 2012.

To support the launch of the revised form, Guidance for HMCTS has been provided to assist court officers in processing private law applications and to provide advice on what to do if an applicant has not completed form FM1. While there is at present no legal requirement to file form FM1 on application we anticipate a more robust approach across the Courts in implementing the requirements of the Pre-Application Protocol. 

Changes to form FM1

Changes to the form include highlighting the requirement for Part 2 of the form to be signed off by an accredited mediator, one who is affiliated to one of the Member Organisations of the Family Mediation Council and trained to carry out MIAMs. This will, we believe, help to direct potential clients to quality mediation services.

The Form also now includes notes and information about mediation, for the benefit of Self-Representing Parties. Links are included to the Family Mediation Service Finder, legal aid information and the recently launched Sorting Out Separation web app.

Background

Changes to the form have been brought about following collaboration between the Ministry and the Family Mediation Steering Group, HMCTS and the Family Procedure Rule Committee.

The primary aim of the changes is to encourage more people to consider mediation and other types of out of court resolution. This comes as part of wider plans to reform the family justice system, following the Family Justice Review which concluded in November 2011.

Top Tips For A Hassle Free Divorce!

  1. Do as much of your own research on the law that affects your rights and responsibilities upon separation/divorce – with the World Wide Web at most people’s fingers tips – this should be relatively easy!
  2. Where access to the internet is limited or not available – you can get a lot free information from Law Centres, Citizens’ Advice Centres, or from other similar not for profit organisations in your locality, make sure you are clued up!!
  3. Typically, for married couples/civil partners, you will need to know  how to dissolve your marriage/civil partnership and the main factors that the Court will take into account when considering the terms of a financial settlement under the Matrimonial Causes Act 1973.
  4. For unmarried couples the law is more complex and will be governed by trust law principles and  the Trusts of Land and Appointment of Trustee Act.
  5. When looking at children’s arrangements you will need to be familiar with Children Act 1989  and the factors that the Court will take into account when considering what arrangements will be in the best interests of your child. You can find useful guides on the cafcass website here.
  6. Know that all solicitors/legal advisors work from the same hymn sheet and are governed by same law, and so in the usual run of cases where there are simply not enough capital and/or income resources to sustain the same level of living standards that you had when you were a couple, there will be little scope for creative legal arguments as ‘needs will trump all’  in every such case.
  7. Take stock of your personal circumstances – create your own schedule of assets/liabilities/incomes/budgets to compare your  financial positions and make sure this is undertaken on an open and transparent basis with both of you having had the benefit of either considering supporting documents so that there is no doubt about the information on the schedule or you may waive the right to exchange financial information if you both have had full first-hand knowledge/access to the information and there is no doubt or concern about the same.
  8. Make sure you look after your health and emotional /psychological well-being. Going through a separation/Divorce will probably be one of your most difficult life challenges. Some separating couples have described it as ‘a living bereavement’ and have stated that it was harder to cope with than an actual bereavement of a close family member/friend. Take all the help and support that you can. Not only from family members and friends but most importantly, from other professionals who are qualified and trained to help you at this time of emotional crisis. For example, your GP maybe able to prescribe short-term medication to help with any feelings of low-esteem and he/she may refer you to a specialist Counsellor/Therapist to give you more support. Visit Relate website for more information.

Visit the legal Information Hub on my website to get started and please give serious consideration to family mediation in the even that you cannot reach your own direct agreements. This will serve you, your ex-partner and most importantly, your children well. It is the least self-destructive way of resolving family disputes and reaching resolutions, allowing you the freedom to move on to a brighter, happier and stress free future.

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