Why Do I Need a Financial Court Order?
Many people question why they need a financial court order. That’s because they assume that if they get divorced then their decree absolute of divorce finalises everything and there’s no need to get a financial court order as once you are divorced it is an automatic end to any financial ties with your former husband, wife or civil partner. Manchester divorce solicitors say that isn’t right and that a financial court order is essential to give you financial security and peace of mind. In this blog we answer your questions about financial court orders and why you need one after a separation or divorce or dissolution of your civil partnership.
Does a divorce end financial ties between husband and wife?
A divorce doesn’t end the financial ties between a husband and wife or between civil partners. The divorce or dissolution ends the legal relationship of marriage or civil partnership. However, there can be ongoing financial ties or the potential for one spouse or civil partner to start financial proceedings to make financial claims months or even years after the divorce or dissolution proceedings have been finalised through the pronouncement of your decree absolute.
How can I stop financial ties with my ex-husband or wife?
To stop financial ties with an ex-husband or wife you first of all need to look at what existing financial ties you have, such as:
Is the family home still owned jointly? Is there a mortgage on the property? Could one spouse buy the other out and get the spouse released from the joint mortgage liability so that they can use their share of the equity and a mortgage to buy a new property?
Are you waiting for the sale of a family home and still contributing towards the outgoings on the property until sale?
Are you receiving or paying spousal maintenance?
Do you own a family business and does your spouse or civil partner have a financial interest in the business or are they employed by the business?
Are you retired and receiving some of your husband or wife's pension each month to support yourself?
There are many other examples of financial ties between a husband and wife or between civil partners. You may not appreciate the extent of your existing financial ties or the potential financial claims. That is why it is best to take legal advice, preferably before you separate but, if not, as soon as you are able to do so after you or your partner has taken the decision to go your separate ways.
Will a prenuptial agreement stop financial ties if there is no court order?
If you signed a prenuptial agreement or a postnuptial agreement it is important to let your divorce solicitor know because the agreement may limit financial ties between you and your husband, wife or civil partner. In the UK a prenuptial agreement or postnuptial agreement isn’t legally binding so it is best to take legal advice on your separation or divorce as you will still need a financial court order. That is the case whether or not you are both content with the financial terms set out in the prenuptial agreement or postnuptial agreement.
Will the death of a former husband or wife end the financial ties?
If your former husband, wife or civil partner passes away you may think that is the end to any financial ties but a surviving spouse or civil partner or a dependent former spouse or civil partner can bring a financial claim against the deceased spouse or civil partner’s estate if they can say that the Will or intestacy rules did not leave them with reasonable financial provision. That is why , if you are separating or divorcing, you not only need a financial court order to stop or limit any financial claims but you also need to review the provisions in your Will and take advice on how to avoid a claim against your estate.
Does a separation agreement stop financial ties between a husband and wife?
If you separate and decide that you don’t want to get divorced you may decide to sign a separation agreement to record how your financial affairs will be regulated. The separation agreement could provide for ongoing financial ties, for example, the payment of spousal maintenance or an agreement that the family home will stay in joint names and won't be sold until your youngest child is eighteen. Alternatively, the separation agreement could say that you both agree that there are no more financial ties between you and neither of you will make any future financial claims against the other.
Like a prenuptial agreement, a separation agreement isn’t a legally binding document and one of you could try to start a financial claim, despite the contents of the agreement or could ask for more provision than that detailed in the agreement. Depending on the circumstances in which the separation agreement was drawn up, the contents of the separation agreement may be heavily influential if one of you were to start financial court proceedings. However, divorce solicitors always recommend that the contents of a separation agreement are converted into a binding financial court order as soon as you are able to do this because a clean break financial court order will give you both financial security and peace of mind.
Does a financial court order stop financial ties between an ex-husband and wife?
A financial court order will either stop or regulate financial ties between an ex-husband and wife or between civil partners.
A financial court order that says that there are no existing financial ties between an ex-husband and wife and that neither one of you can bring any further financial proceedings against the other or their estate is called a clean break financial court order. This type of court order can either be made by agreement and approved by a family judge or made after a contested court hearing and a ruling by a family law judge.
In many family scenarios you may not be able to achieve a clean break immediately, for example, because you are waiting for the sale of a family home or the sale or transfer of shares in a family business or the implementation of a pension sharing order. However, the court can make what is known as a deferred clean break financial court order. That means once assets have been sold and other aspects of the court order complied with there is a clean break and spouses or civil partners can't bring any further financial claims.
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In some family situations it isn’t possible to end financial ties either immediately or in the long term. For example, in order to maintain a home for the children the family home may have to remain in joint names as you can't sell the property and the spouse looking after the children in the home can't get the mortgage company to transfer the existing mortgage into his or her name. You may only be able to sever financial ties when the family home is sold. Alternatively, if a former spouse or civil partner needs ongoing spousal maintenance for life you won't be able to stop income financial ties until the spouse or civil partner who is receiving the spousal maintenance remarries.
As it isn’t always financially possible to achieve a complete financial clean break and the end of financial ties between a husband and wife you should try to achieve as much financial security as you can by:
A capital clean break – this stops claims for more cash or for the transfer of assets but leaves open ongoing claims for spousal maintenance
A deferred income clean break – this gives an immediate capital clean break so a spouse can't ask for more cash such as money from the family home or for a bigger percentage of a pension but keeps open the income the financial ties until, for example, spousal maintenance payments stop. The court order could say that the spousal maintenance payments should stop after three years of maintenance payments with the clean break coming in automatically after three years because the court ruled that the spouse receiving the spousal maintenance should not be able to apply to extend the time spousal maintenance is paid for.
Have I got a clean break financial court order?
Divorce solicitors find that one of the most common reasons that people don’t understand their financial court order is that they don’t know if they have got an end to financial ties or not. A good divorce solicitor will spend the time with you so that you understand:
The range of capital and income court orders that a family court can make either with the agreement of a husband and wife or after a contested court hearing
The different types of clean break and end of financial ties that can be achieved
Why a clean break may be very important in your particular financial and personal circumstances. For example, if you are a family business owner and you think that your business will significantly increase in value, you are the beneficiary of a discretionary trust, you anticipate receiving a substantial inheritance from a member of your family or you believe that your ex-husband or wife will squander their financial settlement and want to be able to ask for more from you
The prospects of you achieving an immediate capital or income clean break financial court order if the judge had to make a ruling on whether to make a clean break financial court order. This information then enables you to try and negotiate and clean break with your former spouse and invite the court to make an agreed financial court order
The risks associated with a clean break order. For example, if there is a contested court hearing your spouse after a long marriage may be likely to receive spousal maintenance for life. You could agree to give them a one-off cash lump sum instead of ongoing spousal maintenance to achieve your capital and income clean break. The risk to the payer is that spousal maintenance would not have to be paid if your former spouse remarried, predeceased you or if you lost your employment or business. The risk to the former spouse receiving the one off cash sum is that if the paying spouse’s income increased or business becomes more profitable they could have asked for an increase in the amount of spousal maintenance or for a bigger capitalised spousal maintenance figure. There isn’t often a right or wrong answer on whether or not to agree to a clean break as only you knows how valuable a clean break is in terms of having financial security. However, the important thing is that you are able to make an informed decision on what is best for you and your family.
Manchester divorce and financial settlement solicitors
Cheshire and Manchester based Evolve Family Law solicitors specialise in resolving financial issues after a separation or divorce. For legal assistance with financial court orders or any other aspect of family law call Evolve Family Law or complete our online enquiry form to set up an appointment, a video conference call or telephone appointment.
Robin Charrot
May 06, 2020
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10 minute read
What is Probate?
Lawyers refer to ‘the probate’ of a loved one and often make assumptions that everyone knows what probate is. That certainly isn’t the case but sometimes, after the death of a loved one or relative, you are too upset or embarrassed to ask questions about probate and what it involves. In this blog we look at what probate is, what it involves and answer your questions about probate.
What is Probate?
Probate is the name of the legal process that may have to be undertaken when a person passes away to legally enable the deceased person’s assets , property and belongings to be sold or transferred in accordance with the Will or, if the deceased left no Will, under intestacy rules.
The word ‘probate’ is a legal term, like conveyancing for the legal work connected with a house sale or purchase. It is just a historic word for sorting out the legal paperwork after the death of the deceased.
Do you always need to get probate?
Not every estate needs to go through probate. It is a blessing if an estate does not have to go through probate as it saves the relatives and beneficiaries time and money if the estate of the deceased does not have to go through probate.
If you are uncertain if an estate will need to go to probate it is best to ask a Cheshire Probate solicitor who will be able, with a bit of information about the size and contents of the estate, to be able to tell you if probate is needed and, if so, how long it is likely to take and cost in legal fees.
Does an estate have to go through probate if there is a Will?
An estate doesn’t necessarily have to go through probate if there is a Will. That is because probate doesn’t depend on whether the deceased left a Will or died without a Will (intestate) but on the size of the estate and the type of assets it contains. That is why it is best to get specialist help so the estate doesn’t spend unnecessary money on probate if it isn’t needed.
What happens during probate?
If you are told that your loved one or your relative’s estate needs to go through probate then it is difficult to understand what takes the time unless you know what probate involves.
Probate is the technical term for the legal process of sorting out the property, money, possessions (called the estate) and the financial affairs of the person who has died.
If the deceased died without leaving a Will then ‘letters of administration’ are needed before the estate can be disposed of in accordance with intestacy rules.
If the deceased died leaving a valid Will then a ‘ grant of probate ‘ is needed before the estate can be distributed to the beneficiaries in accordance with the terms of the Will.
Once the letters of administration or grant of probate is obtained then the next of kin or the executors of the Will have the legal authority to sell or transfer the assets in the estate, either according to intestacy rules or the provisions in the Will.
Step by step guide to probate
If you are the next of kin or the executor of a Will it can be frustrating to think that ‘nothing is happening’ but probate takes time because it involves:
Identifying the deceased’s assets and liabilities. How difficult this is depends on the paperwork left by the deceased and the nature of their estate and any liabilities. This is the first step to see if probate is needed and to determine the value of their Estate
Checking if the deceased died intestate or with a valid Will and identifying the relevant next of kin under the intestacy rules or beneficiaries under the Will
Calculating the value of the estate and seeing whether any inheritance tax is payable to HMRC. A tax return has to be completed
Applying to the probate registry for the letters of administration or grant of probate
Once the documents are provided by the probate registry paying off any debts and liabilities from cash left by the deceased or selling assets to pay any debts that the deceased had at the time of his or her death and, where necessary, paying any inheritance tax payable on the estate to HMRC
Preparing estate accounts to record the assets in the estate (including cash movements from the date of death of the deceased) to show what assets have been sold and what liabilities and debts paid. These accounts are approved by either the executors of the Will or, in the case of an intestacy, by the deceased’s next of kin
Checking to make sure that there are no challenges to the Will or claims against the estate and , if not, arranging for the balance of the estate to be distributed to the next of kin entitled to the estate under intestacy rules or the beneficiaries under the Will. This can involve the sale or transfer of the family home or an investment portfolio. If the estate is large or complex then sometimes interim distributions are made until the estate can finally be sorted out and any final dispositions made to the next of kin or beneficiaries.
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Do you need a probate solicitor to get probate?
You don’t have to use a probate solicitor to secure probate. The choice is yours. However, the size and the complexity of the estate might make it best to instruct a probate solicitor. For example, if there is likely to be inheritance tax payable or capital gains tax. Other scenarios that would justify using a probate solicitor to secure probate for the estate include:
The next of kin in an intestacy or the executors of a Will don’t get on very well with one another or there are ‘trust issues’
One of the next of kin or the beneficiaries is very keen for the estate to be distributed very quickly and you don’t have the time to sort out the estate as quickly as they would wish
There is the potential for the Will to be challenged, either by someone saying that the Will isn’t valid or that the deceased didn’t leave reasonable financial provision for a family member or dependant out of their estate. Claims can also be made against an estate if the deceased died without leaving a Will and a close family member or dependent says that the intestacy provision doesn’t make reasonable financial provision for them
Protecting the executors from personal liabilities arising from acting as the executor of a Will. For example, protection from tax liabilities
The complexity of the estate, for example does the estate include a family business or should a deed of variation be completed to minimise inheritance tax payable on the estate?
There are other reasons why you may want or need to use a probate solicitor and that is why it is best to talk to a probate solicitor about what getting probate involves and the costs and timescales before making a decision about whether to apply for probate without a solicitor.
Cheshire probate solicitors
If you have questions about probate or need advice on getting probate please call Chris Strogen at Evolve Family Law for a quote. Call or contact us online. Appointments are available in Holmes Chapel Cheshire or Manchester or by video conference, Skype or telephone appointment.
Chris Strogen
Apr 28, 2020
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7 minute read
Do I Need a New Will?
In this blog we answer your questions on whether you need a new Will. People tend to assume that a Will is good for the rest of their life or that their Will needs updating every year or so. The answer to whether your Will needs changing often lies in whether changes have occurred in your personal or financial circumstances or whether the personal or financial circumstances of your family and your planned beneficiaries have changed.
Online Cheshire Will solicitors
If you need help making a Will or changing your current Will then the Wills and estate planning team at Evolve Family Law can assist. Call us for a no obligation quote or complete our online enquiry form and we can set up an appointment in person, on the phone, video conference, or Skype call.
Do I need a new Will?
The answer to whether you need a new Will is ‘maybe and lets have a proper chat about it’. That is because so much depends upon your individual personal and financial circumstances. It may be that nothing significant has changed for you or any of your beneficiaries. In that case your Will may be OK. However, it is still good to check as if your Will was prepared some years ago, or drafted by a non-specialist solicitor, it may not be as tax efficient as it could be.
There are also many occasions where a Will maker decides that they would like to make some bequests or additional specific bequests to family members or friends (such as the gift of a fob watch to a grandson or an eternity ring to a daughter or to a close friend).
If you want to make a single specific bequest (or add a single additional bequest to the ones already contained in your Will) then it may be possible to do this by getting your Wills and estate planning solicitor to prepare a codicil for you (a supplemental document to your existing Will). In other scenarios, it is easier and potentially less confusing for a new Will to be drawn up. For example, if beneficiaries in your existing Will have moved house or changed their surname because of marriage or divorce and so your original Will could benefit from a bit of tidying up.
In many circumstances, people don’t realise that their Will is no longer fit for purpose and needs a complete overhaul and a rewrite. That is because changes in personal or financial circumstances may not seem legally significant to you but they can be.
When do I need a new Will?
You need to take legal advice from a Cheshire Wills and estate planning solicitor if any of the following applies to you:
Your original executors of your Will have passed away and there is no substitution of executor clause in your Will
You have got married or remarried
You have separated from your wife, husband, civil partner or partner
You have formed a new relationship – you still need estate planning advice whether or not you want to leave a share of your estate to your new partner. If you don’t review your estate planning and take appropriate action then you may increase the prospects of a claim being made against your estate to challenge your Will. The risks of this can be minimised if you make a new Will
You have new step children or step grandchildren and they aren’t already included in your Will as a class of beneficiaries
Covering unforeseen events if your original Will doesn’t set out what will happen if one of your beneficiaries dies before you or specifically names your children or grandchildren but you now have had additional births within the family
Age of inheritance - you may want to change the age that your beneficiaries can inherit. For example, increase the age from eighteen to twenty five or increase the powers of your trustees so that they can advance monies to any young beneficiaries to help with education fees or other specified expenses
Your beneficiary’s personal or financial circumstances have changed.
There are lots of other reasons why your Will may need to be reviewed. It is best to take legal advice every couple of years to double check that your Will still meets your needs and protects your family and loved ones.
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Why should I change my Will if my beneficiary’s circumstances change?
It may appear to you that the change in your beneficiary’s personal or financial circumstances isn’t relevant to your Will or estate planning but it is best to review your Will if your beneficiary:
Gets married – especially if they don’t sign a prenuptial agreement prior to their marriage .You may want to place their inheritance in trust to protect the family money
Separates or divorces from their husband, wife or civil partner. That is because if you leave a legacy to a beneficiary who is going through a separation or divorce , and you pass away, their spouse or civil partner may try to make a claim on the money. This can be avoided by making a new Will or placing the legacy in a trust that can form part of your new Will
Passes away without your current Will saying who you would like to receive their legacy instead of them. For example, you may want their legacy to be shared between their children
Is made bankrupt or is at risk of bankruptcy. If a beneficiary inherits money whilst bankrupt the money will go to their trustee in bankruptcy
Has mental health issues or special needs as you may not have realised at the time that you made your Will that your beneficiary had these difficulties. For example, if you made your Will many years ago prior to the birth of your children or grandchildren and simply left your estate ‘to your children’. One of your beneficiaries may need the protection of a trust that can be created in your new Will
Your beneficiary isn’t financially prudent so you may prefer to delay the date that they can receive your legacy or place it into trust.
Updating your Will is one of those chores that we can put off but it is best not to. If you are uncertain about whether your Will needs reviewing and updating then it is best to take legal advice from a Wills and estate planning solicitor.
Online Cheshire Will and estate planning solicitors
For help changing your Will or estate planning contact our efficient and friendly team for a quote.
Chris Strogen
Apr 09, 2020
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6 minute read
The Psychology of Controlling Your Fears
By guest blogger Anoushka Macin of Balance Psychologies
We all experience periods of uncertainty and fear in our lives. Whether it is fear of committing to a new relationship, worries about whether you should separate or start divorce proceedings, how you will manage financially after your separation or how you will cope with the children spending time with your ex-partner. Over the last fortnight, many of us have realised that there is also an unseen fear or enemy; covid-19.
I say that covid 19 is an unseen enemy but the reality is that it is everywhere. You can’t turn on the television, log onto face book or read a newspaper without reading all about the latest statistics. That in turn can just heighten your anxieties and fears.
For those of you who are going through a separation or divorce and are already anxious about how you will cope after divorce, covid-19 is an additional stressor. Who would have thought that a few short months ago that we used to think that a relationship breakdown or a house move were two of the most stressful life experiences that we had to cope with. Now, it feels like we are living in a different world. One where fear can easily be as damaging as the coronavirus.
How do we overcome fear?
First off, whilst some people may call me an expert, I am a great believer in listening and finding out what works for you in overcoming your fears. Whilst you may not know it we all have the power to manage our fears whether they are about:
Feeling alone because you have ended a relationship
Worried about your job and finances because of covid-19
Concerned about where you will live and how you will manage financially after your divorce
Frightened about letting your children spend time with your ex-partner in case they fall ill when they are not with you
Feelings of not be able to cope with home schooling your children and not being able to cope with life as a separated parent and coronavirus.
In addition to all these fears, many of us are also worrying about our parents or loved ones, especially if they are elderly or have underlying health conditions and are self-isolating or shielding. On a practical note, this may be making life harder for you if you are used to parents or grandparents helping out with child care or just being available to do all the things you don’t normally have the time to do.
Confronting your fears can be one of the hardest things to do. In my work with clients and with my online community I provide lots of information to people who find themselves having to make relationship decisions and to face up to their fears so that they can successfully move on with their lives.
Fear about covid-19 is no different than coping with the fears of separating from a narcissist or a toxic individual. Here are my five top tips for managing your fears, whether they are coronavirus related worries or fears about your separation or divorce:
Embrace your fears
You are not alone. Everyone has fears. Some of us are very good at acknowledging and recognizing them but others of us are not. Give yourself permission to say that you are frightened. Embracing your fears diminishes them; like when you stand up to a bully.
Get help
It is easy to feel totally overwhelmed and isolated during lockdown. You are not alone. There is help. Lots of counsellors (myself included) are offering skype or facetime or phone or online help.
If it is a practical or legal worry that is making you fearful then it is best to get an answer. Family lawyers will be able to offer legal advice during the
lockdown or during your self-isolation through telephone appointments, face time or Skype calls. It may feel as though you are alone but you aren’t.
Distance yourself from the news
Whilst we all need to know what is going on in the world outside of the confines of our own homes, don’t spend too long watching 24 hour news coverage on the television or by avidly reading all there is to know about covid 19.
There is a balance to be struck between what you need to know to keep you and your family healthy and information overload.
If your ex-partner is bombarding you with communications over your separation, divorce or contact with the children then you need to block them out to a manageable level (if you need to stay in touch because of your children) or block them altogether if they are just venting their covid 19 frustrations and fears onto you in texts and messages about your relationship breakdown or divorce as a means of letting off steam.
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Find your routine
Whether you are trying to work from home, schooling the children or coping with being confined indoors for long parts of the day then the one of the answers to fear is routine; whether that is a work or schooling schedule, exercise schedule or eating and sleeping schedule.
That is because whilst you may find that life seems out of control because of the coronavirus or your ex-partner’s behavior, you can gain back some control by doing something as simple as following a daily routine.
Remember that even if you are stuck at home you still need to find time to do something nice for yourself, even if it something as simple as hot bath whilst the children re-watch a video or learning how to paint your nails in the absence of being able to go to a nail salon.
Be kind
You may be feeling pretty miserable if you are feeling isolated because of covid 19 or maybe it is because you are combining self-isolation with a recent separation or your ex-partner just doesn’t understand how worried you are about the children travelling to them for contact. If you can put how you are feeling aside for a few minutes to be kind to someone else I can guarantee that you will feel better.
Being kind doesn’t have to be a big deal. It can be as simple as suggesting a skype bed time story for a separated parent or grandparent or offering to get someone’s food whilst you are doing your own shop or just smiling at someone whilst maintaining your social distance. Sometimes, it really is the little things that help you, your family and neighbours and your community the most.
By guest blogger Anoushka Macin of Balance Psychologies
guest blogger Anoushka Macin of Balance Psychologies
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6 minute read
Can I Ask the Court to Change my Financial Court Order Because of Covid-19?
Whilst we are all living in unprecedented times and there are no certainties about when we will come out of the government imposed Covid-19 lockdown and know the full economic impact of coronavirus, questions are already being asked about whether the family court can be asked to change a financial court order because of the effect of Covid-19. In this blog we look at if you can ask a court to change your financial court order because of coronavirus.Online family law financial settlement solicitors
Cheshire and Manchester based Evolve Family Law solicitors are working online to advise existing and new family law clients on all coronavirus related family law questions including financial issues arising from Covid 19. If you need advice on your financial court order or any other aspect of family law call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form to set up a video conference or telephone appointment.Jump to:
Can a financial court order be changed?
Covid-19 and changing financial court orders
What is a Barder event?
Is Covid-19 a Barder event?
Can a financial court order be changed?
Many people think that once a financial court order has been made then ‘’that’s it’’ but some aspects of a financial court order can be changed by making a variation application. Examples of when you can apply to vary a financial court order include:
Applying to stop spousal maintenance payments
Applying to reduce or increase the amount of spousal maintenance payments
Applying to extend the length of time that spousal maintenance payments are paid for
Applying to discharge or vary a child support maintence requirement contained in a financial court order such as a child support court order for step-children, a top up child support order or a child support order for a disabled child
Applying to end or vary a school fees order so that you are no longer required to pay school fees or the order is changed to vary the percentage amount of the school fees you are required to pay under the school fees order
Asking the court to capitalise the spousal maintenance payments in the financial court order so instead of ongoing monthly spousal maintenance payment a lump sum is paid as a one off payment
Applying to the court to change the mechanics for the sale of the family home if the financial court order included an order that the family home should be sold. Whilst the court won't normally change how much you should receive from the sale proceeds, the court can give directions about the sale price of the family home or say whether an offer should be accepted or say whether the choice of estate agent should be changed or to order that a family law judge can sign the legal paperwork to sell the family home if one owner refuses to do so.
These are the types of clauses contained in a financial court order that can usually be changed either by agreement with your ex-husband or ex-wife or through making an application to vary specific clauses in the financial court order.Covid-19 and changing financial court orders
Given the financial and economic impact of Covid-19 some people want to make more drastic changes to their financial court order and want to know if they can apply to change:
An order to transfer the family home into the sole name of their ex-husband or ex-wife as their ex-spouse can no longer secure a mortgage to take over the mortgage liability so they want the family home sold instead
An order that the amount of a lump sum payment is reduced to reflect the reduction in the value of the overall family assets because of the drop in the value of investments or in the value of a family business
An order that on the sale of the family home the ex-husband or ex-wife will get a fixed amount from the equity in the family home and their ex-spouse will get the balance of the equity
An order that one ex-spouse retains cash assets and the other retains more illiquid assets (such as a share portfolio or shares in a family business) that are now either difficult to sell or would have to be sold at a significant undervalue to the value given to the asset at the time that the financial court order was made.
There are many other examples of situations where one spouse now thinks that the financial court order, either made by agreement with their ex-spouse or after a contested court hearing, is now very unfair and prejudicial to them.
Court rules say that although you can apply to vary or change some parts of a financial court order (like the payment of spousal maintenance or the mechanics of the sale of the family home) you can't apply to the court to change the capital elements of the financial court order (such as the amount of a lump sum payment or whether assets should be split differently to that ordered by the court) unless you:
Appeal against the financial court order – you can only do this if you can say that the family judge either got the facts or the law wrong. There are time limits in which to appeal against a financial court order
Apply to change the financial court order because of a Barder event (including the capital elements of the financial court order).
What is a Barder event?
A ‘’Barder event’’ is when an unforeseen event invalidates the fundamental assumption on which a financial court order was based. You may therefore think that the family court will treat Covid 19 as a Barder event as none of us, politicians included, realised the significance of the flu like virus in Wuhan when news of the illness was first confirmed by the Chinese authorities on the 31 December 2019.
However for something to be deemed a ‘’Barder event’’ the family court has previously decided that:
The event must have occurred after the making of the financial court order
The event must invalidate the basis, or the fundamental assumption, on which the financial court order was made
The event must have occurred within a short time of the making of the financial court order
The application to change the financial court order has to be made reasonably promptly
Permission to pursue a Barder case won't prejudice a third party who has bought or acquired an asset that is now the subject of the Barder court application.
The key to making a Barder application is to do it quickly. If you leave things to ‘’see how coronavirus pans out’’ then you may leave it too late to apply to court to change the capital elements of your financial court order. As timing of the Barder application is crucial it is best to take expert family law advice as quickly as possible.Is Covid-19 a Barder event?
What amounts to a Barder event is determined by a judge using guidance issued in earlier court of appeal decisions.
In 2008, the court of appeal decided that the global financial crisis and stock market crash was not an unforeseen event because markets fall and rise. Other court cases have said that natural market fluctuations aren’t a Barder event. However, many would argue that a global pandemic, wiping billions off the value of the stock market, was neither natural nor foreseeable back in early December 2019. Whether the impact of Covid 19 on the value of a family business or on an investment portfolio is treated as a Barder event on is yet to be tested but much may depend on the particular personal and financial circumstances of your case and that is why it is best to get expert legal advice.Online family law and maintenance solicitors
Cheshire and Manchester based Evolve Family Law solicitors are here to answer all your family law questions whether it is a coronavirus related family law question, child contact, help with leaving an abusive relationship or financial issues arising from coronavirus. If you need advice on aspect of family law call us on 0345 222 8 222 or complete our online enquiry form to set up a video conference or telephone appointment.Latest From Our Divorce Blog:
Louise Halford
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7 minute read
Can Maintenance Payments Change Because of Coronavirus?
Coronavirus is making us look at every aspect of our lives, from how we socialise and exercise to how and where we work. With constant talk of hospital admission figures and mortality rates many of you are worried about raising your fears about coronavirus and financial concerns. However, whether you pay or receive either child maintenance or spousal maintenance , payments of maintenance may need to be reviewed and resolved. In this blog we look at child support, spousal maintenance and the impact of coronavirus.
Online family law and maintenance solicitors
Cheshire and Manchester based Evolve Family Law solicitors are working online to advise existing and new family law clients on all coronavirus related family law questions from child contact, help with leaving an abusive relationship during lockdown or the financial issues arising from Covid 19. If you need legal assistance call us or complete our online enquiry form to set up a video conference or telephone appointment.
Coronavirus and spousal maintenance and child support payments
When you agree to pay or to receive an amount in spousal maintenance or child support it is often assumed that the amount you are expected to pay, or that you will receive, won't change all that much . However, whether it is spousal maintenance or child support, the amount you pay or receive in financial support can be reviewed either upwards or downwards.
Many of you are very worried about coronavirus and your jobs or fear that your income from self-employment will reduce drastically (if not disappear altogether) over the next few months. Whilst the government has assured us all that financial help is at hand, for both the employed and the self-employed, there are reports that people are confused about the eligibility rules for government help and are worried about how they can pay spousal maintenance or child support now.
If you are the person who is receiving the maintenance payment it is equally worrying as many feel that they are in an impossible position, having taken out mortgages and financial commitments, on the basis of promised or ordered spousal maintenance or child support.
Spousal maintenance orders and Covid-19
Spousal maintenance is either paid on a voluntary basis between husband and wife or civil partner or under a spousal maintenance court order.
If you are paying or receiving spousal maintenance under a court order then the first thing that you should look at is the wording of the financial court order and the spousal maintenance clause. If you are in any doubt about the wording or meaning of the spousal maintenance clause then it is best to take legal advice.
There are a number of ways in which spousal maintenance court orders can require the payment of spousal maintenance, such as:
Joint lives spousal maintenance – spousal maintenance is payable until the death or the re-marriage of the person receiving the spousal maintenance payments
Time limited spousal maintenance – spousal maintenance is paid for a set period of time and then stops on a date specified in the court order. In some cases, the person receiving the spousal maintenance can apply to extend the length of time that spousal maintenance is paid for but they have to apply to court to extend the length of time that spousal maintenance is paid for prior to the expiry of the order. In other court orders the spousal maintenance is said to be time limited with no option to extend the length of time that it is paid for.
Can spousal maintenance orders be changed?
Spousal maintenance orders can be changed by court order or by agreement. If your financial circumstances have changed because of coronavirus and you are paying or receiving spousal maintenance the government is urging you to try to reach an agreement with your ex-partner over spousal maintenance.
Family law solicitors say that whilst it is important, if possible, to reach an agreement over changes in spousal maintenance payments any agreement should be temporary or a holding agreement until the Covid 19 position is clearer.
Every family situation is different so you may need specialist legal advice on what to do about spousal maintenance payments. Some payments may need to stop and others may need to reduce or increase. Here are two case examples:
A dentist is no longer able to work but because he has an employer who is continuing to pay him then the spousal maintenance can continue at the same rate for the time being. The spousal maintenance might need to reduce or stop if the employer is forced to stop the dentist’s salary or the salary is reduced to the cap set by the government coronavirus income scheme
A National Health Service consultant is not affected financially by Covid 19 but his ex-wife has lost her job in the travel industry. Depending on her circumstances her spousal maintenance may need to increase on a temporary basis until she can get another job. If her spousal maintenance is a time limited order she may need to ask the court to extend the period of the spousal maintenance court order.
Tips on how to change spousal maintenance payments by agreement
In these highly unusual times the focus is on working together. That is the message that the government is giving when it comes to sorting out the changes to child care , spousal maintenance or child support that are required because of coronavirus.
Tips on how to change spousal maintenance payments by agreement include:
Communicate with your ex either directly, through a trusted friend or your family solicitor. If you don’t tell your ex what is going on and be upfront about how Covid-19 has affected you financially then they will expect the spousal maintenance payments to continue
Provide paperwork – family law solicitors say there is often an element of mistrust between separated spouses and so if you want your ex-spouse to agree to a reduction in spousal maintenance you will need to provide the supporting paperwork to show that you have lost your job or that your hours have been reduced or a bonus scheme scrapped
Reflect on any discussions with your ex and don’t be rushed into making long term decisions. After all your ex-spouse may get a new job or the government scheme may mean that their income isn’t as badly affected as first thought. You should not agree to any major changes in the spousal maintenance order or agree to the cessation of payments and cancellation of the spousal maintenance order without first taking legal advice
Record your agreement – if you are able to reach a spousal maintenance agreement with your ex-spouse then you need to record the agreement in case one of you changes your mind. If there is no clear recorded agreement then your ex could apply to court to enforce the spousal maintenance order and ask for payment of arrears of spousal maintenance. They may not be successful in that court application if there is a clear agreement drawn up by you (or your solicitors) that spousal maintenance is being changed temporarily and the reasons why and when spousal maintenance will be reviewed again, for example, if the payer gets a new job or a government income subsidy
Understand the court options- it is important to know that if your ex-spouse won't agree to a reduction or temporary stopping of spousal maintenance what your legal options are. You could apply to court to vary the spousal maintenance order to reduce or stop the payments. Your ex-spouse could apply to court for payment of arrears of spousal maintenance and to enforce the spousal maintenance order. The court decision would be based on all the circumstances of your case and the ability of the paying person to pay spousal maintenance. If you are upfront with the paperwork relating to the change in income this may make a court application to formally vary the spousal maintenance order unnecessary.
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Can child maintenance be changed?
Covid-19 and the financial fallout and economic downturn will affect child support payments as well as spousal maintenance orders. In most families child support is either paid as a voluntary arrangement between you and your ex-partner or under a child maintenance service assessment. It is rare for there to be a child support court order as the court only has limited jurisdiction to make child support orders.
Again family law solicitors are recommending that parents talk to one another about child maintenance and to see whether the child support needs to be changed because of a change in the payer’s financial circumstances. If the payments are made under a child maintenance service assessment then you may need to ask the agency to carry out a new assessment.
Online family law and maintenance solicitors
Cheshire and Manchester based Evolve Family Law solicitors are here to answer all your family law questions whether it is a coronavirus related family law question, child contact, help with leaving an abusive relationship or financial issues arising from coronavirus. If you legal help call us or complete our online enquiry form to set up a video conference or telephone appointment.
Louise Halford
Apr 08, 2020
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8 minute read
Help During the Coronavirus Outbreak if You’re in an Abusive Relationship
If you are in an abusive relationship then you may think that during the coronavirus outbreak there is no help available and that you’re ‘’on your own’’. Although all this talk of self-isolation and social distancing may make you feel like that, the message from family law solicitors is that ‘’you are not alone’’. There is help available during the coronavirus outbreak if you are in an abusive relationship. In this blog we look at your legal options if you are caught up in an abusive relationship and need help to get out of it during the coronavirus outbreak.
Online domestic violence and family law solicitors
Although law offices may be closed because of Covid-19, Cheshire and Manchester based Evolve Family Law solicitors are working online to support those at risk of domestic violence needing help to leave an abusive relationship during the Covid-19 lockdown. If you need legal assistance call us or complete our online enquiry form to set up a video conference or telephone appointment.
Coping in abusive relationships during the coronavirus outbreak
If your partner is abusive towards you then it is difficult enough to cope when life is ‘’normal’’. For many the fact that partners are now either working from home or not able to work, and so are based at home full time, is particularly hard. There is no escape from home for you to visit friends or family or go off to work.
Tensions can also be increased by your partner’s health or financial anxieties about Covid-19, their lack of ability to go to the pub or to the gym to meet up with their friends and the presence of the children twenty four hours a day at the family home.
The government has said that it wants Covid-19 to bring out ‘’the best in us’’. That is a laudable aim but sadly domestic violence organisations and family law solicitors know that, for some families, domestic abuse may increase because of having to spend so much time with a partner. Alternatively, partners who haven’t previously been abusive may snap and either lash out or become very coercive and controlling.
When you hear that the police are cracking down on people leaving their homes it may make you reluctant to leave or seek help from domestic violence organisations or family law solicitors but, coronavirus or not, if you are in an abusive relationship you should seek help.
Those people who are contacting us about abusive partners are often reluctant to acknowledge the extent of the abuse and prefer to minimise some of the partner’s behaviour, especially if it falls short of physical violence and involves coercive control such as:
Dictating what you can eat
Saying when you can watch the TV and what programmes you can watch
Checking your mobile phone or internet usage
Restricting when or if you can go out for your daily exercise or for essentials like food shopping
Forcing you to have sex
Not allowing you any freedom within your house by insisting on being in the same room as you
Listening into your phone calls to friends and family.
As the restrictions on the movement of people continues in force because of the Covid-19 pandemic the sort of coercive controlling behaviour that you could cope with when one or both of you were out working can become intolerable. However, there is help available.
Help if you are in an abusive relationship
The police, domestic violence organisations, the family courts and online family law solicitors are continuing to offer help to those trapped in an abusive relationship.
If you or your children are at risk of immediate harm then you should call the police. The police understand that the risks of domestic violence are increased during the current crisis. They may be able to arrest your partner. If the situation is so serious that you can't wait for the police to arrive you can leave with your children as the authorities will accept that leaving an abusive relationship is an emergency and that is an exception to the requirement to stay indoors.
In addition to the police there are various domestic violence organisations who are open and available to help and offer support:
The National Domestic Violence Helpline – 0808 2000 247
The Men’s Advice Line – 0808 801 0327
The Mix, information and support for under 25s in the UK – 0808 808 4994
The National LGBT+ Domestic Abuse Helpline – 0800 999 5428
The Samaritans – 116 123
In addition to police and domestic violence organisation help the family court and domestic violence solicitors are open to help you if you need court protection in the form of an injunction order.
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Injunctions against domestic violence during the Covid-19 outbreak
You may have read that most courts and public offices are closed. Whilst that is correct the family courts are open for remote emergency hearings including applications for:
Non-molestation injunction orders
Occupation orders
Emergency child arrangements orders and other types of children orders to safeguard and protect children.
Therefore, if you are in an abusive relationship, there is help available from the family court. Don’t worry that you may not be able to get to see a family law solicitor. Even prior to the coronavirus outbreak many family law and domestic violence solicitors were used to taking instructions by phone appointment or video conference and used to conducting court hearings remotely.
That isn’t to say that things are a bit of a challenge but if you need help then both the court and family law solicitors are just a phone call away.
If you need protection then a family law injunction order may be your best option. There are two types of family law injunction order:
A non-molestation order – to stop your partner from being physically violent or aggressive or verbally abusive or exerting coercive control over you
An occupation order – to stop your partner from returning to the family home (if he/she has left but is threatening to return to the family home) or to make your partner leave the family home or to restrict him/her to certain parts of the family home.
The court and family law solicitors also recognise that you might need help if you are living with extended family and are being subjected to domestic violence or coercive control or that you may need help with your children and need the security of a children order, such as
A child arrangements order
A specific issue order
A prohibited steps order.
It is often the case that people suffer in silence when they live with an abusive partner or they think that what they are coping with isn’t ‘’bad enough’’ to get help. Since the Covid 19 rules on restriction of movement have come in many have thought that they are trapped in an abusive relationship for the duration of lockdown. Domestic violence organisations, the police, courts and family law solicitors are saying that domestic violence and abusive behaviour isn’t right in any circumstances and that if you need help then call.
Online family law solicitors
The specialist family lawyers at Evolve Family Law can help you if you are in an abusive relationship and you need legal help. Call us or complete our online enquiry form for a video conference or telephone appointment.
Louise Halford
Apr 06, 2020
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7 minute read
Coronavirus and Child Contact
Update 24th March 2020:
In UK government guidance published 24 March, it states:
Where parents do not live in the same household, children under 18 can be moved between their parents’ homes
https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-staying-at-home-and-away-from-others
Whilst parents may wish or need to adapt contact arrangements, they can, and should still continue for children. These are frightening times for children and maintaining normality will hopefully help quell their fears. Now, more than ever, parents should put aside their differences and co-operate and act in their children’s best interest at all times.
This advice should be read in conjunction with the following Government advice on what to do if someone in your household becomes unwell:
https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-households-with-possible-coronavirus-covid-19-infection
Parents want to protect their child and that is particularly true when it comes to the coronavirus. It is hard enough coping with the worries of looking after your children and safeguarding them in normal times but in a pandemic the job of being a parent has just got so much harder. That is the case whether you are living with your partner, separated or divorced. In this blog we look at the question of coronavirus and child contact after a separation or divorce.
Online children law solicitors
Evolve Family Law are based in Cheshire and Manchester but offer a full range of online children law services with appointments available by telephone appointment, video conference or Skype. If you need legal help with child custody and contact please contact us.
Stopping Child Contact Because of Coronavirus
We are receiving a high number of enquiries asking us whether child arrangements can continue now the government has restricted our movements. We are getting a real sense that the vast majority of these parents aren’t wanting to stop contact to upset their ex-partner or trying to use Covid-19 as an excuse to stop contact visits that they don’t like, but because they genuinely fear for their children and their families. At the moment the advice from the government agency, CAFCASS, is to continue contact arrangements as normal as CAFCASS thinks it is in the best interests of children to maintain contact so the children keep to a familiar routine, even if they are missing out on going to school.
Whilst some may say that statistically children should be OK even if they get the coronavirus that doesn’t ease parent’s anxiety and fears that children going back and forth between households could increase the risk of spreading infection to a member of your family who is in a high risk group with an underlying health condition and is therefore more vulnerable to Covid-19.
There is also a concern being expressed by parents about what might happen if a child is on a contact visit and the other parent falls ill and the family has to self-isolate or if the country goes into lock down and children can't travel back to you.
One of the issues facing separated or divorced parents is that not everyone is as worried about Covid-19 as some are. That can create feelings of tension and acrimony between parents who are living together with their children, let alone separated or divorced parents where there may already be an element of mistrust or a history of communication problems.
Cheshire children law solicitors say that if you want to stop contact because of the coronavirus and high risk issues then whether you can legally do so will depend on whether there is an existing child arrangements order in place and what it says. If you have an existing child arrangements order and you don’t know if you can stop contact or not then it is best to take legal advice.
Coronavirus and Child Arrangements Orders
If you have a child arrangements order in place that sets out the parenting arrangements for your child then if you stop contact you are likely to be in breach of the court order. Your ex-partner could apply to enforce the child arrangements order and you could apply to vary the child arrangements order.
If you are following government advice to self-isolate because a member of your family is unwell then your ex should not apply to enforce an order and you should not need to apply to vary the child arrangements order because of your self-isolation. However, if it isn’t a self-isolation or lockdown situation, but you want to change or stop contact arrangements because of the coronavirus and any high risk concerns, you may need to look at what your child arrangements order says and your ex –partner may want to apply for a child arrangements order so contact isn’t stopped.
Cheshire children law solicitors say that the use of children court proceedings should always be the ‘last resort’ and it is best to try to negotiate a change in a child arrangements by agreement.
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Sorting out contact during the coronavirus outbreak
It is all very well for children law solicitors to talk about trying to reach an agreement about stopping or changing contact arrangements but many parents say that it is far harder to do that in reality. That is certainly true but sometimes it takes a children law solicitor to cut through the parental history of mistrust and get to the real issues.
In these unprecedented times it is inevitable that parents will want to protect their children and to ‘wrap them up in cotton wool’. What parent wouldn't? However it is important for parents to take a step back and think that the coronavirus pandemic won't be with us for ever and that when the UK comes out of the current crisis you still want to be on speaking terms with your ex-partner or at least be able to communicate with them over the parenting arrangements.
Therefore, if you are contemplating stopping or changing contact Cheshire children law solicitors recommend that you:
Think about the reasons why you want to stop or change contact. Can contact still take place through reducing risks , for example , by you driving the children to contact rather than older children or the other parent using public transport to get to your ex-partner’s house or can you change the contact drop off point
Consider if you can agree consistent rules on what the children can do during their time with the other parent. That way one parent isn’t doing all the home schooling and enforcing a curfew and activity restrictions for older children whilst the other parent carries on as normal
Think about the alternatives to direct contact, such as facetime or Skype or phone. Bed time stories by facetime maybe something small children would love and the offer of such contact might reassure your ex that you aren’t trying to cut them out, but you want they want; happy and healthy children
Take legal advice as sometimes an experienced children law solicitor can help you find resolutions that you had not thought about or help you with the words to help your ex understand why you are so particularly worried about coronavirus and child contact. It can undoubtedly be hard for an ex-partner to hear that you want to stop or reduce contact when they and the children haven’t done ‘anything wrong’ and seeing the children is helping them get through the coronavirus outbreak. However, this is a time when a children law solicitor can help you both focus on what is best for the children, whether that is getting you help with your fears, or helping your ex-partner to understand any particular high risk issues.
Online Children Law Solicitors
Evolve Family Law provide a full range of online children law services with appointments available with specialist children law solicitors by telephone appointment, video conference or Skype. If you need legal help call us or contact us online
Louise Halford
Mar 23, 2020
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7 minute read
What is Divorce Compensation?
When most of us see headlines about compensation we think that the newsworthy case must be a civil claim for compensation arising out of a road traffic accident or medical negligence. However, in the news last week was a case on ‘divorce compensation’. In this blog we look at what is meant by divorce compensation.Cheshire Divorce solicitors
If you are in the process of a separation or divorce and want advice on a financial settlement then the family law team at Evolve Family Law can help you. Specialising in complex financial settlement claims and children proceedings, the friendly and approachable divorce solicitors, based at Holmes Chapel Cheshire and Whitefield North Manchester, can help you. Call us on 0345 222 8 222 or contact us online.Divorce compensation
Divorce compensation is in all the newspapers because of a case involving two solicitors. The couple had been married for about ten years and have two children together. The family wealth amounts to about ten million. The family judge ordered that the husband and wife should each get fifty percent, around five million each.
You may think that £5 million each is a just and fair award as after all the couple had been married for nearly a decade. However, the judge went onto order that the wife should get an extra £400,000 for what was termed by the judge as ‘relationship generated disadvantage’ or divorce compensation.
The judge made the additional £400,000 award because the wife and mother, a Cambridge law graduate, had sacrificed her career as a solicitor to look after the couple’s two children.
The court decision will be of interest to many as it is common for one partner in a relationship to step back from their career to become a house husband or wife or to try to juggle child care and home making with a part time career, thus losing out on job promotions and work bonuses. Often the philosophy is that either a husband or wife has to step back from their career as if they equally share the childcare commitment both careers will suffer.
In some family situations, where one spouse has a lower earnings capacity than the other, the choice may be painfully obvious as to who should take on the role of the main breadwinner. However, in the reported case both husband and wife started out their married life as qualified solicitors and both (rather than one) could have had stellar careers had it not been for the decision to forgo a career to look after the couple’s children.
Can I get divorce compensation?
When a case hits the headlines many people, lawyers included, think that divorce compensation will be the ‘new thing’ and that everyone will be claiming for relationship generated disadvantage. However, the judge in the recent court case, made it clear in his ruling that his decision in the case of the two unnamed lawyers should not open the floodgates to a plethora of relationship generated disadvantage divorce compensation claims. The judge said that relationship generated disadvantage claims should be limited to where there are truly exceptional circumstances.
How do I claim for relationship generated disadvantage?
Compensation for relationship-generated disadvantage can be included as part of your financial claim in divorce financial proceedings. You cannot claim for relationship generated disadvantage if you are in a cohabiting relationship.
The relationship generated disadvantage claim is made as part of your financial settlement claims and assessed at the same time as the judge decides on:
What the family assets are
What your needs and your spouse’s needs are (and if you have children what your children’s needs are)
How your family assets should be divided between you
Whether you should get the family home or if it should be transferred to your spouse as part of the financial settlement or sold and the proceeds divided between you
Whether you or your spouse should receive a share of the other’s pension as part of the financial settlement
Whether a clean break order should be made to prevent further financial claims
Whether spousal maintenance should be paid and, if so, for how long and how much should be paid.
There are a host of other things that a judge has to consider such as whether one spouse should pay towards the other’s legal costs or not.
Any claim for divorce compensation or relationship generated disadvantage will be added to the list of issues for the judge to rule on and to explain why he/she has allowed an additional award for relationship generated disadvantage or ruled it out in their court judgment.
In the case of the two solicitors it was clearly evident that the wife had given up a lucrative career to care for children and that she had a case to say, that with her qualifications, she could have enjoyed an equally stellar career as her husband had it not been for the fact that the arrival of children seriously damaged her ability to work in a demanding career as a solicitor.
You may take the view that with a financial settlement of around five million the wife did not need the extra £400,000 for ‘relationship generated disadvantage’ as the five million would more than meet her reasonable needs. However, the court has said in previous cases where divorce compensation arguments have been raised, that relationship generated disadvantage is relevant even if their future needs have been met generously through the financial settlement. That is because one spouse has given up their ability to generate an income surplus to needs and so in an exceptional case they can ask a judge to rule that their husband or wife should pay an element of ‘divorce compensation’.Cheshire Divorce solicitors
If you are separating or getting divorced and are worried about your financial settlement then whether or not you gave up your career you need expert legal advice on your best financial settlement options.
The family law team at Evolve Family Law can help you. Specialising in complex financial settlement claims and children law proceedings the friendly and approachable divorce solicitors, based at Holmes Chapel Cheshire and Whitefield North Manchester, can help you reach a financial settlement that works for you and your family. Call us on 0345 222 8 222 or contact us online .
Latest From Our Divorce Blog:
Louise Halford
·
6 minute read
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