Do I Have Parental Responsibility for my Child?
It is all very well asking the question ‘’Do I have parental responsibility for my child?’’ but it is equally important to understand what parental responsibility means and what you can and can't do with it. In this blog we look at what parental responsibility is, who does and doesn’t have parental responsibility, what you need to do if you want parental responsibility and we answer frequently asked questions on the topic of parental responsibility.
What does parental responsibility mean?
Parental responsibility is a legal concept. That means you can be a responsible parent and not have parental responsibility for your child.
The definition of the legal concept of parental responsibility is contained in Section 3(1) of the Children Act 1989. The Act defines parental responsibility:
“The rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
In practical terms, parental responsibility gives a parent the responsibility for making significant decisions in a child’s life.
Examples of the exercise of parental responsibility
Parents exercise parental responsibility for their children all the time, without even thinking about it. However there are some significant decisions involving the welfare of a child that parents can struggle to agree on. For example:
The name of the child
If the child should follow a religious belief and, if so, if the child should be baptised or circumcised
If the child should have contact with family members you are estranged from, for example, grandparents or an aunt
If the child should be immunised or vaccinated
If the child should go on overseas school trips
If the child should follow a strict diet such as gluten free, vegan ,vegetarian or sugar free diet
If the child should be home educated or go to a local state school or be placed in private education
The type of schooling or extra tuition that best meets a child’s needs if the child is gifted or has special educational needs.
There are many other examples of parental responsibility decisions. Some, whilst relatively insignificant, may be of immense importance to you, such as the length of your child’s hair or at what age your child is allowed to have an ear piercing or have their own mobile phone.
What happens if you can't agree on parenting decisions and parental responsibility?
If two parents have parental responsibility and can't agree on how to exercise parental responsibility then either parent can apply to court for a specific issue order but courts recommend that:
Parents try to discuss parenting and reach a compromise that they can both accept
Parents try family mediation if they can't reach an agreement to see if a neutral family mediator can help them reach an agreement
Court proceedings are used as a last resort.
What to do next?
If you are worried about your child because you think that your former partner’s alcohol or substance use is affecting their relationship and contact is having an adverse effect on your child then before you stop or change contact it is best to take legal advice from a children law solicitor and professional advice. Speaking to someone else can help you come to a balanced view on whether an application for a child arrangements order is in your child’s best interests and your alternative options.
If you are a parent who has had allegations of drug or alcohol abuse made against you then the best advice is to take legal advice. That is because the first thing many parents do is deny there is a problem. Sometimes there isn’t a problem. However, if there is an issue with alcohol consumption, then denying that the problem exists makes it more likely that the court will make a child arrangements order that you are unhappy with whereas that outcome can potentially be avoided through cooperation and representation.
How does an unmarried father get parental responsibility for his child?
An unmarried father can get parental responsibility in one of three ways:
By agreement with the child’s mother or
Jointly registering the birth and being named on the birth certificate or
Obtaining a parental responsibility order from the court.
Can I prepare a parental responsibility agreement?
To secure parental responsibility for your child you have to sign a formal parental responsibility agreement document in a prescribed form. The form has to be witnessed. If you don’t use the correct forms or if you don’t get the agreement witnessed in accordance with the rules then the agreement won't be effective in giving you parental responsibility.
Does a father lose parental responsibility for a child if he gets divorced?
A father doesn’t lose parental responsibility for his child if he separates or gets divorced from the child’s mother.
A father can only lose parental responsibility by court order once he has obtained it. It is rare for a court to order that a father should lose his parental responsibility.
Can a father have contact with a child without having parental responsibility?
A father can have contact with his child if he is separated from the child’s mother without first having to obtain parental responsibility for the child. If the mother won't agree to a father having parental responsibility and contact the father can make an application to court for a parental responsibility order and a child arrangements order.
A child arrangements order sets out where a child lives and the contact arrangements. The court will make orders that it thinks are in the child’s best interests.
Does a father have to pay child support if he is not named on the birth certificate and doesn’t have parental responsibility?
A parent’s legal obligation to pay child support for their child is based on their biological relationship. Therefore a biological father has to pay child support if he is assessed as liable to do so by the Child Maintenance Service, even if he is not named on the birth certificate, doesn’t have parental responsibility, and doesn’t see the child.
In situations where paternity is disputed the Child Maintenance Service can ask for DNA testing to be undertaken and the court can order relationship testing.
Does a mother with automatic parental responsibility for a child have more authority and rights than an unmarried father who secures parental responsibility?
Sometimes being a parent can feel a bit competitive; whether it is you that your child cries for when they have fallen or you that they ask to read them a bed time story. When it comes to parental responsibility many unmarried fathers assume that their parental responsibility isn’t ‘’as good as a mother’s parental responsibility’’ because there parental responsibility was acquired through:
Being named on the birth certificate or
Parental responsibility agreement or
Parental responsibility court order.
An assumption is therefore made by one or both parents that the father’s rights and responsibilities are somehow less important than the mother’s parental responsibility and that:
A mother has more rights than a father
A mother will always get custody if there is a dispute
A mother has the responsibility to sort out child care if neither parent is available to look after the child
If you can't agree on an important decision in your child’s life the mother’s parental responsibility takes precedence giving her the power to make the decision.
None of those assumptions are correct. If you share parental responsibility with another person you have equal rights and responsibilities for the child. The child’s mother does not have the casting vote or the ability to make all the decisions. If you can't reach agreement about what is in your child’s best interests then the court can make a specific issue order. The court will make a specific issue order decision based on what the judge thinks is in a child’s best interests.
[related_posts]
Will the court always make a parental responsibility order?
A father can apply for a parental responsibility order as a separate stand-alone application or at the same time as applying for a child arrangements order (an order sorting out custody or contact).
The court won't automatically make a parental responsibility order but the test or threshold to secure a parental responsibility order is fairly low so in most cases the court will grant parental responsibility.
When deciding whether to make a parental responsibility order the court considers:
The degree of commitment shown by the father
The degree of attachment between father and child
The father’s reasons for applying for a parental responsibility order.
If I have parental responsibility can I take my child abroad on holiday?
If you are a parent with parental responsibility for your child you can't take your child abroad on holiday unless:
You have the agreement of everyone else with parental responsibility for your child or
You have a child arrangements order and you are named as the main carer in the child arrangements order. If you have this type of child arrangements order then you can take your child overseas for up to four weeks without needing the other parent’s agreement or a court order
You have an order from the court giving you permission to go on the specific holiday or a general order saying that you can take your child overseas on a set number of times each year.
If you are not sure whether the wording of your child arrangements order gives you permission to take your child overseas on holiday it is best to take legal advice before booking the holiday.
Can my child’s surname be changed if I have parental responsibility for my child?
If you have parental responsibility for your child then your child’s surname should not be changed without your written agreement or a court order.
Is a court application for parental responsibility worth it?
Most children law solicitors would encourage you to secure parental responsibility by agreement with the child’s mother. If a mother takes legal advice the likelihood is that she will be advised that it is probable that the court will make a parental responsibility order. She may therefore agree to your acquiring parental responsibility by agreement and without making a court application.
If a mother won't agree to you having parental responsibility for your child then you may think that you have no option but to make an application for a parental responsibility order because you think that until you secure parental responsibility the child’s mother won't accept that you have any say in the important decisions affecting your child. However, if you have separated amicably and you are co-parenting your child, you make think that parental responsibility won't really add anything for you or your child. It is always best to have parental responsibility and, in those circumstances, you should be able to obtain parental responsibility by agreement through completing the prescribed form for parental responsibility.
Parental Responsibility Solicitors
For legal assistance with parental responsibility, child custody or contact or applying for a parental responsibility order, child arrangements order, or specific issue order contact the specialist Cheshire and Manchester children law solicitors at Evolve Family Law. Call us or complete our online enquiry form.
Louise Halford
Jun 08, 2020
·
10 minute read
Covid-19 and Valuing Assets in Divorce Proceedings
Whilst the world is still in the grips of a global pandemic and with the financial aftermath of coronavirus only now starting to be fully appreciated it is a challenging time to reach a financial settlement. In this blog we look at valuing assets in divorce proceedings and the impact of coronavirus on reaching a financial settlement.
Assets in divorce proceedings
Prior to looking at the topic of valuing assets, most divorce solicitors are first of all keen to ensure that all the assets that a husband or wife own in their sole name or jointly with their spouse or a third party are listed and disclosed. Supporting paperwork must be provided.
If a husband or wife starts financial settlement court proceedings the court will order them both to complete a document referred to as a ‘’Form E’’. If you are trying to negotiate a financial settlement, without starting financial court proceedings, it can still be useful to complete a Form E. Alternatively your divorce solicitor may prepare an asset schedule and provide that to your husband or wife's solicitor together with all the relevant documents relating to the assets in the schedule.
Divorce solicitors say that however you provide information about your assets it is essential that you provide full and frank financial disclosure. If you don’t then the likelihood is that any financial settlement negotiations will break down. If your husband or wife finds out about an undisclosed asset after a financial court order has been made your ex-spouse could apply to set aside the court order. They could ask the court to order that you pay their costs and ask that your non-disclosure is reflected in the size of any new financial court award.
Valuing assets in divorce proceedings
In such turbulent financial times you may question how you can value assets given the uncertainty about the housing market and recent falls in the stock market with experts questioning whether listed stock has further to fall. Equally, if you own a family business, for example, a hairdressers or restaurant, you may question what value your business has at this moment in time.
Divorce solicitors say that when it comes to valuing assets if a couple can't agree on what an asset is worth then they should ideally joint instruct an expert in the relevant field to carry out a valuation, such as:
A surveyor for property such as the family home or a buy to let portfolio or commercial property owned as part of a family business or held within a pension structure
An accountant to value non-listed shares or the value of a family business
A pension actuary to value a pension.
All valuers, whether they are a surveyor or an actuary, will tell you that valuing an asset is more of an art than a science and that valuations can fluctuate.
In the current pandemic with worries about job security and the impact of that on your mortgage capacity it can make negotiating a financial settlement a worrying time.
[related_posts]
Whilst there are clearly many uncertainties and challenges ahead of us a specialist divorce solicitor will be able to guide you on:
The timing of obtaining valuations of assets and if historical valuations should be updated
The importance of taking financial advice and checking things such as mortgage capacity, size of deposit needed for a house purchase or any revised pension projections for a private pension scheme
Whether it is best to share risk by dividing each type of asset rather than, for example, one of you keeping all the cash savings and the other getting the equity in the family home or one of you getting the family business and the other keeping the pension and the family home
Whether you should agree to a clean break financial court order as that type of court order prevents future financial claims for spousal maintenance by a spouse including if, for example, you can't get a job or you lose your job
If you should agree to capitalise any future spousal maintenance payments by giving your spouse a cash sum instead of ongoing monthly spousal maintenance payments.
Next steps
Whether you are at the start of your separation or contemplating starting financial proceedings the important thing is to take expert legal advice from a divorce solicitor who has the experience to guide you on how best to achieve a fair and reasonable settlement. That way you can move on with your life, notwithstanding the changes brought about by Covid-19.
Online Divorce and Financial Settlement Solicitors
Cheshire and Manchester based Evolve Family Law solicitors offer face to face and online appointments to negotiate financial settlements and provide representation in divorce and financial proceedings. If you need advice on any aspect of family law call us or complete our online enquiry form to set up a meeting, video conference or telephone appointment.
Robin Charrot
May 19, 2020
·
5 minute read
Can I Stop Child Contact if my Ex is an Alcoholic?
As specialist children law solicitors we are asked if the family court will order that a husband or wife or an ex-partner cannot have contact with their child because of parental alcohol addiction. There isn’t a yes or no answer as in every case the court will look at what is in the best interests of the child. In this blog we look at the topic of alcohol addiction in children law proceedings.
Can alcoholism stop child contact?
Children solicitors will tell you that it is too broad a question to ask ‘’can alcoholism stop child contact?’’ as so much depends on:
Whether the alcoholism has an effect on the parent’s behaviour towards the child or the other parent
The age of the child
The effect (short and long term) of not having an ongoing relationship with a parent
The measures that could be put in place to make contact safe and rewarding for the child
The help available for the child and parents.
When a children law solicitor is asked about alcoholism and child contact they will normally want to know how one parent’s alcohol use affects their daily life and their behaviour towards their child. That is because there are many people with ‘’functioning alcoholism’’ who are able to work and enjoy relationships whereas sadly that isn’t the case for others.
That is why it is so important that children law solicitors take the time to discuss your particular family circumstances and drill down to what it is about the alcohol usage that makes you want to stop child contact.
A case study of how alcohol affects child contact
One mother whose ex-husband was a highly successful business owner and functioning alcoholic wanted to stop contact between her two teenage sons and their father because of his alcoholism.
What was actually her ‘’drilled down ‘’ cause of concern was her ex-husband insisting that he was ok to drive the children and her fears for their safety. From the mother’s perspective, it was good that her children continued to see their dad so that they knew he was all right and that they didn’t worry about him or hold him on a pedestal because she had stopped contact.
In this mother’s case the best thing to do was to listen to her and help her find the right solution for her children. She knew, from past experience, that as her husband didn’t want to deal with his functioning alcoholism, no amount of requests from her would make him see a counsellor or get help. Likewise, after discussion and legal advice, she knew that one of her teenage sons would blame her if contact stopped whereas the other one found contact embarrassing and wasn’t bothered about going.
Some children law solicitors see an application for a child arrangements order or a prohibited steps order to stop contact as the answer to all problems over contact. It isn’t necessarily the solution. In the mother’s case, after she had taken legal advice on her options, she had the experience to realise that if she applied for a child arrangements order the father would deny his alcoholism and refuse to take part in any testing ordered by the court or psychological assessment or any recommended follow up treatment or support.
Whilst the court has the power to order tests and assessments in child arrangements order applications, the court cannot make a parent undergo alcohol or substance testing or assessment if the parent refuses to do so. All the court can do is draw inferences from a parent’s unwillingness to participate in testing or assessment.
The court’s ability to make inferences is often a powerful motivator in a parent’s willingness to participate in testing and assessment. That is because of the parent’s belief that the testing results should be better for them than inferences based on a lack of cooperation after the other parent has raised sufficient concerns for the court to be willing to sanction testing or assessment.
When it comes to alcoholism and child contact, an application for a child arrangements order can bring about a lot of change as the court arena can make parents realise just how seriously the other parent views their issue with alcohol. In other families compromise can be the better option for the family.
So you may wonder how the mother of the two teenage boys resolved her dilemma over her ex-husband’s alcoholism and her fears for her teenage sons travelling in a car driven by their father. She looked at what was best for her sons and concluded that maintaining a relationship with their father was the best option for them. Whilst he was unreliable as a father and let the children down he was nonetheless their father and the youngest would blame her, rather than his father’s alcoholism, for the lack of contact.
The mother set about problem solving and instead of the boys going to visit their dad at his home, where there was alcohol and films she didn’t approve of, contact became centred on football matches and she asked her brother in law and the children’s uncle to help provide support and a safe means of transport.
Did the solution work? It certainly wasn’t without its difficulties and it put the teenagers in a position of reporting if there were issues. This was not something the mother felt very comfortable about but she concluded, on balance, that it was the right thing to do even if on occasion she was used as a taxi service and the boys were let down when their father didn’t show up.
Would the child contact solutions have been different for another parent? As children law solicitors we would say yes. For example:
If the parent’s alcoholism was more recent in nature and the parent was more likely to agree to testing and assessment as part of a child arrangements order application
The parent’s behaviour, fuelled by their alcoholism, made it dangerous for the other parent to come into contact with them and meant that they needed injunction orders to protect themselves
The child wasn’t old enough to help safeguard themselves. In that scenario contact fully supported by grandparents or taking place within a contact centre may be the best option for the child
The child was of an age to say that they didn’t want to see their parent and the other parent fears that forcing them to have contact isn’t actually best for the child. Sometimes family counselling is one way forward if a child and parent will agree to this so an older child can explain , in a safe and neutral setting, how they feel and how not turning up for pre-arranged contact or any other effects of the alcohol addiction makes the child feel.
Recreational use, binge drinking, dependence or alcohol addiction
Children law solicitors will tell you that one of the biggest issues in trying to resolve parenting and childcare arrangements when there are alcohol or substance use concerns is the parent’s differing perception of the issue.
Many dedicated and caring parents say that they are ‘’recreational users’’ of substances or over imbibe and binge drink at the weekends. Should that affect their contact with their child? It all depends on the parenting arrangement as, for example. alternate weekend contact and midweek contact may meet the child’s needs and not affect the parent’s lifestyle choices. It can sometimes be hard for the other parent to accept that such contact could be in a child’s best interests when they have lived full time with the parent’s binge drinking behaviour.
It is equally hard when one parent believes that the other is alcohol dependent and the other disputes it. Sometimes practical, non-judgemental examples of how a child feels can help make contact work, for example, saying how the child feels if the parent doesn’t turn up for contact or arrives late.
If you think that your ex-partner is alcohol dependent or their substance misuse is affecting the quality of their contact then you can ask the court to:
Make a child arrangements order to restrict contact, for example, so contact takes place at a contact centre or is supervised by a family member
Make a child arrangements order subject to conditions so that the parent must comply with conditions such as not drinking for twenty four hours before a contact visit
Stop direct contact between parent and child. Indirect contact such as letters, cards, presents, phone calls and Skype may all be appropriate depending on their content and whether the child gets very distressed if the parent makes promises about Skype calls but then forgets.
[related_posts]
Ideally, talk of starting an application for a child arrangements order can make a parent realise just how worried the other parent is and even if they don’t see their drinking as a problem they will try to modify their behaviour and drinking around contact times.
What to do next?
If you are worried about your child because you think that your former partner’s alcohol or substance use is affecting their relationship and contact is having an adverse effect on your child then before you stop or change contact it is best to take legal advice from a children law solicitor and professional advice. Speaking to someone else can help you come to a balanced view on whether an application for a child arrangements order is in your child’s best interests and your alternative options.
If you are a parent who has had allegations of drug or alcohol abuse made against you then the best advice is to take legal advice. That is because the first thing many parents do is deny there is a problem. Sometimes there isn’t a problem. However, if there is an issue with alcohol consumption, then denying that the problem exists makes it more likely that the court will make a child arrangements order that you are unhappy with whereas that outcome can potentially be avoided through cooperation and representation.
Cheshire Children Law Solicitors
For legal help with children law and child care arrangements where there are allegations of alcohol misuse please call us or contact us online.
Louise Halford
May 11, 2020
·
9 minute read
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.
[related_posts]
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
·
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.
[related_posts]
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
·
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.
[related_posts]
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
·
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.
[related_posts]
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
·
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
·
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.
[related_posts]
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
·
8 minute read
Can't find what you're looking for?
Getting in contact with Evolve Family Law could not be easier.
We put a lot of legal information on our website and if you have a single question about your situation, you should find an answer in our blog here.
If you need a greater level of help, please use this form and one of our team will call you to make an appointment. Please note that we cannot offer Legal aid.
Unfortunately due to the level of single question enquiries we receive, we cannot guarantee to provide written answers to individual questions posted via this enquiry form.
1
Call us on 0345 222 8 222
2
Email us at info@evolvefamilylaw.co.uk