Financial rights of married and unmarried parents after separation

September 29, 2016By BPS Family LawBlog, Divorce Settlements

Caroline Swain, Partner, Matrimonial and Family Law explains how there’s still a marked difference in the financial rights of married and unmarried parents after a separation.

Unmarried co-habiting couples are the fastest growing family type in the UK. With this family unit on the rise, it’s surprising the awareness of unmarried parent’s rights isn’t higher.

Most assume that they are in a ‘common law marriage’, and if they were to split, would share the same rights and responsibilities as married couples. Perhaps surprisingly, unmarried parents don’t have the same rights as married parents when seeking financial support for children after separation.

Married or not, separation and divorce can be a difficult time, with parents wanting to protect their children as much as possible. I’ve helped hundreds of married people through divorces and advised plenty of unmarried parents on their rights regarding separation.

Married or unmarried – key points to consider

Parental rights

For unmarried couples going through a separation, there’s one very important point to consider – parental rights.
Mothers automatically have parental responsibility for their children. Fathers only have this right if they were married to the mother when the child was born – if they weren’t then being the natural father is not enough to give parental rights.

There are actions that can be taken to acquire these rights, but if this wasn’t done before the break-up it can be difficult.

Legal obligation

It’s also important to note that married couples have a legal obligation to each other, and as a result, a divorce (to break that legal contract) can be a complex way to divide assets. For those who are unmarried, due to the lack of legal obligation, it can in some cases be easier to separate financial affairs. However, where children are involved, this can make it more difficult to assess the financial needs for children.

Financial rights

An ideal situation would be that both parents come to an informal agreement regarding child maintenance. Married or not, in most cases parents are required to pay child support. The amount payable is worked out by the Child Maintenance Service (CMS).

If you are married and get divorced there will (eventually) be an agreement as to how assets are divided. This will be decided through the courts. The parent with custody can ask the other parent to provide funds for a family home – and for married couples this money is given outright.

For those who are unmarried there will be no divorce to divide assets, so any payments will be decided through the CMS. However, this can be detrimental to an unmarried parent who has sole care for children with inadequate resources to do so.

There is a way around this. Schedule 1 of the Children Act 1989 states that an unmarried parent (the ‘parent with care’) can claim additional financial support from ex-partners to benefit the children. This is currently the only route available and not one which is well known.

However, if you are unmarried then any capital given to provide a family home is effectively a loan and not given outright. It’s lent to the parent with custody while the children are under 18. Once the children are legally adults the house must be sold and the other parent given their money back.

I’ve helped many parents claim the money they need and are entitled to this way. Not many people know about Schedule 1 claims and instructing a solicitor to act on your behalf can take away some of the pressure and worry at this difficult time.

It’s vital to understand all the options available to you. At BPS Family Law we pride ourselves on offering a compassionate and caring service putting the holistic situation for any family first. If you’re looking for a family lawyer, then you can get in touch with Caroline at [email protected] or by telephone on 0161 926 1430.

Dealing with Adult Children During Divorce

September 27, 2016By BPS Family LawBlog

A common misconception that adult children of divorce are invariably less affected by their parents’ separation than young children is an oft-cited argument. Indeed, it is not uncommon to hear parting couples intuit that young adults will suffer less in their adjustment than they would have as children. However, with the number of over-50s or “Silver Splitters” choosing to end their marriages reaching a 40-year high, what is becoming more and more apparent is that a divorce’s affect on adult children is frequently underestimated.

There is clear-cut advice for dealing with young children during a divorce. On the other hand however, when the “child” is an adult, these rules often go out of the window. Adult children are frequently just as reluctant to get involved in the divorce between their parents as young children are. Too often, though, their divorcing parents reach out to them and sometimes pull them without any choice into the fray. If divorce occurs when your children are older, there are many ways to avoid this and to create and maintain positive and healthy relationships. Here are four key tips:

Be patient

In the wake of their parents’ divorce, many adult children are forced to see their childhood home be sold and disappear at the same time that they are going through intense changes in their own lives. Some adult children may have had no idea that there were issues between their parents and, like their parents, adult children need time to adjust and move on. While you should acknowledge their pain and even perhaps their disappointment, you shouldn’t try and fix it. Your adult children do not need to understand everything all at once, just be there for them when they have had enough time for their own reflection.

Be careful when sharing information
Even though they may be adults, remember that your children are just that: your children. It may be acceptable to share some information with them, but other information they will not want or need to hear. You are entitled to your own privacy during divorce and children don’t need to know every detail of your marital problems just because they are ‘grown up’. Be mindful of boundaries when speaking to your adult children about the circumstances surrounding your divorce.

Don’t speak badly about your children’s other parent
As angry or upset as you may be at your spouse, it is unfair to pull your adult children into arguments that may sabotage or even critically wound their relationship with their other parent. Even if they are grown up, it is still their mum or dad that you are talking about. Your children’s choices are their own, but do not try to make up their minds for them. Think about if you would share the same information if they were younger.

Don’t lean only on your children for support
It is not uncommon for people going through divorce to instinctively turn to their adult children for both emotional support and advice on what to do next. Although your children know you well and will most likely want what is the best for you, it is important to not only just rely on them, but also to seek objective and informed advice. Your adult children will not know everything about the circumstances of your separation, nor should they. Moreover, they are trying to cope with your divorce themselves. Continue to play your role as their parent while reassuring them that you do respect their opinions and are always open to conversation should they wish to discuss your divorce.

Can you afford the risks of a “Quickie Divorce”?

September 14, 2016By BPS Family LawBlog

Caroline Swain, Partner at BPS Law and specialist in Matrimonial and Family law, has worked on many high profile and ultra-net worth financial disputes giving her the reputation of one of the most sought-after divorce lawyers in the UK.

Divorce is common. In 2011, it was estimated that 42% of marriages ended in divorce in England and Wales. It is therefore unsurprising that many look for a quicker and cheaper alternative than hiring divorce lawyers.

The term ‘quickie divorce’ is often used, suggesting that a couple have achieved a divorce without going through the usual and often slow process of us safety conscious lawyers.

Celebrities have been quick to hail the ‘quickie divorce.’ For example, after announcing their separation in February 2016, papers claimed that the marriage of Millie Mackintosh and Professor Green ended after a quickie divorce hearing that lasted just thirty seconds.

Gary Linker and ex-wife Danielle Bux were also said to have finalised their settlement for just £400 through a ‘DIY’ divorce process.

Whilst many wish to still hire a solicitor, those who believe they can resolve their divorce amicably choose this ‘DIY’ route. Such ‘DIY’ divorces can supposedly be done online and for as little as £37.

However, these adverts may be falsely luring the general public into thinking that financial separation can be achieved quickly and without the benefit of legal advice. This could be disastrous for many and inherent with risks of both long and short term dire consequences.

Firstly, there are several hidden costs to these DIY divorces.

Filing a divorce petition costs £550 in England and Wales. This payment is compulsory as court fees apply to every divorce case. Online divorce sites often fail to advertise this compulsory payment which must be paid whether you carry out the process online or with the assistance of a legal team.

Most couples also need a consent order. This documents sets out how property, capital, business interests, income, debts, pensions will be divided. The consent order ensures ex-spouses cannot make claims against each other in the future, something that we cannot stress enough to our clients as being essential before obtaining Decree Absolute. The Court fee for filing this Order is £50.

The wording of the Consent Order is paramount, it must deal with all claims and future claims. Most individuals will employ solicitors to draft these documents as it makes the process more straightforward. The financial claim one spouse has against the other is complicated, and if the advice is insufficient future problems can arise regarding pensions, property or maintenance.

Moreover, the use of mediators has become increasingly popular in order to keep down costs and speed up the process. Solicitors may advise mediation in order to resolve issues that are inhibiting the divorce from proceeding and achieving financial settlement.

Mediation involves assessment of these key issues. It does come with a financial cost, but can help keep costs down in the long run.

However, mediation does not always work. If spouses are unable to resolve issues amicably, additional legal costs can occur. Parties may need to go to court and in doing so they may have to pay additional costs.

Furthermore, in terms of being granted a divorce quickly, one cannot be granted immediately. After a divorce petition has been filed, and a decree nisi has been pronounced, any couple must wait at least six weeks before applying for a decree absolute. The decree absolute is the official document confirming that the marriage has ended.

The six weeks that stand between the decree nisi and the decree absolute are rarely abridged. An individual must have exceptional circumstances for this to be possible.

The ‘quickie divorces’ we see advertised online or in the paper are therefore processed no quicker than any other divorce. However, both parties may have worked efficiently and amicably in order for the divorce to be finalised quickly.

Whilst costs may increase once solicitors are employed, they can remain fairly low if both parties remain civil throughout proceedings.

Man wins the right to buy home he shared with his partner

September 9, 2016By BPS Family LawBlog

A 91-year-old man has been granted the right to buy the home he shared with his partner because her will had not made reasonable provision for him.

The court heard that the man had lived in the home with his partner for 20 years. She had made a will leaving all her estate to her daughter and nothing to him.

After she died, her daughter began legal proceedings to gain possession of the house.

The man said that he and his partner had expected him to die first and so she had not included him in her will. He accepted there was never any understanding that he would have an interest in his partner’s estate.

He had the means to buy a house if necessary but he wished to remain in the home where he had lived with his partner because he was in poor health and was assisted by his neighbours.

The recorder concluded that he should be given the option to purchase the house from the estate for £385,000. That figure was based on a valuation of the property obtained by the daughter. A joint expert had concluded that the property was worth £340,000.

The High Court has upheld the decision. It held that the recorder had been entitled to conclude that the woman’s will did not make reasonable provision for her long-term elderly partner because it did not allow him to remain in their home.

Please contact us about the issues raised in this article or any matter relating to wills and probate

New scheme to promote arbitration in family disputes

September 8, 2016By BPS Family LawBlog

A new scheme has been launched to encourage the use of arbitration in family disputes involving the welfare of children.

The Family Law Arbitration Children Scheme was set up four years ago to help families resolve financial issues. Now the Institute of Family Law Arbitrators, which runs the scheme, wants to extend it to cover disputes concerning the exercise of parental responsibility.

The kind of issues covered include where children should live, how much time they should spend with each parent and relocation in England and Wales. The scheme has been developed by a multi-disciplinary team of leading family lawyers.

The Chair of the Institute, Lord Falconer, said: “The new children arbitration scheme will enable couples to resolve disputes concerning parental responsibility of children more quickly, cheaply and in a more flexible, less formal setting than a court room.

“It will also guarantee confidentiality where that is required or necessary. These are all important ingredients to minimising conflict and supporting the best interests of children.”

Nigel Shepherd, Chair of the family law group Resolution, said: “’Resolution is committed to helping separating families find the best approach to resolving issues. Since its launch, arbitration has provided couples with a speedy, flexible and cost-effective way to sort their finances where they cannot reach agreement.”

Arbitration has helped thousands of families resolve complicated issues in a way that reduces stress and heartache for all concerned, particularly children.

Please contact us if you would like more information about our arbitration services or any aspect of family law.