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Rita Rathod
Member
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Ann Elliott
Solicitor

Members of

Resolution - first for family law
I want to take this opportunity to thank you and Kelly for all your hard work. I really do appreciate it, and it goes without saying I would definitely recommend your services to anybody who requires it. It has been absolutely delightful to be around you and to watch you at work. (I am so glad my ex-wife didn't pick you to be her lawyer, or I would really be in trouble) - Mr A S - Loughborough (Rita Rathod - Family and Childcare)

Free advice

We appreciate that once a person has made a decision to seek legal advice, they require the same almost immediately. Therefore we endeavour to ensure that you are seen by one of our experienced solicitors within 24 hours. This is a free 30 minute consultation and you can contact us to make an appointment by:


Please do not hesitate to contact us if we can be of assistance to you.

Pay as You Go Family Law Service

Are you involved in a divorce, separation or a dispute regarding your children, but are worried about the cost of instructing a solicitor to act for you?

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    Do you feel that you could run your own case but would like to have a solicitor to ask for advice when things get complicated?

    In today’s difficult economic climate, together with the changes which came into effect on 1st April 2013 which have severely restricted the availability of legal aid for Divorce and family cases, there will be an increasing number of people who wish to separate or divorce who are worried about or can’t afford large legal bills. However, the prospect of dealing with Divorce proceedings, a financial settlement or a dispute regarding their children completely on their own, is very daunting.

    Moss Pay as You Go Family Law Service is a scheme designed to help people to represent themselves, and to provide advice and help to them as and when they require it. Advice is given on a face to face basis and can include the drafting of complex letters, checking forms and considering the case including advice on the pros and cons of taking a particular course of action. Each meeting is paid for at the end, so that there are no big bills to pay at the end of the case. You do the rest of the work, keeping your paperwork organised and corresponding with the other party, their solicitor or the court, but with the peace of mind that there is someone who knows your case and can advise you if you need it. For example, if you receive a letter that worries you, make an appointment with us to discuss it. You control your own case and only seek the advice that you need.

    If at any time you feel that your case is getting too much for you under this scheme, you can always transfer to being represented by us under our regular terms of business.

    If you feel that Moss Pay as You Go Family Law Service would suit you or would like further information regarding matrimonial or family matters, please contact us.

Separation Agreements

On some occasions when parties separate, they do not wish to or cannot proceed immediately with divorce or dissolution proceedings, but wish to formalise an agreement that they have reached regarding financial matters. Also, the arrangements for future divorce or dissolution proceedings and arrangements for the children of the marriage or civil partnership.

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    In this situation, many parties enter into a separation agreement - a contract that records the terms of the agreement reached between them. A separation agreement can be entered into quickly and allows the parties to move on financially without entering into divorce or dissolution proceedings. They usually reflect the terms of agreement reached between the parties so they are generally adhered to. There are no restrictions on what can and cannot be included in a separation agreement.

    The disadvantages of a separation agreement are that if either party makes a financial application to the Court in subsequent divorce proceedings, the Court is not bound by the financial arrangements in the separation agreement. Pensions cannot be shared or attachment orders made in respect of pensions until divorce or dissolution proceedings are issued. They incur additional costs on top of subsequent divorce or dissolution proceedings.

    If you would like more detailed advice regarding a separation agreement, please contact us.

Divorce, Nullity and Dissolution of Civil Partnerships

To formally end your marriage or civil partnership, there are legal formalities which have to be dealt with. A marriage can end in divorce or it can be annulled. Similarly, a civil partnership can be dissolved or annulled.

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    There are some differences between marriages and civil partnerships when dealing with terminating these relationships, but most of the procedure is very similar.

    To apply for a divorce or dissolution, a period of one year needs to have passed since the marriage or civil partnership ceremony. The marriage or civil partnership must have irretrievably broken down, and one of five facts must be established in divorce proceedings.

    These are:-

    • Unreasonable behaviour.
    • Adultery.
    • A period of separation in excess of 2 years, if both parties agree.
    • A period of desertion for a period of 2 years.
    • A period of separation in excess of 5 years, where it does not matter if one party objects or not.

    The above facts can also be used to dissolve a civil partnership, with the exception of adultery as, by definition, it would not apply to a same-sex couple. Any infidelity can be cited under unreasonable behaviour.

    The rules for Nullity Petitions are very strict. These can be applied for at any time during a marriage or civil partnership. We can provide advice to you on whether your circumstances are suitable for a Nullity Petition. If a marriage or civil partnership is annulled successfully, the annulment can have an impact on your status in the future and your financial claims.

    Please contact us for advice as to how to proceed in your circumstances.

Dividing financial assets upon separation or divorce

How to divide financial assets upon separation and divorce is a common area of dispute between parties. Our experienced solicitors specialise in advice on all disputes regarding financial assets, particularly those involving complex assets of high value, such as cases involving company accounts, trusts and investments. Our solicitors have considerable experience of dealing with the sharing of pensions, particularly those of members of the Armed Forces and other Public Sector schemes, as well as private and occupational schemes. This includes obtaining and interpreting actuarial reports on the division of pensions.

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    There is a duty of full and frank disclosure on both parties to a marriage to provide full financial disclosure of their income, assets and pensions. This information enables advice to be provided on how the assets should be divided.

    If an agreement cannot be reached with regard to division of financial assets, we can guide you through the Court process and help with negotiating a reasonable settlement.

    The Courts have a wide discretion and there are a number of factors that need to be taken into account when reaching a financial settlement.

    These are:

    • The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including, in the case of earning capacity, any increase in that capacity which it would be, in the opinion of the Court, reasonable to expect a person to take steps to acquire.
    • The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future.
    • The standard of living enjoyed by the family before the breakdown of the marriage.
    • The ages of each party and the duration of the marriage.
    • Any physical or mental disability of each of the parties to the marriage.
    • The contributions which each of the parties has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
    • The conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it.
    • In the case of proceedings for divorce or nulity the value to each of the parties of any benefit which by reason of the dissolution or anulment of the marriage, that party will lose the chance of acquiring (most usually pension provision).

    If Court proceedings need to be issued, there is an expectation that the parties will attend a Mediation Information and Assessment Meeting with a trained and accredited mediator. We can provide advice and make a referral to a local mediator to assist you.

Children Matters including Child Arrangement Order

This is another area in which our solicitors have a wealth of experience, including resolution of issues about who a child lives with and when they can see their other parent, together with other children issues such as obtaining permission to move a child permanently or temporarily out of the Country. Advice can also be given on seeking financial remedies for the benefit of a child, under Schedule 1 of the Children Act 1989, particularly when the parents are not married.

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    2014 saw a number of significant changes which seek to “modernise” the family law system.

    The focus of the changes is to assist families to agree arrangements for their child or children putting the child first and, if possible to do so, outside of the Court system.

    Attendance at mediation is now compulsory before a person can make an application to the Court. A referral is made individually or through solicitors to an accredited mediator who will arrange a MIAM (Mediation Information and Assessment Meeting) with both parties, either together or separately. At that meeting, information will be provided about the ways that the dispute can be resolved without going to Court. If the case is suitable for mediation, then a further joint meeting will be arranged for the parties to attend to seek to resolve their dispute.

    Unfortunately there are always matters which cannot be resolved out of Court and an application to the Family Court will be necessary. The new legislation has created one “Family Court" which includes all the levels of the Court system which deal with family disputes.

    The terminology used within the Family Court has been changed. Residence Orders (formerly custody) and Contact Orders (formerly access) have completely disappeared, to be replaced with Child Arrangement Orders.

    Child Arrangements Order means an Order regulating the arrangements relating to any of the following:

    • with whom a child is to live, spend time or otherwise have contact, and
    • when a child is to live, spend time or otherwise have contact with any person.

    Within a Child Arrangements Order, the care of the child can be shared between the parents or the child can live with one parent and have contact with the other. The paramount consideration in every case is the child or children's welfare. The wishes and feelings of the child or children are always considered and are particularly taken into account for older children.

Prenuptial agreements

Prior to entering into a marriage or civil partnership, you may wish to enter into a prenuptial agreement to seek to protect yourself financially in the event of separation or divorce. Where there is a disparity in income between the parties and one party wishes to protect their assets, a prenuptial agreement should be considered.

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    Under present English Law, there is no specific legislation to make prenuptial agreements enforceable. It is one of the factors that a Court may take into account in reaching a financial settlement under the Matrimonial Causes Act 1973.

    However since the case of Radmacher v Granatino (2010) the Courts have started to take a more positive approach towards prenuptial agreements and many Judges are now giving weight to sensible prenuptial contracts. The test to be applied to prenuptial agreements following this case is that “the Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of the implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."

    Therefore to uphold a prenuptial agreement the Court must make sure that there are no factors such as duress, fraud or misrepresentation by either party to the other in respect of the making of the agreement. There must also be no conduct such as undue pressure, or exploitation of a dominant position to secure an unfair advantage. Any of the above behaviour would be likely to make an agreement unenforceable.

    The Court require full and frank disclosure of assets by both parties, the more full the disclosure between the parties at the time of making the agreement, the better.

    Both parties must have obtained independent legal advice or given the opportunity to do so before signing the agreement.

    It is therefore better to have an agreement in place rather than nothing at all.

Postnuptial agreements

Like prenuptial agreements, postnuptial agreements deal with the difficult issue of how to divide money and property if a marriage were to break down, but they are drafted during the marriage rather than before.

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    Provided these are correctly drafted and case managed, they are considered in the same way as prenuptial agreements.

    They are often entered into after there has been some difficulties within the marriage. Also they are used to protect a valuable company or inheritance of one of the parties to the marriage.

Advice for Cohabitees

Are you cohabiting with your partner or thinking of doing so? Here is some information which may be useful or of interest to you.

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    • There are many people who believe that if you simply live with a partner for a fixed period of time, say two years, you become a “Common Law” husband or wife. This is incorrect. Many people assume that if they live with someone for a long period of time or have children together that the law will protect them.
    • There is currently no law which specifically protects cohabiting couples. The Government has considered the issue of whether there should be specific laws to protect cohabiting couples and proposals have been made, but it is unlikely that there will be any specific legislation brought in very soon. When a cohabiting couple separate, the division of assets will be decided by property law. Courts have no discretion to relocate assets as they do within Divorce and Civil Partnership Proceedings.
    • To avoid disagreement, it is a sensible idea to have a Cohabitation or Living Together Agreement prepared. This forms a contract between the couple. It will usually contain details of how any property is owned, whether jointly or separately between the parties, details of who will pay the bills and other outgoings and what will happen when the relationship ends. Also what would happen in the event of significant changes to the relationship such as the birth of children or serious illness of one party?
    • When a property is purchased in joint names, it is essential to consider how both parties’ interests should be protected. Also in what shares the joint property is owned. If one party puts more capital in, upon purchase, then this could be protected by a Deed of Trust between the owners. Your Conveyancing Solicitor will give you advice on different ways to jointly own property. To have things clear at the outset will avoid disagreement and disappointment if a relationship breaks down.
    • Cohabiting couples should always consider making Wills. If someone dies without a Will, then on death their property will pass under the Intestacy Rules. An unmarried partner would not benefit under the Intestacy Rules, which could lead to distant relatives benefitting in their place.
    • Since 1st December 2003, unmarried fathers who are named on a child’s birth certificate as the child’s father automatically have parental responsibility. If your child was born before that date and if a father is not named on the birth certificate, he will not have parental responsibility unless he enters into a parental responsibility agreement, obtains a parental responsibility order or marries the child’s mother.

Top Tips for separating Couples

Separating from your spouse or partner can be a very stressful and emotional experience. Taking legal advice from a solicitor who specialises in family law at this time is a very sensible step to take. We do not want our clients to feel daunted about taking advice so have set out below some top tips to help you through the process:

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    1. Before you instruct a solicitor, arrange an initial meeting with them. This will enable you to decide if you can work with the solicitor and to obtain some initial advice. Our Family Department offers a free 30 minute initial appointment for this purpose.
    2. Bring someone along with you to the meeting, such as a family member or a close friend. They will be able to support you, listen to the advice and even take notes to help you.
    3. Prepare a list of questions that you want to ask. It is very easy to forget what you wanted to ask, especially if you feel emotional or anxious.
    4. Most couples have finances to sort out. Try to find out as much information as you can about your financial circumstances, both before and after you separated. Your solicitor will need this information to give you detailed advice. It is also a good idea for you to have an understanding of your own finances at this time.
    5. Don’t be afraid to ask your solicitor to explain letters or legal terminology, if you don’t understand it. It is important that you have a full understanding of what is happening in your life.
    6. Try not to use your solicitor as a counsellor. This is not an effective use of their time and your money. If you need to seek some counselling, your solicitor will be able to refer you to a professional who can give you appropriate advice.
    7. Be prepared for the legal process to take some time to sort out.
    8. When discussing arrangements for your children try to consider what is in your children’s best interests. This may mean putting your own feelings to one side.
    9. Ask your solicitor for information about mediation as an alternative way to resolve issues between you and your partner.
    10. Don’t be afraid to ask about how much the advice will cost. There are some elements to the divorce process that can be dealt with on a fixed fee basis. Other elements you will be charged for dependent upon how much time your solicitor spends on the case. Your solicitor will be able to give you an estimate of the likely costs in these matters and will give you regular updates on the costs as the matter progresses.
 

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