Frequently Asked Questions
We have listed a few of the many frequently asked questions that we tend to receive from clients.
The contents of this page should be used for general information only and readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm before making any decisions.
Do I need a solicitor?
Are solicitors expensive?
Can I pay for my case at the end?
We generally seek for payment of fees as the case progresses. However, if your case becomes very contested, or if we need to go to court and you do not have the finances to fund the case, we can discuss various options to cover your legal fees. For example, we have a good relationship with a litigation loan provider who can provide funding to cover legal fees and they will usually agree to have the loan repaid from any settlement you receive at the end of the case.
Can I get legal aid?
When should I seek legal advice?
The earlier you seek legal advice the better - even if you do not act on it.
Can I pay in monthly instalments?
In certain circumstances we can offer interest-free payment plans to assist in funding your case - this is usually for fixed-fee matters where work will take a few months for us to complete - such as a divorce.
Can I get a divorce?
Can my spouse defend the divorce?
Does my spouse need to agree to the divorce?
How long will the divorce take?
An uncontested divorce usually takes between 6 to 9 months at a minimum, however it is always advisable to avoid obtaining the final divorce order until financial matters have been agreed and approved by the court which will likely lengthy the time to finalise the divorce.
Do I need to go to court to get a divorce?
Divorce is dealt with by the courts by considering the paperwork and applications. It is very rare that you will need to attend court as this is usually only if there are issues with agreeing who pays the costs of the divorce or if the divorce itself is defended by the respondent.
My spouse has started the divorce process - what do I need to do?
We married abroad, can we get a divorce in England?
I have a Nikkah/Islamic marriage - is this a legal marriage?
I am a father, do I have a right to see my child?
Do I have parental responsibility for my child?
What is parental responsibility?
Parental responsibility includes all rights and obligations a parent has towards the children. If you have parental responsibility you will be entitled to be consulted and for your consent to be obtained when any major decisions regarding the children's upbringing is being made, for example health decisions, schools and education, religion and travel abroad.
I am a grandparent. Do I have a right to see my grandchild?
I am having a disagreement with my ex-partner about our child. Do I need to apply to the court straight away?
Not at all. There are a lot of methods for dealing with matters outside of court and court proceedings really should be considered a last resort. Each case is different but generally if you and your partner have tried to reach agreement but can’t, then you may need to consider options such as Mediation; Arbitration or Collaborative Law. Each option has its good points and its drawbacks but they are also all a lot quicker than court and may be a better solution for you and your family then court proceedings.
I have concerns about the other parent. What can I do?
Good question. When considering these issues, the options vary depending on the concerns. If they are concerns about the other parent’s parenting style or general disagreements about how your child should be raised, then when applying to the court you should also complete a supplemental form which will allow you to outline the concerns that you have. This will be considered by the court and Cafcass when they receive the paperwork and allow them to consider how best to allocate and deal with your case. If however the matter is very urgent, such as a credible threat to remove a child from the UK, then you will need to make this clear in the court forms and seek an urgent hearing from the court.
I’ve heard of a Special Guardianship Order. What is that and how do I apply?
A Special Guardianship Order (SGO) is a court order that gives ‘enhanced’ parental responsibility to someone who is caring for a child who does not otherwise have parental responsibility. So if you are a parent, you can not apply for this order. If however you are someone who has been looking after a child, either because Children’s Services or even the child’s parents have asked you to do so, then you may be able to apply for this order. It will give you parental responsibility and allow you to make decisions for that child as necessary.
Will I see my children after the first hearing?
Sadly, not always.
Is Legal Aid available for a Special Guardianship Order?
Yes! You will still need to satisfy the general Legal Aid requirements regarding your income or capital as well as have the required evidence regarding either domestic abuse or child abuse but Legal Aid is available for an SGO. Speak to a solicitor to find out if you are eligible or not.
All other methods haven’t been successful, how do I apply to court?
There are two main ways of doing this. One is to head to the Ministry of Justice website and find the C100 form. You can either print this off and complete it or you can fill it in online and then print it. Alternatively, you are also able to apply online and there is a shortened form for this. Please remember however that you whichever method you choose, you will need to satisfy the court that mediation has been attempted and has not been successful; that mediation is not appropriate in the case e.g. due to domestic abuse or that because the matter is urgent, there is insufficient time to attempt mediation.
Court forms can be confusing and overwhelming, and you need to ensure that they are completed with the child's best interests in mind. Therefore obtaining legal advice before you apply to court is always helpful.
We are not in agreement over arrangements for our child, what can I do?
We will offer advice about how you can promote or propose arrangements so that your child can continue to have a relationship with both of you.
If you have concerns about the other parent having arrangements, then we can discuss and give advice on the options such as supervised or supported arrangements.
Who are CAFCASS and why are they involved in my matter?
Children and Family Court Advisory Support Services (CAFCASS) are allocated to cases involving a parental dispute that have reached the court.
Their role is to look after the interests of children involved in family court proceedings. Initially, this will involve undertaking background checks on the person applying to court, as well as the other parties and the children. They will also undertake a telephone interview with the parties before the first hearing in order to prepare a safeguarding letter for the court which will outline recommendations about the application.
After the initial hearing, the court can ask CAFCASS to undertake further detailed assessments to provide a final recommendation that the court can use when making a decision regarding the applicaiton.
The other parent does not contribute financially towards the child, what can I do?
Anyone with parental responsibility for a child has a duty to provide financially.
For separated parents, this usually means that the parent who the child is not living with the should contribute financially to the child's care and upbringing.
The Child Maintenance Service usually deals with child maintenance.
If you are the main carer of a child, you can make an application to the Child Maintenance Service to require a parent who does not live with the child to pay regular maintenance.
As a starting point, maintenance is calculated based on the non-resident parent's gross taxable income and the amount of overnight stays the child has with the non-resident parent.
Do I need to prepare a Will?
It is a common misconception that only the elderly require Wills, but the reality is that everybody should prepare a Will, especially if those that have children. Not having a Will can cause problems and financial worry for loved ones. It is important that you take the time to write a Will and make provisions to meet future financial needs.
At what age can I make a Will?
You must be at least 18 years old to make a Will. However, there are exceptions - if you are a soldier on active duty or a sailor at sea, you can be any age to make a Will.
I am married – do I really need a Will?
Yes, you do. If you are married and pass away leaving a spouse and children, then your estate will be split.
Your spouse would inherit all personal belongings and the first £250,000 of your estate.
Anything on top of £250,000 is divided in two. The first half goes to the surviving spouse and the other half goes to the deceased’s children in equal shares when they reach the age of 18.
This could potentially create a situation whereby the surviving partner does not automatically inherit the family home.
What happens if I die without a Will?
When somebody passes away and they have not left a valid Will, this is known as dying intestate.
The deceased’s estate is divided in accordance with the Rules of Intestacy.
These rules determine who inherits – this is dependent on what surviving family the deceased has and the size of the estate.
Only married or civil partners and some other close blood relatives can inherit under the Rules of Intestacy.
Dying intestate is likely to mean that your estate will not pass to who you want and it is also possible that your wishes may not be fulfilled.
What is involved in making a Will?
Firstly, you need to prepare a list of all your assets and estimate their value. You then can make a separate note of any debts and/or liabilities you have. Using this information, you can calculate how much your estate is worth.
The next thing to do is decide who you want to inherit from your estate by clearly specifying their full name and address next to the asset you want them to have. Then carefully think about who you want to receive the residue of your estate – this is all property or money left over after paying administrative and funeral expenses, legacies and any tax.
You then need to think about who you want to appoint as Executors. They are the people who deal with distributing your estate and their role comes into force as soon as you pass away.
If you have children under 18, you should appoint a testamentary guardian to ensure that your children are looked after a person of your choice in the event that you pass away whilst they are minor.
What if I want to exclude someone from my Will?
If you want to exclude someone from inheriting from you estate, it is even more important for you to prepare a Will which reflects this wish, as your Will allows you to leave your estate to whoever you like.
A provision can then be included in your Will to clearly exclude someone and this will limit any potential claims they have against your estate.
What is a Codicil and why would I need one?
There is no specific time, but a Will should be reviewed on a regular basis – it is suggested at least every 5 years or so.
However, it is strongly recommended that you review your Will if your life circumstances have changed, for example, in the event of the birth of a child, new relationship, death of a relative or loved one or if you acquire further assets since preparing your Will.
Who can witness a Will being signed?
A witness must be independent and needs to be over 18 years old. You need witnesses for a Will to be valid.
Alongside the solicitor who prepares the Will, neighbours, friends and work colleagues are the most common people asked to witness a Will. Another option is a Doctor/GP and this is particularly advisable if the person making the Will could be considered as vulnerable.
It is extremely important that a witness is not a beneficiary or potential beneficiary named in the Will, nor should they be a spouse or civil partner of such person, as the beneficiary would then lose their rights to inherit under the Will.
A witness cannot be related to the person preparing the Will, the executors named in the Will or any beneficiaries by blood, marriage or civil partnership.
I pay child maintenance, do I have a right to see my child?
I am getting divorced. Do I need to get a financial settlement?
We are getting married / entering into a civil partnership - should we get a prenuptial agreement?
I don’t own the family home, can my spouse sell it without my consent?
It is extremely important to protect your interest in the family home. If you do not own the family home, then you ought to have a Home Rights Notice registered against the property. This will ensure that your spouse cannot mortgage, sell or give away part of their interest in the property pending a full financial agreement with you. This is an entirely usual step to take as it simply protects your position if you are not a registered owner of the family home.
I do not have any pension provision and my spouse does – what can I do?
Married couples have rights against each other’s pensions and there are a few ways of dealing with pensions.
One is for there to be a Pension Sharing Order whereby a lump sum of money comes out of one pension and goes straight into a pension held in the other spouse’s name. Going forwards each spouse would then have a separate pension pot.
Another option would be for each spouse to keep their own pension, but for there to be offsetting to equalise the figures with other marital assets, such as savings and investments.
Should I deal with the finances first and get a divorce at a later stage?
If you decide the marriage is over it is advisable to start the divorce proceedings as soon as possible because the Court is not able to make any financial agreement into a binding and final Order until the Decree Nisi, the first stage of the divorce has been pronounced.
I have no assets and have been married for a really long period of time – what should I do?
If you have a long marriage, the starting point generally is for everything to be reasonably equally divided between the spouses and see whether that looks right in all the circumstances.
The first thing to do is to pin down all the figures. Once the figures have been clarified and are clear, it is a matter of looking at everything and working out what solution will best meet everyone’s needs, as far as it is possible to do so.
Does my ex have to continue to pay half the mortgage?
Yes, your ex will have to pay half of the mortgage if they are listed on the mortgage as both of you will be equally liable to the mortgage lender. If any payments are missed, then the mortgage lender will contact both of you for the outstanding balance plus any costs.
If mortgage payments are continually missed and neither of you can afford the repayments pending a financial settlement, then it might be worthwhile agreeing with your ex partner to contact your lender to see whether they would consider a holiday mortgage – this would cease monthly mortgage payments for a period of time to allow you both to save money moving forwards.
Who gets to keep the family pet?
A pet is classed as property and it is generally arguable as to who gets to keep the family pet. Factors to consider are: who purchased the animal; whose name is it registered in; who primarily cared for the animal and who paid for the outgoings relating to the animal. Following this, it is a good idea to think about what would be in the animal’s best interests.
I want to protect my assets/I am not sure if I want a divorce – should I get a post-nuptial agreement?
If you wish to protect your assets or decide to reconcile with a partner, then you may wish to consider preparing a post-nuptial agreement. Post-nuptial agreements are currently not legally binding in England.
However, in the event that you decide you would like to obtain a divorce, if there is a properly drawn up post-nuptial agreement, then the Court is likely to follow what it outlines, as long as people’s needs are being met.
What is the difference between Joint Tenants and Tenants in Common?
If you hold a property as Joint Tenants, you hold the property in equal shares and you have equal rights to the whole property. If one of the owners were to die, their share would automatically pass to the surviving owner/owners - this is the case even if a Will has been prepared to reflect that the property is to be inherited by somebody else.
Holding a property as Tenants in Common means that you could either own the property in equal shares or unequal shares. For example, one owner could own 75% and the other owner could own 25%. If one owner passes away, their share would not automatically pass to the surviving owner (unlike those who hold property as Joint Tenants) and instead, their share would pass in accordance with their Will (if they have one) or under the Rules of Intestacy.
I am a victim of domestic abuse and am considering applying for a court order. Do I need to tell my ex-partner beforehand?
No. The courts allow for applications for injunctions (Non-Molestation Orders and Occupation Orders) to be made ‘without notice’ where appropriate. This means that you could apply for the order that you are seeking and if the court is satisfied on the basis of your application and statement that there is a risk to you or to any child of the relationship or that notifying the other person in advance would lead to either them trying to avoid the order or that you may be put off applying, then the court will make the order without the other person being aware of it.
I have obtained a ‘without notice’ order, should I now till tell the other person?
Yes. For a ‘without notice’ order to be effective and for its terms to be enforceable by the courts and the police, the person whom the order is made against must be made aware of the order and its terms. The court’s are increasingly flexible about how this is done and each case will depend on the circumstances. Some cases will involve a process server physically giving the order to the other person, others may be sent via email or even WhatsApp.
I have had a ‘without notice’ order made against me. Is that the end of the matter or do I get to respond?
When a court makes a ‘without notice’ order, it will usually also list what is called a ‘Return Hearing’ which is to take place about two weeks after the order is first made. You will have the opportunity to respond to the allegations at that hearing. If you receive a ‘without notice’ order you should seek legal advice as soon as possible as these are very serious orders which can also affect any future proceedings regarding your children.
What is a Non-Molestation Order?
A non-molestation order is an order prohibiting a person (the respondent) from molesting another person who is associated with the respondent or a relevant child.
What does the court look at when considering whether to grant a Non-Molestation Order?
Three principles will be considered by the court when deciding whether to grant the order: there must be evidence of molestation going on; the applicant or child must need protection and the Judge must be satisfied that judicial intervention is required to control the respondent’s behaviour.
What could amount to molestation?
Molestation has been held to include the following: vexatious communications by telephone/post; acts and threats of violence; rifling through the applicant’s handbag and personal belongings; writing abusive letters and shouting obscenities; filling car locks with superglue; posting information on social media about a child and recording the other parent at child contact handovers.
How do I apply for a Non-Molestation Order?
An application for a non-molestation order should be made to the Family Court. The application is made on Form FL401, which must be supported by a witness statement verified by a statement of truth.
No court fee is payable in relation to an application for a non-molestation order.
How long can a Non-Molestation Order be put in place for?
A non-molestation order may be made for a specified period or until further order.
Can a Non-Molestation Order be varied or discharged?
Yes, it can. An application can be made by an applicant or respondent to vary, extend or discharge an order. This can be done using Form FL403.
What happens if the respondent breaches a Non-Molestation Order?
A respondent commits a criminal offence if they do anything prohibited by the non-molestation order without reasonable excuse.
In respect of orders made without notice, a respondent can only be guilty of an offence if they were aware of the existence of the order at the time of the alleged conduct.
Can you obtain a Non-Molestation Order against a mother-in-law/father-in-law?
Yes, you can. An order can only be granted to protect a person associated with the respondent or a relevant person. The definition of associated persons includes a relative. A mother-in-law/father-in-law is a relative and therefore an associated person for the purposes of an application for a non-molestation injunction.
What is an Occupation Order?
An occupation order is an order conferring, declaring, restricting or regulating rights of occupation in the family home between parties who are in, or who have been in, certain categories of relationship.
How do I apply for an Occupation Order?
How do I apply for an Occupation Order?
What does the court look at when considering whether to grant an Occupation Order?
The court is to have regard to all the circumstances of the case including the following: the housing needs and housing resources of each of the parties and of any relevant child; the financial resources of each of the parties; the likely effect of any order, or decision not to exercise powers, on the health, safety or wellbeing of the parties and any relevant child; the conduct of the parties; the nature of the parties’ relationship and the particular level of commitment involved in it; the length of time during which they have cohabited; whether there are or have been children who are children of both parties or for whom both parties have or have had parental responsibility; the length of time that has elapsed since the parties ceased to live together/marriage or civil partnership was dissolved or annulled and the existence of any pending proceedings.
What is mediation?
Mediation is a confidential, out of court process, where the parties meet with an independent mediator to help them makes decisions that lead to a final agreement.
Can a mediator give us legal advice?
When putting on their “mediator hat”, a solicitor acting as an independent mediator cannot give legal advice, but only legal information to assist and guide the parties to an amicable resolution.
I am not comfortable sitting in the same room as my ex-partner, can we still mediate?
The first meeting with a mediator is often called a Mediation Information & Assessment Meeting (MIAM).
Whether it’s called a MIAM or a first meeting, it will cover the same things required to ensure that mediation is suitable for your matter.
The first meeting with a mediator gives you the chance to find out how mediation works. The mediator will also discuss how many sessions you may need, the cost of mediation, as well as give you information about other services that provide help and support and the other options you might have to resolve things.
What happens if my ex-partner does not agree to mediation?
Mediation can only work when both people agree to attend.
If your ex–partner won't initially agree to mediate we can try asking them to attend an appointment on their own to start with. This can help avoid the tensions of facing each other.
What happens if mediation breaks down?
If the mediation fails and you do not reach an agreement or settlement, you can still take the matter to court. Parties do not give up their right to court proceedings if they want to resolve the dispute in mediation first.
In many circumstances mediation can also run alongside court proceedings.
How long does mediation take?
Mediation can continue while it meets the needs of the individual parties involved.
The initial meeting lasts approximately 45 minutes.
Full mediation sessions will usually last between 1 to 2 hours, depending on the complexity of the matter.
Is mediation confidential?
Mediation is a confidential and without prejudice process – this means that discussions you have in mediation cannot be referred to in court or disclosed to any individuals outside mediation (including your respective solicitors) without the express consent of both you and your spouse.
Is our agreement in mediation legally binding?
Mediation agreements are not legally binding.
A consent order is a legal document usually drawn up by a solicitor setting out what you have agreed during mediation that will then be sent to the court and approved by a judge.
Lasting Power of Attorney
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that lets you (the Donor) appoint and give legal authority to one or more people (known as Attorneys) to make decisions on your behalf. An LPA gives you more control over what happens to you if you lack mental capacity in the future and can no longer make your own decisions.
There are two types of LPA: Health & Welfare which relates to health and welfare decisions and Property & Finance which covers property and financial affairs. You can make an LPA for one or both areas depending on your needs.
How long does it take to prepare and register a Lasting Power of Attorney?
Preparing a Lasting Power of Attorney can be relatively quick and usually takes 14 – 21 days. Once the Lasting Power of Attorney has been prepared and signed by all required people, it must be registered with the Office of the Public Guardian. Registration can take up to 10 weeks.
Can I end my Lasting Power of Attorney?
If you still have mental capacity to make such decision, then of course you can end your Lasting Power of Attorney. In order to do so, you would need to send the Office of the Public Guardian the original LPA(s) alongside a written statement called a deed of revocation. The deed of revocation must be signed, dated and witnessed.
Who should make a Lasting Power of Attorney?
Everybody over 18 should consider preparing a Lasting Power of Attorney, not just the elderly. It is a common misconception that Lasting Powers of Attorney are only relevant to those over a certain age.
However, regardless of health, consideration should be given to making a Lasting Power of Attorney because life circumstances can change at any time and it is better to be prepared and have measures in place for such eventualities.
When should you prepare a Lasting Power of Attorney?
You can only enter into a Lasting Power of Attorney whilst you are of sound mind and are capable of making decisions for yourself. If you lose mental capacity and do not have a registered Lasting Power of Attorney, then this can cause an array of difficulties for your loved ones. Lasting Powers of Attorney should therefore be entered into as soon as possible and you should not delay preparing them.
What happens if I lose mental capacity but do not have a Lasting Power of Attorney in place?
In order for your finances to be dealt with and for health and welfare decisions to be made without a Lasting Power of Attorney in place, someone would need to apply to the Court of Protection to become a Deputy. This is an extremely lengthy and costly process.
It should also be noted that if it got to this stage you would have lost control over the process and you would have no power to choose who is appointed as your Deputy. It is therefore entirely possible that somebody you would not wish to act as Deputy is appointed to manage and deal with your person affairs. To avoid such situation you should prepare Lasting Powers of Attorney in advance.
Why prepare a Lasting Power of Attorney?
A Lasting Power of Attorney gives you more control over what happens in the event that you lack mental capacity in the future and can no longer make your own decisions.
A Lasting Power of Attorney allows you (the Donor) to choose one or more people (the Attorneys) to look after your affairs. Attorneys must follow the principles of the Mental Capacity Act and must importantly they must always act in your best interests.
Who can change their name?
You can legally change your name if you are 16 years of age or older unless there are any court orders or other restrictions in place preventing you from doing so.
Can I change my child’s name?
Yes, if all those who have parental responsibility for the child consent to the name change.
If you have sole parental responsibility, you do not need anyone else’s consent to change your child’s name.
If both parents have parental responsibility, but permission cannot be obtained from one of them, i.e. because they refuse to consent, or because their whereabouts are unknown, then a specific court order need to be obtained.
How long will it take to obtain the change of name document?
We provide a same day service for all adult change of name documents.
However, once we provide you with the documents, you will need to take it to a different solicitor’s firm to have it certified by them in your presence.
Once this has been completed the change of name is effective immediately and is a recognised legal document.
You will likely need numerous copies of the signed change of name document so that you can provide this to various organisations such as your bank, DVLA and the Passport Office.
What is the difference between a statutory declaration and a deed poll?
Both processes have the same legal standing.
A statutory declaration can be prepared on the day and will then need a second signature from another firm of solicitors. Once completed, the statutory declaration is recognised as a legal document.
For a deed poll, it is a more complex process in which various forms need to be completed and an application is made to the court for enrolment of the name. This process is slow and more costly than a statutory declaration.
Do I have to update my driving licence in my new name?
Yes — by law, you have to keep your driving licence up to date, and you must tell the DVLA about any change in your name or address.
Failure to do so could leave you with a £1,000 fine.
Do I have to update my passport in my new name?
No — there is no legal requirement to renew your passport if you change your name. Your passport will remain a valid document, and you can still travel with it.
Can I change the name on my birth certificate?
If your birth was registered in England or Wales, there are some limited circumstances when your birth certificate can be changed.
A birth certificate is generally considered a matter of fact — it was correct at the time it was issued and it cannot normally be changed.
I am a grandparent. Do I have a right to see my grandchild?
I am having a disagreement with the child's parents about our grandchild. Do I need to apply to the court straight away?
Not at all. There are a lot of methods for dealing with matters outside of court and court proceedings really should be considered a last resort. Each case is different but generally if you and the child's parents may have tried to reach agreement but can’t, then you may need to consider options such as Mediation; Arbitration or Collaborative Law. Each option has its good points and its drawbacks but they are also all a lot quicker than court and may be a better solution for you and your family then court proceedings.
We are not in agreement over arrangements for our grandchild, what can I do?
All other methods haven’t been successful, how do I apply to court?
Will I see my grandchildren after the first hearing?
I have concerns about the parents. What can I do?
Good question. When considering these issues, the options vary depending on the concerns. If they are concerns about the parent’s parenting style or general disagreements about how your grandchild should be raised, then when applying to the court you should also complete a supplemental form which will allow you to outline the concerns that you have. This will be considered by the court and Cafcass when they receive the paperwork and allow them to consider how best to allocate and deal with your case. If however the matter is very urgent, such as a credible threat to remove a child from the UK, then you will need to make this clear in the court forms and seek an urgent hearing from the court.
Who are CAFCASS and why are they involved in my matter?
I’ve heard of a Special Guardianship Order. What is that and how do I apply?
A Special Guardianship Order (SGO) is a court order that gives ‘enhanced’ parental responsibility to someone who is caring for a child who does not otherwise have parental responsibility. It will give you parental responsibility and allow you to make decisions for that child as necessary.
What is a cohabitation agreement?
A cohabitation agreement is a written, signed document between partners who are living together or are planning on doing so, often signed as a deed in front of witnesses. The agreement should ensure clarity and certainty about who owns (and owes) what at the time of the agreement, and in what proportions and also, what the financial arrangements are both during the course of the relationship and in the event that the relationship breaks down.
When should you get a cohabitation agreement?
A cohabitation agreement can be entered into at any time – this could be before you start living with a partner, or if you have been living with a partner for years. It can protect a person’s current and future property.
Why should I make a cohabitation agreement?
Unlike on divorce or dissolution, there are no particular rights that apply for cohabitees if they split up. A cohabitation agreement can mean that areas of potential dispute on separation are reduced or eliminated.
The process of drawing up a cohabitation agreement also gives couples the chance to think about how living together is going to work financially, which can limit arguments about money later down the line.
What is a prenuptial agreement?
A prenuptial agreement is a formal contract/agreement between two people which is entered into prior to marriage or civil partnership. The prenuptial agreement sets out how finances and assets are to be divided if the marriage or civil partnership were to end.
What is a postnuptial agreement?
A postnuptial agreement is a formal contract/agreement between two people who have already got married or entered into a civil partnership. The postnuptial agreement sets out how finances and assets are to be divided in the event of a breakdown of the marriage or civil partnership.
What is the difference between a prenuptial and postnuptial agreement?
There is only one difference between prenuptial and postnuptial agreements and that is the date in which they are created and entered into. A prenuptial agreement is signed prior to marriage or civil partnership, whereas a postnuptial agreement is signed after the marriage or civil partnership has taken place.
Are prenuptial and postnuptial agreements legally binding in England and Wales?
Currently, prenuptial and postnuptial agreements are not legally binding in England and Wales. Although they are not legally binding, they are still taken into consideration by the court and can be persuasive and decisive when reaching a decision. This is only usually the case if certain requirements and safeguards have been met.
What will make a prenuptial agreement more likely to be enforceable?
Prenuptial agreements need to be made at least 28 days before the marriage or civil partnership takes place. Each party entering into the agreement should receive independent legal advice. Each party needs to make full and frank disclosure to the other and cannot hide assets. Neither party should be under pressure or duress to sign an agreement against their wishes. The prenuptial agreement must be fair and realistic. If the division of assets is weighted too heavily in favour of one party, it may be deemed to be an unfair agreement by the court.
What should my prenuptial agreement include?
A prenuptial agreement is a complex and bespoke legal document drawn up for you and your spouse/civil partner to be, so it is dependent on your circumstances as to what is included in the agreement. It can cover almost anything you want it to – the focus being on the finances.
When does a prenuptial agreement expire?
A prenuptial agreement technically does not ever expire, but there can be a specific clause in them to be reviewed after a certain event or period of time.
What is a PLO meeting?
A PLO meeting (short for ‘Public Law Outline Procedure’) is an important meeting with children’s services. It will normally be arranged where the Local Authority has what they consider significant concerns about the welfare of a child. Parents (or other holders of parental responsibility) will be sent a formal letter that is usually titled ‘Public Law Outline Letter’ and will say ‘Do Not Ignore – Urgent’. The reason for that is because these meetings are usually held at short notice so that the issues can be properly dealt with and addressed. You are legally entitled to a solicitor and by showing a solicitor that letter, you are automatically eligible for Legal Aid.
Most PLO meetings are arranged because the Local Authority are so concerned that if things don’t change immediately then they will likely take the matter to court. The PLO meeting is a chance to avoid that by having the parents and Local Authority work together to come to a solution and address the concerns for the child.
At the meeting, there will usually be a social worker and their manager present, a member of the Local Authority legal team, you and your solicitor. The Local Authority will outline their concerns and what they wish to see change. You and your solicitor will then have an opportunity to discuss the concerns; put your views forward and negotiate the way forward. Usually this will involve some form of parenting assessment and may include psychological/psychiatric assessments as well. There is usually a written agreement drafted which is not legally binding but will reflect what has been agreed and is signed by the parent’s and local authority to confirm what is expected of everyone.
What is a child protection conference?
A Child Protection Conference is a formal meeting and is held where there are concerns about a child i.e. that the child may be at risk of suffering significant harm. A conference is arranged and various professionals that are involved with the child or in their lives will usually be in attendance. This can include, but is not limited to, the allocated social worker; health visitor; school welfare officers as well as the police if there has been involvement with them previously.
At this conference, the Chair of the conference will talk through the issues and identify the strengths in the family; the weaknesses; what the concerns are; what action has been taken to address these concerns and what is left to do and by whom.
Each of the professionals involved and the parents will be allowed to participate and have their say on the issues.
At the end of the meeting, there is a vote as to whether the child should be formally placed on the Child Protection Register and have a Child Protection Plan put in place for them. If the vote passes by a majority, then the child will be on the Register and have a formal Plan in place. When placed on the Register, this can only be done under certain categories which are – Physical abuse; emotional abuse; sexual abuse and neglect.
After the initial child protection conference, there will be a review conference within three months to review the Plan and its progress. Another vote will be taken as to whether the Plan should end or continue. If it is to end then it is likely that it will be downgraded to Child In Need. If it is voted to continue then the next review conference will be every six months from that date.
The local authority/social worker have said they are considering taking the matter to court, what should I do?
You should find out what stage the matter is at – when a Local Authority says that they are considering taking the matter to court, they may hold a PLO meeting (see above) to try and address the concerns before they do actually go to court. You should ask them for a letter outlining what they intend to do and whether they have already gone to a legal planning meeting (this is a meeting between the social worker and their lawyers to consider their next steps). Once you have that letter you should contact a solicitor who deals in care proceedings who will be able to assist and advise you as well as contact the Local Authority on your behalf.
How long will court proceedings take?
Most care proceedings, as a matter of law, will take up to six months. They can take longer in certain circumstances, usually due to complexity or if there are unavoidable delays. The courts have recently made clear that if a case needs more time so that it can be properly dealt with, then the court should grant that extension of time. The court will not however grant more time to a case just because it is requested, all considerations in care cases are made with the child’s best interests as the paramount consideration.
What is an interim care order?
This is an order made by the court during care proceedings where the court is reasonably satisfied that a child is suffering or is at risk of suffering significant harm which is attributable to the care given by the parent or the child is beyond parental control. This is known as the ‘Threshold Criteria’ which must be satisfied before an interim care order is made.
Normally, the only people who have parental responsibility for a child are the parents and anyone who has a Special Guardianship Order or Child Arrangements Order (lives with) in their favour.
An interim care order is an order made by the court which grants parental responsibility to the Local Authority which allows them to make decisions for a child that would normally be taken by the parents.
These are temporary orders made during proceedings where the court is concerned that a child is at risk of significant harm; where it is necessary and proportionate to make the order in light of the circumstances and usually where the court is concerned that without that order, there may not be cooperation from the parents during the case in regards to the child.
What happens in care proceedings?
In care proceedings, the first thing that will normally happen is that an independent Guardian will be appointed for the child. This is someone who is an expert in children matters and will act as the ‘voice’ of the child to the court, providing expert advice on how decisions of the court and others will affect the child.
Each parent is entitled to their own legal representation under Legal Aid to ensure that they are on equal footing with the Local Authority and the Guardian, who will also be legally represented.
There will then be a series of hearings, sometimes as few as 2-3 and other times more than that. These are often called ‘Case Management Hearings’ or ‘Interim Hearings’ in which decisions will be made regarding the child’s placement; welfare; addressing the concerns about the child as well as obtaining expert evidence in the form of psychological or psychiatric assessments as well as parenting assessments of the parents.
The Local Authority will need to prepare a ‘care plan’ which will outline what it seeks for the child during the proceedings. This will usually be provided at the first hearing and developed throughout the proceedings as further evidence comes to light.
There will then be a hearing called an ‘Issues Resolution Hearing’. This will take place towards the end of the proceedings and before that hearing, the Local Authority will file its ‘Final Evidence’ i.e. the final statement of the social worker and the final care plan which will set out what the Local Authority is seeking from the court and for the child, having taken into account all of the statements by the parents, the expert assessment outcomes and any other relevant evidence. It will then be for the parents and Guardian to consider whether they agree with the final care plan or not. If there is general agreement then the proceedings can end at the IRH and final orders made. If there is not agreement e.g. because the Local Authority is seeking long term foster care for a child and the parents want the child back in their care, then the court will make directions including for the parent’s to respond to the Final Evidence and list the matter for a contested Final Hearing.
My child is in care, am I allowed to see them?
In short, yes. There is a legal duty on Local Authorities to support and facilitate contact with a child in care unless there is a good reason, i.e. due to risks to a child’s safety or welfare and it being necessary for contact to be stopped, for there not to be contact. Any stopping of contact must last no longer than 7 days, outside of which a court order will be needed.
Where a parent is seeking more contact then the Local Authority is willing to agree to, then an application can be made to the court to seek additional contact. It will need to be outlined what the reasons are for this and why that contact is in the best interests of the child.
The court may then make an order for contact as it sees fit having heard from the parents, the Local Authority and especially the Guardian.
What is a supervision order?
A Supervision Order is an order made during care proceedings where the Local Authority has concerns about a child but does not take the view that it is necessary to share parental responsibility. For such an order to be made, the ‘Threshold Criteria’ referred to above must be met.
This is an alternative that will still involve the Local Authority being involved with a family for at least a year (it can be extended for a further year up to a total of three years) but instead puts a duty on the Local Authority to ‘advise, befriend and assist’ a child. This means that the Local Authority may decide to make certain services available to the child or their family or impose requirements such as where a child should live or do certain activities. Like an interim care order, this can be made during proceedings as an interim supervision order or at the end of proceedings as a final order.
What is an emergency protection order?
This is an urgent order obtained usually on very short notice to protect a child from imminent/immediate risks to their health and safety and urgent action is needed. This order grants parental responsibility to the person named in the order (usually the Local Authority) and will contain relevant directions to safeguard the child e.g. that they should be removed to a particular address or, as can happen often, that they not be removed from hospital e.g. where there is a dispute between the social worker and parent’s about whether treatment is necessary for a child.
As this is an urgent order, it only lasts up to 8 days but can be extended once for a further 7 days making the total duration 15 days. After this time it must be discharged and will usually be replaced either with an interim Supervision Order or interim Care Order as the Local Authority will, following the EPO being made, apply to the court for at least one of those orders so as to begin care proceedings.
My family/friends wish to be assessed as carers, what should I do?
You should immediately tell your solicitor and/or the social worker. Provide that person’s full name and all contact details that you have – phone numbers and email addresses in particular are very helpful. You should also make sure that you have spoken to whoever you are putting forward to make sure they are happy to be put forward and wiling to care for the child so there is no misunderstanding.
The Local Authority will then conduct a brief assessment of the potential carers (also called ‘prospective carers’) to assess their suitability for further assessment and to care for the child. This is known as a ‘viability assessment’. It will involve the social worker meeting with the prospective carers and discussing the issues and their home life so that the social worker is reassured that this person/people could adequately care for the child.
If the assessment is positive, then it will usually be recommended that a more full assessment is done – this will be to consider a ‘Special Guardianship Order’ at the conclusion of proceedings.
If the assessment is negative and the person wishes to contest, then it is open to the parent putting them forward to have them assessed by an independent social worker. Alternatively, the assessed person can seek to make an application for legal aid for an independent assessment in their own right.
What happens if my child is adopted?
Unfortunately at the conclusion of care proceedings, the court may make the decision that the only realistic option for a child is for that child to be adopted. The court will then make a placement order and will usually place the child with the prospective adopter or in foster care until an adopter has been identified.
Following this, the Local Authority on behalf of the prospective adopters shall apply for an adoption order. This order has the effect of severing all legal ties between the parents and the child. If an adoption order is made then the child will, from the date of the order, be legally recognised as the child of the adopters.
It is possible to contest adoption proceedings however, unlike care proceedings, legal aid is not automatic. Also, as part of the proceedings, you will need to show to the court that there has been a change in circumstances since the placement order was made which will allow the placement order to be revoked and then the matter will be reconsidered as part of care proceedings.
Am I entitled to legal aid?
For child protection matters, you must have a means assessment to ensure that you meet the legal aid requirements relating to income and capital. If that is successful, you are eligible for legal aid for as long as your financial circumstances mean that you fall within the legal aid ‘eligibility limits’.
For PLO matters, provided you have a letter from the Local Authority outlining their intention to issue proceedings (also called a ‘Letter Before Proceedings’ and you are someone with parental responsibility, you will be eligible for legal aid, regardless of your income.
For care proceedings, if you are a parent, other holder of parental responsibility or become a ‘joined party’ (i.e. formally added to the proceedings) then you are automatically eligible for legal aid, regardless of your income. Anyone else e.g. a family member who wishes to contest a negative viability assessment, will need to make an application for legal aid which is means and merits tested.
For adoption proceedings, these are fully means and merits tested by the legal aid agency and is not automatic, no matter your status in the proceedings.