Posted by Rory Miln on Monday, February 6, 2012,
In :
definitions
Sometimes a couple go through two marriage ceremonies, for example the first on a beach somewhere exotic and the second back in England. It can become important to know which of the two ceremonies actually created the marriage, and in the event of a divorce it may even become necessary to ask the court to decide which. Continue reading ...
Posted by Rory Miln on Monday, January 30, 2012,
In :
definitions
If the parents of a child cannot agree on an aspect of the child's upbringing, either parent may apply to the court for a specific issue order. There is no official definition of what constitutes a specific issue. Common examples are: whether or not a child should undergo a particular medical procedure; which school a child should attend; whether or not a child should be brought up in accordance with the religious faith of one of the parents. Continue reading ...
Posted by Rory Miln on Monday, January 23, 2012,
In :
definitions
In a divorce it sometimes happens that a spouse gets to keep money or property that they have inherited. However if some of that money or property may be needed to meet the financial needs of the other spouse, it goes into the matrimonial 'pot'. In most cases that aren't 'big money' cases, an inheritance is not 'ring-fenced' for the inheriting spouse unless it is very recent and quite small in relation to the overall assets. Continue reading ...
Posted by Rory Miln on Monday, January 9, 2012,
In :
definitions
If you make an application to the court for a financial order or an order with regard to children, you have to demonstrate to the court either that you have tried mediation and it has not succeeded or that your case is not suitable for mediation. In either case there is a standard form which has to be signed by a mediator. Continue reading ...
Posted by Rory Miln on Monday, December 19, 2011,
In :
definitions
According to an item in the Daily Telegraph at the weekend, the Government is thinking of requiring a child's father to sign the birth certificate. Apparently there are 50,000 babies born each year whose father is not named on the certificate. No details yet, for example what rights or responsibilities may or may not go with signing or not signing the certificate. Continue reading ...
Posted by Rory Miln on Monday, December 12, 2011,
In :
definitions
During your divorce you may have to swear an affidavit, or swear that the contents of a statement or a financial disclosure form are true. If you are uncomfortable with the idea of swearing an oath, you can opt for the non-religious version, called affirmation. Simply tell the person administering the oath (a solicitor or court official) that you want to affirm rather than swear. Continue reading ...
Posted by Rory Miln on Monday, December 5, 2011,
In :
definitions
If you want to rely on adultery when you divorce your spouse, you should be aware that you have to find it intolerable to live with him or her. During the course of the procedings you have to swear an affidavit. Are you prepared to swear on oath that you find it intolerable to live with your spouse? Better to think about this before starting divorce proceedings...... Continue reading ...
Posted by Rory Miln on Monday, November 21, 2011,
In :
definitions
Statistics reported on Saturday in the Daily Telegraph show that the number of divorces granted in England & Wales last year was 11% lower than the previous year. The one age group to buck the trend was the over 60s, where there was a 4% increase in the number of divorces - 'silver separations' the Telegraph calls them. By coincidence, I also read last week that the proportion of solicitors on the roll in England & Wales aged between 61 and 65 is 4%. I'm aged 61. Silver solicitor, anyone? ... Continue reading ...
Posted by Rory Miln on Monday, November 14, 2011,
In :
definitions
The Supreme Court's judgement in the case of Kernott v Jones was published last week and clarifies the law on the question of who is entitled to how much of the value of the jointly-owned home in cases where the couple aren't married. But the Government should modernise the law on cohabitants' rights. It had the oppportunity to do so recently when it received the Law Commission's report on the question. It decided to do nothing, which was the wrong decision. Continue reading ...
Posted by Rory Miln on Sunday, October 30, 2011,
In :
definitions
If you have been married to someone you have the right to make a financial claim against them if you separate and divorce. There is no time limit - you can make a financial claim many years after the separation, and such cases are not that uncommon. There are only two things that stop a person being allowed to make a financial claim against a former spouse: if the person making the claim has remarried, or if the court has made an order forbidding any such financial claims in the future. Such... Continue reading ...
Posted by Rory Miln on Monday, October 24, 2011,
In :
definitions
Until now not a single divorce case involving a lottery win has come before the High Court. This is suprising considering that the National Lottery started as long ago as 1994. The judge awarded the husband £82,000 out of the wife's £500,000 win. The husband would have received nothing if he had not needed it for his retirement and if the wife had not used some of her winnings to buy the matrimonial home that the couple had been living in when they separated. The judge said he had taken i... Continue reading ...
Posted by Rory Miln on Monday, October 17, 2011,
In :
definitions
Which public body administers the child support system? The Child Support Agency (CSA), surely? Yes and no. The CSA's functions have been managed for some time now by the Child Maintenance and Enforcement Commission (CMEC), although the CSA system is still basically the same as previously. The Government has now invited comment on a new proposal to abolish CMEC and to bring the child support system under the wing of the Department of Work and Pensions (DWP). If the proposal goes ahead, t... Continue reading ...
Posted by Rory Miln on Monday, October 10, 2011,
In :
definitions
A father who had failed to pay maintenance for his daughter for 16 years recently had £108,000 taken from his bank account under a procedure available to the Child Support Agency once the court has been satisfied that the money is due. The father's name has not been released. His reaction to the procedure can only be guessed at.... Continue reading ...
Posted by Rory Miln on Monday, October 3, 2011,
In :
definitions
There were 30,400 decrees absolute granted for the dissolution of marriage in the fourth quarter of 2010, an increase of one per cent compared to the fourth quarter of 2009. This increase is the first for several years but obviously it is too soon to say that the year-on-year downward trend has gone into reverse. Continue reading ...
Posted by Rory Miln on Monday, September 26, 2011,
In :
definitions
The Government's decision not to give any financial rights to the weaker party when a cohabiting couple separate (see my blog of Monday 19 September 2011) has obviously caused concern in some quarters. I see that the matter was debated on Woman's Hour on Radio 4 on Friday 23 September. I hope that the issue will not go away and that at some point before too long the Government will succumb to pressure and reconsider. Continue reading ...
Posted by Rory Miln on Monday, September 19, 2011,
In :
definitions
At present there is very little financial protection for the weaker party when a couple separate after living together without marrying. There is some help available under the Children Act if there are children, and in certain situations the ordinary law of property can be used, but such cases are rare. Take for example two couples, Couple A and Couple B. In each case they started living together twenty five years ago. They each had three children, who are now grown up and financially ind... Continue reading ...
Posted by Rory Miln on Monday, September 12, 2011,
In :
definitions
A House of Commons committee has recommended that child maintenance payments be collected by deducting them at source from wages or salary, or by direct payment from a bank account. The reason? At present every £1 of child maintenance collected costs 50 pence to collect. Continue reading ...
Posted by Rory Miln on Monday, September 5, 2011,
In :
definitions
In 2001 a wife returned to her home in Shanghai after a month-long visit to her family in another part of China. She noticed that the family's pet mynah bird was more talkative than usual every time the phone rang. Then she noticed that the bird kept saying "I love you", "divorce" and "be patient". She started divorce proceedings...... Continue reading ...
Posted by Rory Miln on Tuesday, August 30, 2011,
In :
definitions
Anecdotal evidence suggests that more and more divorcing couples are simply unable to afford to separate and run two households. When that happens they have to make arrangements that are workable and fair. In some situations it may be best to have a formal written agreement. Continue reading ...
Posted by Rory Miln on Monday, August 22, 2011,
In :
definitions
I can't say I've come across it yet, but apparently it's becoming increasingly common for divorcing couples to argue over who gets the loyalty points: http://www.dailymail.co.uk/news/article-2028562/Recession-Divorcing-couples-argue-Supermarket-loyalty-cards.html Continue reading ...
Posted by Rory Miln on Monday, August 15, 2011,
In :
definitions
A recent High Court case has established the simple rule that a foreign marriage will be recognised as a valid marriage in England and Wales if it is recognised as valid in the jurisdiction in which it was undertaken. The point can be an important one, because if a wealthy spouse can prove that his marriage is not valid in England and Wales he can avoid having to pay a lot of money to his former wife under the procedure available for making financial claims following a foreign marriage. Continue reading ...
Posted by Rory Miln on Monday, August 8, 2011,
In :
definitions
In cases involving a parent applying to the court for permission to take the children abroad, the recent development in the law (see my blog of 11 July) seems to apply mainly to cases where the care of the children is shared equally between the parents. Continue reading ...
Posted by Rory Miln on Tuesday, July 26, 2011,
In :
definitions
Posted by Rory Miln on Monday, July 18, 2011,
In :
definitions
Women may be warned if their new partner has a history of violence under a new law being considered by the Home Secretary. For more information, follow this link: http://www.guardian.co.uk/society/2011/jul/17/women-warned-partners-clares-law?CMP=twt_fd Continue reading ...
Posted by Rory Miln on Monday, July 11, 2011,
In :
definitions
When a couple with a child are no longer living together, the court sometimes has to decide whether one of them, usually the mother, should be allowed to move abroad taking the child with her. A recent case in the Court of Appeal placed renewed emphasis on the welfare of the child and warned that guidance given by the Court of Appeal in a previous case should not be followed slavishly - the earlier guidance had led to a lot of 'relocation' applications being granted. The recent case involve... Continue reading ...
Posted by Rory Miln on Monday, June 27, 2011,
In :
definitions
When a divorcing couple's finances have to be decided by a judge (which is unusual - most couples agree on a financial settlement), the judge has various factors that he is allowed to take into account. Broadly it is up to the judge to decide which factors are relevant in a particular case and what weight to give to each of those factors. What (s)he must do is achieve overall fairness. That means that after (s)he has carried out the initial exercise of applying the various factors (s)he mus... Continue reading ...
Posted by Rory Miln on Monday, June 13, 2011,
In :
definitions
If you attend a Financial Dispute Resolution (FDR) appointment at the court and reach agreement on financial settlement, if the district judge approves the agreement but the drafting of the order is left until later, neither of you will be able to change your mind. The court will treat the order as having been made at the point at which the district judge approves the agreement. It is an 'unperfected order', but it is nonetheless an order. It becomes 'perfected' once the order has been dra... Continue reading ...
Posted by Rory Miln on Monday, June 6, 2011,
In :
definitions
If you are the respondent in divorce proceedings (that is, it is your husband/wife who has filed a divorce petition), and you intend to defend the divorce, you have to file your Answer within 21 days of the date by which you were required to acknowledge service of the petition. If there is no overseas aspect to the divorce, this will normally mean that you have to file your Answer within 28 days of being served with the petition. This time limit is new - it was introduced with the new court ... Continue reading ...
Posted by Rory Miln on Tuesday, May 31, 2011,
In :
definitions
If your dispute is with the co-owmer of your house or flat because your relationship has come to an end, when you come in for your free initial interview try to bring with you a copy of the document that transferred the property to you in the first place. This is likely to be Land Registry Form TR1. Continue reading ...
Posted by Rory Miln on Monday, May 23, 2011,
In :
definitions
If you are separating, and if it is you who are leaving the matrimonial home, give some thought to what you take with you. It is far easier to take all your personal possessions with you than to try to recover them after you have left. If you are unlucky, your spouse may treat any items you leave behind as hostage and not release them without extracting something from you in return. You may find that you simply can't get the items until everything else has been sorted out, which could take... Continue reading ...
Posted by Rory Miln on Monday, May 16, 2011,
In :
definitions
If you are separating or divorcing and your matrimonial home is owned by your spouse, you should register your 'home rights' at the Land Registry. Registering your home rights effectively prevents your spouse from dealing with the property (e.g. selling it or mortgaging it) without your consent. Until the introduction of civil partnerships, home rights were known as 'matrimonial home rights'. Continue reading ...
Posted by Rory Miln on Monday, May 9, 2011,
In :
definitions
The Supreme Court is currently hearing an important case which may make a difference to the law on who gets how much of the value of a jointly-owned property when an unmarried couple separate. Watch this space... Continue reading ...
Posted by Rory Miln on Monday, April 18, 2011,
In :
definitions
Surrogacy is not an area of family law that I deal with, but a recent news story caught my eye: http://www.dailymail.co.uk/news/article-1375861/Child-custody-Couple-ordered-pay-surrogate-mother-monthly-baby-wont-meet.html Two points emerge. 1. A surrogacy agreement is not a contract enforceable in the courts. 2. The child support system is inflexible to the extent that if you're the biological father you pay maintenance for the child even if the surrogate mother changes her mind and decides t... Continue reading ...
Posted by Rory Miln on Monday, April 11, 2011,
In :
definitions
On Wednesday 6th April there was a change in the rules that govern family law court cases such as divorce. A whole new set of rules came in to replace the existing rules. In many cases the new rule is the same as or similar to the old rule, but practitioners are having to check carefully to make sure they are using the correct procedure. With the new rules has come a complete set of new court forms. On the whole, the new forms seem quite well designed and my initial impression is favourable... Continue reading ...
Posted by Rory Miln on Monday, April 4, 2011,
In :
definitions
If pension sharing is going to feature in your divorce, you will probably need a report from a pensions expert. People are understandably put off by the cost of a report, which will normally be at least £500, but it is a false economy to try to manage without. Only a pension expert (an actuary or an independent financial adviser with the pension 'ticket') has the ability to advise on the percentage pension share needed to achieve a particular outcome, such as equality of income in retireme... Continue reading ...
Posted by Rory Miln on Monday, March 28, 2011,
In :
definitions
An astonishing number of people getting divorced post details of their private life on Facebook which can be used as evidence in their divorce. Examples include: mentioning a live-in new partner while officially denying cohabitation, and telling the world about a fabulous holiday abroad while officially pleading poverty. If you are on Facebook and you are getting divorced, consider changing your settings! Continue reading ...
Posted by Rory Miln on Monday, March 14, 2011,
In :
definitions
If you suspect that your spouse has transferred an asset such as a property or some shares to someone else with the intention of making their assets look smaller than they actually are, you can ask the court to make an order setting aside the transfer. The Court of Appeal recently set aside the transfer of a £2 million Surrey mansion by a Russian financier having decided that the transfer was a deliberate attempt to keep the property out of the matrimonial 'pot'. This type of order is availa... Continue reading ...
Posted by Rory Miln on Monday, March 7, 2011,
In :
definitions
A meeting between divorcing spouses and their solicitors, usually at the offices of one of the solicitors. Can be an effective way of bridging a gap and achieving financial settlement. Needs to be timed right. Not the same as mediation. Continue reading ...
Posted by Rory Miln on Monday, February 28, 2011,
In :
definitions
If you go to family mediation, make sure you take legal advice after each session with the mediator. Don't leave it till the end when there's a provisional agreement! Continue reading ...
Posted by Rory Miln on Monday, February 21, 2011,
In :
definitions
To start divorce proceedings, the court fee is £340. At the end of the proceedings there is a further fee of £45, when the application is made for decree absolute. The court fee for making a financial application within the divorce proceedings is £240. The court fee for making an application under the Children Act - for a residence order or a contact order, for example - is £200. Exemptions from fees are available in certain circumstances Continue reading ...
Posted by Rory Miln on Monday, February 14, 2011,
In :
definitions
No she isn't. The concept of a common law marriage was abolished in 1753. You don't acquire any rights by living with someone. If you separate, there is no mechanism for making a financial claim based on fairness, or how long you've been together, or the fact that you gave up your career to look after the children........ Continue reading ...
Posted by Rory Miln on Monday, February 7, 2011,
In :
definitions
No he isn't. The concept of a common law marriage was abolished in 1753. You don't acquire any rights by living with someone. If you separate, there is no mechanism for making a financial claim based on fairness, or how long you've been together, or the fact that you gave up your career to look after the children........ Continue reading ...
Posted by Rory Miln on Sunday, January 30, 2011,
In :
definitions
This is rarely appropriate. Couples often agree on financial arrangements without realising that what they've agreed is not satisfactory and is nowhere near what the court would order if it was left to the court to make the decision. Often both spouses have quite innocently and understandably made assumptions, for example that the assets should be divided equally. There are many situations in which the assets are not divided equally. More sinister is the situation in which the husband (le... Continue reading ...
Posted by Rory Miln on Monday, January 24, 2011,
In :
definitions
Only if you wait for two years after separating, and even then only one of you can petition for divorce. If you want to get divorced sooner, one of you will have to divorce the other relying on adultery or unreasonable behaviour. See also 17th January 2011. Continue reading ...
Posted by Rory Miln on Monday, January 10, 2011,
In :
definitions
This question crops up from time to time. The answer is no - divorce in England and Wales is fault-based (unless you rely on 2 years' or 5 years' separation) and you must satisfy the court that your spouse has committed adultery or behaved unreasonably. There is no mechanism for getting a divorce because of what you yourself have done. Continue reading ...
Posted by Rory Miln on Friday, December 10, 2010,
In :
definitions
When you are getting divorced there can be a temptation to deal piecemeal with the financial arrangements. This is not a good idea. Don't agree what's going to happen with the house, then look at endowment policies, then bank accounts, and so on. Get a comprehensive picture of what there is and what everything is worth (now, not eighteen months ago) and work out the total value of the whole 'pot'. Take advice on what proportion of the overall total you should be aiming for. Should t... Continue reading ...
Posted by Rory Miln on Monday, December 6, 2010,
In :
definitions
When a couple's financial arrangements are settled by agreement rather than by the court making the decision for them, a draft financial consent order is drafted and agreed and sent to the court for approval. The draft order has to be accompanied by a 'statement of information for a consent order' in which the parties' respective financial positions and their remarriage or cohabitation plans are briefly explained. The purpose of the statement is to help the district judge to decide whethe... Continue reading ...
Posted by Rory Miln on Sunday, November 14, 2010,
In :
definitions
Before beginning to negotiate a financial settlement on divorce, it is essential to exchange full financial information and documents with your husband / wife. This is normally done by your respective solicitors putting all the papers in the post simultaneously on the same day. "But I know everything about my husband's / wife's financial situation" Well, possibly, but there may be things that you didn't know about. I frequently come across cases where something genuinely unexpected emerges ... Continue reading ...
Posted by Rory Miln on Monday, November 8, 2010,
In :
definitions
Some of the public sector pension schemes have resumed providing transfer values and implementing pension sharing orders, but I am unsure of exactly which. Can anyone tell me of a scheme that has recently returned to normal? Continue reading ...
Posted by Rory Miln on Monday, November 1, 2010,
In :
definitions
Pension attachment has largely fallen out of favour because in most situations the receiving spouse gains greater financial security by means of a pension sharing order. With pension attachment, the income payments come to an immediate end if the receiving spouse remarries or if the paying spouse dies. With pension sharing, once the order has come into effect it makes no difference if the receiving spouse remarries or the paying spouse dies - the pension share cannot be undone or reversed. ... Continue reading ...
Posted by Rory Miln on Monday, October 18, 2010,
In :
definitions
Can anyone tell me if any of the public sector pension providers apart from the Fire Service and Civil Service have resumed normal service? I have not heard anything this week. Continue reading ...
Posted by Rory Miln on Monday, October 4, 2010,
In :
definitions
I understand that during the course of last week the Fire Service pension people announced that they were resuming normal service and supplying CETVs. They are the first of the public sector pension providers to do so. Let's hope that the others follow suit before long. Continue reading ...
Posted by Rory Miln on Monday, September 27, 2010,
In :
definitions
Yes, probably, if there is going to be pension sharing. By law, a pension sharing order must be expressed as a percentage of the Cash Equivalent Transfer Value (CETV) or Cash Equivalent of Benefits (CEB - used in the case of pension already in payment). It is not possible for a lay person, which in this context includes a solicitor, even a specialist divorce solicitor, to calculate what percentage is required to achieve a particular result such as equality of income in retirement. It requi... Continue reading ...
Posted by Rory Miln on Monday, September 20, 2010,
In :
definitions
At the moment it is not possible to obtain a CETV for a public sector pension. The pension providers are revising their systems to take account of the Chancellor's announcement in the emergency budget that in future all increases will be in line with CPI and not RPI. When the providers have worked out how to deal with the change, they will resume providing CETVs. This could be in October, but nobody is certain. Continue reading ...
Posted by Rory Miln on Monday, September 13, 2010,
In :
definitions
If the finances of your divorce involve a pension or pensions, it will be necessary at the outset to obtain the Cash Equivalent Transfer Value (CETV) for every pension that either of you have ever had. The spouse with the pension should ask their pension provider to supply the CETV for that pension. Unless the provider has supplied a CETV within the previous 12 months, the CETV must be provided free of charge.
You should resist the temptation to start negotiating a financial settlement bef... Continue reading ...
Posted by Rory Miln on Monday, September 6, 2010,
In :
definitions
When a couple get divorced, the court has the power to rearrange their pension provision. This can be done by way of a pension sharing order. The court orders the trustees of the pension scheme to take a percentage of the transfer value of the pension and give it to the other spouse.
What happens next depends on the rules of the pension scheme. Some schemes require the receiving spouse to become a member of that scheme, so that they have a pension of their own within the same scheme. Other... Continue reading ...
Posted by Rory Miln on Monday, August 23, 2010,
In :
definitions
Where a residence order is in force, nobody is allowed to take the child out of the United Kingdom without the written consent of every person with parental responsibility or the permission of the court. However the person in whose favour the residence order is made is allowed to take the child out of the UK for a period of up to one month. Continue reading ...
Posted by Rory Miln on Monday, August 16, 2010,
In :
definitions
If your spouse wants to start divorce proceedings, you can avoid the problem described in last week's post ( 'Does it matter who divorces who? (2)). You should say that you will cooperate with the proceedings and send your 'acknowledgement of service' form to the court only if your spouse undertakes not to apply for decree absolute until financial matters have been resolved. There can be an argument over the exact point at which financial matters have been resolved, so be specific - get an ... Continue reading ...
Posted by Rory Miln on Monday, August 9, 2010,
In :
definitions
If you are the petitioner, you are allowed to apply for decree absolute once six weeks and a day have elapsed since decree nisi was pronounced. Effectively, your application is granted automatically - someone in the court office prints off two copies of the decree absolute certificate, stamps them with the official court stamp ('seals' them) and sends one to each of the two solicitors involved in the case. Your marriage is at an end once the certificate is sealed (although you don't know it ... Continue reading ...
Posted by Rory Miln on Monday, August 2, 2010,
In :
definitions
It can do, mainly because there are different rules for applying for decree absolute depending on whether you are the petitioner or the respondent. Broadly speaking, the petitioner controls when the marriage is finally dissolved. More next time. Continue reading ...
Posted by Rory Miln on Monday, July 26, 2010,
In :
definitions
If your divorce is straightforward you probably won't have to have a court hearing and everything will be done through the post. The two main exceptions are if you can't agree over the costs of the divorce and if you can't agree over the financial arrangements. Continue reading ...
Posted by Rory Miln on Saturday, July 17, 2010,
In :
definitions
With any divorce based on separation (two years with consent or five years) the respondent can make a financial application - a 'Section 10 application'. The application is made after decree nisi has been pronounced and has the immediate effect of preventing the decree from being made absolute - which is usually the sole purpose for making it, namely to hold up decree absolute and prevent the marriage from being dissolved. Continue reading ...
Posted by Rory Miln on Monday, July 5, 2010,
In :
definitions
You can get a divorce if you have lived apart from your spouse for five years or more. Unlike a divorce based on two years' separation, you don't need your spouse's consent. You do however have to prove that your spouse has received the divorce papers and thus knows about the divorce. Alternatively if your spouse has disappeared you can get a divorce based on five years' separation but you have satisfy the court that you have taken all reasonable steps to find your spouse. It is quite commo... Continue reading ...
Posted by Rory Miln on Monday, June 28, 2010,
In :
definitions
I have no statistical evidence to support this, but my impression is that divorces based on two years' separation with consent are less common than they used to be. If I am right, the reason may be the introduction of pension sharing ten years ago. If a couple decide to wait for two years before getting divorced, they enjoy the obvious advantage of avoiding a 'fault-based' divorce involving adultery or unreasonable behaviour. Financially, they can get on and sort out their arrangements with... Continue reading ...
Posted by Rory Miln on Monday, June 21, 2010,
In :
definitions
If you have been separated for two years you can get divorced without having to prove that your spouse has done anything wrong. You do however need your spouse's consent. It is best to be certain before you start divorce proceedings that your spouse will definitely give their consent. Continue reading ...
Posted by Rory Miln on Tuesday, June 15, 2010,
In :
definitions
You can petition for divorce if your spouse has left you and has been gone for two years having deliberately withdrawn from the marriage and you didn't want the marriage to end. Desertion is rarely relied on these days, mainly because 'two years' separation with consent' is more convenient. I've never been involved in a separation case in my career to date.... Continue reading ...
Posted by Rory Miln on Monday, June 7, 2010,
In :
definitions
If you petition on the basis of your spouse's unreasonable behaviour, you don't need their active cooperation to get your divorce. If they fail to tell the court that they have received the divorce papers (by completing, signing and returning to the court the 'acknowledgement of service' form that they have received with the petition), you can arrange for the papers to be served personally. The process server hands the papers to your spouse then swears an affidavit giving the details of whe... Continue reading ...
Posted by Rory Miln on Tuesday, June 1, 2010,
In :
definitions
If possible, a divorcing couple should try to agree in advance the text of the 'Particulars of Unreasonable Behaviour' part of the petition. This is a reliable way of avoiding the acrimony that can result if the respondent doesn't see the particulars until (s)he receives the petition from the court. It often makes it easier to agree on finances and the arrangements for the children, which can only be a good thing. Continue reading ...
Posted by Rory Miln on Monday, May 24, 2010,
In :
definitions
If you want to satisfy the court that for the purposes of the 'six months rule' (see post on 17th May) you and your spouse have actually separated even though you are living at the same address, you will have to separate your lives completely. You may be required to explain on oath in an affidavit exactly what the living arrangements are. Unless you can show that your lives are completely separate in every respect, you may not get your divorce. Merely sleeping apart is not enough - you sho... Continue reading ...
Posted by Rory Miln on Monday, May 17, 2010,
In :
definitions
If you petition for divorce on the basis of your spouse's unreasonable behaviour but go on living together after you have filed your divorce petition, the court will disregard the fact that you have gone on living together. It is still possible for the court to decide that "the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". However if you live together for six months or more after the most recent incident of unreasonable ... Continue reading ...
Posted by Rory Miln on Monday, May 10, 2010,
In :
definitions
You can get divorced by relying on your spouse's unreasonable behaviour. The test is a subjective one and not an objective one, which means that when the district judge reads your petition (s)he merely has to be satisfied that you find the behaviour unreasonable. It is not a 'man on the Clapham omnibus' test. This does not mean that you can rely on trivial grumbles about your spouse. Remember that the district judge is trying to decide whether the marriage has broken down irretrievably. G... Continue reading ...
Posted by Rory Miln on Tuesday, May 4, 2010,
In :
definitions
If you are petitioning for divorce on the basis of your spouse's adultery, you don't have to name the third party. If you do name them, they have to be served with their own set of divorce papers. That potentially makes it harder for you to proceed with your divorce because you need not only the respondent but also the co-respondent to complete an acknowledgement of service form and return it to the court. It's generally better not to name the third party. Apart from anything else, it's u... Continue reading ...
Posted by Rory Miln on Monday, April 26, 2010,
In :
definitions
If you want to petition for divorce on the basis of your spouse's adultery, you are not allowed to rely on that adultery if you have continued to live together for six months or more after learning about the adultery. The theory is that if you continue to live together for that length of time you have condoned the adultery.
The six months starts from when you learned about the adultery, not when it happened.
You can live together for more than six months and avoid falling foul of the 'six mo... Continue reading ...
Posted by Rory Miln on Monday, April 19, 2010,
In :
definitions
A spouse who petitions on the 'fact' of adultery has to satisfy the court not only that their spouse has committed adultery but that they (the petitioner) find it intolerable to live with the respondent. Often this is the case, but sometimes the petitioner would have liked a reconciliation - perhaps they are only petitioning for divorce because they have lost their spouse to a new partner - and they don't at all find it intolerable to live with their spouse but their spouse has taken themsel... Continue reading ...
Posted by Rory Miln on Monday, April 12, 2010,
In :
definitions
Adultery is voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom at least is married. Proof of adultery is usually in the form of a written admission. When the respondent receives the divorce petition from the court there is an 'acknowledgment of service form' to be completed and sent back to the court. If the respondent answers 'Yes' to the question 'Do you admit the adultery alleged?', that will normally be sufficient proof that the adul... Continue reading ...
Posted by Rory Miln on Saturday, April 3, 2010,
In :
definitions
There is only one ground for divorce, and that is that the marriage has broken down irretrievably. In order to satisfy the court that the marriage has broken down irretrievably, the petitioner must prove that one of five 'facts' applies. The five facts are: adultery, unreasonable behaviour, desertion, two years' separation (with the respondent's consent) and five years' separation (respondent's consent not needed). More on the individual facts in future posts. Continue reading ...
Posted by Rory Miln on Sunday, March 21, 2010,
In :
definitions
You may hear this expression mentioned, but the role played by a Court Welfare Officer in a Children Act case is now played by a CAFCASS officer - see recent post on CAFCASS. Continue reading ...
Posted by Rory Miln on Sunday, March 14, 2010,
In :
definitions
CAFCASS stands for 'Children and Family Court Advisory and Support Service'. CAFCASS will be involved in most court cases involving children, usually at the beginning of the case trying to help the parents reach agreement and sometimes later in the case preparing a report and recommendation for the court. For more information on CAFCASS, visit their website: http://www.cafcass.gov.uk/default.aspx Continue reading ...
Posted by Rory Miln on Monday, March 8, 2010,
In :
definitions
In this context, 'the jurisdiction' means 'England and Wales'. As with changing a child's name, the consent is required of any other person with parental responsibility, failing which the court will make the decision if an application is made. Where a residence order is in force, the person who has the benefit of the residence order is allowed to take the child out of the jurisdiction for up to one month without either the consent of the other person with parental responsibility or an order... Continue reading ...
Posted by Rory Miln on Monday, March 1, 2010,
In :
definitions
Where a child's parents are unmarried and both have parental responsibility, neither parent is entitled to change the child's surname without consulting the other. If they cannot agree, an application can be made to the court, the exact procedure depending on whether or not there is a residence order in force. Continue reading ...
Posted by Rory Miln on Monday, February 22, 2010,
In :
definitions
An order preventing a parent from doing something with regard to a child, for example continuing a particular course of medical treatment. Continue reading ...
Posted by Rory Miln on Monday, February 15, 2010,
In :
definitions
An order deciding an issue such as where the child in question is to go to school, whether (s)he is to have a particular medical treatment, and so on. Continue reading ...
Posted by Rory Miln on Monday, February 8, 2010,
In :
definitions
A residence order is an order of the court saying who a child is to live with. Used to be called 'custody'. Continue reading ...
Posted by Rory Miln on Monday, February 1, 2010,
In :
definitions
A child seeing the parent that they don't live with any more. Used to be called 'access' until the Children Act came into force in 1991 (which is presumably why some lawyers use the dreadful expression 'contact to' instead of the correct 'contact with'). Continue reading ...
Posted by Rory Miln on Sunday, January 24, 2010,
In :
definitions
The court can make a consent order regarding a child, for example a residence order or a contact order. Before the court considers whether the wording of the draft order is acceptable, it has to consider whether it is better for the child to make an order than to make no order at all. Only if the court decides that an order is appropriate will it go on to decide if the wording of the draft order is suitable. This is the 'no order principle'. It applies in children matters, not in financia... Continue reading ...
Posted by Rory Miln on Sunday, January 17, 2010,
In :
definitions
Anything that the court has the power to order after a contested hearing (maintenance, lump sum, transfer of a property, etc.) can be ordered by consent. Remember, most financial orders on divorce are made by consent. Continue reading ...
Posted by Rory Miln on Monday, January 11, 2010,
In :
definitions
If, after looking at the draft order and statement of information, the district judge does not feel able to make the order as asked, (s)he will let the parties' solicitors know. Sometimes (s)he will set out the reasons in a letter; sometimes (s)he will ask the court office to arrange a short hearing at which the parties and their solicitors can provide further information and answer the district judge's questions. Continue reading ...
Posted by Rory Miln on Sunday, January 3, 2010,
In :
definitions
Although financial matters are sometimes settled while the parties and their legal advisers are at court for a hearing, most financial consent orders are dealt with by post. The terms of a draft order are agreed and the order is sent in to the court with a document briefly explaining the parties' finances - a 'statement of information for a consent order'. The district judge looks at the draft order and at the statement of information. If (s)he is satisfied that the order is fair to both par... Continue reading ...
Posted by Rory Miln on Monday, December 21, 2009,
In :
definitions
Once a financial order has been made it is very unlikely indeed that the court will revisit it and consider changing the financial settlement. It is technically possible, but there has to have been a fundamental change in the underlying situation - and that has been interpreted increasingly strictly by the higher courts. Continue reading ...
Posted by Rory Miln on Monday, December 14, 2009,
In :
definitions
The financial arrangements on divorce are usually settled by agreement. It is important to get the court to make an order incorporating the terms of the agreement - an 'ancillary relief order by consent'. The purpose is to achieve certainty, because either party to a marriage can make a financial claim against the other at any time after the end of the marriage. There is no time limit for such a claim, and it is not unheard of for a claim to made many years after the end of a marriage. T... Continue reading ...
Posted by Rory Miln on Monday, December 7, 2009,
In :
definitions
A court order can be made by consent. The parties submit an agreed draft order. The judge considers it and, if (s)he is satisfied that (s)he has the legal power to make such an order and that the order is fair, (s)he makes the order. Continue reading ...
Posted by Rory Miln on Monday, November 30, 2009,
In :
definitions
If you are separating or already separated and you own your property as joint tenants (see posts on 9th, 16th and 20th November), you need to think what will happen if you die while you still own the property. In a few months' time, when you have reached agreement on financial matters, something will happen to the property - it will be sold, or transferred to one of you, or you may even go on owning it jointly on agreed terms such as who lives in it, who is going to pay the mortgage, insure ... Continue reading ...
Posted by Rory Miln on Monday, November 16, 2009,
In :
definitions
A couple who own their property as tenants in common own their shares separately. The shares may be equal shares or if they choose (for example if one contributed more to the deposit than the other) unequal shares. If one of the tenants in common dies, the share that had belonged to the deceased goes in accordance with the deceased's will or, if there is no will, in accordance with the rules of intestacy. Continue reading ...
Posted by Rory Miln on Monday, November 9, 2009,
In :
definitions
'Joint tenancy' is one of two ways of owning a property jointly. The other way is 'tenancy in common'. The expressions are a little confusing because they have nothing to do with rented property. A couple who own their property as joint tenants own the property jointly on the basis that if one of them dies the other automatically becomes the sole owner of the property. The share that had belonged to the deceased accrues to the survivor. This is known as the 'right of survivorship'.
Most mar... Continue reading ...
Posted by Rory Miln on Monday, November 2, 2009,
In :
definitions
A person whose spouse or civil partner owns the couple's home in his/her sole name can register their 'home rights' at the Land Registry. The effect of doing this is that the property cannot be sold, because any prospective purchaser will insist on the home rights notice being cleared off the register before proceeding. This protects the non-owning spouse or civil partner. When financial matters have been agreed, the home rights notice is no longer needed and is cancelled. Until civil partn... Continue reading ...
Posted by Rory Miln on Monday, October 26, 2009,
In :
definitions
Obsolete expression, although still sometimes heard. Now CAFCASS officer - see post of 19th October. Continue reading ...
Posted by Rory Miln on Monday, October 19, 2009,
In :
definitions
CAFCASS is the Children and Family Court Advisory and Support Service. CAFCASS plays a role in many court cases involving children, often in the form of a report containing a recommendation. Continue reading ...
Posted by Rory Miln on Monday, October 12, 2009,
In :
definitions
Although orders for costs can be made in ancillary relief proceedings, they are rare. You should always reckon on paying all your own costs of sorting out the finances. Continue reading ...
Posted by Rory Miln on Monday, October 5, 2009,
In :
definitions
Sorting out the finances when you get divorced - how much will it cost? The question is notoriously difficult to answer, but it helps if you understand the work that may be involved. Before you start negotiating a financial agreement you must have full financial disclosure. Each party assembles all their financial information, with documentary evidence (for example property valuation, mortgage statement, Form P60, salary slips, credit card statements). Disclosure then takes place, usually s... Continue reading ...
Posted by Rory Miln on Monday, September 28, 2009,
In :
definitions
If a divorce petition contains a claim for costs, and if the couple have not been able to agree on how much the respondent is going to contribute to the petitioner's costs, the court will make the decision. This is done either at the time that decree nisi is pronounced, or at a separate short hearing fixed for the purpose. At the costs hearing, the parties may be represented by a solicitor, but usually it is uneconomic to instruct a solicitor, simply because the cost of doing so can be greate... Continue reading ...
Posted by Rory Miln on Monday, September 21, 2009,
In :
definitions
A divorce petition based on adultery or unreasonable behaviour will normally contain a claim for costs. That means that the petitioner asks the court to order the respondent to pay all his/her costs of the divorce (the 'main suit', that is, not any other aspect such as financial matters or children - see 'Divorce Costs (1)'). Typically, the respondent indicates that he/she will cooperate with the proceedings (by completing the 'acknowledgement of service' form and returning it to the court) p... Continue reading ...
Posted by Rory Miln on Monday, September 14, 2009,
In :
definitions
Most of the costs of the 'main suit' of a divorce (petition - decree nisi - decree absolute) fall on the petitioner in the first instance, because it is the petitioner's solicitor who does nearly all the work.
Typically, the petitioner's solicitor will spend about 3 hours on the main suit. At our hourly rate of £160, that comes to about £892 (£160 x 3 hours + VAT at 15% + court fees of £340).
The respondent often makes a contribution to the petitioner's costs, either by agreement or by ord... Continue reading ...
Posted by Rory Miln on Monday, September 7, 2009,
In :
definitions
When you get divorced, there are usually two lots of legal costs that you have to pay: the costs of actually getting divorced (petition - decree nisi - decree absolute) and the costs of sorting out the finances (disclosure - negotiation - court order). If there is a dispute over children, or there is an issue of domestic viloence, there will be additional costs in dealing with those matters as well. Unless there are no finances to sort out, or they're very simple indeed, sorting out the fina... Continue reading ...
Posted by Rory Miln on Monday, August 31, 2009,
In :
definitions
An order for costs (see 10th August) can be made against a party regardless of whether they are privately funded (i.e. paying their own legal costs) or in receipt of Public Funding. However if a judge makes an order for costs against a party in receipt of Public Funding the judge must then go on to decide how much of the costs the party is actually to pay.
They are two separate exercises: first, should either party be ordered to pay any of the other party's costs? secondly, if a party is o... Continue reading ...
Posted by Rory Miln on Tuesday, August 25, 2009,
In :
definitions
At the end of each hearing during a case, the judge will consider whether he should make an order for costs. 'Costs reserved' means that that the judge is postponing making a decision on the costs of that hearing. The judge may specify when the decision is to be made, e.g. 'Costs of today reserved to the final hearing'. Continue reading ...
Posted by Rory Miln on Monday, August 17, 2009,
In :
definitions
'Costs in the application' usually appears as a provision at the end of a set of directions made by the judge during the course of a case. Most cases don't go straight to a final hearing - there is at least one 'directions appointment' along the way. 'Costs in the application' means "At this stage I'm not ordering either party to pay the other's costs of today's directions appointment. If, at the end of the case, a costs order is made, then the costs of today are to be included in the cost... Continue reading ...
Posted by Rory Miln on Monday, August 10, 2009,
In :
definitions
An order for costs is a court order requiring a party to pay the other party's costs. The order can be to pay all the other party's costs, or a proportion of them, or it can be to make a contribution of a fixed amount. In divorce cases, there are usually two separate lots of costs: the costs of the divorce itself (the 'main suit') and the costs of dealing with financial matters ('ancillary relief'). If a divorce petition is based on adultery or unreasonable behaviour, the petitioner may ask ... Continue reading ...
Posted by Rory Miln on Monday, August 3, 2009,
In :
definitions
'Costs' is used by solicitors in slightly different ways depending on the context. It can mean specifically the fees charged by the solicitor, for example: "I estimate that my costs will be £500 plus VAT and disbursements". It can mean the overall cost of a case, for example: "By the time the order was implemented, the husband's costs had mounted to £7,500". In the second example, 'costs' is used in a general sense to mean the solicitor's costs and VAT as well as disbursements and poss... Continue reading ...
Posted by Rory Miln on Monday, July 27, 2009,
In :
definitions
Prayer
To pray is simply to ask.
The prayer in a divorce petition is the part where the petitioner asks the court what he or she wants the court to order. Typically this will be that the marriage be dissolved and that various financial orders be made. There may also be a request that the court order the respondent to pay the petitioner's legal costs of the divorce - a 'prayer for costs'.
Continue reading ...
Posted by Rory Miln on Monday, July 20, 2009,
In :
definitions
To serve a document is to ensure that the recipient receives it. Service can be personal, where the papers are handed to the recipient in person, or postal. Papers can be served by one solicitor on another by DX (for DX see 15th June). Most firms of solicitors do not accept service by email. Sometimes service of a document is significant under the court rules. For example, a divorce petition can be withdrawn by the petitioner, but only if it has not yet been served on the respondent. ... Continue reading ...
Posted by Rory Miln on Monday, July 13, 2009,
In :
definitions
File (verb) To lodge a document at the court, usually by sending it by post or DX (see post of 15th June). What happens when the court office receives the document depends on what the document is. It may require action - for example, if it is a divorce petition the court office will open a file, officially start ('issue') the proceedings, bank the accompanying cheque for the court fee, allocate a case number and post a copy of the petition to the respondent and a 'notice of issue and postal ... Continue reading ...
Posted by Rory Miln on Monday, July 6, 2009,
In :
definitions
This post is best read in the context of my posts on 22nd June (decree nisi) and 29th June (decree absolute).
Once a period of six weeks has elapsed from pronouncement of decree nisi, the petitioner is allowed to apply for decree absolute. There is no obligation to do so - the petitioner is usually advised to wait until financial matters have been resolved before making the application.
When the petitioner applies for decree absolute, it is granted automatically. A member of staff in the cour... Continue reading ...
Posted by Rory Miln on Monday, June 29, 2009,
In :
definitions
First read last week's post 'decree nisi' (22nd June).
When the decree is made absolute the divorce is finalised and the marriage is dissolved. 'Absolute' is an adjective, so 'decree absolute' is equivalent to 'final order'.
The application to make the decree absolute can be made by either the Petitioner or the Respondent, but different rules apply. See next week's post. Continue reading ...
Posted by Rory Miln on Monday, June 22, 2009,
In :
definitions
Decree nisi
The court order dissolving a marriage is called a decree, and is made in two stages. The first stage is the decree nisi. 'Nisi' is Latin for 'unless'. When a judge pronounces the decree nisi in a divorce case, s/he is saying that the marriage is to be dissolved unless something, for example the appearance of new evidence, happens to change the situation.
A few years ago the government of the day decided to modernise divorce procedure. 'Decrees' were to be replaced by 'orders' an... Continue reading ...
Posted by Rory Miln on Monday, June 15, 2009,
In :
definitions
DX:
The
Document Exchange system, a private postal system used by lawyers, courts,
local authorities and other organisations and paid for by annual subscription.
Items are delivered overnight to a locker in an exchange near the member’s
office.
Continue reading ...
Posted by Rory Miln on Monday, June 1, 2009,
In :
definitions
Reply:
If the Respondent files an Answer after receiving the divorce papers (thus turning it into a defended divorce), the Petitioner is allowed to comment on the Answer in a document called a Reply.
Unless the court decides otherwise, there are no further pleadings, just Petition - Answer - Reply.
Don't forget that that the vast majority of divorces are undefended, so in mosts cases there's no Answer or Reply at all. Continue reading ...
Posted by Rory Miln on Monday, May 18, 2009,
In :
definitions
A married couple who separate sometimes agree to get divorced but not straight away. This may be for a variety of reasons, but often it is because they have agreed to divorce on the basis of two years' separation with consent. In this situation it is nearly always best for the couple to enter into a separation agreement, also known as a deed of separation.
The agreement usually contains a provision that if, after two years' separation, either party petitions for divorce on the basis of two ... Continue reading ...
Posted by Rory Miln on Monday, May 11, 2009,
In :
definitions
Answer:
If a person is served with a divorce petition and wants to defend the proceedings, the document they submit to the court is an Answer.
Most divorces are undefended, in which case there is no Answer.
Typically, an Answer states that the marriage has broken down irretrievably but asserts that the reason for the breakdown is unreasonable behaviour or adultery on the part of the petitioner. Details ('particulars') of the behaviour or adultery are usually given, and the Answer usually co... Continue reading ...
Posted by Rory Miln on Tuesday, May 5, 2009,
In :
definitions
Petition: As a noun, the document that starts divorce proceedings. The petition provides the court with certain information required by the rules and states what the petitioner is seeking, including the dissolution of the marriage, any orders (in outline only) to do with finances or children and perhaps an order requiring the respondent (the other spouse) to pay the costs of the divorce. As a verb, to start divorce proceedings by filing a petition at the court. Continue reading ...
Posted by Rory Miln on Monday, April 27, 2009,
In :
definitions
Counsel:
Barrister, as in ‘to instruct counsel’ or ‘counsel’s opinion’. Can be used of the Bar as an institution, as in ‘John Smith of Counsel’ meaning ‘the barrister John Smith’. Continue reading ...
Posted by Rory Miln on Tuesday, April 14, 2009,
In :
definitions
Undertaking: A solemn promise. A person who gives an undertaking to the court and then breaches the terms of the undertaking is in contempt of court and can be punished by imprisonment or a fine or both. A solicitor’s undertaking to another solicitor is a promise to do something and can be relied on since it is serious professional misconduct for a solicitor to fail to comply with an undertaking. Continue reading ...
Posted by Rory Miln on Monday, April 6, 2009,
In :
definitions
Draft:
A preliminary version of a document or letter intended for comment and if necessary amendment. For example at the start of a divorce the solicitor may send the client a draft initial letter addressed to the client’s spouse for the client to comment on before it is sent. Similarly when the parties to a divorce have agreed on a financial settlement, one of the two solicitors will produce a draft court order for submission to the court for the district judge to approve. The draft ord... Continue reading ...
Posted by Rory Miln on Monday, March 30, 2009,
In :
definitions
'Special Procedure'
The procedure used for an undefended divorce, normally relying on the papers alone without any court hearings – ‘special’ when it was first introduced but now the normal procedure used in nearly every divorce. Continue reading ...
Posted by Rory Miln on Monday, March 23, 2009,
In :
definitions
Definition of 'evidence':
A way of proving a fact. Evidence can be in the form of a document or it can be given orally to the court under oath. Unless a fact is agreed, evidence will be needed. “Our client has £10,000 in his building society account” is a mere assertion and is not sufficient, but a photocopy of the latest page in the client’s building society showing a balance of £10,000 is evidence which proves the fact being asserted. Continue reading ...
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Rory Miln
Every week, usually on a Monday, I post my movements for the coming week - when I'm in the office and when I'm out, for example at court. At the same time I post a short article on a word or expression that may crop up during a separation or divorce case.
I'm always glad of feedback - any comments on my blog entries are welcome - just send me an email.
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About Miln MacLeod
Miln MacLeod Solicitors is the practice name of Rory Miln, a solicitor of England and Wales recognised as a sole practitioner, authorised and regulated by the Solicitors Regulation Authority (SRA). The practice's SRA number is 535105. The SRA’s rules can be found (in English) on their website at http://www.sra.org.uk/solicitors/code-of-conduct.page
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