Frequently asked family law questions

Family law is an area of law, perhaps more so than any other, where there are many myths and areas of confusion. Coupled with this, are the emotions and financial difficulties surrounding divorce and separation, that make it difficult for people to see the wood for the trees.

We have put together a series of answers to some of the family law questions we are commonly asked.

What is collaborative law?

This is a process that can be used to find solutions to issues that arise when couples get together (e.g. Pre Nups/Living together agreements) or separate (divorce/dissolution, financial maters, arrangements for children).  Each person has their own lawyer and you all meet together in the same room to work things out face to face. You have your lawyer by your side throughout the entire process and therefore benefit from legal advice as you go. You make a commitment at the outset not to go to court.

What is legal separation?

There is no such thing as such, the only way to legally finalise your marriage or civil partnership is by getting a divorce/dissolution. You can get a Judicial Separation, rather than a divorce/dissolution, the process is similar to a divorce/dissolution but you will still remain married or in a civil partnership at the end of it. The circumstances in which a Judicial Separation would be appropriate are very rare and often involve religious believes that prohibit divorce/dissolution.

What is a collaborative lawyer?

A lawyer that trained to work using the collaborative process to find solutions to issues that arise when couples get together (e.g. Pre Nups/Living together agreements) or separate (divorce/dissolution, financial maters, arrangements for children).

What are the grounds for divorce?

The only ground for divorce and that is that the marriage has broken down irretrievably.  To satisfy the court that there has been an irretrievable breakdown one of the following five facts must be proved:

  1. 1. The Respondent has committed adultery and the petitioner finds it intolerable to live with the Respondent.
  2. 2. The Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent.
  3. 3. The Respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the divorce.
  4. 4. You have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a decree being granted.
  5. 5. You have lived apart for a continuous period of at least five years immediately before the start of the divorce.

What is family mediation?

A process that can be used to resolve issues arising as a result of separation or divorce/dissolution. A mediator will meet with you and the partner you are separating from together and will identify the issues you can’t agree on and help you to try and reach agreement.

What is a deed of separation?

A document that couples who are separating can enter into to record who is to have what and what their responsibilities are. It cannot be guaranteed to be legally binding, but if certain criteria are met it is likely to be upheld by the court in the event a dispute arises at a later date.

How to start a divorce?

The only way to start divorce proceedings is by completing a petition and filing it at court to be issued.

How to settle a family dispute?

There are various ways to settle a family dispute these are:

“Kitchen table” / DIY method – you can negotiate your own agreement. Even if you agree, it is important to take legal advice to make sure that you understand the legal implications of your agreement.

Counselling and Therapy – Counselling /Family Therapy  may be able to help address the underlying issues to assist you in resolving disputes. It is important to take legal advice to make sure that you understand the legal implications of any agreement reached.

Mediation – Mediators are trained to help resolve disputes. A mediator can help you try and reach an agreement. Mediators are neutral and are there to use their skills to help manage and facilitate discussions. It is important to take legal advice alongside mediation to make sure the legal implications of any agreement are fully understood.

Collaborative Process – Within this process you and the person you are in dispute with together with your legal representatives (who would have to be a qualified Collaborative Lawyers) would to sign an agreement stating that the matter will not be taken to Court and all shall endeavour to come to an agreement. The process takes the form of round-table meetings with everybody present, additional experts such as family consultants and financial advisers can also be present to help resolve matters. An agenda is drawn up prior to the meetings so that specific issues are dealt with at each meeting. The Collaborative Lawyers would be present within the meetings in order to give guidance, advice and direction. The Collaborative Lawyers would work together to ensure that the best outcome is achieved all round and it is one which will stand your family in good stead for the future.

Lawyer led negotiation – you can use a lawyer to negotiate a settlement on your behalf. The negotiation is largely based on letter and telephone communication between lawyers but can also be conducted by way of round-table discussion.

Arbitration – Arbitration has been developed to try and help resolve disputes more quickly, confidentially, cheaper and more flexible and less formal than if matters are taken through the Court system. An Arbitrator is appointed who will make a decision that will be final and binding. Solicitors can be instructed to help and support, advise and represent you throughout the process.

Court proceedings – In certain circumstances it can be beneficial to issue court proceedings and sometimes this can be the only option to settle disputes.

Who pays for the divorce petition?

Generally speaking the person applying for the divorce pays the court fee and their legal costs up front but in certain circumstance they can seek to recover those costs, or a contributions towards them, from the respondent to the divorce proceedings .It is best practice to negotiate and agree who will pay the costs from the outset.

Who pays for family mediation?

Generally speaking each person pays there own costs, but you can agree otherwise with regards to how the costs will be paid for. You maybe entitled to Legal Aid/Public funding to cover your costs if you are on a low income and have limited capital assets.

Who pays for court costs in child custody?

Generally speaking each party to the proceedings is liable to pay their own legal costs, however there are rare circumstances where one party can be ordered to pay the costs of the other if their conduct as been reprehensible or unreasonable. In deciding what order to make (if any) in relation to costs the court must have regard to all the circumstances including the conduct of both parties. Conduct can include: conduct before as well as during the proceedings, whether it was reasonable for a party to raise an issue/allegation, the manner in which a party has pursued or defended their case. The Court is required to give effect to the overriding objective, which includes dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues and save expense.

What is a divorce petition?

The application form for a divorce or dissolution of a civil partnership.

If you have another family law question, or would like to talk to us in more detail about any of the issues above, please get in touch on 01273 646900 or contact a member of our team.