Middletons provide the following Family Legal Services:

 

Children

Issues concerning children are sometimes difficult and stressful but if parents can reach arrangements for the family amicably the risk of harm to their children is significantly reduced.

Middletons Family Lawyers have extensive experience in dealing with disagreements which arise concerning children and we will work with our Clients to try to achieve a resolution by agreement. This may be achieved with the help of mediation or the use of collaborative law skills.

If we are unable to resolve issues in this way, the Court can be asked to assist in one of the following ways :-

  • Family Arrangements Order which will include say where a child should live, who a child is able to see, where and how often
  • Prohibited Steps Order – this stops someone doing something in relation to a child, such as removing a child from the Court’s jurisdiction to another country
  • Specific Issues Order – this allows the Court to determine a disagreement on a specific point, for example, the change of a child’s surname

The welfare of a child is the Court’s paramount consideration. In reaching a decision the Court will take into account a number of factors detailed in The Children Act 1989.

 

Cohabitation Issues

Six out of every ten couples who live together believe that they have the same protection as married couples if they split up. That is not the case. Common law marriage, common law wife/husband is a myth and the fact that many official bodies refer to people “living together as husband or wife” means that many people who live together are not aware that they do not have the same rights as a married couple when their relationships end.

Couples who intend to live together need to understand that the law in this area is complicated and there are things you need to be aware of to avoid problems if your relationship breaks down.

Planning to live together

The last thing on your mind when you move in together is what happens if you split up but planning on what you both would like to happen if things went wrong does not mean you are expecting your relationship to break down. It is just a sensible way to approach a huge commitment and will allow you to live with the security that should something happen to either of you, or you decide to split up, you are both in agreement on how to sort out your finances and the arrangements for any children you have.

Things to think about before you begin living with someone

If you move into a property belonging to your boy/girlfriend, you will not acquire a share in that property merely by living in it for a period of time, even if you do pay the food bills or the utility bills. However much in love you are, you should think about and discuss the “what ifs?” that can arise when something goes wrong in a relationship and think about what you would do in those circumstances.

If you are planning to buy a property jointly with your partner, make sure you discuss and agree what will happen if one of you dies or if you split up, before you exchange contracts for the purchase of a property.  In particular, think about the points below under the heading “Declaration of Trust”

Planning for your future

It is very important to understand that living with someone does not have the same legal consequences as being married. The situation is legally much more complicated and uncertain. So it is worth considering the options below and speaking to a lawyer about your individual situation.

Declaration of Trust

If you are going to buy a property jointly with someone else, you should always see a lawyer and ask them to draw up a document called a Declaration of Trust. This declaration sets out your answers to the below questions in clear, legal language:

  • In whose name is the property to be registered?
  • Do you want to own the property in equal shares or in unequal shares?
  • What happens if one of you puts in more money than the other? How will that be dealt with if one of you dies or you split up and the property has to be sold?
  • If you split up and one of you moves out before the property is sold, who pays the mortgage and other bills pending the sale?
  • What if one of you wants to “buy out” the other’s share?  How will the property be valued and how will the valuer be chosen?  How long should the person who wants to stay in the property be given to raise the necessary funds?
  • Assuming that you do not split up and everything goes well, how will mortgage payments and other bills be shared?
  • What happens if you have children and one of you stops working to look after them?  What financial arrangements will you put in place?
  • What if a relative provides money towards a deposit – how is that to be repaid?

If you decide to get a cohabitation agreement, you would not need a separate Declaration of Trust as these points can be covered in the cohabitation agreement.

Cohabitation agreement

You can ask us to draw up a cohabitation agreement (also known as a living together agreement), which sets out what would happen to any property, money and possessions if you split up. A cohabitation agreement can cover, for example, issues such as who pays which bills, the operation of joint bank accounts, arrangements for support of a partner who gives up work to have children, arrangements for children in the event that the relationship breaks down, life insurance, gifts made to the couple, credit cards, cars, credit agreements and pretty much anything else which affects the financial and other dealings between a couple.

Warning – You can find DIY cohabitation agreements on the internet. However, be aware that for it to be used in court, the language needs to be legally correct and you have to show that you both took independent legal advice before signing it.

Your rights when living together

If you are living with someone without being married you might think you have similar rights to married couples if the relationship breaks down or one of you dies. You would be wrong. There is no such thing as a common law marriage and cohabitants have very few rights that arise out of the relationship. You can’t, for example, claim maintenance from your partner (other than child maintenance if applicable) even if you have lived together for many years.

If you live in a property in your partner’s name

You don’t have an automatic right to any share in the property. The law says that the property belongs to the person in whose name it is registered.

In a nutshell this means that you don’t have any say in whether or not the property is sold and, if you split up, you would not be entitled to any money from the property, nor would you be entitled to stay in the property (unless you have children, see below).

To have a claim to any part of the property, even if you contributed financially, you would have to show that you both agreed that you should have some rights to it (known legally as a common intention).  This is a complicated area of trust law and may often involve going to court, which can be costly. You are strongly advised to seek legal advice if you are in this position.

The strength of your case will depend on what evidence you have but it can be very difficult, costly and time consuming to establish such a right.

If you live in a property that is held in joint names with your partner

Unless it is clear from an agreement or in the title documents of the property, if a property is in joint names the law assumes you have equal shares.

If you and your partner have children together

The father will only automatically have parental responsibility if he registered as the father on the birth certificate after 1 December 2003. Otherwise he needs the formal written agreement of the mother or an order from the court

If one of you wishes to move to a different country with the children, consent of the other parent (assuming they have parental responsibility) or permission of the court will first be required.

You may have financial claims on behalf of your children. You and the children might be able to stay in the house whilst they are dependent, regardless of who owns the property. If there are sufficient capital resources available, the court can make orders for one parent to provide a home for the other whilst the children are growing up. The standard terms of this sort of arrangement will be that once the children have ceased to be dependent (usually once they have finished full-time education, which can include university), the capital is returned to the parent who provided it. Other lump sum payments can be awarded for specific capital needs (such as furnishing a home or buying a car).

If your partner dies and has not made a will

You are not entitled to any part of their estate unless you jointly and equally own the property, in which case it would pass to you automatically. Otherwise your partner’s estate will go to their next of kin. This could be a spouse if they have never divorced. If your partner has children, their spouse would get the first £250,000, personal possessions and income from half the rest. The remaining half would go to their children who would then get the other half when the spouse dies. If your partner is divorced or has never been married, all their property would then go to their children or other relatives if there are no children, meaning you could lose your home.

If you own your property as “beneficial tenants in common” your partner’s share will go to his next of kin as above. You might have to sell the property to pay them their share or raise money to buy them out.

If you are left with nothing you would have to make a claim against your partner’s estate on the basis that you lived together for two years prior to the date of death or that you were wholly or partly dependent on them. This can be difficult, costly and time consuming.

This is why it’s really important for you both to make a will.

The Family Law team at Middletons has experience in drafting and negotiating cohabitation Agreements and The Private Client team has experience in drafting Wills and Declarations of Trust.

Collaborative Agreements

Collaborative practice is an alternative way of resolving family law matters including divorce, separation and parenting disputes. It recognises that one size does not fit all and allows for creative and flexible solutions to the legal, emotional and practical problems of a family breakdown.

For the lawyer, collaborative practice means a different way of working. At its simplest, the process is a four way deal between the two Clients and their lawyers in a series of roundtable meetings. Other professionals, including Independent Financial Advisers and Family Therapists, can also be brought into negotiations when needed to provide a holistic service for separating couples.

In the collaborative process, the couple themselves set the agenda – their idea of a good outcome may be quite different from that of a lawyer or a Judge who does not know the family and what makes it tick. Many couples feel that they do not want to run the risk of a Court based solution which does not tie in with their own sense of what is fair. The collaborative approach offers them the chance to put into action the belief that they themselves are the best judge of what is fair for their family.

As the couple and their lawyers make an agreement not to go to Court, there is no fallback option of starting Court proceedings if agreement is not reached.  If they later decide that they want to use the courts, they will have to start again with a new legal team. Because of this, both Clients and their lawyers make a huge investment in arriving at a negotiated outcome which increases the chances of success.

Collaborative lawyers have a relationship with their Clients in which the Client sets the agenda. Clients find that the collaborative approach helps reduce stress by allowing them to do things at their own pace and remain in control of a process which is often seen as alien and intimidating.

Charles Goodbody is a trained Collaborative Family Lawyer and he will encourage Clients to consider collaborative practice as a way of resolving family law matters as well as giving consideration to the traditional Court based route or Family Mediation.

Divorce and Separation

Divorce:

To obtain a divorce you need to present a Petition to the Court after you have been married for one year. The person presenting the Petition must show that their marriage has irretrievably broken down. This irretrievable breakdown has to be supported by one of the following five reasons:-

  • Adultery
  • Unreasonable behaviour
  • Desertion for two years
  • Separation for two years (with the other parties consent)
  • Separation for five years (the consent of the other party is not necessary)

The Petitioner files the Petition with other relevant documents together with a Court fee unless Fee Exemption is applicable.

The Court sends the Petition to the other party who then files an Acknowledgement of Service. If the District Judge is satisfied with the documentation, a Decree Nisi will be granted on application and six weeks later a Decree Absolute can be granted. It is that document which finalises the divorce and should only be applied for once financial issues have been resolved. This procedure has been in place since the Matrimonial Causes Act was past in 1973.

Judicial Separation:

This is dealt with in the same way as divorce proceedings, but at the end of the procedure the couple will not be divorced and there is no Decree Absolute. Within the judicial separation process the Court can deal with financial issues and any other orders that are relevant.

Separation:

There is no formal procedure that a couple have to go through in order to separate. If there is a division of assets on separation it is advisable for parties to enter into a formal Separation Deed to record the agreement reached at the time of the separation.

Domestic Violence & Injunctions:

A Domestic Violence Injunction can be obtained during divorce proceedings or separately.

There are two types of Domestic Violence Injunction :-

  •     Non-Molestation Orders
  •     Occupation Orders

Non-Molestation Orders:

These Orders can be made to protect adults or children from harassment, intimidation or threats of violence from an associated person or someone else instructed by that person to do one or all of those things.

Occupation Orders:

An Occupation Order is an Injunction which relates to property and can determine who is allowed to continue to live in a property in the short term after there has been domestic violence. The Order can exclude a person who owns or has an interest in the property from either part of it or indeed the whole of the property. The Order can also enable a person who has been wrongly excluded or evicted from the property to go back to it.

Property Injunctions:

If you are involved in divorce proceedings and become concerned that your spouse is trying to dispose of valuable property or money to prevent you making a claim against that asset, an emergency application can be made to the Court to prevent the disposal.

Middletons Family Law team has experience in all types of applications involving the orders referred to above.

Financial Resolutions

The Matrimonial Causes Act 1973 as amended sets out a list of factors which a Court will take into account when dealing with the financial issues arising on the break down of a marriage or registered civil partnership. Each case is decided on its own facts. The Middletons Family Law team has experience in dealing with the resolution of financial disputes arising on the breakdown of a relationship and have specific expertise with regard to Armed Forces Pensions and other state funded pension schemes.

It is essential that you and your spouse give your lawyers full and frank disclosure of all your capital income, pensions and other assets and it is only once all documents are disclosed that the best advice can be given with regard to the division of assets, the sharing of pensions and the provision of maintenance.  It is hoped that a resolution in each case agreement will be reached by negotiation, mediation or the collaborative route which will allow a Consent Order to be submitted to the Court to reflect the terms agreed.

Inheritance & Wills

Inheritance:

Middletons Family Law and Dispute Resolution teams have experience in dealing with Inheritance Act claims, both on behalf of Executors or hopeful beneficiaries.

Wills:

Marriage will render a Will completely null and void unless it has been made in contemplation of the marriage. Divorce will affect the terms of a Will substantially. It is therefore important to consider making a Will at various stages in your life. Second marriages invite different considerations.

Middletons Family Law team work closely with lawyers in the Wills and Probate department to make sure that you receive the best advice in connection with the preparation of a Will, taking into account the needs and requirements of your family as well as the burden of Inheritance Tax.

All Clients are encouraged to make a Will.

Pre-marriage Agreements

Pre-marriage Agreements are becoming increasingly common and English Courts are now recognising the importance of such agreements. Whilst they are not strictly enforceable by Courts in England, they are now being upheld.

Such Agreements are often important for those proposing a second marriage where they have substantial assets and children of an earlier marriage or relationship. In such circumstances the consequences of a possible breakdown of the relationship should be looked at commercially as well as practically by both parties.

Middletons Family Law team has experience in negotiating and drafting such Agreements.

 

 

 

Charles Goodbody Partner Head of Family and Private Client Warminster

Charles Goodbody
Partner - Head of family and private client

Please Contact
cgoodbody@middletonssolicitors.co.uk

01985 214444

Dennis McNamara Family Executive Andover

Dennis Mcnamara
Family Executive

Please Contact
dmcnamara@middletonssolicitors.co.uk

01264 333336

Middletons has a reputation for excellence with offices based in Warminster, Wiltshire, Andover and Stockbridge, Hampshire. With more than 50 years experience across all areas of corporate and individual law, our team of lawyers provides the highest standard of advice and service.

Speak to one of the team by calling 01985 214444 or email enquiries@middletonssolicitors.co.uk or Make an enquiry

Read the latest from our blog

Your qualified and trusted partner

Investors in People Accredited Middletons SolicitorsConveyancing Quality Accredited Middletons Solicitors

What people say

Everything went very smoothly with the move and I wanted to thank you very much for your help, I have found working with you very easy and you always got back to me straight away whenever I have had questions. Ian highly recommended you and I can see why. Thanks again.

Samantha Moxham, Westbury

Middletons Solicitors uses cookies to ensure that we give you the best experience on our website. If you continue we assume that you consent to receive all cookies on this website.