Family Matters - Legal Services

a) Mediation
Mediation helps couples who are in a relationship that is breaking down. It involves a trained mediator who will raise topics that are considered to be necessary to resolve the issues between the couple. It is important to distinguish Mediation from Counselling – Mediation is a process that
assists in sorting out issues that have arisen on a relationship breakdown and is not there to assist the parties in resolving their differences with a view to a reconciliation. This process can be used to assist couples both with financial issues and problems surrounding the bringing up of children of the relationship. There will be a series of meetings rather than matters being resolved in one meeting. It is advisable to seek legal advice in conjunction with Mediation – before, during and after.

If an Agreement is reached then the Mediator will usually draw up a document known as a Memorandum of Understanding – this is usually
taken to your solicitor for advice and, if appropriate, a formal and binding document is drawn up.

Sue McArthur is a trained family mediator. Please call her on 0191 213 1010 to discuss how mediation could help you.

b) Collaborative
Collaborative Family Law is a way of sorting out issues on relationship breakdown without the need to attend court, and is often more cost  effective than a contested court based approach. It is a different type of process as it involves a ‘team approach’. The Team of 2 lawyers and 2 clients (and often other professionals if necessary) work together to:

- Find solutions that are fair to both parties
- Establish total co operation between the parties
- Take away the idea of ‘the best deal for me’ mentality

As it is a specialised process only those trained as Collaborative lawyers can practise in this way. The system works through a series of Four Way Meetings which the Team attends. At the first meeting the Team signs a document called a Participation Agreement which binds them all to the process. Each meeting will usually have an Agenda which the Team will have agreed in advance. It is a very flexible process and can be adapted to the needs of each couple/family. There is no unnecessary paperwork, no court preparation or attendance, and little correspondence between the lawyers. Whilst there will be no need to attend court, ultimately, when in a family breakdown situation, court documents will need to be prepared and lodged at court, in the usual way, so that a final and binding agreement is reached between the couple.

For further information on this process www.resolution.org.uk

Sue McArthur who heads up our Family Department is a trained Collaborative Lawyer. If you think that this process would assist you please contact Sue to discuss on 0191 213 1010.

c) Helping Children
When considering breaking up with your partner or if you are actually going through a break up it is helpful to consider the following:

- Always reassure your children and give them information in a way that they can understand
- Encourage the children to talk and ask questions
- Reassure the children that both you and your partner will be ok
- Encourage your children to have a good relationship with your partner
- Encourage children to remain in contact with both sets of grandparents
- Ask for help from grandparents and allow the children to speak to their grandparents in confidence
- Don’t criticise or undermine the other parent whatever you feel about them
- Don’t involve the children in ‘the battles’
- Don’t use older children as an emotional crutch or involve them in discussions of your emotions
- Don’t assume that because children don’t ask that they are unaware of what is going on
- Don’t ignore any questions from the children – they need to know in an age appropriate way

Parenting Workshops are an ideal place to consider your options regarding your children. There are such workshops called Parenting After Parting which are run locally in Mea House in Newcastle Upon Tyne City Centre. These are run by Action For Children on behalf of Resolution.

Details of what you can expect at these workshops can be found in the Parenting Pages of www.resolution.org.uk

For further help and advice:

- www.divorceandchildren.com

The breakdown of a personal relationship is distressing and difficult for all involved. The decision is rarely a mutual one and the emotional side has to be dealt with as well as the more formal or legal aspects. Don’t make a decision in a hurry and do consider how your decision will be imparted to everyone else, including your children. Counselling can often assist in these circumstances for both parties:

- Can you both see the overall picture and the cause of the difficulties
- Are there ways to manage or reduce the conflict or save the relationship
- Are you both able to see life as 2 separate people and what problems will there be running the family as 2 separate units if you have children

For further information contact:
- relate.org.uk
- bacp.co.uk
- newcastlefis.org.uk – Ear 4 U service for children 5 to 18 years

a) - Divorce
There is one ground for divorce – Irretrievable Breakdown of Marriage. The irretrievable breakdown is evidenced by one of five facts:

- Adultery
- Unreasonable Behaviour
- Desertion for 2 years
- Separation for 2 years where the other party consents
- Separation for 5 years

Even if one of the above is present a divorce is not available in the first 12 months of a marriage. The person starting the divorce is called the Petitioner and the other party the Respondent. A divorce is started by way of Petition which is issued by the court. If there are children other documents also have to be filed at the same time. This is served on the other party and they have to file an Acknowledgement of Service at court confirming if they are to defend the Divorce. If the proceedings are not defended then the divorce will usually take about 6 months to complete.

An application is made for Decree Nisi and then 6 weeks and 1 day later an application can be made for Decree Absolute. Often if financial matters have not been resolved the application for Decree Absolute will be delayed until they are. It often doesn’t matter who divorces who but it can have important consequences in certain situations.

- If a divorce is finalised before finances and for example the Petitioner with the pension dies this can have a detrimental effect on the Respondent
- The Respondent can be asked to pay the costs of the divorce usually on an Adultery or Unreasonable Behaviour Petition which can be up to £1,000 including court fees
- If the parties can choose where to get divorced because of international connections then not commencing proceedings in England and Wales may mean that all matters in relation to the family have to be dealt with elsewhere.

If you wish to discuss Divorce then please do not hesitate to contact us on 0191 213 1010.

b) - Divorce Alternatives

Separation Agreements
It may be better for you as a couple to live apart rather than together and not resolve any financial issues between you but keep them as they are. However you would have to consider tax implications and perhaps have to take advice. You may also have to consider what would happen if you died, particularly in relation to pensions. However if you wish to separate and sort out financial matters without going through a divorce then you can seek advice on having a Separation Agreement drawn up.

These documents can help you set out in a formal way such things as whether you plan to divorce after a period of separation; what the arrangements are for the children; what is going to happen to the savings and the home or other property; what financial support is going to be given. These can be set aside by a court on a later divorce, but rarely are if both of you have had independent legal advice, each party is fully aware of the other party’s financial circumstances and there is no fraud or misrepresentation by one party trying to hide assets or debts.

Judicial Separation
This involves a court process and is like a divorce but the marriage is not brought to an end. The court can make financial orders. This is often used in situations where for religious reasons parties do not wish to divorce, or where an agreement can’t be reached because one party is refusing to provide financial information to draw up a Separation Agreement. Parties need to prove the same facts to support a Judicial Separation Petition as they would a Divorce and therefore the costs consequences are similar. The costs would therefore be duplicated if a divorce was sought at a later stage. Judicial Separation proceedings can be amended to become a Divorce Petition and therefore this can be dangerous to embark upon if this is not what you as the Respondent wish.

Other options
There are other options available for maintenance to be paid to a spouse without having to issue a Divorce under the Matrimonial Causes Act S27. Children’s Maintenance can be obtained by an application to the Child Support Agency (CSA) which is now called the Child Maintenance Enforcement Commission (CMEC). This can be a time consuming and frustrating process and often it is better to try and reach an agreement in this regard.

If you wish to discuss any of the above matters please do not hesitate to contact us on 0191 213 1010.

c) - Living Together
Despite many people believing this to be the case there is no such thing as a common law marriage. Couples who simply live together have no legal rights against them or have a responsibility to maintain them. If there is a child of the relationship then there is an obligation to support the child. There can potentially be a right to a share in a property but that is not automatic as it would be either in a marriage or a civil partnership. Please see the Finances Section of this website for further information on property rights. Please contact us for further information or help if you are in this situation on 0191 213 1010.

d) - Relationship Breakdown
If you have been living together there is no obligation on either party to support the other by way of maintenance when you split up. You can still agree financial matters between you in a formal agreement without the need to go to court to resolve financial or property issues.

Separation Agreements
It may be better for you as a couple to live apart rather than together and not resolve any financial issues between you but keep them as they are. However you would have to consider tax implications and perhaps have to take advice. You may also have to consider what would happen if you died, particularly in relation to pensions. You may need to consider making a will or nominating someone to benefit from your Pension. You will need to formally discuss this with your Pension Trustees who run the pension fund for you. However if you wish to separate and sort out financial matters then you can seek advice on having a Separation Agreement drawn up.

These documents can help you set out in a formal way such things as what the arrangements are for the children; what is going to happen to the savings and the home or other property; what financial support is going to be given. These can be set aside by a court, but rarely are if both of you have had independent legal advice, each party is fully aware of the other party’s financial circumstances and there is no fraud or misrepresentation by one party trying to hide assets or debts, and they clearly show the intention of the parties.

Other Options
Children’s Maintenance can be obtained by an application to the Child Support Agency (CSA) which is now called the Child Maintenance Enforcement Commission (CMEC). This can be a time consuming and frustrating process and often it is better to try and reach an agreement in this regard.

Court Proceedings
Please see the relevant section in this website for information on court proceedings and options available to you when you split up after living together. If you wish to discuss any of the above matters please do not hesitate to contact us on 0191 213 1010.

e) - Civil Partnership
A civil partnership is a relationship between 2 people of the same sex which has very similar legal rights to a heterosexual marriage. In order to be a civil partnership the same sex relationship must be formed by way of a formal Civil Ceremony. Otherwise the parties are simply living together or cohabiting and would not have the same rights. There is no provision for a Religious recognition of such a Partnership. If a civil partnership breaks down and one party desires to bring the Partnership to an end then the process is known as Dissolution.

Dissolution
A Civil Partnership can be brought to an end if there is an irretrievable breakdown of the relationship.

This is evidenced by one of 4 facts:

- Unreasonable Behaviour
- 2 years desertion
- 2 years separation where the other party consents
- 5 years separation

Even if one of the above is present a Dissolution is not available in the first 12 months of a marriage. The person starting the Dissolution is called the Petitioner and the other party the Respondent. A Dissolution is started by way of Petition which is issued by the court. If there are children other documents also have to be filed at the same time.

This is served on the other party and they have to file an Acknowledgement of Service at court confirming if they are to defend the Divorce. If the proceedings are not defended then the Dissolution will usually take about 6 months to complete. An application is made for a Conditional Order and then 6 weeks and 1 day later an application can be made for a Final Order. Often if financial matters have not been resolved the application for Final Order will be delayed until they are. It often doesn’t matter who brings the suit but it can have important consequences in certain situations:

- If a dissolution is finalised before finances and for example the Petitioner with the pension dies this can have a detrimental effect on the Respondent
- The Respondent can be asked to pay the costs of the dissolution usually on an Unreasonable Behaviour Petition which can be up to £1,000 including court fees

If you wish to discuss your relationship and Dissolution then please contact us on 0191 213 1010.

f) - Dissolution Alternatives

Separation Agreements
It may be better for you as a couple to live apart rather than together and not resolve any financial issues between you but keep them as they are. However you would have to consider tax implications and perhaps have to take advice. You may also have to consider what would happen if you died, particularly in relation to pensions. However if you wish to separate and sort out financial matters without going through a divorce then you can seek advice on having a Separation Agreement drawn up. These documents can help you set out in a formal document such things as whether you plan to divorce after a period of separation; what the arrangements are for the children; what is going to happen to the savings and the home or other property; what financial support is going to be given.

These can be set aside by a court on a later dissolution, but rarely are if both of you have had independent legal advice, each party is fully aware of the other party’s financial circumstances and there is no fraud or misrepresentation by one party trying to hide assets or debts.

Other Options
Children’s Maintenance can be obtained by an application to the Child Support Agency (CSA) which is now called the Child Maintenance Enforcement Commission (CMEC). This can be a time consuming and frustrating process and often it is better to try and reach an agreement in this regard.

If you wish to discuss any of the above matters please do not hesitate to contact us on 0191 213 1010.

a) Private Law - Parents and Other Carers
When there are issues surrounding Children and these issues cannot be agreed then the court has to make decisions in accordance with the Children Act 1989.  The Act deals both with actions taken by parents or other carers and Social Services. The Act usually deals with children under the age of 16 years.

When a court makes a decision it has to make one that it considers to be in the best interests of that child and the paramount consideration is the child’s Welfare. An order will only be made if the court believes that this is better for the child than making no order at all. The list of things that have to be taken into account by the court is commonly called The Welfare Checklist.

- The ascertainable wishes and feelings of the child concerned in the light of his or her age and understanding;
- The child’s physical, emotional and educational needs;
- The likely effect on them of any change in circumstances;
- Age, sex and background;
- Any harm that they have suffered or are at risk of suffering;
 - How capable each parent or other relevant person is of meeting the child’s needs

An application is made on a standard form giving background details. The court will then fix a hearing date for the parties to come to court to decide the way forward. The Judge will make orders about how the case is to proceed and may ask other Professionals to prepare reports to assist the Judge in coming to a decision as to the future of the child. If necessary the Judge can make interim orders to regulate the arrangements for the child until a final decision is made. The child or children involved should not need to attend court. All other parties have to attend court.

Residence and Contact
There are many types of orders that the court can make in relation to children but the main ones for parents or other carers to consider are:

- A Residence Order – with whom the child is to live;
- A Contact Order – with whom the child has contact/visits/has overnight stays;
- A Prohibited Steps Order – prevents the exercise of PR – e.g. not to remove from one parent;
- A Specific Issue Order – makes a decision in relation to an aspect of PR – e.g. going on holiday abroad;
- A Parental Responsibility Order – rights, duties, powers, responsibilities and authority in relation to a child (PR).

Where a child’s parents were married at the time of the child’s birth then each parent has PR. A step parent can acquire PR by adoption or by way of Residence Order. Where the parents are not married and the child was born before 1 December 2003 then only the mother has PR. Where the parents are not married and the child is born after 1 December 2003 and the father is named on the birth certificate then both parents have PR.

PR can be granted by:

- A father subsequently marrying a mother
- A mother entering into a Parental Responsibility Agreement with a father
- A person obtaining a Residence Order
- A person obtaining a Parental Responsibility Order
- Being appointed as a child’s Guardian.

Certain decisions in relation to a child can only be taken in respect of a child by someone who has PR. Where more than one person has PR each can exercise PR independently. If they cannot agree the court can intervene. Usually consent is needed from someone with PR to change a child’s surname or to take a child out of the country.

b) Public Law - Care Proceedings by the Local Authority
Social services will become involved in your family if they have concerns about the welfare of your child. If social services receive information to cause concern, they have a duty to investigate those concerns and take whatever action is appropriate.

If there are serious concerns, Social services could hold a child protection conference and invite you and the professionals involved in your child’s life. At this meeting, usually plans would be put in place to ensure that your child remains safe. If concerns are sufficiently serious, social services can apply to court for a care order. The court will only make a care order if it is satisfied that your child is suffering or likely to suffer significant harm and that the harm or likelihood of harm is as a result of your care. The court can also make interim care orders for an initial period of up to 8 weeks and thereafter for 4 week periods.

You could agree to your child being accommodated by the Local Authority and if this agreement is accepted by the Local Authority then the court would not usually make an interim care order. Once a case is at court, there will be numerous hearings to deal with various issues. You could be assessed by a psychiatrist or a psychologist. The court will want to know whether or not your child can safely be returned to you. You should be able to have contact with your child whilst the assessments are being undertaken. This would usually be supervised by someone from social services. Your child will be represented by a Guardian who is appointed by the court. The Guardian will discuss matters with you and assess your parenting, and will make a final recommendation to the court. Once all of the assessments have been completed, there will be a final hearing where the social worker, the guardian and the parents will give evidence and the Judge will make a final decision about where your child should live.

After a final hearing, your child could be returned to you. Or if the court is concerned that you would not be able to care for the child, your child could be placed for adoption. Sometimes, children are placed with other family members who would be able to care for them. It is very important that you have good legal advice at every stage of this process, as it is vitally important that your case is presented well at court to give you the best opportunity of a positive outcome. If you would like to discuss any concerns that you have please call the family department on 0191 213 1010.

a) Orders Available – Married
The court will have regard to all the circumstances of each case with first consideration being given to the needs of any child or children under 18. The considerations are:

- Income, earning capacity, property and other financial resources now or in the foreseeable future;
- Needs, obligations and responsibilities;
- Standard of living prior to the breakdown of the relationship;
- Ages of the parties;
- Length of the Marriage;
- Any disability;
- Contributions;
- Conduct if it would be inequitable to disregard it;
- The value of any benefit which one party will lose the chance of acquiring due to the dissolution

In relation to children the court will need to take into account the following additional matters:

- Children’s needs;
- The child’s income, earning capacity and any other financial resources;
- Any disability
- The way in which the child was being or is or was expected to be educated or trained.

If you require any assistance in relation to financial matters that have arisen in relation to the breakdown of your marriage then please contact us on 0191 213 1010.

b) Orders Available – Dissolution
The court will have regard to all the circumstances of each case with first consideration being given to the needs of any child or children under 18. The considerations are:

- Income, earning capacity, property and other financial resources now or in the foreseeable future;
- Needs, obligations and responsibilities;
- Standard of living prior to the breakdown of the relationship;
- Ages of the parties;
- Length of the Partnership;
- Any disability;
- Contributions;
- Conduct if it would be inequitable to disregard it;
- The value of any benefit which one party will lose the chance of acquiring due to the dissolution.

In relation to children the court will need to take into account the following additional matters:

- Children’s needs;
- The child’s income, earning capacity and any other financial resources;
- Any disability
- The way in which the child was being or is or was expected to be educated or trained.

If you require any assistance in relation to financial matters that have arisen on the dissolution of your Civil Partnership then please contact us on 0191 213 1010

c) Orders Available – Splitting Up after Living Together
If you have a child together or have made contributions to a property you may have the ability to go to court to seek a remedy if you cannot reach agreement with your partner. Unlike married couples or those in a Civil Partnership the applicable remedies are spread over many different types of law and can be complicated. The law applicable to you may be incorporated within the following statutes:

- Trusts of Land Act and Appointment of Trustees Act 1996
- Children Act 1989 Schedule 1
- Child Support Act 1991

There are also other applicable legal concepts or doctrines such as Trusts and Estoppel which may also apply. The application must be made under the Civil Procedure Rules and are not Family Proceedings. The hearings are far more formal and there are likely to be costs implications that do not arise in Financial proceedings relating to Divorce or Dissolution.

The main remedies that would be sought are:

- A declaration as to the ownership of the property and the percentage share of each party
- A transfer of a property
- A sale of a property

If you require any assistance in relation to financial matters that have arisen on the breakdown of your relationship then please contact us on 0191 213 1010.

An injunction is an order of the court that requires someone to do or not do something. Usually an Injunction will be available under the following Acts;

- Family Law Act 1996 Part IV
- Protection from Harassment Act 1997

The Act will be chosen according to the person from whom you require protection. A Non Molestation Order is aimed at prevention of use of or threats of violence against you or a child or intimidation, harassment or being pestered. An Occupation Order is aimed at regulating the occupation of a house and can also restrict someone from entering the surrounding area.

Under new legislation a breach of a non molestation order can be a criminal offence. Powers of Arrest can be attached to an Occupation Order. Injunctions are normally for a specified period of time but can be renewed or can be made until further order. There is no limit on the length of time that a non molestation injunction can be extended. Occupation orders can only be extended beyond 12 months if you have a legal right to stay in the home.

You may be eligible for public funding (legal aid) if you are in receipt of benefits or are on a low income. If you are in immediate danger then an application can be made without notice to the other person and the court will consider the application on an emergency basis. However if the order is granted you will have to return to court for a full hearing once the order has been served on the other person so they have a chance to put their side of the story to the court.  You will need to swear a statement or affidavit setting out the reasons for the Injunction. Sometimes the court will not make an Injunction Order but will instead accept an Undertaking from the other person. However this would not normally be accepted where violence has been used or threatened. You do not have to accept an Undertaking.

A Power of Arrest cannot be attached to an Undertaking. If a Power of Arrest is attached to an order then it needs to be lodged at the Police Station. The police can then arrest immediately if the order is broken. A breach of an non molestation injunction will automatically be a criminal offence. A Power of Arrest is attached to an Occupation Order. If there is a breach then the police should arrest the person and bring them back to court within 24 hours. If there is no power of arrest then you have to go back to court yourself and seek to obtain an arrest warrant as the person is in contempt of court if they have breached the order made. If successful a Power of Arrest is then usually added to the original order.

Family Law Act 1996 Part IV
In order to apply under this Act you must be an associated person:

- Are or have been married to each other;
- Are or have been in a Civil Partnership with each other;
- Are or have been cohabiting;
- Live or have lived in the same household;
- Are relatives;
- Formally agreed to marry each other – even if that agreement has now ended;
- Have a child together;
- Not living together but are in an intimate relationship of significant duration;
- You are both involved in the same family proceedings – divorce, child contact etc

Protection from Harassment Act 1997 and other remedies
If you are not eligible for relief under the Family Law Act 1996:

- If you are being continually harassed, threatened or pestered or stalked you can apply under Protection from Harassment Act for an injunction;
- A court can attach a restraining order when Criminal Proceedings have been taken even if not upheld if the court believes that you are at risk;
- If you are applying for an Occupation Order you have to have a legal right to occupy the home.

a) Divorce and Dissolution
Each party has a duty to the court and each other to be completely open and honest about financial matters. There is a standard form used for this in court proceedings called a Form E. You will be asked to complete this initially on your own and then it will be finalised by your solicitor after discussion with you. The Form E and all supporting documents has to be exchanged with your partner 5 weeks prior to the First Appointment (the first court hearing). After exchange further documents are prepared by your solicitor which will often include a Questionnaire – asking questions that have arisen as a result of the Form E from your partner – you should consider what questions you would like to ask which have arisen as a result of you reading the Form E – your solicitor will inform you if these are relevant or allowable.

The First Appointment
Both you and your partner and your legal representatives will be required to attend. If you are unable to attend the Judge will have to formally excuse your attendance. The Judge will consider the Forms E and the other documents and will usually make Directions such as:

- Whether all the questions have to be answered,and if so, by what date;
- Whether any assets such as your home or a business need to be valued, and if so, how;
- When the matter needs to come back to court for settlement options to be discussed or issues narrowed.

The FDR (Financial Dispute Resolution) Appointment
All parties must attend. Absences will not be permitted as the parties need to be there to discuss all options and issues before the court. Parties are directed to attend court at least one hour before the court time specified on the order made at the First Appointment. The Judge is involved to assist the parties in reaching agreement and commenting on proposals put forward as to whether they are suitable or not. If an impasse is reached the Judge can often give an indication as to what he or she may think is an appropriate solution to try and assist the parties to move forward.

As all settlement offers will have been lodged at court 7 days prior to the FDR the Judge will be aware of the parties’ positions. If settlement is reached then a formal consent order will be drawn up. If no settlement is reached then the matter will be listed for a final hearing. It may be necessary at that stage to make further directions such as the filing of narrative statements if there is a factual dispute as to a particular matter. The Judge who presided over the FDR will not be allowed to hear the matter if it proceeds to final hearing.

The Final Hearing
The Judge will have Bundles of Documents to refer to which have been prepared and agreed by both sets of legal representatives. Both parties also have to have given the Judge a Statement of the orders that they wish the court to make. Both parties have to give evidence and be cross examined by their partner’s legal representative. Open offers have to be lodged at court prior to the final hearing and the Judge will have sight of those. Once the Judge has heard all the evidence – which can take several hours or days depending on the complexity of the case, and can include expert witnesses as well as the parties – he or she will then make a detailed decision as to the division of the assets. The Judge has to give reasons for his or her decision – in case one party wishes to appeal.

b) Splitting Up after Living Together
If you have a child together or have made contributions to a property you may have the ability to go to court to seek a remedy if you cannot reach agreement with your partner. Unlike married couples or those in a Civil Partnership the applicable remedies are spread over many different types of law and can be complicated. The law applicable to you may be incorporated within the following statutes:

- Trusts of Land Act and Appointment of Trustees Act 1996
- Children Act 1989 Schedule 1
- Child Support Act 1991

There are also other applicable legal concepts or doctrines such as Trusts and Estoppel which may also apply. The application must be made under the Civil Procedure Rules and are not Family Proceedings. The hearings are far more formal and there are likely to be costs implications that do not arise in Financial proceedings relating to Divorce or Dissolution. The main remedies that would be sought are:

- A declaration as to the ownership of the property and the percentage share of each party
- A transfer of a property
- A sale of a property

If you require any assistance in relation to financial matters that have arisen on the breakdown of your relationship then please contact us on 0191 213 1010.