Q. My partner and I are splitting after 11 years together. She has asked for child maintenance – how is the amount settled upon? What if I think it's too much and want to contest it?
Working out the appropriate level of child maintenance to pay is usually relatively straight forward as it is formulaic and regulated by the Child Maintenance Service. You can use their online calculator at www.gov.uk/calculate-your-child-maintenance to ascertain whether the level of maintenance sought by your partner is reasonable. If you partner seeks more than the figure as calculated by the child maintenance service, it is a matter for you whether you agree to an enhanced rate. You may choose to do so if your circumstances allow it but that would be your gift, not a legal obligation.
If you do not agree with the level of maintenance as calculated by the child maintenance service and the agency is formally instructed to pursue you for payments, you would need to speak to the office managing your case. They will have written to you formally and should have provided you with a reference number and contact number. Alternatively, contact numbers can be found on the agency’s website at www.gov.uk/child-maintenance/contact.
If in doubt, speak to a solicitor and try and reach a sensible agreement with your partner for the benefit of your child. Despite your separation, you will still need to work together as parents to raise your child for many years to come. The more amiable you can keep the relationship, the better for all.
Q. I am divorcing my husband of 27 years. My lawyer has drafted a document which has tried to achieve a fair division of our assets. My estranged husband is arguing it and saying it's not fair because he went to work and I stayed at home to look after the children. What are my options? How can I show him that I am entitled to my share?
You have been married a long time and have children together. Both of your contributions to your marriage, in the main, will be considered equal by the courts. Your contribution as a housewife and mother is as important as your husband's financial contribution unless he can prove that his contribution has been so unique, special and/or significant that extra weight should be given to it; for example, Ryan Giggs is currently (April 2017) arguing "special contribution" within his divorce to try and shift the division of assets in his favor as a result of his hugely successful football career. If not, it is likely that the court will expect an equal and fair division of your assets to ensure you both can move on independently of the other, and to ensure equality between you.
If it is not possible to demonstrate to your estranged husband that your proposal for the division of your assets is fair and reasonable, ask your solicitor to invite him and his lawyer to a round table meeting so that you can both explain your positions to the other against the backdrop of legal advice and guidance. If this does not work, rather than issue court proceedings given how busy and underfunded the court systems are, discuss with your solicitor the possibility of arbitration. You and your husband would choose (and pay for privately) an arbitrator to decide your case for you. An arbitrator is similar to a judge. They may be a qualified solicitor or barrister and may be a retired or part time judge. They are formally trained and you can choose a suitable arbitrator with the expertise to suit your case (you can search for qualified arbitrators by location or area of expertise at http://ifla.org.uk/) . You can then choose the date and venue suitable to all to have your matter heard by the arbitrator before a final decision is made. It can be the most sensible, quickest and cost effective way to resolve your dispute particularly if you and your estranged husband cannot see the fairness and/or reasonableness of the others position.
Do not be put off by the private fees of the arbitrator. In my experience, the fees for the arbitrator are easily covered by the fees you save in solicitors costs either continuing to argue your respective positions back and forth or trying to resolve your matter through the slow and clogged court system.
Q. My husband has just hit me with divorce papers. Our house, bank account and wills are all joint – how can I make sure I am protected? What’s to stop him from taking all of our money out of the bank?
Seek legal advice straight away. Make an appointment with a solicitor and make sure they write to you husband or his instructed solicitor to record that the financial status quo as enjoyed through your marriage must remain the same until you reach an agreement as to how to deal with and divide your assets moving forward.
Your house is in joint names and therefore your husband will not be able to sell or borrow against the property without your consent. Your bank accounts are more concerning as each of you can make unilateral transactions. This is why it is important that your husband is notified formally by a solicitor that he must not make any unilateral payments or transactions at this stage, and the mortgage and household bills must continue to be paid.
If you strongly believe that your husband may withdraw all your joint funds out of your account and potentially abscond, speak to your solicitor about freezing the accounts to prevent this. Emergency applications can be made in this regard when there is a real and immediate risk. You will however, need to consider how you will continue to meet your day to day expenditure needs and how the household bills will be met if the accounts are frozen. Speak to your solicitor about this as it may be that a sensible discussion can be had with your husband about how your finances can be managed while you work through the divorce and work towards a financial settlement that divides your assets fairly between you.
Your will is slightly different as it stipulates how you wish your assets to be distributed in the event of your death. If your will is joint with your husband, it will become invalid upon your divorce and therefore you will need to have a new will drafted in any event at this stage. In the circumstances, you may wish to consider the current drafting of your will now in case anything should happen before your divorce is concluded. Speak to your solicitor about this to ensure that you are content with the terms of the will, and consider whether this is something that needs to be redrafted now and/or following the conclusion of your divorce.
Q. I am going through a divorce and a friend of mine told me that I should get a financial order. What is it and why is it so important?
A financial order sets out the division of your assets, liabilities and income following your divorce. As a result of your marriage, each of you will have claims for capital and income over the other. You may also have a number of assets in your joint names or assets and/or liabilities that you have built up together over the course of your marriage even if they have remained in your sole names. You will need to agree (or the court will order) how these are to be divided and dealt with, and this will be confirmed in a financial order - a consent order if by agreement or a final order of the court. Such an order will also confirm whether there is to be any ongoing financial support from one of you to the other (spousal maintenance) or whether there is to be a clean break between you.
It is important that you have such an order as even if you are each retaining your own assets and liabilities, and there is no ongoing financial support, this will need to be recorded and you will need to dismiss your claims for capital and income that still exist. The Decree Absolute that finalises your divorce does not dismiss your financial claims. These claims continue until they are dismissed or you dismiss them yourself by remarrying. However, be careful, if you remarry, your claims are dismissed but if your ex has not remarried, their claims remain live. They can make an application to the court for a financial settlement as a result of previously being married to you. Your need to make sure that these claims are signed off at the end of your marriage. You do not want to end up in a legal battle with your ex years later (when you are potentially remarried and/or financially secure) because you failed to address the issue at the time.
Q. I am getting married and my friend has told me to get a pre-nup as I have property and a business of significant value. What is the point as I did not think pre-nups were binding in this country? My fiancée and I plan to live in the property I inherited from my parents but she understands that if we divorce that property will remain mine. I am going to keep it in my sole name. I also intend to employ my fiancée to handle the PR for my business but she will not be given any shares or directors rights. Is that not sufficient?
The starting point, if your marriage were to end in divorce, would be a 50/50 split of the “matrimonial pot”. The pot will consist of all assets and liabilities in your joint names as well as those in either of your sole names. This would include your business interests and property interests.
While you may be able to argue that your property interests and business assets were pre-acquired before the marriage and therefore should not be included in the matrimonial pot to be equally divided, the burden is on you to prove this which can involve lengthy, costly and acrimonious litigation if your spouse objects to this. Whilst on the surface this may seem a simple fight to have, the reality is that you may “mix” the pre-acquired wealth with matrimonial property. For example, you have confirmed that your inherited property is going to become your matrimonial home, your spouse is going to be employed by your company/business, and the pair of you are going to be living off the income from this business throughout your marriage.
As well as arguing over which assets are and which are not matrimonial, if you were to divorce you would need to divert the case from one based on sharing the assets (the presumption) to one based on your spouse’s reasonable needs. If you were successful in diverting the case given your pre-acquired wealth and unmatched contribution to the families wealth, your case would then be based on your spouse’s reasonable needs generously interpreted against the standard of living you enjoyed during the marriage looking at your family home, the financial support you awarded your spouse throughout the marriage, the cars you drove and holidays you enjoyed etc. This would need to be agreed between you or, in default, assessed by a judge after lengthy and costly litigation.
As you can see, it is far from straightforward. In order to prevent the above presumptions and battles, I would advise you to have a pre-nuptial agreement. The agreement can cover everything and be thoroughly specific about what is and is not matrimonial property, the division of all property in the event of a separation and can define now what both parties agree would be your spouse’s reasonable needs in the event of a separation. This is likely to be far more reasonable - particularly from your spouse’s perspective – than it would be after years of marriage and increasing expectations.
Alternatively, the agreement can cover some of these points depending on what you wish the agreement to cover. You can be creative and flexible with the agreement depending on your circumstances.
The discussions regarding the content of the agreement are had openly with each other and with the full knowledge of each other’s wealth and financial circumstances, however, the disclosure process is not as intrusive as it would be in financial remedy proceedings (which a pre-nup would hope to prevent). You and your fiancée would then each take independent legal advice on the agreement to ensure that you fully understood the terms and the provisions that you were contracting into.
Whilst a pre-nup cannot oust the jurisdiction of the court or prevent your fiancée later issuing proceedings for financial remedy, any court hearing such an application would need to give weight to the pre-nup, the terms of which they are now bound to follow if both parties received independent legal advice, gave full disclosure of their financial circumstances, and the terms of the pre-nup made suitable/reasonable provisions for your spouse to ensure they were not left destitute.
For me, the reason I would sign up to a pre-nup is to protect against a short marriage. After 10 plus years of marriage, you may feel that your spouse deserves a larger financial settlement than say after 1 to 2 years. Your greatest risk lies with the financial support you will be giving your spouse and the sharing of your property making it your family home right from the start. You are immediately creating a financial dependency and increasing your fiancée’s potential entitlement that you could curtail with a pre-nup.
Q. I am going to a mediation to discuss my divorce. It's not amicable and I’m concerned about confidentiality. If we can't come to an agreement in the mediation, can what I say during the session be used against me in any way in court?
Mediation is a confidential and without prejudice process – this means that discussions you have in mediation cannot be referred to in court or disclosed to any individuals outside the mediation (including your respective solicitors) without the express consent of both you and your spouse. The mediator also must not discuss the mediation or correspond with either or your respective lawyers without both of your consent. All factual material relating to any financial issues between you (such as your respective salaries and the amount of your respective savings and investments and/or liabilities) are provided on an open basis and can therefore be disclosed to the court or either of your solicitors. However, once you and your spouse have signed your Agreement to Mediate to commence the mediation process, your discussions with the mediator are shared openly between the three of you but, beyond that, both of you must consent for the discussions to be disclosed to any third party. In any event, the discussions always remain without prejudice and therefore cannot be referred to in court.
Q. My husband and I are divorcing – he wants to move back to Spain but still wants joint custody of our child. Can we come to an agreement during a mediation or do I need to go to court?
Court is only ever the last resort for people who cannot reach an agreement or decide on an arrangement that works for them. If you and your husband can agree the arrangements for your son or daughter through mediation then your proposed arrangements can be put into a Memorandum of Understanding by the mediator setting out the arrangements for you to move forward. You can then discuss the arrangements with your respective solicitors who can convert the Memorandum of Understanding into a consent order for the court to approve if there are proceedings in play or if you would both be more content with a court order setting out the arrangements for the future.
Q. My partner and I are going through a divorce but he is refusing to go to mediation. How can I make him?
Mediation is voluntary. No one can be made to attend mediation. Both you and your partner must agree to participate in the process in order to help you better communicate with each other and work towards a resolution of any issues between you. It is not a process that suits every couple but, in the right environment, with the right mediator, and with both parties cooperation, it can be a very effective and positive way for you to settle disputes between and reach an outcome that works for you and your family. Has your partner explained to you why he does not wish to try mediation? You could give him the name of a few mediators that you would like to instruct (the Family Mediation Council can help you find mediators in your area if you do not have any recommendations -www.familymediationcouncil.org.uk/find-local-mediator/) and ask him to have an initial chat with them to discuss the process and talk through any questions or concerns he may have. Your partner can also talk through with them the alternatives to mediation to resolve the issues between you and make an informed decision with you about how to move forward.
Q. My husband and I are getting a divorce. We have three children together, all under 10. I gave up my career to look after them while my husband worked. He is now suggesting that we go through mediation to settle custody of our children. I have no idea what that is or what to expect. How much will it cost and will it all be settled in one meeting? What happens if we don’t reach an agreement during the mediation?
Mediation is where you and your partner meet with a professionally trained mediator to identify, discuss and try and resolve any issues between you. The mediator is impartial, neutral and independent of any legal advice either of you may also be receiving. The process is voluntary and any discussions you have between you and the mediator are confidential. Independent mediators will have their own pricing and you will need to contact them directly to ascertain their charges. If you do not have a recommendation, the Family Mediation Council can help you find a suitable mediator in your area. Usual costs can be in the region of £300 - £500 plus VAT per mediation and/or hour depending on the mediator. This cost is split between the parties unless one party agrees to shoulder the fee.
In my experience, it is unlikely that you will be able to resolve the issues between you in one session, particularly if you are deciding where your children should live and the arrangements for contact with the other parent. It is more common to have 4-5 sessions to resolve issues, with the first few sessions often being the most difficult. Your mediator should encourage you to continue as it becomes easier once the sensitive and difficult issues are out in the open and each of you can start understanding and/or appreciating the others point of view. It can take time to find a third way to resolve issues particularly where children are involved.
If a decision cannot be reached in mediation you can:
Q. My partner and I are going through a divorce. His lawyers have issued proceedings and now I have a court date. I don’t really want to go to court because our relationship is still civil and I think we can sort this out ourselves. I’ve heard of mediation, but is it too late for that now?
No, it is never too late for mediation. You can attend mediation in parallel to the court proceedings and at any time. You can try mediation to resolve any of the issues that are before the court or you can ask the mediator to deal with any discrete issues that may arise. It is a flexible process that can be designed around you and your partner. I would suggest you contact a mediator (the Family Mediation Council can help you find one in your area if you do not have a recommendation) and have an initial and brief discussion with the mediator about the issues between you and your partner. If you are content with the mediator, pass the details on to your partner and ask him if he would consider the process. If he agrees, a mediation can be arranged to try and help you resolve the issues between you without the need for court involvement or to narrow the issues that the court is being asked to consider. If your partner agrees, you can then adjourn the court proceedings to see if you can resolve the issues through mediation or cancel the proceedings altogether.
Katie is Partner and Mediator in Winckworth Sherwood’s Family Team, with over 10 years’ experience advising on all family issues.