Divorce and Separation

We know that divorce and separation can be stressful. We can help you through that process from start to finish. From dealing with immediate issues, such as arrangements for children and how bills will be met whilst finances are divided through to advising you on how to manage the assets and income that you retain post-divorce.

We can help with:

  • The divorce process: formally ending your marriage
  • Cashflow issues whilst divorce is ongoing
  • Financial settlement following divorce
  • Managing your finances and investing your assets post-divorce

Frequently Asked Questions

There is no presumption in law that a child should live with either parent after divorce. There is a presumption that a child has the right to have a relationship and to spend time with both of their parents.

The court will not automatically be involved in the arrangements for a child after a divorce and will only make a decision when either parent has applied to the court in relation to the arrangements for the child.

Happily, many parents manage to agree arrangements for a child between themselves, sometimes with the help of a mediator and/or lawyers.

Where an agreement cannot be reached and court input is necessary, the court’s priority is the welfare of the child.

The court will take a number of factors into account when deciding which parent a child should live with. The factors are:

  • The ascertainable wishes and feelings of the child concerned) considered in the light of the child’s age and understanding
  • The child’s physical, emotional and educational needs
  • The likely effect on the child of any change in their circumstances
  • The child’s age, sex, background and any characteristics of theirs which the court considers relevant
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
  • The range of powers available to the court

We encourage parents to try to reach an agreement between themselves about whom the child should live with and how much time the child will spend with the other parent. It will be far more beneficial to a child to grow up with two parents who can constructively co-parent (even if they don’t agree on everything) than to be subject to an inflexible court order.

We try to remind parents that there will be many landmark occasions for the child when they will need to be in the same room (such as their graduation, engagement, wedding, grandchild’s parties).

Whilst it is understandable that the relationship is strained and communications very difficult after a separation, in our experience, there is a better outcome all round if a co-parenting relationship can be maintained.

We would recommend reviewing your Will as soon as you separate rather than waiting for the divorce to finalise.

If your current Will gives your estate to your spouse, this would fail once the divorce is completed and your Will would instead be read as if they had died before you.

However, this would not apply during the separation proceedings and so you may wish to put a new Will in place removing your spouse immediately to ensure they would not inherit in the event of your death.

It is likely that you would also wish to review the executors in your Will (and possibly guardians) if your circumstances have changed, as you may no longer wish to appoint the same people as in your previous Will.

If your children are not yet old enough to inherit, then you can choose who you would like to manage your assets on their behalf, this would not need to be your former spouse.

We can also amend ownership of your home as part of putting a new Will in place if necessary, to ensure this does not automatically pass to your spouse but instead passes according to your Will.

You do not need to inform anyone that you are changing your Will and you can change your Will as many times as you wish to, so we would recommend putting an interim Will in place immediately, and reviewing this regularly to ensure your wishes are met on your death and you can provide for your loved ones effectively.

A sworn translation is a certified official translation of any document. The sworn official translation holds the same validity held by the original document in the country in which it was issued.

Sworn Translators appointed by the Spanish Ministry of Foreign Affairs, European Union and Cooperation are the only translators who can produce official translations which will be recognised and accepted by any country.

The official translation into Spanish of the Child Arrangement Order in English needs to be submitted to the relevant authorities in Spain to prove the agreements between the parents regarding residence, contact, holiday periods and living costs in respect of the children.

If the court has also passed a consent order and this refers to any arrangements regarding the children, an official translation into Spanish of the consent order must be submitted as well.

If the parents were married, the official translation into Spanish of the decree absolute should be submitted as well. The documents in English may need to be apostilled (legalised) by the Foreign and Commonwealth Office in the UK.

While many parties manage to negotiate a settlement without court involvement, it is sensible to consider what the court would do, and to use that as a ‘benchmark’ for voluntary discussions.

The court would consider all the circumstances, with the first consideration being given to the needs of any children of the family. The court would also consider the following factors:

  • The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including (in the case of earning capacity) any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire
  • The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
  • The standard of living enjoyed by the family before the breakdown of the marriage
  • The age of each party to the marriage and the duration of the marriage
  • Any physical or mental disability of either of the parties to the marriage
  • The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family. There is no distinction between the 'breadwinner' and the 'stay at home parent'
  • The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
  • The value to each of the parties to the marriage of any benefit which, by reason of the divorce, that party will lose the chance of acquiring.

It is not necessarily the case that assets will be split equally. Even where an equal split is appropriate, advice needs to be taken as to how that split is achieved.

For example, will all assets and pensions be divided equally, or should one party receive more of the assets and the other more of the pensions?

It might be that one party takes the majority of the assets, with a view to using them to meet their outgoings, leaving the other free to earn and retain their income free of a maintenance claim.

Broadly speaking, in a very short, childless marriage, each party will be likely to take from the marriage what they each brought into it. This may alter when the factors above are applied. The longer the marriage, and where there are children, the more likely it is that the settlement will be based on what party needs. This will depend on how much each party needs to rehouse, and the amount that they can obtain as a mortgage.

As the parameters for outcome are wide because of the court’s discretion and the factors taken into consideration, it is sensible to take legal advice before you have any discussions with your ex about the financial split upon your divorce.

It is common for clients to worry about how to manage their money after a divorce.

It is an inevitable consequence of divorce that one ‘pot’ has to be shared between two people, and so less money is available to each person.

Consequently, careful consideration needs to be given to how much is needed to meet day to day expenses, to rehouse and purchase other one-off capital items, and how much pension income you will need.

Income

Our family lawyers will help you to work out how much income you need to meet your outgoings, such as mortgage repayments, household bills etc.

We will use this information to work out what the shortfall is between your income and outgoings, and that will be the basis of any maintenance claim against your spouse.

It may be that you receive additional capital that should be used to earn interest to put towards your outgoings. We are fortunate to have assistance from Nockolds Wealth, who will be able to advise you on the amount that you will be able to earn in interest, the best investments to achieve that, and which investments will give you the flexibility in access to the money that you need.

Nockolds Wealth can also assist family clients in ensuring that their ex-spouse is sufficiently insured to cover any maintenance claim in the event of their death or ill-health.

Without this, the amount of maintenance that is received may be terminated (automatically in the event of death) or reduced (if the court agrees) and so it is sensible to agree with your ex as part of the divorce settlement that appropriate insurance will be in place and who will meet the cost of that insurance.

Capital

Our family lawyers will help you to work out how much you need to rehouse and to make any other one off purchases, such as a vehicle.

Nockolds Wealth can help us to work out how you can use that invested money to meet the cost of any one-off items and how to invest the remaining money to earn interest.

Pensions

It is possible for pension values to be shared upon divorce.

When this happens, an amount is taken from one person’s pension fund or funds and placed into a pension pot which belongs to the other. The pension money then belongs to the person that has received it and is free to invest or use it as they choose.

Nockolds Wealth can assist you to identify which pension fund to invest any pension transfer amount into, as well as advise you on how much you may wish to draw from your pension, whether as capital to take advantage of tax-free withdrawals or as income.

The Future

Our clients find that it is beneficial to them to have continuity in the same firm offering advice during the divorce process, once they have received their financial settlement and for the rest of their life.

Our family lawyers are able to work closely with you and Nockolds Wealth during the divorce process, and the advice that clients receive post-divorce is then seamless.

Sadly, relationship breakdown can be one of the consequences of significant personal injury.

Any personal injury award that has been made will be in the ‘financial pot’ to be divided upon divorce. Potentially, a personal injury award can be divided in the same way as any other asset that belongs to the couple, such as the family home.

The recipient of a personal injury award is more likely to be able to retain it where there are other assets sufficient to meet the other spouse’s needs (such as a house).

Where there are insufficient assets to meet both spouse’s needs, the court will have to balance the needs of both spouses.

The injured spouse may have continuing care or treatment costs, or may not be able to earn enough income to meet their outgoings. The other spouse may remain the primary carer of children and need suitable housing. It can be difficult for all of those costs to be covered from the available ‘pot’.

In some cases, the court has awarded that some of the personal injury award should be used to purchase a property for the other spouse whilst the children are young. The property is sold when the children reach adulthood, and the personal injury award money is returned to the injured spouse at that point and can then used to meet their future needs.

This allows both spouses needs to be met at the appropriate times.

Individuals that have received a personal injury award should consider entering into a pre-marital agreement (a ‘prenup’) before they marry (or a post-marital agreement if they are already married when they receive a personal injury award), to protect the award as far as possible in the event of future divorce.

Separation or divorce is difficult enough, especially if there are money issues and children.

For couples who have pets who are very much seen as part of the family, there can also be issues finding a way forward that suits both the parties and the animal.

Unfortunately, the law does not treat animals as anything other than objects or chattels that are ‘owned possessions’. This is why you may have heard stories of police dog handlers petitioning to have these loyal workers recognised in the law as anything other than a ‘chattel’.

Thankfully, the judiciary has moved on, and even though the law is still restrictive, it is possible to put in contact orders that regulate who will have the family pet and when.

Hurt people are not always at their best, and we have faced circumstances where parties have requested that the animal be put to sleep rather than let the other party have them.

Good solicitors will work together in finding a solution to make sure that both parties and the furry family member can navigate an appropriate way forward.

Leave It To Us...

For more information on divorce and separation and to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.

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