Children and Family FAQs
Q: Will I have to go to Court during my divorce proceedings?
A:Usually not. The Divorce procedure is all paperwork based and there is no need to appear in Court.
This first step is to issue your divorce petition citing the details of your marriage and the reason for the breakdown, including the fact on which you are relying. This petition is issued through the Court system and sent to your spouse, who then has to complete an acknowledgement of service form and return this to the court.
At this stage you can then make your application for your decree nisi, the conditional divorce order. This is the stage at which a district judge looks at your petition and decides whether you are entitled to a divorce. The court will then set a date for the formal pronouncement of the decree nisi. The only occasions on which you will need to be present for the pronouncement of the decree nisi is if there is a dispute regarding costs of the divorce itself, (this does not include disputes regarding matrimonial finances – those are dealt with separately). In the usual course of things your names are simply read out in open Court and you will receive a copy of the Order through the post, with no need to attend Court.
The final stage is making your application for your decree absolute, the final divorce order. Again this is done by sending your application to the court, and a copy of the order is sent out in the post.
Q: How long will my divorce take?
A: If both you and your spouse are in agreement that your marriage is over and both agree to the divorce progressing on average a divorce can be concluded in approximately 4 months – this includes the statutory period of six weeks and one day between the pronouncement of the conditional divorce order, decree nisi and decree absolute. This is not a guaranteed period however, and can vary depending on individual circumstances of a case. If the divorce is opposed we will give you a best estimate of timescales on the specific facts of your case.
Q: I have recently separated and want to resolve the issue of matrimonial finances. What are my options?
A:In relation to the actual resolution of matrimonial finances every case is different and therefore for specific advice on what you are entitled to, or what may be the best solution we would encourage you to speak with a solicitor so that you are fully informed of your options. This could be done in a one off fixed fee appointment rather than instructing a solicitor to act on your behalf.
From this point on there are usually two ways in which matters are resolved. You and your spouse may come to a decision together as to what to do about the matrimonial assets, for example the house will be sold, or transferred to another party for a price etc. if you are already in agreement then your solicitor can draft what is known as a consent order. This is a formal Court Order which when sealed by a district judge becomes legally binding. Your solicitor will not be able to advise you on the contents of the order and whether this is in your best interests but will be able to draft the order based on your instructions.
Alternatively if you and your spouse are not in agreement on certain assets or want to seek further legal advice on a specific issue such as pensions or maintenance then the next step would be to have full financial disclosure through solicitors. You will both fully disclose all the assets to the marriage (this can be done at various levels and your solicitor will advise you on what is appropriate for your case) and then through the help of solicitors we will attempt to settle matters through negotiation.
It may also be appropriate to consider attending mediation at this stage which can be very useful in reaching an agreement where there are just one or two issues which are left to resolve. Again your solicitor will be able to advise you as to whether this is appropriate for you and the process involved.
Finally if no agreement can be reached on a particular issue the last resort is to make an application to the Court to consider matrimonial finances. This is a separate application to the divorce proceedings. Again each case is different and your solicitor will be able to advise you on the prospects of success of your case.
Q: We have come to an agreement on finances but do not want to divorce yet. Is there anything we can do?
A: Yes. If you wish to regularise your separation and the matrimonial finances but are not in the position to begin divorce proceedings yet (because you have not been separated long enough for example) then you can instruct a solicitor to draft a separation agreement (or deed of separation). A separation agreement is very similar to what is known as a pre-nuptial agreement but is done post separation. When you do eventually come to issuing divorce proceedings in the future your solicitor can draft a consent order based on the agreement recorded in the Separation Agreement.
Q: I have lived with my partner for over two years, does this mean we are common law husband and wife?
A: No. Currently the rights of cohabitees are drastically different to those of spouses, no matter how long you have lived together, whether you have children etc. If you are not legally married then you do not have the rights of a spouse. We would always strongly advise that you each seek independent legal advice if you wish to regularise your cohabitation. This can be done by way of cohabitation agreements or taking other steps to protect your respective legal positions. However as a rule if no such steps have been taken it can be very difficult upon separation if there are disagreements over property or other assets.
We would also advise that both cohabitees make a will to ensure that in the event of a death the remaining cohabitees position is protected in respect of finance and property.
Q: I am having difficulties with being able to spend time with my children but do not want to have to go through the Court’s. Are there any alternatives to attending Court which can help my situation?
A: Yes. Making an application to the Court in Children matters is always a last resort. We would always encourage you to try and resolve matters as amicably as possible without the need for attending Court, as this can not only be very costly, but can often deteriorate the relationship between you and your ex. There are many alternatives to litigation, these can include negotiation through solicitors, mediation through a 3rd party etc. We will be able to discuss your case with you and come up with the most appropriate way to resolve matters. For more information on these processes please contact one of our family solicitors.
Q: I am worried that my children will have to go to Court during contact proceedings started by their father – will they have to go to Court?
A: It is exceptionally rare for children to ever have to go to Court during these types of proceedings. The Court does want to know however, what the children’s wishes and feelings are (taking into account their ages and understanding). This will usually be dealt with by way of a trained person from an independent organisation called CAFCASS (Children and Family Court Advisory and Support Service) speaking to them away from the court. The CAFCASS officer will then inform the Court of the children’s views.
Q: Social Services have started care proceedings in respect of my children. How long will it take for the court to decide if they can come home?
A: There can be a hearing at the start of the case when the court will decide if it is appropriate for your children to remain outside of your care whilst the proceedings are ongoing and further assessments being undertaken. Even if the court do not feel it is appropriate to let your children return home at that stage they must make a final decision within 26 weeks from the time the proceedings started. It is only in exceptional circumstances that this time limit can be extended. During this period however, the Local Authority are under a legal obligation to promote contact on a regular basis between you and your children and the level of that contact can be decided by the court if agreement cannot be reached. It is best to consult a solicitor as soon as you are aware that Social Services are considering care proceedings.
Q: I would rather my children were placed with family members rather than with foster carers whilst care proceedings are ongoing – can this happen?
A: Yes. The Local Authority are under a legal obligation to assess individuals who have been put forward as prospective carers by parents, whether they are family members or other people who would be willing to care for the children. The Local Authority will carry out an initial screening assessment to see if those people are suitable and if so proceed to carry out a full assessment of them. It is important that you give the names of people that you want to be assessed as early as possible so there is no delay in assessments being carried out and your solicitor will assist you with this process.
Q. How long will it take for my transaction to complete?
A: It is difficult to give an exact time scale but most transactions take some 6-8 weeks to complete. We will keep you up to date throughout the transaction about timescale.
Q. Can I pay my deposit funds by credit or debit card?
A: No. We can only accept payment of our legal fees and some disbursements by debit card. Your deposit funds must be paid from your own resources by cheque, bankers draft or bank transfer. This is because there are rules concerning guarantees and refunds which govern debit and credit cards use. Deposits also can’t generally be paid by credit card as your mortgage provider has to be informed of, and take into consideration, any forms of debt incurred while making a house purchase. Paying a house deposit by credit card may invalidate your mortgage offer.
From 13th January 2018 we no longer accept any payments to us made by credit card.
Q. Do I have to provide evidence of the source of my deposit monies?
A: Yes. We have a legal duty to establish the source of all monies used in a transaction and cannot accept payment from you until you have provided satisfactory evidence of the same.
Private Client FAQs
Q: If I make a Will does my Executor still have to apply for probate?
A: Many people believe that when they make a Will they give their Executor the legal power to deal with their estate and that there will not be any additional need to apply for Probate. This is not the case. Probate is the legal authority granted by the Court to administer an estate and whether or not it is required depends upon the type and value of assets in the estate. A Grant of Probate ratifies the terms of the Will which includes the Executors Authority.
Q: Do I need a Will if I am married as my wife will inherit everything upon my death?
A: Most people think that their spouse will inherit their entire estate if they die without a Will but this is not the case. When an individual dies without a valid Will there are certain legal rules that govern who will inherit their estate that are known as the Rules of Intestacy. A spouse is generally entitled to the first £250,000 of the estate plus half of the balance with the other half going to the children of the deceased.
Q: Is it true that when I die will my children will inherit everything as my wife died a few years ago and all my debts will be written off?
A: It is a very common misconception that ‘you can’t leave your debts to someone when you die’ or that an individual’s debts are written off on their death leaving their loved ones to benefit from the whole estate.
The deceased’s assets will be used to pay for their funeral costs, the administration of their estate and personal debts.
Personal debts may include loans, credit card balances and outstanding household bills. Any money left over once the debts are paid is distributed to the beneficiaries of the estate.
Q: Can an Executor be a beneficiary of my Will?
A: It is perfectly normal to appoint a beneficiary as an Executor to your Will particularly if they are also the only beneficiary to your estate.
Q: I would like to leave a share of my estate to one of my daughters and want to check if she can also act as a witness to the signing of my Will?
A: If you would like to name your daughter as a beneficiary in your Will we would advise against asking her to witness your Will because if she does she will forfeit her entitlement to the gift you would like to leave her. If we are preparing you Will for you and you are having problems in finding witnesses we will arrange for suitable witnesses to be present at no extra cost, even for home visits.
Q: My son, who I trust and have a good relationship with, has suggested that I put a Lasting Power of Attorney (LPA) in place as I am now 87, but I am not sure about when I should do it as I can still manage my affairs and my finances. When is the right time for me to arrange a LPA?
A: The right time is now if you want to put a LPA in place while you still have capacity to do so.
A LPA can only be put in place by the person whose affairs are to be dealt with, so this means that the choice to have one will always be yours, but your son sounds as if he is trying to look out for your best interests and is probably worried about how he will manage if your capacity to look after yourself is diminished.
If you want to put a LPA in place you must be able to understand what you are doing and independently decide who you would like to appoint as the person (or persons) to manage your affairs when the time comes when you can’t manage.
You must put the LPA in place while you can still think independently because if you lose your mental capacity it will not be possible to put in place a LPA.
If you lose mental capacity and can’t manage your own affairs and finances and don’t have a LPA, your son or whoever cares for you will have to find another way to take responsibility for your affairs and finances on your behalf. The processes for doing this are often lengthy and more costly in comparison to the process of arranging a LPA while you have capacity to do so. When you attend an initial appointment with our Solicitor we will explain all the options available to you so you can proceed in the way that you consider is best for you.Scroll To Top