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Contact and residence arrangements for children

Contact arrangements for children need to be considered early in the separation process.

Separating parents will naturally have concerns about the effect their separation will have on their child and particularly how it will impact on their child’s relationship with their parents.

Where parents have not been able to reach agreement over the time children spend with each parent  or where their child should live, the family court can step in and determine arrangements for children, providing the child is under the age of 16.

When family proceedings do go before the court, the welfare of the child will always be the Court’s paramount concern.  The Court’s starting point is that it is in a child’s best interest to spend time and have a positive relationship with both parents as research shows that this provides the best outcomes for children, so long as there are no safeguarding factors which could put the child at risk.

Assessing the child’s wishes

The court will often ask the Children and Family Courts Advisory and Support Service (commonly known as Cafcass) or the Local Authority to investigate matters further to help the court decide what is in a child’s best interest.  If the children involved are older, childcare professionals may speak with the child to find out information about their views.  This is done sensitively to avoid children feeling they are in the middle and to make sure that children don’t feel under pressure to be the decision maker or like they have to choose between their parents. A report will then be prepared for the court which is very influential in assisting the court to determine what arrangements are in a child’s best interest moving forward.

Amending a child arrangements order

A child arrangements order is a starting point for parents to build on for the future as family circumstances generally change over time as children’s needs alter as they grow up.  Court orders can always be varied by parents agreeing changes together, indeed courts are keen to encourage parents to work together in this way as co-operative parenting produces the best outcomes for children.  Conflict is very harmful for children and the courts encourage parents to try and avoid conflict as much as possible.  Parents are generally the people who know their children best and are therefore best placed to make arrangements to best meet their children’s needs.

Extended family members

A child’s close relatives – grandparents, aunts and uncles, are also able to apply to court for a child arrangement order, however, they must first apply to the court for permission to make the application. This is to ensure that children are protected from unnecessary court proceedings due to the harmful effect of conflict upon children.

Children in care

If the Local Authority are involved with your family, or your children live with someone other than their parents, different provisions may apply.

Need help?

If you would like to discuss contact arrangements for your child you can speak to one of the experienced solicitors in our children team in complete confidence and without further obligation. Call 01302 320621 or email info@athertongodfrey.co.uk

 

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Divorce and pension – are you missing out?

According to the Office of National Statistics more than 100,000 women over the age of 60 divorced between 1998 and 2018.

These women could be missing out on significant sums of money in state pension rights.

The majority of the women involved would have reached state pension age before 6 April 2016 and so came under the ‘old’ state pension system which made significant provision for divorced women.

If they divorced after pension-age they can benefit from a pension uplift, providing they notify Department of Works and Pensions that they have divorced.

Under the old state pension system, a married woman was able to use her husband’s full National Insurance record instead of her own, up to the date of their divorce when working out her basic state pension entitlement. This could result in a significant uplift, perhaps running into thousands of pounds over the period of retirement.

Richard Johnson, divorce lawyer at Atherton Godfrey, commented: “Assessing pension rights is a crucial part of the divorce process and something we always address fully with our clients, regardless of age. Unfortunately, many women have missed out on this very important piece of advice.”

Do you qualify for enhanced payments?

If you were 60 or over on 6 April 2016, had not remarried and did not substitute your husbands NI record, you should contact the DWP without delay and ask for a pensions review.

If you are considering divorce, make sure you get professional legal advice before you commit yourself to anything.

Read about our legal services when divorcing here.

You can call and speak to our team on 01302 320621, in total confidence and without obligation.

 

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Divorce lawyer joins family department

We are very pleased to welcome specialist divorce lawyer, Richard Johnson to our family law department.

Richard brings with him a wealth of experience in helping separating couples, and will further strengthen the services we can provide.

Richard, is a qualified Fellow of Chartered Institute of Legal Executives and has been dealing with family disputes for over 20 years.

He has joined Atherton Godfrey after working with a leading firm of solicitors in Wakefield, where for the past 12 years, he has dealt solely with family disputes.

Richard is an experienced divorce lawyer, and handles all aspects of relationship breakdown, including divorce and linked financial matters, as well as disputes regarding child residence and contact, non-molestation orders, occupation orders and property disputes between unmarried couples.

 

 

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Long awaited divorce reform finally on the way

After a series of ‘false starts’, it looks like ‘antagonistic’ divorces will soon be a thing of the past.

The Divorce, Separation and Dissolution Bill, which will introduce no-fault divorce, has finally made it back on to the government’s agenda, after being stalled twice because of last years’ events in parliament.

The bill, which had already passed through two readings in the Commons, has now returned to make its journey through the House of Lords.

The process is a long one, but once the bill becomes law, couples will no longer have to lay blame on their spouse for the breakdown of the marriage.

Chloe Davies, family lawyer at Atherton Godfrey welcomed the news, commenting: “This is something we have for a long time been saying would improve the position and avoid making the situation for those already going through a difficult time even worse.”

At the moment, to be granted a divorce, a person has to provide evidence that their spouse is guilty of at least one of five facts – adultery, conduct, desertion and two years separation where there is agreement or 5 years separation where the spouse disagrees.

Nigel Shepherd, former chair of the family law group Resolution, commented: “After a series of false starts last year, we are delighted that government has chosen no-fault divorce as the focus for one of its first bills tabled in the new parliament. For far too long, far too many couples have been effectively forced to assign fault during the divorce process in order to satisfy outdated requirements.”

Under the new law, couples will not need to evidence separation or poor conduct. Instead, they will simply be able to cite ‘irretrievable breakdown’. By removing the evidence ‘fact’, a spouse will no longer be able to contest the divorce either, which has often been a source of conflict.

Robert Buckland, justice secretary, commented: “The institution of marriage will always be vitally important, but we must never allow a situation where our laws exacerbate conflict and harm a child’s upbringing. By sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives.”

If you need advice on any aspect of divorce, including children or finances, speak to us in complete confidence – our friendly team will be happy to discuss your options with you – call 01302 320621 or email info@athertongodfrey.co.uk

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Unlocking pension early when divorcing

Your pension can be the biggest asset after the family home, but because you do not benefit from it until you retire you can tend not to think about it.

If you separate from your spouse or partner, money can be tight. Often couples want to access some of the money in their pensions before they retire to put towards a deposit on a new home, pay for furniture or meet the costs of moving house.

Since the introduction of the pension’s freedoms in April 2015, savers aged 55 or above have been able to take money out of their pension pot in lump sums, and these are often used by separating couples.

But you should be careful before accessing a pension in this way as there are a number of consequences that could cost you dearly. For example you may be stung with a large tax bill.

Another way in which you could be affected is by the Money Purchase Annual Allowance (MPAA). If you withdraw taxable cash from your pension the MPAA may apply and you will only be able to contribute £4,000 a year to a pension in the future.

The good news is that a little-known exception to the MPAA means you can withdraw the entire fund of a ‘trivially’ small pension pot under £10,000 without triggering the MPAA. This could be useful if you need to release some cash on separation.

For example, if you have two pension pots, one worth £4,000 and another worth £20,000 and you want to withdraw £9,000, you are better off cashing in the £4,000 pension and just taking £5,000 from the larger pot (the 25% tax-free lump sum), rather than taking the entire £9,000 from the larger pot.

Commenting, Steve Webb, Director of Policy at Royal London said: “Last year, over half a million people aged 55 or over made flexible withdrawals from their pension, and many of these withdrawals will have been for amounts under £10,000. If they emptied out a small pot then this will have had no impact on their future ability to save into a pension. But if, by mistake, they took the same amount as a partial withdrawal from a bigger pot, they risk triggering stringent HMRC limits on future pension saving. Those with more than one pension pot should consider very carefully the order in which they access these funds, especially if they may want to contribute into a pension in future.”

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Year on year increase in private law children cases

Private law children cases are at an all-time high, according to figures released by the Children and Family Court Advisory and Support Service, or Cafcass as it is often known.

Cafcass is an independent organisation charged with the task of safeguarding and promoting the welfare of children going through the family courts. Their primary aim is to ensure that each child is given a voice and that all decisions are made in their best interests.

Private law children cases cover arrangements for the children where parents are separated or divorced, usually about where the child will live or with whom they will spend time. Arrangements for grandparents can also be included.

During the period 2014-15, Cafcass recorded 34,119 cases, which was a 27% decrease on the previous year. Since then, each year has seen a year-on-year increase of between 3.1% and 10%. As a result, during the 2018-19 reporting period a total of 43,908 cases were recorded.

During July alone, a total of 4,369 new private law cases were received – an alarming 18.7% or 688 cases higher than July last year.

Figures for the first quarter of 2019-20 already show 15,559 cases, indicating that the current financial year will very likely see yet another increase.

Commenting on the report, children law expert, Alison McIlroy said: “This increase demonstrates that family issues are getting ever more complex.”

It’s also worth noting that in private law a single case may involve several children and various different types of application. Therefore, the number of cases is not an accurate reflection of the number of children caught up in the family court system.

If you are experiencing issues regarding arrangements for children and need guidance, our family law experts are here to help. We offer a free initial consultation and Legal Aid is still available in certain circumstances.

For a no obligation discussion about your options please call 01302 320621.

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One size does not fit all in divorce cases

A bill making its way through parliament has come under severe criticism from the president of the Supreme Court.

The bill in question, the Divorce (Financial Provision) Bill, if approved, will see pre-nuptials and post-nuptial agreements become legally binding where certain conditions have been met.

It would also see that matrimonial property was divided equally and a five year limit imposed on spousal maintenance, except in cases where the spouse would be likely to suffer serious financial hardship.

Introduced by Baroness Deech, the bill has already made its way through the House of Lords and is now before the House of Commons, although no date has been set for its second reading.

Baroness Hale, who has been president of the Supreme Court since September 2017, has questioned what she calls the bills’ “one size fits all” approach.

In her speech entitled ‘What is a 21st Century Family’, Lady Hale also referred to critics of the ‘no fault’ divorce legislation currently making its way through parliament. She commented: “More threatening in my view is Baronesses Deech’s bill, which has made its way through the House of Lords and is now before the commons.

I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking out tailor-made solutions. But I question how one size fits all can possibly meet the justice of the case or fulfil the role of the family in shouldering the burdens which it has created rather than placing them upon the state. I fear that it assumes equality between the spouses which is simply not there in many, perhaps most cases.”

David Kirkman, specialist divorce lawyer at Atherton Godfrey, commented: “I could not agree more with Baroness Hale. Baroness Deech’s bill, for all its good intentions, is likely to lead to serious injustice in individual cases. When every set of circumstances is unique, fairness demands a discretionary approach to dividing financial resources. In addition, the particular form of this bill is likely to mean that those experiencing unfair outcomes are more likely to be women than men. Hopefully the legislation will not pass the House of Commons.”

Lady Hale is a strong supporter of divorce law reform. She has also attacked government policy over opposite-sex couples entering into civil partnerships.

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Divorce ‘blame game’ almost at an end

There may not be much agreement in parliament at the moment, but one thing that does have cross party support is a landmark Bill that entered the Commons on 13 June 2019.

The Divorce, Dissolution and Separation Bill will force a huge shake-up of divorce laws that have been in place for almost 50 years. The Bill aims to reduce unnecessary conflict between divorcing couples by removing the need to attach blame or make allegations about each other.

Don Bird, senior partner and head of family law at Atherton Godfrey, commented: “These proposals have widespread support from the public and professionals as well as politicians. Under the new proposals divorce will not become easier or quicker, it will simply become less acrimonious because the need to attach blame has been removed. The proposals also introduce a minimum time frame that will help couples to focus on what’s important and find agreement on matters involving their children and financial issues.”

Justice secretary David Gauke said: “Marriage will always be a vitally important institution in society, but when a relationship breaks down it cannot be right that the law adds fuel to the fire by incentivising couples to blame each other. By removing the unnecessary mudslinging the current process can needlessly rake up, we’ll make sure the law plays its part in allowing couples to move on as amicably and constructively as possible. I’m proud to introduce this important legislation which will make a genuine difference to many children and families.”

Margaret Heathcote, chair of Resolution, the family justice professionals group, added: “We’re delighted that the government is introducing legislation which will help reduce conflict between divorcing couples.  Every day, our members are helping people through separation, taking a constructive, non-confrontational approach in line with our Code of Practice. However, because of our outdated divorce laws, they’ve been working effectively with one arm tied behind their backs.”

Under the current law couples have to evidence that their marriage has broken down irretrievably by proving adultery or unreasonable behaviour or stay in the marriage for at least two years, even where both have agreed the marriage is at an end.

The Divorce, Dissolution and Separation Bill will:

• Allow couples to make a joint statement that their marriage has irretrievably broken down
• Remove the ability for one party to contest the divorce
• Introduce a 20 week ‘cooling off’ period giving couples time to reflect on their decision after which they will need to confirm that they cannot reconcile

 

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No glad tidings for some as hundreds file for Christmas divorce

Being able to spend time with a partner or spouse over Christmas is something many couples look forward to, particularly with today’s hectic lifestyles.

Not everyone though finds Christmas to be a time of glad tidings. In fact, 455 people filed an online divorce application between Christmas Eve and New Year’s Day. And 13 found the holiday period so stressful that they ditched the turkey and crackers to apply for a divorce on Christmas Day itself.

Many couples will wait until after the holiday period though and today is known as ‘Divorce Monday’, a day when law firms typically see a surge in people who plan to break-up after having to ‘endure’ the Christmas holidays.

David Kirkman, family law solicitor at Atherton Godfrey, commented: “Christmas can be something of a balancing act – trying to keep expenditure under control and trying to keep everyone happy. That along with spending extended periods of time together can naturally be the source of friction between couples.

One of the problems with online divorce applications is that they can often be completed in the heat of the moment and regretted later, proving very costly as the payment has already been made. My advice would be to take time to cool off before making such a serious decision.

Another issue is that many people do not know their rights on divorce and may end up losing out financially. “

There are many myths surround the divorce process. For example:

I’m his common law wife so don’t need to worry financially
Married people and those in civil partnerships have financial claims over such as child maintenance, property and pensions. Unmarried couples have far more limited rights and in some cases, no right to claim anything at all.

They were cheating, I’ll get everything
As unfair as it may seem, adultery or unreasonable behaviour doesn’t make any difference as to how assets are divided following divorce. Only a criminal offence such as murder of the spouse, or actual bodily harm resulting in a prison sentence is likely to have a bearing.

I can get a quickie divorce
According to newspapers, Cheryl Cole was got a divorce in 14 seconds – a bit of a headline spinner. Choose who you are, it generally takes between 6 months and a year to end a marriage.

We are consciously uncoupling
This may be fine for A-listers, but it is not possible to divorce on this basis in England and Wales. Until no fault divorce is approved by parliament, if you are divorcing within 2 years of marriage, one party has to be ‘blamed’ in the petition, even if the separation is perfectly amicable.

Grounds for divorce
If the marriage has irretrievably broken down you must be able to prove one of the following:
• Adultery
• Unreasonable behaviour
• 2 years separation – with consent
• 2 years desertion
• 5 years separation – without consent

Considering divorce?
Take time to find out exactly where you stand and what you are entitled to. You can speak to our friendly experienced team, in complete confidence and without obligation – contact 01302 320621 or email info@athertongodfrey.co.uk