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What Happens in Court Proceedings?

Court proceedings to settle divorce finances can be likened to a play of three acts.

Act One: Your first appointment at Court and exchange of financial information to ensure you both have a full and accurate picture of your marital finances.

Act Two: Financial Dispute Resolution hearing where you will exchange offers and gain guidance from the Judge about what the Court would consider to be a fair agreement.  You are encouraged to reach your own agreement on this day before the decision is removed from your hands in the final act.

Act Three: Final hearing and Judges final decision.

It sounds relatively straight forward, but your schedule will be set by the Court and with the current strain on Family Courts, it is not uncommon to wait months between each hearing or act.

If you wish to move forward more quickly, it is possible to step outside the Court system and hold a Private Financial Dispute Resolution Hearing (PFDR).

What is a Private Financial Dispute Resolution Hearing?

A PFDR is essentially a private court hearing where you select an expert Barrister or Solicitor to sit in as the Judge and give you guidance on how to settle your finances.  You can choose your Barrister or Solicitor with expertise in the specific areas that are causing friction.

As with a Court hearing, you can speak on your own behalf, but it is normal for a Family Solicitor or Barrister to present the arguments for you.  Unlike a financial dispute resolution court hearing, a PFDR is tailored entirely to your needs, so you choose the venue and set the timetable.

Once your Judge has reviewed all points, they will advise you on the most likely outcome if the decision was made by a Family Court Judge.  You can choose to accept this outcome and draft it into an agreement to be submitted to the Court for approval or use it as the basis of final negotiations.

Is a Private Financial Dispute Resolution Hearing Legally Binding?

A private financial dispute resolution hearing is not legally binding, but agreements reached within a PFDR can be drafted into a contract called a Heads of Agreement and in turn into a Consent Order. If a Consent Order is sent to the Court and approved by a Judge then it will be legally binding.

What are the Advantages of a Private Financial Dispute Resolution Hearing?

If you are unable to agree your separation finances between you, you might consider a PFDR as an alternative to Court because:

• You can choose a Barrister or solicitor as a Judge with expertise relevant to your case.
• You can take your time as you will have the full attention of the Judge for the whole day.
• You can set the date for the PFDR rather than having a date chosen for you.
• You can choose whether your PFDR will be held in person at a barrister’s or solicitor’s office, or take place virtually.
• The process is flexible, you can choose to accept the Judge’s advice and make it legally binding, use it as the basis for final negotiations or return to Court.
• If you decide to accept the agreement you can skip the last act in Court.
• You can hold a PFDR alongside the Court process or as a separate exercise to assess how the court might handle your case.

What are the Disadvantages?

As with all things, what is thought to be an advantage by one person may be considered a disadvantage to another. Generally speaking, due to the flexibility associated with a private FDR there are few drawbacks.  There will be some added costs compared to a Court FDR, including the Judge’s fee, but if you reach agreement this may be negated by reducing the number of hearings in Court.

Legal Advice

We have highlighted Private Financial Dispute Resolution Hearings as an effective alternative to Court, but there are other Alternative Dispute Resolution (ADR) options available.  If you wish to explore whether a private financial dispute resolution hearing or another method of ADR may be helpful in your case, please get in touch with us at Allard Bailey Family Law.

To book a consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form.

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What is Family Arbitration?

Arbitration is effectively a private court hearing where you select your own Judge, known as an Arbitrator.

You can choose which arbitrator you wish to use based on their areas of expertise. If you are unable to agree on the arbitrator, there is a process which enables an arbitrator to be appointed for you

During arbitration you each present your case to the Arbitrator. As with a Court hearing, you can speak on your own behalf, but it is normal for a Solicitor or Barrister to present the arguments for you.

Unlike a Court hearing, arbitration is tailored entirely to your needs, so you can set the timetable and choose the venue (physical or virtual). In some cases, Arbitration can be completed entirely on paper.

Is Arbitration Legally Binding?

Before the process can begin, you must both sign an agreement to uphold the arbitrator’s decision (sometimes called an ‘award’) and turn it into a court order. This makes it legally binding and enforceable in law.

Is Arbitration Right for Me?

If you are unable to reach a fair divorce settlement through other means, it is worth considering Family Arbitration as an alternative to Court because:

• You can choose an arbitrator with expertise relevant to your circumstances, rather than having a Judge appointed who may not have the same level of knowledge in the specific aspects of family law.
• Your chosen arbitrator will hear your case from start to finish, ensuring consistency, which is often not possible in the court system.
• The process is flexible and you can effectively decide on the speed at which it progresses, rather than your timetable being set by the Court.
• You can choose where the arbitration will be heard, the arbitrator’s office or a solicitor’s office, which offers a more relaxed experience than Court.
• You will receive the written award or determination from the arbitrator within 28 days, but often sooner. It is not uncommon to wait several weeks or sometimes months for a court to hand down judgment.
• The decision is private and confidential, it will never be published.

What are the Disadvantages of Arbitration?

As with all processes, what is considered an advantage by one person may be a disadvantage to another.  A key point to note is that there are limited grounds to appeal the Arbitrator’s decision if you are unhappy with it.

You should also be aware that the Arbitrator will charge a fee and it is normal to split that between you.  Although this may seem like a large expense, Arbitration is usually less costly than court litigation, which can be littered with delays that increase costs.

Legal Advice

We have highlighted Arbitration as an effective alternative for those who would otherwise go to Court, but there are other Alternative Dispute Resolution (ADR) options available.  If you wish to explore whether arbitration, or another method of ADR, may be helpful in your case please get in touch with us at Allard Bailey Family Law.

To book a consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form and we will get in touch with you.

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In traditional mediation you sit with your former partner and a trained mediator to discuss arrangements directly.  You will usually attend several sessions, during which the mediator will help to keep the conversation on track, whilst also ensuring the agreements you reach are lawful.  It is both sensible and common practice  to take separate legal advice to ensure that you agree a settlement that is fair and works for both of you.  You can read more about traditional mediation in our blog Could mediation help you to resolve your family law dispute?

Successful mediation is usually quicker and cheaper than involving the courts, but many people find the idea of advocating for themselves daunting. In which case, Solicitor Led Mediation could be a better option.

What is Solicitor Led Mediation?

In solicitor led meditation, your solicitor attends mediation with you and can speak on your behalf. This can be helpful if one person is less confident or there is still a lot of emotion affecting your ability to communicate with each other.

You can sit round a table together with your solicitors and the mediator to have a discussion, or in separate rooms with the mediator presenting each person’s views. The main advantage of the latter is that you will be able to have full and frank conversations with your solicitor before responding, but in both cases you will have the benefit of their advice and support, so that you might reach agreement more quickly.

Is Mediation Legally Binding?

Mediation is a voluntary and confidential process intended to help you reach agreement or narrow tricky issues.  Agreements reached within mediation are not legally binding but can be drafted into Heads of Agreement at the end of mediation and in turn into a Consent Order. Once you have signed Heads if Agreement it can be difficult to rescind from the Agreement.  If a Consent Order is sent to the Court and approved by a Judge then it will be legally binding.

An advantage of attending mediation with your solicitor is that Heads of Agreement can be drafted and often signed on the day the agreement is reached.

If, however, you are unable to reach agreement, you can take your matter to Court or try another method of dispute resolution such as Arbitration.  If you do this, you cannot refer to the discussions you have had in mediation, although any financial information that has been provided can be used.

Is Mediation Right for Me?

Mediation is not right for everyone and is not appropriate where there has been significant domestic abuse.  However, for most people, even where conflict levels are high, it can be a very effective process for sorting out disagreements. It can also help with communication and understanding going forward.

Legal Advice

We have highlighted mediation as an effective means of Alternative Dispute Resolution (ADR) but there are other methods available.  If you wish to explore whether mediation, or another method of ADR, may be helpful in your case please get in touch with us at Allard Bailey Family Law.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form on this page.

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Divorce is on the increase again with the most recent statistics showing 113,000 divorces in 2021, up nearly 10% on the previous year, which has had a significant impact on wait times. On average it now takes 52 weeks to conclude divorce proceedings.

In addition, official figures show that while private children cases were down by 7% during the last year, they are taking on average six weeks longer to reach a conclusion. Estimates suggest it takes nearly two years to resolve financial matters through the Courts.

That leaves many families in limbo for over a year, which has a knock-on effect on children’s schooling, family finances and the whole family’s mental health.

Resolution surveyed its members on the current court backlogs and found:

• 90% said court backlogs were causing additional and unnecessary stress and pressure for clients
• 34% said they had referred a client to a counsellor or therapist to help them cope with the stress of ongoing court delays.

Louise Allard of Allard Bailey said: “Backlogs are wreaking havoc on families. Even couples who want to separate amicably are having their patience tested by long delays. When it comes to sorting out arrangements for children and finances after divorce, the situation is even bleaker.

Children are waiting nearly a year for the courts to determine which parent they live with, what school they go to, how much time they spend with the other parent – putting the whole family’s life on hold. This is simply unacceptable and another reason why getting early professional advice is so important for families.”

Juliet Harvey, national chair of Resolution, said: “Under resourcing the family courts system is a false economy inflicting unnecessary pressure on the public purse and unconscionable stress on families at an already stressful time in their lives. A study of the impact of funding legal advice in Scotland found that, every £1 spent by government on legal aid in family cases saw a return of around £5 elsewhere.

If the government were to focus more on encouraging early advice for separating couples and including information about all out of court options it could ease the pressure on family courts. Resolution members like Louise Allard are doing their best to help families achieve better outcomes and find long-lasting resolutions.”

NOTES FOR EDITORS:

1. Resolution is a membership association of 6,500 family justice professionals promoting a non-confrontational approach to resolving family issues and campaigning for a fairer family justice system.

2. Resolution members commit to a Code of Practice that promotes a constructive approach to family issues and considers the needs of the whole family, in particular the best interests of children.

3. Further updates about Resolution’s work can be found via our official twitter handle: @ResFamilyLaw and on our website: www.resolution.org.uk

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The latest publication includes the following commentary about Allard Bailey Family Law:

‘The ‘attentive and responsive team’ at Allard Bailey Family Law ‘undertakes a high volume of HNW work – which is testament to its expertise’.  The team of ‘very experienced female solicitors who combine expertise with kindness’ is co-led by Sabrina Bailey and Louise Allard.  It is regularly instructed on high-value financial cases with an international element and with complex tax, trusts and business assets as well as on difficult children cases.  It has been expanding at partner level with the promotions of Louise Poulton and Jennifer Granby to the partnership and the addition of Siobhan Lomasney from Fletcher Day.’

The Legal 500 2023

Testimonials included in the edition, which were obtained through independant research:

‘Louise Allard is a stellar individual, her work is at a high level and she is hugely proactive and effective on behalf of her clients. She is fantastic to work with, very collaborative and insightful with great knowledge of the law as well as how to strategise effectively’.

‘Louise Poulton is one to watch, her command of her cases is impressive, she is diligent, hugely supportive and caring in respect of her clients and very easy to work with. Her grasp of the nuances in a particular case are excellent and instinctive. The way she prepares cases makes it very easy to come in as counsel and do a great job. She is fantastic to work with’.

‘I have mainly worked with Jennifer Granby. Jennifer is pragmatic and sensible, whilst also being approachable and client-friendly. Very easy to work with and has a very good grasp of the issues and of the best way in which to present her clients’ arguments’.

As a specialist firm with offices in London and Hertford, we focus on all areas of family law and the preservation of private wealth.  

If you would like to speak to a family solicitor about adoption, child arrangements, dissolution, divorce, domestic abuse, financial settlements, nuptial agreements, separation, surrogacy or any other area of family law, please call 020 7993 2936 to book a consultation or complete a Contact Request.  Alternatively, you can start your matter online using our Free Family Law Portal.

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Court-Ordered Child Maintenance

If child maintenance forms part of a Court Order, the rules for seeking amendments vary depending on when the Order was sealed by the Court and the clauses contained within it. Factors like the date, special clauses and the possibility of enforcement need to be considered.

Date of Court Order

If the Court Order was made in England and Wales between 5^th April 1993 and 6^th April 2002 (and the receiving parent is not in receipt of income support) the Order can only be varied through the Court.

If an Order was made after 6^th April 2002 and has passed its first anniversary, the child maintenance element can be transferred to the CMS for assessment.  

If an Order is less than one year old, the child maintenance clause cannot be transferred to CMS and payments must continue until the first anniversary of the Order, unless and your child’s other parent agrees to a change.   In some circumstances, you can apply to the Court to vary the Order before the first anniversary.  A family solicitor can advise you on your chances of success.

How can I change a Court Order?

If you need to make a change, we recommend that you first contact the receiving parent to explain the situation. If that is not possible, or the desired progress is not made, a mediator or family solicitor could aid the negotiation process. We strongly recommend that any negotiation achieved should be recorded in writing, ideally in the form of a Consent Order and lodged with the Court.           

In matters where negotiation is unsuccessful, it would be appropriate to ask the Court to review the Order, to decide if child maintenance should be varied.

If you qualify to transfer child maintenance to CMS, you will need to pay a fee and provide full details of all parties for them to make an assessment.  Once this happens the child maintenance clause in your Court Order becomes null and void and you will become liable to pay the amount determined by the CMS.

How is child maintenance calculated by CMS?

When making their calculation the CMS will consider how much you earn, how many nights a week the child spends with you and whether you have other children who are dependent on you.

It is important to note, that the CMS calculates child maintenance based on your income for the previous tax year, meaning your liability could be increased or decreased when compared to your original Court Order. However, a recalculation is possible if your (the paying parent’s) income has changed by 25% since the last tax year or if you are now in receipt of benefits.

What if there are Special Clauses in the Court Order?

Some Orders contain special clauses such as contractual agreements and ‘Christmas Orders’.  Contractual arrangements can be stand alone or in addition to a Court Order. Where a parent has signed a contract to make maintenance payments, then varying payments would be breaching the contract. As changes to payments can result in serious repercussions, including being ordered to pay damages, judgement summons and potentially even bankruptcy, it is essential to seek legal advice.

Some orders contain what is known as a ‘Christmas Order’. This means that the child maintenance element of the Order renews annually and is therefore never over 12 months old. This means you cannot transfer the matter to the CMS. Any change to this Order would need to be by agreement of both parties and recorded in a further Consent Order or by application to the Court.      

What is the Risk of Enforcement?

Court Orders made in the jurisdiction of England and Wales (while the paying party resides there) could be subject to an Enforcement Order.  Therefore, we strongly recommend taking take legal advice before making unilateral changes to Court Ordered child maintenance payments.                

A Judge hearing such matters has a wide range of enforcement actions available to them including:

• ordering that any maintenance owed can be taken directly from earnings;
• placing a change on property or other assets;
• sending bailiffs to seize belongings;
• freezing funds in bank accounts.               
   

As the repercussions are so serious and can have long term effects on your financial situation, it is important to take advice from a specialist at the earliest opportunity.   

Legal Advice

Where there is a Court Order in place for child maintenance it is important to obtain advice before varying payments.

If you would like to speak to a family solicitor about the specifics of your situation, you can call 020 7993 2936 to book a consultation or complete a Contact Request.

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For International Women’s Day, our Managing Partners Louise Allard and Sabrina Bailey discuss gender bias in modern families, how this translates to family law on separation and the steps that can be taken to level the playing field.

Louise addresses the issues for married mothers:

“In the last 50 years there have been leaps in society’s attitude towards the roles of Wife and Husband. It is generally accepted that women can work and men can help within the home – and divorce law has changed to reflect this.  Lifetime orders for spousal maintenance are becoming a thing of the past and, if a clean break is not possible, spouses are expected to achieve financial independence within a few years.

The theory is sound, but in practice there is a clear stereotype when it comes to the roles of Mother and Father, which leaves women at a disadvantage if the relationship breaks down.

Although there are exceptions, women generally take the lead in caring for children, which often means taking a step back from their career, working part-time or giving up work altogether.

Reverting to traditional roles can seem like a good idea for the family, but the reality is that it usually affects the women’s job prospects if she returns to the workforce.  It’s unlikely to be an issue if the husband provides financial support in exchange for the wife forfeiting her career, but it can pose a problem when a couple separates.  The courts will want the wife to become financially independent and that can mean major changes in lifestyle if her earnings potential has been capped and the husband does not agree to provide the ongoing financial support that was expected.” 

Sabrina highlights how the position of unmarried mothers is even more tenuous:

“Marriage is declining in popularity and unmarried parents are the largest rising family type. Unmarried women who give up their careers and ‘take one for the team’ find themselves in an even more vulnerable situation if the relationship ends. 

If you are married you will divide the marital pot and hopefully leave the relationship with enough capital to meet your immediate needs.  If you are unmarried and assets are not in joint names, the father does not have a legal obligation to share them with you.  This is true regardless of how long you are together, so even after a 20-year relationship, if the house is in his name, he can keep it.

If the mother has day-to-day responsibility for a child, she can apply for financial support and housing for the child, but she will need to find a separate income to meet her own needs.  This can be difficult if you are the primary carer and must fit work around your children – or you’ve been out of the workforce for a long time.

If you have a 50/50 care arrangement with the father or your children are older, you might not qualify for any form of child maintenance or housing support for the child.  If Dad’s career has progressed and Mum is restarting hers after a break, this can create a real imbalance in the child’s life experiences with each parent.”

What can we do to tackle the bias?

Sabrina for unmarried couples:

“I would always advise unmarried couples to enter into a Cohabitation Contract, also known as a Living Together Agreement, which sets out their intentions for the ownership and division of assets, as well as their responsibilities for upkeep, bills and debts – and any other arrangements they would like to be in place if the relationship ends.

If you don’t have one, it’s a good idea to get Cohabitation Agreement in place when you are planning children, as it can help you to agree your roles and responsibilities over and above the legal requirement to provide for the children, should you separate.  

A Cohabitation Agreement is particularly important if you have a shared expectation that your children will be raised in a lifestyle that can only be afforded by one parent, for example if your child’s private education is funded by the parent with higher earnings and you want to ensure it will continue irrespective of your relationship.“

Louise for married or soon-to-be married couples:

“Couples have the option of entering into a Prenuptial Agreement before they marry or a Postnuptial Agreement afterwards, and they can be helpful tools if your roles and contributions to the relationship are going to change and you want to ensure that you have similar expectations.  Although they are not legally binding in the strictest sense, the Court is likely to uphold a Prenuptial or Postnuptial Agreement setting out separation arrangements as long as it has been entered into voluntarily and is fair.”

Sabrina adds:

“On a personal level, I would suggest that women keep their career going in some form if they can, so they have something to go back to if they want or need to. I left London and took a career break when I had my eldest and it wasn’t easy to return, but I’m now divorced and raising three children alone without any contact from their father so I’m grateful I have my career already, rather than having to start from scratch.”

Summary

As attitudes towards relationships and divorce laws evolve, the women who make the biggest sacrifices seem to be paying the greatest price.  It is possible to #BreakTheBias by entering into a Nuptial Agreement or Cohabitation Contract with your partner and we encourage you to do so. 

Follow these links to learn more:

• Prenuptial and Civil Partnership Agreements
• How do I know if our Prenuptial Agreement is Fair?
• Cohabitation Agreements
• Cohabitation Disputes

Legal Advice

If you would like to speak to a family solicitor about the specifics of your situation, you can call 020 7993 2936 to book a consultation or complete a Contact Request.

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The only amicable option has been to separate for 2 years before beginning divorce proceedings with your spouse’s consent.  If there had been no clear wrongdoing by your spouse and they did not agree to the divorce, you would have to separate for 5 years before the Court would agree to legally end your relationship.

As well as removing the need to prove wrongdoing, No-Fault Divorce eliminates the requirement to have your spouse’s consent and makes it possible for anyone to obtain a divorce in as little as 6 months. 

Are these positive changes?

Yes, we believe so, which is why we were one of the firms campaigning for this change.

The decision to divorce is rarely easy and an individual should have the right to choose whether they remain part of a couple, without having to justify their decision to strangers or wait years to separate their interests.  Divorce and dissolution are stressful enough without these unnecessary hurdles. 

Are there any other changes to divorce law?

A 20-week cooling off period has been introduced after the initial application to give people the time to reconsider or agree practical arrangements.  This means it will no longer be possible to finalise a divorce in less than 6 months.

The other notable change is that if you need the help of the court to settle finances and it may bias one spouse to grant the divorce or dissolution before a financial order has been granted, you will have to wait for the conclusion of financial proceedings before your divorce can be concluded. 

When will “No-Fault Divorce” come into effect?

The changes come into effect on 6 April 2022, under the ‘Divorce, Dissolution and Separation Act 2020’.

Should I wait for No-Fault Divorce and Dissolution?

The answer really depends on the specifics of your situation.   If you do not want to accept or apportion blame, or if you want to get divorced but your spouse does not, it might make sense to wait for the new rules. 

For those on amicable terms, the major benefit of waiting is that you will be able to submit a joint application, which you may prefer. 

Whatever the circumstances, the core issue is finding a way that you can both move forward with your lives.  To do so, you will need to agree your divorce settlement and arrangements for the ongoing care of any children. 

If you have complex finances, investments, business interests, high value pensions or assets located overseas – or if you are not on good terms – this can take some time.  The new system will not make this part of the process any quicker, so you may wish to start sooner rather than later, a delayed start will only mean a delayed end.

If time is of the essence, you should note that it is possible to finalise your divorce in 4 months under the current rules, under the new rules it will take at least 6 months. 

What is the cut-off for applying under the current rules?

If you want current divorce law to apply, your application must be with the court by 4pm on Thursday 31st March 2022. Online applications must be submitted by this time and paper applications must have been received by the court.

If you miss the cut-off you will have to wait until 6th April 2022 and make an application under the new rules. Divorce applications will not be accepted by the courts from 4pm Thursday 31st March to Tuesday 5th April 2022 to allow time for the transition.

Legal Advice

A solicitor will be able to advise you on whether it will be more beneficial to wait for the new laws or start proceedings under the current rules.  If you would like to speak confidentially to our team of family solicitors you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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What does the Mediator do?

The mediator’s primary role is to ensure all participants are able to voice their feelings and opinions, whilst avoiding arguments and keeping the momentum in negotiations.  The mediator is impartial and will not take sides or give an opinion on any matters discussed between you.  However, they will explain legal principles and help you to identify and explore different options, so that you can make informed decisions. 

What are the benefits of Mediation?

Mediation has many benefits, not least that it is usually cheaper and quicker than other methods of reaching settlement.  You may be able to resolve differences with only a few sessions of mediation, whereas court hearings can take months or even years.  Because you reach your own agreements, you have the discretion to decide where you are willing to compromise, rather than having decisions thrust upon you.  This enables you each to demonstrate a level of respect for each other and hopefully remain amicable after the process.   Mediation should be a safe space to discuss differences.  Discussions are without prejudice and confidential between the parties and the mediator.  

A mediator does not have the authority to make decisions on your behalf, you can choose to create a binding agreement at the end of the mediation.  If you cannot reach agreement and the matter is taken to court, the content of the mediation will remain confidential, and the court will not be made aware of any of the details.

When is Mediation not appropriate?

Mediation is suitable for most types of family law dispute. The courts want you to reach your own agreement if you can, so participation in a Family Mediation Information and Assessment Meeting (MIAM) is now a requirement before making certain applications to the Family Court.  There are circumstances in which mediation is not appropriate, such as where there has been coercive control or domestic violence in the relationship. In which case the MIAM will show that mediation is not a viable option for resolving your issues and it is necessary to involve the courts.  

The key to a successful mediation is the mindset of the participants and your ability to make appropriate compromises in order to reach an understanding that is agreeable to you both.

Child Inclusive Mediation

Child Inclusive Mediation is an alternative means of resolving children matters, which can help you lay the foundations for a strong co-parenting relationship moving forward.  Child inclusive mediators are specially trained to work with children and can assist by being a neutral party that can ascertain the child’s voice.

The practice is best suited to secondary school aged children, who are mature enough to know their own minds and have their own reasonable opinions about the situation. You can read more about child inclusive mediation here.

Mediation Funding

The Government is running a family mediation voucher scheme to help people with the cost of mediating disputes involving children. This is a time-limited scheme intended to support recovery in the family court and encourage more people to consider mediation, where appropriate. At the time of publishing, over 4,400 vouchers had been issued with 77% of cases resulting in a resolution. You can find more information about the scheme here.

**Update 16th January 2023: the Government extended the scheme until March 2023, so we recommend acting soon.**

Legal Advice

You are able to take independent legal advice at any stage of mediation and it is possible for a solicitor to attend mediation with you if you wish.  We are able to help you prepare a legal proposal to present at mediation, review the legalities and fairness of proposals made to you and coach you through the process. To book a consultation with one of our team of divorce lawyers and children lawyers you can call us on 020 7993 2936 or make a Contact Request here. 

Alternatively, you can Get Started Online to receive a Free Confidential Report outlining your position.

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A recent 2021 report from Nuffield on ‘Children’s Experience of Private Law Proceedings’ found that children felt largely unheard in proceedings and that their wishes, feelings and voices were often lost in the process. The report flagged that that the impact on children can last them into their adulthood.

The findings indicated that children want to engage more with the process and be involved in the decision making that affects every aspect of their day to day lives.  This echoes what we hear from many of our clients and their children.

We explore how Child Inclusive Mediation can give older children a voice, how it can be used to resolve children matters outside of court and how it can benefit families who are already in proceedings.

What is Child Inclusive Mediation?

Child inclusive mediation can also be known as direct child consultation or child led mediation, and it is where a mediator meets directly with the child. Child inclusive mediators are specially trained to work with children and can assist by being a neutral party that can ascertain the child’s voice.

The specialist trained mediator will speak with the child independently, they may speak to the child with each of the parents individually and with both parents present. Both parents can be reassured that the mediator is not biased and that the child’s views are genuine and not parent led.

Who is child inclusive mediation suitable for?

The Voice of The Child Report 2015, commissioned by the Ministry of Justice, recommended that children aged 10 or over should have the opportunity to meet with the mediator.

The practice is best suited to secondary school aged children, that are mature enough to know their own minds and have their own reasonable opinions about the situation.

Both parents need to be willing to engage, and consent to the child engaging with the mediator.

What type of issues can be brought to child inclusive mediation?

The most common issues brought to this type of mediation are disputes around which parent a child may live with, how much time the child will spend with each parent, where a child will go to school. However, child inclusive mediation can help parents reach agreement over any issues relating to their children.

Who is child inclusive mediation NOT suitable for?

Child inclusive mediation is not suitable for children under the age of 10. It may cause significant stress for younger children to be put in that situation, but in certain exceptional circumstances it may be considered only with the agreement of both parents and the mediator. 

Cases where there are significant safeguarding concerns, such as matters with domestic abuse and child welfare concerns, will not be suitable for child inclusive mediation.

When can child inclusive mediation be used?

Child inclusive mediation is incredibly flexible and can be used alongside other resolution methods.

Where parents are already in mediation and the mediator does not offer child led mediation, it is possible to engage a separate mediator and return once the child’s wishes have been gained.

Where parties are negotiating though solicitors and child arrangements are at an impasse, rather than engaging in lengthy and often expensive trial by correspondence, it can be helpful to gain insight into an older child’s views, which can help unlock the outstanding issues and move the family along.

When parents are engaged in court proceedings and it is not possible to obtain a CAFCASS Section 7 report, it may be possible to engage with child led mediation to bridge that gap. This would be far quicker than waiting on a CAFCASS section 7 report, which at present can take between 12-16 weeks. Child inclusive mediation can be a part of court proceedings with the agreement of both parents and the directions of a Judge. While the child’s view in the process is persuasive, it is worth noting that it is only one of the 7 points on the welfare check list that the court takes into consideration when making a determination in the best interests of a child.  

Are there any other benefits?

When parents separate it triggers a period of significant change and adjustment for children, which is often beyond their control, and this can be highly stressful and upsetting for them.  A key benefit is that the child can feel empowered and that they have some influence of the changing situations around them.

Child inclusive mediation is a child focused method of resolution that allows the child’s voice to be heard in a process where it would often be lost. The use of child inclusive mediation can help focus parents and create the foundations for a strong co-parenting relationship that can last for a child’s minority years.

Legal Advice

At Allard Bailey Family Law, we encourage parents to keep their children’s needs front and centre of every matter.  We are experts at helping parents to resolve issues about their children. If you find yourself in need of assistance to divorce or separate in a way that makes your child’s needs the focus, please get in touch.  Our specialist knowledge and proven results with child arrangements can help you to navigate through this difficult time.

If you would like to speak confidentially to our team of family solicitors you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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What is a Parenting Plan?

A parenting plan is a written record of the agreement made between parents about how they will care and provide for their children following a separation.

What does a typical Parenting Plan include?

A parenting plan includes the basic information identifying both the parents and the children.

It sets out the practical day-to-day arrangements for each child. It is essential to include information on living and care arrangements, such as who the child will live with and who the child will spend time with. It is important to cover specific details like how much time the child spends with each parent, what times and days as well as the arrangements for birthdays, holidays and special occasions.

It can also cover arrangements for how care for sick children or isolating children will be divided between the parents and their respective homes.

Comprehensive plans can go on to include information such as who will be responsible for communicating with the nursery, school, doctors and dentist.

It is not unusual for a plan to contain information on pocket money, maintenance for children and what will happen if one parent’s financial circumstances change.

The parenting plan can also set out how the parents will communicate with each other, such as what method of communication they will use and how frequently.

The advantages of a Parenting Plan

In a situation where there are no safeguarding concerns, a parenting plan can be a great benefit to assist a positive co-parenting relationship. This is because a parenting plan encourages the parents to remain child-focussed, which is extremely important in separation.

It sets the agreement out clearly which can provide consistency, and this can help the child get used to their new circumstances.

In formulating the parenting plan both parents will have to determine their approach to big decisions like how they will decide on schools, medical care and communication. This means that further down the line when these issues arise, there is already the framework for how to deal with them and you can side-step unnecessary stress and conflict. 

The greatest benefit is that a parenting plan is unique to your family and gives the parents full control over how they will deal with all decisions for the children in every circumstance. It can be varied very easily between the parents as the children’s needs change and develop over time and tailored to each child.

How to create a Parenting Plan

There lots of useful guides online to help support you with creating a parenting plan. The most comprehensive one is available free of charge on the CAFCASS website, you can access it here.

Ideally, both parents would be able to sit down and work through the parenting plan guides and worksheets together. Where things are more difficult after a separation it may be helpful to have support of a trusted mutual family member or friend to act as a neutral third party. Family mediators can also assist with creating a parenting plan for your family.

Where things are extremely difficult, solicitors can help you to negotiate a robust parenting plan.

Do we really need a Parenting Plan?

A parenting plan is an extremely useful tool as it helps parents to look at future scenarios and decide how they will act in advance, which can take pressure off them and their children in the moment. 

Whilst it is not legally binding, the court does ask if there is a parenting plan in place on child arrangement application forms and this can be very persuasive as the intentions of both parents are clearly documented.

What is the difference between a Parenting Plan and a Child Arrangements Order?

A parenting plan is simply an agreement between the parents and can be changed at any time. On the other hand, a child arrangement court order is legally binding. This means that it should be viewed as a law upon your family. If one parent does not follow the court order, without varying it in court or without valid reason, then it can be enforced by the authorities. The parent breaching the court order may be held in contempt of court and receive penalties such as fines, community service and even imprisonment.

Is it possible to have a Parenting Plan Court-Ordered?

It is possible to have the living arrangements and contact arrangements recorded in a Child Arrangement Consent Order so that the parents have the certainty of knowing that their agreement is legally binding and enforceable.

As the children grow and parents enter new relationships, circumstances can change so recording the arrangement as a consent order can provide a level of reassurance that both parents will continue to remain child focused and commit to their agreement irrespective of what the future may bring. 

Legal Advice

If you find yourself in need of assistance with your child arrangements and would like some advice on whether a Parenting Plan or Child Arrangements Court Order could be beneficial in your circumstances, please get in touch.  Our specialist knowledge and proven results with child arrangements can help you to navigate through this difficult time.

If you would like to speak confidentially to our team of family solicitors you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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We know this is not easy but it is really worth taking the time to think about these issues.

1. Choose the Right Time to Talk to Children

In our experience, the right time to speak to a child about separation is when both parents are certain that is what they want and what they are intending to do.

Ideally, both parents would be able to sit down together with a child and allow time for lots of questions and reassurance. It is essential that children have the time to understand that whilst their parents are opting to go separate directions, they are not to blame and are still loved by both.

The conversation should always be age appropriate, a teenager may need a little more information than a 5-year-old, but neither need to be involved in the nitty-gritty of the separation.  It is a conversation that will need to be revisited as the child grows and their understanding changes.

2. Make a Conscious Decision to Respect the Other Parent

Making a conscious decision to continue respecting and promoting a good relationship with the other parent can have a really positive affect on a child. This can include something as small as continuing to refer to the other parent as ‘Mummy’ or ‘Daddy’. It is important not to speak negatively about the other parent in front of, or within earshot of, the child as it could make them feel that they need to take sides.

3. Establish a Consistent Contact Plan

Establishing a regular contact pattern from the outset with both parents will ensure your child feels safe and secure in the knowledge that they are not losing a parent. Using a wall calendar which marks the dates that the child is with each parent can give your child a strong sense of where they are supposed to be without having to ask all the time.

If the contact plan involves school drop offs and collections, it can be confusing for children if they are unsure who is collecting them. It can also be helpful to have a weekly schedule in the child’s planner or book bag, so they always know which parent they are expecting at the school gates. Young children may find it helpful to know how many sleeps until they see their other parent. 

It is also important to remember that contact does not have to be in person, so time spent together could be supplemented with indirect contact such as regular phone calls and video calls.

4. Support Your Child’s Emotional Needs

There are lots of books and worksheets available to help a child come to terms with their new situation. ‘Two Homes’ by Claire Masurel, is a much acclaimed picture book tackling divorce and can help open the conversation with your child about the changes that are occurring around them and their feelings.

It is important to recognise that the separation is a period of change that reaches beyond the child’s relationship with each parent and that it will affect all children differently, so they may require some distinct support. Parents may want to notify schools or nurseries to the changes at home so that caregivers can keep an eye on the child’s wellbeing and give appropriate support – especially if their feelings are expressed through behaviour rather than words. Lots of schools have strong pastoral care and counsellors that can provide additional support.

Bear in mind that new care arrangements may affect how often children see extended family members and friends, who they might usually turn to for emotional support. It may be appropriate for you to arrange for a child to have regular contact with a neutral family member or friend who they can open up to. If there is no-one in the child’s life who can provide this support, you might consider whether a counsellor could help. There is a list of services available to support young people on the NHS website.

5. Protect Children from Adult Matters

It is important that you do not involve children in adult matters as it can be very damaging and worrying for them. As a consequence of the pandemic, lots of services are offering remote or over the phone appointments, which means children can easily overhear what should be private conversations.  Parents should also be mindful of children overhearing things when they are talking to their family and friends. 

Parents should allocate a safe space to store solicitors’ letters, divorce papers and court orders to ensure that they are not accessible to children as reading them could cause real worry and harm to the child. Lots of information is now sent digitally and care should be taken to ensure there is a safe folder on laptops and other devices that children have access to.

Legal Advice

At Allard Bailey Family Law, we encourage parents to keep their children’s needs front and centre of every matter. We are experts at helping parents to resolve issues about their children. If you find yourself in need of assistance to divorce or separate in a way that makes your child’s needs the focus, please get in touch.  Our specialist knowledge and proven results with child arrangements can help you to navigate through this difficult time.

If you would like to speak confidentially to our team of family solicitors you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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Allard Bailey Family Law joins with thousands of family professionals to launch Resolutions’ Parenting Through Separation Guide during Good Divorce Week.

The free guide is available to any parent seeking help during their separation. It contains advice about how to co-parent with a former partner, background on the common disputes that arise between separating parents, and how to talk to children about the painful topic of divorce or separation, plus much more.

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Although prenups are not 100% legally binding in the strictest sense of English law, courts in the UK will generally give prenups significant weight – and they are often followed – if they are drawn up properly and are fair. When considering the fairness of a prenup there are some important points that a Court will consider:

1. You must both have entered into the agreement willingly.
2. The agreement should be reached and signed well in advance of the wedding – 28 days as a minimum.
3. There needs to be full disclosure of your financial position to your partner and vice versa.
4. You must both be provided for.
5. Both of you should have the benefit of legal advice to make sure you fully understand what you are agreeing.

If you want to protect specific assets, such as a business or pension, it is not as simple as both signing a piece of paper to say the business or pension is yours.  For the prenup to be fair one of the things you will have to demonstrate is how you will both be provided for if you separate.  You can ringfence an asset, but only if you have an alternative way for your spouse to be compensated or they have assets of their own that they can keep and therefore that would be fair.  If the prenup meant one spouse would be comfortable, but the other was in financial hardship that might be problematic for the Court and the prenup could be disregarded. 

Equally, if there are not sufficient assets to go around without including your business or pension, you need to be aware of that before getting married or becoming civil partnered, so there are no nasty surprises later.  However, there are lots of options you can consider including limiting your spouse’s share to a percentage of the value added after you wed so a prenup may still give you some protection.

What if our circumstances change?

If you got married without a prenup or your circumstances have changed, you can prepare a Postnuptial Agreement in its place.  These are like prenups but can be put in place after the ceremony.  Similar rules apply in that they must be fair, legal advice should be taken and it is important that no one feels any pressure to sign.  It is always advisable to review your prenup if you have children as the Court is likely to disregard any provisions within it that could be considered unfair towards children.

Legal Advice

It is not only advisable to take legal advice when preparing a prenup, but it is necessary for both people to obtain independent legal advice on the fairness of the agreement if you want it to stand up in an English Court.

If you would like to speak confidentially to our team of family lawyers you can call 020 7993 2936 to schedule an appointment or make a Contact Request here. 

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Who does pension sharing apply to?

The simple answer is most couples where there is a work-related or privately held pension, there are very few exceptions.

When you end a marriage or civil partnership, all your assets and debts are considered in the overall division of assets regardless of whose name they are held in. The starting point is to share everything 50/50, but this will vary depending on your individual circumstances.  There may be good reasons to depart from equality. A Court Order is required to make your agreement legally enforceable and therefore the Court will need to approve any financial settlement reached.  You can read more about Matrimonial Finance here.

The Court is clear that pensions are a matrimonial asset suitable for sharing and will support the inclusion of pensions in your matrimonial finance settlement.  However, the onus is on you to ensure that the agreement you reach is a fair reflection of your financial position as a couple.  It is therefore advisable to take advice from a divorce solicitor and financial intermediaries such as pension actuaries and forensic accountants if necessary.

Even if there is a Pre-nuptial Agreement or Post-nuptial Agreement excluding pensions, it is sensible for a divorce solicitor to review the fairness of the agreement in your current circumstances and consider whether it is likely to be upheld.

Are there any pension schemes which cannot be divided?

Yes, these include:

• Basic State Pension
• New State Pension
• Any pensions already included in a pension attachment or sharing order.

However, some state pensions can be shared within a divorce depending on the year you reach(ed) state pension age, so it is best to seek legal advice.

How can a pension be shared on divorce?

There are several ways a pension can be shared on a divorce or dissolution, a solicitor can help you to assess which option would be most beneficial to you.

Pension Sharing

Pension Sharing allows you to get a share of a percentage of your spouse’s pension(s). This can be via an internal transfer (meaning the person receiving the share keeps it in the same scheme, but in their name) or there may be an external pension share to a different scheme of the receiving person’s choice. Only a court can make this order and unlike other assets, pension funds cannot effect a transfer without a Court Order.

Pros: Can help achieve a balanced and fair settlement as well as providing a clean break. If you are receiving the pension share and your spouse has a high value pension or you are close to retiring and have little provision in your own name it may be a good option for you to pursue.

Cons: Can be difficult to share the pension without also dividing other assets, which may mean selling them. If you want to keep the family home this may not be viable. It can also affect the long-term position of the person with the pension assets as the value of their pension fund will reduce by the percentage of the pension share.

Pension Attachment (also known as pension earmarking)

Pension Attachment enables you to get a specific share of the other person’s pensions once they begin to claim it, either from the pension income, lump sum, or both in some cases. Additionally, your tax-free lump sum can be included in this option.

Pros: the value of the share you/your ex-partner may receive can go up depending on if more is paid into the pension. Also, death-in-service sums can be included.

Cons: there is no clean break as these payments will be made once the partner retires so a connection is retained between the parties. No immediate payment if the paying partner has not retired and payments come to an end upon the paying partner’s death or the receiving partner’s remarriage, leaving them exposed and vulnerable. These orders are also variable.

Pension Offsetting

Pension Offsetting allows you to take into consideration other financial assets and offset their value against the value of the pension. For example, if your partner wants to keep their full pension then it might be appropriate for you to retain a greater share of other available assets. 

Pros: Will enable one party to keep/receive other assets which are of similar value to the pension.  It can be a cheaper alternative to other methods and enables one person to immediately access the benefit of assets instead of waiting for a Court Order or for their ex-partner to reach retirement age.

Cons: Pension values can fluctuate so it is difficult to guarantee that both individuals exit the marriage with assets that will be of equal value in the future.  Sometimes it is difficult to agree on the value that should be attributed to the pension fund and the fairest way in which to share the fund.

Does this include pension earnings accumulated before the marriage? 

Some people may have accumulated a portion of their pension, or indeed a separate pension, prior to their marriage or civil partnership and might want to ring fence it so it is protected against sharing on a divorce.  This is possible in certain circumstances, but there is no guarantee that a court will allow a party to ring fence the pre-acquired value if it needs to be taken into account to achieve an overall fair financial outcome for both parties.  You should take specialist advice if you are worried about this.

How can you accurately value a pension?

Pension providers are legally obliged to provide an annual valuation of your pension known as a cash equivalent value (CEV). While this provides a starting point, a qualified actuary can assess the pension and provide an accurate fair valuation of the fund and crucially anticipated future income on retirement.  Although it is not compulsory, it is advisable for you to consider whether an actuary should be instructed to provide a report on the pensions. It can be important to consider not only the value but the benefits on retirement in order to make a fair decision.

LEGAL ADVICE

Allard Bailey specialises in matrimonial finance and divorce settlements. Speak confidentially to our team of divorce lawyers today on 020 7993 2936 or make a Contact Request here.  Alternatively, you can Get Started Online to receive a Free Confidential Report outlining your position.

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In a time when both our business models and personal relationships are being tested to their limits, it is important to understand how the breakdown of a relationship can affect your business.

This webinar is essential viewing for all entrepreneurs who are:

• Married or considering marriage in the future
• With a business partner who is married or might get married in the future
• In business with their romantic partner
• Employing their romantic partner
• With business loans secured against a jointly owned residence

Because…

Your spouse could “own” 50% of your business, even if they have never been involved with it.

What does this mean?

If you separate you might need to “buy them out” or give them shares in the business.  There are also tax implications.

In this webinar we will consider:

• Real-life separation case studies from business owners who started their businesses before and during marriage, including horror stories that you will want to avoid.
• Cost-effective legal steps to help you protect your business whilst ensuring you can provide fairly for your spouse, including pre-nups, post-nups, cohabitation agreements and trusts.
• Practical tips for anyone considering divorce who does not have protections in place.
• Legal strategies to negotiate a fair outcome for everyone.

Why can we talk to you about this?  As law firm specialising in Family and Private Wealth firm, we help entrepreneurs, directors and investors to protect their professional interests from personal life events, so they can achieve their lifetime ambitions and leave the legacy they intend.  We also deal with the legal fall-out for those who do not take these steps.

Other Allard Bailey webinars for Fresh Business Thinking:

1. How to use the law to align your personal and professional goals so that you can maximise growth in all areas: View here.
2. How to protect your business from events in your personal life that can have a significant impact, such as your unexpected incapacity, death or personal debt: View here.