LPS Solicitors

The issue of money. Well, it is said talking about money can be difficult for many individuals. This is clearly much more difficult when the parties are separating and the disputes spread to the parties’ financial circumstances. There are no two ways about the fact that this is a difficult set of circumstances to face, however, it is very important that such matters are not overlooked with a sense of naivety that will lead to serious financial repercussions in the long-term.
The simple fact is that you need legal representatives who have a strong team of experts on hand to assist you with every aspect of your financial circumstances and ensure that you receive a fair settlement when taking into account all considerations.

We are here to assist you and there is no matter too small or too large. We will be on hand to support you through these difficult proceedings and will attempt to reduce unnecessary costs, proceedings and disputes. We have an impressive team to assist you with your matter and enjoy getting stuck into complex and high-value matters, including those with international elements.

Calculating Financial Provisions

We note that there are a lot of misunderstandings in respect of how the courts calculate financial provision upon separation. There is, in fact, no ‘standard’ formula and the courts may reach different outcomes on similar facts. We are on hand to guide you by relying on previous judgements to establish the possible outcomes based upon your specific facts.

The court will consider something referred to as the s.25 factors, which are:
 The existing (or reasonably foreseeable) capital and income resources available;
 The financial needs of the parties, including their ages, length of the marriage, any disabilities and the standard of living enjoyed during the marriage.
 There will also be a consideration to the contribution made by each of the parties, conduct and any benefits that would be lost following a divorce (i.e. pension).

It is important to remember that the starting point is for assets accrued during the marriage being divided 50%-50%. However, this is just a starting point and often either party can argue for the court to consider an unequal settlement due to the circumstances. The court will primarily consider the welfare of any children and other principles such as ‘needs’ and ‘compensation’ – whilst also considering the above factors. There can often be other attached issues such as inheritance, premarital assets, and arguments for stellar contribution whereby one party argues that there is a case for an uneven distribution of the assets in the financial settlement.

What Can the Court Award?
The court has various powers when distributing the parties’ assets and adjudicating upon a settlement. These include the following:

 Pensions – The court can order a pension sharing or pension attachment order. The pension sharing order will lead to the pension being split between the parties or being transferred to one party. The pension attachment order can lead to either a lump sum or maintenance being paid to one party through the other part’s pension.

 Properties – The court can order for a property to be transferred to another or for a sale of a property (with the proceeds divided in respect of the final settlement).

 Lump-Sum – The court can order a lump sum to be paid to either party and this can be by way of one sum or in installment payments.

 Maintenance – The court can order for either party to pay the other maintenance payments and this can be for a variety of periods, fixed or otherwise.
Each case of financial remedy proceedings is fact-specific and we will need us to have a chat in order to ascertain your circumstances and tailor the advice accordingly. We would strongly recommend that you contact our firm and we can assist and guide you through the process step by step.

Child Arrangement Order

The disputes arising in respect of children are very sensitive areas of law and should be handled with the due care and attention they deserve. These disputes commonly arise when parents are separating and they have disputes in respect of where and with whom children will live or how much time they spend with the other parent and/or others.

We understand how difficult these circumstances can be, especially when considering the impact on the parties, children and wider family. We consider that we take a client-focused approach that focuses on resolving and narrowing the issues without costly court proceedings. We work under your instructions but have an ethos that attempts all other avenues before considering formal proceedings. This would ultimately seek to save you the unnecessary stress, costs, and proceedings that can be attached to protracted disputes.

Formal Order Regulating Contact

These types of proceedings are referred to as child arrangement order proceedings and are normally concerned with the parents’ exercise of rights and responsibilities towards their children. If a formal order is in place, it will regulate child arrangements and provide stability for the children. These orders will commonly also outline who is the resident parent (with whom the children live) and any other contact to be had with the other parent, i.e. direct, indirect, overnight, supervised.

In the first instance, we will attempt to resolve the issues by way of negotiations and mediation (where applicable). There are many cases where such an approach can reach a settlement and we can agree on a draft order and have this approved by the court. This approach saves substantial costs and prevents lengthy litigation. Unfortunately, if this is not possible, we would have at the very least narrowed the disputed issues and this can often save time and costs should the matter proceed to formal proceedings.

Who Can Apply?

The following individuals can apply for a child arrangement order without seeking specific permission of the court.

These are:
 Parent;
 Step-Parent (if they have parental responsibility or the child is treated as a child of the family);
 Guardian/Special Guardian;
 Individual(s) with whom the child has lived for a period of at least three years.
If you have the consent of both parents (and everyone else who has parental responsibility) or if you are named in a child arrangement order as an individual with whom the child lives – you can also apply. If you are related to the child and he/she has lived with you for a year, you may be able to apply for an order in respect of whom the child will live with. If you do not fall into the above categories, we can consider your circumstances and seek the court’s permission to make such an application.

What Does the Court Consider?

The primary concern for the court is the welfare of the child. Thereafter, the court will consider something referred to as a welfare checklist. This is confirmed in legislation as being:

a) the ascertainable wishes and feelings of the child concerned (in light of age and understanding);
b) physical, emotional and educational needs;
c) likely effect of any change in his circumstances;
d) age, sex, background and any characteristics of which the court considers relevant;
e) any harm which suffered or at risk of suffering;
f) how capable each of the parents is, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) the range of powers available to the court.

What Orders Can Be Considered?

a) Contact Order – this type of order will consider with whom the child is to have contact. This can include the other parent or any other individuals and such an order will include the arrangements for such contact, i.e. when, where, how and with whom.

b) Residence Order – this type of order will consider with whom the child is to live. It is possible for parents to have shared residence and the specific terms of residence not necessarily being equal. This is commonly due to the day to day commitments of the child, i.e. schooling.

c) Parental Responsibility Order – these orders are predominantly raised by unmarried fathers who are not named on the child’s birth certificate. The concept of parental responsibility is very important and provides an individual ‘…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property…’. These types of orders can provide unmarried father rights in relation to the child.

d) Specific Issues Order – This type of order assist the parties when they are in dispute about a specific issue in relation to the child. There are often disputes between parents in respect of some fundamental aspects that fall outside the remit of day to day parental decisions. For example, this can include decisions such as which school the child attends.

e) Prohibited Steps Order – These are often emergency applications and prevent a parent from undertaking a certain course of disputed action. They are commonly utilised to prevent travel outside of this jurisdiction and in respect of abduction fears.

How Long Do the Orders Last?
It is important to remember that if the parents live together for a continuous period of more than six months, the child arrangement order will automatically end. This scenario aside. If the order contains a provision for whom the child spends time with/have contact with, the order will commonly continue until the child reaches 16 years of age and in exceptional circumstances 18 years of age. If the order contains a provision for whom the child lives, it will commonly continue until the child is 18 years of age.

There is a very high number of couples who consider that their rights and entitlements will be covered in the same manner as if they were married. This is not the case and it is important to ensure you seek independent expert legal advice.

If you are in a relationship and unmarried, you may not fully appreciate the legal ramifications of such an arrangement and the impact it can have on your legal and financial entitlements. This is often referred to as the common law marriage myth. This type of arrangement is often referred to as cohabitation. We can assist you with your rights and entitlements if you are not married (or in a civil partnership) and cohabit with your partner. This area of law can often involve complex trust law aspects and we can support you every step of the way - be it to help secure your assets or to assist you during any disputes.

Cohabitation Agreement & Deeds of Trust

First and foremost, for those who seek to plan ahead, we can assist you with drafting a legally binding cohabitation agreement. This would be a legally binding document setting out your legal and financial obligations to one and another – this is especially useful should the relationship breakdown in the future. The overall aim is to prevent and reduce unnecessary disputes, doubt, and costs in the event of a relationship breakdown.

Property - TOLATA Claims

The law is considered under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and such proceedings are often complex and costly. This is a common issue that arises between cohabiting couples and seeks to deal with the property, considering aspects such as regulating the occupation of a property (i.e. who lives within the property) or ordering the sale or partitioning of any property. This also deals with the common disputes of a declaration of the extent of interest you or your partner have in a property.

This can arise in various scenarios, i.e. if the property is owned in one party’s name but the other has made financial contributions and seeks an interest within the property, or if you have purchased the property together but one of you has provided a larger financial contribution (which has not been appropriately secured), or in another example, if your relationship has broken down and you seek an order enforcing the sale of the property.

We can assist you by attempting to agree on the matters without the need for costly proceedings and can utilise our expertise to attempt to reach a settlement accordingly. In the event that the matters become litigated, we have access to an excellent team of experts to try to assist you to achieve the outcome you deserve.

Children – Schedule 1 proceedings

This area of law relates to Schedule 1 Children Act 1989 (CA 1989). The first point to mention is that the Child Maintenance Agency (‘CMA’) can be accessed to handle child maintenance payment issues. These types of matters normally arise in ‘high value’ cases. However, our clients who have an income of over £156,000 could face the scenario of having to make ‘top-up’ payments in relation to child maintenance. This is an application that is often progressed where the needs of the children cannot be sufficiently catered for and the individual is a high earner.

If you are the main carer for the children, you can also consider making such an application, where the financial resources are available, to seek for a home for you and the children, contribution towards school fees, financial funding for caring needs, i.e. vehicle - for the children’s needs.

Parental Responsibility

Did you know that an unmarried father’s do not automatically achieve parental responsibility? We can help you with parental responsibility and child arrangement order issues. Please refer to our children's law page for further information.

Prenuptial & Postnuptial Agreements

We understand that it can be difficult to start considering financial matters on the breakdown of your relationship before the breakdown. However, a prenuptial agreement can provide you peace of mind in respect of your assets, should this unfortunate situation arise. In respect of postnuptial agreements, the main difference is that they are entered into after the marriage.

We can assist you by drafting a concise agreement that can assist the parties to agree on financial matters - whether at the outset or during the marriage. This agreement can allow you to outline the ownership and rights over assets (including joint assets), debts, incomes, inheritance, etc. The purpose of the agreement is to confirm how the same will apportioned upon separation.

Following the case of Radmacher, the court can exercise its discretion and consider the contents of this agreement as one of the factors when deciding financial remedy proceedings. If an agreement is freely entered into by each party with a full appreciation of the implications unless it would be unfair to hold the parties to the agreement. Therefore, although these agreements cannot oust the court’s jurisdiction, they can be given substantial weight during the financial remedy proceedings – so long as appropriate steps are followed.

The drafting of such an agreement can be complex and it is best to contact our firm and we can thereafter cater the advice to your personal circumstances.

Separation Agreement

In some cases, parties do not want to proceed with a formal divorce. However, they seek to have a legal agreement in place regarding the settlement reached in respect of financial and children matters. This can be relied upon should the parties proceed to divorce and financial separation. This is a legal document that you can seek to enforce and normally our team would be able to assist you to have this formalised in a consent order at the appropriate time. This will provide you the protection and finality you may seek on the breakdown of your relationship. This type of agreement is wide-ranging and can deal with many aspects such as debts, properties, childcare, bills, savings, etc.

Cohabitation Agreements

We have explained how we can assist you within our section marked Cohabitation & Unmarried Couples. This type of agreement would be a legally binding document setting out your legal and financial obligations to one and another – this is especially useful should the relationship breakdown in the future. The overall aim is to prevent and reduce unnecessary disputes, doubt, and costs in the event of a relationship breakdown.