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Finances

There is a pre-requisite for all separating couples to try and negotiate and agree on a financial settlement at Mediation first., without the need to instigate Court proceedings. Unfortunately, however, Mediation may not be suitable for all or no agreement can be reached. That is when a family lawyer can assist.


I specialise in helping clients try and agree out of Court, saving them time, money and stress. However, if Court proceedings do become necessary, the below explains the procedure.

 

The Court can make Financial Orders once Decree Nisi has been pronounced. However, they only become enforceable once Decree Absolute has been granted. 

 

The Court must have "regard to all the circumstances of the case", first consideration being given to any children under the age of 18. 

There are three main principles for distribution: need, compensation and fairness

 

Circumstances of the Case includes:- 

  • The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future

  • The financial needs, obligations and responsibilities that each of the parties to the marriage has (or is likely to have) in the foreseeable future

  • The standard of living enjoyed by the family before the breakdown of the marriage

  • The age of each party to the marriage and the duration of the marriage 

  • Any physical or mental disability of either of the parties to the marriage 

  • The contributions which each of the parties has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family

  • The conduct of each of the parties ("inequitable to disregard it"). 

Need – the Court's primary objective will be to provide a home and income for the spouse with the care of the children and a home and sufficient income for the other spouse. Priority is given to the spouse who has the primary care of the children. 

Compensation – this aims to address the perceived injustice of a spouse whose earning capacity is seriously depleted by the arrangements made by the parties, i.e. "stay at home wife" who will often not have the same ability to earn the same amount in the future as the spouse with the greater earning 

capacity. 

Clean Break - Further, the Court has a duty to consider whether it is appropriate to impose a Clean Break. A Clean Break is a settlement that finally severs the financial ties between the parties with no continuing provision between the parties for capital or income payments. This can include ordering periodical payments of sufficient length to enable the spouse in whose favour the order is made to adjust, without undue financial hardship, to being financially independent of the other party. 

Where there are children, it is not possible to order a complete Clean Break because of Child Maintenance, but there is no reason why there should not be a Clean Break between the parties if there are sufficient assets. 

 

Please note that in addition to the above, separating couples also need to consider whether to sever any Joint Tenancy's or register Matrimonial Homes Rights and/or the impact the separation may have on wills or inheritance. 

 

Procedure

Children Act 1989 and Children and Families Act 2014 

Child Arrangements Order means an Order regulating arrangements relating to any of the following: 

  • With whom a child is to live, spend time or otherwise have contact, and 

  • When a child is to live, spend time or otherwise have contact with any person. 

 

Contact between parent and Child can make direct contact, i.e. staying overnight, visiting, meeting for a meal or activity, or it can take indirect contact, i.e. telephone calls, emails, and birthday/Christmas cards. 

Indirect contact is generally ordered when it is not suitable or appropriate for the Child to see the person directly, even if such contact is supervised. 

Who can make an application? 

If you have Parental Responsibility for the Child, then you can make your application to Court without having to seek prior permission. If you do not have Parental Responsibility, then you will need to seek permission from the Court to make your application first. 

Parental Responsibility 

Section 3 CA defines Parental Responsibility as "all the rights, duties, powers, responsibilities and authority that by law a parent of a child has in relation to the child and his property". 

A mother of a child will automatically have PR for the Child irrespective of her marital status. A father will automatically have PR if he was married to the mother at the time of the Child's birth or subsequently marries his Child's mother. 

Unmarried fathers can acquire it in several ways, including:

  • Being registered as the Father on the Child's Birth Certificate

  • Entering into a Parental Responsibility Agreement with the Child's other or 

  • By Court Order. 

Mediation 

Unless you are exempt from attempting Mediation, you will be expected to have tried this route first to reach an agreement regarding the arrangements for the Child before you are allowed to commence Court proceedings. 

Application 

If you are unable to reach an agreement regarding the Child that you are both satisfied with, then you will have no alternative but to file an application, known as a C100, with the Court. 

In such application, you set out what Order you are seeking, i.e. direct or indirect contact. If direct, you need to set out the frequency you are seeking, whether you accept it may need to be supervised for a time etc. If indirect, again, you set out the frequency and whether the intention is for this to progress to direct contact over time.

Urgent Applications 

If there has been a history of domestic abuse or one party has not stuck to the arrangements agreed without justification, you can ask the Court to review your application urgently, and if need be, without providing notice of your application to the other party first. 

Acknowledgement 

When the Court receives the application, they will serve it on the other party, who then has 14 days to complete the Acknowledgement, in which they are to confirm whether they contest the application and, if so, why.

 

If the person receiving the application believes that the Child has suffered harm or is at risk of suffering harm if the Child Arrangements Order sought is granted, then should file and serve a Supplementary Information form, known as a C1A, highlighting such issues to the Court before any Hearings take place. 

Allocation 

Most children cases will be heard by Magistrates. However, if the application suggests that there are allegations of significant harm or emotional or sexual abuse, the case will likely be heard by a Family Judge. 

Involvement of CAFCASS 

CAFCASS stands for Children and Family Court Advisory and Support Service. They are independent of the courts, social services, education and health authorities, and all similar agencies.

Its role is to: 

  • safeguard and promote the welfare of children

  • advise the family courts

  • make provision for children to be represented

  • provide information, advice and support to children and their families. 

First Hearing Dispute Resolution Appointment 

Usually, the first Hearing in children matters will be listed within six weeks of the Court issuing the application. 

The aim is for CAFCASS to report to the Court 17 working days before any Hearing of any safeguarding concerns, having carried out their initial enquiries with the Local Authority and the Police. In reality, the safeguarding letter is not usually available until the day, produced by the duty CAFCASS officer who will also be invited to attend the Hearing to give their findings and recommendations to the Court. 

Where possible, CAFCASS also aim to undertake telephone risk identification interviews with the parties in advance of preparing their safeguarding letter so that they can include extracts from that interview in their letter, which may impact their recommendations to the Court, particularly if one party is saying to the CAFCASS officer that the Child has suffered or is at risk of suffering harm by the other party. In those cases, it may be necessary for an additional hearing, known as a Finding of Fact Hearing (as explained below), to take place. 

The FHDRA should be adjourned if the safeguarding letter is not available by the time of the Hearing, and interim orders should not be made in the absence of safeguarding checks. 

The purpose of the FHDRA is to identify any outstanding issues and how such issues can be resolved, with directions being given for the future resolution of such matters. It may be that CAFCASS involvement is ceased at this Hearing, or the Court may decide that further input is required from them before any final determination can be made – see information on Section 7 reports below. 

Dispute Resolution Appointment 

Usually, there is a 2nd Hearing known as a DRA to review the documentation directed to be obtained at the First Hearing (FHDRA). If a Finding of Fact Hearing was directed, that would take place before a DRA so that any findings (if made) can be reviewed. 

Where possible, the Court would prefer to finalise matters at this Hearing. If this is not possible, again, the Court will use this Hearing to try and narrow the issues before giving final case management directions to take this matter to a final contested hearing, to include the filing of Statements, Court Bundles etc. 

Final Hearing 

A Final Hearing follows the normal course of a trial, with oral evidence being heard by both parties through examination and cross-examination. The Court will ultimately determine the outcome of the case at this Hearing. 

The outcome may not suit one or both of the parties, and it is for this reason, where possible, parties should reach an agreement between themselves once all the evidence has been received as an agreement reached by consent usually suits the parties better and can allow for some flexibility when needed.

 

A Court imposed Order is perceived as much more rigid. 

What the Court considers:

1. Welfare principle 

Generally speaking, on receipt of such an application, Section 1 (5) CA requires the Court to ask, "will it be better for the child to make the order than making no order at all?" 

Section 1 CA sets out the "Welfare Principle", which is to be considered by the Court before making any Order.

The checklist included in the Act is as follows:  

  • The ascertainable wishes and feelings of the Child concerned (considered in the light of age and understanding) 

  • Physical, emotional and educational needs

  • The likely effect of any change in circumstance 

  • Age, sex, background and any other characteristic the Court considers relevant 

  • Any harm the Child has suffered or is at risk of suffering 

  • How capable each of the parents, and any other applicant, is of meeting the Child's needs. 

The Children and Families Act 2014 introduced the presumption that unless the contrary is shown, the involvement of a parent in the life of a child will further the Child's welfare, whether it is direct or indirect unless there is some evidence before the Court that a child would be at risk of suffering significant harm. 

2. The need for a Finding of Fact Hearing 

This is a Hearing used by the Court to determine if the Domestic Abuse alleged to have been suffered by one party and/or the Child did occur. This issue needs to be determined early on in the proceedings as if findings are made at such Hearing, it may significantly impact the outcome of the original application. Further, it is unlikely that a Section 7 report (as described below) can be prepared without such determinations having been made by the Court, one way or another. 

The Family Court decides if the allegations are true by using the "on the balance of probabilities" threshold. In contrast, a Criminal Court has a much higher threshold of "beyond reasonable doubt". 

To make such determinations, both parties are likely to have to give oral evidence and be examined and cross-examined on the allegations made. 

Should any findings be made, the Court should apply the individual matters in the welfare checklist set out above to those findings. The Court should only make a Child Arrangements Order if it can be satisfied that the physical and emotional safety of the Child and the parent with whom the Child is living can, as far as possible, be secured before, during, and after contact, and that the parent with whom the Child is living will not be subjected to further controlling or coercive behaviour by the other parent. 

3. The need for a Section 7 report 

If the Child has suffered or is at risk of suffering significant harm and/or if the Child is old enough that the Court cannot ignore their wishes and feelings, CAFCASS may be directed to prepare a Section 7 report before the Court can make any final determination. 

In drafting such a report, the CAFCASS officer will have access to all of the court files and documents and will be made aware of the issues between the parties. The CAFCASS officer will visit both parents in their homes, if possible. The CAFCASS officer will also expect to see the parties with the Child and observe how they interact with one another.

 

If the Child is old enough and has sufficient maturity, the CAFCASS officer may meet the Child separately to gain their views. The CAFCASS officer may also make other inquiries necessary for the report, including the Child's teacher, GP, or Social Workers. The CAFCASS officer will use all of this information to compile their report, making recommendations concerning the application before the Court. 

The Court greatly values the CAFCASS report as the CAFCASS officer has seen the parties, children, and others first hand, unlike the Court, and as a result, the report carries significant weight. 

The CAFCASS officer can be cross-examined by either party if there are flaws in the reporting of evidence or recommendations that are unsound given the case's evidence. 

If the Local Authority has had involvement with the family, they may be asked to prepare this report instead. 

You should note, it can take between 12 and 18 weeks for such a report to be prepared and so should be asked for as early in the proceedings as possible. 

Other Orders available 

In addition to seeking a Child Arrangements Order, it may also be appropriate to seek either: 

  • Specific Issue Order

  • Prohibited Steps Order. 

A Specific Issue Order can be made as a free-standing order and usually concerns an issue that has arisen in connection with the exercise of Parental Responsibility, i.e. religion, school, change of surname. 

A Prohibited Steps Order allows a Court to prevent a person from taking a step that could be taken in meeting Parental Responsibility for a child, i.e. removal from the U.K., collection from school. 

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