D-I-V-O-R-C-E – who gets what?

This month, I’m grateful to my colleague, Vijaya Sumputh, a specialist Family Law Solicitor at Curwens for her timely advice on the way some family assets are dealt with in divorce :

“According to a recent article in the Guardian, divorce enquiries are expected to rise more than 300% at the beginning of the year.  As Family Law solicitors, in this situation, we’re often asked the big question :  Who gets what?

The process of dividing the marital assets on divorce or family breakdown can be  emotional and complicated. What our clients want is a clear idea of what they may end up with at the end of this process, for example:

  • Who gets the matrimonial home?
  • Who gets the engagement ring?
  • Who gets the family pet?

Sadly, it’s not always possible to give a definitive answer to these questions, particularly in the early stages.

The Courts approach each case on its own individual set of facts – what might be right for one family, may not necessarily be right in all cases. The law in England and Wales is based on a discretionary regime which means there is a vast range of settlement options available in different circumstances.

There is no hard-and-fast rule, which is why it is important to take legal advice so that you have a better idea of the range of likely outcomes in your case.

Who gets the family home?

Often the family home is the biggest matrimonial asset and potentially the most emotionally significant one. Whether the house will end up being sold (and the net proceeds of sale divided) or transferred to one of the spouses, very much depends on the family’s needs.

In some cases, the family home may be kept by one spouse if that spouse is the primary carer for the children. Unless there is sufficient net equity in the property to re-house both spouses in a mortgage-free property, priority will usually be given to the spouse who needs to have the children living with him or her.

In some cases, the family home is kept by one party until a defined point in the future (such as when the children are all over 18) when the former family home can be placed on the market for sale at a price to be agreed by the parties (or if they can’t agree, as determined by a Court).

If, however, there are other assets that a Court can take into account, then one spouse may be able to retain the house permanently and pay other funds to the other person to “buy out” their interest.

When making any financial order, the court will look at a number of factors such as the length of the marriage, the age of the parties, whether they are working and what their earning capacity is, whether there are children, what each party’s needs are and what assets are available to meet those needs. It’s complicated, so do take legal advice.

Who gets the engagement ring?

The answer to this question can vary depending on whether the engagement ring was a family heirloom or perhaps inherited by one party. More often than not, engagement rings are retained by the wife to be passed down to one of the children.

As a general rule, the courts prefer chattels to be divided by agreement but if no agreement can be reached, the court can simply order all chattels to be sold and the proceeds divided.

Who gets the pet?

The family pet is mostly regarded as a member of the family but as the Courts will usually treat family pets much in the same way as any other chattel, we strongly encourage the parties to agree who will have responsibility for continuing to care for (and pay for) their family pet! ”

Vijaya Sumputh  –  0208 363 4444  –  Vijaya.sumputh@curwens.co.uk

www.curwens.co.uk

“What’s in a name…..?”

Quite a lot, really, in these days of badges and qualifications.  When you have a legal issue and you don’t already have your own family solicitor you’ve used before, how do you know which firm is “up to scratch” – how do you choose the “right” law firm for you.

For law firms, start by talking to your contacts and get a personal referral. Yes, you can just do an internet search and start ringing round, but a personal contact is always the best “soft” way to go about this.

If you do have to rely on the internet, there are certain things you can look for that will give you reassurance, such as a recognised accreditation.  For firms of solicitors, the important badge to look for is Lexcel which is awarded by the Law Society.

Lexcel is the Law Society’s legal practice quality mark for excellence in legal practice management and excellence in client care. It’s not awarded lightly and, once it is awarded (following an independent audit) firms have to have an annual audit for it to be continued.

Other specific accreditations are available – here are a couple of examples :

Conveyancing Quality Scheme logoFamily Law Accreditation Scheme logohttp://www.lawsociety.org.uk

Try calling 2 or 3 firms and see how your call is dealt with.  You should be able to speak to someone with knowledge of your legal issue at least for 5-10 minutes (free!) so that they can assess whether or not they can help you and, if they can, how much it will cost – either as a set amount, such as for a property sale, or by hourly rate which is used in a family case.

It’s very much how you feel about your lawyer – you don’t have to like him or her but it will help, particularly in areas such as family law – but also, you have to feel confident and comfortable.  Unless you have an emergency situation, such as an injunction, take time to speak to more than one law firm and take time do consider the “best fit” for you.

If you need any help with this, feel free to give me a ring – Norma Morris – 0208 363 4444 – norma.morris@Curwens.co.ukhttp://www.curwens.co.uk

 

“It’s good to talk …….

Clare    Claire Pilsworth

Are you separated or thinking of getting divorced ?

If so, you need to explore mediation because it really does work – after all, you know the needs of your family better than anyone. This explanation comes courtesy of my colleague, Clare Pilsworth, a Family Law solicitor and Mediator

“Mediation is a process which helps people who are separating to discuss and agree on the best arrangements for their future. It works because it is a voluntary process and allows you to find a solution personally tailored to you. Mediation can be used to make arrangements for children, discuss finances or both (known as “All Issues Mediation”).

Our Mediators find out from you what’s most important to both of you and in your meetings, will help you both to make your own decisions about the best way forward for your family. This is possible because our Mediators:-

• are specially trained to guide you in your decisions
• provide a calm and confidential environment in which to talk
• help you to make informed decisions
• are Resolution Mediators – trained by the specialist national organisation of family law advisers.

Mediation is voluntary,  however, if you are starting Court proceedings in family matters you are required to attend a Mediation Information and Assessment Meeting (MIAM). This is a confidential meeting on your own, to find out about how you could sort out matters without using Court proceedings.”

If you’d like more information about Mediation to find out whether this would be a good choice for you, contact Clare Pilsworth on 01763 241261 or email clare.pilsworth@curwens.co.ukhttp://www.curwens.co.uk

Curwens LLP Logo HIGH QUALITY smaller

 

D-I-V-O-R-C-E

….so sang the legendary country singer, Tammy Wynette almost 50 years ago. With a divorce so many years ago, one might think it was all “done and dusted” as did a Mr. Dale Vince who divorced his wife, Kathleen Wyatt, in 1992, but, not necessarily so, as the Supreme Court ruled recently. For the subject of this blog, I’m grateful to my colleague at Curwens, Family Law specialist, Vijaya Sumputh :

“The talk of this week has been about Kathleen Wyatt (“Kathleen”) and Dale Vince (“Dale”), whose case is a warning to many couples starting divorce proceedings and emphasises the importance of seeking legal advice to finalise financial matters. Kathleen’s marriage to Dale ended in divorce in 1992. At the time neither party had any financial security. Kathleen raised their children without significant financial support from Dale, who eventually went on to have a successful career and acquire considerable wealth.

In 2011, nearly 25 years after their separation and over 20 years after their divorce, Kathleen lodged a maintenance claim seeking a £1.9 million payout from Dale. Her application was originally dismissed under Rule 4.4 of Family Procedure Rules on the basis that there was no prospect of success or was an abuse of the court’s process. Kathleen took her case to the Supreme Court, where Lord Wilson stated that Kathleen’s claim was “legally recognisable” and not an “abuse of process”. His Lordship admitted that “it is obvious, even at this stage, that an award approaching [£1.9million] is out of the question,” but one factor Kathleen could rely on to justify a financial claim was that of her much greater contribution to the upbringing of the parties’ children over many years. Consequently, she may now be entitled to make a claim for a mortgage free property and maintenance.

This decision is striking because matrimonial claims are very different to other civil claims and remain alive after the marriage has come to an end. This case reminds us that there is no time limit for former spouses to apply to a Court in England and Wales for a financial settlement following a divorce, even if their claim is considered to be weak. We have to wait and see whether Kathleen’s application has any value when reassessed by the Family Court, but, meanwhile we may see an increase in opportunistic divorce financial applications.

This is a wake-up call for divorcing couples who do not want to have sleepless nights and a big hole in their pockets, that they should obtain a financial order from the Court at the time of their divorce stating that neither party will make a further financial claim against the other.”

vijaya.sumputh@curwens.co.uk
March 2015
http://www.curwens.co.uk