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 IS FAMILY MEDIATION?

The start of a new year is often a tricky time for families – has this been a stressful Christmas period? Has spending too much put pressure on family finances and inevitably on relationships? Has the extra time off work meant there’s been time to reflect on the reality of marital issues?  In the new year, couples often make new year’s  resolutions and one of those could be that they should face up to their difficulties and get professional help to resolve them.  Before they rush off to Court, specialist family lawyers always recommend looking at mediation.    Amanda Thurston, Head of the Family Law Team at Curwens Solicitors explains :

“A recent “fly on the wall” documentary followed a family mediator helping couples agree the terms of their separation or divorce. From whether to sell the family home, to how much maintenance to pay, or how often one of them can take the children on holiday, splitting up a family can be a minefield.

So how does Mediation Work?

The first thing to remember is that mediation is voluntary, so both parties need to agree to try it out and also which mediator to approach. The Mediator will then usually want to speak to each party individually before setting up meetings for everyone to attend. Each party gets the chance to raise the issues or concerns they have and the Mediator will try to get the other party to listen to them before expressing their own views. The Mediator will also help the parties discuss the family finances and agree on what information and documentation they each need to provide to help with the negotiations.

These meetings can be stressful if agreement is not easily reached on a point, but the Mediator is specially trained to deal with those situations. They can even do “shuttle mediation” with each party in a separate room if the parties’ relationship has got to the stage where they can’t even be in the same room as each other.

Between the mediation meetings each party should ideally obtain independent legal advice so they know what terms would be reasonable to propose or accept.

If terms can be agreed between the parties, the Mediator will provide a written Memorandum of Understanding. This is not yet legally binding – but is evidence of what you have discussed and agreed. You can then take it to family solicitors to be made legally binding if you wish.

If the mediation breaks down, the Mediator can sign a form for the Court, to allow one of the parties to start Court proceedings.

Mediation Information and Assessment Meeting (MIAMS)

There is currently a requirement in place that you must at least attend a MIAMS before starting most Court proceedings regarding children and/or finances, to find out whether Mediation would be suitable for you. (There are certain exemptions in place – for example if it is an urgent case)   The MIAMS is a one to one meeting with a Family Mediator who explains all the alternative routes available to you to try and resolve the dispute without starting Court proceedings. The aim is to ensure you are fully informed about all your options and you understand what would work best for your situation.”

 

If you would like more information on Mediation, please contact

the Curwens Family Law Team:

Royston                   Amanda Thurston              01763 241 261

Hoddesdon              Kristina Nickoli                    01992 463 727

Enfield                     Vijaya Sumputh                   0208 363 4444

 

www.curwens.co.uk

Curwens have offices in Royston, Hoddesdon and Enfield.

 

“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

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