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Family Law

The Family Law Team at Stones comprises a team of experts who specialise in all Family related matters, and who will be able to provide skills and sensitive support on all legal issues concerning "the family" be it divorce, finances, contact/residence disputes, cohabitation, adoption, or any other area that falls within the broad and generic title of 'Family Law'.

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The department boasts two partners supported by a team of solicitors and support staff and undertakes both privately funded and legally aided work (subject to client's eligibility), with members of the team being members of the Law Society Children Panel, Family Law Panel, and Mediation Panel. 

David Howell-Richardson and Graham Simm are both qualified Collaborative practitioners and offer an alternative to the usual litigation-based divorce/separation.

The team regularly advises both heterosexual and same sex couples in all aspects of both relationship breakdown and the setting up of living together arrangements, and works with other professionals such as valuers, actuaries, accountants, pension advisers and financial services advisers to ensure that our clients receive an all round and holistic service.

With regard to the law relating to children, we have a strong team of specialists who are able to provide you with the benefit of many years of experience acting for children, parents and grandparents, and indeed the wider family, and are particularly aware of the challenges to any family when faced with the prospect of having to make a decision which is likely to fundamentally affect them on a permanent basis.

For all issues relating to the family we can provide a range of legal support in matters such as:-

Children

 

Divorce/Separation

 

Money

 

Other Family Issues

Separation

Some couples decide to separate but not to divorce, whilst others choose to divorce based on either two years separation, or indeed five years separation. The financial options available to you are more limited than would otherwise be the case, and ordinarily are best dealt with by the couple entering into a "Separation Agreement".

The Separation Agreement is a legally binding contract entered into with the intention of your entering into divorce proceedings at a later time, and are usually legally binding (except in exceptional circumstances).

If you are unable to reach an agreement, then there are other legal remedies available to you, such as the making of an application for maintenance or indeed a lump sum payment either for yourself or for any child/children of the family.

It is also possible for a person who has an interest in property to make an application to the Court asking for the property to be sold and to enable them to gain access to the money that they have tied up in property.

Divorce and Separation can be a very traumatic time for all concerned, with people understandably worried about their future and the arrangements for both their finances and children.   It not only affects the couple involved but also other family members.

For most people the final decision to part will have been reached over a long period of time, and there are many things to talk about and to arrange. 

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Divorce and Separation

In order to obtain a divorce, you need to have been married for a minimum of 12 months following on from a legal ceremony either in the United Kingdom or abroad.  In order for the English Courts to be able to deal with your divorce either yourself or you spouse needs to be domiciled in either England or Wales, or be habitually resident here.  You will also need to show that the marriage has irretrievably broken down, and in order to do so you have to show one of the following facts:-

  • Your spouse has committed adultery;
  • Your spouse has behaved in such a way that it is unreasonable to expect you to continue living together with them;
  • You have lived separately and apart continuously for two years and your spouse agrees to a divorce;
  • You have lived separately and apart for five years;
  • Your spouse has deserted you for a continuous period of two years.   

There are many matters to resolve at this difficult and emotional time and we hope that here at Stones we are able to ease some of the pain involved in divorce.  You will need to consider not only your future financial arrangements but also the arrangements for children, and each divorce is looked at on its own separate merits. It is preferable to agree the basis upon which the divorce will be issued and protocol dictates that the allegations contained in the Divorce Petition should, if possible, be agreed with your spouse.  This is not always achievable, however, and whilst many divorcing couples choose to cooperate with each other, others do not, and the procedures to be utilised vary depending upon the attitude and cooperation of your spouse.

If you have children, you will need to lodge with your Divorce Petition a document entitled Statement of Arrangements for Children and, once again, if agreement can be reached as to the contents of that document, then so much the better.

Once the Divorce Petition has been issued by the Court, then certain procedural timetables apply, the first being that your spouse should file an Acknowledgement of Service of the Divorce Petition within 8 days of their receiving it. 

It may be necessary to involve process servers if your spouse fails to acknowledge service of the Divorce Petition, but once certain procedural steps have been complied with, you must next apply for Decree Nisi and support your application with an Affidavit which confirms that the contents of both of your Petition and, if applicable, your Statement of Arrangements for Children are true.   The Court will then fix a date for Decree Nisi and, theoretically, 6 weeks and 1 day thereafter the Petitioner is entitled to apply for Decree Absolute.  If you are the Respondent then you may apply for Decree Absloute some 3 months after the date upon which the Petitioner was entitled to apply, but the procedure is different and involves the matter being listed for hearing before a Judge.

There may be some delay in applying for Decree Absolute however, depending upon whether it is financially pertinent to remain married until your financial arrangements have been settled. 

There is much to consider, and whilst the divorce procedure itself is relatively straight forward, ancillary matters are more complex.

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Matrimonial Finance and Property

One of the major worries which people have when they come to see us is how, once they have decided to either divorce or separate, they will cope financially in the future.   Financial matters vary greatly from one case to another, with English Law stating that each case turns on its own merits.  Even though divorce triggers the division of financial assets, financial matters are in fact a separate issue which need to be resolved and are not resolved simply by obtaining a divorce itself. 

We believe that, if at all possible, these matters should be resolved through negotiation and there are various methods which offer an alternative to the route of having to issue Court proceedings and taking matters through a bitterly contested battle with a decision ultimately being made by a Judge. 

Despite this, it is not always possible to reach agreement, and both you or your spouse have the right to make applications to the Court to deal with issues such as:-

  • 1. Maintenance (where one party is ordered to pay a monthly sum to the other either for their own benefit or, in some circumstances, for the benefit of the children);
  • 2. Property Adjustment Orders (where property is transferred to one or other party, or the terms upon which that property is owned is varied);
  • 3. Lump Sum Order (where one party is ordered to pay a specified lump sum of money to the other);
  • 4. Pension Order (an Order which splits the pension holdings of either one or both parties in order to make provision for the other - this can be dealt with as either a pension sharing arrangement or earmarking Order.

When considering how best to divide assets section 25 of the Matrimonial Causes Act 1973 sets out a series of factors which ought to be taken into consideration by the Court. These factors are relevant not only when attempting to deal with your financial dispute through the Court process, but in all forms of alternative dispute resolution and we are able to guide you through what is often a complex and frightening set of considerations in order to find a process which best meets your needs. You may, for instance be more suited to either collaborative practice or mediation.

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Collaborative Law

Collaborative Law is a relatively new approach where both lawyers and clients agree to work together to resolve all issues following on from separation.   Collaborative lawyers are specially trained and the aim of the process is to reach a fair settlement without acrimony, the parties contracting not to bring blame to the table nor to mitigate their disputes.  The process is client lead and totally open and transparent.

David Howell-Richardson and Graham Simm are both qualified and experienced Collaborative Law practitioners, and should you be interested in finding out more about this process then you should contact either David or Graham to discuss the process further, or click on the link below

http://www.devoncollaborativelawyers.com/

If you decide to undertake the Collaborative process, then a series of four-way meetings takes place where agendas are set by you the client, and are discussed at a pace that suits everybody concerned.  Should the need arise, experts such as accountants, IFAs, valuers, etc, can be brought into the process and as a result there is more scope for a settlement to be reached which is tailor made to suit your needs, and you are more likely to remain on good terms with your former spouse/partner than if you have gone through an embittered and acrimonious litigation process through the Court. 

Collaborative Law is not for everyone, however, and we can advise you of alternative options which you may be better suited to.

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Section 25 Criteria

The Court's general duty when considering financial applications is set out in s.25(1) of the Matrimonial Causes Act as follows:

It shall be the duty of the Court in deciding whether to exercise its powers under section 23, 24, 24A or 24B above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

The Section 25 factors of the Matrimonial Causes Act directs the Court in particular to have regard to the following matters when dealing with an application for ancillary relief for a party to the marriage:-

  • a) 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, including in the case of earning capacity any increase in that capacity which it would, in the opinion of the Court, be reasonable to expect a party to the marriage to take steps to acquire;
  • b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  • c) The standard of living enjoyed by the family before the breakdown of the marriage;
  • d) The age of each party to the marriage and the duration of the marriage;
  • e) Any physical or mental disability of either of the parties to the marriage;
  • f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
  • g) The conduct of each of the parties, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard it;
  • h) In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring (e.g. a right to your husband's pensions).

Whilst we aim to reach agreement with your spouse/partner as to the division of assets by way of negotiation, it is not always possible to reach such a settlement and, accordingly, you may have to end up issuing an application to the Court.  The Court itself has broad powers to vary the basis upon which property and assets are owned, and has a wide discretion.  

It is absolutely essential, and required by law, that both of you are entirely honest and open as to your financial circumstances when attempting to reach a financial settlement, and should the matter go to Court you are both under an obligation to provide "absolute disclosure".  Should you fail to do so, then the Court has power to take punitive action against you by way of either the making of costs orders or indeed by distributing the assets so that your spouse/partner receives a large share. 

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Mediation

Mediation is confidential. It is a way for separating couples to negotiate with the aid of an impartial mediator/mediators, thus enabling constructive negotiation with a view to reaching a settlement with regard to either or both financial and children related matters.

It is possible to apply for legal aid in order to cover the cost of mediation (depending upon your individual circumstances), and there are several highly regarded mediation service providers in the immediate locality.

Mediators are impartial and do not give legal advice nor do they have the power to impose a settlement upon you.   It is recommended that during the mediation process, which takes place by way of series of mediation meetings, you seek legal advice upon the various proposals discussed at mediation. 

Mediators do not represent individuals although they can be solicitors or other professionals who deal with families in the ordinary course of their profession.

If a settlement is reached then a summary of the agreement will be drawn up by the mediators which each of you can then take to your own solicitor, who in turn will consider with you whether or not the agreement reached is fair and reasonable in all the circumstances, and will convert the agreement into the form of a draft Order for presentation to the Court.  This is known as a "Consent Order".

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Cohabitation/Unmarried Couples

Whilst more people than ever are choosing to live together, sharing homes and finances, and indeed having families, the law relating to unmarried couples is currently complex and incomplete. 

Whilst it is quite usual to talk in terms of "common law husband and wife" there is, and has not been for over two centuries, any such thing as common law husband and wife, irrespective of how long the relationship has lasted.  Currently under English law an unmarried couple remain without legal standing, and this is often a fact which in only realised when a relationship comes to an end and the couple have to sort out their future arrangements.   

There are, however, steps that can be taken to protect yourself when entering into such a relationship, or indeed to ensure that you get the fairest outcome should your relationship come to an end.  Should you and your partner decide to separate you will need to consider many aspects such as the future arrangements for children,what will happen to your home, what to do about finances.

If you and your partner should separate

You will have to consider with whom the children are going to live in the future and what contact they are going to have to your former spouse/partner. 

Children often suffer greatly when their parents separate and it is vital, if at all possible, that the children are given as much reassurance as to their security as possible.   It is by far better to reach an agreement as to the arrangements for the children than to dispute these issues, and you will find reference elsewhere on this website to various methods of negotiation such as mediation and collaborative law which will assist you in reaching satisfactory arrangements for all concerned. 

If you are unable to reach an agreement regarding children then it is open to either of you to make an application to the Court for various Orders such as an Order for Residence, Contact, Parental Responsibility, and in the absence of agreement regarding finances then an application to the Child Support Agency can also be made.

Under the law as it currently stands, all mothers have parental responsibility for their children.  Whilst some fathers do, this does not apply to all fathers. It is important that fathers are able to establish parental responsibility for their children in the event of, say, the mother dying and legal complications follow if appropriate arrangements have not been made.

An application can be made to the Court for a Parental Responsibility Order although it is often something which can be dealt with by way of agreement and, once again, negotiation is the first place to start.

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Pre Nuptial Agreements

A pre nuptial agreement (also referred to as a pre marital agreement) is a formal written agreement entered into by a couple before marriage.   Its purpose is to record the parties' intentions as to the division of assets in the event of the marriage breaking down, and whilst not currently recognised as being enforceable under English law, the Courts are becoming increasingly likely to recognise the existence of such an agreement as being a relevant factor which ought to be taken into account by them when determining the distribution of marital assets upon divorce. 

There are, however, certain criteria which have to be met in order to ensure the maximum potential of such an agreement being recognised by the Courts, and it is absolutely essential that both parties have obtained, or have been given the opportunity of obtaining, independent legal advice.

Such an agreement must have been entered into freely by both parties, and there has to have been a disclosure of the parties' respective financial interests before the agreement is signed. 

Because of recent case law which has established the principle that the matrimonial home is to be treated as an asset equally owned by the parties, irrespective of how it came into being, pre nuptial agreements are becoming increasingly common and we are regularly consulted regarding the suitability/desirability of entering into such an arrangement. 

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Domestic Violence

Domestic violence is by far more common than you would perhaps think.

Legal aid is available to enable you to take immediate action to obtain a raft of powerful Orders from the Court which are backed by enforcement remedies which link in with the Police.

Domestic violence does not only have to involve your physically being hit.  It can include threats and intimidation, mental and emotional abuse, financial abuse, using and abusing the children, sexual abuse, and of course, physical abuse. 

There are many organisations which can help you and we would ask that you contact us immediately for in complete confidence.

In cases of urgency, you are entitled to emergency legal aid which we are able to authorise ourselves provided that you meet certain criteria which we will assess on your behalf. 

The Orders available from the Court are:-

  • Non Molestation Orders. This is where a party is ordered not to molest, harass or intimidate a named person or persons (including children).
  • Occupation Orders. This deals with the occupation of the home and it can for example order someone to leave property and not return either to the property or within a surrounding area. The Court also has power to make Orders with relation to the payment of rent or mortgage in relation to either the property or its contents, and can also make financial Orders which would secure the property itself.
  • Civil Injunction - prevention from harassment. In certain circumstances the Court has the power to prohibit action which amounts to harassment, and the question as to what constitutes harassment is something which this website unfortunately does not have sufficient space to deal with. If you believe that you are being harassed then please contact us in order to discuss your options.

Breach of a Non Molestation Order is now a criminal offence.

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Civil Partnership

Civil partners who have entered into a civil partnership are able to dissolve that partnership in a procedure similar to divorce.

In order to be eligible you have to:-

  • (a) have been in a civil partnership for at least one year;
  • (b) prove that your civil partnership has irretrievably broken down.

In order to prove that the civil partnership has irretrievably broken down you have to prove one of the following:-

  • 1. Your civil partner has behaved in such a way that it would be unreasonable to expect you to go on living together;
  • 2. Your civil partner has deserted you for a continuous period of at least two years;
  • 3. You and your civil partner have lived apart for two years or more and your partner consents to the dissolution of the partnership;
  • 4. You and your partner have lived apart for five years or more (irrespective of whether or not your partner consents).

Civil partners are treated in the same way as spouses in matters such as finances and children issues, but if you have not entered into a civil partnership then you will be treated in the same way as unmarried couple.

Issues regarding children are dealt with in the same way as under the law relating to married couples with the same ability to apply for parental responsibility, etc. 

To discuss any matters arising from the breakdown of your civil partnership please contact a member of the team.

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Residence and Contact

Sadly when any relationship ends and there are children, painful decisions have to be made as to with which parent the children should live (residence) and what arrangements there should be for the other parent to see them (contact). 

The Children Act 1989 is unusual in several regards, one of which being a central principle which runs through the Act and which is known as the No Order Principle.  Simply, the Court prefer parents to reach agreement regarding children without the need to involve the Court, and as such the first approach to dealing with children matters is negotiation between the parents.  If agreement cannot be reached, then reference to mediation and/or collaborative law may be appropriate, but ultimately an application to the Court can be made, the No Order Principle stating that the Court will only make an Order if it would be better for the child than not making one, and most cases involving children are, gladly, usually settled without the need for Court intervention. 

Sometimes parents need the reassurance of contact being supervised, and there are good local contact centre facilities which can assist in appropriate cases.  Details of these can be obtained directly from us. 

It is not only regarding questions of residence and contact that the Court can be of assistance.   If there are specific matters which are causing you problems, such as agreement over religious upbringing, education, matters of health, etc, and which are being disputed then it is possible to apply to the Court for a "Specific Issues Order" which will deal solely with that particular issue, and it is also possible to obtain a "Prohibitive Steps Order" which prevents a parent from taking certain action with regard to a child if indeed such an Order is appropriate. 

When determining matters with regard to children, the Court has regard to Section 1(3) of the Children Act (known as the Welfare Checklist), which states as follows:-

3)         In the circumstances a court shall have regard in particular to:-

(a)     the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)     his physical, emotional and educational needs;

(c)     the likely effect on him of any change in his circumstances;

(d)     his age, sex, background and any characteristics of his which the court considers relevant;

(e)     any harm which he has suffered or is at risk of suffering;

(f)      how capable each of his parents, 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 under this Act in the proceedings in question.

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Adoption

Adoption is a complicated process with grave and serious implications for all concerned.  Anybody over the age of 21 is able to apply to adopt provided they are able to provide a stable and caring home, and have been assessed as being capable of meeting the child's needs.  Legislation prevents discrimination by reason of disability, race, marital status, religion or sexuality, but the process is complicated and can be emotionally draining.

The process of adoption makes a child legally a child of new parents so that that child becomes a member of the new family.   It is usual to adopt in circumstances where the child's natural parents are unable to look after the child themselves and, once made, an Adoption Order cannot be reversed. 

There are strict procedural timescales to be adhered to when applying to adopt, and legislative changes which took place during 2006 mean that step parents and married couples and same sex couples are now able to adopt a child within their household.

The effect of an Adoption Order is that parental responsibility is taken away from those that currently hold it, and transfers it to the new parents.  This is different to simply making an application for a Parental Responsibility Order, and is a grave step taken by the Court only after careful consideration of all relevant circumstances has been undertaken.

If you are interested in becoming an adoptive parent, then please make contact with David Howell-Richardson who has many years experience of acting in adoption cases, and who will be able to go through the process with you in greater detail.

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Change of Name

If you wish to be known by a different name, you can change your name at any time provided that you do not intend to deceive or defraud another person.  There is no particular legal procedure to follow in order to change your name, you simply start using your new name.  You can change either your forename or surname, add names, or rearrange your existing name.

You may want evidence that you have changed your name and there are some circumstances, for example, when applying for a passport, when additional evidence of the change of name is required.  The evidence required varies depending upon the purpose for which it is needed and can include:-

  • statutory declaration;
  • a deed poll;
  • a letter from a responsible person;
  • a public announcement.

Changing details on a birth certificate can be complicated, and in any event you can only change those details in limited circumstances.  

Once you have decided to change your name you can use the new name for all purposes, for example, legal proceedings, and obtaining or changing details on driving licence/passport.

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Changing a Child's Surname

A child's name can be changed at any time provided that all the people who hold parental responsibility for the child have given their consent. It is more usual to want to change the name by way of deed poll which must be signed by all persons who hold parental responsibility for the child.

If you are a child or young person under 16 you do not have to consent to have your name changed. If, however, you object to your name being changed then you can apply to the Court to prevent that change provided the Court is satisfied that you have sufficient understanding of what is involved.

A person under the age of 16 cannot change their surname without parental consent.

Where there is a Residence Order in force a child's name cannot be changed without the written agreement of anyone who holds parental responsibility or, in the absence of such agreement, a Court Order.   This means that where the parents are or have been married neither can change the child's surname without the father's consent unless he has parental responsibility.

A Deed Poll is a formal statement to prove that your name has been changed and is usually required when you need formal proof of change of name, for example, when applying for a passport.

If you require any advice regarding this, then please contact any member of the Family Team.

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Care Proceedings

Issues of child protection are initially handled by Social Services and have to be referred to the Court in what are sometimes inaccurately described as care proceedings.

It is imperative that you obtain legal advice if you find yourself involved with Social Services regarding child protection matters.  The law is complex and it is important that you seek the advice of a specialist children's lawyer who has experience of this type of work (known as public law).

If you are involved in any child protection case in Court, then you should be entitled to free legal aid, provided you are a parent involved in Court proceedings.  You may well be entitled to legal aid in other circumstances, but we would ask you to contact us to ascertain your eligibility.

The Local Authority may work with a family for a period of time before deciding to institute formal proceedings, and will usually convene child protection conferences at which legal attendance and assistance is to be recommended.

If you find that you are involved with Social Services and need advice then the persons to make contact with are either David Howell-Richardson, Hannah Lush or Michelle Brooks.

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International Child Abduction

International child abduction is a serious matter with complex legal procedures.

There are various international conventions which set out the procedure to be adopted between the countries which subscribe to the convention, and the website of the Official Solicitor www.officialsolicitor.gov.uk/os/icacu/htm is a useful and important resource.

If your child has been kept overseas against your wishes or you are in fact worried that your child will be taken overseas without your consent, or indeed has been taken overseas without your consent, then you need immediate legal advice.

Similarly, if you have brought your child into the United Kingdom from abroad, or you are being denied contact with your child overseas, then you should also take immediate advice. 

If any of the above scenarios applies to you, then please contact us in order that we can guide you through this complex area of law.

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Financial Issues Relating to Children

As well as the usual issue of the payment of child maintenance, which ordinarily is dealt with either by agreement or through the Child Support Agency, it is possible for an application to be made under Schedule 1 of the Children Act 1989 for financial provision for a child.  Such an application can be made by a parent, guardian, special guardian or any person who has a Residence Order in respect of the child.

Applications are not limited to unmarried parents, although married parents are probably better off upon the Matrimonial Causes Act 1973 which provides a more generous regime.   In deciding whether to exercise its powers the Court must have regard to all the circumstances of the case, and with regard to the factors found in paragraph 4, namely:-

  • (a) The income, earning capacity, property and other financial resources which each parent or is likely to have in the foreseeable future (does not specifically include future earning capacity);
  • (b) The financial needs, obligations and responsibilities which each persons mentioned has or is likely to have in the foreseeable future;
  • (c) The financial needs of the child;
  • (d) The income-earning capacity, property and other financial resources of the child;
  • (e) Any physical or mental disability of the child;
  • (f) The manner in which the child was being always expected to be educated or trained.


Case Law clearly identifies the conflict between identifying the award for the child as distinct from enriching the mother.  A Judge needs to consider the needs of the child as a separate and distinct matter from the needs of the caring parent.

A Court has the power to make Orders relating to both income and capital.  In practice, however, Orders for income (periodical payments) will only made when the Child Support Agency does not have jurisdiction, but the Court will retain supplemental jurisdiction in certain circumstances, for example in order to cover expenses directly related to education and training for a vocation, trade or profession, in the child in question is disabled, or if the application if for a top up because the Respondent's income is above the prescribed maximum.

The Court also has the power to make lump sums for an unlimited amount in both the County Court and the High Court, and it is possible for the Court to order lump sums in respect of liabilities and expenses incurred in connection with the birth of a child or in maintaining the child reasonably incurred, for example for furnishings or for a car, etc.

So far as property transfers are concerned, only one Order for settlement or transfer of property can be made and, although not specifically referred to the general view is that property settled or transferred to a parent for the benefit of a child will revert back to the other parent on the child reaching the age of majority.  

In certain circumstances, consideration ought to be given to applying for an injunction in order either to freeze assets or to trace them.

The law relating to applications for Schedule 1 Orders is complicated and in practice such applications are relatively rare.  If you believe that you are in circumstances within which an application would be warranted then please contact either Graham Simm or David Howell-Richardson at first instance in order to discuss the situation further.

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Nullity

Some marriages suffer from impediments which lead them to being either void or voidable.  In relation to marriages celebrated after 31 July 1971 the grounds on which marriage is void or voidable is governed by the Matrimonial Causes Act 1973.

A void marriage is void from the beginning and can, in theory, be treated by both parties as never having taken place.  Whilst in theory there is no need for a decree of nullity, in practice it is always advisable to seek a decree even though the marriage clearly appears to be void.

A voidable marriage is valid unless and until a decree of nullity has been granted.   A decree is therefore essential.

A void marriage is a marriage which is:-

  • (a) Not a valid marriage under the provisions of the various Marriage Acts where:-
  • (i) the parties are within a prohibited degree of relationship (for example father and daughter, brother and sister).
  • (ii) either party is under the age of 16.
  • (iii) the parties have married in disregard of certain requirements as to the formation of marriage and both were aware of the irregularity at the time of the marriage.
  • (b) That at the time of the marriage either of the parties were already lawfully married.
  • (c) That the parties are not respectively male and female (see Civil Partnership).
  • (d) In the case of a polygamous marriage entered into outside of England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
  • (e) A voidable marriage is voidable on the grounds of:-
  • (i) it has not been consummated owing to the incapacity of either party to consummate it.
  • (ii) that it has not been consummated owing to the wilful refusal of the Respondent to consummate it.
  • (iii) that either party to the marriage did validly consent to it whether in consequence of duress, mistake and soundness of mind or otherwise.
  • (iv) that at the time of marriage either party, though capable of giving valid consent was suffering from mental disorder within the meaning of the Mental Health Act 1983 to such an extent as to be unfit for marriage.
  • (v) that at the time of the marriage the Respondent was suffering from venereal disease in a communicable form.
  • (vi) at the time of the marriage the Respondent was pregnant by someone other than the Petitioner.

If you believe that any of the above may apply to you and wish to discuss your rights, and indeed the effect of a Decree of Nullity, then please make contact with one of the Family Law Team by clicking on the names on the right hand side of this page.

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Application to Emigrate (with a child)

Under English Law nobody is allowed to take a child out of the jurisdiction of England and Wales without the permission of everyone who has parental responsibility because that would be regarded as child abduction under the Hague Convention.

If the Court has made a Residence Order in favour of someone, that person can take the child abroad for less than one month (at a time) and would therefore not need permission from either parent to take the child on holiday.

If a parent intends to relocate with the child abroad and someone else has parental responsibility (or Court proceedings about the child are ongoing) they will need the provision of either or the other parents and anyone else who holds parental responsibility or who will need the permission of such applications are known as "leave to remove" applications.

The decision as to whether or not to allow such application will be made with the child's welfare as being the paramount consideration of the Court, and the Court will go through the welfare checklist.  Although there is no presumption that the child's "primary carer" will be allowed to take the child abroad, in most cases the application will be successful.  Not all cases are clear cut, and there are many reported cases and questions which the Court will wish to consider. 

  • 1. The application must be genuine rather than a ploy to exclude the other parent from the child's life, and it is therefore important for the Applicant to show that contact will continue and how this would practically be arranged and how affordable it is.
  • 2. The plans must be realistic and well researched, with the Applicant being able to show where they will work, where the child will live, who will look after the child when the parent is working, how the move will be financed, where the child will go to school, etc.
  • 3. The Court will balance on the one hand the opposition of the parent staying behind, and the possibility of the child's future contact with their parent and on the other hand the effect on the Applicant if the application is refused.
  • 4. There are obviously many issues which we need to consider such as:-
  • (i) The ease and practicality of travel.
  • (ii) Contact arrangements.
  • (iii) Indirect contact such as telephone and webcam/internet.
  • (iv) Schooling and health.
  • (v) Social networking.
  • (vi) Language.

Every case turns on its own facts and it is essential that the application is well prepared and has been fully researched.

If you are contemplating such an application, or if indeed you are on the receiving end of one, you should contact an expert family solicitor as early as possible.  For advice on your specific circumstances please contact Graham Simm or David Howell-Richardson.

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Judicial Separation

When a marriage breaks down couples may refer to themselves as being separated. They can remain that way without having to take any formal proceedings if they so wish. Couples are usually aware that divorce is an option if they wish to formally dissolve their marriage.

There is however another option, which is Judicial Separation.  There are a number of reasons why a couple may wish to consider Judicial Separation, which are as follows;

  • 1. A petition for Judicial Separation can be issued during the first year of marriage whereas a petition for divorce can only be issued after being married for a year
  • 2. One party may not wish to consider divorce, for example on religious grounds so Judicial Separation may be an alternative option;
  • 3. Judicial Separation may be considered where it is difficult to prove that the marriage has broken down for the purpose of obtaining a Decree Nisi in divorce proceedings. (This is a rarely used reason for Judicial Separation proceedings as it is usually not to difficult to draft a divorce petition based on Unreasonable Behaviour);
  • 4. Once a decree of Judicial Separation has been granted the parties remain married however all marital obligations come to an end. This means they are no longer obligated to live together;
  • 5. Once Judicial Separation proceedings have been issued the Court have jurisdiction to exercise all the powers it has to divide matrimonial assets as it would do on divorce. Without proceedings for either Divorce or Judicial Separation the Court does not have that jurisdiction. This is a benefit to anyone who needs the assistance of the Court in resolving financial matters but has not been married for a year;
  • 6. There are other potential financial benefits to Judicial Separation as the marriage has not been brought to and end, for example, if one party has a pension with benefits that pay on death then the other party may still benefit. They may also still be entitled to any widow or widowers benefits;
  • 7. If one party to the marriage dies after a Decree of Judicial Separation has been granted then if they had a Will the Judicial Separation would not affect the provisions under the Will. If the party that dies had no Will then the effect of Judicial Separation would mean that the deceased's estate would pass as if the other party to the marriage had already died.

A Decree of Judicial Separation can be granted on any of the facts that a Decree Nisi in divorce proceedings can be granted on. Those being adultery, unreasonable behaviour, two years separation, two years desertion or five years separation without consent.

Judicial Separation is rarely used as unless both parties would be opposed to issuing divorce proceedings, for example on religious grounds, then divorce proceedings are the preferred way of formally bringing a marriage to an end .

Judicial Separation does not formally end the marriage so if a party that had obtained a Decree of Judicial Separation wanted to remarry they would still need to issue proceedings for divorce which is going to incur further costs and take more time.

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the family law team