REMEDIES

Marriage, civil partnership and cohabitation all typically create a relationship involving some sort of financial interdependence, as does having a child with another person (whether or not you are in a relationship with them). Money is nearly always an emotive subject, and especially so when it is discussed in the context of relationship breakdown.

Here at Merrick our team has experience across the full range of circumstances; those with plenty of money and those with none; those who seek to escape a relationship, and those who don’t.

There is little we have not encountered before so you can feel confident that we will understand your needs, listen to your concerns and draw on our experience to help you decide how best to proceed for you and your family – whatever your situation.

AGREEMENTS

Cohabitation

Cohabitees are the country’s second largest family type. In some situations they are treated like a married couple – recognised by medics as next of kin and with the same child support obligations – but in others, such as rights (and obligations) on the breakdown of the relationship or on death, treated very differently. Such inconsistencies only serve to create confusion.

A cohabitation agreement can help to provide clarity and assist in avoiding costly litigation in the unfortunate event of a separation. With asset ownership and income contributions clearly defined, both parties can understand their rights and be clear about their positions.

If you and your partner have children, then additional entitlements and obligations may arise, over and above those for regular child support.

Pre and post-nuptial agreements

Pre-nuptial agreements are growing in popularity and in legal importance. They are not binding on a court, but they are likely to be highly relevant and may be decisive. If one, or both, of you are independently wealthy, or if you expect you may be in the future (for instance because you expect a substantial inheritance), or if you simply want to plan for what will happen in the event of a separation, then a pre-nuptial agreement may well be for you. If it is your wealth you are protecting, you are almost certainly better to have a pre-nuptial agreement, than not.

Similarly, if you are already married, and want to agree what will happen in the event of a separation, then a post-nuptial agreement may be for you.

Finally, if your marriage or civil partnership has run its course and you are contemplating separation, or have separated, then a Separation Agreement (regulating some, or all aspects of your financial relationship) may prove a less costly and adversarial alternative to full divorce proceedings.

CLAIMS

Divorce and civil partnership dissolution

The dissolution of a marriage or civil partnership brought about by divorce entitles each party to make claims against the assets and income of the other. These claims last until they are determined by a court and will otherwise only be lost by an ex-spouse if they remarry and did not make their claims before they did so. In recent years there have been a number of high-profile claims brought successfully by one ex-spouse against the other many years after their marriage ended, and in respect of assets created entirely post-separation. These cases highlight the importance of dealing with financial matters promptly and properly when the relationship ends.

Despite the public perception to the contrary, the court’s principal function when dividing financial resources on divorce is to achieve an outcome that is fair. In so doing, they will consider all the circumstances; length of the marriage, age and health of the parties, the presence (or otherwise) of children, the nature, scale and source of the available resources and the needs of each party. This enquiry will not be carried out in isolation, but in the context of the standard of living enjoyed during the marriage.

Decisions taken during the marriage will be relevant – especially where that decision has been to abandon a career to raise children, or support a spouse in their career by staying at home. In all cases, the court will be anxious to ensure that reasonable needs are met.

If there is more money to divide than there are needs to be met, then the court will wish to ensure that resources are shared fairly between the parties, without any discrimination between the working and non-working spouse. But if one party brought wealth to the marriage, or received it (for instance by gift or inheritance) during the marriage, then the court may wish to recognise this fact also.

Since each case will have its own particular facts, no two cases are likely to be identical. But our collective experience will help you identify the relevant factors in your case, and to deploy them to ensure that you receive the financial award to which you are entitled. As always, the sooner the issues are identified, the quicker you are likely to be able to resolve your case.

Financial support for children

Every parent has a duty to maintain their children. In most cases, that duty will be discharged by paying the sum due under the Child Maintenance Service (CMS) maintenance formula. This can be agreed with the other parent, or imposed by the Child Maintenance Service itself.

But, in an appropriate case, a child’s right to financial support can extend beyond the payment of maintenance under the CMS formula and encompass provision of housing and of education expenses and maintenance beyond school into tertiary education. Circumstances which may take financial support beyond that of the CMS formula include:-

• provision for housing and other capital needs;

• school fees

• financial support during tertiary education

• additional maintenance (known as a ‘top-up’) where the paying party’s gross income exceeds £156,000.00 pa;

• financial support for a stepchild or stepchildren;

• expenses arising from a child’s disability or incurred by education (eg. school fees) or training for work andwhen the paying party lives outside the UK.

In these circumstances, the power to order financial provision rests with the court under Schedule 1 of the Children Act 1989.

Once the court has a clear picture of the available resources, it will consider what orders should be made to ensure the needs of the relevant children are properly met in the given circumstances.

COHABITEES

Cohabitees do not have the same rights as divorcees. A common, and cruelly inaccurate misconception, is that a person has rights by virtue of being a “common-law spouse”. There is, in fact, no such thing.

Rights to redistribution of property legally or beneficially owned by the other party arise only on divorce (for which there must first be a marriage), or when required to meet the needs of a child or children (and then the provision will only be temporary). Very limited property rights may arise when an engagement is called off. Otherwise, separating unmarried cohabitees have only the general law of property to assist them. Its rules are of great antiquity and are fact-specific and complex. Rights may arise because property is held in joint names, or because you have helped to pay for it, or because promises have been made which ought now to be acted upon. Our experience will help you to focus your case on the facts most likely to get to the outcome you desire, and to assist in achieving an early resolution.

COURT OR NON-COURT RESOLUTION

Here at Merrick, our focus is on resolving your dispute – whatever it may be – as quickly and cheaply as possible, and in most cases that is best done by reaching an agreement with the other side. Most agreements need compromise – some give and take from both sides – and are almost always preferable to the imposition of a solution by a judge (no matter how well-intentioned that judge might be).

For that reason most cases that go to court are resolved by agreement, with the court then being asked to approve the agreement and make an order embodying its terms. But these days, resolution can also be achieved:

• by agreement without any proceedings being issued;

• in mediation;

• through Arbitration otherwise known as Alternative Dispute Resolution

In any negotiation knowledge is power, and the best agreements are reached where there is equality of bargaining power. Our job is to empower you so that you make the compromises that you should, and not those that you shouldn’t, and so that you are on an equal footing with your ex, when you need it most.

IDENTIFICATION AND PRESERVATION OF ASSETS

Whether you are contemplating proceedings, or wish to resolve your claims by agreement, you need to be confident that you can identify the assets over which you make your claim, and that they are available to meet your claim. If you cannot, the court is not likely to make an order that is fair to you, or risks making an order that you cannot then enforce.

Our experience helps us quickly identify missing assets, and the orders that may be available to preserve or restore them. In these cases the sooner you obtain specialist advice, the quicker you are likely to be able to act to stop your ex from hindering your claims.

ENFORCEMENT OF EXISTING ORDERS

Sadly for some, obtaining a court order is just the beginning of the journey to secure the assets and income to which they are entitled. Making the other party comply with the obligations the court has imposed on them can sometimes be difficult

In these circumstances a well-drafted order is vital and where possible it should always address what will happen if the payer refuses or is unable to pay.

The law provides a range of enforcement options – although selecting which is right for you can be bewildering and difficult. Costs can usually be recovered if success is achieved.

WE’RE HERE TO HELP

Family law is complex and each set of circumstances is different, so, whether you are fact finding or ready to advance your case, do give us a call #itsgoodtotalk #familylaw.

In advance of any initial meeting we provide a financial statement for your completion and return. This is intended to assist you in getting the best value from those early discussions.

If your case is suitable for Alternative Dispute Resolution at any stage and it’s your preferred option we will make the appropriate referral.

WE ADVISE, SO YOU CAN DECIDE