One of the most common fears and anxieties when a couple divorce is how the marital assets will be divided and whether they will be able to manage financially after separation, particularly where there is only one main breadwinner. This article deals with some frequently asked questions and provides an insight into how marital finances are dealt with by the Court.

Factors the Court will consider

The objective of the court when making this decision is to achieve a result that is fair and non-discriminatory. The starting point, regardless of the length of the marriage, is always 50:50 and the overriding factor in most cases will be the reasonable needs of the parties.

The court must, however, have regard to all the circumstances of the case, the first consideration being given to the welfare of any minor child of the family. They must also specifically consider the following:

• The income, earning capacity, property, pensions and other financial resources which each party has or is likely to have in the foreseeable future;
• The financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeable future;
• The standard of living enjoyed during the marriage;
• The ages of the parties and the length of the marriage;
• Any physical or mental disability that either party has;
• The financial or other contributions which each party has made or is likely to make in the foreseeable future;
• The conduct of each of the parties if that conduct would, in the opinion of the court, be unfair to disregard; and
• The value to each party of any benefits that they may will lose the chance of acquiring.

When taking these factors into account an equal split of the assets may not be fair or it may cause one party financial hardship. In those circumstances the court can decide to deviate from the equality rule. Examples include where an equal split in capital would result in one party not being able to meet their housing needs or where one party has made such a significant financial contribution to the marriage by their own endeavours that to share all of this would be unfair.

Will I have to pay maintenance? 

There is an expectation that each party will aim to maximise their ability to earn or receive an income on divorce even if that means seeking employment for one party who had never worked during the marriage. If there are young children, or if the parties are much older, then this may not be possible and there may be a need for one party to pay the other maintenance either for a fixed period of time (usually until the youngest child reaches a certain age) or, more rarely, in older couples, for their joint lives.

There is no ‘formula’ that determines how much maintenance will be paid in such cases; the court tends to apply a broad brush approach looking at the reasonable needs or requirements of each party and the income that is available.

What if only one of us has a pension?

Most working people these days are likely to have some form of pension provision whether that is through their employer or paid privately. Despite this fact many divorcing couples remain unaware that, like other assets of the marriage, pensions can also be shared equally. This may be a key asset for older couples approaching retirement, particularly where there was one main breadwinner who earned and saved for the family. The sharing of pensions can be a complex area and seeking the right advice is essential.

But I acquired some of my assets before the marriage…

Generally, assets that one party owned prior to the marriage such as property or investments will fall outside of the marital request. However, the court can include assets that were subsequently used for the family within the pot to share. The court also has a discretion to include such assets where not to do so would mean that there are insufficient financial resources to meet the parties needs.

…and my inheritance?

Inheritance (or gifts) are considered non-matrimonial property and can be ring-fenced or set apart from the assets of the marriage especially if acquired before marriage or after separation. However, there are circumstances where they may not be excluded, for example, if the value of the marital assets are insufficient to meet both parties needs.

Can I protect my assets from my spouse on divorce?

There are a number of ways legitimately to protect various assets from falling into the marital pot for distribution on divorce. These include pre-nuptial and post nuptial agreements and deeds of trust. If properly prepared then these documents fall within the category of ‘factors’ that the court must take into consideration when deciding division and, provided they are fair, they are likely to be upheld by the court.

Need advice?

Understanding how the court might approach your circumstances could alleviate any anxieties and help you to decide your next steps. Taking legal advice may be essential in ensuring that you receive a fair share of the marital assets.

Zharna Sutaria heads the Family Team at Vyman Solicitors. She is a Law Society accredited specialist and a member of Resolution meaning her focus is on achieving an amicable settlement whenever possible. Please contact her on 020 8429 1010 or Zharna.sutaria@vyman.co.uk if you would like to discuss how she may be able to assist you.

While the fear of coronavirus itself was enough for most households across the UK to agree without question to a lockdown, news sites have begun to report serious flouting of lockdown rules over the past weeks.

Some posit that people are suffering from a general lockdown exhaustion. Others believe that it is likely that tensions within households could also be forcing people outside more.

Speaking to the BBC, Professor Jacqui Gibb of the Open University stated that, before coronavirus, couples would spend an average of two and a half hours in each other’s company each day.

During the lockdown, families are spending up to 15 or 16 hours of each day together. Add to that the presence of children who would normally be at school, homes can start to feel crowded.

An analogy might be the festive season. Everyone knows that Christmas and family holidays can be a tense time as families are forced together for hours on end. With the pandemic, there is no end date – no light at the end of the tunnel – this is bound to create additional stress.

Not only this, but coronavirus introduces further pain points in addition to the concerns about one’s own health and the health of loved ones, for example, financial worries due to jobs lost or with an uncertain future, a lack of childcare, and the disappearance from life of normal interactions with friends and far-off family members.

The situation in hundreds of thousands of UK households is likely to be incendiary right now.

In fact, figures recently released by the National Domestic Abuse helpline show a 25% increase in calls for help since the beginning of the lockdown, showing that a worrying trend is developing.

Single Parents

Whilst families with one or more adults struggle with lack of personal space, single parent families are among the hardest hit by the lockdown.

Single parents, of which there are more than two million in the UK, have a number of extra worries during normal times, and all of these issues are magnified during a crisis.

90% of single parents are women and, while the majority are in work, a large number of these are in lower-paid roles or on zero-hour contracts. With the uncertainty of job status for most people in the UK right now, single parents are faced with the possibility that they won’t be able to afford their bills if they lose their jobs.

Single parents are also facing the crisis alone with shelter-in-place rules meaning that they cannot share childcare with others or have face-to-face social contact with other adults.

How Are Child Contact Arrangements Affected?

One of the other things that single parents have to consider is how to work child contact arrangements during this crisis if their ex-partner is still involved with the children.

The government guidance currently states that children are allowed to continue to travel between separated parents. Whether they actually do or not is up to the parents to decide as this does increase the risk for both children and the households that they are moved between. Parents can make the decision between them whether they are going to continue visitations, and how often they want to do so.

Face to face contact must be stopped if someone in one household or the other falls into the extremely vulnerable category or if someone in either household develops symptoms.

Otherwise, changes can be agreed between parents and children unless there is a court order in place. A court order can be varied by agreement, set out in writing, and agreed by both parties.You should set out a date to review the agreement and prepare yourself to set new dates going forward up until the lockdown ends.

Some of the changes parents can put into place to protect their children and respective households during the coronavirus crisis include:

• Switching from public transport to driving if one parent is able to
• Making visitations longer and less frequent so that there is as little time spent out of the house as possible
• Mixing face to face contact with online contact so that it is just as frequent but with less moving between households

Approaches For Families In Lockdown

If you are locking down as a family, either as a single parent or with two or more adults in the home, it is key that you get the whole household on board to protect your environment and keep everyone happy.

Create A ‘Family Contract’

Sit down with the entire family and work together on a family contract that gives everyone a role during quarantine, helps to set out expectations and concerns, and discusses what you can all do to maintain a happy home.

Having the whole family work on this makes everyone feel involved and it helps to ensure that a lockdown arrangement is arrived at which everyone is happy with.

Set Up A Daily Structure

Routine is an important part of day to day life outside of quarantine, and so it should also be part of life inside it. Make sure that there are set getting up and going to bedtimes and that everyone has activities to do each day.

Stay Active

Keeping fit and healthy is not only good for your physical health but it promotes much better mental health as well. Try online exercise classes, playing sports and games in the garden or even fun activities like a little obstacle course you can all compete in.

Give Each Other Space

Being in the same house all day every day can lead you to feel irritated by the people that you live with. This is why it is so important to get some alone time each throughout the day. Make sure that everyone respects each other’s alone time, and has activities that they can do independently of each other.

Vyman helps clients with various aspects of family law including assistance on arranging new visitation rules throughout quarantine and beyond.

Call 0208 427 9080 or email zharna.sutaria@vyman.co.uk to find out more about our family law services.

As the Covid-19 pandemic rages outside, the Government have issued a strong warning to everyone that your home is the safest place to be. But for some, home is not a haven from violence and abuse.  Self-isolation and stay at home restrictions will force many victims of abuse and their children to effectively be shut in with their abusers.

Domestic abuse is not just about physical violence, controlling or coercive behaviour. Many victims of  domestic violence can be subjected to mental, emotional and financial abuse by their partners that can have devastating and often long term affects upon them and their children. No one should experience or witness violence, abuse or harassment in their own homes.

What help is available?

If you are in imminent danger you should call 999 immediately. As domestic violence has been criminalised the police will be able to take the appropriate measures to protect your safety and may prosecute the abuser(s).

If the police are unable to assist, there are some civil remedies by way of injunctive orders that may provide you with the protection you need.

1. Non-Molestation Order

A non-molestation order provides temporary protection from violence, threats of violence, abusive behaviour, intimidation and harassment including in the form of text messages, emails and telephone calls. It can also be extended to include refraining from damage to property, protecting children and can restrict a person from coming within certain proximity of the family home. You can apply for such an order if the abuser is someone you are in a relationship with or living with or a family member.

If you and your partner live within the same house, the Court also has the power to prevent the abusive party from entering certain rooms or areas of the house. This can be used as an alternative to an occupation order and may be an option when self-isolation is necessary.

A non-molestation order carries an automatic power of arrest meaning that if the abuser continues the behaviour they will be immediately arrested by the police and brought before the civil court to face sanctions including possible imprisonment or fine for being in contempt of court. It is also a criminal offence and could lead to up to five years in prison.

2. Occupation Order

An occupation order can be obtained alongside a non-molestation order or as a stand-alone order. If granted, it can force the abusive party to leave the family home temporarily, even if they own the property, until the safety of the victim is secured, whilst continuing to make payments towards bills. It too can restrict that party from coming within a fixed perimeter of the property or other address.

Occupation orders where one party is ousted from their property are considered to be draconian and so the Court will look very closely at whether such stringent measures are necessary. When considering whether to grant an occupation order, the factors the Court will take into account include whether you and any children are at risk of suffering significant harm from the other party if an order is not made as well as the housing needs and financial resources of the parties.

Occupation orders can also carry an automatic power of arrest.

Get in touch

If you are self-isolating or staying at home, in an abusive relationship and are worried about your own and/or your children’s safety please contact us at Vyman Solicitors. We have a specialist family team who have extensive experience in dealing with domestic violence matters and are available to give advice and assistance in strict confidence on any issues or concerns that you may have. We have facilities in place to communicate with you remotely during the pandemic. In very serious cases it is possible to obtain emergency orders from the Court within 24 hours despite the current social distancing restrictions being in place.

Do not suffer in silence. If you need help or advice or wish to arrange a remote meeting with a member of the family team, please contact us on 020 8429 1010 or email us at familyenquiries@vyman.co.uk.

A child’s health and wellbeing is undoubtedly the paramount concern for any parent during these unprecedented times. One key dilemma faced by many parents with a Child Arrangements Order (CAO) in place is how to comply with the provisions without risking their child’s or their own safety and what happens if the terms of the Order are not being followed.

Please see our Q&As below

Can my child visit me even though there is a lockdown?

In their guidance released on 23 March 2020 the Government confirmed that the current lockdown does not necessarily prevent moving a child from one parent’s household to the other. Therefore, direct contact can and should continue in accordance with any CAO provided, of course, that neither parent, the children or anyone living in the household have symptoms or are self-isolating.

What should I do if I agree that the CAO should be changed temporarily?

If both parents agree that complying with the CAO is currently not safe, they should discuss and agree alternative arrangements to enable contact to temporarily take place indirectly via facilities such as video calling, Skype, Whats App, Face Time or Zoom. It is advisable to ensure that any such agreement is recorded in writing for clarity and to avoid any later dispute.

What if one parent will not agree to comply with the terms of the order?

One parent may believe that it is safe for contact to continue but the other may not. Here, there should be a sensible assessment of the circumstances including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other. Ultimately, it will be a decision for the parents to make but they should communicate with each other about their concerns and what they think might be a good practical solution.

If the parents cannot jointly agree to temporarily change the terms of the existing order, for example, if one parent feels that contact continuing will be against the current Public Health England guidelines, then that parent may exercise their parental responsibility to change the terms of the order but the Court will, once the current restrictions have been lifted, assess whether that parent acted reasonably if the other believes that they did not.

If I cannot see my children what are my alternatives?

The Family Court has emphasised that where direct contact cannot continue they will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules such as via remote facilities as described above and, if that is not possible, then by telephone. The fundamental objective of any CAO should not be affected in such circumstances, only its implementation.

The guidance reminds parents that they have responsibility for their children and not the Court.

What can you do if the other parent is using Covid 19 as an excuse to prevent or hinder contact?

One parent may feel that the other is using the current pandemic as an excuse to hinder contact. The Courts recognise these concerns as genuine and if you believe that this is happening, you have the option of raising this at your next hearing or immediately applying to enforce the order. The Court will consider whether the other parent acted sensibly and reasonably in light of the Government guidance and the evidence specific to your family.

Lockdown does not mean Lockout

Our specialist Family Team at Vyman Solicitors understand that it is very important for parents to maintain and build their relationships with their children particularly in these stressful times. Understandably, parents will wish to avoid alienation due to the current pandemic.

We are happy to discuss any concerns that you may have about existing contact arrangements and provide guidance on what steps you should take to ensure that this continues without interruption.

We can also assist in organising alternative contact arrangements or with drafting agreements temporarily varying the terms of an order.

We are here to guide you so you can try to ensure that even in these exceptional circumstances your relationship with your children is not compromised.

A lockdown does not have to mean being locked out of your children’s lives.

Divorce is a sad and difficult time for most couples so finding ways to make the experience more palatable is always welcome. The aim, for the majority of people, will be to achieve an amicable, fair and cost effective outcome with minimum stress and anxiety.

The family team at Vyman are specialists with over 20 years of experience in this area of law and have acted for a very broad range of clientele. Here are our top tips to help achieve a more successful outcome on divorce:

1. PLAN AHEAD

Be financially prepared; divorce is not about the short term. Plan for your future needs, possibly as a single parent with a significantly reduced income. Do your research and consider a budget. Will you have enough?

2. AVOID IMPULSIVE REACTIONS

Talk to your partner; if possible be open and honest. This reduces tension and anxiety, helps to minimise your costs and can keep things amicable.

3. DON’T INVOLVE THE CHILDREN

Many couples, sometimes unintentionally, use their children to get their way in a marital dispute. They forget that separation can often be more emotionally traumatic for the children than it is for the parents. Avoid talking about these issues in the earshot of your children, it’s best done when they are not around. 4.

4. DON’T FEEL PRESSURED

We frequently hear about one party being willing to agree terms of settlement that are unfavourable to them to avoid a bitter or acrimonious dispute. Don’t feel pushed into accepting an offer from your partner if you feel it is unreasonable. If the maths do not add up it probably is unfair. Consider what the consequences will be for you in the long term.

5. GET INVOLVED

Understand the legal process. Obtaining a court order confirming settlement terms provides certainty and avoids future claims. Speak to a specialist family lawyer; often paying for advice and assistance where needed can result in a smoother and more efficient outcome where you feel supported and stronger.

Zharna Sutaria heads the Family Team at Vyman Solicitors. She is a Law Society accredited specialist and a member of Resolution meaning her focus is always on achieving an amicable settlement.

Contact her on 020 8429 1010 or Zharna.sutaria@vyman.co.uk if you would like to discuss how she may be able to assist you.

ONS figures show that cohabiting couples are the fastest growing family type in the UK, but the legislation has not moved with the times.

When Bhadrak Reddy (34) moved into a flat in Harrow five years ago with his then girlfriend Tanya Bhatt (32), making plans in case they broke up was the furthest thing from their minds. Bhadrak owned the property but the household bills were split evenly between the couple.

Their relationship soon deteriorated and they decided to separate. Tanya felt she was entitled to half the property. Bhadrak disagreed. Like many people, Tanya thought they had a ‘common law marriage’ with the same legal rights as married couples. This is not true. (Case study is fictional and for illustration purposes only).

The latest figures from the Office of National Statistics (ONS) shows that the divorce rate has fallen by 30% since 2003 – more people are choosing to live together before becoming married and this means many cohabiting couples find themselves in the same difficult situation as Bhadrak and Tanya.

On cohabitation breakdown there is no right to claim against a financial asset that is in the sole legal ownership of one party.

However it may be possible to establish a claim by an alternative doctrine known as equity (or what is considered fair and just). A claim may arise where one party has made a financial contribution or it can be established that there was a common intention to share assets but this can be difficult, time consuming and expensive. There is also no right to claim maintenance except for any children of the relationship.

Is there any way to ensure financial security?

The only way to guarantee some financial security or to protect assets in these cases is to have a cohabitation agreement in place from the outset. Parties should seek legal advice at an early stage.

Cohabitation agreements are similar to prenuptial agreements. They involve both parties taking independent legal advice, making financial disclosure and agreeing how their assets should be divided if there is a relationship breakdown. The agreement creates an enforceable contract between the parties.

It is also worth noting that in the event of a partner’s death, cohabitation alone does not provide the surviving partner with any automatic right to inherit part of the deceased’s estate if there is no Will.

The survivor could have a potential claim against the estate for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, but this will depend on the circumstances. It is therefore important to have an up-to-date Will referring to the cohabitee if you would like them to inherit from your estate. This reduces the risk of costly disputes between the survivor and other relatives after your death.

Article by Zharna Sutari

To most people, marriage is all about love and romance – a future life of wedded bliss viewed through rose tinted glasses.

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Divorce never used to be a ‘common’ issue, nowadays it has become ever-increasing!

If you are thinking about getting a divorce, you need to know what to expect. Each divorce matter is different so not all outcomes will be the same. Below are 5 key elements to consider if you are thinking about getting a divorce:

1) What is the motivation behind the divorce?

Before filing for a divorce, couples need to think about the motivation behind it. If you feel a divorce will resolve an issue with your spouse, you are wrong, you will promote conflict – so think hard about why you want to file for a divorce. Don’t split your family apart due to a rash decision.

2) What happens to your assets?

You need to think about what may happen with your assets such your house, especially if you are joint owners alongside other high value items. It’s not the best thing to think about but you will have to right at the start.

3) How does this affect your children?

If divorce is the only way forward, you will need to think about your children and talk to them about it, if they are old enough to understand. Divorce can have a huge effect on children so our recommendation is to be as supportive as possible and to find a way to ‘co-parent’ together.

4) How much will the divorce cost me?

Divorce does not come cheap therefore it is important to keep this in mind. Various elements affect the cost for divorce such as the time taken for proceedings to go through to the professional you hire and whether or not your spouse wants to settle inside or outside of the court. To understand the process, it is important to get guidance from an experienced solicitor.

5) Should I change my name?

When you got married, you may have changed all your legal documents from driving license to passport. Therefore, changing it all back can be daunting.

At the end of the day, divorce is a life changing decision. It is your and your partners decision. No matter what you decide, be sure to factor in the above and most importantly assign the right solicitor on your side.

Shreeti Rajdev – Solicitor /Partner
T: (0)20 8866 6464
E: shreeti@sethi.co.uk

The Sethi Partnership Solicitors I The Barn House I 38 Meadow Way I Eastcote I Ruislip I Middlesex I HA4 8TB

“This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.”