Divorce and cohabitation

Sometimes it isn’t the ‘happy ever after’ you hoped for and you may decide that your marriage, relationship or civil partnership is over. You will want to know the implications of your break up, such as how do I formally end the relationship by separation, divorce or dissolution of a civil partnership, how long will it take and what are the financial and other considerations of such action.

Stantons’ lawyers can assist you with all of the following areas of family work:

Finances on separation or divorce
Prenuptial agreements
Cohabitation agreements
Disputes about children

We hope you will find the following information helpful:

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Some of our clients separate on an amicable basis and wish their terms of settlement to be set out in a separation agreement, allowing them to divorce two years later by joint agreement. We can prepare a separation agreement for you.

Some clients, for religious or financial reasons, do not wish to divorce, in which event we can assist you in applying for judicial separation. This order means you are legally separated but does not dissolve the marriage itself. You can apply for the same financial orders in judicial separation but the court cannot make a pension sharing order.

Under UK law separation agreements are not legally binding but a properly drafted Separation Agreement is likely to be upheld provided that certain conditions have been satisfied. These are primarily:

  • Each party should have given full and frank disclosure of their financial position.
  • Each party must have independent legal advice.
  • The agreement has been signed and witnessed and there is no question of duress.

There has been no significant change in circumstances that was unforeseeable at the time the agreement was entered into.

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Finances on separation or divorce

With regard to financial matters, our aim is always to try to negotiate a mutually satisfactory settlement between the parties. This should ideally take place after there has been a full and frank financial disclosure of both parties’ up to date financial positions and, on this basis, proposals can then be made for settlement.

If proposals are agreed then these can be incorporated into a Separation Agreement or a Consent Order approved by the court on a petition for divorce or judicial separation. This is a formal court order made by consent which sets out the agreement between both parties and protects both parties from further claims from the other in the future. Once it has been drafted by your solicitors and the terms are approved, it is signed by both parties and then submitted to the court for approval. Then, once it is approved by a judge, it is sealed by the court and becomes a binding court order. A consent order application cannot be submitted to court until decree nisi has been pronounced on your divorce or judicial separation proceedings.

The court will only become more involved in the financial process if an agreement cannot be reached. In these circumstances, either party can apply for Financial Remedy Orders which could ultimately result in a court hearing to decide the issues of financial settlement and can result in the court enforcing an order upon you. At any stage of the court proceedings it is possible to reach a settlement and part of the court procedure is to try to encourage the parties to negotiate and hopefully reach a suitable settlement. If the parties are able to reach settlement together during the court process then this would again result in a consent order.

The court has a number of powers in terms of what orders can be made. These include orders for the sale or transfer of property between the parties, an order for a lump sum payment from one party to the other, or orders for maintenance.

Pensions often play a large part in financial proceedings and there are various ways in which these can be dealt with. Firstly, an offsetting order can be made by the party without the pension is allowed more of the capital assets of the marriage to recompense them for the loss of the pension fund.

Alternatively, the most popular way of dealing with pensions now is a pension sharing order. This means that a percentage of the pension fund is transferred from the fund of one party to the other party – either to their own private pension fund or kept within the remit of the original company pension depending on the rules of the pension trustees of that fund. That party can then contribute to the fund if they wish. However, you cannot have a pension sharing order in a consent order reached after a petition for judicial separation has been issued.

Family lawyers are often reluctant to fine-tune their advice on financial matters in the very early stages of your case as it is difficult, without a full and frank disclosure of all financial matters having taken place, to fine-tune advice as to a suitable settlement in your particular case. We would need to see documentation relating to both your and the other party’s income and assets including details of any pension funds. However, section 25 of the Matrimonial Causes Act 1973 sets out the factors to be considered by the court when considering financial matters. These are as follows:

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.

In addition, the court must also give first consideration to the welfare of any children of the family when making any order.

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Prenuptial agreements

In spite of the courts recently showing a willingness to take prenuptial agreements into account on divorce where certain conditions have been met, prenuptial agreements are still not binding under English law. It may seem somewhat perverse for couples who are about to embark upon a marriage to focus upon what should happen should the marriage fail. Such parties are becoming more concerned about what will amount to potentially expensive and unpleasant divorce proceedings. Some parties may already have been through a divorce from a previous relationship and may wish to try to achieve some greater control over the outcome of any subsequent divorce proceedings.

A prenuptial agreement would set out what you and your future spouse or civil partner have agreed should occur in relation to your individual finances should the marriage break down and you each go your separate ways.

If a prenuptial agreement is going to stand any real chance of being implemented by the courts certain criteria would have to be satisfied.

a) Both parties to the agreement should have sought and received independent legal advice from separate solicitors.

b) There must be full and frank disclosure of each party’s financial position. It is quite common for a summary of all the appropriate financial details to be annexed to any prenuptial agreement so there can be no doubt as to what matters have been taken into account prior to coming to an agreement. 

c) Neither party should have entered into the agreement under duress by any party prior to entering into the agreement. The agreement should also be signed at least 28 days prior to any marriage or civil partnership ceremony.

d) Overall the agreement has to be considered to be realistic and fair. If it shows a clear indication that in the event the net effect of the agreement is that it is too far to the advantage of one person then it is unlikely that the courts would uphold it within any divorce proceedings. During any subsequent divorce proceedings, it is entirely a matter for the discretion of the courts as to whether or not they take such agreements into account in the event of a short marriage or where the circumstances of either party have not altered very much since the agreement was drawn up, that agreement may well be considered as a starting point for any subsequent negotiations.

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Cohabitation agreements

Marriage is not for everyone and more and more people are now deciding that they would prefer to live together. Many people work on the assumption that they are entering into some form of ‘common law marriage’, in which they will gain the same rights as those who have entered into a marriage or civil partnership. The concept of a common law marriage does not exist in England and Wales and, in the event that your cohabitation comes to an end, your rights will be governed by matters of property and contract law. By way of example, where in divorce proceedings the courts have a power to adjust property rights, in a cohabitation situation they can only determine who owns a particular property and in what shares on the basis of the parties’ intentions and/or by the contributions made. In a long standing relationship the parties may well have forgotten what they originally intended and any documentation that would help prove the original contributions made by the parties may have long since been lost.

To try and avoid conflict and disagreement, a cohabitation agreement can be drawn up which would set out clearly what will happen to any property and its contents as well as other assets or liabilities so that each party is sure where they stand. The extent of the agreement will depend on the nature of the assets and liabilities of the parties and can also deal with what is to happen in respect of such matters as mortgage payments, contributions to living expenses, pensions, credit cards and the ownership of items of personal property held within the home.

As in the case of prenuptial agreements it is essential that, before a cohabitation agreement is signed, both parties are given the opportunity of taking independent legal advice and there is no duress.

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Disputes about children

When relationships break down or a family is in crisis, disputes often arise about the arrangements for children.

We can advise about residence arrangements and contact and other issues such as changes of name, shcool, etc.

We can advise about grandparents’ rights and special guardianship orders.

For most clients it is helpful to initially have a fixed fee appointment with us where we can discuss your problems and how they might be resolved.

We do not offer legal aid but for many clients whose finances are limited we advise them to take the court proceedings themselves whilst we advise ‘behind the scenes’.

We can help you draft the necessary court applications and can offer fixed fee advice about the wording of statements in court proceedings.

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We can help you with:

  • Divorce and separation
  • Judicial separation
  • Financial settlements
  • Separation agreements
  • Children matters including contact
  • Parental responsibility and residence
  • Adoption proceedings
  • Fathers'/mothers' rights
  • Grandparents' and step parents' rights
  • Civil partnerships
  • Co-habitee disputes
  • Powers of attorney
  • Wills and probate

See divorce and cohabitation for further details.


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