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Legal Basics - Family & Divorce Law
updated
06 February 2010
It is a well known fact that one in three marriages now end in divorce. It is probably true that even more non-married relationships fall apart. Divorce itself is not a particularly complex legal procedure. But family law solicitors are needed to help pick up the pieces, and sort out the finances and the children. It is amazing how two people who loved each other a few years ago, can become so venomous towards each other when things go wrong.
If things do go wrong then it is important
for both married and unmarried couples to know where they stand, and that is what
we have tried to cover in this section of the site, and in the section
specifically for unmarried
couples, where the legal rules are very different. We have also put together
a panel of divorce and family
law solicitors who can provide you with more help, including initial
advice for a fixed fee over the
telephone. We know and work with them all on a
daily basis and we know that they know what they are talking about, so you can
trust them to give you sound and sensible advice.
The Basis for Divorce
There is now just one ground for divorce in England and Wales and that is that the marriage has broken down irretrievably.
In order to prove this to a court the parties need to give evidence in writing (in the divorce petition) of any one of the 5 Facts, which needs to be accepted by the court. The 5 Facts are :-
1. The adultery of the other spouse.
2. The unreasonable behaviour of the other spouse.
3. 2 years desertion.
4. The couple have lived apart for 2 years and the other spouse consents to divorce.
5. The couple have lived apart for 5 years (in which case no consent is needed).
The majority of divorces are undefended and are granted on one of the first two Facts.
Step One - Filing the Petition
This is the request to the court to grant the divorce, and gives the court all
the facts about the parties and the reason for seeking the divorce - one of the
5 Facts. The person applying for the divorce is referred to as the Petitioner.
The other spouse is referred to as the Respondent. If
there is a third party they are referred to as a Co-Respondent.
If there are children (under 16, or over 16 and still in education) then, in addition to the Petition, a Statement of Arrangements for the children needs to be completed, which gives details of the proposed arrangements for the children after the divorce.
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These documents, together with the marriage certificate and a £180 fee, are sent to the Court to start the divorce process.
Step Two - Service of the Petition
The Court will check the documentation and if they are satisfied that it
complies with all the requirements they officially issue the divorce petition
and send it to the Respondent, together with a Statement of Arrangements and a
form for the Respondent to complete and return to the Court (Acknowledgement of
Service form).
Step Three - Acknowledging service of the
Petition
The Respondent should return the form to the Court within 7 days, indicating
whether or not they wish to dispute the divorce proceedings. If they do want to
dispute it they will have to file another form called an Answer within 28 days
of receiving the Petition.
Step Four - Confirming the facts in your
Petition
The Court will send a copy of the Acknowledgement of Service form to the
Petitioner, who must then swear an Affidavit (just legal jargon for a written
statement sworn under oath to be true) confirming the facts in the original
Petition.
Step Five - Pronouncement of Decree Nisi
If the Court are happy with all the documentation they will set a date on
which the Decree Nisi will be pronounced in Court. The parties are not divorced
at this time however, as there is a second stage required to finalise the
divorce (the Decree Absolute).
It is not usually necessary for the parties to attend Court to hear the decree nisi being pronounced, unless the parties are unable to agree on arrangements for the children.
Step Six - Application for the Decree
Absolute
43 days after the Decree Nisi is pronounced the Petitioner can apply for the
Decree Absolute. There is a standard application form and a fee of £30. Only
once this has been granted are the parties officially divorced. If the
Petitioner fails to apply the Respondent can apply 3 months later.
Step Seven - Receipt of the Decree Absolute
Only once the Decree Absolute has been granted and sealed by the Court are
the parties officially divorced. This is an important document and it should be
kept in a safe place.
Maintenance & The Child Support Agency
Unfortunately in our society today all too many relationships breakdown and one of the most emotionally challenging aspects is how to deal with the children and the issues around child support.
What many people are unaware of is that when the Government introduced the Child Support Agency (CSA) in the early 90’s the Courts lost their powers to deal with maintenance for children. This means that Child Maintenance is no longer a case for the divorce courts or for your lawyer.
The two main circumstances where the Courts used to make maintenance orders were where parents separated or divorced, or where the parents were not married and the child’s father did not want to help financially with a child’s upbringing.
The Role of the Child Support Agency (CSA)
Today the Child Support Agency deals with maintenance for ALL children in all circumstances. This means that lawyers cannot help very much when a father won’t pay anything to help the mother bring up a child, or where the CSA has already made an assessment and the father refuses to pay, or makes excuses.
At this point the responsibility rests with the CSA to take action, by taking the non-payer to Court to make them pay by, for example, asking the Court to make an Attachment of Earnings Order so that the money is stopped out of the father’s wages each week. There are restrictions on what the CSA can deal with. They cannot for example deal with maintenance for children over 17 years of age.
Where
a father is living abroad, the CSA can, in theory, enforce payment by i) getting
a Court order and ii) getting it enforced by local law enforcement authorities.
They can send orders to all EU states,
More information is available at www.csa.gov.uk
Unmarried
Couples
**(see also our new extended section on Living Together - just click here)**
More and more couples now live together without getting married, but no matter how long the relationship the law still effectively treats them as separate individuals with no rights or liabilities to each other if the relationship ends (except for same sex couples who have entered into a formal civil partnership).
This has some far reaching consequences for such couples (of whatever sex or combination of sexes), particularly in relation to their home (most people's biggest asset), and what should happen if either party were to die. The majority of couples fail to consider these points until after the relationship has ended.
Unlike married couples, unmarried couples have no basic rights to their partner's property or to maintenance if they split up. Basically what is his is his, what is hers is hers, and what is jointly-owned needs to be divided.
This applies to the home as well. Therefore if a house is bought in joint names (either as beneficial joint tenants, or as tenants-in-common - click here for more info on these terms) then it should be split accordingly on separation, and either party can force a sale of the property to realise their share. If the parties are contributing unequally to the purchase price, or to the maintenance of the property, then this should be reflected by being designated as tenants-in-common and holding unequal shareholdings (say 70% and 30%), rather than the equal shareholdings of beneficial joint tenants.
If the property is in the sole name of one party then ostensibly it remains that person's property on separation, unless the other party can establish that there was a common intention that they would be entitled to a share in the property. How do they do this? Well this may have been agreed in a simple conversation, or in writing between the parties at some time (proving it tends to be the problem!); if the other party directly contributed to the purchase price the courts are likely to accept that at least part of the property should have been in their name; and finally if there has been an understanding between the parties and the non-owner has acted to their detriment as a result (eg contributed to mortgage repayments, paid household bills, or, perhaps, sold their own property) then the courts may agree they should share in the property. The parties can, of course, come to an agreed settlement, but if not, such disputes can become messy and expensive. It may not sound too romantic, but it is quite legitimate for unmarried couples to enter into an agreement when they start living together to try and cover any disputes on property if they should split up. Its worth considering.
The other essential matter for unmarried couples to consider is that as they are not related, unless they make a Will in favour of their other half, then, should they die, their estate will pass to their immediate family under the intestacy rules, rather than their partner (except their share in the home if they are beneficial joint tenants). If the relationship is a serious one, then they should both make Wills at an early stage.
There are now 6 basic rights relating to maternity. We will try and cover the basics of all of them here. They are:-
These rights are quite extensive and compliance can be very difficult and disruptive to employers. The law therefore places a heavy burden on the employee to comply with strict procedures and timetables.
Not
to be dismissed on grounds of pregnancy or childbirth
All employees, regardless of how long they have worked for their
employer, are entitled not to be dismissed simply because they are pregnant, or
have given birth. In fact any such dismissal is automatically
unfair.
A
right to maternity leave for all employees
All employees, regardless of how long they have worked for their
employer, are entitled to up to 18 weeks maternity leave ( increased
from 14 weeks for those whose expected week of childbirth falls on or after 30
April 2000). During this period the woman's contract of employment is
considered to continue, even though she is not physically at work.
It is for the employee to decide when she wants to take her maternity leave, but she cannot start her leave earlier than the eleventh week before the expected week of childbirth, and her maternity leave is automatically triggered by any day on which she is off from work because of the pregnancy or childbirth, after the beginning of the sixth week before the expected week of childbirth.
The right is conditional upon the employee complying with a complex set of notice requirements. She must give the employer at least three weeks' notice of the date on which she intends her maternity leave to start (unless this is not reasonably practicable, for example she goes into labour prematurely). She must also inform her employer in writing at least three weeks before her maternity leave period starts that she is pregnant, and give them the expected week of childbirth. An employer can insist upon a doctor's certificate to confirm the information provided.
Provided the employee complies with the rules she can return to work at the end of her 18 weeks leave. She can return earlier if she wishes, but will need to give her employer seven days notice of her intention to do so.
A
right for a mother to return to work after maternity absence
Whereas all employees have a right
to return to work after their 18 weeks' maternity leave, only those who have
worked for at least one year (decreased from two years for those whose expected
week of childbirth falls on or after 30 April 2000) for their employer at the beginning of the 11th week
before the expected week of childbirth, qualify to extend their absence up until
the end of the 29th week after the actual date of childbirth, and still be
entitled to return to work.
The employee must have satisfied all of the requirements for maternity leave, and must also have included with that information confirmation that she intends to exercise her right to return to work. She should do this even if she does not think it likely, as if she fails to notify them of this intention before she leaves she will lose her right to return. An employer can require further confirmation from an employee that she intends to return. This request cannot be made earlier than three weeks before the end of the maternity leave period, and must be replied to within 14 days.
Finally when the employee wishes to return she must give her employer at least 21 days' notice in writing of the date on which she expects to return to work. The employer can postpone this date for up to four weeks, provided they give the reasons for doing so, and the date on which they want they employee to return.
The employee is entitled to return to the job in which she was employed before she left on maternity absence, and on terms and conditions not less favourable than those she would have been on if she had not been away.
A right to maternity pay
Statutory Maternity Pay (SMP) was introduced in 1987. To qualify
the employee needs to satisfy the following conditions:-
If she can satisfy all these conditions then she will qualify for SMP at the higher rate (9/10ths of her normal week's pay) for six weeks, and then at the lower rate (fixed by the Government) for the remainder of the maternity pay period (up to a total of 18 weeks in all).
If an employee does not qualify for SMP she may claim the state maternity allowance.
A
right to alternative work or
payment during suspension on grounds of maternity
An employer is required to suspend
an employee where she is a woman of child-bearing age and her work is of a kind
which could endanger the health and safety of new or expectant mother, or that
of her baby; or where the employee is a new or expectant mother who works
nights, who has a doctor's certificate confirming that she should not be at work
for any period during the night.
Before being suspended from work on grounds of maternity an employee has the right to be offered alternative employment. If this is available, but not offered then the employee can complain to an Employment Tribunal.
In addition an employee who is suspended on maternity grounds is entitled to be paid her normal pay during the suspension, unless she unreasonably refuses suitable alternative employment.
Time-off for ante-natal care
A pregnant employee has a right not to be unreasonably refused paid
time off work to attend ante-natal care recommended by a doctor, midwife or
health visitor.
Check out our panel of specialist Family Law Solicitors here.
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