Legal FAQs

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Important Legal Notice

The information on this website does not constitute specific legal advice and should not be relied on as doing so. Users should contact ThomasMansfield for advice about particular matters. Users should also be aware that laws and regulations might be different outside England and Wales.

What is collaborative law?

Collaborative law is a relatively new way of settling family disputes relating to unmarried separation and most commonly marriage breakdown.  Each party instructs a specially trained collaborative lawyer and then each spouse and their collaborative lawyer attends a series of 4-way meetings.  The benefit of collaborative law is that each party has their lawyer by their side throughout the whole process.  The 4-way meetings are open and inclusive and are not adversarial or confrontational.  Each party agrees at the outset what their hopes and aspirations are about the process and what outcomes they are aiming for, such as a ‘fair financial settlement and the opportunity to maintain a future co-parenting relationship with my soon to be ex-husband/wife’.  Correspondence in-between meetings is discouraged with the focus being on each spouse and their solicitor meeting face to face in as many or as few meetings as are required to reach a reasoned and fairly negotiated open and transparent agreement.

The process is usually much quicker than the traditional solicitor led negotiations in correspondence.  Ideally, all matters will be dealt with in these collaborative meetings beginning with on which fact the divorce will be based and who will bring the proceedings and ending with a concluded agreement ready to be approved by the court.

An added advantage is that other professionals can be brought into the collaborative process to ensure that all assets are fully considered and any proposals are sufficiently tested to ensure they meet the desired outcomes.  For example, accountants can be instructed to value a business and specially trained independent financial advisers can be brought into the meetings to advise on investments and wealth management.  Actuaries can be brought in to advise on pension investments and sharing or offsetting.  Corporate lawyers can be introduced if there is family business to consider where perhaps one spouse wishes to retain an interest therein and an additional agreement needs to be drawn up.

Further, family therapists can be introduced to assist the parties in coming to terms with the ending of their marriage.  Therapists can also advise in respect of communicating with the parties’ children about the separation and will also speak with children (separately) where necessary.

I am considering leaving my husband/wife. What are my first steps?

You will inevitably be concerned about the financial consequences of your divorce, questions abound such as, what happens to the family home, can my partner afford to live on their income or will I have to top this up?  What is my child maintenance obligation?  What will happen to your pension, should this be shared with your partner?  If you have to move home, will the children live with you or your partner and will they need to change schools?  How will you tell them about the separation?  These are all crucial questions that need answers.  If you can, before making any major decisions, contact Thomas Mansfield Family lawyers for bespoke advice on your situation and how we can manage any divorce/separation in a constructive and cost effective way.

Who decides where our children live if we separate?

The court will not interfere in the arrangements for your children following any separation or divorce.  The court will only intervene if either parent makes an application to the court for it to consider the arrangements for the children.  If there are no risks of harm to the children by virtue of them having contact with their other parent then both parents should work hard to ensure they retain control of the arrangements for their children’s residence and contact.   Have a look at Resolution’s website for guidance on how to talk to your children and each other about separation www.resolution.org.uk.  Please contact Thomas Mansfield for specialist advice regarding children’s contact and residence arrangements.

I am about to divorce; can I stay in the family home with our young children?

There is no ‘one size fits all’ approach to the division of matrimonial assets.  Specific and bespoke advice is required in each situation.  Ideally, you will agree with your spouse what will happen to the home and how the finances should be divided to ensure the needs of the children and each of you are met.  If the court is asked to decide this issue then their first consideration are the needs of any minor children and the court will apply the test of ‘fairness’ when dividing the assets of the marriage.  It goes without saying that the children require a stable and maintained home.  Sometimes there is enough money to make 2 homes out of 1 but if there is not enough money then priority may be given to maintaining the existing home for the benefit of the children and also the parent with day-to-day care of the minor children.   Having said this, the court will also take account of the requirement of the non-resident parent to be able to maintain a home for him/her suitable for the children to come and stay.

Therefore, consideration may have to be given to a sale of the family home with a division of the net sale proceeds apportioned to enable each parent to adequately rehouse (taking account of their respective mortgage capacities which may result in an unequal division of the equity).

The family home could be transferred to one spouse whilst the other spouse receives a greater share of the remaining assets.

Another option may be for the property to remain in joint names and agree to be sold at a later date, usually when the youngest child ceases their full-time/tertiary education.  Any future division of the available equity would be agreed at the outset.

Sometimes, a family home may be transferred to the parent with care, thus releasing the non-resident parent from their mortgage obligations.  The non-resident parent’s remaining interest in the property (to be agreed/ordered by the court) may then be secured as a legal charge on the property, realisable when the youngest child has ceased their full-time/tertiary education.

I have been separated from my children’s father for several years. I would like to relocate to another country with our children; do I need his permission even though they live with me?

Yes both parents consent is required for any proposed removal from this country.  If the father’s consent is not forthcoming, you can apply to the court for permission.  Removal from jurisdiction issues can be very complex and need to be properly thought out and managed so contact Thomas Mansfield Family Lawyers for specialist advice in this area.

My partner and I are not married. Do I have parental responsibility for my children?

If you are a father you will only automatically acquire parental responsibility for your children if you are registered as their father on their birth certificates.  If your children were born before 1st December 2003 you may not have parental responsibility for them so contact Thomas Mansfield so that we can advise you about getting parental responsibility.   If you do not have parental responsibility, you cannot, for example, consent to emergency medical treatment.

My partner and I are not married. Will they automatically inherit my share of the house if I died?

If you are not married then your partner is not your next of kin.  Therefore, if you die, your partner will not automatically inherit your share of the house unless they are a joint beneficial owner.  If you own the property as tenants in common, they will retain their share of the property and your share will pass according to your Will.  If you do not have a Will then your share in the house will pass to your next of kin.  If your partner does not have a legal interest in your property then, unless your Will makes provision for him or her, your partner could become homeless in the event of your death because your property will pass to your next of kin.  You will need to ensure that you take independent legal advice and draft a Will that ensures your assets are dealt with in the way you wish them to be divided upon your death.  If you contact Thomas Mansfield regarding marriage or cohabitation issues we will advise you to consult a private client lawyer to draft a Will.

Is there anything me and my partner can do to protect and agree our financial positions?

Yes there is, it is advised that you instruct a solicitor to draft a cohabitation agreement.  It is important that you are open with your partner from the very beginning and discuss with him or her all matters in respect of living together.  The cohabitation agreement can be drafted to suit your individual needs and circumstances.  The agreement will enable you to agree your respective interests in any property that you purchase and can provide a framework for unplanned events such as death or separation.  In the case of the latter, whether one of you will buy the other out or whether the property will be sold and who will pay the mortgage and bills pending any transfer or sale of the property.  Further, the agreement can set out how joint debts should be serviced.  These agreements can be drafted before living together or during the course of a cohabiting relationship.  The agreement should be reviewed regularly to ensure it still reflects your lifestyle and any changes such as the birth of any children.

Thomas Mansfield’s Family Lawyers can advise you about drafting a cohabitation agreement.  It is important that it is drafted properly to ensure the court will give it the appropriate weight.  It is essential that you each take independent legal advice.

I have lived with my partner for a number of years now, have I acquired the same rights as a married person?

Unfortunately you have not.  There is a common misconception that those who live together for a long time become ‘common law husband and wife’.  This is simply a myth and it is not a concept recognised under English law.  Couples who live together are known as ‘cohabitees’ and whilst the national body of family law professionals, Resolution, is campaigning for change in this area of law, the reality is that sadly, no matter how long you have lived with someone and no matter what contributions and sacrifices you have made, you may have very few rights.  Unlike separating married couples, the cohabitee will not automatically acquire an interest in the family home (unless they are a legal owner or a trust can be established) and they will not be entitled to any maintenance for themselves (only any children of the relationship) nor will they be entitled to a pension sharing order or a share of any other assets (unless they are a legal owner).

I am thinking of buying a property with my partner but I am paying the deposit, how do I protect my investment?

You should instruct a lawyer and they will advise you about agreeing a document with your partner called a Declaration of Trust.  This agreement will cover how you each own the property, whether equally or unequally, what happens if one of you pays a greater deposit than the other and how the equity in the property will be divided in the event of a death, sale or separation.  It is important that you are open with your partner from the very beginning and discuss with him or her how you will own the property and what will happen to your respective interests in the property if one of you dies or if you were to separate. See our section on ‘cohabitation agreements and also below’.

I am thinking of asking my partner to move in with me, will he/she acquire any rights in respect of my property?

Your partner will not acquire an interest in your property simply because you have moved in together, even if they contribute towards the costs of food and the bills.

What can I do if my ex started the divorce but is not applying for the decree absolute?

Usually, decree absolute is applied for after the court has approved any financial agreement that you reach (a ‘financial remedy order’).

However, sometimes, the person who did not start the divorce (the ‘respondent’) may decide they want the decree absolute sooner than the party who started the divorce (the ‘petitioner’) is willing to apply for it.  The respondent can apply for the decree absolute if the petitioner still has not applied for it 3 months after the date the petitioner could have obtained it.

The respondent will have to inform the petitioner they are making the application.  The court can refuse to grant the decree absolute if the petitioner would say, lose their pensions rights if the decree absolute is granted before a financial remedy order has been approved by the court.  The reason being that if the decree absolute were granted the petitioner would immediately lose any pension rights they would have received on the death of the respondent.  Therefore, if, following the decree absolute the respondent suddenly died and there was no financial remedy order in place making provision for the petitioner’s pension entitlements, the petitioner would be financially prejudiced.  In these circumstances the court would not make the decree absolute.

Ultimately, if there are no financial issues or, the respondent is able to provide promises to the court about financial arrangements they can put in place (which will need to be evidenced) to protect the petitioner in the event of their sudden death following decree absolute and before any financial remedy order is approved then the decree absolute will likely be granted.

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