We understand that the decision to end a marriage is one of the hardest a couple will face and it is not made easier by the prospect of having to ‘go to battle’ with one another in the Family Court. Not to mention the added fuel of congested court lists which means for considerable delays for hearings to be listed.

There are options available to our clients who are hoping to agree matters as efficiently as possible, one of them is considering attending a Private Financial Dispute Resolution Hearing, or ‘PFDR’. So, what is a PFDR and how can it help?

What happens at a private FDR hearing?

A private FDR is the equivalent to the Second Hearing in financial remedy proceedings, albeit out of the court system. At the Second Hearing and in a private FDR, a Judge will hear the submissions of both parties or their legal representatives and provide a likely outcome if the parties were to go to a final hearing. The Judge, therefore, does not impose an agreement but rather it is a means to assist with the negotiations of the parties. If, after the Judge has made an indication, one or both parties are unhappy, further negotiations can be made with their respective solicitors and revised offers can be proposed. If an agreement is not reached and a settlement cannot be agreed and formalised after the private hearing, the FDR will move to the court’s Final Hearing where the Judge will make a legally binding order.

What are the benefits?

• Speed – Often due to court congestions, hearings can take up to several months to be seen in front of a judge however, the private hearing can be booked on a date of convenience and at a short notice (dependent on judge’s availability).
• Privacy and comfort – it offers more privacy as the venue can be far more discreet than a busy court building.
• Financial specialist judge – The judge will be a financial specialist (as opposed to judges at court who may be better versed in children matters). They will have read the papers and will have plenty of time to see you when you require their input, which is often not the case in court.
• Better chance of settlement – Statistics show that around 80% of cases settle just after FDR/ private FDR stage.
• On your terms – If successful, being able to agree an outcome is in general far preferable to having one imposed on you.

What’s the catch?

No catch, however, there will be a cost of hiring a Judge privately which will not be due if matters were dealt with at court. It is the decision of the parties involved as to how this payment is divided.

How can we help?

We understand that there is no ‘one size fits all’ approach on what is suitable for our clients. We are able to advise as to if a PFDR will be most suitable in your case. We are guided by our clients’ needs and preferences and will make sure that you understand the process and feel supported throughout.

If you need any assistance with a Family Law matter, please do not hesitate to contact our experienced Family Team at Mayo Wynne Baxter on 0800 84 94 101. Our specialist team can advise you as to the best possible ways to resolve matters

If you’re thinking about divorce, take your time to understand the legal steps and make the best choice for you and your loved ones

What divorce means?

Divorce is the legal process that formally ends a marriage. It usually involves dividing up shared assets and property, figuring out child custody arrangements, setting up child support and/or spousal support agreements, and settling any other legal issues that arise.

Contents

Understanding how to get a divorce can make things simpler and less overwhelming. Here’s a detailed breakdown of each step:

The stages of divorce

If you’re thinking about ending your civil partnership, read our guide below where you can make the best choice for you and your loved ones

Contents

There is no legal requirement to instruct a Solicitor to act on your behalf in respect of Divorce proceedings.

However, for reasons set out below, particularly in respect of the finances of a marriage, it is important that legal advice is sought as early as possible which is tailored to your own personal circumstances to ensure you are clear in respect of your rights and legal duties.

Can I get a divorce online?

In recent years the Court has launched an online portal that enables parties to deal with their own Divorce proceedings online. This has made it far easier, and indeed quicker, for the Divorce proceedings to progress. It is therefore now far more straightforward to issue your own Divorce proceedings through the Court service website, without the assistance of a Solicitor.

The New No Fault Divorce Law (April 2022)

The Court’s streamlined online process works for many and particularly with the imminent ‘no fault’ Divorce coming into force in April 2022, it is expected that the process will likely be even more accessible to those not wishing to instruct a Solicitor in respect of the divorce element of formalising their separation.

Pros of a solicitor with a No Fault Divorce

It is however important to keep in mind that a Solicitor who is experienced in the Divorce process will be able to deal with matters far more efficiently and quickly than one who is completing the process for the first time and during a time where they are dealing with the emotional impact of a separation.

At Mayo Wynne Baxter, we always encourage clients to look into the Court portal and Divorce process themselves in the first instance when deciding whether they feel they require assistance from a Solicitor to deal with matters on their behalf.

What the new law means for separating spouses

The new ‘no fault’ Divorce law which is due to be implemented in April 2022 will provide a complete overhaul of the current system for obtaining a Divorce; however, it will not affect the finances of a marriage/civil partnership. It will therefore remain just as important to obtain advice in respect of your rights and legal obligations concerning the finances of the marriage.

Protecting your Finances

Whilst the Divorce process is straightforward and can be undertaken by parties acting ‘in person’, simply obtaining your Decree Absolute (soon to be known as a ‘Final Order’) to formally dissolve your marriage or civil partnership will not deal with the dismissal of your legal obligations to one another. It is therefore imperative that alongside any Divorce proceedings, whether it be now, or following the new law being implemented in April 2022, that the finances of the marriage are dealt with formally by way of a Consent Order, or Financial Remedy Order, to ensure that your respective financial claims against one another are formally reviewed and dismissed, if appropriate.

What is a Consent Order/Financial Remedy Order?

A Consent Order/Financial Remedy Order is a document that requires careful consideration and needs to be carefully drafted in order to be tailored to your specific circumstances and ensure it meets with your understanding of any agreements reached. The Court’s online portal cannot assist with the drafting of such a document, and it is important that the Consent order is tailored to your specific circumstances. Where one has a limited budget, it is important to consider focussing that budget on obtaining advice in respect of your potential legal rights, and the drafting of a Consent Order.

Pros of a solicitor when obtaining Consent Order/Financial Remedy Order

It is always important to obtain legal advice in respect of the division of the finances of the marriage as there is no substitute for legal advice that is tailored to your own personal situation; an agreement appropriate in one set of circumstances will not be so for another.

Further, in England and Wales, we have a discretionary system, there is no prescriptive formula that can be used to determine the division of the financials of the marriage. A solicitor will provide advice which is tailored to your own personal circumstances and based upon their experience, taking into account precedents which have been set by recent cases and legislation. It is, therefore, useful to obtain legal advice at an early stage when considering the division of the finances, to ensure that you have a realistic understanding in respect of how your finances may be resolved.

Achieving an agreement with Mediation

Following the obtaining of initial advice many clients then choose to attend mediation with their spouse, in order to assist with negotiations. It can therefore be useful to have a Solicitor in the background to provide advice when required.

Once an agreement is reached it is important that a Solicitor drafts this on behalf of one party to ensure that it is drafted correctly and dismisses your respective claims where appropriate. Where the Consent Order has been drafted by your spouse or civil partner’s Solicitor it is important to obtain legal advice in respect of the content of that Order, to ensure that the Order reflects the agreements as you understand them to be.

At Mayo Wynne Baxter we have specialist Family Solicitors who will provide tailored advice based upon your requirements, whether it be an initial consultation with ad hoc advice whilst you are attempting mediation, or to assist you with undertaking negotiations directly with your spouse or civil partner.

To find out more about the services we can offer, please do contact our experienced Family team at Mayo Wynne Baxter by telephone on 0800 84 94 101.

Civil Partnerships vs Marriage

A Civil Partnership is an alternative way of registering a relationship between two people who are not related to one another. The legal provisions of Civil Partnerships are set out in the Civil Partnership Act 2004. Civil Partnership offers a secular alternative to marriage, although it is possible to have a separate religious ceremony performed after the Civil Partnership is registered. The Marriage (Same-Sex Couples) Act 2013 enables Civil Partners to convert their Civil Partnership into a marriage if they wish.

Following the Supreme Court case brought by Rebecca Steinfeld and Charles Keidan in June 2018, a legal ruling was made allowing Civil Partnerships to apply to both same-sex couples and to opposite-sex couples.

The eligibility to marry or form a Civil Partnership is identical for both same and opposite-sex couples. Both people must be over 16 (with parental consent if under 18), they must not already be married or in a Civil Partnership, and must not be closely related.

Civil Partners cannot, however, refer to themselves as being married. In the same way as a couple wishing to marry, partners must give notice within the local authority where they live 29 days before the formation of the Civil Partnership. Certain religious groups will agree to their premises being used for the registration of Civil Partnerships, but not all, so it is worth checking this before deciding your venue.

A valid opposite-sex marriage formed in the UK will be recognised abroad. However, it is always best to check if your same-sex or opposite-sex Civil Partnership will affect any rights you may have if you move to live overseas.

There are some differences between Civil Partnerships and marriages when it comes to divorce or dissolution. Currently, a divorce or dissolution is obtained by relying on certain facts to prove that Civil Partnership or marriage has broken down irretrievably.

In the case of marriage, there are five facts, which are adultery where the applicant finds it intolerable to live with the respondent, unreasonable behaviour by the respondent, desertion for 2 years, separation for 2 years with the consent of the respondent and separation for 5 years.

To obtain a dissolution of a Civil Partnership, the facts that can be relied upon are the same as for marriage, except for adultery, which is not available.

Civil Partnerships and Tax

Civil Partners are entitled to the same exemptions as married couples in relation to Inheritance Tax, Capital Gains Tax, Social Security Benefits and pension benefits. Civil Partners are also recognised equally with married couples in relation to life insurance. Civil Partners can also be entitled to automatically inherit their partner’s assets, including their pension.

Couples who decide to cohabit, without a legally binding, recognised relationship status, will forego these financial benefits.

What are my rights in the UK?

Civil Partners are entitled to the same property rights as married couples in the UK. On dissolution of the Civil Partnership, they are entitled to the same financial remedy Orders in relation to sale or transfer of properties, pension sharing, and maintenance.

Civil Partners also automatically acquire Parental Responsibility for their children by virtue of their Civil Partnership. Civil Partners can apply for orders under the Children Act 1989 in relation to the arrangements for the children where there is disagreement on the breakdown of the relationship. Civil Partners can also apply for financial provision for the children under Schedule 1 of the Children Act 1989. These rights are identical to those of married couples.

As can be seen, entering into a Civil Partnership will provide you with benefits, both financial and otherwise, akin to being married.

If you have any questions or would like to obtain advice about your position, the Family Team would be happy to hear from you.

Legal routes available

Often grandparents are closely involved in their grandchildren’s lives and upbringing, and as a result they are often the first port of call when the parents are having difficulties or are struggling to care for the children themselves.

Child Arrangement Orders

The term ‘custody’ no longer exists in relation to Orders for children to live with a specific person. Under section 8 of the Children Act 1989, a type of Child of Arrangement Order called a ‘live with’ order can be applied for which determines, as the name suggests, the individual(s) with whom a child should live.

Special Guardianship Orders

Alternatively, Special Guardianship Orders can be obtained under section 14A(1) of the Children Act 1989 in certain circumstances and were introduced to bridge the gap between Child Arrangement Orders and adoption as they provide a stable and permanent home to a child without legally severing the ties to their birth parents. Sometimes this makes it a more suitable approach.

What is required to apply for Orders?

If grandparents wish to apply to the Court for orders in relation to their grandchildren, it is compulsory that they first attend a Mediation Information and Assessment Meeting (MIAM) with a qualified family mediator, to see if matters can be resolved using alternative dispute resolution, avoiding the need for Court proceedings. Where the parties are unable to reach an agreement, the mediator will issue an FM1 form which must be sent to the Court with applications. Grandparents will be exempt from attending a MIAM if emergency proceedings have been issued, or the Local Authority is issuing care or supervision proceedings in relation to the children.

Do I have an automatic right to apply to Court?

In most circumstances, grandparents do not have an automatic right to apply to Court for orders concerning their grandchild, and it is likely that the permission of the Court will need to be sought.

However, there are exceptions to this rule, and in the following circumstances, grandparents do not need to apply for permission of the Court first:

• Where the grandparent is already named in a Child Arrangements Order as the person with whom the child is to live.
• Where the child has lived with the grandparent for at least 3 years, not necessarily continuously, but not more than 5 years previously. Residence with the grandparent must not have ended within three months of the application.
• Where you are a relative and the child has lived with you for at least 12 months immediately prior to your application.
• Where there is a Child Arrangements Order already in force and the grandparent has the permission of each person who is named in the order as a person with whom the child should live.
• The grandparent has the permission of those who have Parental Responsibility for the child (if any).
• The grandparent has Parental Responsibility, for example, because they are named in a Child Arrangements Order as a person with whom the child is to spend time, but they are not named as the person with whom the child should live.

If you do not fall into one of the above categories, you would have to make an application to the court for permission to apply.

Who has Parental Responsibility priority?

All birth mothers automatically have Parental Responsibility for their children (unless the children have been adopted). Having Parental Responsibility gives someone the ability to make decisions in relation to the childs schooling, medical treatment etc. Parents who are married at the time of the birth, or subsequently marry, will both acquire Parental Responsibility, as do those who are named on a child’s birth certificate since 6 April 2009.

Grandparents cannot make stand-alone applications for Parental Responsibility. In the event the Court makes a ‘live with’ Child Arrangements Order or a Special Guardianship Order in favour of a grandparent, they will often make a Parental Responsibility Order at the same time, without the need for a separate application.

Special Guardianship vs ‘live with’ Order

A Special Guardianship Order is more secure than a ‘live with’ Child Arrangements Order because lasts until the child is 18, and a parent will need the permission of the Court to apply to have the Special Guardianship Order discharged. A Child Arrangements Order, on the other hand, will come to an end when the child reaches 16.

A Special Guardianship Order does not bring the legal relationship between the parent and their child to an end, and Parental Responsibility will not be removed from the parents. Special Guardianship Orders give Special Guardians an enhanced form of Parental Responsibility which can be exercised to the exclusion of others, save for specific exceptions. For example, Special Guardian’s cannot act independently of parents with Parental Responsibility in matters where their permission is required by law, for example, sterilisation or circumcision of the child, adoption proceedings, change of the child’s name or removing the child from the UK for more than 3 months.

Permission to apply for Child Arrangement / Special Guardianship Orders
If an application to the Court for permission to apply for a Child Arrangements Order or Special Guardianship Order is made, notice must be served on anyone who has Parental Responsibility for the child, which in certain circumstances can include the Local Authority.

What is a Viability Assessment?

Where there are serious concerns about the parents’ care of the child, or there is ongoing care, emergency protection or supervision proceedings, the Local Authority will often carry out an early Viability Assessment of grandparents, to assist in their decisions about who should care for the child. The Court will place significant weight on such assessments. Grandparents can apply for the leave of the Court to make an application, and to be joined in any ongoing proceedings, in order for the Court to consider their application for Special Guardianship.

What is assessed?

For the Court to grant permission to a non-parent to apply for a ‘live with’ Child Arrangements Order or Special Guardianship Order, there must be compelling reasons to depart from the presumption that the child will be better cared for by a biological parent. The Court takes into account the welfare of the child, but at this stage it is not their paramount concern. The Court must also consider:

• The nature of the application being made.
• The grandparent’s connection with the child.
• Any risk that the application will disrupt the child’s life to such an extent as to cause the child harm.
• Where the child is looked after by the Local Authority, what plans are in place for the child, and the parents’ wishes and feelings. Once permission to apply is granted
• If the Local Authority is not already involved with the children, once you have the permission of the Court to make an application for a Special Guardianship Order, you must serve the Local Authority with notice of your intention to apply, three months in advance of issuing it at Court. This notice triggers the Local Authority to prepare a detailed report, without which a Special Guardianship Order cannot be made.

The report will deal with background information about the child, family and prospective Special Guardians, the child’s wishes and feelings, their cultural and religious upbringing, and arrangements for contact with relatives and other relevant people. The report must take account of any harm the child has suffered, or the risk of harm posed by the parents in future. The report also considers the implications for the child, alongside the child’s current and historic relationship with the proposed Special Guardian, and will assess the merits of making an Order. The report will also need to comment on the parenting capacity of the proposed Special Guardian and how the proposed order might meet the child’s long-term needs. The report will provide the Court with recommendations.

The Local Authority must also provide support services, such as respite care, counselling, and financial support for Special Guardians, and must make an assessment of what is needed and what can be provided. These assessments can be challenged, and so it is important for potential Special Guardians to obtain legal advice if they are unsure whether the support offered to them by the Local Authority will meet their long-term needs. In some circumstances Local Authorities can offer alternatives to Special Guardianship Orders, such as kinship fostering arrangements.

If you would like further advice or information concerning grandparents’ rights our specialist Family Team would be pleased to hear from you and can be contacted on 0800 84 94 101 or complete our contact form and we will call you back.

Family life is everything to all of us and when a part of that breaks down, whether it be a marriage breakdown or separation from a partner or problems regarding arrangements for children; we are here to help.

We understand that making the initial contact with a law firm at what is already an emotional time can be a difficult decision to make. We want to ensure that from the very start, you feel well informed about the process and what steps we take to give you the best advice possible from the outset up to the conclusion of your matter.

Where are Mayo Wynne Baxter located?

Our Team is based throughout Sussex. We have offices in Eastbourne, Seaford, Brighton, Lewes, East Grinstead, Peacehaven, Storrington and Crawley.

Due to the Pandemic face to face appointments have been replaced with telephone or zoom appointments over the past 18 months. However, face-to-face appointments will be available, if preferred. Some people will prefer online meetings as it is often easier to fit around work or childcare and we are still very much open to facilitating meetings in this way.

How can you contact us?

Email – enquiries@mayowynnebaxter.co.uk

Contact form – enter your details and we will call you back within the hour

Webchat – Pop’s up when you are on the website in the bottom right corner – speak to a real human, no robots!

Telephone – 0800 84 94 101

All initial enquiries are passed to one of our paralegals who have an understanding of the law and who will be able to take the relevant details from you and arrange an appointment at a date and time to suit you.

Costs

One of the first questions new clients ask is how much the process will cost. We offer an initial fixed fee appointment at a fee of £250 plus VAT. The cost of the initial appointment will be confirmed to you by the paralegal when arranging the appointment with you. During the appointment the legal advisor will be able to provide you with a further estimate of costs based on the circumstances of your case. A guide to how much particular cases tend to cost from start to finish are published on our website.

Family Fees

The benefits of a Fixed Fee Appointment
Our fixed fee appointment is designed to give you a full overview in relation to all your options and ensure that you come away with the answers to any questions you may have about your particular circumstances. You will receive advice on where you stand legally to enable you to make an informed decision on how you wish to proceed. The appointment is likely to last 1 – 1.5 hours. We understand that after this appointment you may need time to go away and think about your options, or you may feel ready to instruct us so that we can help you resolve your matter.

We understand many people are reluctant to provide detailed information to a non-solicitor before their appointment, however, it often helps the solicitor to gain an understanding of each case and ensures more time is spent discussing the relevant issues and options during your meeting. We will also send you a pre-appointment questionnaire which you can choose to fill in if you want to provide some additional information.

Information we need from you:
To enable an appointment to take place our Paralegals require the following:

• Contact details of all parties
• Names
• Addresses
• Dates of birth of both parties

All information provided to us is completely confidential. We will need to do a conflict check to ensure there is no conflict, i.e. we have already spoken to your spouse/partner.

Background Information

Our paralegals will ask you for some background information in relation to the advice sought. It is helpful to provide as much information as possible at this stage as the information provided will enable the advice you receive to be tailored to your specific needs.

Setting up an appointment

The paralegals will arrange an appointment for you at a date and time to suit you. Appointments can take place over the telephone, via Zoom and if appropriate, face to face.

A confidential file will be opened for you and our Database Team will email you a welcome letter which sets out our terms and conditions together with our anti money laundering identification policy.

All clients are required to provide us with identification documents which must be dated within three months, together with confirmation of instruction before any appointment can take place. This will be emailed to you prior to your appointment.

Once a file is opened an email will be sent confirming the date and time of appointment together with details of how to make payment prior to the appointment.

If you have been recommended to one of our team, please let us know at the outset and every effort will be made to arrange an appointment with that specific legal advisor.

We do not underestimate how difficult making that initial contact with us is, whether it be in relation to seeking advice in relation to divorce, separation from a partner or difficulties in relation to arrangements for children following a breakdown in a relationship. All our paralegals have vast experience in identifying the issues you may have and will show empathy and understanding at the outset to ensure the process is as seamless as possible.

We want to ensure we look after all our potential clients as best we can and to ensure we are doing that; we commit ourselves to being ‘mystery shopped’. This provides us with the feedback we need to ensure we always offer a high level of service, whether an existing client or not.

Legally binding agreements can take many forms, some of which may surprise you: emails, messages and even conversations can all count. A recent case has shown that a verbal agreement could be enforced in court.

The building blocks of a legally binding agreement

For an agreement to be legally binding, it must contain 4 elements: offer, acceptance, consideration, and an intention to be bound by the agreement.

Offer means that one party offers to do something for, or give something to, the other. Acceptance means that the other party accepts the offer unconditionally.

It doesn’t matter how big or small the offer is or how difficult or easy it is to do.

Consideration refers to something of value that is gained through the agreement.

Each side must promise to give or do something of value (or not to do something) in return for what the other promises to give or do (or not do).

What each party promises to do or give doesn’t have to be of equal value, as long as the offer is accepted unconditionally.

Once the first 3 elements are present, the only remaining – and crucial – requirement is that both parties intend to be bound by the terms of the agreement. In other words, each party intends the other to hold them to the agreement and to be able to legally force them to stick to it.

The medium of a legally binding agreement

To be legally binding, an agreement doesn’t need to be signed or in any particular format – as long as all 4 elements are present.

In fact, it doesn’t even need to be in writing (besides a few exceptions).

However, it’s much easier to confirm that an agreement is legally binding if there is something in writing (e.g. an email, written statement, letter etc.) to confirm exactly what terms were agreed.

When an agreement is verbal and its terms are disputed, the terms may be so uncertain that the agreement becomes too vague to be enforceable. Other evidence can be used to determine what terms were agreed and helps avoid this situation.

A case in point
A recent High Court decision confirmed that even a phone conversation can result in a legally binding agreement.

The case
A property developer had an agreement with a construction company to build student accommodation.

The project didn’t go to plan. Both sides blamed each other for delays and felt they could make a legal claim.

The directors of the 2 companies discussed the dispute by telephone.

The construction company claimed that the conversation resulted in a legally binding agreement between the 2 companies not to pursue their respective claims.

The property developer, however, denied this and proceeded with their claim.

The High Court
The court had to decide whose perspective was a true reflection of the conversation. They could only do this using witness accounts of the immediate actions of each party after the conversation; documents; internal correspondence; and the follow-up exchanges between the parties.

The court found the construction company’s evidence of the conversation to be more credible as they’d communicated what they believed to be the agreement to colleagues immediately afterwards. Based on the evidence, the court felt that the telephone conversation had included an offer, acceptance, consideration and an intention to create legal relations.

As a result, the property developer wasn’t allowed to proceed with their claim.

What this means for you
Don’t assume that the lack of a traditional written contract means there’s no agreement.

Legally binding agreements are created every day in many ways and often without much thought, e.g. in person, over the phone, by email etc.

If the 4 elements are present, you may be entering into a legally binding agreement whether you’re aware of it or not.

This case also demonstrates that when you knowingly enter into a verbal agreement, it’s important to have other (especially written) evidence to prove exactly what the terms of the agreement were and that it’s legally binding. We have a range of documents available to help you do just that.

This way, if the other party breaks the terms of the agreement, you’ll be in a better position to act.