Children Matters

Children of the relationship are most affected when parties separate and it is therefore important that suitable contact arrangements are made urgently to minimise the impact upon them or ny impact. Our experienced team can help you to achieve a proposal that will ensure that the children are given consistency and routine.

We often remind clients that both parents share equal parental responsibility and thus it is imperative that you bear this in mind when discussing contact arrangements. In the case of an unmarried couple, only the mother has automatic rights in respect of the children. However, unmarried fathers can obtain parental responsibility if they are named on the child’s birth certificate and the child was born after December 2003. They can also acquire parental responsibility if they have jointly signed a Parental Responsibility Agreement, which is something that can be done at any stage during a relationship or separation. This can also be ordered by a court following a separation.

When discussing Child Arrangements, at Chase Morgan, we believe that going to court should be the last resort. Co-operation and sensible discussions can achieve a mutual agreement which can then be endorsed by the courts. This not only benefits both parties financially, as legal costs will be kept to a minimum, but most importantly, it provides the parties with an opportunity to remain amicable.

Financials

A financial settlement is a legally binding decision on how you and your partner will divide your wealth and assets when your marriage ends. This can include:

• Determination of your share in the matrimonial home
• Your rights in respect of investment property
• Savings
• Shares
• Pensions
• Business rights
• Any international assets
• Liabilities for debts
• Maintenance payments for you and any children of the relationship

It is imperative that you obtain legal advice from an experienced and robust firm of Solicitor’s who will ensure that they achieve a settlement which will provide you with financial security for the future.

There is no one standard approach for all clients, as financial settlements are much about the personal circumstances of each individual and at Chase Morgan Solicitors, we conduct a thorough review of your finances and lifestyle to ensure you get the best outcome possible. This is achieved by requesting financial disclosure which is exchanged simultaneously between the parties. There are many factors that are taken into account when deciding the terms of a financial settlement, some of these factors are as follows:

• You and your partner’s assets and finances
• You and your partner’s current and future needs
• Each of your earnings and earning capacity
• Whether there is any foreseeable change in your or your partner’s finances
• Whether you have children, and if so, their ages and needs
• The ages of you and your partner
• Both parties’ health, and whether this will affect your future abilities to earn
• The length of your marriage – including any time spent living together before you married.

At Chase Morgan Solicitors, we believe that going to court should be the last resort as this is much more cost effective for you. A financial settlement can be reached by consent via careful and detailed negotiations with your partner.

If we are unable to reach an agreement, then mediation must be considered before we are able to issue court proceedings known as financial remedy proceedings. Once proceedings are issued, a strict timetable is applied to progress the case towards reaching a financial settlement by consent with the assistance of the Court, which includes measures taken against a spouse who is obstructive and fails to co-operate. The vast majority of cases reach an overall financial settlement by consent but if this is not possible then the Court will impose a settlement upon the parties.

Chase Morgan Solicitors offer a professional, pragmatic and constructive approach which is tailored to your needs. We provide you with clarity, focus and support during such uncertain times in order to reach an appropriate financial resolution for you.

Non-Molestation Order and Occupation Order

Unfortunately, many victims of Domestic Abuse suffer for years in fear of the misconception that by ending the relationship they will be at further risk of harm. They often feel that they would not be adequately protected. If you are suffering from any form of Physical Abuse then there are remedies which are available to you within the Family Court. You can obtain an Order which will prohibit violence and harassing behaviour towards you. You can also obtain an Order to prevent your partner from living in the family home until the matter is resolved by the courts by way of a final Order.

These Orders are available to you if you are associated with the person against whom you seek the Order. This relates to:

• parties who are or were married,
• parties who live together or have lived together,
• parties that are related,
• parties that have a child together

A Non-Molestation Order can be made to prevent a person from using or threatening physical violence or to prevent a person from harassing, pestering or intimidating you. You can make the application on behalf of yourself and/or the children that reside in the home on the basis that you are at risk of “significant harm” from the person against whom you are making the application.

A Non-Molestation Order can be obtained by making an urgent application to the Court, known as “an ex-parte application.” This means that the Order is made before your partner has any knowledge of the application. Once an Order is made, it is then served upon your partner who must comply with the Order -this gives you immediate protection. The matter will then be bought back to court within 14 days of the Order being made, so that the Court can review the situation. Both parties should be in attendance at this hearing. If your partner does not attend, then provided that you can prove that you have served the application and notice of hearing upon him, the Court are likely to make a Final Order in his or her absence. If your partner does attend at the second Hearing, hopefully a Final Order can be made. A Non-Molestation Order will usually remain in force for 6 months but can last for a year depending upon the circumstances.

A Non-Molestation Order can also be obtained by making an application on notice. This means that you file an application which is then served upon your partner together with notification of a Hearing date. Your partner can then attend the Court Hearing and challenge the evidence before the Court. An Order can still be made by agreement but, if the evidence is challenged, then the Court will list the application for a Final Hearing.

An Occupation Order is used when the future occupation of a property is in dispute. If your partner is violent towards you or the children, or in the presence of the children, then you can obtain an Order which will require your partner to leave the home.

There are many factors that need to be considered when making an Occupation Order. The most important factor is whether you or any relevant child is likely to suffer significant harm attributable to the conduct of your partner. Other factors include:

• The housing needs of you, your partner and the children of the family and what other housing resources are available to each of you;
• The financial circumstances of each of you;
• What effect the Occupation Order would have upon each of you and the children of the family;
• The conduct of each of the parties;

The Order will last for a fixed period of time and can often remain in force until the financial proceedings have been agreed.

Beaching a Non-Molestation Order is a criminal offence and thus you can be arrested and imprisoned for up to 5 years. Breaching an Occupation Order can also result in criminal sanctions if such powers are attached to the Order. This is usually one of the key reasons why a party will contest such an application as they do not wish to be subjected to such stringent conditions and ultimately this will result in escalated legal costs. A way around this could be to accept an Undertaking.

An Undertaking is a promise to the Court, as to future conduct, given by your partner. Undertakings can, in certain circumstances, take the place of a Court Order, and are often worded the same as a Non-Molestation Order and/or Occupation Order. Where an Undertaking has been accepted by the Court and subsequently broken by the person who gave it, there are serious consequences which can include imprisonment or a fine. An Undertaking will only be accepted by the Court if it will adequately protect you. If not, then an Order will be made. An Undertaking will be for a fixed period of time, usually 6 months. Undertakings, when offered by your partner, are done so on the basis that no admissions of the allegations are made and that the Courts have not made any Findings of Fact against a Respondent in relation to allegations is made by the Court.

Powers of Arrest

A Non-Molestation Order will always be an arrestable offence however in respect of an Occupation Order, there will need to be a specific provision for Power of Arrest on the face of the Order.

Enforcement

A copy of a Non-Molestation Order and/or an Occupation Order has to be served on the Police. If such an Order is breached, a Police Officer must arrest a Respondent. The Respondent is then usually kept in police custody and will be brought before the Magistrates Court within 24 hours. It is then for the Court to decide what punishment the Respondent should face. If an Occupation Order with a Power of Arrest attached is breached, then the Respondent will be taken to the County Court. If the Magistrates Court do not take any further action, it is possible for an application to be made to the County Court for a Committal. (Such an application has to provide precise details of the breach(es) alleged. The committal application is served on the Respondent and then heard by the Court. The Court has the power to fine or imprison the Respondent if the Court finds that such a breach has occurred.)

Pre-Nuptial Agreements

A Pre-Nuptial Agreement allows you to protect your financial interests if your marriage ends in divorce. Although Pre-Nuptial Agreements are not legally binding under United Kingdom Law, the courts will take a Pre-Nuptial Agreement into account when deciding on the division of finances and assets when considering intention of the parties. It is imperative that the agreement is drafted with due care and consideration to the current laws that govern Ancillary Relief matters. At Chase Morgan Solicitors, our solicitors can help you create an agreement that meets all the legal requirements thus ensuring that there are compelling reasons for why the agreement should be considered by the courts.