Does the snail still prevail?

Does the snail still prevail?

Does the snail still prevail?

A recent case prompted me to look further into the new rules as to how the court send out any application for divorce.  Until relatively recently, all applications for divorce had to be sent on paper to the regional divorce centre at Bury St Edmunds.  Once the family court went ‘on-line’, although the application required the receiving party’s e-mail address and used to communicate with users via e-mail, the court still used to send out the divorce petition by Royal Mail, (snail mail??).  This was their default method.   If you wanted the other person to receive the papers in any other way, you had to make an application.

Most people now want to receive documentation by e-mail – it’s  paperless and its immediate.  Have the court moved with the times and changed this default method of service? Has the introduction of the new DivorceDissolution and Separation Act 2020 made any difference?

Yes and no.

It is important you provide the respondent’s e-mail address so the court can serve documents to them by e-mail.  They will receive all correspondence via email.   You have to make sure it is not your own e-mail address and is nor is it the other person’s work e-mail address.   It needs to be their usual personal e-mail address.   If you don’t give an e-mail address,  the papers will be served by Royal Mail paper post which of course will take longer.

But, although the court say that all correspondence is sent by e-mail, you still have to provide a postal address too, for two reasons.  First,  so the court legal staff or judge can see whether or not the person receiving the application lives within the jurisdiction of England & Wales; secondly,  so that in addition to sending the application for divorce by e-mail, the court can also send out a paper version of the Notice of Proceedings.  If the court just sent the application out by e-mail alone and it had gone into a junk or spam box, it could go unnoticed, so the court have to do their best to bring the application for divorce to attention.

If you can only provide an e-mail address, you’ll still have to make a separate application to the Judge requesting the court’s permission to serve by e-mail only.  Separate application…….another court fee……delay…….best avoided if at all possible.

See a solicitor and get it right first time.  Contact Susan Devereaux, our Family Solicitor for more information and advice.

Our Family Team are available for appointments so please do give us a call on 01206 577676.

Any email enquiries can be sent to [email protected]

For more information on Divorce or any family matters

Contact us by calling 01206 577676 or you can email [email protected]

Don’t mention the… prenup

Don’t mention the… prenup

Don’t mention the… prenup.

Once the stuff of Hollywood royalty, the ‘prenup’ as its colloquially known, has become as much a part of marriage to us mere mortals as it is to them. For you needn’t have the wealth of Michael Douglas to, quite sensibly it might be said, want to protect your assets.  And where to start? Discuss it with your partner as soon as possible, preferably before the proposal and if not almost immediately afterwards. Speaking from a girl who knows (though you’d think it obvious…) there is nothing less romantic in the lead up to your wedding than negotiating the terms of your divorce.

Nobody wants to enter a marriage planning their divorce but sadly the statistics and Bridget Jones will tell you that half of marriages end this way.  A lot can happen over the course of the years and sometimes decades. A prenup can act as a type of insurance. You’d have health insurance in case of serious illness, or house insurance in case of fire, so why not a prenup in case of divorce? You don’t want these things to happen, or even predict that they will, but there’s a possibility, however slight that they might.

A prenup can protect those valuable assets acquired by a party prior to the marriage, and those they expect to receive in the distant future, for example, by way of inheritance.  They can also be particularly useful in protecting the interests of children from a previous relationship, or if there is a significant age gap between the parties meaning one has a much longer working life ahead of them than the other.

So how much weight have they got? Well, since the landmark case of Radmacher v Granatino, rather a lot.  Whilst they are not binding on the courts, they are indeed persuasive provided each party has entered into the agreement…

– of their own free will

– informed of its implications

– not under undue pressure

In most cases, this will mean having taken legal advice.

The courts should then give effect to the prenup unless in the circumstances prevailing it would not be fair to do so. For example, if the financial situation had changed in a way not envisaged when the prenup was entered into or if it would be prejudicial to any children of the marriage.  You’ll find most prenups contain regular review clauses for this reason.

If you’d like us to help you with a prenup or have any questions, please don’t hesitate to contact us on [email protected] or 01206 577676.

And remember try to get it sorted sooner rather than later so it doesn’t overshadow your big day!

For more information on Prenups

Contact our Colchester office on 01206 577676 or you can email [email protected]

Pension and divorce

Pension and divorce

Can we do anything with the pension?

Along with the house, the pension pot is one of the largest financial assets in the family.  You & your spouse might have a mix of his, hers, theirs and yours but all need to be correctly valued and assessed within the context of an emotional and economic family breakdown.  You have to begin by assessing what you actually have in the pot and when you might be able to access that pot.   Providers seem to be slow at the moment (Feb 2022)  in producing the required valuation  but you’ll need this to make a start.  And you have to read the small print – so if you don’t fancy doing it yourself, ask a lawyer who will!  Once you understand the asset, you then need to consider how it could be shared upon divorce.

Offsetting

Pension offsetting is where one person keeps their pension in exchange for giving up another asset, such as the family home.

Pros: This approach is relatively straightforward and allows the parties to have a clean financial break from each other upon divorce.

Cons:  This is more straightforward with a private pension than with an occupational pension.   The party who forfeits the other’s pension may lose out.  After all, a pension is generally designed to produce an income rather than be a savings  account.

Pension sharing order

With pension sharing, a percentage of one person’s pension is transferred to the other.

Pros: Both parties end up with a separate pension.

Cons: It’s relatively complex initially. You may need financial advice (which comes at a cost) to improve your chances of getting a fair split, especially if its an occupational pension under scrutiny.

Pension attachment order

One person pays an income or lump sum to the other when they start taking their pension.

Pros: Like pension sharing, it can result in a fairer split of the pension.

Cons: An attachment order essentially a form of maintenance paid to the former spouse, so it doesn’t allow for a clean break. The pension-holder retains control over the choice of investments and when the payments to their ex-partner are made.  These do not seem to be very popular yet in the right circumstances, they could be very reassuring as there is less risk of default.

As ever, your solicitor is here to help – just ring up or send an email and book an appointment.

Our Family Team at Colchester and Dunmow are available for appointments so please do give us a call either at the Colchester office on 01206 577676 or our Dunmow office on 01371 873277.

Any email enquiries can be sent to [email protected]

For more information on Divorce

Contact either of our offices, Colchester 01206 577676 or Dunmow 01371 873277 or you can email [email protected]

New divorce rules – trouble by another name?

New divorce rules – trouble by another name?

New divorce rules – trouble by another name?

​Whilst it is true that on the one hand, the new Divorce, Dissolution & Separation Act 2020 – up and working from 6th April – should remove animosity from the equation owing to the fact that the divorce can be achieved without having to allocate blame for the break-up, the rules which aim to facilitate this new legal spirit of amity still allow for foul play.  I’d like to think  this was not the deliberate intention of those responsible for the drafting as the whole point of the new law was/is to try to avoid contentious issues and its consequent expense and complexity.  So, whether the rather loose drafting is down to haste, lack of thought follow-through or sheer mischief remains a matter for speculation. 

When an application for divorce is issued (note that after 6th April it is not a petition, but an application), the court dealing with an application must take the statement that the marriage has broken down irretrievably to be conclusive evidence that that is so and make a divorce order.   The person wanting the divorce can apply first for the conditional divorce order at the end of a period of 20 weeks from the start of proceedings and then apply for the final divorce order 6 weeks after that.

Aside from the fact that there are few remaining circumstances where the breakdown can be disputed, the main problem is this ‘start of proceedings’.  It is not 20 weeks from service of the divorce application on the other party to the marriage, it is 20 weeks from the start of proceedings, which is presumably the submission of the application.

Best practice is for the person wanting the divorce to send the application to the other party within 28 days of issue so that the other party has plenty of time to think about what is happening.   But what if they don’t?  The potential exists within the rules as drafted for a married couple to go about their lives as usual whilst all the time, one of them has issued a divorce application but has not yet told the other about it and doesn’t intend doing so until just two weeks before the conditional order is due to be declared.  That leaves very little time for that other party to take advice and act on that advice.

This is particularly concerning where the ending of the marriage may have significant financial consequences for either party – say, termination of matrimonial home rights and widows pensions – and I foresee a situation where swift action will be required in order to prevent loss of said housing rights, or pensions.

It will be interesting to see if, how and when, the rules may be amended or what guidance is given to the judiciary to cope with this very situation.

So, as ever, the moral of the story is seek advice from a solicitor as soon as possible!

Our Family Team are available for appointments so please do give us a call 01206 577676.

Any email enquiries can be sent to [email protected]

For more information on Divorce

Contact either of our offices, Colchester 01206 577676 or Dunmow 01371 873277 or you can email [email protected]

The slap, no not the book, but possibly the most memorable event in Oscars history.

The slap, no not the book, but possibly the most memorable event in Oscars history.

The slap, no not the book, but possibly the most memorable event in Oscars history. Presenter and comedian Chris Rock cracked a lighted hearted joke at the expense of Jada Pinkett-Smith, wife of the famous Will.

Whilst she didn’t seem overly amused, Smith certainly took exception as he stormed the stage and gave the bewildered Rock a right hander followed by a few expletives.  Rock recovered and carried on like a true professional.  Smith won an Oscar to a standing ovation.

Of course, these circumstances are exceptional. However, should you or someone you care about find yourselves the victims of violence, or even threats of violence, there are options available.

You can apply for a non-molestation order providing you are an ‘associated person’ of the perpetrator in the eyes of the court. This is wide ranging and covers spouses, civil partners, cohabitees, co-parents and relatives.

The court will take into account all of the circumstances of the case including the need to secure the health, safety and well-being of the applicant and any child in their care.

Anyone in breach of a non-molestation order commits a criminal offence and risks up to 5 years imprisonment.

You can also apply for an occupation order which prohibits the perpetrator from entering your home and its surrounding area, should it prove necessary.

For only £99 plus VAT, we offer an hour-long initial consultation to provide preliminary guidance on your next step forward.   We’re here to make life easier for you.  We can be your Rock ……… pun intended.

Any email enquiries can be sent to [email protected]

For more information on our Fixed Fee

Contact either of our offices, Colchester 01206 577676 or Dunmow 01371 873277 or you can email [email protected]

I want to take legal action but can’t afford to pay expensive fees …

I want to take legal action but can’t afford to pay expensive fees …

I want to take legal action but can’t afford to pay expensive fees …

“A grave and widespread problem….” is how Wilson J (as he then was) referred to the question of how can a spouse, usually the wife, who is not entitled to legal aid but has few assets, secure legal advice and representation in order to pursue her rights against her husband.

Sometimes, life leaves you no option but to think about going to court.  Perhaps you’ve tried talking, tried Mediation, or are in a situation where you are afraid and need help.   Legal Aid may be available for some types of application if you can prove you or your child are victims of domestic abuse but if you are not or you have no proof, what can you do?

The first thing to do is research: find out what options are available.  This could be:

1. Making an application yourself to the court.  This means completing the application forms and sending them or taking them to the court yourself.  You will be a ‘Litigant in Person’ ie, representing yourself.

2. Applying for a litigation loan. There are numerous financial organisations that will loan you money specifically to fund your court case.  You – or more likely a solicitor on your behalf –  have to provide a lot of information about your claim and the prospects of success but if you are reasonably certain of recovering assets so as to be able to repay the loan at some point, this might be worth considering

3. You could consider making an application to the court for a Legal Services Order. Under s 22ZA of the Matrimonial Causes Act 1973, the court will be able to order your spouse to pay you an amount for the purpose of enabling you to obtain legal services. This requires very careful assessment before any application is made.

4. Speak to a solicitor to find out if you can set up an arrangement to pay in regular monthly instalments rather than have to pay in one lump sum. Some solicitors may agree to take their fees only once you have recovered assets with which to pay.  This is called  a ’Sears Tooth’ agreement, named after the firm which created the notion.

Before taking legal action, be realistic about whether you can get what you want if you take a case to court. If your dispute is about a misunderstanding or communication breakdown, court is usually not the best place to sort it out. It’s usually better to try other options first.

Taking a case to court can be stressful. It can take a lot of time and money – for example, if you lose and you have to pay the other side’s costs.

At this point, you may benefit from some advice or representation from a solicitor. It is possible to instruct a solicitor to represent you at any point in the proceedings, even if you originally made the application yourself.  This would still mean that you save the costs of the initial steps and making the application, but it may be more costly for a solicitor to repair any errors made in the early stages.

It is always worth considering an initial session with a solicitor prior to making an application, so that we can advise you on your case.   Every case is different therefore fact-specific.   You will find an early meeting with a solicitor  to be more cost effective in the long run and it should ensure your application starts on the right track

For more advice please contact Sue, our Family Solicitor on 01206 577676 or email [email protected]

For more information please contact Sue in our Family Department

Contact our Family Department on 01206 577676 or email [email protected]