Family Law FAQs

Children

How is maintenance calculated for my children?

For all parents, claims for maintenance are primarily dealt with by the Child Maintenance and Enforcement Commission (still commonly known as the Child Support Agency) and not through the Courts. (There are exceptions where the child is disabled, attends private school, lives abroad or the paying parent has an extremely high income).

Very broadly the formula is calculated by the number of children i.e. 19% of the “absent” parent’s gross income for 3 + children, 16% for 2 children and 12% for 1 child. This figure is then subject to variation depending on the level of shared care between the parents and the number of any new dependent children.

Will I have any other financial claims upon my ex on behalf of the children?

In addition to the above maintenance, it is possible to apply to the Courts for further lump sum or property provision. This is intended to provide for the children’s reasonable needs over and above general maintenance and the benefit of any property provision is not likely to remain post the child leaving school. However, where the parties are getting divorced, it is usual to expect that the parents will receive a settlement which they will utilise on behalf of the children.

What time can I expect to spend with my children?

There is a general “no order” principle enshrined in law which means that ideally the Courts will not intervene unless it can be shown that there is a real need to do so. Separation in itself will not, therefore, trigger a review by the Courts and parents are expected to try and reach an amicable, flexible agreement between themselves.

However, if this is not possible, the Courts will try in reflecting the children’s wishes to divide the time as fairly as possible between the parents having regard to the practical issues of age, bedtimes, schooling, distance between the homes and so forth. The Courts would certainly aim to try and divide the quality times of weekends and holidays equally between the parties where possible.

Finances on divorce

Will I have to go to Court to resolve the finances?

There are various alternatives to resolving the case through the traditional method of fighting the matter out in Court. Whilst we remain committed to achieving the very best option if this is the only viable alternative (in cases e.g. where your ex is being uncooperative or secretive), we would hope to be able to negotiate on your behalf either through correspondence or round the table meetings and to achieve an order by consent. Once signed by everyone, this is simply forwarded to the Court for approval and sealing.

We also operate a very innovative new system known as collaborative law (see below) or can refer you to mediation (see below).

What is Collaborative law?

Collaborative law is a new and innovative resolution process which is already highly successful in the US, where all parties are so committed to resolving the matter through negotiation that they sign an agreement to say that they will enter into a series of round table meetings where all information and advice is disclosed openly, with a view to achieving a settlement by consent. In the unlikely event that this process then breaks down and the parties wish to go to Court, then each are committed to instruct new solicitors. This agreement becomes an effective mechanism to keep parties committed to achieving a fair and amicable solution.

What is mediation?

Family mediation is an established alternative resolution process which involves the parties sitting down together with 1-2 independent family mediator(s), usually with a legal background and trying to achieve a resolution in a controlled environment through discussion and negotiation.

What happens if we go to Court?

The Court will fix a timetable of actions that need to be taken such as the completion and exchange of a very detailed financial statement together with the opportunity to raise questions of your ex and will then list for a short preliminary hearing to see where the parties are. The process is geared to trying to achieve a negotiated settlement and most cases conclude before there has been a final hearing.

Will I automatically get half?

Particularly where there is a long marriage, the Courts will certainly wish to try and achieve equality. However, each case is judged on its own merits and there are a number of statutory factors that the Courts will consider in reaching a decision which may take the Judge away from equality such as significant pre-marriage contributions, inheritances, the care of children, pension claims etc.

Our team have a high level of expertise to be able to advise you as to the likely outcome and, therefore, provide a basis upon which to negotiate a settlement or to proceed through the Courts.

What is my ex is deliberately hiding or disposing of assets?

Where a spouse is deliberately attempting to dispose of assets to try and avoid your claim, it is essential that you act immediately in seeking legal advice to obtain injunctive relief through the Courts to prevent this or to retrieve the situation. 

Whilst there is a duty to make full and frank disclosure, sometimes a spouse will deliberately seek to hide assets such as bank accounts etc. With expert help, it is usually possible to trace the accounts and other assets with the assistance of the Courts.

How long will it take?

Whilst it is common to achieve a settlement before a final hearing, if the matter proceeds through the Courts, it is hoped that a resolution can be obtained within around 6 months. This may, of course, be extended in cases where your ex is being particularly difficult and uncooperative. However, if this can be proved, then costs penalties will usually follow.

How much will it cost me?

Obviously, this will depend on how quickly and easily your matter is resolved. Court proceedings are costly and it is for this reason that we endeavour to resolve the matter by negotiation if at all possible on your behalf.

Unfortunately, there are some firms who adopt a particularly aggressive position on behalf of their clients which is likely to increase your own costs as well. In these cases, we will forcefully discourage them from such action, seeking where necessary costs orders for inappropriate action.

We will also try and bill you on a regular basis so that you are kept fully informed re costs.

You may also be entitled to assistance through the public funding scheme known as legal aid.

Cohabitation

Can I make the same claim as if I were married?

The simple answer is no. Unfortunately, there is no legal merit in the phrase “common law husband/wife”.  Whilst you may have options in favour of your children, for yourself you will need to demonstrate that you fall within very strict property and trust criteria. You will need expert help to guide you through this complex legal area.

Would I have to go to Court to have my claims resolved?

The alternative dispute resolutions mentioned above are also available to cohabitees, such as negotiation, mediation and collaborative law.

Berry Smith Lawyers can help you with all aspects of family law including divorce, cohabitation, same sex relationships and children.

Contact us at our Cardiff Office 02920 345511 or Bridgend Office 01656 645525, or email family@berrysmith.com

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