Family FAQ
Q. My partner and I are unmarried. We own a house that I wish to sell, but he does not. What is the position?
A. It will be necessary to apply to the Court for an order that the property be sold. If the property is owned jointly by a couple who are unmarried, both parties have the right to live there unless the Court orders otherwise. Nothing can be done without the other party's consent or a Court Order. The Court may order a sale followed by a division of the proceeds, or act in acordance with a Trust Deed entered into which prescribes the share of each owner in the property.
Q. My marriage has broken down. Should I decide now whether to separate from my partner or seek a divorce?
A. If you believe that your marriage has irretrievably broken down you can seek a divorce based on one of five facts. However, you do not need to have a divorce if you are separating from your husband/wife. Counselling or Relate type services may be able to assist in your decision as to whether you should seek a divorce from your spouse. You do not need to make an immediate decision on divorce following a separation and financial matters can be regulated if necessary by way of a separation deed.
Q. How will it be decided where I live?
A. The Courts will take into account a number of factors, the principle consideration will be the welfare of any children under 18.
If you do not have any children and you are unable to agree as to who lives in the property then the Court will consider your financial situation as a whole when making a final decision regarding your finances. The Court can order a sale of the property if necessary.
Q. Will the property be divided equally?
A. Each case will be considered on its own facts. However, currently there is a starting point that there should be an equal division of assets whenever possible, however there are a number of significant factors which the Court must take into account including the welfare of the children and therefore there may not be a strict equal division of assets.
Q. I have children. How is it decided who they live with?
A. The Court will encourage parents to agree upon the arrangements for the children. You may wish to consider mediation as an alternative way of resolving any dispute between yourself and your spouse over where the children should live. Ultimately, if you cannot agree with your spouse where the children should live, the Court will need to make the decision and take into account a number of factors under section 1 of the Children Act. The Court must follow the welfare checklist when making a decision regarding a child.
Q. What will be the maintenance arrangement?
A. Again, if you are unable to agree this by consent with your partner then the Court may have to make orders regarding spousal maintenance. Except in limited circumstances the Court will not make any maintenance order relating to children and anyone wishing to apply for child maintenance should contact the Child Support Agency if they are unable to agree by consent. There may be times when you have to make an application to the Child Support Agency, eg when you are claiming certain state benefits. The Court can make an order dealing with maintenance between husband and wife. Parties who are not married cannot seek any form of spousal maintenance.
Q. Are you members of any associations which specialise in family problems?
A. Both of our solicitors are members of the Law Society Family Law Panel and are accredited members of Resolution (formerly the Solicitors Family Law Association). Michael Hayes and Julia Dyson are both fully trained collaborative lawyers.
A. It will be necessary to apply to the Court for an order that the property be sold. If the property is owned jointly by a couple who are unmarried, both parties have the right to live there unless the Court orders otherwise. Nothing can be done without the other party's consent or a Court Order. The Court may order a sale followed by a division of the proceeds, or act in acordance with a Trust Deed entered into which prescribes the share of each owner in the property.
Q. My marriage has broken down. Should I decide now whether to separate from my partner or seek a divorce?
A. If you believe that your marriage has irretrievably broken down you can seek a divorce based on one of five facts. However, you do not need to have a divorce if you are separating from your husband/wife. Counselling or Relate type services may be able to assist in your decision as to whether you should seek a divorce from your spouse. You do not need to make an immediate decision on divorce following a separation and financial matters can be regulated if necessary by way of a separation deed.
Q. How will it be decided where I live?
A. The Courts will take into account a number of factors, the principle consideration will be the welfare of any children under 18.
If you do not have any children and you are unable to agree as to who lives in the property then the Court will consider your financial situation as a whole when making a final decision regarding your finances. The Court can order a sale of the property if necessary.
Q. Will the property be divided equally?
A. Each case will be considered on its own facts. However, currently there is a starting point that there should be an equal division of assets whenever possible, however there are a number of significant factors which the Court must take into account including the welfare of the children and therefore there may not be a strict equal division of assets.
Q. I have children. How is it decided who they live with?
A. The Court will encourage parents to agree upon the arrangements for the children. You may wish to consider mediation as an alternative way of resolving any dispute between yourself and your spouse over where the children should live. Ultimately, if you cannot agree with your spouse where the children should live, the Court will need to make the decision and take into account a number of factors under section 1 of the Children Act. The Court must follow the welfare checklist when making a decision regarding a child.
Q. What will be the maintenance arrangement?
A. Again, if you are unable to agree this by consent with your partner then the Court may have to make orders regarding spousal maintenance. Except in limited circumstances the Court will not make any maintenance order relating to children and anyone wishing to apply for child maintenance should contact the Child Support Agency if they are unable to agree by consent. There may be times when you have to make an application to the Child Support Agency, eg when you are claiming certain state benefits. The Court can make an order dealing with maintenance between husband and wife. Parties who are not married cannot seek any form of spousal maintenance.
Q. Are you members of any associations which specialise in family problems?
A. Both of our solicitors are members of the Law Society Family Law Panel and are accredited members of Resolution (formerly the Solicitors Family Law Association). Michael Hayes and Julia Dyson are both fully trained collaborative lawyers.