Family Law Articles & Advice

If a member of the extended family gives money to a husband or wife during their relationship, the money is undoubtedly very welcome at the time of the gift or loan. When a couple splits up, family gifts or loans can complicate things. There may be a dispute over whether the money was a gift or a loan and how the gift or loan should be treated in the divorce and financial proceedings. Our North West divorce solicitors provide specialist advice on the treatment of loans in divorce and financial proceedings. Contact our specialist family lawyers for a consultation on your divorce and financial settlement. What is a family loan in divorce financial proceedings? A family loan is typically an informal loan between a family member and one of the divorcing spouses. It could be verbal or written, but if it is written, it could have been prepared without the benefit of legal advice, and the terms of the agreement may not be clearly defined. Often, the spouse who received money from their side of the family will say it was a loan, while the other spouse will say it was a gift. If agreement cannot be reached on whether the money received was a loan or a gift, the family court can be asked to decide the issue in financial proceedings brought by either the husband or the wife. The person who lent the money can also apply to intervene in the financial proceedings so they can make their case and have legal representation. If the court says the money is a hard loan, it will affect the asset pot available to be distributed between the husband and wife. The size of a loan and its classification could substantially impact the financial court order. In this sequence, the court must decide: Was the family money a gift or a loan? If it was a loan, was it a hard loan or a soft loan? In light of the court's finding on the loan status, what is the extent of the family assets available for distribution by the judge? What is a fair financial settlement for the husband and wife? Family loans and reaching a financial settlement in mediation If you are trying to reach a financial agreement in mediation, you may need specialist legal advice on complex points, such as: Whether the court would be likely to say a loan was hard or soft, and the impact on the financial settlement. The value of complicated assets, such as pensions or shares in a family business. The relevance of specific factors, such as pre-marriage owned property, gifts or inheritances. Family law solicitors can advise you on specific queries to help you reach an agreement in mediation and can provide mediation support to help you convert your mediated agreement into a binding financial court order. Family loans in financial proceedings In divorce financial proceedings, there can be disputes about: Whether money from friends or family members was a gift or a loan. Whether the gift was to the husband or wife or the couple jointly. If the money was a loan, the repayment terms. If the money was a loan, whether the debt should be included as a debt in the asset schedule. If the money has been repaid to the extended family member because of the divorce, whether the funds transferred to the relative should be added back into the asset schedule. Whether the extended family member should intervene in the financial court proceedings. Things can get very acrimonious when family money is in issue, with one party saying the money was a gift and the other a loan. Treatment of family loans in divorce and financial proceedings The case of P v Q (Financial Remedies) [2022] EWFC B9 (10 February 2022) clarified how the court should treat family loans in financial proceedings after a divorce. The case emphasises the importance of extended family members taking legal advice before making a payment to a married family member to ensure it is clear if the money is a loan, a joint gift, or a gift to one spouse, with the money ring-fenced in the case of separation or divorce. The case of P v Q (Financial Remedies) [2022] EWFC B9 The case of P v Q involved an international family based in the UK and Germany. The wife was German, living in England, and the husband was English, living in Germany with the couple’s two children. The case had many unusual points, including the value and liquidity of company shares, as the case was heard when Russian forces were massing at the Ukraine border and there were expectations of share price volatility. Divorce and financial proceedings were started in the UK. The wife said the husband had given his mother £150,000 to reduce the family assets and to reduce the amount the husband would be ordered to pay her as a financial settlement. The husband said he had repaid his mother the £150,000 loan, and the money should not be added to the asset schedule. The husband’s mother had given each of her three children £150,000 to help them with housing. No loan documentation was drawn up, and there was no evidence that the mother had gifted the money as part of an estate planning strategy. No demand was ever made for repayment of the £150,000, and there was no discussion about the circumstances when repayment was required. In evidence, the mother said she hoped the family would repay the money to her if she needed it. The husband repaid the £150,000 to his mother without his mother asking her son for the money. The wife argued the transfer was a device to remove £150,000 from the asset schedule, so she lost £75,000, using the sharing principle of a 50:50 split if £150,000 was added back into the asset schedule. The judge had to consider whether the £150,000 (and other family monies) were gifts or loans. The judge held that for money to amount to a gift, there must be an intention to give away with no expectation of repayment. Accordingly, the judge held that the £150,000 payment was a loan. The arguments didn’t stop there. Using case law, the judge had to consider whether the loan was a hard or soft loan to determine whether the £150,000 should be added back into the asset schedule. The judge concluded the loan was a soft loan. This meant the loan monies were added back into the asset schedule, thus increasing the amount to be shared between the husband and wife by £150,000 and increasing the size of the wife’s award. [related_posts] The law and the treatment of family loans in financial proceedings The judge in the case of P v Q said he had to consider the factors set out in Section 25 of the Matrimonial Causes Act 1973, together with any relevant case law, to decide: How to treat the loan and How to split the assets. Section 25 Matrimonial Causes Act 1973 broadly says it is the duty of the court when making a financial court order to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. Amongst other things, and of relevance to family money and loans, the court should pay particular regard to: The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire, and The financial needs, obligations, and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future. Is a family loan a soft loan? A loan can be classed as hard or soft. The definition is important because a soft loan will not carry as much weight in divorce financial proceedings as a hard loan. A hard loan is more like a commercial or contractual agreement, while a soft loan is an arrangement between family members without too much formality. In P v Q, the judge said that when looking at the treatment of loans in financial proceedings, the court needs to consider: If there is a contractually binding obligation by a party to the marriage towards a third party, the court should consider whether the obligation is a hard obligation debt or a soft debt. There is no set test to decide if a loan amounts to a hard or soft debt. A common feature of family loan analysis in financial proceedings is determining whether the obligation to repay will be enforced. The court should consider common factors that point toward a hard or soft loan. Evidence that a loan is a hard loan in financial proceedings Factors that point to a loan being classed by a judge as a hard loan include: The terms of the obligation feel like a normal commercial arrangement. There is a written loan agreement and a written demand for payment. There is a threat of litigation or intervention in the financial settlement proceedings. There was no delay in enforcing the debt. The amount of money owed is such that it would be less likely for a creditor to waive the obligation to pay. Evidence that a loan is a soft loan in financial proceedings Factors that point to a loan being classed by a judge as a soft loan include: The debt is owed to a friend or family member who remains on good terms. The loan is informal without a commercial arrangement feel to the loan. There has been no written demand for payment despite the loan repayment date having passed. There has been a delay in enforcing repayment. The amount of the money is such that it would be more likely for the creditor to be likely to waive the obligation to repay. Divorce and private client considerations when making or receiving family loans If you are thinking about making a gift or loan to a family member, it is sensible to take private client advice to: Understand estate planning and ensure your gift is tax-efficient for inheritance tax purposes, and Ring-fenced and protected in case the family member gets divorced. This can be achieved through a formal loan document, preferably combined with a prenuptial agreement or postnuptial agreement. Specialist divorce and financial advice on the treatment of loans in divorce proceedings Our expert divorce solicitors can help you if you are: Disputing a payment made by a family member was a loan and not a gift. Arguing that the money given by your family to you individually or as a couple was a loan. The loan maker who needs advice on intervening in the financial proceedings to protect your loan and financial interests. Our divorce lawyers will: Give an unbiased view of whether the court will likely say the money is a gift or a loan. Whilst you may not like the opinion about the treatment of the family money, you don’t want to waste time or money on an argument that you are not likely to win. Look at the additional legal costs of arguing whether the family money was a gift or loan, as you don’t want to spend more on legal costs arguing the point if the costs will be more than the amount to be gained in your likely financial award. Our family law solicitors can also help prepare prenuptial and postnuptial agreements, and our private client lawyers can advise on estate planning, gifting, and family loans. Contact our specialist family lawyers for a consultation on your divorce and financial settlement.

You need specialist legal advice from a divorce solicitor if you suspect your spouse has or will hide assets from you to reduce your financial settlement after a separation or divorce. Our North West divorce lawyers answer your questions on how they find hidden assets in financial negotiations and court proceedings. Contact our specialist family lawyers for a consultation on your financial settlement. Why do spouses hide assets in divorce proceedings? Concerns about ex-spouses hiding money or property from their partner in financial negotiations and proceedings are common. The newspapers are full of stories about international or multi-millionaire families involved in financial proceedings, with accusations that a husband or wife has hidden assets. However, assets can be hidden when the wealth isn't vast. In some ways, that is more understandable; a husband trying to safeguard an inheritance received from parents or a wife trying to retain the money she set aside from years of savings. Our experienced divorce solicitors say that, in their view, the top five reasons spouses don’t comply with financial disclosure and hide assets in financial negotiations and court proceedings are: Sense of entitlement to the asset. Fear that the financial settlement will leave them with reduced wealth. Belief that they won't be found out. View that everyone does it. Revenge. Is hiding assets in financial negotiations ever justified? Attempting to hide assets in divorce negotiations or court proceedings is never a good idea. Some spouses don’t reveal assets because they are hurt. Perhaps their spouse has met a new partner or, in their view, their spouse has behaved unreasonably, causing the marriage breakdown. A finance lawyer can advise you on whether you can raise the issue of your spouse’s conduct in financial proceedings. However, revenge is never a reason to hide assets. Entitlement is a common reason for non-disclosure. A view that a spouse is entitled to an asset and it therefore does not need to be disclosed, can arise because of: Inherited assets. Pre-marriage purchased assets. Assets held in discretionary trusts. Being the sole or primary earner during the relationship. Gifted monies through parental or family inheritance tax planning strategies. Whatever the reason behind the sense of entitlement to the asset, it should be disclosed to the other spouse and the court. The correct procedure to follow is to: Provide full financial disclosure. Argue that specific assets, such as an inheritance, gifted monies or pre-marriage acquired assets, should be classed as non-matrimonial property and should not be shared with their spouse. Put the case that the spouse’s needs can adequately be met by receiving a fair share of the available family or matrimonial assets without recourse to the ringfenced asset. Divorce lawyers can advise on whether an asset will likely be classed as a family asset and the relevance of needs arguments to your financial settlement. You will need bespoke advice because the court’s approach will depend on several factors, such as: If the asset was shared during the marriage. The extent of the agreed-upon family assets. The standard of living enjoyed during the marriage. Ten common ways spouses hide assets in financial negotiations: Opening another bank account in their sole name. Taking out cash from their sole account or your joint account. Transferring assets or property to family or friends. Syphoning money from a family business and putting it into a hidden account. Transferring money overseas or buying liquid assets knowing they will be difficult to trace. Investing in Bitcoin or other cryptocurrencies and digital assets. Underreporting their income, such as deferring large commission payments. Not disclosing employment share incentive schemes, such as EMIs. Using shell companies and trusts to hide assets. Buying property or assets in their new partner’s name and having a secret beneficial interest in the property. [related_posts] Red flags that your spouse is hiding assets from you Here are some red flags or pointers that your ex-spouse may be hiding assets from you: Change in spending patterns and behaviour, such as frequent large cash withdrawals. Sudden improvement in a relative’s or new partner’s wealth, such as purchasing a property. Rapid deterioration in a spouse’s financial position after the decision to separate, or after you think they have decided the marriage is at an end. Previous history of non-disclosure. For example, in their first marriage or with a business partner. The disclosed assets do not correlate with your family lifestyle. Financial disclosure and hiding assets in financial court proceedings In financial court proceedings, a husband and wife must give each other full and frank financial disclosure. That does not always happen. Additional enquiries, such as questionnaires and single joint expert and shadow expert reports, can be commissioned to trace assets. Sometimes a finance solicitor can spot that a spouse is trying to hide money, property or income through: Transferring money from a bank account as cash and saying that the cash has been spent, but opening a secret bank account with the money. Producing incomplete internet transaction histories for bank accounts to avoid revealing entries. Saying that money taken out of a savings account was to repay family debt, but the debt was artificial, with the plan being for the alleged debt to be repaid after the financial proceedings are finalised. Pretending that they do not own a new property. A simple search of the Land Registry can reveal the truth about property ownership. Not disclosing the existence of family trusts or inheritances. These are just the tip of the iceberg when it comes to hiding assets in divorce proceedings. How do divorce solicitors find hidden assets? Specialist divorce solicitors employ a variety of tactics to find hidden assets, including: Starting a financial application so that the court orders financial disclosure. Carefully reviewing Form E financial disclosure. Enforcing orders for Form E financial disclosure. Conducting searches with the Land Registry and Companies House to verify property ownership and company information. Filing questionnaires to ask for additional financial disclosure. Applying for Section 37 injunction orders to stop a spouse from transferring or selling assets or property to friends or family. Where relevant, joining parties to court proceedings, such as trustees of a discretionary trust, a corporate entity, or a family member who says they are entitled to a significant percentage of the equity in the family home. Employing asset tracers and forensic accountants to trace assets and wealth. Asking the court for permission to instruct an expert to analyse specific issues, for example, movements on a director's loan account. Liaising with experts overseas to trace international assets. These are just some methods family lawyers use to find hidden assets. At Evolve Family Law, we always discuss the best asset tracing options relevant to your family circumstances. Should assets be traced in financial proceedings? A specialist divorce solicitor will consider with you: The cost of tracing hidden assets. The benefits to be gained. Alternatives to asset tracing. For example: If you can prove your spouse is worth at least 12 million and you are only seeking 5 million to give you a very comfortable lifestyle, is the extra cost justified in proving that your ex-spouse has an additional 1 million in assets? Asking the court to infer that your ex-spouse has additional wealth because their disclosed assets do not support their provable expenditure and lifestyle. If you were married for 12 months and signed a prenuptial agreement after taking legal advice. None of these examples means you should not trace hidden assets, but they do demonstrate the need to discuss the cost-benefit ratio. There is no point in running up a big solicitor’s bill or instructing a forensic accountant to pore over company accounts unless the extra work and costs are likely to produce more by way of financial settlement than the additional expenses incurred. That is because you cannot guarantee that a court will order a spouse to pay your costs in tracing assets. It is a pointless victory if extra legal costs swallow up the larger financial settlement because the court either does not make a cost order in your favour, or the order does not cover the full extent of your asset tracing costs. How Evolve Family Law can help you achieve a fair financial settlement It is not surprising that there are allegations of hidden assets in divorce proceedings. After all, divorce proceedings often start because of a lack of trust in a relationship. A spouse's affair can cause a husband or wife to lose emotional and financial faith in their partner. When a separation is imminent or divorce proceedings are started, past actions and financial behaviours can take on a new significance. At Evolve Family Law, our divorce lawyers work with you to help you achieve a fair financial settlement. That involves tracing all assets after assessing the cost-effectiveness of doing so. We work with you because spouses know their spouses' behaviour best, and you will potentially have lots of invaluable information to help us ensure you receive the financial settlement you deserve. Contact our specialist family lawyers for a consultation on your financial settlement.

Failure to disclose financial information in divorce financial proceedings carries consequences. In this article, our North West specialist divorce solicitors explain what dishonest financial disclosure is and what you can do about it. Contact our specialist family lawyers for a consultation on your financial settlement. Dishonest financial disclosure in divorce proceedings Sometimes, when a divorce financial settlement solicitor explains the duty on both spouses to provide full and frank financial disclosure, they are greeted with laughter. Some divorcing spouses know their partners and realise that honesty and fairness are not part of their vocabulary. If you suspect your spouse will be dishonest, it's best to be upfront about it. That’s because dishonesty suspicions will affect your family lawyer's approach on how best to reach a financial settlement and the type of financial court order they negotiate or ask the court to make. Not everyone is dishonest Most divorcing couples know all about each other’s income, savings, and property. If you are in that position, there is no need to authorise extra costs being spent, as your divorce solicitors will not find assets that don’t exist. Instead, the focus should be negotiating a financial court order that meets your needs and minimises legal costs. Dishonest spouses A husband or wife can be dishonest about some aspects of their lives but not others. You are probably the best person to know if your husband or wife hasn’t been honest about relationships, but is likely to have been upfront about money matters. Alternatively, you may suspect that your spouse has been planning to leave you for a while and is managing their financial affairs, so you won’t get the financial settlement you are entitled to. If you think your husband or wife won’t provide full and frank financial disclosure, then discussing this with your finance solicitor is best. They will then decide what additional information should be requested and what follow-up questions may need to be asked. If you have a strong suspicion of dishonesty but no concrete proof or ‘smoking gun,’ then don’t worry. Divorce lawyers are experienced in ensuring all assets are disclosed and accurately valued before reaching a financial settlement or before the final hearing of a financial settlement application. Types of dishonesty in financial proceedings Dishonesty comes in different forms: Not disclosing assets or property. Not revealing material information. Not providing an accurate valuation. Here are some examples of dishonesty in financial settlement negotiations and court proceedings: Not disclosing a property purchased after separation in the Form E, as the spouse did not consider it relevant. Mentioning the ownership of 1,000 shares in a listed company but failing to mention their other 10,000 shares. They did not explain that they had received an offer on the business or other assets. Not providing information about a bank account or legacy received but kept separate from a spouse. A spouse must provide full financial disclosure. In financial proceedings, the divorce lawyers and the court then determine the relevance of the asset and its value. For example, the court may conclude that an asset purchased after the separation or a legacy received after the divorce is not a family asset. However, full financial disclosure is a requirement because, in some cases, the court will either conclude that an asset is matrimonial property that should be shared or decide that, although it is non-matrimonial property, it should still be shared because of a spouse’s needs. [related_posts] Why do you think your spouse is dishonest? Sometimes you know your spouse will be dishonest in financial disclosure, as they haven’t been honest in financial dealings with third parties over your marriage, and you think dishonesty is just part of their genetic make-up. In other situations, you may have been warned about the dishonesty by your spouse’s business partner or a family friend. It is essential to understand why you think your husband or wife is being financially dishonest as you don’t want divorce financial settlement solicitors to explore and analyse your spouse’s bank statements or business accounts or ask additional questions about their financial affairs if your views on their honesty is being clouded by your upset about your spouse walking out of the marriage or any of the many other things that a husband or wife can do to aggravate an already difficult and emotional time. Tackling dishonest financial disclosure When you split up, you are entitled to a fair financial settlement. What’s ‘fair’ depends on your personal and financial circumstances. However, you can’t reach a financial settlement unless you know the full extent of the family and non-family assets in your joint and sole names. If your spouse won’t voluntarily give full and frank financial disclosure, you must start financial proceedings. During the financial case, your husband or wife will need to give honest and full information when: Completing the standard Form E financial disclosure document and providing supporting paperwork. Answering questionnaires about their finances and disclosing additional documents as ordered by the court. Speaking to a single joint expert, such as a forensic accountant appointed by the court to value the family business. Giving evidence at the financial court hearing. Remedies if a spouse doesn’t comply with disclosure orders during financial court proceedings If your husband or wife does not comply with financial disclosure orders during financial court proceedings, you can ask the court to: Enforce the disclosure order. Draw inferences because of a failure to comply with the disclosure order or incomplete provision of information. Structure the award to account for the spouse’s conduct during the financial proceedings. Make a cost order. An example of drawing inferences is where financial disclosure reveals drawings from the business of £80,000 gross per year, but documented expenditure on mortgages, cars, and holidays shows outgoings of at least £110,000 per annum. If there is no corresponding debt or use of savings to meet the income shortfall or other reasonable explanation, other than cash syphoning, your finance lawyer could ask the court to draw inferences that your spouse is being dishonest about their income level from their business and its profitability. Discovering dishonest financial disclosure after a financial court order Sometimes, you don’t know that the person you loved and trusted has been dishonest with their financial disclosure until after you have agreed on a financial consent order or the court has made an order after contested court proceedings. Even if you discover dishonest behaviour after the event, it may not be too late to act. Divorce solicitors issue a warning, though – it is easier and cheaper to show dishonesty before a financial order is made, as there are no guarantees that you can reopen a financial court order. If you can show there was dishonest financial disclosure, the court has the power to set aside the financial court order it made. Leading court cases on fraud and dishonesty in financial proceedings Divorce solicitors emphasise the importance of full and frank financial disclosure citing the Supreme Court cases of two ex-wives, Mrs Sharland and Mrs Gohil, who took their cases to the Supreme Court to try to win justice on the basis that their former husbands had deliberately misled them and the court about the true extent of their wealth. In Sharland v Sharland [2015] UKSC 60 (14 October 2015), Mrs Sharland and her husband had agreed on a financial settlement. Their divorce lawyers drafted a court order that the judge approved. After the order was approved, Mrs Sharland read in the financial press that her husband’s shareholding in his IT company was worth more than he told the court. In Gohil v Gohil [2015] UKSC 61 (14 October 2015), Mrs Gohil agreed to her divorce financial settlement based on information her husband disclosed: a modest income and no assets. However, Mrs Gohil started a battle to overturn the divorce settlement after it became apparent to her that her husband's disclosed assets and income could not support his lifestyle. The husband was later convicted of fraud and money laundering. The evidence in criminal proceedings enabled Mrs Gohil to pursue her claim. In the cases of Mrs Sharland and Mrs Gohil, the Supreme Court ruled that if a husband or a wife in divorce proceedings intentionally keeps financial information from the court, then the court will presume that a different financial order would have been made if the hidden evidence had been made available at the time. Deliberately misleading the court can, therefore, invalidate a financial settlement. That means the financial court order can be changed. Accordingly, being dishonest means uncertainty and extra costs for the dishonest spouse, plus the real possibility of the court making a more generous financial settlement to their spouse. The penalties for dishonesty in financial proceedings The 2025 court case of VTY v GDB [2025] EWFC 110 (B) (24 April 2025) highlights the penalties of failing to provide full financial disclosure in court proceedings. The judge tasked with deciding how the couple’s assets should be split said ‘’On occasions too frequent for the court to do justice to here, the husband has been demonstrated not to be telling the truth. The husband, bluntly, cannot be believed. His disclosure and litigation conduct has been appalling and has been designed to confuse and obfuscate. He is thoroughly and determinedly dishonest.’’ Financial disclosure was described as woeful and messy. The wife was awarded around 1.2 million in assets, and the husband, around £483,000. The judge said he was giving the wife a greater share of the assets rather than ordering the husband to pay the wife spousal maintenance because of the husband’s behaviour. The husband was also ordered to pay over £54,000 in costs to the wife. Suspicions of dishonesty and financial disclosure If you are suspicious about financial disclosure and believe your husband or wife is dishonest, don’t negotiate a financial settlement thinking that you can change it later—you may not be able to do so, or the costs and timescales may be a deterrent. If you are concerned that the figures don’t add up or your spouse is doing some of the classic concerning actions (such as transferring assets to friends or family or closing bank accounts or telling you that the family business is at risk of going under but the order book seems as strong as ever) then speak to an expert divorce solicitor so you can understand your options and achieve a fair financial settlement. Contact our specialist family lawyers for a consultation on your financial settlement.

You may have heard about a government voucher scheme to cover the cost of family mediation. In this article, we delve into the voucher scheme and answer your frequently asked questions about who pays for family mediation. Contact our specialist family lawyers for a consultation on how to resolve your family law disagreement effectively. What are mediation costs? Family mediation costs can be broken down into: The cost of the Mediation Information and Assessment Meeting. The cost of each mediation session. Any supplemental costs. The Mediation Information and Assessment Meeting (MIAM) is an intake meeting where the mediator explains how mediation works and assesses whether mediation is a suitable alternative dispute resolution option for you. It may not be suitable if you have been subjected to domestic abuse and safety measures aren’t deemed to be sufficient to protect you or if you fear that your former spouse will take the children overseas without your agreement unless you get the protection of a prohibited steps order. If the mediator believes you are both capable of engaging in mediation, some mediation sessions will be scheduled. Typically, each session lasts no more than 90 minutes. The number of sessions needed will depend on the complexity of the issues or your finances. The supplemental costs of mediation can range from the expenses of jointly instructing a forensic accountant to value a family business or a pension actuary to value a pension to the mediator's fees for drafting a memorandum of understanding after a successful mediation. Who pays for privately funded family mediation? Usually, a couple will share the cost of mediation. This could be achieved by having each party pay 50% of the cost of each session or by paying for mediation out of their joint savings. Each party will be responsible for paying their family lawyer, who will provide legal support during mediation. There are no hard and fast rules about who pays for privately funded family mediation. If one spouse has a reduced income or is reliant on spousal maintenance and child support, the financially stronger party may be responsible for covering all the costs of mediation. Mediators are independent of the parties and of the solicitors who refer divorcing couples to them. The outcome of the mediation sessions will, therefore, not be affected by your decision on who pays for the sessions. [related_posts] What is the Family Mediation Voucher Scheme? The Family Mediation Voucher Scheme is a government-led, time-limited mediation payment scheme designed to encourage separating couples to resolve family law disputes through family mediation. If you are eligible for the scheme, your mediator will receive a voucher worth up to £500 to cover all or part of the mediation costs. The voucher cannot be used to pay for the MIAM; it can only be used to cover the costs of mediation sessions. The £500 covers both of you. You cannot each claim a separate voucher or ask for vouchers to cover separate children and financial mediation sessions. Whether the £500 voucher covers all the mediation costs depends on the number of sessions held, but it is intended to be a contribution rather than a full payment. If a surplus remains, the money cannot be used to cover legal fees that support you during mediation or to pay your divorce solicitor to obtain a no-fault divorce. For further details on the government scheme, please visit this link. The main eligibility criteria for the voucher are that you must be mediating about: A dispute regarding a child. A family financial dispute in which you are also involved in a dispute related to a child. For example, you need to reach an agreement on whether the children live with you, the contact arrangements with the non-residential parent and the divorce financial settlement. The financial settlement may encompass child support, spousal maintenance, lump sum payment, the sale of the family home, the transfer of property or the making of pension sharing orders. Contact our specialist family lawyers for a consultation on how to resolve your family law disagreement effectively. Frequently Asked Questions on Family Mediation  What does family mediation do? Family mediation is designed to help you reach an agreement with your estranged or former spouse or partner over a family law-related dispute. A qualified mediator conducts the mediation. They facilitate discussion to help reach an agreement. If an agreement is reached, the mediator will draw up a memorandum of understanding. In some cases, this memorandum is then converted into a binding court order. If agreement cannot be reached, the parties have the option of using a different type of alternative dispute resolution method to help them reach an agreement or to make an application to court. What family law disputes can mediation resolve? Mediation can be used to resolve disputes on the following: The living and contact arrangements for children post separation Whether a parent should be allowed to take a child overseas to live New living or contact arrangements for children Whether a child should be introduced to a new partner of mum or dad Financial settlements after a divorce Property settlements after a cohabiting relationship has broken down Mediation isn't confined to resolving disputes between warring parents. It can be used to resolve: Grandparent contact. Step-parent contact. Inheritance disputes where claims are made that a Will or the intestacy rules don’t make reasonable financial provision for the claimant. How does family mediation work? Family mediation works in a five-stage process: Referral to mediation. Mediation Information and Assessment Meeting (MIAM) with each party. The mediator conducts a screening process to determine if both parties are suitable for mediation. Mediation sessions start and continue at the couple’s pace. If an agreement is reached, the mediator draws up a memorandum of understanding. There are several types of mediation and various kinds of mediators. That’s why it can be helpful to speak with a family lawyer and to discuss the options during the MIAM. For example, you may prefer shuttle mediation because of previous incidents of domestic abuse, or you may want to include older children in the process with a child-inclusive mediator. Many couples choose to seek independent legal advice before embarking on mediation and in between mediation sessions. This is because the mediator’s job isn’t to advise on family law but to facilitate an agreement. A family law solicitor can provide legal mediation support.  What is legal support in mediation?   Legal support in mediation is broad-ranging and tailored to your needs. It can include: Initial separation advice and answers to questions such as ‘can I change the locks?’ Advice on the range of alternative dispute resolution non-court options, such as arbitration. Expert advice on the range of orders the court has the power to make and the likely range of orders in your situation. Guidance on financial disclosure in the mediation process. Advice on the need for expert instruction during mediation, such as the instruction of a pension actuary. Advice on proposed settlement options discussed in mediation. Help with converting your mediated agreement into a court order. Assistance with sorting out all the legal aspects of your separation, such as applying for a no-fault divorce, drafting a new Will, or preparing a Lasting Power of Attorney. Assisting with the implementation of your financial court order, including legal work, such as transferring the family home from joint names to a single name. Advice on enforcing the agreement or court order. Taking advice from a family law solicitor before and during the mediation process can help you reach a mutually beneficial agreement, as your family lawyer provides you with the knowledge and confidence to negotiate a settlement that meets your needs and those of your children. Contact our specialist family lawyers for a consultation on how to resolve your family law disagreement effectively. Evolve Family Law has offices in Holmes Chapel, Cheshire, and Whitefield, North Manchester. We also offer remote meetings via telephone appointments or video calls.

In certain situations, you may be able to skip mediation and proceed directly to court to resolve a family law dispute. In this article, our North West divorce solicitors explore why you may want to consider alternatives to family mediation. Contact our specialist family lawyers for a consultation on how to resolve your family law disagreement effectively. Is mediation compulsory? If you are separating from your husband, wife, civil partner or unmarried partner, there are many matters to resolve, such as: The parenting arrangements for your children Who will stay in the family home Whether maintenance and child support will be paid The financial settlement if you are married or in a civil partnership The property settlement if you were in a cohabiting relationship Whether divorce proceedings should be started and by whom Mediation can resolve all these matters and others. Mediation is not compulsory. It is a voluntary alternative dispute resolution process. All parties to the mediation should attend voluntarily rather than through coercion. However, some people may feel compelled to mediate, as court rules make it clear that parties in most family law disputes must first attempt to resolve their issues outside of the court process. If you feel pressured to go to mediation, it's best to speak with a family law solicitor about your concerns and your alternative dispute resolution options. Trying out family mediation Family mediation begins with each party attending a Mediation Information and Assessment Meeting (MIAM). The purpose of the MIAM is for the mediator to: Give you information about mediation Discover what you want to achieve from mediation Determine if you are a suitable candidate for mediation Decide the type of mediation and mediator that best suits your needs MIAMs are usually held separately, allowing you to discuss any reservations about attending mediation and for the mediator to ask questions to ensure that mediation is suitable for you and your former partner. For example: It may not be apparent in the information sent to the mediator that you have experienced domestic violence in your relationship. In a dispute over parenting arrangements for your teenage children, you may want the children to have a say about their living and contact arrangements. A specially trained mediator can involve older children in child-inclusive mediation*. Your partner may inform the mediator that they are unwilling to provide any financial disclosure during mediation, which would render the process ineffective, as the mediator cannot compel such disclosure. In financial court proceedings, the court can order financial disclosure. Here is a link to a Family Mediation Council video that provides a more detailed explanation of child-inclusive mediation. Can I skip mediation? Here are some of the situations where you can skip family mediation and go straight into court proceedings: Your child is at risk of significant harm There is a threat of child abduction Risk of domestic violence Your ex-partner is disposing of assets Here are some examples of why you should bypass mediation: You fear your child will be taken overseas unless you secure a prohibited steps order to prevent parental child abduction by your ex-partner. Your estranged wife is selling or transferring assets, and you need the urgent protection of a Section 37 injunction order to stop them from disposing of assets to defeat your financial claims. There are serious current or historic domestic violence issues, and you do not think that any type of mediation is safe for you to engage in. There are other scenarios where you can bypass mediation and initiate court proceedings. Family law solicitors recommend seeking expert advice before skipping mediation, as the potential consequences of making an incorrect decision can be severe. Consequences of skipping mediation If you choose to bypass family mediation because you don’t like the sound of the process, rather than because there was a good reason for doing so, then the consequence may be: Delay Additional expense Risk of a cost order Risks associated with bypassing mediation Let's look at the risks of skipping mediation in more detail: You may think you are speeding things up by making an application to the court, but the court could decide to adjourn your application for mediation to take place. Your decision to proceed directly to court may have slowed things down, as you could have been attending mediation sessions for several months while waiting for a first court hearing date. Starting court proceedings when you could have reached an agreement outside court adds to your costs. For example, the court application fee and the time spent in preparing your financial settlement or child arrangement order In some family cases, a judge may order that you pay all or a proportion of the other party’s legal costs. The court may be more inclined to make a cost order against you if the judge thinks you didn’t follow the rules and rushed into a premature court application without giving mediation or alternative dispute resolution a chance. Deciding whether to skip mediation is a delicate balancing exercise that should be undertaken with the advice of a specialist divorce solicitor with a thorough understanding of the family law rules and the potential positive and negative implications of opting to bypass mediation. Why don’t you want to go to family mediation? People give several reasons for wanting to avoid family mediation. They include: Don’t think their ex-partner will go to mediation Don’t want to be in the same room as their former partner Won't be able to stand up for themselves in mediation Want to leave it to a judge to decide what happens Previous bad experience of mediation Addressing why you want to skip family mediation At a consultation meeting, a divorce solicitor can explain: What mediation is How family mediation works The measures that can be put in place to address concerns about attending mediation The alternatives to mediation The advantages and disadvantages of mediation [related_posts] What is family mediation? Family mediation is a form of alternative dispute resolution that involves a specially trained family mediator. A family mediator is an impartial third party who helps a separated couple resolve family issues, such as child care arrangements or financial settlement. A family mediator will: Facilitate listening to one another, even when you may disagree with what the other person has to say. Help you find a resolution that works and is an acceptable compromise for both of you. A family mediator does not give legal advice to the parties. They are there as a neutral facilitator to help you reach an agreement. That’s why many separating couples find it helpful to speak to a family law solicitor between mediation sessions, so they understand their legal rights, the likely court outcomes and have the confidence to mediate a reasonable compromise. Types of family mediation Family mediation sessions usually take place with a family mediator sitting in a room with both parties. The mediator uses their skills to help you reach your agreement, rather than have an order imposed on you by a family court judge. However, this type of mediation may not be suitable for everyone. Alternatives are available. For example: Shuttle mediation - you and your partner do not meet in the same room; instead, the mediator shuttles between rooms to facilitate a mutually agreeable resolution. Solicitor-involved mediation - each of you can have your solicitor involved in the mediation sessions, as well as provide legal support outside of the mediation sessions. Measures to help mediation work for you These are some of the measures our North West family lawyers can put in place to help you get the best out of mediation: Write to your former partner to explain the implications of them choosing to skip mediation. Advise you on how to select a family mediator to resolve your family law dispute. Recommendations for shuttle mediation if you don’t want to be in the same room as your former partner. Discussing safety measures to enable you to attend mediation with confidence. For example, arriving at separate times to your ex-partner and not waiting in the same waiting room. Provide advice before you start mediation so you understand the range of orders the court has the power to make. Offer specialist advice between mediation sessions to give you the confidence to negotiate effectively during mediation meetings. Explain how counselling can provide the confidence boost you need to make mediation work. Advise on how experts can be effectively involved in the mediation process to facilitate a mutually beneficial agreement—for example, a pension actuary or forensic accountant. Legal representatives present during the mediation sessions to address the power imbalance. Depending on the reasons behind your reservations about mediation, our divorce solicitors may be able to suggest other measures to help make mediation work for you. The advantages of mediation Some people think that talking to their ex-partner is pointless. However, it is worth hearing about the advantages of mediation as an alternative dispute resolution option. The advantages of mediation are: It is often quicker than court proceedings It is cheaper than a court application You and your ex-partner set the mediation agenda, helped by the mediator The mediation process looks forward rather than analysing mistakes made during the relationship Mediation is less adversarial than court proceedings Mediation can come up with a bespoke solution to your family law dispute When you are separating from a former partner, the mediation advantages are important because: You need a decision so you can move on with your life. You and your ex need to spend as little as possible on dispute resolution so you have more to spend on your children or rehousing. Going over old ground, such as the reasons for the marriage breakdown, won't help you reach a financial settlement. If you plan to continue co-parenting your children, it is helpful to reach a parenting agreement that minimises conflict. In court proceedings, the family judge must follow family law rules. For example, the judge cannot consider the needs of adult children still living in the family home or the caring responsibilities of one spouse for aging parents. Mediation offers the flexibility to consider what is relevant to your family. The alternatives to family mediation If you are of the view that mediation isn't the best alternative dispute resolution option for you, then some of the other options are: Collaborative law Arbitration Roundtable meetings with legal representation Amicable Divorce - One Lawyer Divorce Why you should consult with a family lawyer before skipping mediation You should speak to a family lawyer before deciding whether to go to mediation because a specialist family law solicitor can: Explain the mediation process and your other alternative dispute resolution options. Help you choose the right type of mediation model and mediator to facilitate a mutually agreeable resolution with your former partner. Offer advice on potential likely outcomes, costs and timescales if you make an application to court for a divorce settlement or child arrangement order. Advise you if mediation is not appropriate, such as when you need an urgent court order, such as a prohibited steps order. Explain how they can provide legal support and guidance in between mediation sessions to give you the confidence to reach a mediated agreement. Convert your mediated agreement into a binding financial court order. Help you obtain a no-fault divorce, enabling you to implement parts of your financial court order, such as a pension sharing order. At Evolve Family Law, our family law specialists offer a mediation support service, providing all the advice and guidance you need, from your initial inquiry about mediation to helping you secure an agreed court order following a successful mediation. Speak with a Family Law Solicitor Today for Advice on Family Alternative Dispute Resolution Strategies.

If you are separating from your partner, it is important to seek specialist family legal advice on your rights from North West family solicitors. Knowing your rights can help you separate amicably. Consulting a family lawyer isn’t an adversarial step; it's just protecting your interests and helping you navigate the next steps to life after a separation or divorce. Contact our specialist family lawyers for a consultation on your separation. Tips on how to separate from a partner Whether you are separating from a spouse, civil partner, or cohabiting partner, you need to talk to an expert family solicitor. Early knowledge about your separation legal rights is vital as the advice can affect your plans and timescales. There are five key issues to consider when contemplating a separation: 1. Has my relationship ended, or could it be revived? 2. Can I leave the relationship safely? 3. When and how do I tell my partner I am leaving? 4. When should the children be told that mum and dad are separating? 5. How do I sort out the legal, property or financial aspects of my separation? Has my relationship ended? It isn't always easy to tell if your relationship has ended. You may think relationship counselling could revive it, or a trial separation may help your relationship get back on track. Even if your relationship has definitely ended, some couples find joint counselling sessions helpful in achieving an amicable separation. Others benefit from individual counselling to help them come to terms with the relationship breakdown and move on with their lives. It's common to feel grief, anger, shame and a whole range of other emotions when you separate. If your former partner does not appear as affected by the end of the relationship, it may be because they have already emotionally detached from the family. That doesn’t mean your emotions are wrong, but it can help you to work through them with a counsellor or divorce coach. Can I leave my relationship safely? Whatever the legal status of your relationship, it's vital that your separation takes place safely. If you have: 1. Lived in a relationship with domestic abuse or 2. You fear domestic violence when you announce you want to leave or 3. You are concerned about ongoing coercive control after your separation. Injunction solicitors can help you secure a non-molestation, ouster, or occupation order to safeguard you and your family. Family law solicitors always recommend taking legal advice on your separation before you leave the family home. That advice applies to you even if: 1. You are unmarried, and your partner owns the property. 2. You are renting. 3. You don’t have children. 4. You don’t think you could afford the outgoings on the family home on your own. 5. Your ex hasn’t been violent. Leaving the family home when you don’t need to do so can put you on the back foot when negotiating a property settlement as an unmarried partner or a financial settlement as a spouse. If you have children, leaving the family home can be highly disruptive for them. Child support (and interim spousal maintenance if you are married) may allow you to stay at the family home until the separation or divorce is finalised and a financial court order is made. When and how do I tell my partner I am leaving? Telling your partner that your relationship is over, or hearing the news from them, is never easy. How and when you should have the ‘it isn’t working’ conversation depends on your circumstances. However, family lawyers always recommend talking to a solicitor first as their specialist legal advice may help you: 1. Decide on the timing of your separation and put a plan in action. For example, if you need an injunction order or the support of your family in telling your partner the relationship is at an end or in the immediate aftermath. 2. Organise your finances so you know how much income you will have if you are paying or receiving child support or spousal maintenance. 3. Help you understand whether you are likely to be able to stay in the family home whilst the financial and property aspects of your separation are sorted out. 4. Understand the likely parenting arrangements for your children. Temporary arrangements may need to be sorted out until future living arrangements are finalised. You may need an urgent child arrangement order if the separation is acrimonious. 5. Think about whether there are any risk factors, such as your ex trying to take your child overseas (this is parental child abduction if going abroad is without your consent) or trying to exert coercive control (to try to force you to stay in the relationship or to agree a financial settlement that suits them). [related_posts] When should the children be told that mum and dad are separating? Talking to your child or stepchild about the end of a parental relationship is a tough one. Many parents delay the discussion because it is so uncomfortable, and they think the children won't pick up on the atmosphere at home, whilst other parents want to ‘get in first.’ Ideally, parents should try to talk to their children together, but that can be too hard for some parents or counterproductive if there is a lot of anger about the separation. There is specialist help available, such as: • Supporting Children through Separation and Divorce | NSPCC • Supporting your child through divorce and separation | Cafcass • Helping children through separation | Gingerbread Legal advice on separation: How do I sort out the legal, property or financial aspects of my separation? If you are contemplating the future of your relationship or if your partner has told you that the relationship is over, you need to speak to a family solicitor to understand your rights. Talking to a lawyer doesn’t mean that you both need to ‘lawyer up’ and go to court to thrash out who gets custody of the kids or who stays in the house. At Evolve Family Law, we offer a fixed-fee relationship breakdown comprehensive initial review. The fee includes a meeting with a qualified lawyer to discuss all legal and practical aspects of your situation, including assessing the best routes to resolving it. That meeting may then enable you to use family mediation to achieve an amicable separation or to understand your rights and not feel totally at sea, not knowing what is reasonable to ask for or how the next steps will pan out after you have made the decision to separate. An initial consultation is equally helpful if your ex has announced that the relationship is ending and that you will need to pack your bags or that they will be doing so, leaving you devastated and wondering how you will cope with the children and the bills. At Evolve, we know that any separation is painful, but we try to ease your pain by giving you the information and support you need. At Evolve, our North West family law solicitors are: • Local with offices in Holmes Chapel, Cheshire and Manchester. • Specialists – we advise on family and private client law as we know what we know. • Tailored and bespoke – with us, you get advice tailored to you and your family. • Proactive – if you need urgent legal advice to protect your children or to secure an injunction, we have the specialist team you need on your side. • Ranked excellent on Trustpilot. Contact our specialist family lawyers for a consultation on your separation.

You have come out of a court hearing and been vindicated. You were believed, and it feels great. You probably want to tell everyone that your ex got their comeuppance in court. Before contacting the Daily Mail or posting on Social Media, you need to be aware of the rules regarding what you can and cannot say about family law proceedings concerning your children. Our specialist family law solicitors can support you through children's law proceedings and provide guidance on the rules regarding confidentiality and transparency. If you need help with child residence or contact proceedings, phone Evolve Family Law or complete our online enquiry form. Telling your story Whilst your experience with child arrangement order, specific issue order, relocation order, or prohibited steps order proceedings is your story, your child is entitled to their privacy. That’s why judges insist that all court proceedings concerning children are kept confidential. Parents are not allowed to disclose to anyone who isn’t a party to the children's law court application the proceedings or to show them court paperwork. There are some exceptions to this rule. For example, your family law solicitor will need to explain to a potential witness why they are requesting that they file a statement of evidence on their behalf. Alternatively, your family lawyer may need to ask permission from the court to disclose relevant court documents to a child psychologist, allowing the expert to prepare a report. Whilst it is frustrating to be constrained by children's law rules, the easiest way to think of the blanket rules is that they are there to protect children who find themselves caught up in child arrangement orders or other court proceedings. Children rarely want the story told. If a child is old enough to have a say, they don’t want their friends gossiping, and they are fiercely protective of their privacy. Speaking about your experience of family court proceedings Before discussing your experience (good or bad) in the family court with third parties, it is essential to consult with your lawyer. Get expert advice and follow it; otherwise, you risk a judge finding you in contempt of court. Alternatively, if you breach confidentiality rules after an interim court hearing, you risk the judge at the final hearing refusing to make the orders you want. One example of this is speaking out after the judge makes findings at a finding of fact hearing. You may be delighted or appalled by the judge’s findings about an incident of domestic violence, but speaking about your experiences and identifying yourself (and, therefore, your child) could massively backfire. [related_posts] Transparency orders and children's law court proceedings A family court judge can be asked to issue a transparency order to permit limited media reporting of a child's law application. These orders are rarely made. Additionally, the information a parent is allowed to disclose is strictly controlled. Recent transparency order A current example of a transparency order application made in children's law proceedings is the 2025 reported case called M v F & Another. In these child arrangement order proceedings, the mother accused the child’s father of rape. The father countered her serious domestic violence accusations with an allegation of parental alienation. A judge initially dismissed the mother’s allegation of abuse, but eventually, the court made a finding that the mother had been raped and stripped the father of parental responsibility for his child. The family court issued a rare transparency order, allowing the mother to speak to the media and permitting the press to report her story. However, the order was tight enough to restrict the mother from personally writing or talking about the case. The mother’s barrister, therefore, asked the court to vary the transparency order, allowing the mother the freedom to speak out under a pseudonym to share her story and highlight her experience of the judicial system. When considering the mother’s request to vary the transparency order, the court had to consider: Section 12 of the Administration of Justice Act 1960 The Family Procedure Rules 2010 The inherent jurisdiction of the High Court Articles 8 and 10 of the European Convention of Human Rights The best interests of the child and the Children Act 1989 When considering the mother’s request to vary the initial transparency order, the court said: ‘The Court wishes to make clear, before embarking on its analysis of the legal arguments, that it is profoundly sympathetic to Ms. M’s position. The Court fully appreciates that the inability to be able to speak openly about how, as a victim of rape and domestic abuse she was dealt with by the family justice system, compounds the trauma she has suffered, and is experienced as a further means of coercion and control. Ms M clearly has an invaluable contribution to make to current debates about domestic abuse, parental alienation and contact with children within the family justice system. ’ The judge granted the mother’s request to vary the transparency order and allowed her to publish information under an alias about the proceedings, thereby preserving the anonymity of the child and, consequently, the parents. The transparency order says: ‘On the question of publication, and pursuant to the Court’s inherent jurisdiction, I therefore conclude: Permission is granted to Ms M to publish media articles about her experiences of the family court system and the domestic abuse she suffered at the hands of the father, using an alias. Mr F’s application is refused. Permission is granted to Ms M to speak at events facilitated by organisations such as Cafcass, women’s right groups and children’s rights groups, using an alias. Mr F’s application is refused.’ The court had to weigh the child’s right to privacy against the potential harm to the child of being known as the child in these child arrangement order proceedings, against the mother’s rights and reasonable request to inform others about her experience with the court system. The judge agreed to relax the terms of the transparency order because: ‘Ultimately, in my judgment, the greatest protection for C’s Article 8 rights is Ms M herself. She has always sought to exercise her parental responsibility in an entirely child-focused way, such that C is safeguarded and protected. Ms M is clear she will not endanger C’s own interests by risking identification. Given that clear commitment to protecting C’s anonymity, Ms M’s interests and those of C are more easily reconciled. In my judgment, Ms M can be trusted to carefully evaluate those events in which she can safely participate and those events where the risks are unmanageable. I do not consider Ms M would participate in any event where there was a risk her own anonymity or that of C would be compromised. With that safeguard in place to mitigate the risks to C, I am satisfied in balancing the competing Article 10 and Article 8 rights, the balance comes down in favour of publication. In short, Ms M can be trusted to exercise her parental responsibility to uphold and protect C’s rights and interests. In such circumstances, a blanket prohibition would be an unnecessary and disproportionate interference with Ms M’s Convention rights.’ Other family law solicitors can now use the court decision to request a transparency order in situations where a parent wishes to discuss the court proceedings while acting in the best interests of their child. Your court experience As family lawyers, we are acutely aware of the traumatic impact that court hearings and judgments can have. If you are believed, it’s understandable that you want to shout it from the rooftops because you want to highlight what you went through. Discussing your experience can give others the incentive to stand firm and say no to shared parenting or to refrain from contact if they don’t think it is in their child’s best interests. Equally, if a parent has tried to stop contact by making up false allegations, it is equally understandable why the other parent would want to tell their story to give other parents hope. Recounting their judicial experience can highlight the need for additional judicial resources to reduce court delays or provide extra training so that family court professionals understand the importance of questioning one parent’s account rather than accepting it at face value. Whatever your court experience, our family lawyers always advise caution when discussing child arrangement orders or other children's law proceedings. It is easy to type and post online and for your story to be picked up by the media, but you must ask yourself: Is this in the best interests of my child, and will I get in trouble because I haven't applied for a transparency order? Talk to our family law experts. Whether you are at the start of your journey to securing a child arrangement order or towards the end of it, our children law solicitors can help you navigate the complex family law rules to help you achieve the child arrangement order you seek and to ensure you understand and follow the rules on what you are allowed to report with or without a transparency order in place.   If you need help with child arrangement order proceedings, phone Evolve Family Law or complete our online enquiry form.

When private client solicitors talk legal jargon, it can be hard to take in what they are saying. It is tempting to just let their legalese wash over you, but if you are making a new Will with a Will solicitor or debating whether to sign a Power of Attorney, you need to understand what your lawyer is saying to you. In this blog, Will solicitor and legalese interpreter Chris Strogen explains the difference between the Executor of a Will and an Attorney in a Lasting Power of Attorney. For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form. Will or Power of Attorney Do you need a Will or a Lasting Power of Attorney? Our private client solicitors say that, ideally, you need both as the documents are different to one another and serve different purposes. Many people don’t realise that they, and their relatives, need a Will and a Power of Attorney. They think that as they are an Attorney for a parent or grandparent, they don’t need to worry that their relative hasn’t made a Will. That’s not correct. The relative needs a Will and Power of Attorney. Here is how Wills and Powers of Attorney work separately: A Lasting Power of Attorney appoints Attorneys to act for you while you are alive. There are two types of Power of Attorney. The Power of Attorney ends on the death of the person who signed the document granting Power of Attorney A Will sets out how you want your estate administered after your death and says who will receive your estate. An Executor is appointed in your Will to administer the estate and arrange the distribution of money to your beneficiaries in accordance with your Will. A Will has no force or legal effect until the testator or Will maker has died. Therefore, an Executor of a Will has no rights to sort out the Will maker’s financial affairs, even if the Will maker has lost the capacity to make their own financial decisions A Will isn’t an alternative to a Lasting Power of Attorney and nor is a Power of Attorney akin to a Will. Both are necessary tools for an organised life. What happens if there is no Power of Attorney? Firstly, there are two types of Lasting Power of Attorney and they do different tasks. You can choose whether you want one or both types: Health & Welfare Lasting Power of Attorney – this type of Lasting Power of Attorney allows nominated family or friends (called Attorneys) to make decisions about the donor’s medical treatment and care needs if the donor cannot make decisions as they don’t have the capacity to do so Property and Financial Affairs Power of Attorney – this type of Lasting Power of Attorney allows Attorneys to manage the financial affairs of the person signing the LPA A Health & Welfare Lasting Power of Attorney doesn’t come into effect unless the person who signed it has lost the capacity to make their own health or welfare decisions. A Property and Financial Affairs Power of Attorney can come into effect when signed if that is what is required. For example, if a donor wants a relative to handle their financial affairs or a property sale whilst they are living overseas. If a person doesn’t have a Power of Attorney and a doctor assesses them as having lost capacity to make their own decisions then the fact that they are married or have a Will with a named Executor doesn’t give the spouse or the Executor the legal right to act on the person’s behalf even though they have their best interests at heart. Instead, there is a legal limbo situation until an application is made to the Court of Protection for a Deputy to be appointed. The Deputy may be the person’s spouse or Executor in the Will, but most financial institutions won't act unless there is either a registered Lasting Power of Attorney or order from the Court of Protection. Most private client solicitors recommend signing a Lasting Power of Attorney to cover for the hopefully unlikely event of temporarily or permanently losing capacity in an accident or through ill health, such as a stroke or dementia. What happens if you don’t have a Will? If a person dies without a valid Will, it is called dying intestate. The law says that any money and property pass under intestacy rules. The fact that the person had signed a Lasting Power of Attorney giving financial authority to an Attorney is irrelevant as the Power of Attorney ceases to have effect on death. The intestacy rules are very rigid. They say how much of the estate goes to a surviving husband or wife or more distant relatives if there is no spouse or children. This can produce very unfair outcomes when cohabiting partners or stepchildren won't be entitled to receive anything under the intestacy rules and an estranged cousin will inherit the entire estate unless the intestacy rules are challenged by a court application. [related_posts] Should the Attorney and Executor be the same person? A person can be an Attorney and an Executor of a Will but there is no requirement to appoint the same person. Most people prefer to appoint two Attorneys in a Lasting Power of Attorney so there is consultation before important decisions are taken. Most Wills include two Executors as that is necessary if the deceased owned property or if there is a trust because there are minor children. Choosing an Attorney and executor is very much a personal choice. Your choice may depend on the type of Lasting Power of Attorney you are signing. For example, your husband or wife is likely to be your preferred choice of Attorney for a Health & Welfare Lasting Power of Attorney but you may want to appoint your Will solicitor as the Executor of your Will as the solicitor will be handling the administration of your estate and ensuring that assets are sold and money distributed to your loved ones as quickly as possible. Whoever you choose to be your Attorney or Executor it is important to check with them first to ensure they are willing to act as an Attorney or Executor or both. That’s because both roles come with legal responsibilities that won't suit everyone. Making a Power of Attorney or Will Whether you are signing a Power of Attorney or a Will, both types of documents are all about forward thinking and planning. Our experienced Will and Lasting Power of Attorney solicitors can advise you on your choices to help you finalise a Power of Attorney and/or Will that reflects your wishes. For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form.