For those who have decided to separate or divorce, either because of COVID-19 related pressures or the global pandemic has reinforced the decision to go your separate ways, the next step is for one of you to move out of the family home. You should not permanently leave the family home without first taking legal advice. However, as Manchester and Cheshire divorce solicitors we are receiving an increasing number of enquiries where neither the husband nor wife can easily move out of the family home. Enquirers want to know if they can be legally separated and live in the same house as their estranged spouse.
Manchester and Cheshire Divorce Solicitors
Evolve Family Law can help you with all aspects of family law from your separation to divorce proceedings, agreeing child custody and contact arrangements and financial settlements to representation in financial and children law proceedings. For help with your family and private client law needs call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form.
Evolve Family Law offices are in Whitefield, North Manchester and Holmes Chapel, Cheshire but we also offer remote meetings by telephone appointment or video call.
What is a legal separation?
A legal separation is where a husband and wife obtain a decree of judicial separation from the family court. If you haven’t heard of judicial separation it isn’t surprising as applications for judicial separation are rare because:
If you obtain a judicial separation you will still need to get divorced at a later stage, for example, if you want to remarry or if you want a clean break financial court order preventing any further financial claims between husband and wife.
You don’t need a legal separation for official purposes. You can just tell agencies, such as the Inland Revenue or the Local Authority, that you are separated.
Do I need a legal separation?
People often assume that they need a legal separation or judicial separation decree, but they don’t unless they have a religious or cultural objection to a divorce and want to formalise their separation. If you plan to get divorced later, you don’t need a judicial separation first as you can sort out your financial affairs by signing a separation agreement.
Can you separate and live in the same house?
You can separate or even divorce and still live in the same house. Some couples think that if they continue to live together, they can't get divorced but that isn’t correct. Under current English divorce law, you can get divorced if you have lived ‘separate and apart’ for two years provided your husband or wife consents to the divorce. It is best to take some legal advice about the grounds for divorce proceedings as you may not need to wait two years before being able to start divorce proceedings.
Living separate and apart in the same household, for the purposes of divorce proceedings, means that there must be a degree of separation between husband and wife. For example, you can't cook for one another or do the other person’s laundry or ironing or shopping.
Separating and your spouse won't leave the family home.
If you have taken the decision to separate and your husband or wife won't leave the family home then if things become impossible in the one house there are options, such as:
An application for an injunction order – an occupation order can give you the right to occupy the family home to the exclusion of your partner until long term ownership or sale of the property is determined by agreement between you or by the court in divorce and financial settlement proceedings.
An application for spousal maintenance so that you can afford to leave the family home and rent somewhere until long term ownership or sale of the family home is decided. It is best to take specialist legal advice from a divorce solicitor before leaving the family home and moving into rented accommodation.
Separating and can't sell the family home.
Most people would agree that it is a tricky housing market so whilst you may have decided to separate or divorce you may not be able to sell the family home. You can be separated or divorced and still be living at the family home though for some it won't be a very comfortable experience. Even in the best situations where you are splitting up amicably it can still feel as if you are in limbo with your life suspended until you can achieve the sale of the family home.
One thing that can reduce the stress of waiting for the sale of the family home is to have a financial agreement in place so you know who will get what when the property does sell. Although you may have concerns about having to drop the sale price on the family home, a fair financial settlement can still be reached if you don’t agree to accept a fixed amount from the sale proceeds but instead you each agree to receive a percentage of the net proceeds of sale. That way you are both protected, whether house values move up or down.
In divorce proceedings a financial settlement can be reached by agreement or after financial settlement proceedings but in either scenario you should obtain a financial court order that records how all your assets will be divided, including the equity in the family home, savings, and pension provision.
If you are separated but don’t want to start divorce proceedings yet it is still best to record the financial settlement that you have agreed to avoid one of you changing your mind about how much you should get from the sale proceeds when you have found a buyer for the house. A document, called a separation agreement, should be prepared to formalise the agreement reached.Manchester and Cheshire divorce solicitors
The team of specialist divorce solicitors at Evolve Family Law can help you with your separation and divorce proceedings, as well as child custody and contact and your financial settlement. For advice on your family and private client law needs call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form.
The Evolve Family Law offices are in Whitefield, North Manchester and Holmes Chapel, Cheshire but we also offer remote meetings by appointment by video call or telephone.Latest From Our Wills & Probate Blog:
When you have suffered a bereavement, it can be hard to navigate what you need to do to sort out a loved one’s estate and their financial affairs. In this article we look at what a grant of probate is and whether you will need to obtain one.Manchester and Cheshire Will and probate solicitors
Evolve Family Law specialise in private client law advice. For advice about probate or making a new Will call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Evolve Family Law have offices in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and meetings are available by telephone appointment or video call.What is probate?
Probate is the legal process of administering the estate of a deceased person so that assets are gathered in, any debts paid and the estate distributed. If the deceased left a valid Will their estate will be distributed in accordance with the terms of the Will. If the deceased didn’t make a Will their estate will be distributed in accordance with intestacy rules. If there is an intestacy, the legal process of administering the estate is called ‘letters of administration’.
Who deals with probate?
The task of an executor named in a Will is to deal with probate. Most executors don’t deal with the probate personally but instead ask a probate solicitor to deal with the legal work for them. As an executor they retain overall control of the administration of the estate and give instructions to the solicitor.
If the deceased died without making a Will, they died ‘intestate’ and the intestacy rules say who can apply to administer the estate and who will receive the estate. An administrator can ask a probate solicitor to administer the estate on their behalf.
What is a grant of probate?
A grant of probate is the legal document that gives the executor of a Will the legal authority to act. Without a grant of probate most third parties won't act on the instructions of an executor as they need evidence that the deceased has died and that the person contacting them is the authorised executor or administrator of the estate.
How do you apply for a grant of probate?
In most situations the grant of probate follows a set path, namely:
The executor, or the probate solicitor instructed by them, gets information about the estate, including the assets and any debts
The grant of representation is applied for
An inheritance tax form is completed and, if necessary, any IHT can be paid
The grant of probate is received
The assets of the estate are gathered in (for example, shares or property may be sold depending on the terms of the Will)
Any debts payable by the estate are discharged (for example, outstanding care home fees or utility bills on a property)
The estate is then distributed in accordance with the Will or intestacy rules. Estate accounts are prepared to show the monies and assets received, debts and taxes paid and how the estate was distributed.
Some grants of probate are straightforward but others can be complicated. For example:
If the named executors in the Will do not get on
If the beneficiaries of the Will are potentially going to challenge the speed or work of the executors in securing the grant of probate and distributing the estate
If the validity of the Will is challenged
If there is a dispute over the Will and questions over whether it made fair financial provision for a dependant of the deceased
If there are likely to be complicated inheritance tax, CGT, trust or sale issues because of the size of the estate or the nature of the assets. For example, if the deceased died within a short time of making lifetime gifts or where the estate consists of a large buy to let property portfolio or some assets are overseas, such as a holiday home
The family want to change the Will provisions through a deed of variation.
Who pays for probate?
Some people think that if they are named as an executor in a Will that they have to undertake the obtaining of the grant of probate personally. That isn’t normally the case as Wills enable an executor to instruct a probate solicitor. The costs of the grant of probate and the probate solicitor come out of the estate before it is distributed to the beneficiaries. The probate solicitors’ cost will depend on the size and complexity of the estate. Fixed fee or hourly cost quotes should be made available. At Evolve Family Law we believe it is very important that fees are transparent and publish a price guide on our website. The guide says for work up to and including grant of probate, for a non-taxable estate, our probate solicitor fees are £1060 inclusive of vat. For a bespoke quote please call us and we can look at the work you would like us to do.
Is a grant of probate necessary?
In some family situations, an executor or a loved one or beneficiary will question if a grant of probate is necessary. Probate solicitors say this question is totally understandable as no one wants to go through unnecessary processes. In situations where the estate is very small a grant of probate may not be needed. Whether you need a grant of probate or not doesn’t depend on whether there is a Will or not or whether a husband or wife is inheriting the entire estate, but rather depends on the size and nature of the assets in the estate. If there is a property to sell, a grant of probate will always be required.
If you aren’t sure whether a grant of probate will be needed or not our Manchester and Cheshire probate solicitors are always happy to advise you on if a grant of probate is needed and, if so, the likely probate solicitors’ fees for securing probate for the estate.Manchester and Cheshire probate and Will solicitors
Evolve Family Law specialise in private client law advice. For advice about a grant of probate or your responsibilities as an executor or whether you can challenge a Will call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Evolve Family Law have offices located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and offer meetings by telephone appointment or video call.Latest From Our Wills & Probate Blog: