Family Law Articles & Advice

It may seem a very odd thing to do but, in some personal and financial circumstances, the decision to give away an inheritance is the right thing to do.   Most people assume that if they have the good fortune to inherit something under a loved one’s Will or intestacy provision, they have to accept the legacy. This isn't always the case.   In an ideal world, it should not be necessary to consider giving away a legacy because the loved one would have left a Will, rather than dying intestate, or would have discussed the bequest in the Will and would have updated their Will.   However, what does happen if you receive a gift as part of an inheritance and you decide you do not want or need it? There are a number of circumstances where the beneficiary of a Will may not want to receive their inheritance, for example: They may want to make provision for someone who has been excluded from the Will; or They may want to give their share of the deceased’s estate to a family member who is not as financially well off as they are ; or They may want to equalise the gifts if the testator has favoured them over other beneficiaries; or They may wish to give all of their legacy or part of it to charity; or They may want to make the Will tax efficient.   Deeds of Variation In order to make changes to a Will after the death of the testator, a Deed of Variation should be drawn up.   So that the tax advantages from the Deed of Variation can be obtained, the document has to be signed and executed within two years of the date of death of the testator.   A Deed of Variation can be executed before or after the Grant of Probate or Letters of Administration (if the deceased died intestate without a Will) has been obtained. Any beneficiaries who are affected by change in Wills  must agree and sign a Deed of Variation. Furthermore, all the personal representatives of the estate should also ideally sign the Deed of Variation. [related_posts] Who Can Sign a Deed of Variation? If a beneficiary has capacity to make their own decisions then they have the authority to execute a Deed of Variation. A beneficiary under the age of eighteen cannot sign a Deed of Variation. No one else can sign a Deed of Variation on behalf of a minor child.   How Can a Deed of Variation Reduce Tax? A Deed of Variation may be the answer if a Will has not been drawn properly to obtain the best tax treatment or the tax rules have changed. For example, executing a Deed of Variation may reduce the inheritance tax payable by: Varying the gifts in a Will to leave money to charity. Any gift to charity does not attract an inheritance tax charge. If charities are left at least ten percent of the net estate then the estate can qualify for a reduced rate of inheritance tax of thirty-six percent, instead of forty percent; If a husband or wife died without a Will, with children, the surviving wife, husband or civil partner will receive assets up to £250,000 and half the remainder of the estate. The other half of the estate would pass to the children. If the amount going to the children exceeds £325,000 then this will attract inheritance tax. A Deed of Variation can be signed so the entire estate passes to the surviving spouse or civil partner. If an estate passes to a surviving spouse or civil partner no inheritance tax is payable. The transferable nil-rate band can be utilised on the second death.   It pays to get legal advice on whether a Deed of Variation is a sensible option. Some may think that a Deed is unnecessary but with expert legal advice, it can save on inheritance tax and money to get a Deed of Variation drawn up.   For help preparing a Deed of Variation or drawing up a Will or estate planning please contact our expert family lawyers today

When parents cannot agree over the arrangements for their children after separation or divorce, they do not necessarily need to apply for custody or a child arrangements order. Instead, their legal remedy may be an application under the Children Act for a specific issue order.   What is a Specific Issue Order? A specific issue order is an order made by a judge of the family court. The order decides an issue that is in dispute in connection with any aspect of the exercise of parental responsibility for a child.   It is hard to explain what a specific issue order is and what it is used for without using examples of situations where parents have applied to court for specific issue orders.   Examples of Specific Issue Orders A family court judge can decide on almost any aspect of parental responsibility if a parent applies for a specific issue order.   The most frequent types of specific issue order applications are about: Whether a child should be educated privately or state educated; The specific choice of private school or nursery. To some parents a school’s education and examination record is the key factor in choice of school. However, to the other parent, the distance from home or the quality of pastoral care or the fact that they went to a particular school are the reasons why they are at loggerheads with the other parent over the choice of school; Whether a child should observe a particular religion and attend religious ceremonies or go to a religious school; Whether a child should follow a gluten free or meat free vegan or vegetarian diet ; Whether a child should be baptised or circumcised ; Whether a child should be allowed to change gender; Whether a child should be immunised; Whether a child should be given a new first name or surname ; Whether a child should go to a family event, such as a second wedding or act as bridesmaid or pageboy. There are many other specific issue order topics. That is because the ‘’burning issue’’ in every family or separated family is always different. Therefore specific issue order applications are as individual as the families who struggle to agree on parenting decisions.   How Do You Agree a Specific Issue?     The best children law solicitors will not just give you the option of applying to court for a specific issue order from a family judge. That is because there are alternative options to making an application to court for a specific issue order. For example, you could: Have direct discussions ; with the help of a solicitor in the background; Go to a round table solicitor meeting ; Attend family mediation ; Use family arbitration; Attend family counselling. In appropriate family cases, mediation or counselling sessions can involve the child if the child is old enough to express an opinion and the child’s parents and professionals think that involving the child in the discussion is right for the child. [related_posts] Deciding a Specific Issue Order Application   The way a judge decides a specific issue order application is no different to how a judge decides on a child arrangements order application. That is because the judge has to consider and apply the same welfare criteria to make a decision.   A judge decides a specific issue order application based on what the judge believes is in the child’s best interests. The judge must consider a number of statutory factors (known as the welfare checklist) when making court decisions about children.   The Children Act 1989 welfare checklist lists the factors that the judge considers, including: The ascertainable wishes and feelings of the child concerned, in light of his or her age and understanding; and The child’s physical, emotional and educational needs; and The likely effect on the child of any change in his/her circumstances; and The child’s age, sex, background and any characteristics the court considers relevant; and Any harm which the child has suffered or is at risk of suffering; and How capable each of the parents and any other person in relation to whom the court considers the question to be relevant is of meeting the child’s needs; and The range of powers available to the court. The judge will carry out an assessment, of what they believe to be best for the child after considering the evidence and the welfare checklist.   It is not unusual for parents who are living together or who are separated to fall out over a specific issue relating to the parenting of their child , for example one parent not wanting the child to meet the new partner of their former spouse. There is often no one right or wrong answer when it comes to a specific issue order, as in most cases both parents think their standpoint is in their child’s best interests.   If you cannot reach an agreement over a parenting decision then the best option is to take some legal advice so you know where you stand legally and whether a specific issue order is a reasonable step to take in the interests of your child.   For legal help with any aspect of children law please contact our expert children lawyers today

If your son or daughter is getting divorced then, as a grandparent, it is a traumatic time. You may not agree with your child’s decision to separate from their husband or wife or get on with their new partner. You may not like how your child is being used as a pawn by their warring parents. This blog looks at what rights grandparents have in a divorce.   Grandparents and Children Law Cheshire children law solicitors have seen a marked rise in enquiries from grandparents wanting to know about their right to see their grandchildren following the separation or divorce of their son or daughter.   Children solicitors put the rise in enquiries about grandparent rights down to: Grandparents having a better understanding that they do have some rights from organisations set up to help grandparents and from social media; Grandparents being actively involved in bringing up their grandchildren and not wanting to lose contact or their close bond with their grandchild because of a divorce; Newspaper reports about cases where grandparents have made successful applications to obtain family court orders to enable them to see their grandchildren and maintain their relationship with them.   Grandparent Rights Some grandparents and parents assume that there is a special ‘’grandparent application’’ that a grandparent cam make to secure access to their grandchild. Top Cheshire family law solicitors say that there is no special application available for grandparents.   If a relative of a child wants to see a child and the parent or parents object to contact then the relative (including grandparents) can make an application to the family court under the Children Act 1989.   Normally a grandparent wants an order that they can see their grandchildren on a regular basis. This type of family court order used to be called an access order or contact order. The terminology has changed and if a grandparent wants access to or contact with a grandchild they need to apply to court for permission to apply for a child arrangements order .   When a grandparent finds out that they need to ask the court for permission to apply for a child arrangements order, the court process can seem unnecessarily complicated and cumbersome. After all, a parent or anyone else with parental responsibility for a child does not need to first ask the court if they can apply for an order. However, specialist children solicitors say that grandparents should not be put off from making a court application for a child arrangements order just because they need to ask for permission to apply for an order.   Applying for Permission If a grandparent has had a close relationship with a grandchild and they are being stopped from spending any time with their grandchild then generally the court will grant permission to make the court application for a child arrangements order.   Once permission has been granted to apply for a child arrangements order then the court application will proceed in exactly the same way as a parent applying for contact or an order to see their child. [related_posts] Grandparents and Child Arrangements Orders    When a court is asked to make a child arrangements order it will look at whether or not the court thinks that the order being sought is in the child’s best interests, taking into account a range of factors known as the ‘’welfare checklist’’.   The court will undertake a similar exercise whether a parent, aunt, sibling or grandparent makes an application for a child arrangements order. However, courts do increasingly understand just how important a grandparent is in a child’s life and how vital it is for children to maintain a relationship with their extended family after a separation or divorce.   For legal assistance with grandparent rights please contact our expert children law solicitors today

As leading Cheshire divorce solicitors, we are often asked if there is a simple hack to reduce the stress of a divorce. Many people thought that the government announcement that it intends to introduce ‘’no fault’’ divorce   would result in less stressful divorces but most divorce solicitors say most of the stress of a divorce comes from: Taking the initial decision on whether to separate or not; Thinking about how you will tell the children about a planned separation or the decision to start divorce proceedings ; Reaching an agreement about how much time the children will send in each household ; Breaking the news of your decision to separate to close family or to mutual friends; Worrying about how you will cope financially after a divorce ; that can either be immediate worries or long term concerns about the effect of getting divorced and the impact on your pension and retirement planning; Concerns about whether or not you will need to move out of the family home and, if so, how that will affect the children, for example ease of getting to their current schools or seeing friends.   A good divorce solicitor will tell you that there is no one magic solution to reduce divorce stress, but some simple steps can help:   Take time for yourself If you are facing a separation or divorce, you may be worried about how your children or family will react to the news. Often your wants and needs are low down on your list of priorities. Whilst that is understandable, it is not healthy. Whilst it is not legal advice, most good divorce solicitors would recommend that you take time for yourself, whether that is taking time for a chat with a friend or a trip to the gym.   Acknowledge how you are feeling If you are feeling emotional or you think things feel out of control then speaking to a counsellor or to your doctor about how you are feeling can be a good option.   Limit social media Social media and contact with friends via face book and other social media sites can be a comfort but it can equally be the major cause of divorce stress.  That is because content and messaging, especially with a former partner, can quickly become overwhelming and distract you from the things that you do need to sort out.   Talking to the children Parents are often reluctant to tell their children about a planned separation. That is normally because they want to protect their children for as long as possible. Parents also tend to think that they cannot talk to their children until they themselves know the answers to what the agreed parenting arrangements will be or whether the family home will be sold or not. However, children will pick up on the atmosphere or tensions at home and normally adult stress levels are reduced once children have been told about a planned separation.   Take legal advice A divorce solicitor will be able to reach an agreement over parenting arrangements, custody and access and your financial settlement options. Practical and pragmatic advice taken either before your separation or at an early stage after your separation can help you reduce divorce stress and the likelihood of contested children or financial proceedings. [related_posts] For legal advice on your divorce or dissolution of civil partnership proceedings please contact us.

We all know that children are priceless and that we will do anything for our kids. However when a couple decide to separate or divorce a lot of emotional energy and money can be spent on sorting out who has custody of the children or, for example, if the children should be allowed to  move abroad with one parent or how much access or contact time one parent should enjoy with the children.   Children Court Proceedings and Cost Orders Many parents think that if they get custody of their child (called a child arrangements order ) or get the type of access they asked for or if a judge stops a child moving abroad to live with one parent then as they have ‘’won ‘’ the court case, the court will make a costs order in their favour.   Cheshire children law solicitors will tell you that it is very rare for a court deciding a children case to make an order for costs. The normal costs rule in children law proceedings is that ‘’no order for costs’’ will be made. That means each parent has to pay his or her own legal fees.   The court in children court proceedings does have the power to make costs orders. However, a family judge will only consider making a costs order in cases where the conduct of a party has been reprehensible or unreasonable. That is a pretty high bar. That is why most children law solicitors advise, at the outset of court proceedings, that the parent should assume that they will not get the court to make a costs order in their favour.   Costs Orders and Unreasonable Behaviour A recent example of where the family court was persuaded to make a cost order in child abduction proceedings is the case of Re J (Children).   The background to the court case was that a mother applied for court permission to take her children to Ukraine for the purpose of a holiday. The children did not return to the UK at the end of their holiday. The father started court proceedings for the return of the children and a number of court orders were made. They were not complied with.   The judge made a cost order against the children’s mother and maternal grandfather. This was because the judge thought the mother had duped the father and the court and had never planned to return the children to the UK after the court gave her permission to take the children on holiday.   The maternal family appealed against the cost order but the appeal court decided that as court orders ordering the return of the children to the UK had been flouted it was appropriate to depart from the usual rule in children law proceedings that both parents pay their own legal fees. [related_posts] Children Court Proceedings and Costs Although the father, in the case of Re J, was successful in securing a costs order Cheshire children law solicitors still urge parents contemplating starting court proceedings to go ahead on the basis that the overwhelming likelihood is that each parent will pay their own legal costs.   That is why it is vital that parents choose their children law solicitor with care to make sure that not only is the solicitor an expert in children law but they explain fully the court options and the potential costs involve and provide a transparent price guide .    For assistance with your child custody and contact case please contact us.

It is tempting to answer the question ‘’does length of marriage affect divorce settlement?’’ by saying that ‘’it all depends’’. However, many would say that reply is a typical politicians or lawyer’s answer and, if you are getting divorced, you want a clear answer, not something woolly. The reality though is that the length of a marriage is a relevant factor when the court decides how much a husband and wife should get in a divorce financial settlement. Just how relevant the length of the marriage is depends on the couple’s financial and personal circumstances. The short marriage and the divorce financial settlement Many people assume that if a couple have only been married for a couple of years then the divorcing spouse will not get  spousal maintenance or even a ‘’pay out‘’ or divorce financial settlement but it all depends.   If three couples have each been married for two years the financial settlement will be different for each couple, as highlighted by these three case examples:   Couple 1 Janet and John Janet and John are both high flyers and each owned property before their marriage. They have no children. The short length of their marriage will be highly influential in reaching a financial settlement and clean break financial court order.   Couple 2 Mariah and Nick The couple only got together just before their marriage two years ago and shortly afterwards the twins arrived. Mariah left work to look after them as Nick agreed juggling work and childcare was not in the interests of the twins. Although the couple have only been married for two years, the length of their marriage is not highly relevant, as the court will focus on the children’s needs when determining a fair financial settlement.   Couple 3 Bill and Ben Bill and Ben married two years ago but within a matter of months, Bill realised that he had made a mistake. He has moved out and started divorce proceedings. He has assumed that he will get a clean break financial court order as the couple only lived together for twelve months out of their two-year marriage.   However, before the marriage, Bill and Ben had lived together in a continuous relationship for about fifteen years. The court takes into account pre-marriage cohabitation when looking at the length of the marriage, if it was ‘’seamless living together’’. Although the marriage may have officially only been of two years duration, the family court could assess it as a long relationship of seventeen years when looking at what sort of divorce financial settlement would be fair to both Bill and Ben.   Does the length of marriage affect divorce settlement? The case studies show that when a Whitefield divorce solicitor answers the question ‘’ does the length of a marriage affect divorce settlement ‘’ with a ‘’maybe’’ that whilst it may be a woolly answer it is the correct one until more information is available on a couple’s financial and personal circumstances.   For help with your divorce financial settlement please contact our specialist divorce lawyers. [related_posts]

Most separated and divorced parents find some of the child support service rules relating to the calculation of child maintenance incomprehensible. Child maintenance solicitors have to try to explain how child support is calculated without attempting to try to justify the rules or tribunal decisions.   Child maintenance and shared care Nowadays, in the vast majority of family situations, if you separate or divorce and you have dependent children, the child maintenance service (rather than the family court) will have the jurisdiction to calculate how much child support should be paid and to enforce the assessment.   In order to try to keep child maintenance simple to calculate, some years ago the child maintenance service introduced a new child support formula. How much you pay in child maintenance is calculated as a percentage of your income. That sounds simple enough to most parents but then added child support rules start to creep in , such as if there is a shared or equal parenting arrangement with the children spending the same amount of time with each parent then no child maintenance is payable by either parent .   The rights and wrongs of the shared parenting rule and child maintenance is a moot point. Most child maintenance solicitors say it can produce both fair and unfair results. Take two scenarios: Two parents equally share the care of the children and both earn roughly the same amount – no child maintenance is liable under child maintenance service rules, not because of the earnings of the mother and father are the same but because care of the children is shared; Two parents equally share the care of the children. One is a high earner and the other barely scrapes by on their salary each month. No child maintenance is liable under child maintenance service rules as the parenting is shared. The parent who is on a lower income will not be able to ask for spousal maintenance to help address the income gap in the two households if they were in a cohabiting or unmarried relationship with their ex-partner.   Child maintenance and contact It is not just shared parenting that can produce odd results with child maintenance service assessments. If a parent has overnight contact with their child, the amount they pay in child support under a child maintenance service assessment is reduced. The amount of the reduction depends on the extent of the overnight contact.   This child maintenance service rule can throw up some equally fair and unfair results, depending on whose perspective you look at child support from. Take two scenarios: A mother is the main carer of the children. The father sees the children each night but cannot have the children overnight as he works shifts and his shift patterns mean that the children would have to get up too early. Although the mother earns twice as much as the father and despite his seeing the children each day, he is liable to pay the full child maintenance service assessment with no reduction for his daily contact as he does not have the children overnight; A mother is the main carer of the children and the father has overnight contact on three nights a week. Although the mother still needs to pay her mortgage and pay for school clothes and holidays, the amount of her child support is reduced significantly because of the father’s overnight staying contact. The mother earns half the amount of the father. That scenario may seem unfair to the mother but imagine if the mother earnt double the father’s income. The father would still have to pay the same amount in child support and pay for his children’s upkeep on three nights a week. However, the father would pay nothing in child maintenance if care were shared equally. The difference a day makes in child contact can add up to hundreds of pounds a month in child maintenance. [related_posts] Child maintenance rules The child maintenance scenarios are just a few examples of why child custody solicitors and child maintenance solicitors do not try to justify the child maintenance service rules.   The best advice , if you are splitting up from a partner and have children together , is to try and reach an agreement over who gets the house , who gets the pension and how the children are financially supported in one package so the fairness of the overall financial settlement can be looked at.   For information about child maintenance and contact and financial settlements please contact our expert children law solicitors today. Appointments are available online or in Whitefield, Manchester and Cheshire.    

Living with a husband or wife who has dementia can be more than some spouses can cope with, especially when there were marital difficulties for a long time prior to the dementia diagnosis. Although there is an increasing amount of support available and understanding of the impact of a dementia diagnosis on the family, for some married couples the right option is divorce. That is particularly the case when the breakdown of the marriage is not thought to be due to the personality changes that sometimes occur following the onset of dementia. Divorce proceedings and dementia Whether the dementia diagnosis has played any part in the reasons for the marriage breakdown there are likely to be feelings of guilt about the divorce and worry about how a spouse who is ill will face the future. A diagnosis of early onset dementia can be particularly cruel when a husband or wife is relatively young. However, a spouse can find the situation at home equally unbearable. As a Whitefield divorce solicitor, I have advised a number of spouses who have contemplated separating or divorcing after there has been a diagnosis of dementia. Many are loath to take legal advice, as they fear judgement by family, a solicitor or the court. It is an impossible situation to be in and I recommend that legal advice is taken so that you know what your options are. Financial settlement and dementia If you decide to separate, it is important that you get specialist legal advice. This is because in some financial and pension circumstances it will be in both of your interests not to get divorced. In other financial and pension circumstances it will be important to get divorced, rather than just live apart, so the court can make a pension sharing order. When you are thinking about a separation or a divorce most people do not want to base their decision on whether to get divorced or not on financial considerations but the impact of not getting expert advice can have a massive impact on your retirement and personal and financial circumstances. Many people worry about how a dementia diagnosis will affect a financial settlement. The court takes a number of factors into account when deciding what a fair and reasonable financial settlement is. One of those factors is the health of the husband and wife. A dementia diagnosis means that a spouse’s needs will be carefully considered by the court. However, the court will aim to make a financial court order that meets the needs of both husband and wife. Dementia and taking part in divorce and financial settlement court proceedings People also worry about whether a spouse will understand divorce and financial proceedings and think that they cannot get divorced if their spouse cannot play a part in court proceedings and instruct a solicitor. If a spouse does not have capacity to instruct a solicitor or make decisions you can still get divorced and reach a financial settlement. That is because court rules provide for your spouse to be represented in the court proceedings and their interests protected. [related_posts] How can Evolve Family Law help? The decision to separate or divorce is never easy. It is even harder when a spouse is ill. In my experience as a Whitefield divorce solicitor, it is possible to divorce with dignity after a diagnosis of dementia as in many situations, whilst a spouse cannot cope sharing a home, they want their spouse to be provided for. The first step is to look into your options so you can make an informed decision about what is right for you. For advice about separation or divorce or financial settlement options please contact us.