What is a Mesher Order?
In this article, our family law solicitors answer your questions on what a mesher order is and explain how the order works.
If you are splitting up from your husband or wife and need advice on reaching a divorce financial settlement or need your financial agreement converted into a court order our Northwest family lawyers can help.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
What is a mesher order?
A mesher order is one way a family judge can deal with a family home when a couple split up. Alternative orders include an order that the family home is sold or transferred into the sole name of the husband or wife.
A mesher order is best described as an order for the deferred sale of the family home but family law solicitors call this type of order a ‘mesher’ as the order was first made in a case involving Mr and Mrs Mesher.
When the property is sold the financial court order will set out how the equity in the property is to be shared between the former husband and wife. One ex-spouse may get a larger percentage than the other so they can rehouse themselves or an ex-spouse may get less than 50% of the equity because they kept their pension or the family savings at the time of the divorce proceedings.
How does a mesher order work?
A mesher or deferred sale order works by delaying the sale of the family home until a specified date or trigger point occurs. Until the trigger point, one former spouse can live in the house to the exclusion of the other, even though both are still legal owners.
Normally a mesher order is made by the court when a couple has children and there is not enough equity in the family home for the property to be sold and the equity to be split so both the husband and wife can afford to buy new properties. A mesher may be necessary if one spouse cannot rehouse themselves because they have no or limited mortgage capacity and housing is a priority for them as they are caring for the children.
A mesher order is normally only appropriate where the spouse staying in the family home cannot raise money through a mortgage to rehouse or remortgage to pay off the other spouse’s share of the equity in the family home and the spouse cannot get the mortgage company to agree to transfer the mortgage on the family home from joint names to their sole name.
A mesher order maintains property ownership and financial links between a separated couple. Even if no spousal maintenance is payable, they continue to be financially linked through the joint mortgage. The mesher order can say who is responsible for the mortgage payments but if the payer defaults on the mortgage the credit rating of all those named on the mortgage will be affected.
What are the trigger points for a mesher order?
You can agree on the trigger points with your ex-spouse if you negotiate an agreed financial settlement or the court can decide on the triggers if it makes an order for a deferred sale after a court hearing.
Some of the usual trigger points are:
The youngest child finishing their secondary education
The re-marriage or cohabitation of the spouse living in the property with the children. Cohabitation is normally defined as living with an unmarried partner for a specified period, such as three or six months
The children no longer living with the spouse who has the right to stay in the family home. For example, if the children are older teens and vote with their feet to live elsewhere or if the court makes a child arrangement order
The spouse who occupies the property leaving it. For example, because they decide to move elsewhere
The spouse who occupies the property passes away
If you are negotiating a mesher order through solicitor negotiations or family mediation you can ensure that the trigger dates work for your family circumstances.
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Is a mesher order a good idea?
A mesher has good and bad points. The good points are:
The spouse living in the property has a secure home for the children and is not at risk of having to keep moving the children between different rental properties
Keeps the mortgage in situations where the mortgage is on favourable terms or neither spouse would qualify for another mortgage
Means the ex-husband and ex-wife remain on the property ladder and they may both have enough to re-house once one of the triggering events occurs
Some of the negative things about mesher orders are:
The spouse in occupation may feel unsettled knowing that they will have to sell the property when a trigger point occurs. This may make them reluctant to invest in improving the property knowing that their ex-partner will get a share of the equity
The former spouses are financially linked to one another by having a joint mortgage. If the spouse in occupation does not pay the mortgage this will affect the credit rating of both spouses
The spouse not living at the family home may not be able to get another mortgage while their name remains on the joint mortgage on the family home and they will not be able to use their share of the equity in the family home to use as a deposit to rehouse themselves
Family law solicitors emphasise the importance of taking specialist advice before agreeing to a mesher order so you can fully weigh up the advantages and disadvantages of a deferred sale.
Applying for a mesher order
If you and your former spouse agree that the children should stay in the family home then your family lawyer can draw up an agreed court order for approval by a family court judge. If you can't reach a financial settlement either of you can apply for a financial court order leaving the judge to decide if a mesher order is the most appropriate solution for your circumstances.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
Oct 08, 2024
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6 minute read
Can my Ex-wife Make a Claim on my Estate?
Potentially, your ex-wife could claim against your estate. That’s why when you are separating or getting divorced you need joined-up advice from a family lawyer and a Will solicitor.
In this article, the estate planning lawyers at Evolve Family Law answer your questions on what happens to your estate if you pass away leaving an ex-wife.
For expert advice call our team of specialist divorce and estate planning lawyers or complete our online enquiry form.
Ex-wife's claims against an estate
An ex-wife's claims will depend, to a large extent, on whether you are divorced or not. No-fault divorce proceedings are not finalised until your final order of divorce is pronounced. If you divorced before the divorce law reform you may have received a decree absolute from the court ending your marriage.
If you have not completed the divorce process you may still be married at the date of death. Therefore, your estranged wife is your legal next of kin. However, you may have made a new Will when you separated so she is no longer a beneficiary of your estate.
Your ex-wife can claim your estate or a share of it even if:
Your divorce has been finalised
You have a separation agreement
You have a financial court order
You are not paying your ex-wife spousal maintenance
You have remarried
You have children
You have made a Will excluding your former wife
The only circumstances when an ex-wife cannot bring a claim against your estate is when the court has made a clean break financial court order preventing any further monetary claims by her or your ex-wife has remarried.
Do you have a clean break financial court order?
If you got divorced some years ago you may not be certain if you secured a clean break financial court order. If you are unsure, you should ask one of our specialist family lawyers to review the order for you. They can look at the technical wording and advise you.
If you do not have a financial court order our family lawyers can help you obtain a financial court order to give you peace of mind. Your Will solicitor can then prepare a bespoke Will for you, confident in the knowledge that your ex-wife cannot make a claim or the risks of her doing so are reduced.
If you have a financial court order, but it is not a clean break order, our family law solicitors can advise on whether it would be sensible to ask the court to vary the order to make it a clean break order. Their advice will depend on your circumstances and those of your ex-wife.
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Does making a new Will prevent my ex-wife from making a claim on my estate?
If our Will solicitors make a new Will for you then an ex-wife could still bring a claim against your estate if there is no clean break order in place from the family court. A Will solicitor can advise on the prospects of an ex-wife successfully challenging your Will after your death. There are ways that you can minimise the risks of an estate claim or reduce the amount payable.
The law on your ex-wife making a claim on your estate
The law on people making a claim against your estate if you die without making a Will (called dying intestate) or die with a valid Will is contained in the Inheritance (Provision for Family and Dependents) Act 1975.
An ex-wife can claim against your estate if the intestacy rules or your Will does not make reasonable financial provision for her.
Reasonable financial provision depends on her and your circumstances. For example, your former spouse may rely on your spousal maintenance that ends on your death. Alternatively, your estate may be modest and you may have dependent children from your first and second marriages who need providing for.
The 1975 Act says that all the following people could bring a claim against your estate:
Your husband, wife or civil partner – this includes someone who is separated but not divorced from you
A former husband, an ex-wife or a former civil partner if there is no clean break order in place and if your ex-spouse or civil partner has not remarried
A child or someone treated as a child by you
Someone who was living with you for 2 years before your death
Anyone who immediately before your death was financially dependent on you. For example, an unmarried partner
Worst case scenario, a current cohabitee, your children and an ex-wife could all be disputing who gets your estate. This level of conflict could be stopped or reduced with a Will prepared by a specialist estate planning solicitor.
For expert advice call our team of specialist divorce and estate planning lawyers or complete our online enquiry form.
Robin Charrot
Oct 01, 2024
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4 minute read
Clean Break Orders
Divorce
Divorce & Financial Disclosure
Financial Orders
Financial Settlement
Post Nuptial Agreements
Pre Nuptial Agreements
How to Divorce Your Wife and Keep Everything
Our family law solicitors are asked if it is possible to divorce your wife and keep everything. In this blog, we explain your options if you want to keep all the assets after your separation.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Can a husband divorce his wife and keep everything?
It is technically possible for a husband to divorce his wife and keep everything but most divorce solicitors will tell you that it is an unlikely outcome in financial settlement negotiations or financial court proceedings unless your circumstances are unusual.
If you are a husband your best bet to keep all your assets after a separation or divorce is to sign a prenuptial agreement before your marriage or a postnuptial agreement after your marriage. Even if a wife has signed a prenuptial or postnuptial agreement the document is not legally binding on a spouse under English law. The agreement will carry weight provided both husband and wife took independent legal advice on the contents of the agreement and there was no coercion to sign the document and completion of the paperwork only took place after husband and wife disclosed their assets.
If these safeguards were not put in place the court may disregard the terms of the prenuptial or postnuptial agreement. Even if you ticked all these safeguarding boxes, the court may conclude that if the wife gets nothing, as you are keeping everything, the outcome is unfair because the wife’s needs are not being met. The court may therefore disregard the terms of the agreement.
A prenuptial agreement solicitor will normally recommend that your prenuptial agreement or postnuptial agreement does not allow you to keep everything as it is better to have an agreement that works and therefore one that gives your wife a modest financial settlement that meets her financial needs rather than sign a prenup that says you will get to keep everything if you divorce but the prenup then doesn’t work in practice if you split up from your wife.
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If my wife agrees that I will keep everything, can I get a financial court order?
The court can be asked to make an agreed financial consent order. The agreed order is lodged by your divorce solicitor after your conditional order of divorce has been pronounced. The order must be accompanied by a standard court form (called a statement of financial information) summarising the details of your marriage and your personal and financial circumstances. If this prescribed form is not completed the court will not approve your financial court order.
If, for any reason, the figures provided in the form are wrong (for example you say your company shares in a family business are worth £10,000 rather than a more realistic 1 million) your wife will be able to reopen her financial claim at a later date because of inaccurate financial disclosure that led to the financial court order being made. Your ex-wife could ask the court to make another financial court order giving her a reasonable share of the assets. Therefore, inaccurately valuing assets on the form does not give you the financial security you need. If the shares in your family business continue to increase in value, then by the date of your wife's further financial settlement application, your company shares could be worth 10 million. Providing inaccurate information in the court paperwork could cost you a lot of money if your ex-wife is advised to reopen her financial claims.
If you complete the prescribed form to accompany your application for an agreed financial court order and include accurate asset figures, and the document shows you will be keeping everything and your wife will be getting nothing, the judge may refuse to make the agreed order. The judge may ask questions in an email or letter to your divorce solicitors or may invite you and your wife and your family lawyers to a court hearing so the judge can understand the rationale behind the making of the financial court order.
You may think that the answer to keeping everything lies in making a deal with your wife that she doesn’t get anything but neither of you ask the court to make a financial court order. However, you then run the risk of your ex-wife deciding to apply for a financial court order at a later date and asking for money or property or a share of your pension. This could work against you if your property or other assets have gone up in value from the date you agreed with your wife that she would walk away with nothing whilst you keep everything.
What should you do if you want to keep everything after your divorce?
If you want to leave your wife with nothing the best option is to talk to a family law solicitor about whether you can achieve this and how to do so. Your family lawyer may tell you that it will be an uphill task and that you may be better off focussing on a lowball offer that meets your wife's reasonable needs but is pitched at a level where you can get a clean break financial court order from the family court.
A clean break court order means your wife can't come back later on and ask for more spousal maintenance or a share of your pension or equity in your house. That’s why it’s crucial to secure a court order to give you future financial security so you can plan for your future and not have concerns that your wife years later could come back and ask for money because she had nothing at the time of your separation.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
Sep 23, 2024
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5 minute read
Tips on Dealing With an Unreasonable Ex in Your Divorce
Do you need help with your divorce or in sorting out a financial settlement or child residence and contact arrangements for your children? In an ideal world, you would reach an agreement with your ex but that may not be possible if they are being unreasonable.
Our family law solicitors offer some tips on how to handle an unreasonable ex in a divorce.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Divorce proceedings and unreasonable behaviour
You used to have to say that an ex had behaved unreasonably to help you secure a divorce. That is no longer necessary as the government has introduced no-fault divorce proceedings so all you now need to say is that your marriage has broken down irretrievably without needing to explain why.
Although you no longer need to prove unreasonable behaviour to get a divorce the issue of an ex behaving unreasonably is still highly relevant.
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Is your ex behaving unreasonably?
It is worth asking yourself if your ex is behaving unreasonably as sometimes you can lose perspective. That may be because you have been subject to so much emotional abuse during your relationship that you think that your ex’s behaviour is normal rather than coercive and controlling. Alternatively, you may want to stay in the family home and can't see your ex’s point of view that if you don’t sell the property and split the equity, they won't be able to afford anywhere to live or their argument that it would therefore be reasonable for you to downsize.
A family law solicitor can help you look at whether your ex’s behaviour is acceptable or not. If your ex has a reasonable case to put forward then there should be some prospect of your being able to reach a parenting agreement or financial settlement through solicitor negotiation or family mediation.
Saying what behaviour is unreasonable or not is always difficult as so much depends on context. A spouse leaving the family home and disappearing without explanation and not sorting out child contact seems unreasonable but may be wholly justified if the spouse is fleeing domestic violence and needs to get themselves and the children to a place of safety and secure an injunction order before they can even consider if contact can be managed safely.
Examples of unreasonable behaviour by an ex
Our family law solicitors come across many examples of unreasonable behaviour when assisting with divorce, children law or financial settlement negotiations or proceedings, such as:
Complete refusal to provide financial disclosure so your only option is to start financial proceedings and get orders for financial disclosure because you can't reach a fair financial settlement unless you know the extent of your ex’s assets and income
An ex-partner transferring assets to their parents or siblings to try and keep the assets out of the financial settlement
Refusing to agree to any contact with the children without any good grounds to stop or restrict contact and when the children are keen to see you with your ex knowing that it will take you a while to get a child arrangement order
Refusing to return the acknowledgement form in no-fault divorce proceedings – you can still get divorced but it takes a bit longer
After the court has made an order for the sale of the family home refusing to agree to viewings or being unwilling to listen to advice from the estate agent about the sale price. You can still get the family home sold but you may need to apply back to court for another order to implement the sale and to ask the court to order that your ex pays the extra costs associated with that hearing
Tips on dealing with an unreasonable ex during your divorce
The first advice on dealing with an unreasonable ex is to privately acknowledge to yourself that your ex’s unreasonable behaviour just confirms that separation and divorce are the right options for you. Our other tips are:
Take advice and don’t accept unreasonable behaviour by your ex as ‘just your ex’ and how they behave
Get your family law solicitor to write to your ex and explain the consequences of their behaviour. For example, transferring assets to third parties will result in a freezing injunction order application and you asking the court to order that your ex pays the costs of the injunction application and make adverse inferences in the financial settlement proceedings about his actions and financial nondisclosure
Make sure you get the support you need. That could be from family, friends or a counsellor
Take a long-term view on dealing with your ex as their game plan may be to behave so badly that you are deterred from applying for a child arrangement order as you think it will be pointless or to make you think that you may as well accept the financial settlement they are offering as the ex is being so difficult about financial disclosure
Think about your children- if you cannot battle on for yourself then we recommend that you do so for your children as they will be the ones affected by the parenting arrangements or by an unfair financial settlement that means you can't support them in the way you should have been able to do so
At some point, you will either need to reach an agreement or secure a court order but your ex’s unreasonable behaviour should not dictate the agreement or orders made.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Louise Halford
Sep 02, 2024
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5 minute read
Divorce and Neurodiversity
Getting divorced with neurodiversity or divorcing a spouse with neurodiversity brings special challenges.
With one in seven people in the UK diagnosed as being neurodiverse, neurodiversity is something that our family law solicitors have experience in when helping couples get divorced and when reaching financial settlements and parenting arrangements.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Is neurodiversity relevant to your divorce?
Nowadays couples in England can get a no-fault divorce. There is no need to blame your husband or wife for the marriage breakdown and certainly no need to list examples of your spouse’s unreasonable behaviour in the divorce application.
Although no-fault divorce proceedings try to take the conflict out of the divorce process, divorce is still a stressful and emotional experience for anyone going through it. Some quickie online divorce websites will minimise that aspect of the divorce by telling you that a no-fault divorce means you don’t need to go to a court hearing to get your final order of divorce. That’s true but it is also equally true that divorce can be a very hurtful experience, whether you are neurodiverse or not.
If the reason you are splitting up is down to your neurodiversity, or your partners, it is worth looking at whether couple or individual counselling would help you. Individual counselling can help a neurodiverse person but it can help their partner learn to come to terms with their spouse’s diagnosis and how neurodiversity affects them or how to find coping strategies.
If you decide that you want to go ahead with your separation and divorce then a spouse’s neurodiversity may also have an impact on any financial settlement negotiations or parenting arrangements. That’s why it is best to be upfront with your family law solicitor and tell them about the diagnosis of neurodiversity and how it affects family life. Without that information, your family law solicitor may not understand why negotiations are not working or why you are not prepared to agree to a financial settlement or proposed parenting arrangement.
How does neurodiversity affect family law negotiations and proceedings?
Neurodiversity is a wide-ranging concept covering conditions such as ADHD, being on the autistic spectrum, dyslexia or having OCD. All these conditions affect people differently.
For example, a parent with OCD may have a cleaning compulsion that was effectively managed whilst the family lived together in order to reduce the impact on the children but the other parent is now concerned about the neurodiverse parent having overnight contact and the child becoming increasingly involved in the parent’s cleaning rituals. The concern of the non-neurodiverse parent may be shared by the neurodiverse parent but their separation has led to a breakdown in communication or a willingness to find a solution that allows both parents to enjoy spending time with their child.
For example, a wife with ADHD may be anxious about going to family mediation as she thinks that she will be overwhelmed by the length of the session and unable to cope.
For example, a husband may be embarrassed to mention his severe dyslexia meaning his family law solicitors don’t realise that he is struggling to digest all the paperwork they have sent him to review or why he is so worried about his ability to get another job following a redundancy.
Does the family court take neurodiversity into account?
If it is relevant, the court will take neurodiversity into account in either child arrangement order applications or in financial settlement court proceedings.
Take the example of a parent with OCD. If their cleaning compulsion extends to cleaning their hands with bleach then there could be a concern about the parent’s ability to care for their child during contact, especially if the parent’s hand cleaning compulsion extends to the child. That doesn’t mean that the court will say that there should be no contact but they will look at ways that the relationship between parent and child can thrive whilst keeping the child safe from any accidental physical or emotional harm.
In financial settlement proceedings, a spouse’s ADHD may need to be considered when deciding on the appropriate financial court order to make. For example, the diagnosis of ADHD and how the condition affects the husband or wife may affect their earnings capacity and the need for a spousal maintenance order. The court can consider the impact of ADHD on the one spouse because the court makes financial court orders after assessing several criteria, including the needs of both parties to the marriage, their health and respective earnings capacities.
Next steps
If you want to find out more about how our family law solicitors can support you through your separation and divorce, we offer a fixed fee initial consultation. In this first meeting, we can discuss the legal and practical aspects of your separation and assess the best way forward for you.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
Aug 26, 2024
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5 minute read
Divorce, Property Law and Deeds of Trust
As divorce solicitors, we are sometimes told by a husband or wife that there is a property deed of trust that sorts out ownership of the family home. The relevance of a deed of trust in relationship breakdown and divorce can be a bit complicated.
Our divorce solicitors can advise you if you are a husband or wife looking for financial settlement advice or if you are a parent who contributed towards the deposit on your child’s family home but the child is now separating or getting divorced.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Who owns the family home?
A divorce solicitor can check who legally owns the family home by obtaining what are called office copy entries from the land registry.
The office copy entries say who is the legal owner of the family home. Ownership could be sole or joint.
When a property is jointly owned the owners could be the husband and wife as joint tenants or tenants in common or they could have agreed to a parent being a co-owner if the parent or parents helped with the deposit.
In some cases, joint owners will enter a deed of trust to set out how the property is owned and how the net proceeds of the sale will be split if the family home is sold.
In other cases, ownership of the family home is a bit more complicated. The legal owners could be the husband and wife but:
A father or mother lent money towards the house deposit or paid for renovations and protected the borrowing with a loan agreement or
A father or mother agreed that their child and spouse would be the legal owners of the property but they would have a beneficial interest in the property to reflect their deposit contribution, protected by a deed of trust
Are you in an unmarried relationship or married?
If a couple has a deed of trust that sets out the legal or beneficial ownership of the family home between them then the status of the deed of trust on relationship breakdown depends on whether they are living together in a cohabiting relationship or married.
If you are unmarried
If the couple is in an unmarried relationship the deed of trust is very important as the court will decide property ownership using property laws rather than assessing the needs of the husband or wife or considering fairness.
If you are unmarried but have a dependent child you may be able to make a claim for housing under the Children Act 1989 but that type of claim does not give you extra property rights over the family home.
If you are married
If the couple is married the court will look at a range of factors to decide on an appropriate financial settlement and financial court order.
The court has the power to order the sale or transfer of the family home despite the terms of the deed of trust. The court will make its decision after assessing the factors contained in Section 25 of the Matrimonial Causes Act. These include the needs of any children as well as both parties’ housing and other needs and their ages, health and financial and other contributions.
If you are married, the relevance of your deed of trust will depend on factors such as:
Did you sign the deed of trust before you got married and has a lot changed since then? For example, the arrival of children or a 20-year marriage
Did you sign a prenuptial agreement or a postnuptial agreement? Is the agreement consistent with the deed? Did you both get advice and provide financial disclosure when you entered the prenuptial agreement or postnuptial agreement? If so, the family court will start from the premise that the agreement should be upheld in full if the terms of the agreement are fair
Was the home owned by one of you before the relationship started? For example, was it inherited? This may be relevant in a short marriage without children
What are your respective needs and can they be met whilst respecting the contents of the deed of trust?
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If parents entered a deed of trust
If parents or in-laws entered a deed of trust as joint legal or joint beneficial owners of the family home as they contributed toward the deposit they can ask to be joined as parties to a financial court application between a husband and wife. They are called intervenors in the financial settlement application.
Parents may not need to intervene in the financial court application between their son or daughter and their spouse if the married couple agrees that the parents are entitled to what is said in the deed of trust. The divorce court can then decide what should happen to the rest of the equity in the family home using the factors in Section 25 of the Matrimonial Causes Act.
Representing husbands, wives and intervenors
At Evolve Family Law, we can represent you in negotiations and in property or financial court proceedings if you are unmarried or married and if you are a parent who contributed towards their child’s family home and signed a deed of trust.
We have substantial experience in divorce, property law and deeds of trust.
In an April 2024 Trustpilot review client Chris wrote:
I used Robin Charrot to help in a family member's divorce proceedings and a deed of trust that had been written. He was extremely helpful and gave very good guidance on how my particular problem could be resolved. He got back to all emails very quickly and compared to lawyers in London his fees were very reasonable. The support staff I dealt were very efficient and I would highly recommend the firm.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
Aug 12, 2024
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5 minute read
Reaching an Agreement When You Separate or Divorce
Most people realise that there are often no winners in a family law dispute. That is why it is so important to try to reach an agreement when you separate or divorce.
In this blog, our family law solicitors outline the changes to the Family Procedure Rules (FPR) and explain how the rule change may affect whether you make an application to the court to resolve your family law dispute or choose a non-court based option to help you reach an agreement.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
The Family Procedure Rules
The Family Procedure Rules (FPR) set out the rules relating to making a family law court application. They must be followed by family law solicitors and barristers as well as litigants in person, professional experts, CAFCASS officers and the family law judge.
On 29 April 2024, the FPR was changed. The reason for the change was to encourage non-court dispute resolution to reach a family law agreement over your financial settlement or child custody or contact dispute.
The FPRs already required the applicant and respondent to most family law court applications to try family mediation before they went to court and asked the judge to resolve their family law dispute. There were a limited number of exceptions when you did not need to try family mediation before you made a family law court application. Those exceptions have been narrowed and reduced.
The other major change to the rules is an emphasis on other non-court dispute resolution options, rather than just requiring most couples to try family mediation.
Non-court dispute resolution options
Whilst most people have heard about family mediation there are several other non-court dispute resolution options. They include:
Family arbitration
Collaborative law
Private judge or financial dispute resolution hearing
One lawyer divorce service
A family law solicitor will go through each of these options with you to work out which one would suit you best and help you reach an agreement. Once an agreement is reached your lawyers can help you convert it into a binding court order from a family law judge.
It is worth discussing your options with a family law solicitor as you may have ruled out family mediation or an alternative option. A family law solicitor can arrange family law mediation sessions where you are not in the same room as your ex-partner if there are concerns about this. Alternatively, if you do not want to negotiate in family mediation you may find that solicitor-involved family mediation works for you. If that does not suit you then using a one lawyer divorce service or a private judge may be your best option. Some might rule out using a private judge as being too expensive but it can be a cheaper and quicker option than court.
Our family law solicitors will highlight the advantages and the disadvantages of the various non-court options so you can make an informed decision.
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The Family Procedure Rule changes on non-court options
Couples in family law disputes now need to set out their views on the use of non-court dispute resolution options with a signed statement of truth. The statement is intended to highlight the importance of considering the non-court options.
There may be implications if you decide not to engage in any non-court dispute resolution and you do so without good reason. For example:
A judge could adjourn your family law application for non-court dispute resolution to be tried
A judge could order that you pay some of your ex-spouse’s legal costs associated with the financial settlement court hearing because you refused to engage in any non-court based dispute resolution and the judge thinks money was wasted by taking it to court or a final hearing
There are several reasons why applying to court and not using any non-court dispute resolution first is a sensible approach. For example:
You need an injunction order to protect you from domestic abuse
You fear your ex-partner is going to take your children overseas without your agreement
Your spouse is transferring assets or money to other people and if you wait to bring a financial court application the money may have disappeared and your financial settlement claim will have been defeated by your spouse’s underhand behaviour
Your ex-spouse is refusing to give you any financial disclosure so you cannot reach a fair financial settlement using any non-court resolution option as you do not know the extent of their assets
Our family law solicitors can discuss the reasons why you think a court application should be started rather than look at a dispute resolution option so we can help you work out the best solution for you.
The Evolve Family Law one lawyer divorce service
Our one lawyer divorce service may be suitable for you and your ex-partner and this is one of the options we can explore with you.
With this service, one divorce lawyer advises you and your former partner and prepares all necessary legal documents on behalf of you both in your divorce and financial settlement.
The benefits of one lawyer divorce are that it can save time and money but it is not the right format for every couple. For example, if there is a power imbalance and you would prefer to have your own lawyer then collaborative law or arbitration might be a better fit for one of you.
Next steps
We offer a fixed fee initial consultation in which we can discuss all legal and practical aspects of your separation and assess the best non-court dispute resolution option is the best route for you to take.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
Jun 12, 2024
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5 minute read
Can I Force my Partner to Leave the Family Home?
If you are separating from your partner the thought of living with them in the family home whilst you get divorced and sort out a financial settlement can be distressing.
Our family law solicitors look at your options if you want your partner to leave the family home.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Family home rights
If you are married or in a civil partnership your right to stay in the family home after you have separated does not depend on whether you are the legal owner or a joint owner.
If you are not a legal owner of the family home you still have rights. You cannot be forced out of the family home but nor can your partner unless:
You or your partner agrees to leave
One of you gets an injunction order forcing the other to leave – injunction orders are temporary
A financial court order states that you or your partner should keep the family home or that it should be sold
There are two issues here. First, injunctions are a short-term fix and do not transfer ownership of the property. The second is that it can take a long time to get a financial court order so you may need an injunction before you secure your financial settlement.
It isn’t always easy to move out of a family home when you or your partner don’t have family living nearby or friends willing to put you up for what could be for over a year or until you can find somewhere to rent.
When you look at the price of renting a property on Rightmove and the limited availability of rental property you can start to appreciate that your partner may struggle to rent somewhere suitable or, if they pay rent, they may not be able to pay towards the mortgage or pay spousal maintenance.
You may want to look at timescales to see if you can speed up the process of reaching a financial settlement so you know where you stand with the family home and to make staying together in the property easier for both of you until the house is sold or the property transferred. It is possible to reach a financial settlement quickly and to record your agreement in a separation agreement. In any later divorce proceedings, the agreement can be converted into a financial court order.
A family law solicitor will talk to you about the information you need to help you reach a quick financial settlement. For example, you will need to know how much the property is worth, the amount outstanding on the mortgage, the monthly mortgage figure, if your mortgage company would agree to either you or your partner taking the existing mortgage on, and if the mortgage company would lend you more so you can pay out your partner an agreed sum as part of an overall financial settlement. The payment needs to take into account the value of pensions and any savings. It is also sensible to look at rehousing costs for you and your partner so you know how much you would each need so you can work out if staying in the family home on a long-term basis is the best option for you.
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Occupation and ouster orders
If your partner refuses to leave the family home while you are going through divorce proceedings and sorting out the financial settlement you cannot force them out, even if they are not a legal owner.
You may be able to apply for an injunction order.
An occupation order gives you the right to stay in the family home until a specified date. The order can give you exclusive occupation or say you can use parts of the house or share it all with your partner.
An ouster order excludes or ousts your partner from the property. They cannot return to live at the property until the order ends.
Applying for an occupation or ouster order
You need to apply to the family court for an injunction order. The court will grant you an occupation or ouster order if it thinks it is just and reasonable to do so after considering all the circumstances and factors such as:
Your housing needs and housing resources and those of your partner and any relevant child
Your financial resources and those of your partner
The likely effect of any order, or the effect of not making an order, on the health, safety, and well-being of you, your partner, or any relevant child
Your conduct and the conduct of your partner
The court must also consider the likelihood of significant harm and the 'balance of harm'. This means the court must weigh up the likelihood of significant harm to you or your partner and any relevant child if an order is made, balanced against the likelihood of significant harm if an order is not made.
If the court considers there is significant harm to you or any relevant child, the court should make an injunction order unless your partner or any relevant child is likely to suffer significant harm if the order is made, and the harm is as great or greater than the harm likely to be suffered by you or any relevant child (because of your partner’s behaviour) if the order is not made.
If the court concludes significant harm is not likely, it is not obliged to make the injunction order but may do so.
Getting help with an occupation and ouster order application
Our family law solicitors can help you apply for an injunction order, start no-fault divorce proceedings on your behalf, and negotiate a financial settlement for you.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
·
5 minute read
Applying for an Injunction
Do you need protection from domestic abuse or coercive and controlling behaviour? Are you worried about your estranged husband or wife transferring money to their parents or siblings to try and hide money from your divorce solicitor?
If you need help with applying for an injunction order our family law solicitors can assist and guide you through the injunction application process.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
What is an injunction?
An injunction is an order from the family court telling someone to stop doing something.
An injunction order can stop:
An ex-partner verbally harassing you
A spouse from physically or sexually assaulting you
A partner from exerting financial control over you
A spouse from psychologically abusing you
The other parent from emotionally abusing or otherwise abusing your children
A partner from stopping you from returning to the family home
A husband or wife or civil partner from transferring the house or the savings to their relatives to defeat your divorce financial settlement claim
If you are not sure if you need an injunction order the best thing to do is call one of our family law solicitors to see how we can help you.
Do I need an injunction order or to call the police?
In an emergency, we would always recommend that you call the police. If they arrest and charge your partner and impose bail conditions you may decide that you do not need to apply for an injunction order as the police can arrest your partner again if he or she breaches their bail.
If you do not want to contact the police, they will not get involved as they say it is a ‘civil matter’, or they do not give you the sort of support you were looking for, then you may need an injunction order. For example, a police officer may tell you that you need to apply for a child arrangement order if you and your ex-partner are arguing about where your child should live. For example, the police may just warn or caution your partner about their behaviour. If your concerns are money-related, the police will advise you to talk to a family law solicitor about getting a freezing or family law money injunction.
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Common myths about injunctions
There are a lot of misconceptions about injunctions. Here we dispel some common ones:
You don’t need to be married or in a civil partnership to apply for an injunction
Men or women can apply for injunctions
If you are in a same-sex relationship you can apply for an injunction order
An injunction order does not change legal ownership of the family home but the order may give the injunction order applicant the right to live in the family home until the end of the injunction order or until the court makes a financial court order
An injunction order can be enforced by the police
You can apply for an injunction even if you did not report the domestic violence to the police
You do not need to have been physically assaulted to apply for an injunction – if you have experienced any type of domestic abuse you can apply to the court for an injunction order
You can apply for an injunction order even if the police have arrested or charged your partner
You do not need to own your home to apply for an occupation injunction order. You can also apply if you rent your house or if your partner is the sole legal owner
You do not need to have started no-fault divorce proceedings before you can apply for an injunction
Applying for an injunction
Applying for an injunction involves filing a court application with a statement in support and paying a court fee. If your application is urgent the court can agree to hold a first hearing without giving your partner notice of the hearing. If the court makes an injunction order at a without-notice hearing your partner will have the opportunity to object to it and put their case at another injunction hearing.
The court can make an injunction order that prevents your ex-partner (and if relevant other family members or their agents) from continuing to abuse you. This type of injunction is called a non-molestation order. A court may make a non-molestation order at a without-notice hearing but list your application for an occupation order injunction at a hearing when your partner is present. An occupation order or ouster injunction order says if you can occupy the family home and if your partner can be excluded from all or part of the property. The injunction order does not transfer ownership of the family home – you will still need to negotiate a financial settlement or ask the court to make a financial court order.
Family law help
As well as needing help with an injunction application you may also need assistance with:
Sorting out residence and contact arrangements for your child – if you are concerned about your child’s safety or your ex-partner’s ability to prioritise your child’s needs you may need to apply for a child arrangement order or prohibited steps order
Reaching a divorce financial settlement or a property settlement if you were in a cohabiting relationship
A new Will because of your separation from your spouse or partner
For expert family advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
May 21, 2024
·
5 minute read
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