divorce,wills,probate,powers of attorney
ksflp
Tel: 01823 256 494 mail@ksflp.co.uk

Family Law & Matrimonial Law Specialists

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Frequently Asked Questions


What will it all cost?


Q. Can I get legal aid?

A.

We are contracted to the Legal Aid Agency and can process your application for Legal Aid if you qualify. Please remember that we do not make up the rules and it is not our decision whether you can have Legal Aid. The rules are made by the Government. Please complain to your MP if you can't get Legal Aid.

Legal Aid for Family Law has since April 2014 become severely limited. If you are a parent or have Parental Responsibility for a child involved in Care Proceedings or Supervision Order Proceedings or are in the PLO process with a Local Authority, you will be entitled to Legal Aid without a means or merits test.

Otherwise, Legal Aid remains available if you are a victim of domestic abuse or you have a child who is the victim of abuse and you are not the person alleged to have caused the harm. The evidence that you need to prove these grounds is very specific and in addition, you may also need to provide evidence to satisfy a means and merits test.

For a more detailed explanation of the availability of Legal Aid, please click here or telephone us on 01823 256494 during office hours and we should be able to give you an indication of whether you will qualify and advise. You can also click here to make an on-line enquiry, we will give you a free call back.

If we think from your initial enquiry that you might qualify for Legal Aid, we will tell you the documents that you will need to bring to the office so that we can process your application. Do remember that it is your responsibility to provide the documents required by the Legal Aid Agency. We cannot obtain these papers for you as they are nearly always confidential to you. We cannot process your application without the complete set of documents as the Legal Aid Agency will reject anything that is incomplete.


Q. Do you offer free legal advice?

A.

We do not offer free legal advice or free initial appointments. We do however offer fixed price appointments as described below.

Q. Do you offer fixed price appointments?

A.

We offer fixed price advice sessions of up to an hour at a cost of £180 inclusive of VAT. This service suits people who want a one-off advice session or who want to run their own case in person but dip in and out for a fixed price advice session from time to time. The price is for a fixed amount that must be paid in full (by card or cash) at the appointment even if the session does not last a full hour. The price includes written confirmation from us of the advice given. Please click here for terms of business

Q. How does it work when you charge at hourly rates?

A.

If you decide to instruct us at hourly rates, we will at the outset provide you with an estimate of fees that will be confirmed in writing. It is often impossible to be completely accurate in an estimate at the outset as we will not know all of the information that may emerge or how difficult it is going to be to negotiate sensibly with the other party. Our estimate will also rely upon you accepting reasonable advice. We will therefore revise our estimate from time to time as the amount of work required becomes clearer.

We have a range of fee earners with different levels of expertise, qualifications and experience. Our charging rates vary from £168 to £216 per hour. These rates include VAT but do not include expenses for other services such as expert fees, court fees or barristers fees. These expenses have to be paid in addition to our fees.

We normally ask you to pay money on account of fees and to keep this topped up as matters progress. We reserve the right to cease acting for you if you fall behind with such payments.

Any expenses such as court fees, barristers fees or expert fees will have to be paid by you in advance. We cannot pay any of these bills for you and we will not proceed without the money on account. We cannot operate as a bank to lend you the money for your case.

Please click here for full details of our terms of business.


Q.Can I claim my legal costs against the other party?

A.

If in a divorce case, you rely on the adultery, unreasonable behaviour or desertion of another party, you may claim costs against them. Often however, each party will agree to pay their own costs during the negotiation process as this might be the only means of avoiding a defended divorce if there is a dispute as to who has been unreasonable etc. Normally in a separation case, each party will pay their own costs.

It is very unusual for one party to be ordered to pay the costs of the other in a case concerning the welfare of a child.

In disputes over money, the starting point is that each party will pay their own costs and expenses. The Court does have a discretion to order one party to pay the costs of the other and this may happen if one party has failed to be open and honest about their finances or has disobeyed the rules or orders of the court or indeed if a party has simply behaved in a thoroughly unreasonable manner causing the other party to incur unnecessary cost.


Q. What can I do if I am unhappy with the amount of your bill?

A.

If you are unhappy with our charges, you may use our complaints procedure. Please click here for a copy of the procedure. Please note that you must raise any complaint about your bill within 28 days of receipt or we may refuse to accept your complaint. The procedure explains how you can complain to the Legal Services Ombudsman if you are unhappy with the outcome of your complaint. You must however give us an opportunity to resolve the matter first before proceeding to the Legal Ombudsman.


Who are you and what do you do?


Q. What sort of business and what do you do?

A.

We are a business that supplies legal advice and representation at Court on family law matters. We are based in Taunton in Somerset and most of our work is in the local Family Court. Currently, there are two Solicitors and three Chartered Legal Executives who deliver this service. The business operates through a limited company owned by Kevin Shearn who is a Solicitor.

Q. How are you regulated?

A.

This business is regulated by the Solicitors Regulation Authority number 611869.

Q. Does your firm have any additional quality mark?

A.

Yes, we are accredited by the Law Society with their approved Practice Management Standard that is called Lexcel. This means that we are subject to annual assessments by an independent quality control company and have to meet rigorous standards of client care and practice management standards.

Q. Are you insured if things go wrong?

A.

We carry insurance limited to 3 million pounds for each individual claim. You must tell us at the outset of your matter if you think this level of insurance is insufficient for the risk involved in your particular matter.

Q. What legal services do you provide?

A.

We provide advice and representation on family law to include divorce and dissolution, disputes over children between individuals and involving the Local Authority. We help with domestic abuse cases and with financial disputes on relationship breakdown. We also prepare Wills and Enduring Powers of Attorney and will assist you with the Administration of the Estate of a deceased person.

Q. Do you provide mediation or collaborative law services?

A.

We do not provide mediation or collaborative law services but we can signpost you to the resource best suited to your individual requirements. We can provide you with legal advice alongside the mediation or collaborative process and we can draw up an order for the approval of the court to conclude any memorandum of understanding that you reach.

Q. Do you provide property or financial services?

A.

We do not provide any property of financial services. We can however signpost you to the resource best suited to your individual requirements. For example, you may need independent financial advice on pension sharing or you may need to see another firm of solicitors to deal with the conveyancing of your house following a relationship breakdown.

Q. Do you provide telephone or internet advice?

A.

We are very happy to communicate with you by telephone, e-mail, text or letter. Please tell us which means of communication suits you best. We do however insist on at least one initial face to face meeting. This is partly to protect us as we may need to be satisfied as to your identity and it is also to help you as you will gain far more from a face to face meeting than you ever can over the telephone or email. Please note that our fixed fee appointment scheme includes confirmation of advice in writing but does not include subsequent telephone and email communication within the fixed price. If you want us to continue a service for you after the fixed fee appointment, you will either have to arrange a further such appointment or we can agree to continue with your case on hourly rates.

Q. Will you ever decline to act for me?

A.

We may refuse to act for you if we take the view that your instructions will expose us to an unacceptable risk to our business. There may be a number of professional reasons why we might have to decline your instructions and we may not be able to tell you the reason why we are turning you away.

We also reserve the right to cease acting for you immediately if you are aggressive, violent or abusive to any of our staff.


Q. What qualifications do your people have?

A.

We have two Solicitors and three Chartered Legal Executives, all of whom specialise in family law.

Kevin Shearn and Emma Perkins are both qualified Solicitors and in addition, they are both members of the Law Society Children Panel. This means that they are accredited as being specialists in Care and Supervision Order Proceedings. In addition, Kevin is a member of the Law Society Family Law Panel (Advanced) and Emma is Accredited by Resolution (First for Family Law) in Private Law Children Proceedings and Domestic Abuse.

You will likely be referred to Kevin or Emma for specialist advice and representation in Children Act Proceedings. Emma also has a particular interest in domestic abuse cases.

Our three Chartered Legal Executives are Carole Newstead, Sarah Daw and Daisy Bateman. Carole is accredited by Resolution (First for Family Law) in Private Law Children Proceedings, Domestic Abuse and Co-habitation Law. Sarah has a particular interest in financial dispute resolution on relationship breakdown.

Full profiles of each of our fee earners are accessible from our home page on this site.


Q. What is the difference between a Solicitor and a Chartered Legal Executive?

A.

There are differences in the academic and vocational training of Solicitors and Chartered Legal Executives and also regulatory differences.

However, from your point of view as a consumer, you will probably notice no difference at all between the quality of advice and representation that you received from one of our Solicitors as opposed to our Legal Executives.


Q. What is a Barrister and can I have one to represent me?

A.

Barristers are another type of lawyer with a different academic and vocational training and who are also differently regulated from Solicitors and Chartered Legal Executives.

The main difference is that Barristers normally undertake a specific piece of work as part of a legal process in which you may find yourself. Most commonly this may be a piece of specific advice or it will be advocacy at court on a particular hearing. In general terms, Barristers are specialist advocates. They do not normally have the day to day conduct of a case.

Traditionally, a Barrister will be instructed on your behalf through a firm of solicitors. It is now possible for the public to have direct access to a barrister for a bespoke piece of work or court hearing and you can do this if you are privately paying. Barristers do not however hold contracts with the Legal Aid Agency and so if you require Legal Aid, you will need to apply for a Certificate through a Solicitor who will instruct the Barrister on your behalf.

If you are a privately paying client, we can recommend a Barrister to you for an Opinion or to represent you in Court. You can also meet your Barrister for advice in Conference. In these circumstances, we will recommend the best Barrister to you for your particular case. The Barrister will be engaged by us and we will negotiate and advise you of the fee in advance. We will insist on you paying the Barrister's fee to us in advance before instructing him or her so that we are in a position to pay your Barrister when we receive the fee note.

If you are in receipt of Legal Aid, we can also recommend and instruct a Barrister for your case and he or she will be paid from the legal aid fund.


Q. What is a QC and can I have one?

A.

QC stands for Queen's Counsel and is a Barrister that has been officially recognised for excellence in advocacy in the higher courts.

QCs normally appear only in the most complicated of cases and also you will need to have a Junior Barrister as well. If you are privately paying, we can recommend and instruct a QC on your behalf but must have funds in advance to meet the high level of fees that a QC will command.

If you are in receipt of Legal Aid, you will only be entitled to have a QC if the Legal Aid Agency gives specific authority. The Agency will have to be persuaded that your case is exceptionally complicated so as to justify this high level of expense.


Q. What can I do if I am a client of yours and I want to complain about the service that I have received?

A.

If you are unhappy with the level of service that you have received, you may use our complaints procedure. Please click here for a copy of the procedure. Please note that you must raise any complaint within 28 days of the event giving rise to it or we may refuse to accept your complaint. The procedure explains how you can complain to the Legal Services Ombudsman if you are unhappy with the outcome of your complaint. You must however give us an opportunity to resolve the matter first before proceeding to the Legal Ombudsman

Q. Can I bring someone with me to my appointment with you?

A.

If you have an Advocate or a Support Worker, you are welcome to bring such a person with you to an appointment. We may need to consider whether it is appropriate to allow a relative or a family friend to join the meeting as the subject matter may be highly confidential particularly if your case concerns a child. We also need to bear in mind that a family member may have their own agenda that could conflict with your best interest and we need to be sure that we are taking your own unfettered advice and not something driven by a third party.

Under no circumstances will we discuss your case in the presence of a child. So please arrange for another adult to look after your children when you attend for an appointment. Even if the child is too young to understand what we are saying, he/she will become upset if you are upset.

If you bring someone with you to court, they may not be allowed into the courtroom. You also need to be careful who you bring with you for support as the atmosphere can sometimes be rather tense and a new partner, in particular can make matters far worse.



The Court


Q. What is the Family Court?

A.

The Family Court is a court that is dedicated to family law work and sits in various locations across England and Wales. It is comprised of what used to be the County Court and the Magistrates Court. These have been amalgamated and it means that you case can be assigned to magistrates or to a District Judge or a Circuit Judge depending on how complicated it is. Exceptionally complicated cases are transferred out of the Family Court to the High Court.

Q. Will my Court proceedings be private?

A.

Yes. The only people allowed into court will be the parties to the proceedings and the court staff. If a Social Worker a Family Court Advisor from Cafcass has prepared a welfare report, they will also come into court. Sometimes, the Court will allow a family member to come into court with you but you must ask permission for this and the court will listen to any objection from the other party. If a family member is involved in the care of your children, the Court will often allow that person to come in but they will be warned about the confidential nature of the proceedings and that they are not to repeat anything that they hear.

Q. Are the Court papers private?

A.

Yes they are. As a general rule, you must not show any court papers to anyone who is not a party to the proceedings. There are a few exceptions, for example you can show a medical report to your doctor or therapist but in general, you should always ask the permission of the Court before showing any papers to anyone.

Q. Can I refer to my court proceedings on Social Media?

A.

As a general rule, you may not say anything on Social Media that refers to your court proceedings or which identifies another party of child or indeed any professional involved in the case.

If you are moving to a different area to escape from domestic violence, you should not put anything at all on Social Media as it is very likely that you will compromise your new found freedom.

Q. Will the press be allowed into Court and can they report on my case?

A.

Accredited representative of the press are allowed to attend family proceedings but this is very rare in practice. The Court can exclude the press where it is necessary to protect the interests of a child; for the safety of a party or witness; for the orderly conduct of proceedings or if the room is too small. The press cannot see the court papers and the identity of any child must be protected. Any reporting must be of a generalized nature.


Divorce and Separation


Q. How long will my divorce take?

A.

It is very difficult to be specific about this as the total length of time will depend on a number of factors. Your husband or wife may not co-operate in the process as he or she may not want a divorce or might want to be as awkward as possible. Also as a general rule, we will not normally advise you to apply for the final decree of divorce until all financial aspects have been settled.

As a general rule and assuming that you and your husband/wife co-operate in an efficient manner and are both open and honest, the entire process will take a minimum of 5 or 6 months.

Q.Can I be "separated" but still live in the same house as my husband/wife?

A.

If you are relying upon a period of separation for your divorce, you will have to provide evidence of separation. This must normally be a continuous period of social and economic separation as well as sleeping separately. For example, the Court might not accept that you are separated if you are still claiming benefits together or if you are sharing meals and doing the laundry for your husband/wife.

Q. My partner has moved out of the house, can I change the locks?

A.

If you are not married and the house is in your sole name, you can change the locks. You should make arrangements for the return of any clothes or personal possessions of your partner. throwing them out of the window is not the answer.

In most cases, that is if you are married, or if your partner has an interest in the ownership of the house or in the tenancy, you cannot lawfully change the locks. You can apply to the court to change the ownership of the property. the procedure and the law will differ depending on your circumstances.

If you are worried about your safety of for that of a child that it would be reasonable to expect to live with you, you may be able to apply to the court for an Occupation Order that might have the effect of ending or suspending the other person's right of occupation.



Finances


Q. Will my Pre-Nuptial Agreement be binding on the Court in my Divorce

A.

No. But it may be taken into account, particularly if full financial disclosure took place and if both parties had access to independent legal advice before the agreement was signed. The agreement will be more persuasive in a short marriage where there are no children.

Q. In a divorce, will all property and money be split 50/50?

A.

Not necessarily. All marriages and all divorces are different and the court has a very wide discretion to make an order that distributes money and property fairly and this often does not mean 50/50. The court will take into account all of the circumstances set out in Section 25 Matrimonial Causes Act 1983. The needs and resources of any minor child will always be the first consideration. (Please click here to see the Section 25 criteria)

Q. Can I claim half of my husband's pension?

A.

The Court on dealing with a divorce can make orders sharing or attaching all or part of a pension. Pensions will not be looked at in isolation. They are part of the overall picture considered under Section 25 Matrimonial Causes Act 1983. The pension must be regarded in context with all of the other property, money, income and savings. Pensions are often future assets that are difficult to ascribe a present day value to. You may also have a pressing need for immediate capital to rehouse yourself with children. It may not be fair for you to have all of the capital and half of the pension. You may be better off having more capital and less pension. Amongst other things, the outcome will depend on your age, the length of the marriage, the needs of children and for housing. There is no precise answer that suits all circumstances which is why the court has such a wide discretion. Before reaching a decision on pensions, we will normally advise that you seek the advice of a suitably qualified Independent Legal advisor or Actuary.

Q. If I agree a settlement with my husband/wife, will the Court endorse our agreement in an Order?

A.

Not necessarily. The agreement must be approved by a Judge who will not simply rubber stamp the document. The Judge will have to decide if it is fair, taking into account all of the criteria under Section 25 Matrimonial Causes Act 1973. The Judge might refuse the order even if you have agreed it. This means it is not enforceable and leaves you without the uncertainty of possibly having to face financial claims in the future. You will therefore have to think again and either come up with a fairer agreement or allow the court to decide on a contested hearing.

Q. Can I overturn a final order made by the Court to deal with finances?

A.

This is a very topical subjected and you may have read quite a lot in the press recently where final orders have been overturned. The most common reason for an order being overturned is where one or both of the parties has failed to be completely open and honest in disclosing all of their financial circumstances. If you are dishonest in your disclosure, you run the risk that any final order will be unsafe and open to future challenge.


Children


Q. Can I change my child's surname?

A.

A child's surname is a very important part of his or her identity and should not be changed rashly by a parent who has fallen out with the other parent. It is an important welfare issue for the child and if there is a dispute, the Court will apply the "welfare checklist" set out in the Children Act 1989.

If you share Parental Responsibility for the child with the other parent, (or anyone else), you will need to seek the consent of everyone else with Parental Responsibility before changing the child's surname. Ideally, you should obtain this consent in writing.

Even if you are the only person with Parental Responsibility, you should be extremely cautious about changing your child's surname without the consent of the father. The Court might well make you change it back if you do so without consent, particularly if the father despite lacking Parental Responsibility, has an established and committed relationship with your child.


Q. Can we share the children for an exactly equal amount of time following a separation?

A.

Children are individual human beings with their own emotional needs. These needs are not often met through a meticulously calculated spreadsheet schedule dividing their time between separate homes. Often, this type of arrangement has more to do with meeting the emotional needs of a parent who is grieving for the loss of relationships or to do with defeating a Child Support claim or getting the Child Benefit. These considerations are not normally the same as meeting the emotional needs of the children.

All children are different and all families are different which is why the court has such a wide discretion to make orders in applying the "welfare checklist" under the Children Act 1989.

In general, most children enjoy the stability of a settled routine, particularly if their life has been upset through a separation of parents. It can be very unsettling for them if their weeks are divided up in an arbitrary manner particularly if their parents no longer communicate very well.

Most children will survive best with the minimal disruption of living with the parent who was their primary care before the separation and spending quality time with the other parent on a regular basis.

Very young children often benefit from frequent and short contact with their non-resident parent. Older children who have a school routing normally prefer a main home during the week and every other weekend with the non-resident parent as well as sharing school holidays. Often parents agree alternate Christmases for their children in each home.


Q. Can I introduce my new partner to the children?

A.

As with all children issues, there is no general answer that fits all situations. Each case depends on an individual application of the "welfare checklist".

Do however tread very carefully with this one. It is all about being sensitive to emotions. If you enter into a settled and secure relationship with a new partner, it will become appropriate for your children to meet that person. Children are very perceptive and often have greater insight than their parents anticipate.

Second or step families are quite common in modern society but there is a difference between a a settled and secure new relationship and a string of casual and ill judged casual encounters that would be upsetting for the children to be exposed to.


Q. Can I stop my children having weekend contact because their father dumps them on his mother while he works on Saturday morning?

A.

Again, this is a question of degree. It is perfectly normal in families for children to spend time with grandparents, aunts, uncles and cousins etc. This happens on both sides of the family where parents have busy lives with social and work commitments.

In general, the fact that the father has to work Saturday mornings is not a reason to stop contact as the children will enjoy seeing him on Friday after school, will enjoy being with grandparents on Saturday morning and being with their father and/or other relatives and friends for the rest of the weekend.


Q. My ex-partner is refusing to give the children back following weekend contact. Can aI ask the police to get them back?

A.

As a general rule, the police will not get involved in private disputes between separated parents.

The police might get involved if there is a risk to public order of if they have reason to believe that a criminal offence is being committed.

The police might also make a welfare check on the children if there is reason to be concerned that the children are at risk of significant harm.

In most cases, however, you will need to make an urgent application to the Court and gain, the "welfare checklist" under the Children Act 1989 will be applied to the circumstances of your case.



Finance and Children


Q. The mother of my child won't let me see him and so can I stop paying child support?

A.

No. If you are the biological father of the child, you have a shared responsibility with the mother for the financial support of your child.

The question of whether you should have contact or otherwise spend time with your child is a separate welfare issue to your responsibility for financial support. All such welfare issues will be decided through application of the "welfare principle" in the Children Act 1989 to the particular circumstances of your case.


Q. The father of my child does not pay any financial support and so can I stop him from having contact?

A.

No, not for that reason. If the father is not paying, you should normally seek child support through the CSA. They will assess the father's ability to pay.

The issue of contact is entirely separate and is a welfare issue that will be determined under the "welfare checklist" set out in the Children Act 1989.


Q. I don't want to pay money to the mother of my child as she will spend it on herself and not on the child. Can I just pay the money into a savings account for the child instead?

A.

No. Even if the mother does enjoy a social life, she still has to buy food, clothes and all of the necessities of life for the child such as electricity, gas and water. So you have to pay regular child support to help with these bills for your child.


DISCLAIMER

These FAQs are provided for general information only and cannot be relied upon in your own specific circumstances as all families are different and no two cases are the same.

If you would like specific advice on your particular case, please ring 01823 256494 for an appointment or click here to make an on-line enquiry, we will give you a call back.

We are sorry that we cannot give telephone advice without a face to face appointment.


“First class, could not have expected any more. Thank you Kevin.” - Miss JMT, Yeovil

For a consultation with a Family Law Solicitor call us on
01823 256 494
or click here to make an on-line enquiry, we will give you a call back.


Sole Director: Kevin Shearn LL.B

KSFLP Ltd is authorised and regulated by the Solicitors Regulation Authority under reference number 611869.


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