Frequently Asked Questions

Q. Can I get legal aid?
A. Possibly, for further information on Legal Aid click here.

Q. Do you offer a free initial appointment?
A. Yes. We offer a free initial appointment on all aspects of family law. At this appointment, we can take brief initial instructions from you and can give some preliminary advice. We can also assess whether you are likely to qualify for Legal aid. You should therefore bring with you some current evidence of any benefits that you are receiving and/or your most recent payslip or accounts if you are working.

Q. Can I bring a friend or relative with me for support at the appointment or to a Court hearing?
A. You can bring someone for support as you may be feeling emotional around some very sensitive things that are happening in your life. Please make sure that you are very careful about the choice of person that you bring. Some people who are close to you may have their own agenda or may simply enjoy winding up the drama that is going on. You need to be sure that any decision you take is your own.

If you take someone with you to Court, they may not be allowed into the courtroom. You also need to be especially careful about taking people with you to Court as the atmosphere can be very tense and a new partner or a close family member can sometimes make things a lot worse.

Q. Do you have any independently audited quality accreditation?
A. Yes. We successfully passed our quality audit with the Legal Services Commission on the 24 th July 2009. The Legal Services Commission are the people who are in charge of the Legal Aid scheme. The audit included a check on management and disciplinary standards and a review of files so that quality standards can be verified.

Kevin Shearn is also a member of the Law Society Children Panel and the Law Society Family Law Panel (Advanced). Membership of both of these panels is reviewed periodically and it is necessary to re-apply so that the Law Society can make sure that expertise is being maintained.

Q. Can I get Legal Aid?
A. If you have Parental Responsibility for a child involved in Care Proceedings at court or you have received a letter from a Local Authority telling you to bring a solicitor to a PLO meeting, you will be entitled to Legal Aid without having to pay any money towards it.

If you are involved in any other type of family law matter, Legal Aid will normally be means and merits tested.

The merits test means that you must have a case than any reasonable person of modest means would spend their own money on.

The means test will depend on how much money you have in savings which might include the value of your interest in your house and it will depend on the amount of income that you have. Some outgoings are taken into account, for example there is an allowance for your partner and your children and also for your basic housing costs.

Sometimes your solicitor will exercise powers to grant you emergency Legal Aid if your case is urgent. The solicitor will need to be sure that your case meets the merits and means test and you could be liable to pay your fees privately if the Legal Services Commission assess that you do not qualify for Legal Aid.

Q. Is Legal Aid free?
A. No. Legal Aid is often subject to a means test, (see above), and you may have to pay a contribution from your savings or a contribution from your income for every month that your case lasts. Also, if you recover or preserve any money or property as a result of the work we do for you, you may have to pay back the cost of your case from the money or property that you recover or preserve. Any contributions that you have made towards your Legal Aid will be taken into account and some money, such as maintenance is exempt from this charge. Sometimes, the charge can be postponed, for example the Legal Services Commission might agree to accept a Charge, (mortgage) over your house if it is needed as a family home for you and your children. Interest will be charged and you will have to pay back the money eventually.

Q. Can I have a “quickie 6 week divorce” like the celebrity that I have read about in the paper?
A. As a general rule, most divorces take a lot longer than 6 weeks to conclude from the time of your first appointment with your solicitor until the final decree. The reference to six weeks in the media usually means the minimum period that must elapse between the grant of Decree Nisi and the pronouncement of Decree Absolute. You may be advised not to apply for Decree Absolute at the earliest opportunity as there may still be financial issues to resolve.

The total length of time for your divorce from your first appointment can depend on a number of factors such as the co-operation we get from your husband or wife (who might not want a divorce and might just want to be as awkward as possible), and how busy they are at the court office.

As a general rule and assuming that you and your husband or wife co-operate and get on with every stage efficiently, it will normally take a minimum of 5 or 6 months for the entire divorce process to be completed.

Q. How much does a divorce cost?
A. Most solicitors charge at hourly rates and so the overall cost will depend on how many hours a solicitor or other fee earner spends dealing with your case. The more complicated the issues and the more that you and your husband or wife argue, the more hours will be spent by your solicitor and the bigger will be your bill.

You can also save money by using your solicitor efficiently. Make sure that you prepare for every appointment. Bring with you all of the relevant paperwork. It is cheaper for you to gather essential financial disclosure rather that ask your solicitor to do it for you.

If you decide to instruct us for your divorce, we will tell you the hourly charging rates for each of our fee earners and give you an estimate of how many hours we think will be needed. Often, we will have to revise this estimate as time goes by and we get a better idea of how much time will be needed to complete the case.

If you qualify for Legal Aid, the hourly charging rate of the solicitor will be much lower than the private rate.

You may also have to pay Court Fees, sometimes even if you are on Legal Aid. This is because the Court has a separate means test from the Legal Aid means test.

Q. Can I be “separated” but still live in the same house as my Husband?
A. If you are relying on a period of separation for a divorce, you will have to swear an affidavit, (statement). The Court will want to know the details of the separation. It is not enough simply to say that you have been sleeping in separate bedrooms. You must have also been living separately from a social and economic perspective. The Judge may decide that you are not separated if you are claiming benefits together or if you are still washing your husband's socks or cooking his tea.

Q. Can I claim my legal costs against the other party?
A. If in a divorce case you rely on the adultery, desertion or unreasonable behaviour of the other party, the Court might decide that he or she should pay your costs. 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 their children.

In disputes over money arising on divorce, (ancillary relief), the starting point is that each party has to pay their own costs and expenses. The Court can order one party to pay the costs of the other and this might happen if the other party fails to be open and honest about financial disclosure or if the other party fails to comply with the Court rules and directions.

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 both parties had the benefit of independent legal advice before signing the agreement. The pre-nuptial agreement will be more persuasive in a divorce following a short marriage where there have been no children.

Q. In a divorce, will all of the money and property be split 50/50?
A. Not necessarily. All marriages and all divorces are different and so the Court has a wide discretion to deal with finances in a way that is fair for any particular case. The Court will have regard to all of the circumstances set out in Section 25 of the Matrimonial Causes Act. The needs and resources of any minor child will always be the first consideration.

Q. Do you offer mediation or collaborative law services?
A. No. But we can refer you to appropriate accredited organisations that offer these services. In either case, we can advise you on the merits and implementation of any Heads of Agreement reached in mediation or through collaborative law.

Q. Can I claim half of my Husband's pension?
A. The Court on dealing with a divorce can make orders sharing or attaching part or all of a pension. Pensions will not be looked at in isolation. They are part of the overall picture. The length of the marriage and the age of the parties will be important. The pensions must also be regarded in the context of the other money, property or savings. We will normally recommend that you receive advice from an Independent Financial Advisor or Actuary before reaching a decision on a pension sharing or pension attachment order.

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 and personal belongings to your partner.

In most other cases, that is if you are married and/or 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 end the marriage through divorce and you can apply to change the property rights of the other person but these will not be emergency remedies unless there is an issue of personal protection involved for you or your children.

If you are worried about your personal safety or that of any 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 affect of suspending or ending the other person's rights of occupation.

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 individual needs. These needs are not often met through their parents preparing a precise spreadsheet schedule with no flexibility. Often, this type of arrangement has more to do with meeting the emotional needs of a parent who is devastated by the loss of a relationship. This may not be the same as meeting the needs of the children.

All children are different and all families are different. In general terms, children prefer the stability of a settled routine. It can be very unsettling for them to spend one week in one home and the next week in another, particularly if their parents do not communicate with each other or with the school.

In nearly all cases, children love both of their parents and do not want them to separate. Sometimes they fantasise unrealistically that their parents will get back together. It is important to be straight with your children but not brutally so or seek to criticise the other parent. In most cases, the children will survive a parental separation better if they remain living with the parent who was the main carer prior to the separation but it is usually essential that quality time at weekends and holidays is shared.

Q. Can I change my child's surname?
A. A child's surname is an important part of his or her identity and thus an important welfare issue. If there is a dispute at Court, the Court will refer to the “welfare checklist” set out in the Children Act 1989.

If you share Parental Responsibility for the child with the father, (or anyone else), you will need to seek the consent of everyone else that has Parental Responsibility and you should not change your child's surname without all of their 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. If he has an established relationship and/or has shown commitment to the child, the Court might well make you change the surname back if you change it without his consent.

Q. The mother of my child won't let me see him, so can I stop paying child support?
A. No. The fact that you are prevented from seeing your child does not mean that you can stop paying maintenance or child support.

The rules are separate. If you are the biological father of a child, you share a responsibility with the mother for the financial support of the child and this is so even if you do not see your child.

The question of whether you see your child and how often and on what terms will depend on the child's welfare and in a dispute, the Court will look at the “welfare checklist” set out in the Children Act 1989. In the vast majority of cases, the Court will support the general principle that it meets the emotional needs of children to know and have a relationship with both parents. In some cases, the welfare needs of the child dictate that there should be no contact but this will not affect the responsibility of financial support provided you have the ability to pay.

Q. The father of my child does not pay any money towards his support, can I stop him having contact?
A. No. Not for that reason. If the father is not paying any maintenance, you should normally pursue this through the CSA.

The question of whether there should be contact and the type and frequency of contact is entirely a separate issue concerning the emotional welfare of the child. If contact cannot be agreed, the Court will apply the “welfare checklist” set out in the Children Act 1989. This is an entirely different exercise from an assessment of the father's ability to pay money.

Q. I don't want to pay money to the mother of my child because 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 her social life and like new things for herself, she still has to buy food and clothes for your child and she has to pay for accommodation and the other essentials of life such as heating and electricity. So you do have to pay regular maintenance or child support.

Q. My ex-partner is refusing to return the children following weekend contact. Can I ask the police to go and get them?
A. As a general rule, the police will not get involved in a private dispute between parents concerning the welfare of their children

The police might get involved if there is a risk to public order or if there is reasonable cause to suspect that someone has committed a criminal offence.

The police might also get involved if there is a child protection issue. They may decide to carry out a welfare check to see if the children are alright. If they have reasonable cause to believe that your children are at risk of suffering significant harm, the police might decide to take the children into Police Protection. They will normally only do this in consultation with Social Services and a Police Protection Order will last only 72 hours, during which time an application will be made to the Court if the child protection issue persists.

In most cases, there will not be a child protection issue and so it will usually be up to you to make a private law application to the Court to secure the return of your children. You will need to see a solicitor urgently and subject to a means test, you might be entitled to Legal Aid to seek an urgent Court hearing.

Q. My ex-mother-in-law says I am an unfit mother and that my children should be taken away. Does this mean that Social Services will take my children away?
A. Ex-mother-in-laws often have a separate agenda and their opinion of the standard of care that it is reasonable for a parent to provide to a child may well be different from the standard set out in the Children Act 1989.

As a general rule, Local Authorities have a duty to act where their attention is drawn to children in need in their area. Except in the case of an emergency, they will normally meet with you in the first instance and if appropriate, offer you some advice and assistance.

If they are concerned that a child protection issue exists, they might call a Child Protection Conference with a view to agreeing a Child Protection Plan. Health, education and welfare professionals will be invited to the meeting and you will also be invited. The meeting will be chaired by an Independent Reviewing Officer. The meeting might decide to make a Child Protection Plan. This is what used to be called the “Child Protection Register” or the “At Risk Register”. If a Child Protection Plan is made, there will be review meetings to see how the plan is working. In between these meetings, a Core Group will be set up to meet more frequently to implement the plan.

If the Local Authority are thinking of going to Court to ask for a Supervision Order or a Care Order, they will, (unless there is an emergency), fix a PLO meeting. You will get a letter telling you that this is a last chance to agree a plan to avoid having to go to Court and you will be told to bring a solicitor with you to his meeting. You are entitled to free Legal Aid for this meeting as things are very serious at this stage.

Q. Can I vent my feelings about my ex-partner through a social network website?
A. This is nearly always a very bad idea. At best it will antagonise the other party and make it very difficult to achieve an amicable settlement. At worse, it could put you or your children at risk of harm.

If you are being prevented from seeing your child, it will not help to post a comment saying, “the bitch won't let me see the kids this weekend”. The posting might give you some brief satisfaction when your ex-partner reads it or her friends tell her about it but it is unlikely to make her more amenable to making arrangements for the following weekend.

Also, if you have moved to a different part of the Country to escape harassment or domestic abuse from a former partner, it does not normally help to post lots of personal information including photographs of you and your children.

Q. Will the press be allowed into Court and can they report on my case?
A. From 27 th April 2009, accredited representatives of the press have been allowed to attend family law court proceedings. Generally they can attend directions hearings or hearings where the Court is making decisions because the parties cannot agree. They cannot attend hearings which concern without prejudice negotiations with a view to settling a case.

This does not mean that the press can see the Court papers containing a lot of private information about your family and the identity of any children must be protected. Any reporting must be of a generalised nature.

The Court can also exclude the media where it is necessary to protect the interests of a child concerned; for the safety of a party or witness; for the orderly conduct of proceedings or if the room is too small.

In general terms, it is unlikely that the press will attend your family law court hearing unless you are a celebrity or it is a high profile case.

DISCLAIMER
These FAQs are provided by way of general information only and should not be relied upon for your own specific circumstances. All families are different and most areas of family law allow for discretion. Nearly all individual cases will depend on the specific facts.

If you would like specific advice on your own particular case, please ring us on 01823 256494 and ask for a free initial appointment.

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