The most frequently asked questions are listed below.

Family Law & Divorce

Do you anticipate my case going to Court?

Court should be viewed as the last resort. Few people attend Court for a divorce. You may have to attend Court in relation to children or financial matters, but we will discuss making any application with you before doing so and will only issue proceedings if you instruct us to do so. Mediation should be attempted first in most cases.

How long does a divorce generally take?

A divorce usually takes between 4 and 6 months to conclude. However, if financial issues are not resolved during this period, you may be advised to finalise financial matters before applying for Decree Absolute.

I’m worried about the cost of legal fees. What are the options?

You can pay your legal fees on the basis of ‘time taken’, i.e. an hourly rate, or you can ask us for a fixed fee. To help with your budget, we can arrange for fees to be paid by way of monthly instalments. We also offer ‘pay as you go’ and payment at the end of your case if you are financially eligible for a divorce or litigation loan.

What financial provision am I entitled to?

There is no easy answer to this. The Court will consider a checklist of criteria which includes your respective incomes, earning and borrowing capacity, housing needs, number of children and the value of assets. First consideration goes to providing any children of the family with a home.

What is Mediation, and do I have to attend?

Mediation is an alternative process to going to Court. This is an effective way of resolving disputes about children or financial issues.

Before an application to the Court is made about a child or financial issue, the Family Procedural Rules direct that a case should first be assessed by a mediator. This assessment is called a Mediation Information and Assessment Meeting (MIAM).

Why do I need a Family Law Solicitor?

A Solicitor will set out your options and your position in law. This knowledge and information can then form the basis either for further discussions with your ex-partner/spouse or mediation or negotiation through solicitors.

Most solicitors will offer a free initial appointment without charge and many people make appointments on this basis to find out information before they decide the best way forward.

Employment Law

I was unfairly dismissed from my job. Can you help me bring my case?

To bring a claim for unfair dismissal you generally need 2 years’ continuous service. If you have been unfairly dismissed, either because the decision is procedurally and/or substantively unfair, we can help.

In the absence of legal expenses insurance or Trade Union funding we can review your case and see if you are eligible for our ‘no win, no fee’ arrangement.

Am I entitled to a written reason for the dismissal of my employment?

If you are eligible to bring a claim for unfair dismissal you are entitled to written reasons for dismissal and they must be provided by your employer within 14 days.

Whatever your length of service, if you are pregnant or you are on statutory maternity or adoption leave you are entitled to written reasons without having to request it.

Can a dismissal based on a personality clash be fair?

“Some other substantial reason” is one of the potentially fair reasons for dismissal and this could include a personality clash.

An Employer would likely need to prove that it was causing substantial disruption to the business and that they had taken reasonable steps to solve the problem such as redeployment, changing working patterns and mediation.

What Can an employer make permanent staff redundant instead of agency staff?

Yes, although as part of considering the alternatives to redundancy one of the initial steps an employer should normally consider is ending or reducing the use of agency staff.

How easy is it for my employer to dismiss me on the grounds of ill-health?

Not easy but certainly possible. Capability is one of the potentially fair reasons for dismissal and this includes capability assessed by reference to health. There may also be an overlap with two other fair reasons including conduct and “some other substantial reason”.

Some of the factors that your employer will need to consider and support with evidence are as follows:

(a) nature of the illness;
(b) prospects of returning to work and likelihood of illness reoccurring;
(c) need to have someone doing the work;
(d) effect on the rest of the workforce;
(e) extent to which you were aware of the position; and
(f) your length of service.

I don’t agree with one of the terms in my new employment contract? Can you help resolve this with my employer?

Yes. We will start by discussing the reason for the term, whether it is enforceable and your bargaining-power.

I'm being harassed at work. How can I stop this?

Harassment at work is unacceptable. You should start by checking whether your employer has an Anti-Harassment and Bullying Policy at work.

If following the procedure set out in the policy does not resolve the problem or if you would like to discuss your options, please contact us.

I'm being made redundant, but my settlement package doesn't seem fair. Can you help?

If you are not comfortable with the original offer, we may be able to advise and negotiate with your employer on your behalf. Please contact us to discuss your case.

My employment contract doesn’t include maternity/paternity leave. Is this legal?

Your Employment Contract does not have to set out your rights to maternity/paternity leave. Your employer’s policies on maternity, paternity and adoption would usually be found in a non-contractual Staff Handbook.

Of course, just because your rights are not set out in an Employment Contract or Staff Handbook does not mean the rights do not exist.

What is constructive dismissal?

This is where your employer commits a repudiatory breach of contract, being a breach so serious that it allows you to terminate the contract by resigning.

It may be one major breach or a series or more minor breaches culminating in the “last straw”.

Who can't claim for unfair dismissal?

Those who are not employees and those employees who do not have 2 years’ continuous service (although there are exceptions) cannot claim unfair dismissal. There are also certain special classes, such as police officers and members of the armed forces, who may not be eligible to claim.

Personal Injury

Can I make a claim for compensation?

If you have been injured in an accident due to the fault, or partial fault of another party, you are entitled to claim compensation.

Are there any time limits to bring a claim?

Yes. The general rule is that you have 3 years from the date of the accident to start a claim at Court. In certain circumstances, the court has the discretion to extend this period of time. In the case of children who have had accidents, they have to start court proceedings before their 21st birthday.

The area of time limits are complicated, and its always wise to have a chat with one of our experts. For example, the time limit for a Criminal Injuries Claim, an accident relating to boats, ships and planes (including boarding ) is only 2 years.

What can I claim for?

Compensation claims are made up of several parts.

Firstly, we claim compensation for the pain and suffering you have experienced as a result of the accident. How much this will be, will be dependent upon your particular case, and its therefore important that you have a specialist solicitor that can advise you as to the value of your claim.

Secondly, you are entitled to claim your out of pocket expenses, that have arisen from out of the accident. For example, loss of income, medical charges, travelling expenses, payment to a loved one, who has provided you with care after the accident. Finally, you are also entitled to claim for predicted future losses eg reduction in income, care, treatment charges etc.

I have been told by other people that it could take years to sort out my claim?

The length of time it takes to complete the claim depends on many factors, including the co-operation of the other side, the value of your claim, and the complexity of the claim.

In straightforward claims, the government has tried to speed up the process, and it is possible with the smaller claims that we deal with, that they can be completed within months, as opposed to years.

We will aim to deal with your case as quickly as possible, but will never compromise the quality of our service.

Will I have to go to court?

This is very unlikely. The vast majority of the cases that we deal with, are resolved in the client’s favour, without you having to go to court.

I have had an accident at work, will I lose my job?

There is no need to feel worried about making a claim against your employer.

The employer, by law, has to have an insurance policy in place, to cover accidents at work. Most employers make use of this policy to help you with your recovery.

Even if your employer does not approve of you making a claim, you may have protection from the Employment Law, and few employers would be willing to risk a further claim against them, for unfair dismissal. We will discuss the implications with you, at the initial no obligation meeting.

I have developed an illness as a result of working for an employer, that is no longer in existence, and I worked for them over 3 years ago – am I out of time to bring a claim?

Not necessarily.

Industrial disease cases are very complicated. Even if your employer has gone out of business, we may be able to trace a relevant insurer for that period of time.

The time limits to bring claims for industrial disease, usually starts from the date of knowledge, in other words when you realised that your medical problem related to your work conditions.

In certain circumstances, where the employer and the insurance company cannot be traced, there are government schemes available for compensation. Again, this is a very complicated area of law, and you need to talk to one of our specialist solicitors.

I have had a car accident that wasn’t my fault, but the other party was uninsured. Does that mean I won’t be able to bring a claim?

You will be able to bring a claim. There are various schemes run by both the government and insurance companies, that we can assist you in bringing a claim.

I have been involved in a car accident, and the other party drove away, and cannot be traced – can I still bring a claim?

Yes, you can still bring a claim. You will need to report the matter to the police straightaway, and providing you do this, we can help you make a claim for compensation.

I have had an accident that is not my fault, my insurance company are insisting that I go to a solicitor of their choice, do I have to?

No, absolutely not. Whatever your insurance company may tell you, you have a choice. So before you make a decision, take advantage of a free, no-obligation appointment or chat, with one of our Personal Injury experts.

Do I have to come in to see the solicitor?

No. Of course, you are very welcome to come in, and we encourage people to come to our office to meet us and to talk about your claim.

However, it is possible to deal with the matter over the telephone, and by email. We would also be happy to see you at your home, place of work, or hospital.

Why do I not receive 100% of my compensation?

The law changed on 1st April 2013.

Solicitors are not able to recover all their fees from the Opponent. This means, when the case is won, they will charge a fee, but that fee will never exceed 25% of compensation.

In addition, if you have taken out an insurance policy the premium will have to be paid in addition to the 25% if the case is successful. Again, we will discuss whether you need to take out an insurance policy, and the costs of the same with you.

Will I have to pay anything if I lose?

We will do everything possible to ensure that you win. In the unlikely event of a loss, with the package available at PHH Solicitors, you will not be responsible for payment of any legal costs, either your own or the other side’s.

Why choose PHH Solicitors?

We believe that we are good at what we do, we will offer you a personal and professional service, and ensure your claim is dealt with by qualified people. Only you can be our judge, so why don’t you take advantage of a no obligation, free initial interview and make up your own mind.

Wills & Probate

Do I need a Will?

Yes. Although the law in England would ensure that your assets are passed on to your next of kin after you pass away (called the laws of ‘Intestacy’), this may not happen in the manner, proportions or to the people you want them to.

Even in circumstances where the laws of Intestacy match your wishes, leaving a Will offers clarity to your family and friends and provides them with comfort that they are carrying out your own wishes.

Additionally, making a Will allows you to appoint your own Executors or legal guardians for under age children.

Can I change my Will in the future?

Yes, you can change your Will whenever you want to and at whatever time. Sometimes an entirely new Will isn’t necessary, and instead amendments can made to an existing Will via a ‘Codicil’.

Can I include funeral wishes in my Will?

Yes. Although not legally binding, funeral wishes may significantly help your family friends or your Executors after you pass away.

What are Executors?

Your Executors are the people that you choose to carry out the terms of your Will, and are often referred to as your Legal Personal Representatives.

They can be family, friends or professional advisors such as solicitors.

What are the duties of an Executor?

Their duties are to ensure that the instructions you leave in your Will are carried out in accordance with your wishes.

I have young children. I wish to appoint somebody to look after them (not just the money) if I should die before they become 18. What should I do?

Guardians can be appointed in your Will during the years of your children’s minority.

How do I deal with the issue of my children’s residence if I die?

You can leave your property to whoever you wish to in your Will, but having dependent children, a new partner, a former spouse or step-children may make this a difficult decision.

You may wish to consider ‘Rights of Occupancy’ over dividing your property. We can draft bespoke provisions to balance the competing needs of your family according to your individual circumstances.

When Inheritance Tax is NOT paid?

The following gifts are free of tax:

  • A gift to a spouse or Civil Partner who has a house in the UK. That applies either to amounts in your Will or made in your lifetime.
  • It can be exempt if you give it to a qualifying charity..
  • If you survive for 7 years after making a gift to somebody, that gift is generally exempt from Inheritance Tax. If you die between 3 and 7 years after making the gift then tax is at a lower rate.
  • You can give up to £3,000.00 each year. That is in addition to any other exemption.
  • You can make small gifts of £250.00 to as many individuals as you like each year.
  • If you give to somebody who is getting married or registering as a Civil Partnership then that gift can be exempt up to the sum of £5,000.00.
  • If the estate contains a business, Woodland or National Heritage property then there is relief from Inheritance Tax.
  • A further way of mitigating Inheritance Tax can be to set up a Trust. However, we must make it clear that we do not advise on Trusts. This is a complex area where you would need to seek further professional advice.

What is ‘Probate’?

The word ‘Probate’ is typically used to describe the process of administering an estate after a bereavement. At law, it is the process of proving a Will in court so that it is accepted as a public document and the true last Will and Testament of that person. The process is slightly different when there is no Will.

Will my Executors have to ‘go through Probate’?

That depends on the nature of your estate. In some circumstances, such as when the person didn’t own a property and had very little savings, it may not be necessary. Our solicitors can advise whether Probate is required quickly so you know the best course of action.

What happens when there is no Will?

The deceased’s next of kin will have to apply to a Probate Registry to confirm that there is no Will. In these circumstances the ‘laws of Intestacy’ apply. Our solicitors can advise you on what may be required quickly.

I am an Executor in a Will, what do I need to do?

The Will needs to proved, as the original Last Will and Testament at a Probate Registry. The Probate Registry will then issue a ‘Grant of Probate’, a certificate that allows you to deal with the deceased’s affairs.

Our Solicitors can advise you on proving the Will and guide you through the process.

How long can administering an estate take?

This depends on the nature of the estate. For example, if a property needs to be sold, the time taken will depend on the property market in the area. Typically, just obtaining a Grant of Probate in a simple estate will take 4-8 weeks.

How do I pay for a funeral promptly?

Funeral invoices can be sent to and paid directly by a bank or building society that deceased held money with. A death certificate should be sent with the invoice together with instructions on paying the funeral directors. This can be done immediately without proving a Will.

How do I pay inheritance tax?

Banks and building societies will usually release any money they hold on behalf of a deceased directly to HMRC if tax is payable. If this is not an option, bridging loans and other financial planning can be put in place, however this needs to be discussed directly with your solicitor in connection with a financial advisor.

Where can I find out more about Inheritance Tax?

HMRC have a very helpful website:

www.hmrc.gov.uk/InheritanceTax

What is a Deed of Variation?

A Deed of Variation allows the beneficiaries of an estate to agree to change the way the assets of an estate are distributed. This is often advisable to take advantage of inheritance tax exemptions and for other planning, such as for vulnerable beneficiaries. Our solicitors can advise you fully and prepare any Deed of Variation you may require.

Contentious Probate

When should a Claim be made?

As soon as possible. It is normally necessary for an application to the Court to be made within 6 months of the grant of probate. Whilst the Court does have discretion to extend this time period, exceptional reasons will need to be demonstrated to support the application.

This could happen if, for example, a potential applicant was out of the country travelling and were completely unaware that the deceased had passed away, or if an Executor had applied for probate but misled the potential applicant into thinking that they were not going to do so until the potential claim had been considered without recourse to litigation.

Who pays the costs for the application?

If successful, the Court can order that the costs of the application are paid out of the estate. If the assets in the estate are limited, this can mean that the beneficiaries receive less than they may consider would have been “reasonable provision” under the Act.

If the application is unsuccessful, the claimant will normally have to pay both their own costs and the costs of the estate. This is another reason why it is essential to have expert legal advice before bringing any claim to ensure that the claim is advanced correctly and has the best prospects of success.

What if the beneficiaries agree to an alternative arrangement?

Frequently the potential beneficiaries are able to reassign the assets themselves without the necessity to ask a Court to intervene, however there are rules restricting when this can be done and there may be issues regarding potential tax consequences. Therefore, even if you believe that you can “sort it out” between yourselves, legal advice should still be considered to “sign off” on any proposal and ensure there aren’t any unintended implications.

These provisions should also be considered if you are considering making a will that you anticipate may be controversial when the provisions become known after your death. There are steps that can be taken to try and protect your wishes and inform a Court why the legacy for certain potential claimants is limited or even non-existent, whilst maintaining privacy and discretion on what may be very personal issues.

Conveyancing

How long will it take?

The average time between instructing your solicitor and moving in is 10-12 weeks but many transactions proceed more quickly and some, more slowly.

Each transaction is unique so whilst we can provide you with a rough timescale there are a number of factors that can affect how long it takes to complete a matter. We will endeavour to update you on timescales as often as is necessary as your transaction proceeds.

What is a Conveyancing “chain”?

To avoid the risk and cost of owning two houses people usually elect to buy and sell at the same time. This leads to a number of house sales and purchases taking place on the same days, each dependent on the other; this is called a ‘chain’.

Exchange of contracts must take place at the same time in all the transactions in the chain. This means that the speed of progress is dictated by the slowest link in the chain.

How much will it all cost?

If you are buying you need to budget for legal fees and disbursements. “Disbursements” are payments made by your solicitor to others, such as stamp duty land tax, land registry fees and third-party search fees. You also need to budget for lender’s valuation fees and your own survey fee.

If you are selling you need to budget for estate agent’s fees and legal fees as well as any third-party disbursements that are incurred, such as Land Registry fees and Indemnity Policy costs.

When should I instruct my solicitor?

If you are selling speak to your solicitor before you put your house on the market. Your solicitor will prepare a Home Information Pack which includes information and documents on your home and will be provided to your buyer’s solicitor once a sale is agreed. If you are buying, make contact with your solicitor before making an offer.

When should I apply for a mortgage?

Do some initial research before you view properties. There are thousands of different mortgages on the market and you need time to find out which one is best for you. You should obtain a mortgage in principle from most lenders before finding a particular property.

This will establish your budget and ensure that you can afford the properties you are viewing. If an offer is accepted without a mortgage in principle then there can be a significant delay in the transaction whilst your solicitor wait for your mortgage offer.

When do I know the property is mine?

Once contracts are exchanged a legally binding agreement arises. This sets the date for completion i.e. the moving date and gives everybody in the chain comfort that at this date all of the houses in the chain will be transferred. Your solicitor will agree exchange and completion dates with you before they happen.

What is the difference between “exchange” and “completion”?

Exchange of contracts is the point at which the seller and buyer enter into an agreement with one another and commit themselves to buying/selling the property on the completion date.

A completion date is the date on which you move into your new property and vacate the old one. The agreed completion date is written into the contract.

What is a “Local Search”?

It is a set of standard enquiries that your solicitor raises with the local council. It relates solely to the property itself and would not, for example, reveal proposals to develop or extend neighbouring land or property.

The local council charge a fee “the local search fee” which your solicitor collects from you and pays to them when the search is done.

The builder has given me 28 days to exchange contracts. Can this be done?

Yes, subject to receipt of mortgage offer (if applicable). Builder’s solicitors usually pre-package legal work and often the developer will allow you to exchange contracts conditionally upon the sale of your own property. Speak to your solicitors as soon as possible to agree a timetable for exchange.

Can I save Stamp Duty?

The rules governing Stamp Duty Land Tax are complex and the answer to this question is dependant upon the particulars of your transaction.

Your Solicitor will establish with you at the beginning of the transaction what they estimate your stamp duty liability to be. This is a personal tax and whilst the solicitor will make payment on your behalf,

it is your liability to ensure the tax return is correct and payment is for the correct sum.

Do I pay Capital Gains Tax?

As legal advisors we are not authorised to give you advice on any tax related matters. We would suggest you raise any tax queries with your accountant or financial adviser.

Do I need to have a survey?

It is always best practice to obtain a survey to ensure that there are no physical defects to the Property before you purchase it. If there are physical defects this could affect the price you are willing to pay for the Property. Your solicitor will not carry out a physical inspection of the Property and the scope of their advice is limited to the legal issues. It is your responsibility to ensure that the Property is in good repair and to obtain a survey if required.

If you are taking out a mortgage your lender will require a valuation. This is different from a survey as it concentrates only on the price of the property to establish whether the property is worth the money you are paying for it. The lender will want to make sure that the property you are purchasing is worth the amount stated in your mortgage offer. It is for the lender’s benefit, but it is always sensible to have your own independent valuation and/or survey in any case. Your solicitor can recommend a good local surveyor.

Can I avoid Inheritance Tax?

As legal advisors we are not authorised to give you advice on any tax related matters. We would suggest you raise any tax queries with your accountant or financial adviser who will discuss with you how best to structure a transaction to achieve your aims.

Can I let the property?

If you are buying with a mortgage you must get the consent of lender before letting your property. You will usually be required to obtain a buy-to-let mortgage if this is the case.

Some titles restrict the use of the Property and so may prevent the letting of the Property or require the consent of a third party. This will be revealed to you as party of the solicitor’s findings on the property. If you own a leasehold property you must check the terms of the lease to make sure that letting is permitted.

Can I extend my property?

There are sometimes restrictions in the title deeds which prevent extensions or require consent of another landowner. Larger extensions require local authority planning permission and any structural work will also need approval under the building regulations.

Some areas are designated conservation areas and special planning restrictions apply which often prevent extensions. You should check these points with your local authority before you commit yourself to a purchase.

Can I stay in my property after completion?

Not unless you have specifically agreed with your purchaser otherwise. The standard residential contract provides that you must vacate on the day of completion and clear the property of all your furniture and belongings.

If you do not give “vacant possession” the buyer may sue you for any loss and inconvenience caused. If you require occupation of the Property past the Completion Date you must discuss this with your solicitor and get the agreement of the Buyer prior to exchanging contracts. It would be best if this was agreed when an offer is accepted.

Property & Finances - TAKEN FROM OLD WEBSITE. CAN WE DELETE?

Can my ex-husband/wife make a claim on my property or finances after a Decree Absolute has been pronounced?

If you haven’t got what is known as a Clean Break Consent Order or an Order from the Court then technically they can. This is a document that sets out arrangements made in relation to finances and dismisses any further claims.

The benefit of this is that even if you do not have any finances or assets at the moment if you were to come into a sum, through for instance inheritance or a lottery win then your partner would be unable to make a claim against you.

How much is a dispute over property and finances going to cost me?

It is very difficult to give an exact figure. The following factors can influence costs:

  • The degree of co-operation over financial disclosure. If either party fails to properly disclose assets, this can lead to increased expenditure on costs.
  • Whether or not the value of assets is agreed. If not, there can be arguments and additional work over valuing these assets including instruction of experts.
  • The speed at which settlement is reached. The earlier the settlement, the lower the costs.
  • The amount and value of assets in dispute.

What does Financial Remedy mean?

Financial Remedy proceedings are Court proceedings issued specifically in relation to property and financial matters where there is a divorce, Judicial Separation or annulment.

How are property and financial disputes usually dealt with?

A dispute can be dealt with in the following ways:

By settlement between the parties either by themselves or through solicitors

Clearly, this is a desirable approach. The benefit of seeking advice from a Solicitor is that they can provide advice in relation to what sort of settlement would be considered a fair one by the Court in view of case law and legislation. The first stage would be for the Solicitor to obtain all relevant information as to the parties and their children. Details of the income, potential income and any actual and potential benefits should be obtained. Details of all assets with values should be obtained from both parties.

At that stage, consideration should be given to settlement. If that fails or if financial disclosure has not been adequate an application may need to be made to the Court.

By mediation

This approach is where both couples meet with a trained mediation practitioner and try and reach an agreement together. A mediator is unable to provide legal advice as to the fairness of any settlement. This approach can be beneficial in terms of costs but again, may not be suitable for everyone if there are disagreements or if one party is more dominant than the other.

By Court Proceedings

If all other attempts at reaching a settlement fail then the last resort is Court Proceedings. Even if proceedings are issued, however, a mutual agreement can still be reached right up until the final hearing. It is always best to try and agree as settlement that both parties can be relatively happy with then let the Court decide a settlement that neither party may agree with.

I made a Will before my divorce – is that still going to be valid?

It may not but if it is, and if you do not want your ex-husband/wife to be a beneficiary of your Will in the event of your death you should make a new Will.

What factors should be taken into account when negotiating a settlement?

We would have regard for the factors set out in the Matrimonial Causes Act 1973 and relevant Case Law.

Matrimonial Causes Act 1973 Basic factors to consider in relation to property and finances as listed in the Act include:

  • The welfare of any child in the family who has not reached the age of 18.
  • The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the future.
  • The financial needs, obligations, responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
  • The standard of living enjoyed by the family before the breakdown of the marriage.
  • The age of each party to the marriage and the length of the marriage.
  • Any physical or mental disability of each of the parties to the marriage.
  • The contributions made by each party to the welfare of the family, including any contribution made by looking after the home or caring for the family.
  • The conduct of each of the parties if that conduct is such that it would, in the opinion of the Court, be unfair to disregard it.
  • The value to either of the parties to the marriage of any benefits (for example a pension) which because of the divorce that party may lose a chance of acquiring.

Case Law
There have been cases where Judgments have been made in relation to property and finances which have influenced further cases and can cause a change in the law.

How long does negotiating a settlement usually take?

It is not possible to give an exact answer because the length of time can depend on so many factors including:

  • The time is taken for the other party to provide financial disclosure.
  • The number of issues that are disputed
  • The amount of assets and finances to be divided.

We always give an estimate, based on the information we have at the time, of the likely length of time that the case will take when we are instructed.

If we make a settlement without going to Court how can it be recorded?

It can be recorded in a document called a Consent Order. This document will set out the arrangements in relation to the settlement and if it is a clean break Order then it will dismiss all further claims between the parties. This document will then be sealed by the Court after Decree Nisi is granted.

What if negotiations fail?

If negotiations reach a point where matters cannot be resolved then issuing an Application to Court may have to be considered. These are known as Financial Remedy Proceedings

What is a Pre-Action Protocol?

This is a guideline for solicitors which is part of the Family Law Protocol. The Family Law Protocol is a set of rules that Solicitors should follow, produced by the Solicitors Regulation Authority which is a division of The Law Society. This document deals with the procedure before a Court application is issued.

The aim of Pre-Action Protocol is to ensure that:

  • Financial disclosure and negotiation takes place in suitable cases.

Where there is financial disclosure and negotiate it is dealt with:

  • Cost-effectively
  • In line with The Family Proceedings (Amendments) Rules 1999.
  • The parties are in a position to settle the case fairly and early without litigation.

The document is very lengthy and covers many issues the basis is as follows:

  • Solicitors should consider the possibility of mediation.
  • Solicitors should consider using a Court Timetable, even if proceedings are not issued to ensure that matters are dealt with promptly and in a correct format.
  • Solicitors should consider Court action as a last resort.
  • The initial letter written in relation to finances should be approved of in advance by the client unless stated otherwise.
  • Solicitors should recommend the other party see independent legal advice in their initial correspondence.
  • A Court Application should not be issued when settlement is a reasonable prospect.
  • The protocol underlines the obligation of both parties to make a full and frank disclosure of all facts, documents and other information relevant to their issue.

We follow the Family Law Protocol at all times.

What financial disclosure is required in financial matters?

During financial or property matters both parties will be required to provide full and frank details of their income, assets, savings property, pensions or other relevant details.

What are Financial Remedy Proceedings?

These are court proceedings that deal specifically with issues over property and finances.

What types of Orders can be applied for?

  • Maintenance Pending Suit or outcome of proceedings.

This is an application for maintenance to be paid whilst divorce proceedings are ongoing. This is sometimes referred to as interim maintenance. See further questions on maintenance for further details.

  • Property Adjustment Order.

This is an Order where one party is ordered to transfer to another their interest in property.

  • Periodical Payments Order.

This is an Order for maintenance to be paid after the final Decree Absolute. The Court can limit the duration of the maintenance or in some cases it will terminate on death or remarriage. For more information on maintenance see our questions.

  • Lump Sum Order

This is an Order for a payment of a capital payment in a lump sum, which is one payment only, which can be made in instalments or paid as one amount.

  • Pension Sharing Order

This is where the Court orders the pension provider to transfer some of one party’s pension rights to the other. For more information on Pension Sharing Orders see our questions.

  • A Secured Provision Order

These are maintenance payments which are guaranteed. The Court is obliged to specify which assets on which security is to be given. This is in effect a charge on those asses in similar terms to a charge registered on a property.

  • Clean Break Order.

This is an Order which dismisses all financial claims from either party.

In some cases there can also be an application to vary previous orders made in respect of finances if there has been a change in circumstances.

How long do Financial Relief Proceedings usually take?

It is not possible to give an exact answer because the length of time can depend on so many factors including:

  • The time taken for the other party to provide financial disclosure.
  • The amount of issues that are disputed.
  • The amount of assets and finances to be divided.

We always give an estimate, based on the information we have at the time, of the likely length of time that the case will take when we are instructed.

Do I have to apply for a Divorce to issue Ancillary Relief Proceedings?

You will have to apply for a divorce in almost all cases unless your spouse has already applied for divorce.

Will I need to go to Court?

You will need to go to Court, unless the matter is settled.

What is the procedure?

Upon making an application for a Financial Order the Court will set a timetable as to when certain documents should be filed at Court in order to ensure that the case is progressing towards an early settlement. Whilst this is ongoing, it is always our intention to try and resolve matters as quickly and early as possible, whilst at the same time full disclosure of financial matters is necessary for us to advise you and for the Court to make a decision. The process is as follows:

  • First Stage – Disclosure The parties will be required to complete a Financial Statement (Form E) in which they will disclose all of their assets, income and other financial information.
  • Second Stage – First Court Attendance known as First Directions Appointment (FDA) The first Court attendance is the first appointment when a District Judge will consider issues between the parties and will direct how the case is to proceed in the most effective way. The intention is to propose an early negotiated settlement.
  • Third Stage – Second Court Attendance – Financial Dispute Resolution (FDR) If the matter has still not settled or been agreed then the FDR is a hearing where both parties are encouraged to try and negotiate and discuss a potential settlement. The District Judge will play an active role in this hearing by listening to the arguments of each party and will usually express a view what he/she considers to be a fair settlement. If at this point a settlement is not reached, the mater will be listed for a final hearing.
  • Fourth Stage – Final Hearing The majority of cases do settle before a final hearing and very few cases get this far. In any event, if they do not settle then a District Judge will make a Court Order based upon all the evidence and submissions put by each party and their legal advice. That decision will be binding.

What ways are pensions dealt with in Financial Remedy proceedings?

There are a number of ways that a pension may be dealt with in a financial settlement, including:

Offsetting

This means that the value of the pension is offset against any other matrimonial assets. This method can be beneficial as it provides a clean break between the parties. However, for some offsetting could mean losing out on a substantial part of the settlement as the retirement benefits may be of more value than the matrimonial assets.

Pension Sharing Order.

This means that the Court orders the pension provider to transfer some of one party’s pension rights to the other. This essentially separates the pension. The benefits are that if you receive part of the other party’s pension through a Pension Sharing Order you will have a pension of your own. Your share can go into a new Pension Scheme if you choose. Also, you are unaffected by whether your former partner dies or retires and the Order is not affected by you remarrying.

Earmarking/Pension Attachment Order.

With earmarking, the pension benefits still belong to the pension holder, but the Court will order that the benefits that are earmarked will be paid to the other party at the same time that their benefits are paid. Earmarking has limitations and is not widely used.

Are pensions always divided equally in a Pension Sharing Order?

No, they are not always divided equally. The percentage of the division depends on the amount and value of the other matrimonial assets.

I have a high value pension, what specialist advice should I seek?

If there is a high value pension then we would recommend you seek advice from an Independent Financial Adviser or Actuary who can then provide expert evidence if needed.

Are contributions made by a parent to childcare important?

Contributions made by looking after the home or caring for the family are regarded as being of substantial importance even if the party concerned has not worked in paid employment.

Who are considered children of the family?

Children are considered children of the family in relation to Ancillary Relief proceedings if:

  • They are children of both parties
  • They are children of one party but are treated as children of the family.

I have a disabled child, does that make a difference?

It can do. Clearly, the needs of such a disabled child may well be increased in terms of financial assistance. In addition, if a child is disabled and over 18 years then that child could still be relevant to any settlement which would not normally be so in the case of a child aged over 18 years of age.

My husband/wife has a business, can I make a claim on that business?

It is likely that the business will be taken into account as an asset. The following factors become important:

  • The value and nature of the business (values of business can be difficult to ascertain). Whether the claims that you have could be adequately met from other assets.
  • All other factors that have to be taken into account on deciding a financial settlement.
  • Of particular relevance to a business is whether or not the party making the claim had any involvement with the business. If they did then their claim becomes stronger.

My husband/wife and I have a joint life policy. How should that be dealt with?

There is a difference between a life policy such as an endowment policy which requires a surrender value and a life policy where a sum would be payable purely on death. If the policy has a value then this is an asset which in some cases can be considerable and must, therefore, be taken into account when dividing the assets of the parties.

How important are contents in a financial settlement?

In financial terms, they are not important. Certainly, Courts are very reluctant to get involved in disputes over contents and the costs would rapidly outweigh the benefits. The only exception would be contents of exceptional value, for instance, antiques.

Nevertheless, it is accepted that certain contents may be of personal or sentimental value and therefore can be dealt with as part of the settlement.

What is the difference between income and earning capacity?

Income is the amount, you currently earn but earning capacity is the amount you potentially can earn. The Court will not only look at the actual earnings at present by the ability to earn in the future.

For instance, a parent who is currently not able to work or only work part time due to child care restrictions may, in the future be able to return to full time work and therefore this will be taken into account by the Courts.

Is my income taken into account in a financial settlement?

Yes and it would be subject to the same balancing process. For instance, if one party had a higher income than the other then their entitlement to a claim on the assets may be reduced.

I believe my husband/wife is about to dispose of an account which I may have a claim on. Can I do anything to prevent this?

You may have to make an Application to the Court. If the Court is satisfied that your husband/wife is about to dispose of an account to prevent you from making a claim they have the power to prevent them from doing so.

The Court would also have to be satisfied that your claims could not be met in any other way. For instance, if there was a house of adequate value to meet your claims the Curt might feel that the account need not be preserved although it could always be taken into account in any settlement even if it had been disposed of.

Can I make a claim on account which has already been disposed of?

In these circumstances, the Court may set aside the disposals. However, again the Court would have to be satisfied that the monies in that account are necessary to meet your claims.

The other practical point is that if the monies have been disposed and not put into any other assets then there may be nothing that can be done. Any application would have to be made within 3 years of the transaction.

What is a Clean Break Order?

A Clean Break Order is a dismissal of claims made by either party against the other. This most likely will include a dismissal of all claims now, in the future or upon death.

It is advisable that there is full financial disclosure obtained before making the decision to enter into a Clean Break Order. In any event when the Order is filed with the Court both parties have to complete a Statement of Information setting out their financial circumstances. A District Judge will then decide whether or not to grant the Order.

If an Order has been drawn up and one party has not had legal advice, the Court is likely to list the matter for a short hearing to ensure that they have considered the fact that the settlement may not be in their best interests as they have not been advised on what they may be entitled to.

Once an Order has been granted it is legally binding upon both parties.

Can a Financial Order be varied?

No, it cannot, although in some circumstances it can be set aside.