Category: Insights

LMP’s Daniel Green comments on the pressures on the family court system and why NCDR is becoming increasingly popular

Non-Court Dispute Resolution (NCDR) is on the rise in the financial remedies world.

Parties are engaging in mediation, negotiating at Private FDR hearings, and having matters determined in arbitration with increasing frequency; and for good reason.

Not only does attending a form of NCDR demonstrate a less adversarial approach to litigation, parties are able to agree a tailor-made service which works for them, whilst reducing the stress and anxiety commonly associated with the traditional court process.

Parties choosing to use NCDR can benefit from:

1. Greater flexibility in fixing dates than is available in the Family Court (including the time available to the Judge/Expert in reading papers and being on hand for the parties);
2. Selection of an independent specialist financial remedies practitioner to oversee the NCDR (it is not guaranteed that parties will get a specialist financial Judge in Court); and
3. Comfortable, practical, and professional facilities to host the NCDR (often the Court buildings are not fit for purpose and lack basic facilities for parties).

These positives lend themselves to a more positive experience than that typically found in the Family Court. Now, more than ever, is the time for parties to be considering the use of NCDR to resolve matters, where possible, outside of the Family Court. This is particularly true in light of the announcement made by The President of the Family Division earlier this week confirming upcoming cancellations of judicial resources allocated to deal with financial remedies proceedings.

In a letter circulated to Court User Groups on 15 September 2025, the PFD set out that sweeping changes are necessary to ensure that judicial resources do not exceed the allocation agreed by the Lord Chancellor at the beginning of the year.

Financial remedies work is allocated just 9% of the judicial resources of the Family Court per year (however this does increase to13% in London).

Her Honour Judge Sapnara and His Honour Judge Hess are leading on a delivery plan of the changes coming to the Financial Remedies Court pursuant to the PFD’s announcement.

What Does This Mean?

There is set to be a reduction in judicial sitting days allocated to financial remedies proceedings. With this the following impacts are likely:

1. Cases listed for many months may be moved or adjourned at short notice.
2. Trials will be “double-booked” so there will be a primary hearing date and a “back-up” hearing date in the event judicial resources are insufficient to meet the primary hearing date.
3. Listing times are going to be longer.

The cost to parties choosing to litigate through the doors of the Family Court will be felt in terms of the increase to waiting times and with it, their costs – both in financial and emotional means.

Given the President’s announcement and the likely impact to the Family Court, now more than ever is the time for parties to consider attending some form of NCDR to work towards resolution and settlement if they have not already done so.

If you would like to understand how NCDR may help you and your family avoid stressful and costly Family Court proceedings, or have any questions relating to divorce and financial remedies, then please get in contact with Daniel Green, or any member of the LMP team, who shall be pleased to assist.

Natasha Methven explores the use of the Duxbury calculation in financial remedy cases and questions whether it is still fit for purpose.

When navigating the complexities of financial remedy cases (the legal process which decides how assets are divided after a divorce or civil partnership dissolution), the Duxbury calculation has long been regarded as the key formula to calculate a capitalised payment, which is a lump sum resulting in the recipient receiving an income for life, instead of monthly maintenance.

The calculation considers how long the receiving spouse is expected to live based on actuarial tables based on age and gender. The table changes each year due to changes in the life expectancy data and tax rates.  However, it is important to note that the core assumptions underlying the table are considered optimistic by many investment professionals, and the capital may not be sufficient to last for life.

The calculation arose following a case from 1990 called Duxbury v Duxbury, where the Wife’s accountant created a formula to calculate the lump sum that she would require to meet her income needs for life.

The calculation has been widely used in cases where a Recipient’s maintenance claim is capitalised to produce a clean break between the parties (as an alternative to monthly maintenance payments), which is always the Court’s aim if it is possible and affordable.

What assumptions is the calculation based on?

The Duxbury formula is based on a number of assumptions, including:

• The actuarial life expectancy of the recipient;
• A uniform income yield of 3% per annum (1.5% in the first year);
• A uniform rate of capital growth of 3.75% per annum;
• Inflation of 3% p.a., and
• The recipient is in receipt of a UK state pension.

What are the limitations of adopting Duxbury in 2024?

The Duxbury calculation is intended to achieve fairness between the parties. However, it is impossible to ensure absolute fairness because of the future uncertainties. This is perhaps a trade-off for receiving and being able to invest the income and one lump sum, as opposed to periodical payments over a lifetime.

For example, a party will benefit from receiving a capitalised payment if they remarry or die before the actuarial age. They also avoid the risks of the other party applying to vary the maintenance during the periodical payments term.

However, if the recipient lives longer than the actuarial age, it can be a real issue as the fund is designed to be exhausted at the actuarial life expectancy age. In reality, we now see people living well into their 90s, and even to 100. A party’s capital can therefore be depleted, and they will be unable to meet their needs, at an age where there is little recourse to find alternative sources of income.

There are also many variables which means that the assumptions can be not reflective of the economic reality.  For example, inflation has fallen in the past year from almost 10% per annum to 3.8% per annum. In addition, the recent Covid-19 pandemic has shown that it is impossible to predict what may happen which may affect the fairness of the original award.

What are the alternatives?

The Courts recognise the limitations of Duxbury, and it has been described as a “tool not a rule”.

There are calls for a review of the Duxbury model, and perhaps a solution is that there are a range of tables produced that can be applied to different circumstances, such as the recipient’s approach to investment risk.  The current model assumes that investment returns are high, when in fact this is not a guarantee, especially if a recipient is not financially savvy. The parties may wish to receive investment advice and assistance, but there are no allowances for the cost of investing.

A committee known as the Duxbury Working Party Redux (“DWPR”) is formally reviewing the Duxbury methodology. It is not yet known if this will bring about significant changes and deal with the limitations.

In the meantime, an alternative that parties are exploring is cash flow planning with investment firms. However, concerns are raised often by the other party that the cash flow planning and analysis is biased to inflate the recipient’s requirement.

Although solicitors can offer some general guidance on aspects of finance in relation to divorce, we are not authorised to give specific financial advice. In these circumstances, we would involve other professionals such as accountants or an Independent Financial Adviser (IFAs).

Julian Whight, Financial Planner at Evelyn Partners, says as follows:

“Cashflow software can be far more flexible than Duxbury tables, as it enables quick answers to ‘what if’ questions that arise during negotiations, and can allow for case specific considerations, such as attitude to risk and ability to take risk, temporary or variable maintenance payments, a future sale of the matrimonial home and downsizing, anticipated gifts or capital expenses, anticipated inheritances, and other sources of income including pensions.

For fairness, consistency, and credibility, it is fundamental for financial planners who specialise in this area of guidance, to utilise the same assumptions and methodology as they would when advising any other client of their firm, regardless of whether they are acting as a financial neutral, or for one party. Many firms will have a central team that sets the assumptions for use by all practitioners, to ensure consistency of approach for all clients.”

In conclusion, dividing assets on divorce fairly and ensuring both parties’ income needs are met is complex and although formulas such as Duxbury are intended to provide useful guidance, they are a “tool not a rule”. It is therefore necessary for solicitors to carefully consider the facts of each client’s case alongside the limitations of the Duxbury formula, and where appropriate, work with IFAs to produce a cash flow analysis to ensure that their client’s needs are met.

If we can help you navigate the financial uncertainties of divorce, please contact me, Natasha Methven, or any member of the LMP team.

On 22 May the prime minister Rishi Sunak requested permission from the King to dissolve Parliament and called for an election, which will take place on 4 July.  With a general election just over a week away, family law specialist Lucy Hoare considers what could the election result mean for family law?

Upon the release of the parties’ manifestos, Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way (of which all LMP lawyers are members) welcomed family justice commitments made by all the major parties ahead of the General Election 2024.

The Liberal Democrats and Labour have both pledged to extend legal rights to cohabiting couples.  1 in 5 families in the UK are now said to be cohabiting and they are the fastest growing family type.  There have been widespread calls for change in the law relating to cohabiting partners on separation for many years now as their rights upon relationship breakdown or the death of their partner are far from equal to those of married couples. So this is a change welcomed by many (although no reform is likely to be fast.)

Meanwhile, the Conservatives have pledged to expand the Pathfinder Courts pilot currently taking place in limited family courts across the country.  This pilot is an approach to private law children proceedings which has as its focus the aim of obtaining information as early as possible in the process to enable the court to make informed decisions sooner.

With opinion polls currently predicting a Labour government what else might be set to change?

In the wake of a recession in recent years Labour have spoken of their plans for growth in the economy if they succeed at the election but also plans to stick to tough fiscal rules.  Therefore, if they win the election it remains to be seen if there will be increased public spending on the family court system. At a time when delays within the court system are lengthy and court buildings are in a state of disrepair, additional funding would no doubt be much welcomed.  Increased spending is something the Green party have committed to in their manifesto.

Private schools in England currently benefit from an 80% discount on business rates, and do not have to charge VAT on school fees. One of Labour’s manifesto pledges is to remove those exemptions, Labour say with a view to increasing the number of teachers in state secondary schools.  With financial pressures on families at an all-time high, this could be a further source of further concern for separating parents with children at independent schools.

From the other end of the political spectrum, Reform have pledged reforms to the Child Maintenance Service, including the launch of a special division of the Family Court for maintenance and defaults issues.  They also say they would introduce shared parental care on a 50/50 basis where appropriate and greater rights of access for grandparents.

Family lawyers welcomed the introduction of no-fault divorce in April 2022 but quite what further reform of the family justice system we can expect under the next government awaits the results of the 4 July election and no doubt the dust settling, but we look to the future optimistically for families.

If you have any questions about the implications of the election on your divorce or separation then Lucy or any member of the LMP team shall be pleased to assist.

Lucy Hoare reviews the recent judgment of Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents), and what it means for family law

A Supreme Court judgment handed down on the 28th June has unanimously dismissed the appeal bought by the “wife” in pursuing a financial claim against her deceased husband’s estate.

The claim, Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents), follows on from actions which started in 2017 when the wife Nafisa Hasan brought proceedings under Part III MFPA 1984 to obtain a financial remedy following an overseas divorce from her husband, Mahmud Ul-Hasan.  It was the wife’s case that during the marriage the parties had accumulated significant wealth.

The couple were married in 1981 with the husband obtaining a divorce in 2012 in Pakistan. On the wife’s application under the 1984 Act, the court in England and Wales was empowered to make any of the orders which it could make under the Matrimonial Causes Act 1973 (“the 1973 Act”) if a decree of divorce had been granted in England and Wales. Various hearings were subsequently held, but Mahmud died in January 2021 before any adjudication was made. However, the wife sought to continue with the claim for financial relief but now against the husband’s estate.

In the High Court, Mostyn J considered that the historic case law and in particular the decision of the Court of Appeal in Sugden v Sugden (1957) was in this case binding and although he considered the authority incorrect, he felt he had to dismiss the wife’s claim against the estate of the husband. Otherwise, he would have backed the wife and the legitimacy of her claim under the Law Reform (Miscellaneous Provisions) Act 1934. Mostyn J did, however, grant a “leapfrog” certificate which allowed the wife to appeal directly from the High Court to the Supreme Court. Before this appeal was heard, the wife had also died.

There were two issues before the Supreme Court and this recent decision:

– whether the rights under the 1984 Act read with the 1973 Act, were personal rights which could only be adjudicated between living parties so that, on the death of the husband, the wife could not pursue her claim for financial relief against the husband’s estate; and

– whether a claim for financial relief under the 1984 Act is a cause of action which survives against the estate of a deceased spouse under section 1(1) of the 1934 Act.

In a unanimous dismissal, the five judges of the Supreme Court confirmed that financial claims between divorcing spouses and civil partners must end if one of them dies.  The right to and obligations of financial relief are personal and cannot be pursued against the estate of the deceased spouse.  A claim cannot be pursued after the death of one of the parties, this being, in their view, what Parliament must have intended.

The position, therefore, remains the same.  The death of a party to a financial remedy claim will bring an end to the proceedings.  However, what makes it a landmark ruling for family law is that the judgment effectively highlights the outdated status of current legislation applied to cases upon divorce and that today’s principles surrounding matrimonial property and family relationships had little historic resonance when most of the current divorce laws were determined. It acknowledged that there was indeed a defect in the law which Mostyn J’s judgment had exposed, and that reform is needed to address the limited ability to make financial orders after the death of either party to the marriage. However, in disappointing the hope of Mostyn J that his decision would be overturned on appeal, the Supreme Court emphasised the fact that the task of reform is not for the courts but has to be a matter for parliament.  Yet another example of the law which needs to be brought in line with society and families today.

Clearly in any case where these issues arise specialist advice is needed.  If you would like to discuss making a financial claim upon divorce, do not hesitate to contact any member of the LMP team.

Now the dust has settled, family law specialist Lucy Hoare recaps on the key changes set to benefit private individuals following last week’s Budget.

 

CGT window extended

 

As announced by Parliament last summer, last week’s Budget has confirmed that the government will legislate in the Spring Finance Bill 2023 to makes changes to the rules that apply to the transfers of assets between spouses and civil partners who are in the process of separating. The changes will take effect for disposals made on or after April 6, 2023. The changes mean that married couples and civil partners will have up to three tax years to transfer assets such as property, shares or business interests between them, before incurring CGT.

 

Couples and their advisers have currently been working with the ‘no gain, no loss’ window of the expiration of the tax year in which the parties separate to avoid CGT when transferring assets. These new measures will greatly benefit those spouses who are separating/divorcing and are in the process of distributing assets between themselves.  It will particularly benefit those parties involved in more complex proceedings, allowing greater focus on the divorce (as opposed to tax considerations) when agreeing the division of wealth. These changes will no doubt mean that some decisions are being delayed so that couples can benefit.

 

Parties can benefit from these changes if the transfer of assets are detailed in a court order, so it is important to seek legal advice.  Where tax issues arise alongside divorce and separation, we can work alongside trusted tax advisors to advise you on the best way forward.

 

Pension and Divorce

 

Another perhaps more surprising Budget announcement which has relevance for past and future financial settlements is the removal of the current pension lifetime allowance (LTA), as well as an increase in the amount that can be saved into pensions tax-free each year, this rising from £40,000 to £60,000.

 

The measure is intended to encourage people to keep working later in life.  However, it may have an unforeseen impact on divorce negotiations as the value of larger pensions may now be dramatically increased.  Subsequently a party to a divorce who previously might not have been so concerned about proposing a share over a large pension because of the LTA, may now be more incentivised to retain these assets.  The latter new measures also give divorced parties who have shared their pension a greater chance to recover their pension value before retirement.

 

Due to these changes, where pension shares have already been agreed but not yet implemented a revised calculation may be required, particularly in cases where a pension offset is required. Negotiations involving pensions of significant worth are complex and we work alongside actuaries and financial advisors to ensure clients are best placed to make the right decisions.

 

If you have any questions about the implications of the recent Budget on your divorce or separation then Lucy or any member of the LMP team shall be pleased to assist.

Natasha Methven, prompted by the recent media speculation on Heston Blumenthal’s separation from Stephanie Gouveia, and whether they were in fact legally married, explores the very limited claims the unmarried cohabitee has in the event the relationship comes to an end.

I was interested to read the latest press reports suggesting that Heston Blumenthal, British celebrity chef, has split from his partner, Stephanie Gouveia, and the speculation as to whether Blumenthal and Gouveia were ever married, after a wedding ceremony in the Maldives. This is a debate which echoes the discussions surrounding Mick Jagger and Jerry Hall’s own Hindu wedding ceremony in Bali in the 1990s.

Hall was said to be blindsided when she began divorce proceedings and Jagger announced the ceremony had not been official. Similarly, Gouveia has allegedly said that her marriage to Blumenthal was not recognised by legal authorities and therefore “does not constitute a marriage in a legally binding sense.”

To complicate matters further, and if the press reports are to be believed, Blumenthal announced last week that he plans to officially marry his new partner, Melanie Ceysson.

If legally married, and should that marriage later end in divorce, Blumenthal and Ceysson’s claims, subject to the terms of a Prenuptial agreement (that I would recommend!), would be settled with reference to the Matrimonial Causes Act 1973, including in respect of capital and income, pensions and maintenance.

By comparison, Gouveia’s claims as a former unmarried cohabitee are treated very differently.

So, what does it mean if you are not legally married?

There is a myth that if you are living together, you are entitled to the same rights on separation as legal spouses. This is a common misconception, often referred to as “the myth of the common law spouse.” The reality is that unmarried cohabitees are treated entirely separately to married couples upon relationship breakdown.

If Gouveia was not married to Blumenthal, she should take advice to understand the limited scope of her financial claims as an unmarried cohabitee.

So, what claims do unmarried cohabitees have?

With claims being limited, property is a key consideration. If you have a legal interest in your family home (i.e. you are a joint legal owner with this being reflected on the title deeds), your rights are recognised. However, if you do not have a legal interest, the burden is on you to prove you have acquired an interest in the property. You will have to demonstrate that the Court should look beyond what the deeds say and construct an interest in the property on a beneficial basis.

There are three ways a beneficial interest can arise:

1. Resulting Trust

• Direct financial contribution to the purchase of the property registered solely in your partner’s name; and
• Evidence of the payment.

 

2. Constructive Trust

• An agreement, understanding, or promise between you and your partner as to the ownership of the property, this to be express or implied; and
• Evidence you acted to your disadvantage or altered your position because of the agreement.

 

3.  Proprietary Estoppel (a claim to enforce a broken promise)

You must prove:

• That a representation or assurance has been made to you by your partner that you have an interest in the property;
• That you relied on this promise; and
• That you suffered a detriment as a result of that reliance.

 

If there are children of the relationship, you can also consider provision under Schedule 1 of the Children Act 1989, albeit as financial support for the children rather than for you directly. This, however, goes beyond the scope of this article.

LMP can assist with the preparation of cohabitation agreements, and advise on your rights (both legal and equitable) as an unmarried cohabitee. If you are not legally married, and would like to discuss your rights as an unmarried cohabitee, please contact me, Natasha Methven, or any member of the LMP team.

Kate Stovold highlights the process, its advantages and use.

In my ten years of practice, I have witnessed an increasing popularity in Alternative Dispute Resolution (ADR), and rightly so. Court, in my view, is the last resort. I am therefore pleased to engage with and support campaigns such as Family Mediation Week (16 – 20 January 2023). It is also a great pleasure and privilege to have completed my training as an all-issues mediator with Resolution.

For me, it is refreshing when a client openly expresses a wish to avoid Court. There is an opportunity to be seized and I think it falls to lawyers to signpost their clients appropriately. It is well-documented that Court applications face delays, last-minute cancellations, unreliable judicial continuity etc. If, through mediation, parties can strike while the iron is hot, every effort must follow to facilitate the referral and expediently.

Mediation is voluntary with the onus on participants to commit to the process and the opportunity it presents for collaborative problem solving without apportionment of blame. If the participants engage with an open mind, an ability to listen and hear each other, and a willingness to resolve their issues, it should be beneficial. Open and honest dialogue promotes improved communication and provides a future-focussed resolution, particularly with the safety net of the confidential nature of the process (subject to safeguarding concerns) throughout which the mediator must remain neutral as to outcome.

That open engagement should be enhanced by the knowledge that mediation is conducted without prejudice to legal proceedings. With the exception of financial disclosure, the detail of the conversations cannot be disclosed. Hopefully, that widens the scope for negotiation and compromise.

The ultimate authority in mediation rests with the participants; an opportunity for them to retain ownership of the process and, most importantly, the decisions being made about their family. It is my experience that clients, when committing to financial or child arrangements, are more likely to honour them in the long term if the decision was theirs at the outset. Mediation, as a process, promotes empowerment – letting the participants know that they can take control of the decision-making. The hope is a win-win outcome reflecting compromise and flexibility.

It will be helpful for participants to know that the mediator must act even-handedly and impartially. Acting fairly and with integrity is also important, with mechanisms in place to ensure confidentiality. That provides a safe space for constructive dialogue.

Participants to mediation have a right to seek independent legal advice, and that must be explained to them. Appointing a solicitor is a personal choice and just as a client should feel comfortable in the mediation process, so they should feel comfortable with their solicitor. On all fronts, a client should feel understood and confident that their objectives are understood.

Knowing that multiple issues can be discussed and decided in mediation is likely to attract more couples to the process. That multifaceted approach allows participants to resolve all issues arising upon relationship breakdown. As child arrangements impact on financial arrangements and vice versa, that serves to enhance the effectiveness of the process. The individuality of the family unit is respected.

If mediating child arrangements, families will benefit if they prioritise the needs of the children and, where age appropriate, their wishes and feelings. That a child aged 10 or older can meet with the mediator, subject to safeguards and the mediator being qualified to see the child, may enhance the family’s experience.

On separation, it is not uncommon for parents to worry about its impact on the child(ren). Where parents wish to minimise that impact, and agree this as a priority, that can form part of the mediation agenda.

It is that agenda, in broader terms, that affords participants a bespoke service and one that is tailored to their specific requirements: seeking to reduce conflict, ensuring continued stability for children, financial arrangements or prioritising emotional health.   Hence the importance of the individual meetings, an information gathering exercise at the outset of the process, during which the meditator will learn the participant’s priorities and objectives and identify any concerns.

To discuss any family law matter with Kate, please contact her via email ([email protected]) or telephone (07917 015631).

Ben Stowe comments on the most recent call to update the law to reflect modern relationships but warns, if marriage is not for you and your partner, you might want to consider other options to avoid unnecessary pain.

Earlier this month, the Women and Equalities Committee authored a report on The Rights of cohabiting partners;  the Government was given two months to respond. Cohabitation is the fastest growing family type in England and Wales with around 3.6 million cohabiting couples in the UK in 2021, which is over double that recorded twenty-five years before.

The main thrust of the report is to highlight the lack of legal protection for cohabiting couples, which means in the event of a family breakdown, women in particular can suffer relationship-generated disadvantage. Not for the first time in recent years, it is a call for the law to be adapted to reflect the social reality of modern relationships while still recognising the social and religious status of marriage. The report invites reform on how cohabitants are treated with regards to inheritance and pensions in the event of a partner dying; currently cohabitants do not automatically inherit from their partner. The report is also emphatic in the continued need to dispel the ‘common law marriage myth’ with a recommendation that the Government launch a public awareness campaign to inform people of the legal distinctions between getting married, forming a civil partnership and living together as cohabiting partners. In other words, there is still a need to stamp out the erroneous belief that if you live with someone for a number years, you have the same rights as a married couple. You don’t!

It is perhaps this last recommendation to launch an awareness campaign that drops the heavy hint that in reality, any reform is unlikely to be swift and that there is a governmental duty of care that cohabiting couples need to be aware that unless they are proactive in terms of putting in place other measures to cover assets enjoyed as a family, the end of a relationship, whether by intent or by death, could be very messy indeed.

There are a number of legal measures cohabiting couples could consider to underpin their relationship and protect individual rights and expectations. Consideration for each other in terms of up-to-date wills to reflect your wishes in the event that one of you dies and how you legally hold any joint property, are two basic steps to consider in order to look after each other. One of the areas of family law that can help is a  Cohabitation Agreement. This is particularly relevant for couples with more complex family structures such as those involving businesses, significant assets in the form of trusts or international assets, or indeed for those with the wish to provide for children from previous marriage(s). While it may feel unromantic to discuss the ending of a relationship when you are still at the beginning, experience has shown that a degree of planning at the start can save a great deal of heartache if, for whatever reason, the relationship has to end.

If you are co-habiting and would like to discuss having a cohabitation agreement, please contact me, Ben Stowe, or any member of the LMP team.

Partner Kate Stovold and Solicitor Natasha Methven consider the practical consequences of the new rules and today’s introduction of no-fault divorce.

From today, 6 April 2022, there will no longer be a requirement to provide a ‘fact’ (reason) for divorce. Instead, there is a sole requirement to provide a statement of irretrievable breakdown of the marriage. Parties can apply jointly or separately and there will be no ability to defend the decision to divorce.

(For further information on the abolition of fault in divorce, please see Ending the Blame Game drafted by Cara Lahnstein.)

It is hoped the introduction of no-fault divorce will streamline the process, making it simpler and with less room for delay. Legal jargon has been updated to make the language more user-friendly, so:

• Petition becomes Application;
• Petitioner becomes Applicant;
• Decree Nisi becomes Conditional Order; and
• Decree Absolute becomes Final Order.

There will be a new minimum overall timeframe of six months (26 weeks) between the start of the proceedings (when the Court issues the Application) and when a Final Order is made. The Applicant(s) can only apply for a Conditional Order after 20 weeks. This ensures there is a period of reflection that offers time for couples to agree the practical arrangements for the future. We can assist with those arrangements, whether financial and/or in relation to the children.

What are the key considerations of the new no-fault based process?

How do you issue your Application?

The introduction of no-fault divorce brings with it a changed Application. On your behalf, we can prepare the paperwork and issue it via the online portal. If one solicitor is going to file the Application for both parties, a paper process must be adopted.

Either way, and as your legal representative, we take away the stress and worry of the paperwork.

There is a Court fee of £593. If the Application is submitted online, ‘Applicant 1’ shall pay the fee.

Will you be issuing alone or jointly with your spouse?

Sole Applicants will not be able to change their application to a joint one, so the decision on whether to apply solely or jointly with the other party must be made from the start. We can discuss these options with you.

 

What if your Application is urgent?

There should be an exceptional reason for the Application to be processed urgently. These reasons should be set out in a covering letter submitted to the Court alongside the Application. We can discuss what may or may not be ‘urgent’ and assist in persuading the Court with a carefully drafted letter.

 

Can you withdraw your Application?

Yes; there is specific paperwork for this purpose to recognise that you may change your mind. A sole Applicant may withdraw at any time before the other party has been served and does so by giving notice in writing to the Court. If a joint Application, the withdrawal must also be joint.

 

How is the Application served on your spouse?

The general rule is that the Court will send the Application to the Respondent, although the option for service via your solicitor is available upon request.

The rules about service are strict and it is important for the smooth running of the process that service is effected quickly and correctly.

 

What if you issue a joint Application and then your spouse later reneges on the process?

Joint Applications can continue as sole Applications at Conditional Order stage. If the Conditional Order has been granted, there is a specific form to be used that enables a sole Applicant to apply for Final Order following a joint Application.

 

Can you claim costs from your spouse in the Application?

There is no longer an option to apply for costs within the new style Application. However, a separation Application for costs can be filed. We can advise about that.

Behind the scenes, the parties can agree how the Court fee of £593 can be funded / divided.

 

Can my spouse still dispute the application?

The ability to challenge a divorce on the basis that the factual grounds are inaccurate no longer exists. You can no longer ‘defend’ a divorce, but it can be ‘disputed’.

Disputed cases arise when:

• An answer is filed disputing the validity of the marriage (for example, if the parties have not entered into a legally valid marriage);
• An answer is filed disputing the jurisdiction to entertain proceedings (for example, if neither party lives or has any other connection with England and Wales);
• The marriage or civil partnership has been dissolved (for example, if the marriage has already been brought to an end in proceedings outside England and Wales); or
• There is a pending cross-application for divorce.

Disputing an Application requires an offline process about which the team at LMP can advise further, to include ensuring that the timetable is strictly followed.

 

What if my Application for a Conditional or Final Order is urgent?

Urgent Applications for a Conditional Order or Final Order must be made offline on paper and lodged by email. Again, we can assist to ensure that the paperwork is filed correctly and on time. When time is of the essence, we enjoy working with clients to ensure that urgent matters are handled sensitively and expediently.

Whether you are looking to instruct a lawyer to deal with the divorce process for you, or are dealing with it yourself and have any questions regarding the introduction of the new regime, LMP are on hand to assist with your queries.

LMP supports the government’s approach to family justice – avoiding conflict wherever possible and reducing its damaging effect on families, and children in particular.

With enquiries, please contact Kate or Natasha or any member of the LMP team.

(N.B. This article only addresses the impact of the changes on divorce. For questions on judicial separation and nullity proceedings, please contact a member of the LMP team.)