FAMILY LAW - Divorce and related questions.
What Are The Grounds For Divorce? Who Can Change A Child’s Name?
Andrew Lee Solicitor answers some of the most frequently asked questions relating to the Family Law.
Who can change a child’s name?
Whilst there is no clear legal authority on whether a parent without parental responsibility needs to consent to a change of name, it is best practice that their consent be obtained.
The simplest way of changing a child’s name is through a change of name deed. This is a straightforward deed that both parents should ideally sign (so as to avoid any doubt that both parents consent to the change). Sufficient certified copies are retained so that they can be sent out to all relevant agencies.
It is more complicated to register a change of name at the Royal courts of Justice. It is also unnecessary, so best avoided.
What Are The Grounds For Divorce?
There is only one ground for divorce – that the marriage has broken down irretrievably.
The divorcing spouse (who issues the petition) is called the Petitioner. The other spouse, who has to respond to the petition, is called the Respondent.
However to prove this one of 5 facts must be pleaded:
Defined as heterosexual intercourse between a married person and someone who isn’t their spouse. This fact is not available for a same-sex marriage.
2. Unreasonable behaviour
Or, more precisely, that the other spouse has behaved in such a way that the petitioning spouse cannot reasonably be expected to live with them. It is a very subjective test. The vast majority of petitions are based upon this fact. This is the fact to use where there is infidelity without proof of adultery, or in all cases of infidelity in a sane-sex marriage.
Has to be for the two years immediately preceding the presentation of the petition. It requires one party to leave the other (though desertion whilst living under the same roof is possible, it is not so straightforward), and although the other party can be glad to see them leave, there is sufficient doubt and confusion about whether desertion may be brought to an end by the deserting spouse having a change of mind, or by the deserted spouse deciding never to take back the other, that this is a fact that is seldom used.
4. Two years separation and consent
Requires, as with desertion, separation for two years. The respondent to the petition must consent to the divorce.
5. Five years separation
This does not require the consent of the respondent.
There are ways in which the respondent may seek to delay or prevent the divorce in a five year separation petition. Legal advice would have to be sought, but generally it involves the respondent persuading the court that they would suffer grave financial or other hardship were the divorce to go through.
What Is The Procedure For Financial Remedy Proceedings?
There are 4 main types of financial remedy orders on divorce:
- Lump sum
- Transfer of property
- Spouse maintenance
- Pension sharing
A party wishing to apply will issue a Form A – pretty much a tick-box form, which is filed at court along with £255.
The court will issue an order, requiring the parties to do certain things. The main points are:
- File a Form E – a detailed financial statement to which evidence such as bank statements and valuations need to be attached.
- On seeing the other party’s Form E, prepare a chronology, statement of issues and questionnaire.
- Attend a First Appointment.
At the First Directions Appointment (FDA) the judge should have looked at all of the paperwork exchanged, got a feel of the case and the likely issues, and will make directions on how the case is to proceed.
Directions made at the FDA need to be carried out.
Typically they will involve the parties being ordered to respond to the other’s questionnaires, property valuations, accountants reports where there are businesses involved, and a pensions report in appropriate cases.
These directions are made in order that the parties may be able to consider all of the relevant issues (as identified at the FDA), and thereafter move on to consider how they would be prepared to settle the case. Both parties are obliged to make an offer for settlement.
There will be a court hearing, called a Financial Dispute Resolution hearing (FDR). At this hearing, a judge will get to see the offers that have been made, and will be able to offer an opinion on how the court might, at final hearing, deal with the various issues that remain unresolved. The purpose of this hearing is to encourage the parties to settle the case. If agreement can be reached the final order should be made there and then. If no agreement can be reached the judge will fix a date for the final hearing.
The final hearing is where the parties lose control, and place their fate in the hands of the judge. The offers made at the FDR will not be known to the judge who deals with the final hearing. The FDR judge will have no further involvement with the case.
The parties will prepare open offers. At this hearing the court will take evidence from the parties and possibly also any experts who have prepared reports, and other witnesses in appropriate cases. Each witness will be cross-examined.
The lawyers for each party will then try and persuade the court why their client’s favoured order should be made. The judge will then decide what order to make.
The costs of these proceedings can vary immensely. The more issues there are to resolve the greater the costs will be. It is nearly always the case that it is better for the parties to negotiate a reasonable settlement early on.
Financial Remedy Proceedings – What Does The Court Take Into Account?
When the court decides what financial order to make on divorce it is directed to take in to account the factors mentioned in s 25 of the Matrimonial Causes Act 1973.
- Income, earning capacity and other financial resources
This means everything both parties earn, everything they have the capacity to earn, and all the capital and other financial resources they have (can include trust assets even in a discretionary trust). Often there will be a disagreement about when or whether a parent who has previously not been employed or worked part-time to bring up children should re-enter the job market.
- Financial needs, obligations and responsibilities
This will include income and capital needs. Capital needs will nearly always involve housing needs, but there may be other capital needs to be met. Obligations will include payment towards children from a prior relationship. Needs is the one factor that tends to trump all others. The need to house the children of the family is usually the first need that the court will want to see met.
- The standard of living enjoyed during the marriage
This will be taken in to account, but the court is aware that in the vast majority of cases there will be an inevitable drop in the standard of living for both parties.
- The ages of the parties and the duration of the marriage.
Older parties do not have as much time as younger ones to build up pension provision. When calculating the duration of the marriage the court will take in to account any periods of pre-marital cohabitation but exclude any period post-separation. In the case of a shorter marriage the awards given out by a court tend to be lower, although what has built up during the marriage itself will tend to be shared equally (subject to needs requiring otherwise).
- Any physical or mental disability of either of the parties.
This will affect the needs of the parties (see point 2 above).
- Contributions made in the past and likely to be made in the foreseeable future.
This will include contributions of capital from a source external to the marriage (e.g. from an inheritance, or from assets held prior to the marriage). It will also include caring for children. The court will not generally treat a financial contribution from income as being greater in value that a home-making contribution.
- The conduct of the parties
Only serious misconduct is taken in to account. This includes financial and other misconduct that has caused significant financial loss, or the most serious of assaults.
- The value of any benefit either party may be losing because of the divorce
This was included in 1973 so that the courts would take in to account widows benefits that wives would lose on divorce. Now that the courts can share pensions on divorce these rights are seldom relevant.
Pensions On Divorce?
Often the most valuable asset in a marriage, they were largely overlooked on divorce until the early to mid 1990s, being viewed as future income rather than capital available for distribution now.
All that changed with the Pensions Act 1995, which gave the court new powers to direct that when the pension holder came to take their pension income or capital, a proportion of this would be paid to the recipient. The court could also direct that some or all of the death in service payment would be paid to the spouse. This was called earmarking.
Unfortunately it wasn’t much used. It was, in essence, a form of secured spouse maintenance. If the recipient remarried they would cease to be entitled to anything. They could not compel the pension holder to retire at a certain date, and if the pension holder died they would lose their share of the income.
All this changed in 2000 with the Welfare Reform and Pensions Act 1999, which gave the courts for the first time the power to split a pension on divorce and award it to the other spouse.
The courts were directed to have regard to the transfer value – the reason being that each member was entitled to an annual transfer value for free – when valuing the pension, but this isn’t suitable for many pension schemes.
There are three main types of pension schemes:
- Money Purchase
Regular payments are made in to a pension account that is invested on the stock market. When the pension holder retires either an annuity is purchased with the find, which produces an income, or the pension holder gradually takes from the pension capital, which is taxed as income.
- Defined benefit
These are usually final salary schemes. The employee pays a percentage of their income to the pension fund. In return they get a promise from the employer that the pension find will pay a percentage of their final salary (depending on how many years service they had).
A transfer value of a money purchase scheme is usually very straight forward, but there can be traps for the unwary. For example some schemes offer guaranteed annuity rates, which can be far greater than the annuity rates available on the market today. For these pensions the actual value of the pension is usually much greater than the transfer value.
When the trustees of a final salary scheme are asked for a transfer value on divorce they pretty much have a discretion to make that value as low or as high as they want. They can decide what assumptions they make upon which they base their valuation. Because they have to protect the interests of the remaining members the transfer values of final salary schemes seldom reflect the true value of the pension rights. However they are important because they inform the parties how much will be paid in to the recipient’s scheme on a pension sharing order being implemented.
Often it is a good idea to seek professional actuarial advice when sharing a pension.
In July 2019 the Pension Advisory Group issued a report giving guidance to practitioners and the courts on how to approach sharing pensions on divorce.