Surrogacy

Surrogacy is an agreement in which a woman chooses to become pregnant and carry a baby for somebody else.  There are different types of surrogacy: gestational surrogacy, and traditional surrogacy are examples of the different types.

A person who is waiting to become a parent via surrogacy is called an “intended parent.” Couples and individuals of any type may choose this path to parenthood, but most intended parents are:

  • People who have struggled with infertility
  • Single parents
  • Same-sex couples
  • Anyone who is unable to safely carry a pregnancy to term

The difference is in whose egg is used. In traditional surrogacy, the surrogate’s egg is used, so she is the biological mother of the baby. In gestational surrogacy, the egg comes from the intended mother or a donor, so the surrogate is not biologically related to the baby. Intended parents can also have help from egg or sperm donors if they need it.

Gestational surrogacy is more common. 

An embryo is created in fertility clinic using IVF is then transferred to the surrogate.

There are a number of different ways that intended parents and surrogates can find each other.  Some intended parents find their surrogate independently.  Alternatively there are four main surrogacy organisations in the UK who can help intended parents find a surrogate.  Joining an organisation may reduce the risk associated with surrogacy. It is illegal for intended parents and surrogates to advertise that they are looking for a surrogate or willing to act as a surrogate.

Under English law surrogates can only be paid their reasonable expenses.  A surrogacy agreement will often set out in detail what payments will be made and when. The amount that a surrogate is paid for her expenses depends on many factors.

Generally the journey can take 18 – 24 months but there a number of variables that will affect this: time spent waiting for a match with a surrogacy partner, however long it takes for the surrogate to become pregnant, and more. 

It is possible for a family member to act as a surrogate.  Choosing this option can come with unique emotional challenges, so everyone involved should receive counselling, no matter how much they trust one another. This helps keep the relationship healthy and happy.

In theory this can happen because the intended parents are not the legal parents of the baby until a parental order is made by the court. This can sometimes be many months after the baby is born.  In practice these situations are extremely rare.

You should consider the following:

  • Fertility treatment costs
  • The surrogate and the intended parents should make wills
  • Immigration (if working with a surrogate abroad)
  • Life insurance for the surrogate
  • Agency fees
  • Legal costs
  • Parental leave

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Children

Parental Responsibility (PR) is the legal rights and responsibilities a parent has for the child. This may include, but is not limited to, providing a home for the child, protecting, and maintaining the child, choosing, and providing for the child’s education and/or medical treatment. Even if you are separated, you do not lose your parental responsibility and should still be involved when making important decisions about your child.

A mother has PR automatically. A married father automatically has PR of a child born to him and his wife. If a father is named on the birth certificate, then he automatically has PR.

Mediation

In the first instance, an attempt to mediate must be explored. A mediator is an independent person, often a solicitor, who tries to facilitate an agreement between the parties without court proceedings being issued. The mediation takes place without solicitors being present. An initial appointment (MIAM) will be made to speak with each party individually and to establish the suitability of ongoing mediation. If the parties choose to mediate then the mediator will facilitate sessions together or individually, depending on the circumstances of the case.

Child Arrangement Order

If this is unsuccessful after attending the MIAM, an application for a Child Arrangement Order can be made to the Court who will then determine how much time should be spent with the absent parent and whether any conditions necessary. Sometimes the Court will direct that the parties attend some form of family therapy to understand how to co-parent in the best interest of the child / children since separation and to overcome negative feelings. It maybe that matters cannot be agreed at the first hearing and so there will be a further hearing. 

CAFCASS Officer

A CAFCASS Officer may be appointed, to prepare a report and recommend to the court what they believe to be in the best interests of the child and how much time should be spent with the absent parent. CAFCASS are independent court appointed welfare officers, who will meet with the parents and if appropriate, the child / children, to establish the views of all the parties and the recommendation they make is based upon their investigations. They will also undertake a safeguarding check to ensure there are no risks that have not been highlighted. These include police checks, whether there has been any social services involvement and enquiries of the school if relevant.

Final Hearing

If no agreement can be reached at this stage a final hearing will take place whereby parties will give evidence and the court will make an Order that the parties then have to adhere to.

An attempt at mediation must first be made and, if this fails, an application to the court for a ‘Live with Order’ needs to be made. An application is made by way of a C100 application, which sets out the parties details and a short statement of the difficulties. The court will look at many factors when deciding, including the age, and understanding of the child / children and their wishes and feelings depending upon their age.

A CAFCASS Officer may be appointed, to prepare a report and recommend what they believe to be in the best interests of the child. CAFCASS are independent court appointed welfare officers, who will meet with the parents and if appropriate, the child / children, to establish the views of all the parties and the recommendation they make is based upon their investigations. They will also undertake a safeguarding check to ensure there are no risks that have not been highlighted. These include police checks, whether there has been any social services involvement and enquiries of the school if relevant.

The police can be contacted in the first instance and then an urgent application under the Children Act 1989 for a ‘Specific Issue Order’ can be made for the immediate return of the child/children. If there is a risk to their safety and wellbeing, this may be made without notice to the parent who is keeping the child/children, or it may be that an urgent hearing with notice to that parent is given for the court to then determine whether that child/children should be returned. If the application is made ex parte (without notice) the court will try to list the application as quickly as possible and also list the matter for a further hearing within a short period of time so as to give the other party an opportunity to put forward their reasons.

An application for a ‘Prohibited Steps Orders’ can be made to stop them taking any of the above actions. If this is urgent then application can be made without giving notice to the other parent.

A shared live-with / residence order is becoming much more common, as parents are able to share the time they spend with their child / children equally or unequally. It may be an arrangement where their child / children are with them on a week on week off basis, so that the child benefits from both parents. This requires a certain amount of cooperation between the parents. 

This is always a difficult issue, but it is important that before this step is taken the child’s / children’s emotional stability and security are considered. The new relationship should be stable and ideally have long-term prospects before introductions are made. Discussing this with the other parent first is advisable.

This can be a contentious issue but primarily the absent parent should be responsible for the collection and return of the child / children. If the absent parent lives some distance away, then it may be reasonable for a meeting place if it is covenant, to be arranged to assist with the spending time arrangement. If matters cannot be agreed, mediation may be possible to resolve issues, failing which an application to the court would have to be made, for a specific issue order detailing who is responsible for collection and return of the child / children with whom they reside.

Sadly, grandparents do not have an automatic right to see their grandchildren. If no agreement can be reached in mediation, it will be necessary to issue an application to the court for a child arrangement order and ask for leave of the court (permission of the court) to make such an application. If granted there will be a first hearing where it is hoped matters can be agreed, failing which CAFCASS may be appointed to establish what is in the best interests of the children.

CAFCASS are independent court appointed welfare officers, who will meet with the parents and if appropriate, the child/children, to establish the views of all the parties and the recommendation they make is based upon their investigations. They will also undertake a safeguarding check to ensure there are no risks that have not been highlighted. These include police checks, whether there has been any social services involvement and enquiries of the school if relevant. They will then make a recommendation to the court. If matters still cannot be agreed, then a final hearing will be listed for the court to decide.

Child maintenance is agreed either between the parties independently or an assessment made through the Child Maintenance Service – CMS. The court does not get involved with child maintenance save for in limited circumstances. The calculation can be made online via the CMS calculator. This is the easiest and most non-contentious way to find the correct amount of child maintenance that is payable.

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Family Finances

As a party to divorce proceedings, whether petitioner or respondent, you have the right to bring a claim for financial remedy against your spouse if you cannot agree matters between you. The claims that you can bring are as follows:

  • Spousal Periodical Payments, i.e. an Order that your spouse pay you a monthly amount. This would normally be for a fixed period of time and will commonly be increased from year to year.
  • Maintenance Pending Suit – this is an application for spousal maintenance pending the final resolution of your case which can be brought in the event you simply cannot pay your essential living costs (for example, the cost of food, services to the home, rent or mortgage payments, but not non-essential expenses such as gym membership or eating out) and your spouse has not paid a reasonable sum of money to you in the interim.
  • Child maintenance ‘top up’ order – the Child Maintenance Service deals with claims for child maintenance but in certain circumstances you may apply for a ‘top up’ of child maintenance.
  • Lump Sum Order – this would be an Order that your spouse pays you a certain sum of money by a set date.
  • Transfer of Property Order – the court may order the sale or transfer of your family home or any other properties or assets (such as shares or a car) which you or your spouse may own.
  • Pension Sharing Order – the courts may order that your spouse should receive a percentage of the Transfer Value of your pension.

Before issuing a financial remedy claim you are required to try and resolve matters with your spouse through mediation. Mediation is not for everybody and there are some exemptions to this requirement to attend, but without one of these exemptions applying, at the very least you have to attend a mediation information assessment meeting (known as a MIAM) to discuss the mediation process with an expert mediator. Your spouse does not attend this first meeting with you. If you wish or the mediator requires mediation to proceed, then your spouse will be invited to attend a MIAM and thereafter joined mediation sessions can take place if you both wish them to.

Other options to try and avoid court proceedings are to try and negotiate either directly or through solicitors.

If you do not resolve matters an application for financial remedy needs to be issued at Court.

Once financial remedy proceedings have been issued, you will be sent a date for your first hearing which is a ‘directions’ appointment, referred to as the FDA or Financial Directions Appointment. The court will give you a timetable of tasks to complete before the hearing, specifically completion and exchange of financial disclosure in Form E, filing of a Chronology, Schedule of Issues and a Questionnaire setting out any questions you wish to put to your spouse having read their Form E.

The Form E is the title given to the document you are required to complete setting out your financial position and to which you attach relevant financial documents. Typically speaking, the documents you are required to produce should go back at least one year. You must endeavour to complete the form fully, including details of all of your bank accounts, other assets including but not limited to property, ISA’s or other investment/saving funds, shares, endowment policies, income or premium bonds, pensions, personal possessions worth over £500, such as jewellery, a watch or a car.

You must also set out your debts, if any, and your income with documents support it. You are able to include some narrative information in the Form such as any known future changes to your financial position, comments you wish to make about contributions to the family assets and generally other matters which you wish the court to consider.

It is important to be as thorough as you can when completing your Form E as this will undoubtedly save costs and limit the number of questions you may be asked by your spouse moving forward.

It is possible you will need to instruct an expert witness to provide a valuation of one or more assets. You might require a surveyor to value your family home or other properties which you or your spouse may own, or an accountant might be asked to advise of the potential tax liabilities on the disposal of assets, or a valuation of a business may be needed. An Actuary is often required to value one or more of more of the pensions. 

This is not an exhaustive list and it may be necessary to instruct experts in other fields, depending on your personal situation. Typically, expert witnesses are instructed by the parties jointly and the expert’s duty is to the court, as opposed to one of the parties. Broadly speaking, once an expert report has been received, both parties are bound by it. There are limited exceptions where the court might grant permission to one party to obtain another report, but this is very much the exception not the norm and there would need to be a very good reason for a second report to be commissioned. You are not entitled to seek another report just because you do not like the report provided. This is known as ‘expert shopping’.

The purpose of the FDA is to set a timetable to advance your case. The court may need to hear arguments as to whether certain documents requested should be produced or on the suitability of questions that either you or your spouse have made if there is an objection to one or more of the questions.

The court will also determine any application made for permission to instruct an expert witness.

The court will set the matter down for a second hearing which is the Financial Dispute Resolution Appointment, commonly known as the ‘FDR’, which will usually be six – nine months later.

The court will have set out a timetable of steps that you and your spouse have to take, at the First Directions Appointment. It is important to timetable these tasks so that you can ensure they are attended to in good time for the hearing. You will almost certainly be required to exchange without prejudice offers at least 7 days before the FDR so you should start considering:

  1. What financial settlement you would be looking for in the event the matter does not settle and proceeds to trial.
  2. How far you will be willing to move from that position to try and settle without needing a trial.

At the FDR the judge will be presented with a summary of each parties position on issues in dispute and will be able to give guidance on what he or she considers to be a sensible and fair resolution to these issues, to assist in negotiating. Your solicitor or barrister will speak directly to try and negotiate a settlement, subject of course to your agreement.

If you do not settle your case with your spouse at the FDR, the Judge will set a further list of tasks that you and your spouse will need to undertake to prepare for the Final Hearing. Typically this will be to update your financial disclosure, file Witness Statements, if appropriate obtain updated Experts reports, and there will be some standard directions dealing with the run up to trial, such as preparation of court bundles and a requirement upon each party to set out their ‘open’ proposals.

The Judge who heard your case at FDR cannot be your trial Judge as she or he would have read the without prejudice offers you would have exchanged before the hearing and would have heard details of further without prejudice offers that were made as part of the negotiation process on the day.

The run up and preparation of a Final Hearing is regrettably quite expensive, and you can expect to double your legal fees from the date of the FDR to the date of the Final Hearing as a broad guide.

Your Witness Statement should set out a short chronology of your relationship, a summary of your financial position, and what you are asking the court to do and why, referring to Section 25 of the Matrimonial Causes Act 1973, which is a list of matters which the court needs to consider when determining your case. They are not listed in any order, but the financial needs of minor children, if any, do come first:

  1. 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 foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.
  2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
  3. The standard of living enjoyed by the family before the breakdown of the marriage.
  4. The age of each party to the marriage and the duration of the marriage.
  5. Any physical or mental disability of either of the parties to the marriage.
  6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.
  7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
  8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit.

Your Witness Statement must be very thoroughly prepared as it is your evidence to the court, and you will almost certainly be cross examined on it by your spouse’s legal representative at Final Hearing. You may also be asked questions by the Judge.

Remember that it is your statement even though it would be drafted by your solicitor.

If you do not resolve matters prior to your Final Hearing, the court will have given you a time estimate and you will, after having discussed matters with your solicitor come up with a timetable for the Final Hearing. 

Technically, the Judge will take the first 1-2 hours of the time listed for the hearing to read all of the relevant documentation and it is common for the trial itself to commence between 11 am and 12 pm on the first day. 

The Applicant will give evidence first, followed by the Respondent. As your evidence is in the form of a Witness Statement, you would typically be asked maybe a couple of questions by your own solicitor or barrister, and you would then be cross examined by your spouse’s barrister. You may also be asked questions by the Judge. 

In certain cases, there may be third parties who are required to give evidence. Your respective barristers would then set out your position to the Judge by way of summary, commonly called ‘closing arguments’. The Judge will then decide and issue you with his or her Judgment. Typically, the Judge will adjourn the hearing for an hour or more to consider his or her Judgment.

In some cases, the Judge will reserve Judgment, that is to say he or she will set a further hearing within the next 28 days for Judgment to be given. Your barristers will then, between them, draft the Order that the Judge has made.

Firstly, it is always open to the parties to negotiate a settlement. The court is always happy to hear the parties have settled matters without the need for a Final Hearing, whether it is early in the process or even the day before the Final Hearing is due to commence.

If you are close to settling but haven’t been able to bridge the gap between you, it might be of assistance to engage in a ’round table meeting’ with your spouse and his or her legal team to try and conclude a settlement.

You could agree private mediation with your spouse. This would take a different path to your initial mediation. You would agree to hire a mediator for a day. A private mediation would typically take place at one of the solicitor’s offices with your solicitor and possibly your barrister. The mediator would work with both parties to try and resolve matters, in which case a Consent Order could be drafted and signed on the day.

The final option would be to both agree to binding arbitration. Effectively this is akin to having a private Final Hearing. You and your spouse would jointly agree to hire and equally meet the costs of a private Judge who would effectively conduct a trial and then issue a Judgment. This could then be used to prepare a Final Order which would be submitted to the court for approval.

The general rule is that each party is responsible for their owns costs. However, often one party will fund the other’s costs. However, if this cannot be agreed there are specialist litigation funders we can approach.

If this does not succeed you could apply to the Court for a Legal Services Order. This is an interim Order where an application is made to the Court seeking that your spouse / ex- partner pay your legal costs or settle any unpaid legal fees. However, in applying you should consider in the first instance whether or not you have assets which can be used to pay your fees, whether or not you would be eligible for a litigation loan and finally whether or not your chosen solicitors can enter into a fee arrangement with you such as a sears tooth agreement. It is important that you seek legal advice before considering making this application.

The costs will vary and will depend on the arbitrator. Most often they charge at an hourly rate and some arbitrators can charge a fixed fee.

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Mediation

Mediation is an alternative means to resolving most family related issues that you are unable to resolve with another party. Mediation is a conciliatory means of discussing matters openly and amicably in the presence of an independent third party mediator. This can include arrangements for children, divorce/finances and/or property disputes following the breakdown of a relationship. In limited circumstances, where appropriate and necessary, shuttle mediation can take place. This involves the mediator carrying out the mediation whilst at all times the parties remain in separate rooms.

You will attend an initial Mediation Information & Assessment Meeting (MIAM) meeting alone with the mediator. At this stage, the mediator will decide whether this is suitable for you or not. If suitable, a further joint meeting will be scheduled with your former partner.

If mediation relates to a breakdown of relationship and finances and/or property dispute, you will exchange financial disclosure of your financial circumstances with your former spouse. You will both be required to complete a Form E financial document (or a document like this) to exchange with each other. This will include the disclosure of bank statements, property valuations, mortgage redemption statement and pension valuations, amongst other things. This is not an exhaustive list and will be bespoke to each case. An analysis of each parties monthly needs in the form of an outgoings schedule will also need to be prepared. The mediator will produce a schedule of assets and, based on this information alongside considering s.25 of the Matrimonial Causes Act, will assist you both to negotiate towards hopefully reaching a fair and reasonable settlement. However, the mediator cannot give you advice during the process or provide you with an outcome.

It is hoped by engaging in these negotiations in the presence of a mediator it will lead to you reaching an amicable agreement rather than you needing to resort to protracted court proceedings.

An agreement can be reached during mediation usually within four – six sessions. These sessions tend to take place on a monthly basis, and it is a much cheaper exercise than spending substantial sums litigating your case through the courts. It is also compulsory to attend the MIAM meeting before issuing court proceedings as a mediator needs to complete part of the Court documentation.

It is usually sensible to take advice before the process begins so you understand the process and the law that applies to your case. Advice during the process is also useful to ensure it remains on track and that you understand the implications of what you are agreeing to. Should the process breakdown we can explain the next steps open to you. If agreement is reached the solicitors are needed to draft the necessary documents.

If mediation is unsuccessful, in most cases it will be necessary to issue Court proceedings. We will advise you on the best way forward and ensure you understand the costs associated with each step.

We have a list which is reviewed regularly of mediators whom we recommend, and we will help you choose a mediator we feel you can work with and who has the required skills to help you.

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Prenuptial / Pre-civil Agreements

A prenuptial / pre-civil partnership agreement is a contract between a couple who are about to marry or enter into a civil partnership. The agreement will set out which assets each party owns and provides for how assets (whether acquired prior to the marriage / civil partnership or after) are to be divided in the event that the marriage / civil partnership comes to an end. An agreement can also set out provisions for future financial support in the event of a breakup. The contents of an agreement will vary to reflect the couple’s individual needs.

On entering into a marriage or civil partnership, the parties obtain certain legal rights, including a right of occupation in any property which is used as a family home. The marriage / civil partnership also provides each party with the potential to make financial claims against the other in the event of a breakup. These claims are for maintenance, lump sum payments, property adjustment orders and pension provision. Couples enter into a prenuptial / pre-civil partnership agreement to make provision for what they would wish to happen regarding their finances in the event of their relationship breaking down to avoid potentially costly legal disputes regarding these issues in the future. For this reason, such an agreement should be considered as an insurance policy to provide peace of mind and security but should not be entered into lightly.

A prenuptial / pre-civil partnership agreement cannot prevent an application being made to the court in divorce / dissolution proceedings. However, prenuptial / pre-civil partnership agreements are factors that the court can consider in the event of a relationship breakdown when dealing with finances in divorce / dissolution proceedings. There have been several reported cases where English courts have held couples bound by their prenuptial agreement.

The court will give effect to the agreement if it is freely entered into by each party with a full understanding of its implications unless in the particular circumstances of the case it would not be fair to hold the parties to it. There should have been an exchange of financial disclosure / information. The agreement cannot be allowed to prejudice the reasonable requirements of any children.

We would advise that discussions take place as soon as possible if such an agreement is to be considered to allow both parties sufficient time to seek independent legal advice. The agreement should be entered into well in advance of the date of the marriage / civil partnership, and in any event, it should be entered into at least 28 days before the date. The agreement will not be void if it is entered into shortly before the date, but the court may place less reliance on it if it is. These agreements can take a number of months to prepare and agree.

We recommend that agreements are reviewed regularly and at least every five years. It is also important to review such agreements when there are significant changes within the relationship such as the birth of a child, loss of employment, or major change in assets. Following a review, the parties may enter into a postnuptial / post-civil partnership agreement to reflect the changes in circumstances should they choose to do so.

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Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is a way of resolving disputes without the need to go to court.

It can take various forms, for example, mediation, collaborative law, arbitration, and roundtable meetings.

Court proceedings are slow. The Courts were backlogged pre-COVID and now there is a huge raft of cases waiting to be listed. It can often take over a year to have a final hearing listed.

Court proceedings can also be costly, not just in terms of financial cost, but also physically and mentally draining too.

Once the Court has been asked to adjudicate on a dispute, the Court can order what it thinks is the best solution, which does not always mean that you will agree with the Court’s ruling. Asking the Court to decide means that you have little or no control over the outcome. ADR allows input by you and will result in a decision which you have agreed to in all but arbitration.

No, but it is generally cheaper than going to Court. The costs between different forms of arbitration will vary and it will depend upon the facts of your case.


Most forms of ADR will have fixed costs and a timetable to resolve matters. That means you can budget for a resolution of your issues and you can both set timetables that suit you.

It depends on you, your former partner, and the issues you are facing.

Mediation is where you both work with an independent mediator who assists you both in reaching an agreement. The collaborative process is a series of meetings with you, your lawyer, your former partner, and their lawyer with the aim of trying to find a solution that works for you both. Read more about mediation here.

Arbitration is a more formal process where the dispute is resolved by way of a decision from an agreed arbitrator.

A private financial dispute resolution hearing is technically within Court proceedings but done privately, with a privately appointed Judge who is often a barrister or Queen’s Counsel. This often speeds up the Court process as it can be organised much more quickly that a Court financial dispute resolution hearing.

Arbitration is similar to Court proceedings. Paperwork setting out your case is filed, requests for further information or documents can be made by the other party or the arbitrator and once everything has been filed, the matter can proceed to a final hearing. The parties present their evidence and make submissions supporting their case. Afterwards the arbitrator decides the award or determination.

Family arbitration is different to mediation and collaborative law as the dispute is heard by a qualified arbitrator and a decision is given (called an award) in respect of money claims or determination if it relates to children. Any decision is binding on the parties. It is therefore different as other forms of ADR concentrate on helping the parties themselves reach a solution.

Arbitrators are agreed upon and chosen by the parties and their solicitors from the Institute of Family Law Arbitrators (IFLA). Generally these are solicitors, barristers, or judges.

  • It is significantly quicker than contested Court proceedings. Often matters can be dealt with in weeks rather than the many months of waiting for court hearings.
  • The parties can choose their own specialist arbitrator, i.e. children or finances.
  • The parties can control the arbitration to their own needs, for example, to be dealt with on paper submissions only in segments or in one go and by phone, video conference, or in person
  • Speed. The arbitrator can deal with more than one issue at the time, e.g. finances and children as opposed to the courts who will deal with the matter separately, which again can mean lengthy delays and an increase in costs.
  • Continuity. One arbitrator will deal with the case from start to finish and is on hand to deal with preliminary issues as they arise. With the court process various hearings can be dealt with by different judges and there is no continuity. Availability for a final hearing is at the parties’ convenience and often can be listed within weeks, rather than the many months that it takes for the Court to list a matter.
  • Costs are generally less than Court proceedings. Most arbitrators will offer a fixed cost to review the papers, give directions, hear the case, and write up the award. The arbitrator’s costs are generally shared equally between the parties.

Speak to us and we can guide you through the various options open to you and advise you. For some people, a combination of mediation and ADR work is helpful. Parties can reach an agreement on most issues at mediation, but the parties can be “stuck” on a couple of other issues. An arbitrator can give a decision on these discreet points and the parties can then go back to mediation.

No. ADR needs both parties to consent to it and be committed to resolving issues without the need for court intervention.

Whilst an individual cannot be forced to agree to ADR, it is worth nothing that most lawyers will recommend it as a way of resolving matters rather than launching into Court proceedings. The Court also fully supports and encourages ADR at all stages. Once both parties fully understand the options, ADR is usually the agreed path for all parties.

Once an agreement has been reached it is important that it is incorporated into a Court order, which will then make it both binding and enforceable.

Talk to us. Make an appointment with one of our specialist family lawyers and we can guide you through the options available to you and advise you as to what is best for you.

Financial Dispute Resolution Appointment is the second Court hearing in Financial Provisional proceedings. The FDR is listed once all of the documents have been filed and the parties have a clear idea of what the assets are in the case.

Prior to an FDR each party must put forward proposals of settlement and these are open proposals so that the Judge can see each party’s offer of settlement.

At the FDR hearing, the Judge hears from each party who sets out their case and why they think their offer is the most appropriate. The Judge considers the two offers and the case in general and then will give an indication as to what he or she thinks is a reasonable settlement taking all the factors into account. This may be in respect of all of the settlement or it may be in relation to issues which the parties cannot agree on. An indication from the Judge is usually very helpful and most cases will settle at an FDR. Although the matter is listed for one hour of the Judge’s time, often the parties are at Court all day going backwards and forwards on negotiations and the Judge is there to assist on issues that may arise.

FDRs are an excellent way of trying to resolve matters without it going to a Final hearing and the Judge imposing a decision on the parties. When FDRs are listed through the Court, there are often half a dozen other FDRs all listed at the same time. This can mean a long wait to get before the Judge and it can sometimes mean that the Judge does not have as much time as he or she would like to be able to delve into the final details of the case.

It is often the case that you are waiting many months for the Court to list the matter for an FDR. It is not unusual for this to be in excess of four to six months following the First Appointment.

It is possible to have a Private FDR. The Courts encourage this and will do all they can to ensure the parties to settle outside of the Court system.

The parties need to agree that a Private FDR is the most appropriate and then a “Judge” needs to be found for the Private FDR. It does not have to be a Judge, although it often is. It could be a senior barrister, a Judge sitting outside of the Court system or a senior solicitor. The parties will generally meet the costs of the Judge equally and a venue, often at the barrister’s chambers, is agreed and booked. The matter then proceeds to an FDR as it would in Court.

The advantage of a Private FDR is that they take place much sooner than waiting for the Court to list the matter. The Judge will only have the one case in front of him or her that day and is able to spend more time assisting the parties in coming to an agreement. The papers will be sent to the Judge in advance and the Judge will have the time to read all of the papers and ask questions in advance of the FDR for example, if he or she requires any further information.

Private FDRs are becoming very popular and lawyers are seeing advantages to the clients of shortening the Court waiting lists.

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Divorce

It is the Divorce Dissolution and Separation Act 2020. it came into effect from 6 April 2022

No. However, it is strongly advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the Final order is made as some pension rights can be lost if not. The court may not agree for the divorce to proceed if the finances are not resolved.

No, this is not a pre-requisite to divorce. However, it is always good to start discussions about where the children will live and how much time they will spend with the non-resident parent when you do separate and live in separate households.

Your spouse can only dispute a divorce by challenging the jurisdiction of the Court or the validity of the marriage.

As you do not lay blame on each other there is no ability for your spouse to defend the divorce just because they do not like the fact that you seek to divorce them. However, there can still be acrimony, so it is always best to provide a draft of your application to your spouse before submitting the application to the court.

No. You only need to consider attending a MIAM before issuing financial remedy proceedings.

No. Who caused the divorce has no bearing on the financial settlement or arrangements for the children and so the application to divorce does not require any evidence or explanations of why the marriage has broken down.

Usually, the party that wants the divorce will apply. They will be called the applicant. The person who they are divorcing will be the respondent. Sometimes for religious reasons one party may choose to be the applicant.

Yes. In joint applications there will be applicant 1 and applicant 2, instead of applicant and respondent. Applicants should agree in advance of making the application which of them will take the role of applicant 1.

If issued online, once applicant 1 has provided the relevant information and submitted the application, applicant 2 will receive an email asking them to review the information provided by applicant 1 and provide any additional details. The application will then go back to applicant 1 to review applicant 2’s additions and submit to the court.

Joint applicants are able to make personal arrangements between them with regard to paying the fee for the application. However, on the digital service, applicant 1 will have to pay the court fee. On paper applications, either applicant may insert their details on the court fee page.

On paper forms, applicant 1 can complete their parts of the form and then post or email to applicant 2 to complete their relevant sections and agree the application together.

The usual time period of completion of an undisputed divorce where there are no difficulties with regard to service is about 7-12 months.

We now use the online divorce process which is much quicker than before. Either the applicant or joint applicant submit the application then the court issues the documentation. The court will then serve the application on the respondent by email and post. Service must take place within 28 days. The application is served along with an acknowledgement of service form and a notice of proceedings. There can be difficulties with serving the divorce petition which may result in the applicant having to make further applications to the court.

The respondent should then return the acknowledgement of service form to the court indicating whether or not he or she consents to the divorce and or if there is any issue with the validity of the marriage or jurisdiction of the courts. If the proceedings are undisputed there will be no need for either to attend court in relation to the divorce proceedings.

If the case is not disputed and the acknowledgement of service form has been returned, then the applicant can then apply for the Conditional Order after waiting 20 weeks. This is done by completing a further form. This is known as the application for Conditional Order stage. The 20 week waiting period allows parties to have a period of reflection and allow couples to resolve other issues such as child or financial arrangements.

Once submitted all documents have been submitted to the court the case is referred to a District Judge who will look at the divorce papers to see whether all the procedural details are correct.

Once the Conditional Order is granted there is a requirement to wait six weeks before the Conditional Order can be made Final. This is undertaken by submitting the relevant form to the court. In exceptional circumstances this six-week period can be abridged. If there is a joint application then one applicant has give 14 days notice to the other before applying for the Final Order.

In most cases the Final Order should not be applied for until such time as an Order has been approved by the Court dealings with all claims the parties have against each other for capital, income, pension sharing and under the inheritance Act. Neither party can remarry, nor indeed should they take steps to make arrangements for remarriage until the Final Order is obtained.

There is a court fee for submitting an application for divorce. This is currently £593. The applicant will need to submit a copy of the marriage certificate.

Yes. There is the potential that you may be given very short notice of the divorce being submitted by your spouse as they now have 28 days to serve the respondent from the date they issue it.

Further, even though you may decide to apply jointly for the divorce, this does not guarantee you will continue as joint applicants in the divorce application. Perhaps because of further deterioration of the relationship with the other party, or where the other party is not taking the necessary action to progress the application, it is possible to ‘switch’ the application from joint to sole. This can only happen at conditional and final order application stage.

Lastly, it is important to remain fully aware of the timetable of the divorce so that you can protect your rights as a spouse, until you have a financial order in place.

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International Divorce

Yes, you can providing that your spouse remains living in England or Wales, or you or your spouse are Domiciled in England and Wales.

The English Court system will be familiar with most English/Welsh citizens; it uses the English language meaning that documents will not have to be translated for you. It is well equipped to deal with overseas divorces, dealing with several on a day to day basis and may be able to determine your dispute without you having to leave your overseas country. Some of the other benefits are:

  • Fair;
  • Impartial;
  • Efficient;
  • Incorruptible;
  • Easily accessible; and
  • Some cases can be dealt with online

The Divorce process itself remains the same for International Divorces as domestic Divorces. There may be additional service requirements depending on which country your spouse is living in at the time of the Divorce but the court process and court fee remains the same. The court fee for issuing a Divorce Application is currently £550.00.

With most people being online all of the time, email tends to be the quickest and easiest way of communicating in all cases. We can also speak on the phone, text or WhatsApp or if you prefer a face to face meeting we can facilitate Skype or FaceTime/WhatsApp video calls. If the need arises we can arrange a meeting at one of our 6 offices if you are in England or possibly meet you in your country.

Overseas Divorces are recognised in England and Wales as well so long as the divorce/dissolution was legally obtained in that country. In other words, if the Divorce was legal and valid in the country where it was granted it will be recognised in England and Wales.

Depending on whether the overseas court have dealt with the assets you have in England you may be able to apply to the court here to determine the outcome of those assets. If the court failed to deal with the assets or the outcome was grossly unfair and has left you in financial hardship you may be able to make a claim in the English Courts in respect of those assets under Part III of the Matrimonial and Family Proceedings Act 1984.

Property, investments, money and possessions that are held abroad can be dealt with by the courts of England and Wales like any other asset on Divorce and will be considered by the Court determining the financial settlement. It is however important to note that a Court Order is only effective in the country it is made, not all Court Orders can be enforced in all places of the world. It is therefore crucial that you obtain early legal advice to understand your options, and if necessary, seek legal advice in the country where the asset is held.

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Parental Responsibility

Parental Responsibility is defined in law by the Children Act as:

  • ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the ‘child at his property’.
  • People with Parental Responsibility are entitled to determine certain aspects of a child’s life, including but not limited to:
    1. Where the child should live.
    2. Where the child should go to school.
    3. What, if any, religion they have.
    4. What name they should have.
    5. Withholding or consenting medical treatment.
    6. Dealing with their money or property.

A child’s mother automatically has Parental Responsibility and does not lose it if she separates from the child’s father, whether or not they were married.

Fathers of children who are not or have not been married to the child’s mother will have Parental Responsibility if they are named on the Birth Certificate of the child.

You can make an application for a Prohibited Steps Order. This is an injunction that would prevent your former partner taking certain prohibited steps. Usually these would be to remove the child or children from your care or control or to attend the children’s school.

You can also apply for a Specific Issue Order if you are concerned that the former partner will take the children abroad. The court can require your former partner to return the children’s passports if he or she has them in his or her care and control.

Emergency applications must be supported by very strong evidence as usually a parent will seek such Orders to be made without prior notice to the other parent. If an Order is granted the court would normally set another hearing in about a week’s time, at which time the other parent will have the opportunity of being represented and putting his or her position to the court.

In the event an agreement cannot be reached between you, the court would have to list a matter for a Final Hearing to determine issues between you and the court would make directions for the filing of further evidence if required.

The court would also need to deal with the interim child arrangements that would need to be in place pending the final hearing.

In the event your former partner has abducted your children, the following options are available to you:

  1. Apply for an Order that the children be returned to you immediately and not be removed without your written consent or order of the court. The court can attach a Penal Notice to this Order which means if the other parent fails to comply, they could be held in contempt of court and a fine, suspended prison sentence or actual prison sentence could be imposed on them.
  2. In the event you believe there is an imminent risk of your partner taking the child or children abroad, you can contact the Police and ask them to issue a Port Alert. A Port Alert, when issued, will notify all Police forces and Immigration Officers of the child’s details. The child is placed on the Child Abduction list for a period of 28 days initially.
  3. You can also contact Her Majesty’s Passport Office and ask them to prevent the issue of a passport in a child’s name. If your child’s other parent holds another nationality you can write to the relevant Embassy, High Commission or Consulate of the other country asking them not to issue a passport to your children. They do not have to agree to such a request, but they may do so.
  4. You can seek a Wardship Order from the Family Court. A Wardship Order basically makes the court a de-facto parent of the child. The court can make the child a ‘Ward of Court’. This means that the High Court have a duty to the children to ensure their safety and protection. It would also prevent the child from being illegally removed from the jurisdiction of the court i.e. England & Wales, without the court’s permission.
    If your children have been abducted and taken abroad, a Wardship Order can assist a government in attempts to secure the child’s return from whichever country they have been taken to.

In order to move to a foreign country with your children, i.e. a country outside the court’s jurisdiction of England and Wales, you would need the consent of the other parent or an Order from the court giving you permission to permanently remove the children from the country.

If consent is refused, it can be a lengthy and costly process in obtaining such an Order, but we can advise you on the next steps to take.

If you are intending to make an application to relocate, it is of great importance that you have thought through thoroughly all the practicalities of what life will be like for you and the children in a new country. You will need to set your plans out in a great deal of detail in a Witness Statement.

You will need to deal with the following matters (this list is not conclusive):

  1. Your proposed living arrangements which will not only include details of your proposed residence but evidence that you have the financial means to pay for it.
  2. Details of your proposed employment in your new country.
  3. You will need to detail what support network, if any, you have in the new country whether it be family or friends.
  4. You need to have a clear plan as to where your child or children will go to school.
  5. You will need to consider any substantial climate change between England and Wales and your destination country and how this will affect the children.
  6. You will need to consider how you and your children are, if appropriate, going to learn the language of your destination country.
  7. You will need to set out in detail the healthcare arrangements that will be available for the children.
  8. You will need to consider and set out the financial viability of the proposed move and set out an estimated budget of monthly expenses and demonstrate how you will meet them.
  9. You will need to consider the contact arrangements that will need to be put in place to allow the other parent and his or her wider family to continue to see and have contact with the children.

If you are objecting to a proposed relocation application by the other parent for permission to relocate your children to another country, you will need to respond to the matters listed above which you challenge. You would also need to consider:

  1. How the proposed move would affect the children.
  2. Your perceived difficulties with having contact with the children if they were to move abroad.
  3. Any problems you foresee whether proposed living or educational arrangements for the children.
  4. The wishes of the children as you understand them.
  5. The effect of the move on both you and the children.

Practically speaking, technically you do not need the other parent’s agreement to you moving away from the area which you currently live as long as it is in England and Wales.

However, if you know the move is going to be contested, you should, depending on your proposed destination, make an application to the court for permission to re-locate the children. The court will have similar consideration as to the matters set out in paragraph’s 8 & 9 above, albeit that some issues, such as change of climate or a new language will not be relevant.

On considering an application for any of the proposed Orders set out herein, the court’s primary concern is the welfare of the child or children. The court will need to consider the following matters in all applications:

  1. The ascertainable wishes and feelings of the child concerned.
  2. The child’s physical, emotional, and educational needs.
  3. The likely effect on the child if circumstances changed as a result of the court’s decision.
  4. The child’s age, sex, backgrounds, and any other characteristics which will be relevant to the court’s decision.
  5. Any harm the child has suffered or maybe at risk of suffering.
  6. Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs.
  7. The powers available to the court in the given proceedings.

In contested proceedings, the court is likely to seek the assistance of either the Local Authority/Social Services who have been involved with the family previously or the Court and Family Court’s Advisory and Support Service (Cafcass).

Social Services or Cafcass may be appointed by the court to speak to both parents and the children before making recommendations to the court on the issues to be determined between yourself and the other parent.

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Special Guardianship Order

A Special Guardianship Order (SGO) is an order appointing one or more individuals (other than parents) to be a child’s special guardian. Special guardianship is often considered as one of the options for a child who is the subject of care proceedings issued by the local authority/social services.

A special guardian must be aged 18 or over and not the parent of the child. Some people can apply for a special guardianship without obtaining prior permission from a court. Those people include people already looking after the child or who has the agreement of the parents to make the application. People not falling within these categories can still make an application but need to obtain permission from the court first.

You can apply for a special guardianship with or without a lawyer. We would always recommend that you seek advice from a specialist family law solicitor before you decide. Before you make an application, you have to attend an information meeting with a mediator. The forms that you need in order to be able to apply depend on whether or not you need permission from the court to make the application.

A special guardianship order gives non-parents a more permanent legal status than they would have if they were named in a child arrangements order (previously known as a residence order). The legal relationship between the child and his/her parents is not extinguished. Special guardians have parental responsibility (legal rights) for the child until the child reaches age 18. With a few exceptions the special guardians are entitled to exercise those rights without consulting the parents.

Local authorities have an obligation to support special guardians in some circumstances. The support may be either counselling, advice, or information as well as financial support. Support services include help with contact arrangements, therapy for the child and training for the special guardians. The amount of financial support will depend on the special guardian’s own financial circumstances. It is reviewed annually.

Each case is different, and the timeframe will depend on many factors including whether the parents of the child are contesting the application. Cases can easily take 6 -12 months.

Special guardianship orders are designed to provide the child/children with a permanent home. To support this aim, most people (with the exception of the special guardians themselves) need permission from the court to proceed with an application to change or discharge a special guardianship order.

The main benefit to the child is that he or she is brought up within his or her extended family and retains his/her sense of identity.

You will have to go through an assessment process. Once the local authority has received written notice of an intention to make an application for an order, the matter must be investigated, and a report prepared. The report includes detailed background information, the wishes and feelings of the child, a recommendation as to what arrangements there should be for contact and the implications for the child, the parents and the prospective special guardian of an order being made.

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Would you like to know more?

For help and advice, talk to a member of our team. They can advise on the best options in your matter.

Call: 01708 229 444 Email us

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