Our Family Law Department has a lot of questions to answer, but the same issues keep coming up

When asked “what questions to ask a family lawyer”, we know that we are asked certain questions again and again …

Question 1: Does my ex have an obligation to keep a roof over his children’s heads?

No, there is no law to say that a non-resident parent (a parent who doesn’t live with their children) has to keep a roof over their children’s heads in the event of a separation from the resident parent.

A non-resident parent does have to pay child maintenance, which is calculated based on how much they earn. That may not be enough to cover the rent or mortgage in full though, so parent with whom the children live would need to see if they have sufficient income from other sources (such as their wages, benefits, tax credits etc.) to cover their housing costs. If not, then the resident parent may need to consider moving home in order to reduce their outgoings.

If the non-resident parent has a lot of disposable income, and the resident parent is struggling financially, then spousal maintenance may be payable. Please note that spousal maintenance can only be paid if the parties were married. Our specialist team of family law solicitors can give you advice on whether spousal maintenance should be paid in your case.

Have a look at our page on Divorce and Children for more information.

Question 2: Can I keep the house?

Every case turns on its own facts, so it is very hard to say what will happen to matrimonial homes or other jointly owned property. However, the three most common outcomes are:

  • One party buys the other out of the property by paying them a lump sum and having the house transferred to them. This would usually be on the basis that they are also able to release the other party from any existing mortgage.
  • One party is able to remain living in the house until any minor children are over 18, at which point the house is sold and the money divided.
  • The house is sold now and the money is divided between the parties.

How much each party gets or the level of lump sum payable by one party to the other will depend on the level of overall assets in the matrimonial pot. Our expert solicitors can advise you on what assets should form part of the pot, and what percentage you should expect to receive from it.

Have a look at our page on Financial Settlements to learn more.

Question 3: How expensive is it to use a solicitor?

There are three ways of funding a family law case:

  • Legal Aid: If you are eligible for Legal Aid, then the Legal Aid Agency will cover the cost of your family law case. However, you have to be on a very low income and have evidence to show you or your children have suffered abuse at the hands of your ex.
  • Fixed fee: Some solicitors charge a fixed fee for specific work. For example, we charge a fixed fee to deal with a straightforward, undefended divorce from start to finish. It doesn’t matter how many telephone calls we make or letters we write, you will still only be charged the fixed fee.
  • Hourly rate: This is where you pay an hourly rate, for example £210 plus VAT, and you are billed usually once a month. Your bill will set out how much work (in minutes) the solicitor has undertaken on your file. Your solicitor must give you an estimate of your total costs at the start of your matter, and keep that estimate under review as your case progresses.

We believe is being transparent on costs and billing, so you won’t have any hidden surprises.

Have a look at our fixed-fee service further help.

Question  4: How do I protect my pension?

Pensions can be dealt with in a number of different ways. They can be subject to a pension sharing order, where a percentage of your fund value is transferred now to your ex-spouse. Alternatively, if you want to protect your pension, its value can be offset against other capital assets. For example, you could agree to give your ex-spouse more of the equity in the house on the condition that you keep all of your pension.

Have a look at our post on Pension Sharing Orders for more information.

Question 5: Do I have to wait two years before I can get a divorce?

No. You can get a divorce immediately, but it does require you to petition based either on your ex-spouse’s adultery or on their behaviour. Although that can sound unappealing, we can limit what you have to say about them, and we try to deal with it as amicably as possible by sending them a draft of the petition before it is sent to court.

However, since 2022, there is now the option of a less-contentious ‘no-fault’ divorce, where there is no need to cite adultery or cruelty in your divorce petition. A couple can apply jointly for divorce or dissolution, and a mutually-agreed divorce can be settled within a minimum of 20 weeks.

Question 6: Is there such a thing as a ‘common-law spouse’?

The myth of the ‘common-law spouse’ is just that – a myth. You are not ‘married’, or someone’s spouse, unless you have a legal contract saying so. Otherwise, you are just living together.

According to Wikipedia:

Common-law marriage … is an irregular form of marriage contract that survives only in a small number of U.S. states

As such, ‘common law’ couples only have informal rights – instead of the legal rights of couples who have had a legal marriage or civil partnership. This means that they do not have any rights to each other’s property, and unless they each make a Will, they have no rights under the rules of intestacy.

The children of a ‘common law’ couple – or children of a couple who are just living together – have the same rights as children of a couple who have been legally married.

We hope this post has helped answer some of your burning family law questions, but please give us a call if you would like an appointment with one of our experienced solicitors, who can give you specific advice on your case.

Our specialist teams are available to assist you, confidentially, at our branches in Braintree, Chelmsford and Wickford.


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