Divorce and Consent Orders

It is a terrible shame that when a marriage breaks down and divorce proceedings become a reality, the parties attitude toward money and the finances of the divorce also takes on a new appearance and, sadly, can often bring out the very worst in people.

The Financial Aspects of a Divorce is called Ancillary Relief. There are four ways in which couples will usually deal with the financial aspects of the divorce (the ancillary relief), but no matter which route you take, to make it legally binding you must have a Consent Order. You could:

  1. agree a financial separation package between them and then encopass this in a legally binding agreement called a Consent Order
  2. not agree on the financial aspects of the divorce and proceed down the court route, called Ancillary Relief
  3. opt for mediation to help agree on terms and then encompass that agreement in a legally binding agreement called a Consent Order
  4. do nothing

We have already dealt with option 4, do nothing, before and for the reasons set out here, it is not a very good idea. Nevertheless it is astonishing how often people opt for this option, only to regret it later.

Option 3, mediation, is excellent if, despite the divorce you both have the ability to sit in a room and discuss the finances of your divorce with an impartial third party in a fair and reasonable manner. Mediation is tough and certainly not ideal for everybody, but when it works, it works quite well. There is no reason why you should not just give mediation a try anyway and, if worst comes worst and you can’t agree, then you still have the option of proceeding down the court route through Ancillary Relief.

Option 2, Ancillary Relief, is a process which is set out in law in some detail. Essentially it involves application being made to the court to assess your financial position and that involves a full and frank disclosure of all your financial details with your former spouse. The procedure for Ancillary Relief is set out here. You can also contact us for a free 30 minute telephone consultation on 020 8401 7352 about the financial aspects of your divorce should you require.

option 1, where you are able to agree the financial aspects of your divorce without recourse to any third party is of course the ideal situation. However; when taking this route, parties should still always ensure that they at least take professional legal advice from an expert family law solicitor. This does not need to be a costly exercise. We often advise people on the pro’s and con’s of the agreement they are reaching with their former spouse and the costs of this advice is often little more than a consultation fee or perhaps a couple of hours of our time. In such a case we would not be ‘representing’ you in your matter, but we would be advising you in the background.

You should bear in mind that a financial settlement needs to take into account many different aspects, including any properties, valuable possessions, business assets or shares, back accounts, savings, investments, and pensions too. This process often involves some form of valuations being carried out. These can be complex valuations involving reports from experts, but in most cases we can value assets for you using relatively cost effective means.

Once an agreement is reached, no matter which route is followed, that agreement must be set out in a legally binding document called a Consent Order. Essentially a Consent Order is a court Order which has been reached by ‘consent’ or by ‘agreement’ between the parties. Therefore the parties will sign the consent order and this will be filed at the court where a Judge will review the agreement and, only once the Judge is satisfied that it is a fair agreement to reach, will the Judge seal the agreement into a legally binding court order, called a Consent Order. The procedure for a Consent Order can still be a relatively straightforward matter, but nevertheless one that still requires expert legal advice before it is filed. Again this does not need to involve endless legal fees and it very often something that we can do on your behalf for a modest fixed fee of a few hundred pounds.

Failing to encompass your agreement in a Consent Order is about as good as not bothering to reach an agreement in the first place. Only Consent Orders are legally binding agreements. Anything written out on the kitchen table, even if witnessed by friends and family is very unlikley to have much legal value if and when it comes to a disagreement. A Consent Order is a final court order and rarely can your ex-spouse question the consent order or try to challenge it through the courts.

Some couples think they don’t need a final Consent Order because they have very little assets, or they agree amicably between themselves who gets what. This approach may be fine for some people but it is a high risk approach. If you do not resolve the finances of your divorce through a Consent Order and say one day you come into money, perhaps an inheritance or you receive a major increase in salary or better still you manage to win a lottery, where there is no Consent Order then there is nothing to say that your ex-spouse cannot bring a financial claim against you, despite the fact that you may have divorced years earlier. When you purchase a brand new camera or camcorder you take out an extra 5 years insurance, ‘just in case’. Well, ensuring that you embody your financial split in a consent order is no less important and may well end up saving you hundreds of thousands of pounds in the long-run. Consider it another insurance policy.

Without a Consent Order, any agreement you reach between yourselves is not legally binding!

Divorce and Talaq

We are one of the leading divorce firms of solicitors representing Muslims in divorce and Talaq proceedings in England.

This is a particularly complex area of the law and it is vital that where there is likelyto be conflict between the English divorce system and the rights and expectations arising out of Sharia marriage, expert and specialist solicitors are consulted.

One of the complexities is that a Talaq (a Sharia or Muslim divorce) is generally not recognised in English law, where the Talaq is obtained in the UK. However; in circumstances where the Talaq is obtained abroad, it is recognised in English law.

A “talaq” (pronounced Talagh) is essentially an Islamic or Sharia divorce.

There are essentially two types of Talaq:

A bare Talaq is where a husband husband pronounces three times ‘I divorce you’. Such a pronouncement has the effect of dissolving the marriage instantly by Sharia law. However; this is not enough to satisfy the English courts

A legally binding Talaq, which is legally enforceable in the country where it is obtained is often, although not always, recognised in English law. this is explained in more detail further down in this article.

There has been some publicity in recent years with some high profile people suggesting that the Sharia divorce laws should have an element of recognition under English law.

However; this has not happened yet and is probably some very far way off. If you live in England & Wales then to obtain a divorce you need to go throughthe English divorce court system. failure to do this will render any Talaq or Sharia divorce invalid and unrecognised in the UK.

That would mean that althoughyou may regard yourself divorced and, to all intents and purposes you may actually be divorced, in law, you might find that you are not divorced and that can lead to all sorts of other legal complexities. For example you would be committing an offence by remarrying.

Essentially the issue of divorce in English law is completely separate from that of a Talaq in Sharia law. There may well be instances where you need assistance in obtaining both.

Specialist divorce lawyers such as us are very often asked to deal with marriages and divorces that have taken place abroad.

We often need to consider whether a foreign marriage or indeed a foreign divorce is valid in the UK and where it is not we can assist you in resolving any outstanding issues under English law.Often these issues can be relatively straightforward and, sometime they can be extremely complex.

The validity of your foreign divorce or Talaq will obviously be of extreme importance if you want to remarry in the UK.

However it can also often be a key factor in relation to the settling the financial aspects of your divorce, called Ancillary Relief. Often it can have considerable implications on the finacial aspects of the divorce, whether you divorced in England or whether your Talaq or Sharia divorce can be shown to be valid.

To assess your particular circumstances we would recommend that you contact us on 020 8401 7352 for an intial free 30 minute telephone consultation.

Through our huge network of contacts and associations in the Muslim community in England & Wales, including many embassies and consulates, we can very often advise and assist you in relation to both your legal English divorce, as well as your Talaq or Sharia divorce.

That way we can protect your legal interests as well as ensuringthat you comply with your Sharia obligations.

We can also assist and advise you where it becomes necessary to obtain declarations as to marital status, for example, where the courts declare that a marriage or divorce should or should not be legally recognised in England and Wales.

As a very general rule any overseas divorce obtained after 4 April 1988 is only recognised under English law if it is valid in the country it was obtained and at the relevant date, i.e. the date the divorce was granted, either the husband or wife were habitually resident or domiciled in that country or a national of that country.

As Talaq divorce is recognised in most Muslim countries then it follows that any Talaq divorce obtained in a Muslim country would be legally binding in England & Wales also, provided the following conditions are satisfied:

How can I obtain a Talaq Divorce that is legally recognisable in the UK?

A Talaq divorce which is recognised in law in a Muslim country or jurisdiction will be recognised in the English legal system provided certain formal requirements as set by the Muslim Family Law Ordinance 1961( MFLO) are met. The include the following requirements:

A husband must give notice in writing of the pronouncement of a Talaq divorce to the Chairman of the Union Council of the Ward in which the couple live.

He must give a copy of this notice to his wife.

There are provisions for attempts at reconciliation during this 90 day period also known as ‘iddat’. During this period the marriage is in a state of suspension and the Talaq divorce can be revoked.

At the end of the 90 days (or at the end of the wifes pregnancy if she is pregnant at this time) the divorce will take effect, unless revoked.

If a full Talaq divorce takes place in a Muslim or Sharia country then it will be recognised under English law only if the above procedures are complied with and

the husband or the wife is a citizen of that Muslim country
or
he or she is habitually resident in the Muslim country
or
he or she is domiciled in the Muslim country

Can a  Talaq be pronounced in the UK only?

A Talaq divorce pronounced in the UK alone will not be recognised by the English courts. The entire procedure must take place outside the UK and inside the Muslim country.

Can an application for financial relief (Ancillary Relief) still be brought under the English legal system, even if I have had my Talaq divorce from abroad?

This is possible, and it is often the case that both parties to the divorce have a valid financial claim, which can be made following the usual process.

It is also worth knowing that an application for Ancillary Relief can be brought in English law, often many many years after the parties divorced. See our article on Clean Break Orders and Divorce for more information on this.

Need further advice?

Call us on 020 8401 7352 to book an appointment with one of our expert divorce lawyers.

Divorce Costs

Quickie Divorces – Cheap Divorces and Divorce Costs

Naturally when starting a divorce, one of the big considerations that will weigh on your mind is the likely costs of the proposed divorce, both in terms of legal fees as well as the financial aspects of the divorce and separation. Divorce can be a costly procedure but this does not need to be the case. Often prospective divorce clients will search around looking for what may be at first glance perceived as a ‘cheap’ or ‘quickie’ divorce. You might make a few calls to some local divorce law firms or, perhaps more often, you may be inclined to search the internet these days for divorce services. When searching google or yahoo for ‘quickie divorce’ or ‘cheap divorce’ you will be inundated by what may appear to be an immense selection of divorce providers. The divorce fees quoted can range from anything from several thousand pounds to the blatantly absurd companies quoting ‘quickie divorces’ for as little as £49

However; as with everything else in life, these ‘quickie divorces’ are not what they may appear to be at first. This article will help to guide you through some of the important issues you should consider when choosing a divorce solicitor.

There is no such thing as a ‘quickie divorce’! However; what these companies are doing is charging you a fee to simply email you a blank divorce petition with a leaflet explaining how you need to complete the form. However; there is much more to the process than filling in a form. To save legal fees you need to carry out a comparison of what ‘value‘ you are getting for your money. Ask yourself:

  • Do you want competent advice about the pro’s and con’s of your proposed divorce?
  • Is this really the best time to seek a divorce, taking account of your current and perceived future financial circumstances?
  • What will be the legal implications of your divorce?
  • What are the possible complications of the proposed divorce?
  • What do you expect to achieve for your children and what arrangements will be made after the divorce?
  • What if your spouse defends the divorce or, as is very often the case, tries to avoid service of the divorce petition?
  • What do you stand to lose after the divorce, financially?
  • What happens to your home after the divorce?
  • How do you ensure that you have a legally binding agreement dealing with the financial aspects of the divorce and separation?
  • What if your spouse denies the allegations set out in the divorce petition?
  • Apart from filling in the divorce petition, what is your legal adviser doing for you?
  • What happens when there are complications in the divorce process?
  • What is the importance of the location of the court where the divorce petition is filed?
  • Do you have any property or assets outside England & Wales?
  • What is the situation if you or your spouse does not live at an address in England & Wales?
  • How do you enforce a divorce abroad?

The issues are immense and it is vital that these are addressed at the start of the proceedings through expert advice from competent solicitors. After all anyone can fill in a court form and file it, but that’s just the start of the process. What happens when, as if often the case, complications arise?

Some useful questions to ask your divorce adviser:

  • Are you registered with the Solicitors Regulation Authority (SRA) as a solicitor?
  • Do you have a practising certificate from the SRA allowing you to practice as a solicitor?
  • What, exactly, is included in the price they are quoting and what is not included?
  • When complications arise, will you attend court on my behalf and defend my case?
  • Will you provide me with advice regarding the financial aspects of my divorce included in the price you have quoted me?
  • What addtional fees will I have to pay, over and above the costs quoted for the divorce?
  • Do you have Professional Indemnity Insurance to cover the work you are doing on my behalf?
  • If anything goes wrong, what is your complaints procedure?
  • If I am not satisfied with your complaints procedure, if there a higher and independent authority to whom you are accountable and to whom I can complain?

As solicitors, we are regulated by the Solicitors Regulation Authority (SRA). Everything we do is accountable and we are bound by very strict rules and regulations in relation to the entirety of our relationship with our clients, the courts and third parties. We have to advise you in writing of ‘everything’ and once we do advise you, we can be held accountable. There are real and often very drastic sanctions that are available to the SRA, in the event that a solicitor over-steps the mark. Ther are even rules and how we charge you, what we charge you and where we hold your money until your work is done. To be quite honest being a solicitor is not very easy and it is a pretty stressful occupation. However; we take pride in getting it right, first time and we take even more pride in putting a smile on clients faces. Happy clients mean lots more referrals and that’s what we want! Would you have your boiler at home serviced by an authorised company who will be accountable if the gas blows your house up or, are you happy to have it serviced by a fellow with a spanner who charges £20 and a cup of tea? If your answer to this question is the £20 option then you probably don’t care much about the repercussions of your actions and you certainly dont care much about your own safety and welfare, so maybe a £49 ‘quickie divorce’ is for you.

But if you are the type of person who organises their life, works hard to earn a living and likes to try their best to prepare for some of the uncertainties of life, then you need to ensure that you take proper, regulated, expert legal advice in relation to your proposed divorce. If that sounds like you, then call us on 020 8401 7352 and we will give you a free 30 minute telephone consultation which should tell you exactly where you stand. After that, the decision is all yours. We will not employ hard selling tactics and we are certainly never pushy. We like our clients walking through the door, not being dragged tooth and nail!

Occupation Orders

 Domestic Violence & Ex-Parte Occupation Order Applications

This is the second in a three part study of the various types of Ex-Parte Injunction & Occupation Order applications that are most often brought before the courts. In the first of the series we examined the law and principles governing Ex-Parte Non-Molestation Injunctions. In this article we look at Occupation Orders, which can also be brought before the courts on an Ex-Parte basis.

Often emergencies arise in Family Law matters which require urgent and immediate steps being taken to protect our client by way of an emergency ex-parte injunction. Injunction situations can arise 24 hours a day and in most cases we aim to have the matter brought to the attention of an emergency Judge within hours of being instructed. Time is therefore nearly always of the essence in Ocupation Order applications and it is therefore essential that we get everything right, first time round, as there will rarely be any second chances. In the second of this three part article, Cyrus Mansouri explores the law applicable to ex-parte emergency Occupation Injunction Orders in English courts. In part three we will look at Ex-Parte applications brought to protect the rights and welfare of children, pursuant to section 8 of the Children Act 1989.

Occupation Orders

What is it

An Occupation Order is an Order of the court stating who can and who cannot occupy domestic premises. It is usually brought alongside an application for a Non-Molestation Injunction and is an application asking the District Judge to make an Order excluding your spouse or unmarried partner from entering or cohabiting in the family home. Such an application can be brough Ex-Parte in an emergency or On Notice in all other cases. It is a very serious application because in essence, it can exclude your spouse or partner from living at the family home, even though they may be the sole owner of that property. There are two tests to which the court must have regard when deciding whether to grant an application for an Occupation Order:

The two tests

  1. The first is known as the ‘balance of harm test’ because it requires the court to balance the harm caused to the applicant, respondent and any relevant children if the order were or were not to be made. Where the applicant is entitled to occupy the dwelling house or a spouse or former spouse of the respondent and there would be a risk of the applicant or relevant child suffering significant harm, attributable to the respondent, if the order was not made, greater than any harm caused to the respondent or relevant child if the order were made then the court have a duty to grant the order (FLA 1996, s 33(7), s 37(4)). However; where the applicant is not entitled to occupy the property and a cohabitant or a former cohabitant then the court must simply ‘have regard’ to the balance of harm test (s 36(7)(b); s 38(4)(e)).
  2. The second test is usually referred to as the ‘core criteria‘, which the court may have regard at any time when granting an occupation order, even if they have found against the applicant on the balance of harm test. The content of the core criteria depend upon the applicant’s entitlement to occupy the property and their relationship with the respondent. If the applicant is entitled to occupy the property then the core criteria are:

(a) the housing needs and housing resources of each of the parties and of any relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and
(d) the conduct of the parties in relation to each other and otherwise.

If the applicant is not entitled but a spouse or former spouse of the respondent then the court may have regard to some additional factors including the length of time since the parties lived together, the length of time since the marriage was formally ended and any ongoing Ancillary Relief applications or disputes as to the ownership of the property. If the applicant is not entitled but a cohabitant or former cohabitant of the respondent then the court may also have regard to the nature and length of the parties’ relationship, whether there are or have been any relevant children, the length of time since the parties’ relationship came to an end and whether there are any ongoing Schedule 1, Children Act 1989 maintenance applications.

The affidavit
The applicant must file at court a sworn Affidavit setting out why they think they should be granted an Occupation Order. In an ex-parte hearing most courts will be extremely unlikely to hear lengthy legal argument and the court will be reluctant to remove a respondent from a property in which they live, in the absence of compelling reasons. This is where the merits of the case must be carefully examined before such an application is made and where a decision is made to proceed with an Ex-Part Occupation Order application, the affidavit will be crucial to the chances of that application succeeding. This is where expert Legal Assistance will be priceless. Even where it may seem as though there is merit in the application being granted ex-parte the applicant’s best case should always be made out in the affidavit. This will form the basis of application at the return hearing (usually a week later) when the Respondent will also be present at the court and able to respond to the issues raised.

The suitability of the respondent’s current accommodation will be decisive in whether an order is granted. It will also have a direct impact upon the duration of the order, and the urgency with which the court will deal with the ex-parte Occupation Order application.

The Applicant needs to address the the core criteria clearly and in detail in the Occupation Order affidavit. A well drafted and concise affidavit can make the difference between a successful application and an unsuccessful application.

Terms of occupation orders

An occupation order regulating the occupation of the dwelling home can exclude the respondent from the whole of the property or just a part of it. In some cases the court may grant an occupation order confined to a zone of safety around a particular part of the property rather than the whole of the property. If such an order is sought, the affidavit should set out clearly how this is possible. It can be useful to provide the court with a floor plan of the property, exhibited to the affidavit in support of an occupation order.

Duration of an occupation order
The duration of an occupation order will, like the non-molestation order, largely depend upon the facts of the particular case. That there are strict rules in occupation orders relevant to the maximum periods of time which an occupation order can be granted, dependant upon the applicant’s entitlement to occupy the property and their relationship with the respondent.

When consulting us about an occupation order, you should bring with you as much information as possible to help us to assess your circumstances accurately. An ex-parte occupation order is not something to be embarked on lightly, however; where appropriate grounds exist, we can move fast to secure your occupation of your home, exclude yur violent or threatening partner and provide protection from the courts and police to you and where appropriate your children. When assessing your situation we need to consider all the surrounding circumstances including:

  • Determining your entitlement to occupy the property
  • Find out whether the respondent is in occupation of the property and the legal nature of their ownership or occupation
  • Consider the length of the relationship
  • Find the appropriate section under which you must apply, as this differs depending on the nature of your relationship with the Respondent
  • Remind you that a non-entitled applicant who is associated in a way other than by being a spouse, former spouse, co-habitant or former cohabitant of the respondent is not able to apply for an occupation order
  • Assessing the balance of harm test and whether it is appropriate to you
  • Preparing the affidavit including all the factual reasons relevant to the core criteria why the occupation order should be made
  • Determine whether it is appropriate to prohibit the respondent entering or attempting to enter the property on an ex-parte basis;
  • Consider whether you would be sufficiently protected by a zone of safety within the property

Summary
By nature an ex-parte application places judges in an uncomfortable position. It is therefore crucial that if such an application is to have any chance of success, it is prepared by experts with a proven track record of dealing with similar circumstances. To assess whether you could be entitled to an Occupation Order, contact us for a free telephone consultation on 020 8401 7352 or to book an appointment.