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Cohabitation

When a Cohabitation ends, the courts do not have the powers to make orders in relation to property in the same way as in divorce/dissolution proceedings in the Family Court.

Therefore a Cohabitation Agreement between Parties proposing to set up home together, can be useful in clarifying a range of potential issues and in particular:

  1. If one Party owns the home property, an agreement setting out the position in relation to any contribution to future mortgage payments or costs of improvement to the family home by the non-owning Party and thereby to reduce the possibility of that non-owning Party acquiring an interest in such property under the laws of resulting trust or constructive trust.
  2. If both Parties are contributing towards the purchase of a Family Home that is to be held in their joint names then to identify and state any unequal financial contribution by the Parties towards the payment of the purchase deposit, purchase legal expenses and any uneven contribution to future mortgage instalments. The Agreement will further indicate as to how any such differences are to be reflected in the division of the sale proceeds of such property on any future sale. It’s all well and good when you set up home, but often Clients feel a lot different on the termination of a cohabitation. Get things right from the start.
  3. Confirmation of a reason (and supported by a Will) to indicate why you may have made in your Will only limited financial provision for your surviving cohabitee and dealing with the right to claim by such survivor against your estate for increased financial provision under the Inheritance Provision (Family & Dependants) Act 1975 as amended.
  4. Identify the separate property of each cohabitee and with respect to jointly owned/acquired assets indicate any proportion of interest that is other than equal shares.
  5. Identify the Parties separate and/or joint position with respect to debts and Credit cards.

Pre-divorce Countdown

We assist Clients in a wide variety of situations, but there are four stages of pre-divorce/dissolution that may help you to consider your options.

The Early Bird

At the earliest point, we can assist in the process and preparation of Pre-Nuptial and Post-Nuptial Agreements.

Carefully drafted and prepared, and with the appropriate precautions being taken these documents can provide substantial protection to many clients.

Pre-Nuptial Agreements are no longer just for “the rich and famous”, but can now have a relevance and an application in the protection of assets for the middle income Client and also for those Parties bringing to a marriage/civil partnership assets in value greater than his/her partner.

This may reflect say an uneven contribution towards the family home that can be properly reflected in a Trust Deed. The asset difference as between the Parties does not have to be very substantial.

The benefit of this service is that we can use our experience to bring to you a scaled down version of a Pre-Nuptial Agreement that is proportionate and cost-effective to your financial position.

The Planned Divorce/Dissolution

For those Parties already experiencing matrimonial difficulties and anticipating future divorce/dissolution proceedings, a pre-divorce financial strategy is planned and developed with you according to your financial circumstances to include (but not exclusively) some of the following:

  1. Analysing your overall financial position, your assets and liabilities, income and outgoings, and preparing your financial position for maximum leverage and advantage under the factors of section 25 Matrimonial Causes Act 1973.
  2. Considering the powers of the court and its approach to the distribution of matrimonial assets. The types of order a court is likely to make in your case and how best to reduce its effect upon your assets.
  3. The matrimonial home and any second homes. Whether it is prudent to leave the matrimonial home and, if so, how and when.
  4. Registration of Home Rights and Extension of those rights.
  5. Notices of Severance of a Joint Tenancy of a property held in the joint names of the Parties.
  6. Sales and equity release and further financial charges. Mortgage Releases and Indemnities. Do’s and don’ts.
  7. The Joint Bank Account and how to deal with this.
  8. The Private Bank Account and cashflow alteration.
  9. Avoiding the pitfalls of the Credit Report.
  10. Periodical Payments Orders (maintenance) or a Clean Break Order. The Court’s approach. Considering your present and future finances.
  11. Injunctions – Non-Molestation and Exclusion Orders. How best to avoid being excluded from the matrimonial home.
  12. Financial Injunctions – Asset Freezing Orders, Search and Seizure Orders, Setting Aside Orders. How to minimize the risk.
  13. Tactical Sale Agreements – Conditional Sale Agreements – Asset Disposal and Buy-Back Contracts – Nominee Services – Exchange of Goods Agreements – Lifetime Trusts, Secret Trusts, Half- Secret Trusts and Settlements – Register of Members and Interests.

The Separated Client

In addition to the preceding service for those Clients that envisage a long period of separation without divorce/dissolution petition, we can prepare Separation Agreements dealing with all matters of finance and which are enforceable as a contract between the Parties subject to conditions.

Often however, the best pre-divorce financial planning takes place unobserved and without notice to the other side and sometimes it may not be advisable to seek to formalise such steps in a legal process that necessarily requires the other side to take independent legal advice at that point in time.

It is difficult to over-generalise. Matters are dealt with on a case by case basis.

Contested Cases

This is a comparatively new service introduced following the withdrawal of legal aid from financial matters in divorce/dissolution cases.

In spite of the introduction of Compulsory Mediation (at least one session must be attended but this with care can usually be circumvented) most divorce cases still involve solicitors costs to some extent. This is because the Mediator cannot advise you as to your legal position and therefore alongside the mediation process you will still need legal advice to ensure that your position is protected and that you are not agreeing to a proposal which is less than your probable legal entitlement.

In cases where settlement appears to be a realistic process we help the Client in the negotiation process with the other side. Unlike solicitors, we can approach the other side directly whether they are receiving legal advice or not.

Also unlike some solicitors, we do not seek to explore and exploit the differences between the Parties, to stir up antagonisms where they do not exist. We will help you to achieve the best result that we can but we do not encourage clients to pursue points of principle or blame unless it makes financial sense.

Sometimes you have no choice. If the other side or their representatives adopt an unrealistic position then, apart from accepting such position, your only option is to advance down the court route. We have experience in all these cases including taking complex matters as far as final hearing. This is our McKenzie Friend Divorce Service.