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      Five misconceptions of no-fault divorce 

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      After years of campaigning to remove the need to blame one party when divorcing, the Divorce, Dissolution and Separation Bill gained Royal assent in June 2020, reforming divorce law in England and Wales, and paving the way for no-fault divorce.
      With the introduction of no-fault divorce planned for the 6th April 2022, Stowe Solicitor Hannah Stubbs shares the most common misconceptions and explains what it means for couples who will divorce in 2022 and beyond.
      Five misconceptions of no-fault divorce 
      The introduction of no-fault divorce, due to arrive in the UK in April 2022, will be the largest shake-up of divorce law since it began and will impact the entire divorce process. 
      But what do the actual changes mean for people getting divorced? I have already heard many misconceptions and myths circulating about no-fault divorce. 
      This article will help dispel some of them and answer the questions surrounding this change. 
      One: The “blame game” is completely over.
      Not entirely. Under the new law, couples can divorce without citing blame. However, they can still cite one of the five current facts for a marriage breakdown (behaviour, adultery, five-year separation, two-year separation with consent, desertion).  
      In practice, this means that people will no longer need to prove conduct or fault of the other party as grounds for divorce, but they can do if that is the route they want to take. 
      From my experience with clients, I think that many couples will now choose to divorce without blame, and we will see a large reduction in the use of the other five facts.  
      Two: A no-fault divorce is a “quickie” divorce.
      Actually, no – despite the media reports, a no-fault divorce is not a “quickie divorce” by any means. 
      Currently, the only set ‘cooling’ off period in the divorce process is that once the decree nisi is pronounced, you have to wait six weeks and one day before applying for the decree absolute. 
      Under the new system, people will now be required to wait for twenty weeks from filing their divorce petition before being able to proceed with an application for a conditional order (currently known as the decree nisi). 
      Once the twenty-week period is up, the applicant will need to confirm to the court that they wish to proceed; without this, the divorce will not move forward.
      This period has been included to provide parties with a period of reflection to try and work on any issues that may stop the relationship from breaking down. 
      It is currently estimated that a “standard” (uncontested) divorce process can take anywhere between six to eight months, and it is expected that despite the changes, cases are likely to take a similar amount of time,  not quicker. 
      Three: No-fault divorce will be cheaper
      Not necessarily. When parties remain amicable, the case is less likely to have delays due to disagreement and, therefore, will cost less. However, removing blame from the process does not automatically mean the case will be shorter and less expensive. Remaining amicable and having a clear idea of any financial settlement and child arrangement details from the beginning will help manage costs. 
      Four: Only one person can make the divorce application
      Currently, when one person is responsible for filing the petition, this automatically indicates there is someone to blame as the “Petitioner” has to prove there has been an irretrievable breakdown. However, choosing a no-fault divorce will allow couples to be co-applicants of the divorce petition, jointly applying for divorce.  
      Five: No-fault divorce is just about the removal of blame
      No – the new law will also bring some key changes to divorce terminology in England and Wales. 
      Currently, the person making the divorce application is known as the “Petitioner”, and the other party is known as the “Respondent”. This will change when the new law is introduced, when “Petitioner” will be changed to “Applicant”. This change in terminology is designed to remove the assumption of blame simply because one party is filing the petition and the other person isn’t.
      The new divorce process will still involve the two stages of decree nisi and decree absolute, but these names will also change. The decree nisi will become a ‘conditional order of divorce’, and the decree absolute will become the ‘final order of divorce’.
      So, is it worth waiting for a no-fault divorce?
      It is an interesting question and one that family lawyers are being asked a lot. The answer is not that straightforward, as it really does depend on the circumstances of the case. 
      For some, when considering the benefit of filing for divorce where there is no fault, and no fault has to be attributed, it’s worth the wait to April 2022. However, if people want to move forward with separation without unnecessary delay, parties can still elect to file a divorce petition on one or more of the existing grounds for divorce. 
      The new reforms will be introduced on 6 April 2022 and will apply to onward divorce petitions. Existing divorce petitions before the Court (i.e. filed before 6 April 2022) will remain live and will not need to be amended or refiled. 
      It is important to keep in mind that there is likely to be an influx of divorce petitions in April 2022 on the ground of no-fault divorce, and it is unknown whether there may be some delays in the court process because it has never been done before.
      Get in touch
      If you would like advice on no-fault divorce, you can contact our dedicated Client Care Team today to speak to one of our specialist family lawyers. More

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      Four misconceptions of no-fault divorce 

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      After years of campaigning to remove the need to blame one party when divorcing, the Divorce, Dissolution and Separation Bill gained Royal assent in June 2020, reforming divorce law in England and Wales, and paving the way for no-fault divorce.
      With the introduction of no-fault divorce planned for the 6th April 2022, Stowe Solicitor Hannah Stubbs shares the most common misconceptions and explains what it means for couples who will divorce in 2022 and beyond.
      Four misconceptions of no-fault divorce 
      The introduction of no-fault divorce, due to arrive in the UK in April 2022, will be the largest shake-up of divorce law since it began and will impact the entire divorce process. 
      But what do the actual changes mean for people getting divorced? I have already heard many misconceptions and myths circulating about no-fault divorce. 
      This article will help dispel some of them and answer the questions surrounding this change. 
      One: A no-fault divorce is a “quickie” divorce.
      Actually, no – despite the media reports, a no-fault divorce is not a “quickie divorce” by any means. 
      Currently, the only set ‘cooling’ off period in the divorce process is that once the decree nisi is pronounced, you have to wait six weeks and one day before applying for the decree absolute. 
      Under the new system, people will now be required to wait for twenty weeks from filing their divorce petition before being able to proceed with an application for a conditional order (currently known as the decree nisi). 
      Once the twenty-week period is up, the applicant will need to confirm to the court that they wish to proceed; without this, the divorce will not move forward.
      This period has been included to provide parties with a period of reflection to try and work on any issues that may stop the relationship from breaking down. 
      It is currently estimated that a “standard” (uncontested) divorce process can take anywhere between six to eight months, and it is expected that despite the changes, cases are likely to take a similar amount of time,  not quicker. 
      Two: No-fault divorce will be cheaper
      Not necessarily. When parties remain amicable, the case is less likely to have delays due to disagreement and, therefore, will cost less. However, removing blame from the process does not automatically mean the case will be shorter and less expensive. Remaining amicable and having a clear idea of any financial settlement and child arrangement details from the beginning will help manage costs. 
      Three: Only one person can make the divorce application
      Currently, when one person is responsible for filing the petition, this automatically indicates there is someone to blame as the “Petitioner” has to prove there has been an irretrievable breakdown. However, choosing a no-fault divorce will allow couples to be co-applicants of the divorce petition, jointly applying for divorce.  
      Four No-fault divorce is just about the removal of blame
      No – the new law will also bring some key changes to divorce terminology in England and Wales. 
      Currently, the person making the divorce application is known as the “Petitioner”, and the other party is known as the “Respondent”. This will change when the new law is introduced, when “Petitioner” will be changed to “Applicant”. This change in terminology is designed to remove the assumption of blame simply because one party is filing the petition and the other person isn’t.
      The new divorce process will still involve the two stages of decree nisi and decree absolute, but these names will also change. The decree nisi will become a ‘conditional order of divorce’, and the decree absolute will become the ‘final order of divorce’.
      So, is it worth waiting for a no-fault divorce?
      It is an interesting question and one that family lawyers are being asked a lot. The answer is not that straightforward, as it really does depend on the circumstances of the case. 
      For some, when considering the benefit of filing for divorce where there is no fault, and no fault has to be attributed, it’s worth the wait to April 2022. However, if people want to move forward with separation without unnecessary delay, parties can still elect to file a divorce petition on one or more of the existing grounds for divorce. 
      The new reforms will be introduced on 6 April 2022 and will apply to onward divorce petitions. Existing divorce petitions before the Court (i.e. filed before 6 April 2022) will remain live and will not need to be amended or refiled. 
      It is important to keep in mind that there is likely to be an influx of divorce petitions in April 2022 on the ground of no-fault divorce, and it is unknown whether there may be some delays in the court process because it has never been done before.
      Get in touch
      If you would like advice on no-fault divorce, you can contact our dedicated Client Care Team today to speak to one of our specialist family lawyers. More

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      Keith Nelson Talks Courtroom Frustrations in Divorce Cases with D Magazine

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      ONDA partner Keith Nelson is extensively quoted in this year’s Family Law issue of D Magazine. In “Mediate or Litigate?” he discusses factors that may convince spouses to steer their divorce away from the courtroom.
      “An increasing concern in family law courts is the strict time limits imposed by some judges,” Keith said. “Many have a template where each side may only be allowed 20 minutes at a temporary hearing to prove a major issue, like why our client should be awarded custody. We may have mental health professionals, special facts witnesses, and the parents themselves ready to testify, but there is no way to adequately present all of this to a judge in such a short time. Then, in some courts, even in complex family law litigation, each side may only be allowed two to three hours to present their case during final trial. This can be very challenging, and often impossible, in high-conflict cases that have a lot special issues to consider. The result is often that the court’s ruling doesn’t mirror the facts.”
      Later, Keith cautions that there remain issues which can hinder a successful mediation:
      “While the vast majority of family law cases ultimately settle at mediation, the timing of mediation can be a critical factor in whether the case settles or not,” Keith said. “If a case is mediated too quickly before the facts are sufficiently developed, then one side or the other may feel they have an edge. Conversely, if a case is sent to mediation too late, such as on the eve of trial, one or both parties may feel they have invested so much time and money by that point that they become entrenched and decide they might as well go to court. Both of those scenarios can increase the odds for a failed mediation.”
      Despite these issues, however, Keith says circumstances are such that many prefer going the mediation route and resolving their divorce as quickly as possible.
      “Some divorcing couples with complex issues that require the court’s attention are throwing up their hands in frustration because it can be too difficult to move the ball and get a case to court. Mediation is an increasingly popular choice for couples who want a more expedient path to final resolution.”
      The Family Law issue of D Magazine is on sale and can be purchased now. More

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      Who can adopt?

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      This week is national adoption week, and this year’s aim is to dispel misconceptions about who is, or is not, eligible to adopt. Stowe Adoption Lawyer Lucy Birch explains more:
      Challenging discrimination
      There have been a number of cases before the court in recent months surrounding adoption and the restrictions that some adoption agencies have attempted to place on who exactly is able to adopt/foster care.
      A recent case before the High Court was brought by an independent foster agency whose policies allowed only heterosexual evangelical Christians as potential foster carers.
      Ofsted had concluded that the foster agency’s policies breached the Equality Act 2010 and the Human Rights Act 1998 and required the agency not to discriminate on grounds of sexual orientation. The Court of Appeal agreed that the policy was unlawful discrimination and the foster agency’s appeal was dismissed.
      So, who can adopt?
      The law in England and Wales says that the following people CAN apply to the court to adopt a child/children:-

      Single people
      Married couples or civil partnerships applying jointly, whether of opposite sexes or the same sex
      Unmarried couples applying jointly, whether of opposite sexes or the same sex
      Step-Parents
      Foster carers
      The partner of the child’s parent

      You CAN apply to adopt in the UK if:

      Over 21 (there is no upper age limit)
      Married, living together, in a civil partnership, opposite-sex couple, same-sex couple or single
      Employed or on benefits
      Any ethnic or religious background
      Have children or not
      Own your home or live in rented
      Already adopted a child
      If you are disabled
      You are not a British citizen (although you must have a fixed and permanent home here and have lived here for at least a year before you begin the application process)

      You CANNOT adopt if:

      You, or an adult member of your family, have been convicted of a serious offence; for example, a crime committed against a child.

      Relationship matters
      For any couple to be considered as adoptive parents (married or unmarried) they must prove they have a stable and lasting relationship and that they can provide a loving family environment for a child.
      This is set out in the Adoption and Children Act 2002 and established via a combination of assessments including meetings with your social worker, personal references from friends and family, and completion of a series of preparation classes.
      Can I adopt if I’m under 21?
      The Act also sets out further conditions for prospective adopters in relation to age.
      An adoption order may be made on the application of a couple where both have attained the age of 21 years. Or alternatively, on the application of a couple where one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and the other has attained the age of 21 years.
      Living with adopted children
      There are also residence requirements. In the majority of cases, the child must have had their home with the prospective adopter for a minimum duration of time before the application being made. The duration depends on the route to adoption. They are as follows:-

      Local authority foster parents: The child must have lived with the adoptive parent(s) for the period of one year preceding the application. Although they can request permission from the court to apply within a shorter period.
      Step-parent adoption: The child must have lived with the adoptive parent(s) for the period of six months preceding the application.

      Partner of the child’s parent: the child must have had his/her home with them for at least three years preceding the application.

      The Legal process
      Once these conditions have been met, the legal process can begin.
      If you have chosen to move forward with adoption, the first step in the process is to notify the Local Authority of your intention to adopt and apply to the court for an Adoption order. This must be done in writing. The court application Form (Form A58) can be completed and sent to the court no earlier than 3 months after the date the Local Authority were notified of your intention to adopt. The legal proceedings will then be underway.
      For advice on the next steps in this process, contact Stowe’s specialist Adoption solicitors.
      Alternatives to adoption
      Finally, it should be noted that Adoption extinguishes the parental responsibility of the birth parents, therefore the court has to be satisfied that such a permanent step is in the best interests of the child.
      There may be other legal routes that are more appropriate, depending on the circumstances of the case. Such as a:

      Parental responsibility agreement
      Child arrangement order
      Special guardianship order

      The exploration of these various routes require expert legal advice.
      As a family law solicitor, I specialise in adoption cases. I’m trained to manage the legal process of adoption and other alternative routes to parenting.
      If you’re considering adoption, or have begun your application to adopt, and would like to find out more you can contact Stowe’s specialist Adoption solicitors.
      Useful Links
      Download our guide to adopting a child PDF
      Stowe Family Law’s Adoption Services
      Blog: The Adoption Process More

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      Step-parent adoption: Insight from a family lawyer

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      This National Adoption Week, we share insights into step-parent adoption during the pandemic from Stowe family lawyer, and adoption specialist, Shanika Varga-Haynes:
      Step-parent adoption
      It is difficult to find any official statistics on the number of step-parents adoptions taking place in the UK with the figures focusing on the number of children being adopted out of the care system. 
      However, as a family solicitor and adoption specialist, I have noticed an increase in this area, through both enquiries, and my caseload. 
      Adoption is a varied and broad area of family law, and all cases bring great reward and challenges. However, Covid-19 and the multiple lockdowns have brought an extra layer of complexity to these already complicated cases. 
      What is step-parent adoption?
      Step-parent adoptions arise when the partner of one of the biological parents wants to adopt the child. The consequence of step-parent adoption is the other biological parent loses their parental responsibility. 
      These applications are usually made where there is an absent biological parent who has little to no involvement in the child’s life for some time. The other biological parent is in a new relationship, and their partner has taken on the parenting role. 
      There can be a reluctance to issue the application as it may result in the other biological parent seeking contact, which they otherwise would not have done. 
      Where the non-resident parent has relatively regular contact with a child, the court tends to be slow to make the adoption order given the serious consequence of the loss of parental responsibility. 
      There are exceptions to this, for example, if the non-resident parent supports the adoption; however, even then, the court will give the decision as to whether to grant the adoption order the weight it deserves.
      Who is involved in step-parent adoption?
      An application for a step-parent adoption involves numerous parties: the step-parent wishing to adopt is the applicant, their partner is the first respondent, the child’s other biological parent is the second respondent, and a guardian can be appointed to represent the child. 
      Other professionals involved in the case will be the judge, legal representation, the local authority who will produce the initial report and often a reporting officer.
      Race for time
      In the early stages of the pandemic, getting applications for step-parent adoptions issued became difficult as the family court was (and still is) prioritising work, and they were not at the top of the list. 
      This delay directly impacted one of my cases where due to a number of reasons, the application for adoption was processed the day before the child’s 18th birthday.
      Adoption applications can only be made if the child has not reached 18. Provided the application is made before the child’s 18th birthday, then it can proceed. If the child turns 19 during the proceedings, an adoption order cannot be made. 
      This meant that we had to make sure the application was dealt with before the child turned 19. Usually, that wouldn’t be too much of a concern as there are time frames the court follows to ensure cases involving children are dealt with as quickly as practicably possible. 
      However, the family courts were stretched before Covid-19, and the delays have noticeably worsened over the past year.
      The impact of delays
      In this case, several factors caused delays. At the beginning of the adoption case, the local authority provides a detailed report to the court about the parties and the child. 
      This report takes several months to complete as it can include interviews with friends and family, details about previous relationships, health, finances and the views of all involved in the case, including the child. The report ends with a recommendation being made to the court.
      Further delays can be caused by the collation of medical evidence. In cases where the applicant is the partner of a parent of the child, in accordance with FPR rule 14.12(c), it is not necessary for medical reports to be obtained. However, if the adopter is another family member such as an aunt, waiting for the medical evidence could add further delays. 
      At the same time, as the report is produced, safeguarding checks are carried out. Unfortunately, in this case, the local authority failed to do these checks. We were notified of this just before the first hearing, meaning a delay of several months whilst they were carried out.
      Due to their complex nature, adoption cases are dealt with by higher-level judges. There is also a preference to have judicial continuity, quite rightly, but this can cause delays due to judicial availability. 
      The first hearing on this matter was adjourned four times, once due to the local authority and three times due to the judge’s availability.
       Again, with a typical case, this wouldn’t be too concerning, but we only had a 12-month window to ensure the order was made. The application was issued in early summer, but by January the following year, we still hadn’t had the first hearing which gave little time for the next steps.
      Usually, the Annex A report prepared by the local authority is filed at court but not released to the parties immediately, although a request can be made for it to be released before the first hearing to speed the process up where time is sensitive. 
      In this particular case, we obtained permission from the Judge to have the report released in advance of the first hearing, so the contents could be considered and the matter progressed without the need for a further hearing. If this request hadn’t been granted we would have been at risk of matters not being finalised before the child turned 19.
      Opposite ends of the world
      This case also involved international elements as although both the biological father and mother consented to the adoption order being made, they lived abroad in separate countries with the applicant step-parent and the child living in England. 
      This was a complicated setup, and one of our challenges was to show the court and the local authority that the applicant and first respondent met the condition of being a married couple. They were a family unit but lived separately for various reasons, visiting each other every 6 weeks where possible. Although COVID-19 had meant this wasn’t possible over the past 12 months. 
      They met the criteria of the child having lived with the applicant for six continuous months prior to the application, but more detail than usual had to be provided regarding the intricacies of the relationship between the applicant step-parent and first respondent. 
      Adoption guardian
      The Judge also decided they wanted a guardian to report on the international element as there were three parties living in three different countries. This was required despite everyone consenting to the application and the Local Authority supporting it.
      The guardian’s role was to report on the living arrangements and assist the court with taking the necessary consents from the parties.
      The guardian confirmed they were satisfied the order should be made. The parties had confirmed their agreement on numerous occasions however it’s imperative that consents are executed and recorded properly. 
      Obtaining proper consent in a global pandemic
      During the pandemic giving consent via video call has been permitted.  However, due to the fact the first and second respondent lived outside of the jurisdiction this was not possible as FPR rule 14.10 (6) states:
      (6) Any form of consent executed outside the United Kingdom must be witnessed by –
      (a) any person for the time being authorised by law in the place where the document is executed to administer an oath for any judicial or other legal purpose;
      (b) a British Consular officer;
      (c) a notary public; or
      (d) if the person executing the document is serving in any of the regular armed forces of the Crown, an officer holding a commission in any of those forces.
      At this point, every country had different rules regarding COVID-19.  Therefore, there were concerns as to whether the first and second respondent would be able to ensure their consent was executed properly as we were unsure as to whether they would have access to someone who met the criteria above. 
      Thankfully the consents were executed and sent to the court and the adoption order was made two months before the child’s 19th birthday.  
      Managing adoption hearings during Covid-19
      Another issue I have experienced over the past year, and expect to in the futur, is the practicalities of a court hearing.  
      There are numerous parties and professionals involved in an adoption case and family courtrooms are not particularly large, especially when accommodating social distancing.
      Last October, one of my adoption hearings required nine people to attend. The hearing proceeded as a hybrid hearing with the local authority joining via video link and due to the fact we were in a Nightingale Court (large hotel conference room) there was thankfully enough space for the hearing to proceed safely. 
      I suspect if we hadn’t had the use of the Nightingale Court we would have had to limit who attended the hearing which could have resulted in complaints about fairness.
       Adoption in the future
      Whilst the pandemic has certainly brought challenges to the adoption process, I am hopeful that we will eventually return to normal, although I expect it won’t be as quick as we all hope. 
      It’s hard to see how the adoption process could be made easier, adoption has huge legal implications and therefore there must be a stringent process. I would like to see cases dealt with more quickly but balancing speed and the need to ensure the right decision is being made for a child is difficult.  
      Adoption cases are extremely rewarding and it is wonderful to have the opportunity to help build a family and transform a child’s life and future
      Get in touch
      If you would like any advice on step-parent adoption, adoption, or other family law issues, please contact our Client Care Team to speak to one of our specialist lawyers.
      Useful Links
      Adoption UK
      Adoption Matters
      Stowe’s Adoption Services More

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      How to prepare for meeting your divorce lawyer

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      Understandably, your first meeting with your divorce lawyer can feel daunting and is likely to be emotionally charged. Whether you’re going through divorce for the first time, or you’ve been through divorce before, it is a life-altering experience.
      Thankfully we understand what you’re going though. It’s our job is to listen to you, to share our professional advice – tailored to your exact circumstances, and to guide you through the process of divorce step by step.
      To get the most from your initial consultation with your lawyer, and to ensure that you receive the most beneficial advice, here are our top tips to help you get ready for that meeting:

      Think about the outcome you want

      We focus on working together with you to reach your desired outcome and settlement. So, it’s useful to consider what outcome you’d like to achieve. Consider whether there is a workable solution that we can help you to realise, or if there are any areas that you anticipate will be a particular challenge.
      At Stowe, we have a team of people that really understand family law so you can be sure that you’ll have the right team of people by your side, whatever you decide.

      Come prepared

      It is always helpful if clients know as much as possible about the details of their finances. It’s also useful if you know the same information about your ex-partner and their financial circumstances.
      Where appropriate, during the first appointment we will discuss the value of your family home, any mortgages, and the details and value of any assets and liabilities (debts) you and your partner have.
      While it’s not necessary to provide exact details, or any documents, at this early stage, it is a good idea to do some preparation so that you have a good overview of yours and your ex-partner’s circumstances.

      Bring your questions

      We understand that this can be a time of uncertainty and can raise a host of questions, some of which you won’t have considered before you meet your lawyer. We’re here to guide you through the process, so don’t be afraid to ask us anything. There is no question too big or too small. If there is anything that you don’t understand, or legal jargon that you’d like explaining, always ask your lawyer.
      Our goal is to help you move forward in life. We will take the strain for you and be by your side throughout to answer questions so that you can move on from a position of renewed strength.

      Make sure it is a convenient time

      Seeking legal advice about your family matters is always beneficial, whether it’s divorce, child law, financial matters or any other family law concerns. By it’s nature it does involve sharing personal and sometimes sensitive information in order to inform your lawyer and get the best possible outcome. The initial consultation is an information gathering and option exploring exercise so it is essential that you are comfortable and, in an environment where you can speak freely.
      Ensuring you have the privacy to speak openly is key, so if you need to rearrange your initial meeting for a more convenient time, just let your lawyer know.
      FAQs
      Q. Can I ask a friend, or member of my family, to be with me?
      A. Yes, of course. A trusted friend or family member can join calls or attend meetings with you.
      Q.What happens after our meeting?
       A. As each case is unique the next steps are always tailored to your individual circumstances and will be discussed during your meeting as well as any questions that you have.
      As a client you can choose to go away and consider everything that has been discussed, or instruct your solicitor then and there, it is entirely up to you. There is no pressure at all to make any decisions.
      You’ll receive a follow up email after your meeting so that you have our contact details to hand should you need us further.
      Q. How long does an initial consultation typically take?
       A. The length of the initial meeting depends on a number of factors but typically takes around 30 minutes.
      Further reading:
      Your first meeting with a divorce lawyer
      Meeting A Divorce Solicitor For The First Time
      Get in touch
      If you would like any advice on on divorce, or other family law issues, you can read further articles or contact our Client Care Team to arrange your initial meeting with one of our divorce lawyers.  More

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      5 Reasons a Nuptial Agreement may be right for you

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      Nuptial Agreements are made ether before or during a marriage or civil partnership and set out how a couple’s assets and property would be split should they divorce or legally separate. Here Vicki Rawlins, Partner at our Winchester office, explains Nuptial Agreements in more detail and shares the reasons why married couples should consider getting one.

      Timing

      Whilst most people have heard of a Pre-Nuptial Agreement, fewer people have heard of a Post-Nuptial Agreement. Both Agreements are similar in content and share the aim to resolve financial and practical difficulties in the event of a future separation as amicable and straightforward as possible.
      Pre-Nuptial Agreements are completed before the wedding and there is clear guidance as to the desired time between the Agreement being finalised and the wedding taking place.
      Post-Nuptial Agreements can take place at any time after the wedding and prior to any separation.
      Timing is therefore a factor to be considered to determine which Nuptial Agreement would be preferable, but one can be completed either during the engagement or marriage.

      Protection

      A Nuptial Agreement is designed to determine how the couple will deal with and separate their finances in the event of a separation and / or a divorce or dissolution.
      Traditionally the Nuptial Agreement will set out how the couple wish to separate assets that one or both have brought with them to the marriage. This could for example relate to property, investments, or business interests. Consideration can however also be given to future assets that may be received or obtained during the marriage, either individually or as a couple. Examples of these could relate to an inherited gift or a property purchased together as a couple.
      Whatever terms the couple agree will form the starting point for division of assets if they do go on to separate. Whilst nothing can prevent one spouse from trying to override the terms of the Agreement, the terms of the Nuptial Agreement must then be considered, and the focus will be on that spouse to persuade the court that the terms should be changed.
      In general terms provided certain guidance has been followed by the couple when the Agreement is reached, and the terms agreed are not fundamentally unfair to one spouse, the court will seek to follow the Nuptial Agreement wherever possible. This therefore gives the couple the best available protection in the event of a separation.

      Collaboration

      As a Nuptial Agreement will be completed when the couple are still in a relationship, it makes it much easier to focus on the practical and financial issues to be considered. Trying to resolve such matters after a separation is made much more difficult due to the emotions that both will be experiencing alongside likely major lifestyle changes such as a change of home. This is even more so if the separation has not been a mutual decision made by both spouses.
      Choosing to consider and agree these issues in advance, taking the couples’ specific aims and priorities into account, greatly increases the prospects of reaching a fair and amicable agreement.

      Flexibility

      Terms are agreed between the couple and can be as wide or as narrow as they see fit. The Nuptial Agreement could simply deal with just one asset or could set out how the couple wish to divide all assets and income should they later separate. It is an adaptable document which will be tailored to the couples’ needs.
      Whilst it is possible to include in a Nuptial Agreement how they wish to deal with possible future events, no-one can see into the future. Something may happen which the couple had not envisaged, or they may feel differently about an event when it does then happen.
      Nuptial Agreements are flexible as they can be updated as and when the need arises, provided the couple can agree such amendments. It is common for Nuptial Agreements to include provision for review and possible updates at specific intervals, for example every 3-5 years, or upon certain events happening such as having a child. Ultimately whether such terms are included will be the couples’ decision and will form part of the negotiations.

      Savings

      Nuptial Agreements will ordinarily save the couple time, money, and stress.
      If a couple separate without having had a Nuptial Agreement, negotiations will then be necessary. Various factors can make this a very difficult process. In those cases, the only option may be to begin contested court proceedings.
      In those circumstances the matter is unlikely to be resolved for at least 1-2 years, during which time the couple’s lives will often be in limbo. The costs of such negotiations, and especially court proceedings, will generally be much more expensive than the costs of a Nuptial Agreement. Finally, the emotional impact and stress that this will have on the couple is far greater than the alternative.
      Nuptial Agreements are growing in the UK and can be viewed as an option for consideration akin to financial planning advice.  Specific legal advice should be sought to consider the couples’ individual needs and priorities before entering into a Nuptial Agreement.
      Get in touch 
      If you would like any advice on Nuptial Agreements or other family law issues, please contact our Client Care Team to speak to one of our specialist divorce lawyers here.  More

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      in Family Law

      Surrogacy – to agree or not to agree? That is the question

      by

      Those embarking on the path to having a child via the surrogacy route are often surprised that in the UK, unlike in many other countries, you cannot enter into an enforceable contract with your surrogate.
      This is mainly due to fact that in the UK, surrogacy is an entirely altruistic endeavour. However, this often leaves intended parents and surrogates alike feeling unsure as to how best to proceed, or how to ensure the surrogacy runs smoothly.
      The Law
      Although a solicitor cannot draw up any agreement, as this is a criminal offence under The Surrogacy Arrangements Act, this does not prevent the surrogate, a spouse or partner, and the intended parent(s), from sitting down together to discuss their ‘deal breakers’ and drawing up a formal document, called a Surrogacy Agreement, outlining what has been agreed.
      Surrogacy Agreements
      Surrogacy Agreements outline the issues raised during discussions, the specific terms of the shared agreement, and the chosen approach that all the parties will take – although the agreement is still not be enforceable should any party act in contravention of the terms.
      When speaking with intended parents or surrogates I provide early advice on the process of surrogacy, confirm their legal position, and give guidance on making an application for a parental order – the process of becoming a legal parent of the child – which is required.
      We recommend that you engage in these discussions with all parties, and consider all of implications, before the implantation of an embryo. Take the time, before starting the process, to sit down and have these difficult discussions. Whilst these can be a little awkward, it often helps to open the lines of communication and to build a good relationship between the parties.
      What should be included in the agreement?
      The agreement should include details of the parties’ positions, discussions and agreements reached such as;

      Decisions about the pregnancy
      Who will attend scans and appointments
      How you would deal with any difficult issues that arise, including medical issues (although of course the surrogate will always retain the right to make her own medical decisions)
      Arrangements about the birth and post birth
      Arrangements surrounding the application for the parental order
      Expenses and arrangements for payments
      Any other issues, or moral and ethical decisions you deem necessary to ensure you are all on the same page.

      Covid-19
      At present, intended parents may also need to consider whether they want their surrogate to have had a Covid vaccine or not and, if the surrogate is going to be vaccinated, whether or not she does this before the implantation of the embryo.
      If the parties do not agree on this issue, then they should talk openly about their concerns and include this specifically in the surrogacy agreement. Even if an agreement cannot be reached, discussing the issue can help to understand the others position and can assist with deciding how you move forwards.
      Why make an agreement if it is not enforceable?
      This surrogacy agreement can be shared with any relevant third parties, such as clinics or hospitals, so that they can understand the situation without the need for you to clarify your circumstances and the details of what has been agreed.
      Nobody knows what the future holds, but by formally recording your arrangements you have a definitive record of the agreement to refer to at a later date, should the need arise.
      This helps to ensure everyone’s wishes, and the agreements reached, continue to be respected and provide reassurance should there be a breakdown in the relationship.
      Final thoughts
      Although it is unlikely the surrogacy agreement will be able to cover every conceivable disagreement that might arise, it does offer peace of mind by helping you to reduce conflict around the most common issues.
      Furthermore, it opens up the channels of communication, facilitating discussions, and helping all parties to see each other’s point of view. This collaborative approach will help you to reach agreements if other issues, that had not previously been considered, arise.
      Ultimately, although unenforceable, discussions between the parties and the resultant surrogacy agreement are hugely beneficial, and important for all involved, to ensure everyone’s understanding and expectations are aligned.
      Get in touch
      If you are considering surrogacy and would like advice on this or other family law issues, please contact our Client Care Team to speak to one of our specialist surrogacy lawyers here. More