Josiah Hincks Family Law Team is committed to providing a professional and efficient service in respect of divorce, separation, children issues or finances. Our experienced team of solicitors have the knowledge and expertise to deal with family law matters that can arise. We listen to your needs, ensuring you are supported through your case by a solicitor with the right experience and approach to suit you, and we shall always act in your best interests.
Our Family Law Team
How we can help
Our Family team is made up of extremely experienced solicitors, all of whom are members of Resolution including Accredited Specialists. There is very little between them that they have not encountered and resolved for their clients.
At Josiah Hincks we have a specialist family law team headed by Jonathan Foster who works closely with Radmila Balac & Bina Modi. All are members of Resolution. Radmila and Bina are Accredited Specialists whilst Bina is on Resolution’s National Committee. Bina and Jonathan are collaborative lawyers whilst Jonathan was President of Leicestershire Law Society (2017 – 2018)
Our Team can help you with the following:
- Separation / Separation of Unmarried Couples
- Resolving Financial Issues – personal, business, pensions & trusts
- Prenuptial (prenup) & Post Nuptial agreements
- Civil partnership dissolution and same-sex marriage
- Child arrangements
- Domestic violence cases
- Cohabitation (Living together) agreements for unmarried couples
- One off Consultation service
Advice is clear, concise and comprehensive.
We are clear about our costs from the outset and throughout your matter, as well as being able to offer fixed fee services so you will know how much your legal fees will be.
We act for a broad range of clients based both in the UK and abroad, and for those where the family home is the main asset to high net worth individuals with businesses and trust assets. With our professional advice and assistance, you can be confident of achieving the best outcome for you and your family.
Why choose our family law lawyers?
Why choose us?
We recognise that a large proportion of our work comes from recommendations and satisfied clients therefore for our aim is to give the maximum level of added value service at competitive rates. We accept we may not be the cheapest but we pride ourselves on the quality of service.
We provide clear and concise advice and ensure you are kept fully appraised throughout the transaction. 98% of our clients would recommend Josiah Hincks to friends, family and contacts.
In 2018 Josiah Hincks was recognised by the Leicestershire Law Society as Small Law Firm of the year 2018. This award reflects the excellent service our staff offer its clients and brings assurance to those clients working with us that we strive for excellence in all we do.
To apply for a divorce, you must have been married for at least a year. You or your spouse must also meet certain residence conditions or are domiciled here.
The divorce process is generally administrative so usually neither of you will need to see a judge to get a divorce as it is almost always agreed by a judge on the paperwork. The process is simple as long as your spouse does not decide to defend the proceedings and ask the court not to grant your divorce. When this happens, it is called a defended divorce and is a different process, but defended divorces are costly and thankfully very rare.
The document that starts the divorce is called a petition. The law in this country still requires one spouse to petition against the other, even if both of you agree that there should be a divorce. The Court will require your original (or an official copy) marriage certificate to be filed with the petition and also an approved translation of what it says if it is in a language other than English. There is a court fee payable of £550 to start the process.
To start a divorce, you (or your family lawyer, on your behalf) must file a petition at court. The petition is a form that gives the court information about you and your spouse, and tells the court that you feel your marriage has irretrievably broken down. You must briefly set out evidence that your marriage has broken down by supplying certain details in one of the following five categories:
- that your spouse has committed adultery
- that your spouse has behaved in such a way that you cannot reasonably be expected to live with them—this is often referred to as unreasonable behaviour
- that your spouse has deserted you for two years
- that you have lived apart for two years and your spouse consents to the divorce, or
- that you have lived apart for five years
The person starting the divorce is called the petitioner and the other spouse is called the respondent.
If your spouse has committed adultery it is technically possible to name the person with whom they committed adultery as a co-respondent in the divorce. However, we do not recommend that you do so unless you believe that your spouse is likely to defend the proceedings. In our experience, naming a third party in divorce papers raises the emotional temperature between you and may make it more difficult to agree arrangements in other areas, increasing your stress levels and legal costs as a result.
The petition is filed at court with the court fee and your original (or an official copy) marriage certificate.
The court, or your family lawyer, sends the petition out to (‘serves’) the respondent together with a form for them to fill in called the acknowledgement of service. In this form the respondent has to say whether or not they intend to defend the divorce. The form has to be returned to the court. If the respondent has no intention to defend the divorce that is the end of their part in the process and all further steps are taken by the petitioner at their own pace.
The next step is for the petitioner to complete a statement in support of the petition. This is another form that states that the contents of the divorce petition are true and asks for certain technical legal details such as whether you have lived in the same household since a certain relevant date. This is filed at court with your application for a decree nisi. The decree nisi is the second-to-last phase of the divorce. It means the court has agreed that you are entitled to a divorce, but has not yet made it final. After the court has received your application for decree nisi, a judge will look at your papers to make sure they fulfil the legal criteria and if they do the court will issue a certificate telling you when the decree nisi will be pronounced.
Decree nisi is pronounced in open court. At any time after decree nisi, the court is able to make a binding financial order setting out your arrangements for finances and property on divorce, either by consent or as a result of separate court proceedings. It will not do so unless you ask it to or your separate financial court proceedings have come to a conclusion.
Six weeks and one day after the grant of decree nisi, the petitioner can apply for the decree absolute, which formally ends the marriage. Not everyone should apply for decree absolute as soon as it is available and you should make sure you have discussed whether you should do so with your family lawyer. It may not be sensible to apply immediately if, for example, financial arrangements are not yet settled. You should discuss your specific circumstances with your family lawyer as in some cases the grant of decree absolute will prevent certain types of financial claims being made. However, if the respondent is keen to end the marriage and the petitioner has not applied for the decree absolute, the respondent can ask the court for permission to do so after a certain period of time (about four-and-a-half months from decree nisi). The court will usually grant such an application unless there are particularly pressing reasons not to do so.
It’s important to note that divorce may mean that certain provisions in your Will do not work as you might have intended them to. You will need to make a new Will quickly after decree absolute (or in contemplation of divorce) to ensure your wishes are carried out in the event of your death
Many couples are able to agree upon the arrangements for their children following their relationship breakdown. They are able to agree on which parent children will live with, and what time they will spend with the other parent. Where parents are unable to agree, either directly or with the help of mediation, then they may need to apply to the Court for a Child Arrangements Order.
A child arrangements order (CAO) is an order that regulates arrangements for a child that relate to any of the following:
- with whom the child is to live, spend time or otherwise have contact
- when the child is to live, spend time or otherwise have contact with any person
Contact simply means the time that a child spends with an adult. There are several ways that contact may take place:
- direct contact between the child and the person named in the order;
- overnight staying contact
- supervised contact, and
- indirect contact through letters or cards
In rare circumstances, where the best interests of the child dictate, the court can order that there is no contact.
A CAO that regulates with whom the child is to live and when, will last until the child is 18 (unless the court orders an earlier date). A CAO that regulates when the child is to have contact with a person will usually end when the child is 16 but in limited circumstances can last until the child is 18.
An application is made on a specific court form, which sets out the details of all the adults and children in the case. It then requires you to say what orders you are asking the court to make and why.
When the court receives the application, it will set a time and place for you and the other person or people involved to have a first court appointment (called a first hearing dispute resolution appointment (FHDRA)). Information about this appointment and a copy of the application form must usually be sent to any other adults involved so that they have time to prepare a response. The person starting the court process is called the applicant and the other parent, and any other adult with parental responsibility or looking after the child, is a respondent.
The respondent(s) must complete certain forms and send them to court to confirm they have seen the papers.
The FHDRA is when the court investigates the issues and enquires into the possibility of settlement. If agreement cannot be reached the court will identify the outstanding issues and will direct how the case should proceed. The court might order that a Cafcass (Children and Families Court Advisory and Support Service) officer prepares a report to help the judge at the final hearing, or it might order that the child be legally represented in the proceedings. An order may be made for the parties involved to prepare written statements of the evidence that they want the court to hear. Sometimes the court will adjourn the case for mediation to take place.
If the issues can’t be sorted out the court will hold a final hearing. Here, a judge will hear evidence from the adults involved, the Cafcass officer and any other necessary experts, and then make a binding decision.
When deciding what order to make, the first concern of the court is the child’s welfare. The Children Act 1989 provides a list of considerations for the judge who has to decide the case, which help guide them in making a decision, including:
- the wishes and feelings of the child concerned
- the child’s physical, emotional and educational needs
- the likely effect on the child if circumstances changed as a result of the court’s decision
- the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
- any harm the child has suffered or may be at risk of suffering
- the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
- the powers available to the court
Additionally the court must presume when considering an application for a CAO, unless the contrary is shown, that involvement of each parent (of some direct or indirect kind but not any particular division of a child’s time) in the life of the child concerned will further the child’s welfare. That presumption applies if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. Your family lawyer will explain how this presumption may be applicable in your circumstances.
The court must also be satisfied that making an order is better for the child than not making an order at all.
There are couples who are able to sit down and work out together how they are going to divide their property and reach agreement over their finances. Some couples are able to do so with the assistance of services such as Mediation or by using Collaborative Family law. For those divorcing couples, however, who are unable to reach agreement, then an application to the Court may be necessary.
Either spouse or civil partner can make an application to court to resolve financial disputes arising from divorce or civil partnership dissolution. The person making the application is the applicant and the other person is the respondent.
When either of you makes the application to court, the court automatically generates certain standard directions for helping to progress your case. These are:
- the date and time for the first court appointment (sometimes referred to as a first directions appointment or first appointment
- that five weeks before that appointment you must each file at court and exchange a completed financial disclosure form (Form E) giving full details of your financial circumstances, and
- that two weeks before that appointment, you must each file with the court and exchange certain documents.
Usually, at the first appointment the court will consider what more information is necessary to decide what should happen: the judge will order questionnaires to be answered by a certain date, consider what other expert evidence (eg on the value of property, or regarding pension details etc) should be obtained and by when, and then it will fix the date of the next court appointment.
The idea is that before the next court appointment each of you and the court will have enough information available about the financial picture to enable you to negotiate constructively about your financial matters.
Immediately before every court appointment, each person must file at court and exchange a statement of their legal costs.
The FDR (financial dispute resolution) hearing is usually the second court appointment. The FDR is a ‘without prejudice’ hearing, which means each of you is able to make proposals for settlement that cannot be referred to openly in court afterwards. The judge will try to assist you to come to a settlement and may give an indication of what they think could be an appropriate solution. If you reach an agreement the court can potentially make an order that day to formalise your agreement and end the court proceedings.
If you cannot reach an agreement on the day the judge will give any further directions about what is needed to get the case ready for the court to make a decision, which may include asking each of you to prepare a detailed statement, and will fix a date for the final hearing (or ‘trial’).
If it is not possible for the two of you to agree, the court will make orders at the final hearing about how your property, assets and income should be shared. You should bear in mind that very few people’s cases get to final hearing stage—most people agree (‘settle’) before then.
At a final hearing, the applicant presents their case first, then the respondent says what they want to happen. Each of you, and any experts you have asked for an opinion, will have to give evidence and be cross-examined by the other (or their legal representative if they have one). After hearing all the evidence and submissions from each of your legal teams, the judge will make an order about what should happen.
There is limited scope to have your costs paid by the other person in financial proceedings. The general rule is that each person pays their own legal fees.
The court follows the legal principles from legislation and case law in making its decision, although each judge has a discretion to do what they perceive to be appropriate on the evidence in each particular case. This means the precise outcome of financial court proceedings can be quite difficult to predict.
The statutory principles are set out in section 25 of the Matrimonial Causes Act 1973 and Schedule 5 to the Civil Partnership Act 2004. The court’s first consideration is the welfare of any children involved. Alongside that, when determining an appropriate division of resources, the court considers
- each person’s income, earning capacity, property and other financial resources, available now or in the foreseeable future, including earning capacity
- each person’s financial needs, obligations and responsibilities relevant now or in the foreseeable future
- the standard of living enjoyed by the family before the breakdown of the marriage
- each person’s age and the length of the marriage
- any physical or mental disability
- contributions made or likely in the foreseeable future to make to the welfare of the family, including any non-economic contribution
- 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 (although it is rare for conduct to be taken into account and the reason for the marriage or civil partnership breakdown is very unlikely to be a conduct issue for the purposes of a financial application), and
- the value of each of the parties to the marriage of any benefit which that party will lose the chance of acquiring
Other principles have become part of the law through the decisions of senior judges in important cases. These dictate that the court must be fair, considering each party’s needs, any compensation payable to one party for eg loss of career opportunity through marriage, and the sharing of any wealth above that which fulfils each party’s reasonable needs.
When dividing assets, the court will measure the end result against a benchmark 50/50 asset split to assess whether anything other than that is justified. It would be usual to expect that there would not be a 50/50 asset split where one person’s (or the children’s) needs require a higher proportion of the capital assets, eg for housing, or sometimes where one person came into the marriage with significantly greater assets than the other.
The court can decide to do any of the following:
- it can order a sale of a property, a transfer to one person (or to a child) or put it into a trust
- it can order a lump sum (whole or in instalments) or a series of lump sums, eg to pay off a mortgage
- it can order one party to pay maintenance to the other either for the rest of their joint lives/until the recipient remarries or enters into a subsequent civil partnership, or for a fixed period (a non-extendable or extendable term), eg until retirement; it can order money for educational expenses etc, but not usually for general child maintenance, except at higher income levels, an
- it can order that a pension be shared, or attached—sharing is where funds are transferred or split between the parties; attachment is like maintenance direct from a pension, but can also be a lump sum