Financial matters for Unmarried Family
Financial matters following the separation of an unmarried family can vary from simple to extremely complicated. Ideally an agreement can be reached regarding finances either between the parties directly or through using a third party such as solicitors and mediation. Such an agreement can be incorporated in a Separation agreement or if Court proceedings are already underway within a Consent Order which can be presented to the Court for approval by the Judge to finalise such proceedings. If an agreement is incorporated in a Court Order then this will have the benefit of being legally binding and enforceable. Any further financial claims will be dismissed or will be limited usually to looking again at maintenance arrangements.
However if an agreement cannot be reached then an application can be made to the Court in certain circumstances. It is important to remember the law on divorce does not apply to an unmarried family and the financial claims that either party can bring are different to those within a divorce.
If there is a dispute concerning the ownership of property then usual way to resolve this is to make an application under the Trust of Land and Appointment of Trustees Act 1996. The Court has the power to determine the extent of each party’s interest in the property in question. The Court can then go on to consider how the property should be dealt with for example whether to order an immediate sale or to give one party the opportunity to buy out the other’s share in the property.
If there are children of the relationship an application can be made to the Court by the parent with care of the children under Schedule 1 of the Children Act 1989. The Court can then consider making financial orders which can assist the Applicant , for example orders can be made for the payment of maintenance if the child support agency are not involved or orders can be made in relation to the property to enable the parent with care and the children to continue to live at that property.
The Court will require both parties to provide full disclosure of their relevant financial circumstances including details of income and assets. Valuation evidence in relation to assets such as properties may be required. Both parties may wish to raise questions regarding the other parties financial disclosure. The Court will also want to look at any evidence of an agreement between the parties during the course of the relationship.
Once sufficient financial information is before the Court there will be an expectation on the parties to make proposals to negotiate. The Court may hold a special hearing known as a financial dispute resolution hearing or FDR to assist the parties to negotiate. Many financial cases do settle by agreement at this stage.
If no agreement can be reached the matter will have to be heard at a contested hearing. This will involve having to give evidence to the Court and to be questioned by the other party's legal representative and the Judge. At the end of the hearing the Judge will make a decision based on the evidence and arguments put before the Court.
Further legal advice and assistance may be needed to implement the Order or if necessary to enforce it if the other party fails to comply with its terms.
How to fund an Unmarried Financial case:
On 1st April 2013 access to public funding (formerly known as Legal aid) changed and the Legal Aid Agency no longer offers public funding for unmarried financial disputes.
In certain cases Legal aid may still be available. However eligibility is subject to very strict criteria and will only be available if the case is regarded as exceptional or there is evidence of domestic violence.
If Legal aid is not available then the work carried out in relation to advice and assistance regarding financial matters will be charged on a time spent basis meaning that the client will be charged depending on the amount of work undertaken to deal with the specific case.
A fixed fee may be available in certain circumstances for example if you are simply looking for advice regarding the preparation of a document.
In all other cases the solicitor dealing with the financial matters will be able to advise on the estimated cost of the proceedings based upon the anticipated amount of work required in each particular case.