News

15

Feb

What is a Non-Molestation Order?

A non-molestation order is a type of civil injunction which you can ask a civil court to make if you feel you need protection from an associated person because of their behaviour towards you.

An associated person is described as:

  1. Someone you’ve been married to or in a civil partnership with;
  2. Someone you live with or have lived with;
  3. Someone you are related to;
  4. Someone you have agreed to marry or enter into a civil partnership with, even if that agreement has been terminated;
  5. Someone you have been in an intimate personal relationship with for a significant duration;
  6. Someone who you share a child with;
  7. Where you are both parties to the same set of court proceedings.

Molestation can mean anything from physical abuse, emotional abuse, financial abuse, threatening text messages or other forms of communication, or any kind of pestering, harassing or intimidating behaviour.

You can sometimes apply for this injunction on an emergency basis without the other party knowing.

If the court agrees to make the non-molestation order, the other person (called the 'Respondent”) will be served with a copy of it and it will tell them exactly what they can and can’t do. For example, the order might prevent the Respondent from coming near you or your home, or it could forbid them from trying to contact you.

If the Respondent does breach the order, it is a criminal offence and you should contact the police.

If you think you might need some advice about whether to apply for a non-molestation order, call us to make an appointment with one of our family law specialists.

08

Feb

Unreasonable Behaviour: what does it mean and what are the options?

Our Family Law specialists often have new clients call them to say they’ve just received divorce papers from court saying their spouse is divorcing them based on 'Unreasonable Behaviour'.

This can cause clients a great deal of worry and confusion.

What the Law says

In England and Wales, the only ground for divorce is that the marriage has broken down irretrievably.

The petitioner (the person who starts the proceedings) must then rely on one of five different Facts which are:-

  • Adultery,
  • That the other person has behaved in such a way that you cannot reasonably be expected to live with them,
  • 2 years’ separation with both parties consenting,
  • Desertion, or
  • 5 years separation

It isn’t possible to get a divorce based on anything else, so if none of the other Facts apply, Unreasonable Behaviour is the default Fact.

Why would my spouse have done this?

It might be that your spouse didn’t want to have to petition based on Unreasonable Behaviour, but they may have been left with no other choice. If you haven’t committed adultery and you haven’t been separated for 2 years, then Unreasonable Behaviour is their only option to get the proceedings up and running now.

How it affects you

Seeing the words Unreasonable Behaviour on a divorce petition can be scary and upsetting.

Normally there are two sides to every story and you might feel the examples of behaviour contained in the petition are either exaggerated, taken out of context or not true. In all likelihood, you could probably give examples of your spouse’s 'Unreasonable Behaviour' too.

What can you do?

The important thing to remember is that any alleged behaviour set out in a petition does not normally affect anything to do with finances or your children, unless it is very serious and relevant.

There are ways of allowing the divorce to go through without having to make any admissions or accept the contents on the petition.

For detailed and specific advice on what it is best for you to do, call us to make an appointment with one of our family law specialists.

01

Feb

Non-Resident Parents: What approach should you take when going to court about a child?

The term “non-resident parent” refers to parents who don’t live with their children, usually because the children live with the other parent instead.

Non-resident parents play a very important role in their children’s lives and they don’t have any less responsibility towards their children than the resident parent. It’s a common misconception that the resident parent has more “rights” or “control”.

Sometimes, non-resident parents might want to change arrangements. If the resident parent doesn’t agree to those changes, the non-resident parent might decide to apply to court to see what the court thinks should happen.

The courts will do what they consider to be best for the children so they need to be satisfied that it is better for the children to change the arrangements than it is to leave them as they are. We have developed a checklist of things for any non-resident parent to consider before they make an application:

  • Think about your MOTIVATION for applying - don't do it to avoid child maintenance or hurt the other parent.
  • Be REALISTIC - having the children live with you usually means a change in lifestyle and working hours. 
  • SHOW you can meet the children's needs without having to rely on other people all of the time.
  • Make sure the arrangements you propose are PRACTICAL - once the court case has finished it’s up to you to make it work.
  • Always think about what's BEST FOR THE CHILDREN - it's the paramount consideration of the courts.
  • Give CREDIT WHERE IT’S DUE - recognise that the other parent is doing a good job even if you don’t agree with each other on everything, and avoid minimising their role.
  • Have GOOD REASONS to explain why you think a change to the current arrangements is better for the children.
  • Don't speak badly of the other parent in front of the children – it can cause significant EMOTIONAL HARM and affect the way they see themselves as they grow older.
  • Leave the past behind you - the courts need to see that you are a TEAM and can CO-PARENT even though you are separated. 
  • Be FLEXIBLE - children are unpredictable!
  • Don't PRESSURE the children to choose a side - this could have a negative impact on your relationship with them as they grow older.
  • Focus on the BIG PICTURE – the most important thing is that the children have two parents who put them first.
  • Going to court SHOULDN’T BE A BATTLE – don’t focus on winning or losing but think of it as a team of professionals working together to decide what is best for the children.
  • It’s COUNTER-PRODUCITVE to concentrate on building a case against the other parent – instead you should work on what you can do to improve your case.

If you are a non-resident parent and you are considering whether arrangements for the children should be changed, contact our team of family law specialists for an appointment to get realistic advice on your options.

25

Jan

Would you recognise domestic violence?

Most people think of domestic violence as being limited to physical violence.

However, domestic violence is defined as 'any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other'.

A quarter of women have been in an abusive relationship and one man every three weeks is killed by a violent partner in the UK.

Would you recognise it happening to someone you knew?

Here is a non-exhaustive list of common abusive behaviours:

  1. Deliberately isolating their partner from their friends and family by controlling their money, access to a car, access to door keys etc.
  2. Checking their partner’s mobile phone, Facebook and emails; checking mileage on their partner’s car or otherwise checking up on what their partner has told them.
  3. Humiliating and mocking their partner in front of others under the pretence of a joke.
  4. Subjecting their partner to degrading and unwanted sexual conduct.
  5. Controlling all aspects of their partner’s life e.g. what they wear, where they go, what they do.
  6. Threatening suicide if their partner doesn’t do what they want.
  7. Eroding their partner’s confidence by commenting on their appearance, comparing them to others or telling them that they are lucky to be with them.

What can you do to help?

It can be incredibly difficult to know how to support a loved one who might be suffering from abuse. Above all, you should try not to allow the abusive partner to shut you out, and be ready to support the victim when they are finally able to break free.

How the law can help

Another way you can support them is to encourage them to seek legal advice to find out how the law can protect them with injunctions.

Our family law specialists can give confidential, discreet and detailed advice to put their minds at ease.

18

Jan

Silver Divorce: Is It Too Late?

Life expectancy is on the up. The average man can expect to live to 78 and the average woman can expect to achieve the grand old age of 82.

Is the thought of spending 20-plus years of retirement with your spouse really that unbearable?

Apparently so.

So called Silver Divorces are on the increase. Over 60s are the only age group where divorce rates are rising … and rising. But why? And what happens next?

Looking Forward to Retiring Together?

Retirement is supposed to be your reward for years of hard work. Your chance to live the life you always wanted - focussing on hobbies, making time to visit family, spending summers in the garden and winters in the Canary Islands.

In reality, it can also mean suddenly spending all your time, day-in/day-out, with your spouse and realising you have nothing in common now that the children have flown the nest. You may both have different ideas of how to spend hard-earned pensions, with one eager to make the most of it and the other keen to preserve it for the children and grandchildren.

Should You Carry On Regardless?

Nowadays it is far more socially acceptable to decide to seek a brighter future rather than stick rigidly to vows you made perhaps 40 years ago when you were both different people.

The thought of 'starting again' can be daunting for anyone at any age, and perhaps even more so for the retired husband who has never had to cook or clean for himself, or the retired wife who has never had to be responsible for paying bills or going into the loft.

However, fresh starts bring a wealth of new opportunities. There are a number of online dating websites solely for the older generation, meaning life doesn't have to be lonely. Organisations such as Saga offer travel opportunities and other services exclusively for over 50s.

Legal Help With A Separation or Divorce

Cunningtons can help you to deal with a separation in an amicable and cost-effective way. All of our family solicitors are members of Resolution, which means we deal with matters in a way that allows both parties to maintain their respect and dignity.

Our family solicitors are experts at advising on all of the legal implications that flow from separations later in life, such as divorces, judicial separation, properties and pensions.

We can also assist you to protect your assets if you are considering cohabiting or remarrying a new partner.

Our Locations

Braintree - 01376 326868

Cunningtons LLP in Great Square and Tofts Walk in Braintree, Essex, is the head office for Cunningtons Solicitors across the UK. Established in 1748, the Braintree head office in Great Square is still in its original offices. This amounts to almost 300 years of Experience and Tradition.

The Senior Partner at Cunningtons’ Braintree office is David Drake. Paul Fenton is the Joint Managing Partner. He, along with Johanna Withams are the residential conveyancing partners at the Braintree practice. They are supported by qualified Solicitors and Licenced Conveyancers.

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