Author: Edwards Family Law

Divorce is never an easy decision. Even when both partners agree that separating is the right step, it can still be an emotional and life-changing process. At Edwards Family Law, we understand that every marriage is unique – and so are the reasons it might come to an end.

Since April 2022, the UK has had a no-fault divorce system. This means couples no longer have to prove one spouse did something “wrong” to obtain a divorce. But while you don’t need to give a legal reason anymore, couples still separate for deeply personal reasons. The reasons for divorce cited in divorce applications still provide valuable insight into why marriages end, and statistical data show which issues are most frequently reported.

Understanding No-Fault Divorce

Under the Divorce, Dissolution and Separation Act 2020, which came into effect in April 2022, you can now divorce by making a Statement of Irretrievable Breakdown. This simply means you confirm that your marriage has permanently broken down.

Before this change, you had to rely on one of five grounds, also known as the five grounds for divorce, as the legal basis required to end your marriage. Each ground for divorce, such as adultery or unreasonable behaviour, had to be proven to support your case. The new process removes the need for blame, reduces conflict, and allows either one spouse or both together to apply. Under the old system, the cited ground or reason for divorce (for example, adultery or unreasonable behaviour) had to be specified in the application.

The steps are:

Apply for divorce after at least 12 months of marriage.

Serve the application to your spouse (often by email).

Wait a 20-week reflection period before applying for a Conditional Order.

After a further 6 weeks, apply for the Final Order, which legally ends the marriage.

Even with this simpler process, deciding to divorce can be overwhelming. Below, we explore the most common reasons people make that decision.

The Divorce Process

The divorce process in the UK has been transformed by the Divorce, Dissolution and Separation Act 2020, which introduced the no-fault divorce system. This new approach means that couples no longer need to assign blame or cite specific grounds for divorce, such as adultery or unreasonable behaviour. Instead, the process begins with a simple statement of irretrievable breakdown, confirming that the marriage has permanently broken down and cannot be repaired.

Either one spouse or both together can make this declaration, and there is no need to provide evidence or justify the decision. This shift has made the divorce process more straightforward and less confrontational, helping divorcing parties to focus on moving forward rather than dwelling on past grievances. The new system is designed to reduce conflict, streamline the process, and allow couples to separate with greater dignity and respect.

By removing the need to prove specific grounds for divorce, the law recognises that relationships can end for many reasons, and that the most important step is acknowledging when a marriage is irretrievably broken. This modern approach to divorce law aims to support couples through a difficult time with less stress and fewer obstacles.

While no-fault divorce means you don’t have to prove these in court, they remain some of the most frequent issues that lead couples to separate in the UK.

The Most Common Reasons People Choose to Divorce

Infidelity

Cheating is one of the most emotionally painful reasons for divorce. Discovering a betrayal often shatters trust beyond repair and can have a significant emotional impact on both partners, affecting the stability of the relationship and the divorce process.

For some couples, counselling or open communication can help rebuild trust. For many others, the hurt and loss of respect make continuing the marriage impossible.

Lack of Connection and Commitment

A healthy marriage or relationship needs shared values, emotional closeness, and the willingness to work through challenges together, not just connection and commitment, but also shared interests and goals. Over time, couples may find their priorities have shifted.

Different ideas about parenting, finances, or life goals can create distance between partners and lead to conflict. While the saying “opposites attract” is popular, lasting relationships often require more than just initial differences; shared values and commitment are key to enduring partnerships.

This lack of commitment can show up as spending less time together, feeling like “roommates”, or one partner carrying the emotional load. Without mutual effort, the bond can weaken to the point where separation feels inevitable.

Financial Problems and Debt

Money isn’t just about numbers – it’s about values, priorities, and security. Disagreements about spending, saving, or debt can put strain on even the strongest relationships. Money issues, money problems, and money troubles are frequent sources of conflict in marriages.

For example, one partner might take financial risks that cause stress, while the other prefers stability. In difficult economic times, these differences can feel sharper and harder to resolve. Financial difficulties can erode trust and threaten financial stability in a relationship. Financial incompatibility often becomes a major factor in the decision to part ways.
Reaching a fair financial settlement during divorce proceedings is crucial to ensure both parties’ interests are protected.

Poor Communication

When communication breaks down, misunderstandings grow, resentment builds, and small disagreements can turn into recurring conflict. Communication problems are a major cause of relationship breakdown, often leading to emotional neglect and unresolved issues.

Poor communication can mean constant arguments, avoiding difficult conversations, or not listening to each other’s needs. Constant arguing is a common result of poor communication and can be emotionally exhausting for both partners. Over time, couples may feel unheard or unvalued – and this emotional distance can be just as damaging as any practical problem.

Growing Apart

People change over the years. Interests, life goals, and personal values evolve – and sometimes partners grow in different directions. Sometimes, couples can no longer find common ground, making reconciliation difficult.

This can be especially noticeable after big life changes, such as children leaving home, career shifts, or retirement. What once felt like a close partnership can start to feel more like two separate lives. For some couples, that gap can’t be bridged. In some cases, a continuous period of separation is required to establish grounds for divorce based on desertion.

Abuse

Abuse can take many forms – including domestic violence, domestic abuse, physical abuse, emotional abuse, and verbal abuse, as well as coercive control such as restricting access to money or isolating a partner from friends and family.

Abuse is never acceptable. In such cases, the victim may need legal protection from the other party. Divorce can help victims regain control of their lives and ensure their safety. Legal protection, such as injunctions or occupation orders, may also be available.

Child Arrangements

When children are involved, making child arrangements is one of the most important parts of the divorce process. The family court always puts the welfare and best interests of the child first, encouraging parents to reach agreements about where the child will live, how much time they will spend with each parent, and other key aspects of their upbringing.

Ideally, parents can work together to agree on child arrangements without needing to go to court. However, if an agreement cannot be reached, the family court may step in to make decisions about residence, contact, and other issues affecting the child’s well-being. The court considers the child’s physical, emotional, and psychological needs above all else.

Navigating child arrangements can be challenging, especially during an emotional time. Seeking professional advice from a family law solicitor can help you understand your rights and responsibilities, and ensure that the arrangements made are in the best interests of your children. With the right support, you can work towards a solution that provides stability and security for your family.

Civil Partnership and Divorce

Civil partnerships have provided same-sex couples in the UK with a legally recognised relationship since 2004, offering many of the same rights and responsibilities as marriage. Since the introduction of same-sex marriage in 2014, civil partnerships are less common.

The divorce process for civil partnerships is now almost identical to that for marriages, thanks to the introduction of no-fault divorce. Couples in a civil partnership can end their relationship by making a statement of irretrievable breakdown, without needing to cite specific grounds or assign blame. This process is governed by the same laws and principles as marriage divorces, making it simpler and less adversarial for all involved.

When to Seek Support

Deciding to end a marriage is rarely about one single event – it’s often the result of many smaller issues building over time. Recognising patterns such as persistent unhappiness, loss of trust, or repeated conflict is important.

You don’t have to wait until things reach a crisis point. Speaking to a specialist family law solicitor early can help you understand your options and protect your interests. Family law solicitors can advise on divorce cases and legal separation as alternatives to divorce, depending on your circumstances. Divorcing couples often benefit from early legal advice to ensure their interests are safeguarded throughout the process.

If you’re considering divorce, contact Edwards Family Law today for confidential, expert advice. Our team can guide you through the no-fault divorce process, ensure your financial position is protected, and help make arrangements for children in a way that puts their well-being first.

How Edwards Family Law Can Help

At Edwards Family Law, we specialise in divorce and family matters. We provide:

Clear, practical advice tailored to your situation.

Support through every stage of the no-fault divorce process.

Expertise in financial settlements, property division, and arrangements for children.

A compassionate approach that prioritises your wellbeing and future.

Key points of our approach include guiding you through the divorce procedure, offering advice from a legal perspective, and ensuring you understand your options at every step.

Whether your separation is amicable or more complex, we are here to help you move forward with confidence. Our team can guide you through the entire divorce procedure from a legal perspective, ensuring your interests are protected. We also advise on prenuptial agreements for those planning to marry.

Contact Edwards Family Law

If you are thinking about divorce, or if you have already decided it is the right choice for you, our experienced team is ready to support you.

If the parents of a child are married, both parents have the power and duty to register a birth and give the child a name. If they are not married, only the mother has the power and duty to do so. It is therefore easy to see how issues can arise during the birth registration process. Issues can also arise several years later. For example, the parents of a child who was given the father’s surname, might separate and the mother now wants their child to be known by her surname (or the surname to be double barrelled). Equally, there are fathers who were not consulted and who would like the child’s surname to be changed.

To change a child’s name, you need either the agreement of all persons with parental responsibility or a Specific Issue Order. Applications are made under s.8 Children Act 1989 and must address any relevant welfare concerns under section 1 of the Children Act 1989 (the “welfare checklist”).

By agreement

If the parents are agreed, the government has recently updated the forms that need to be completed to change the child’s name by deed poll. You can access the relevant forms here.

You can change any part of the child’s name, add or remove hyphens and change the spelling. You cannot change their title (e.g. Master or Miss) and you cannot change any capitalisations of the letters in their name. You must complete forms LOC022, LOC023, LOC024 and LOC026. The cost is £49.32.

If the child is adopted, you can change the child’s name during the adoption process.

If there is no agreement

The parent who wants to change the child’s name, must issue an application for a Specific Issue Order.

A legal case in 1999 set out the background and framework for judges to consider when deciding whether a child’s name should be changed. These are:

(a) If parents are married, they both have the power and the duty to register their child’s names.

(b) If they are not married, the mother has the sole duty and power to do so.

(c) After registration of the child’s names, the grant of a residence order (now known as a ‘lives with order’) means any person wishing to change the surname must obtain the permission of the court or the written consent of all those who have parental responsibility for the child.

(d) In the absence of a Lives with Order, the person wishing to change the surname from the registered name should obtain the relevant written consent or the permissionof the court by making an application for a Specific Issue Order.

(e) The welfare of the child is paramount and the judge must have regard to the s 1(3) [of the Children Act 189] criteria [the welfare checklist].

(f) The factors which the court should consider are the registered surname of the child and the reasons for the registration e.g. recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration, but it is not the only thing the court will consider. Other relevant factors will be considered.

(g) Factors to consider includes factors which may arise in the future as well as currently.

(h) Changing the child’s surname because it is not the same as the parent making the application to change it will not usual be successful.

(i) The reasons for an earlier one-sided decision to change a child’s name may be relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important. There would have to be strong reasons to change the name from the father’s surname if the child was registered with his surname.

(l) If the parents were not married, the mother has control over registration. Therefore, the degree of commitment from the father to the child, the quality of contact (if it occurs) between father and child, the existence or absence of parental responsibility are all relevant factors to take into account by the court.

Each case will be decided on its own facts and the ‘welfare checklist’ will be the court’s main consideration. Unless there are special circumstances, the courts are in support of the idea that a child’s name should reflect both their maternal and paternal heritage. In a 2002 legal case, the judge said that a child’s surname is of ‘particular significance’ because it ‘denotes the family to which the child belongs’. In another case in 2001, the judge said, “…parents and courts should be much more prepared to contemplate the use of both surnames in an appropriate case, because that is to recognise the importance of both parents”. There have, of course, been many more cases since these in the early two thousands, but these general principles continue to be applied by the courts now and we are unlikely to see a change in this trend.

In Practice

Whilst case law favours the recognition of both parents when deciding on a child’s surname, this will not be appropriate in every case and certainly it will be easier to change a younger child’s name than a child who has more awareness and understanding of their name and its significance. The overall outcome will depend on which judge (or magistrate) is hearing the case and, of course, the specific circumstances of each case. It is therefore very difficult to advise clients on the likely outcome. The expense and uncertainty are inevitably off-putting, but it is the only way to change a child’s name if the parents cannot agree. Before issuing a court application, the court will want to know that the parents have first attempted to resolve the disagreement via mediation. Mediation, if successful, will likely resolve the issue more quickly and at less expense.

A consent order is a court order (agreed by consent) that details the financial agreement reached between you and your spouse on divorce. You and your spouse agree the terms between you, usually with the help of your lawyers. This is then sent to court and reviewed by a judge. If the judge is satisfied that the terms of the agreement are fair and reasonable then they approve it; it is then a binding and enforceable court order.

It is common practice to finalise a consent order and have it approved by the court before you finalise the divorce itself. This is because there are certain benefits to you remaining as someone’s spouse until the consent order is finalised i.e. receiving pension rights or property if your spouse were to die.

If you finalise your divorce but you do not have a consent order, the financial claims you can each make against the other (as a result of having been married) remain active. So, even though you are divorced (i.e. the court granting a Decree Absolute or Final Order) it is still possible for you (or your ex-spouse) to make financial claims against the other until this is terminated by the formalities of a consent order.

The recent judgment in HAT v LAT [2023] EWFC 162 illustrates the pitfalls of not finalising a consent order. In this case, the husband and wife married in 1984 and divorced in 1993. They had been divorced for over 25 years when the wife issued an application for spousal maintenance and payment of her legal fees.

The parties had a high standard of living during their marriage and did not have any children. The husband had a successful career and had founded a company in the 1990s that was subsequently sold for £314 million. In 1994, the parties entered into a Deed of Separation (which purported to conclude all financial matters). The agreement was that the husband would pay the wife £702,000 and that there would be a ‘clean break’ i.e. no maintenance paid. Whilst the husband recalled the agreement being drawn up into a consent order, he had no evidence of this. The court therefore had to proceed on the basis no consent order existed. In those circumstances, the wife was entitled to make her application for maintenance.

Despite the payment of £702,000 and the terms of the Deed of Separation, the husband also provided a loan of £2.1 million to the wife in 2009 to help her buy a property in London. The husband also provided other financial support to the wife over the course of the next 10 years – paying for utilities, a car, educational courses, BUPA cover and a monthly allowance.

In 2022, the husband told the wife he would cease all payments and that the London property should be sold. He reduced the monthly allowance considerably and then eventually stopped paying all together. The husband’s position was that the wife should be held to the terms of the Deed of Separation and receive no further financial provision.

The judgment was only an interim decision (meaning the final outcome of the case is still to be determined). However, in was made clear that whilst it was highly unusual for a claim to be made so long after the divorce (29 years in this case), this was mitigated by the Deed of Separation and that the husband had continued to provide financial support to the wife after their divorce. The judge ultimately concluded that a delay of this length was not a bar to making a claim and it would not automatically prevent an application for financial relief. It would, however, be a factor the court takes into consideration.

Whilst the facts of this case are quite unusual, the judgment highlights that until financial claims are extinguished by a court order then it remains possible to makes claims against an ex-spouse irrespective of how long you have been divorced. It is therefore common sense to have a consent order drawn up in every case to protect yourself from claims many years down the line.

If you are divorced and do not have a consent order or need some advice about how to put one in place contact our family law specialists for a free 45-minute consultation.

What happens when the magical once upon a time, does not end happily ever after?

Before the Family Law Act 1981 came into effect, the happy announcement of an engagement was considered to be a legally binding contract. If the engagement was called off without any lawful justification, the person responsible for withdrawing could be sued for damages for breach of promise.

Whilst this is no longer the law, there are still many issues resulting from the breakdown of such a relationship. It is important to note that whilst engaged couples do not enjoy the same rights as married couples, even though the concerns and issues resulting from the fallout can be similar, they are afforded some unique enhanced protection, as simply compared to cohabiting couples.

Who keeps the ring?

The law is clear on who keeps the ring. S3(2) of the Law Reform (Miscellaneous Provisions) Act 1970, confirms that an engagement ring should be regarded as an absolute gift, unless there is clear evidence to show that it was agreed to be returned in the event of the relationship ending.

If the ring is a treasured family heirloom, a court may be more likely to be persuaded that there was an implied intention that it be returned if the relationship ended, but this is by no means guaranteed. Therefore, it is always prudent to record this in writing at the outset, however unromantic it may seem.

Engagement gifts from third parties

There is a presumption that any gifts provided to the happily engaged couple are gifted jointly, absent any evidence to the contrary. In circumstances where the couple unfortunately don’t make it down the aisle, it is unlikely that they will have friends and family banging on their door demanding the return of an air fryer or decorative throw for what was to be the new family home. However, there may be circumstances where family members have gifted substantial financial contributions towards proposed renovations to the new home, or perhaps indeed towards a deposit for a new home. In such a situation, that third party may be able to seek financial remedy through the court.

Costs associated with the wedding

Depending on how advanced wedding plans were and how close the couple were to the big day, in many cases it is likely that significant sums may have been incurred. The wedding venue, the catering, the photographer/videographer, the band, the dress, the makeup artist, the suits, the cake, the honeymoon; the list goes on and it certainly all adds up.

For a couple who have met each of these expenses jointly, their only likely recourse is to read the fine print of the contracts with the various suppliers to assess whether there is any chance of a percentage refund of the costs already incurred.

In circumstances where one party has footed the majority of the deposits and bills, the paying party may struggle to recover the sums incurred from the other aggrieved party, especially in the absence of any clearly documented agreement. The same applies in more traditional settings where the bride’s family may have paid for various expenses towards the wedding and are now seeking compensation from the groom’s side.

What happens to the house we have bought together?

There is no such thing as a “common law marriage”. Whether the couple have been together for five months, five years or fifty years.

Unmarried couples often rely on the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) should any property dispute arise. This allows a person with a potential beneficial interest in a property to have the nature and extent of their interest assessed and determined by a court, which may result in a number of orders, including an order for sale. TOLATA proceedings can be both time consuming and costly and largely turn on the veracity of the evidence provided by the parties.

Importantly, whilst engaged couples do not enjoy the same legal protections as married couples, many are not aware that they do have some enhanced protection as compared to non-engaged cohabiting couples:

S37 of the Matrimonial Proceedings and Property Act 1970

A formerly engaged party may make a claim for an interest in a property where there has been:

a contribution in money or money’s worth (i.e. paying a builder or undertaking such work yourself);
to the improvement of a “substantial nature” to real or personal property;
provided such contribution can be seen to have enlarged both parties’ shares.

However, this claim would be subject to any agreement advanced by the other to the contrary, either express or implied.

The Law Reform (Miscellaneous Provisions) Act 1970 and the Married Women’s Property Act 1882

Most of The Married Women’s Property Act has been repealed. However, S2(2) of the Law Reform (Miscellaneous Provisions) Act 1970 affirms the application of S17 of the Married Women’s Property Act 1882 to formally engaged couples, providing declaratory relief for ownership of property and personal possessions (such as cars, jewellery etc). Crucially, any claim must also be brought within three years of the engagement ending.

Protection and prevention

Where engaged couples own significant assets together or gifts have been made in the anticipation of the future happy couples’ big day, they may consider it sensible to enter into a pre-nuptial agreement. Whilst many liken pre-nuptial agreements as an insurance policy for divorce, the agreement may also make provision for what will happen to such property and gifts, as well as wedding expenses, should the wedding not go ahead.

Similarly, if the couple envisage a longer engagement period, they may consider entering into a cohabitation agreement; again, to record how the assets will be dealt with both during the relationship and, more importantly, upon any breakdown of the relationship.

In the merriment of a new engagement and the excitement of wedding planning, unromantic practicalities are usually, understandably, not at the top of the priority list. However, where there are assets to protect, prevention is always better than cure.

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Sarah Hogarth
Senior Associate at Edwards Family Law

When a couple is getting divorced and dealing with how to separate their finances, who receive the bonus, or even a share of it, can often create problems. Naturally, the party due to receive the bonus may seek to ‘ringfence’ the award, while the opposing party will argue that it should be part of the overall matrimonial pot and be distributed accordingly.

Issues such as this, which frequently occur and cause arguments, invariably produce a litany of case law, which needs to be considered by both legal advisors and the court in determining a fair financial outcome. To ascertain whether a spouse will be eligible for any degree of a parties’ bonus post separation, one must first explore the law in relation to bonuses received during the marriage.

During marriage

Generally, bonuses awarded while the parties are together are considered matrimonial assets. These are assets acquired during the marriage, or during the period of cohabitation before marriage. Upon reaching a financial settlement, the starting point for a division of the matrimonial assets is a 50/50 split. This can be altered based on each parties’ respective needs. For example, a party who is the primary carer of the children in the marriage, and who possibly has a lower earning capacity, would likely have a greater entitlement to capital from the matrimonial assets if their ‘need’ warranted such a claim. This would include any bonuses accumulated during the marriage.

Post marriage

The situation in relation to bonuses which are obtained post separation is less cut and dry, and usually depends on the circumstances of each case. For example, if there is a maintenance order in favour of the party earning less, it is possible for this individual to be awarded a portion of the payer’s future bonuses. This was explored in the case of H v W [2013] EWHC 4105 where it was originally determined that a wife was to receive maintenance of £3,750 per month plus 25% of the husband’s net annual bonus for the rest of their lives. Given his bonusses were typically circa £250,000, this was not an insignificant amount. Upon appeal, this was drastically reduced and capped at £20,000 per year, although the judge still held that it was necessary for the husband to share his bonus, in order to meet the wife’s future income needs in a fair and proportionate way.

Nevertheless, this case is now over 10 years old. I In recent years courts have taken a less generous approach to sharing bonuses post separation. For example, in the case of Waggot v Waggot [2018] EWCA Civ 727, , the wife’s attempt to have 35% of the husband’s net bonuses for a limited period was rejected. During this case, Lord Justice Moylan stated that, ‘Any extension of the sharing principle to post-separation earnings would fundamentally undermine the court’s ability to effect a clean break.’ The court being required to try and achieve this in every case, if it can.

In such cases, all bonuses received after a clean break would remain with the spouse receiving the bonus and subsequently, they are not to be shared. This is only relevant to circumstances where there is no spousal maintenance. If such an order is necessary, then bonuses can be used to meet future financial needs, as illustrated above in H v W [2013] EWCH 4105.

Perhaps the most difficult issue to determine when deciding to share bonuses is the timing of when they have been received. During a clean break case, if a party receives a bonus post separation, they may be entitled to believe that it ought not to be shared. However, as the case of O’Dwyer v O’Dwyer [2019] EWCH 1838 demonstrates, if a bonus is earned during the marriage but not paid out until after the marriage has ended, then there is every reason to treat it as matrimonial property in its truest sense. Again, in the case of Rossi v Rossi [2006] EWCH 1482, MrJustice Mostyn suggested that he ‘would not allow a post-separation bonus to be classed as non-matrimonial unless it related to a period which commenced at least 12 months after the separation’. This would seemingly give risk to the party receiving the bonus that it may still be added to the matrimonial pot, even if earned up to a year following separation.

It is therefore important that a party take legal advice, if they believe that they are either entitled to receive a bonus during their separation, or that their partner is. Here at Edwards Family Law, we are best place to guide you through your potential options and advise you in relation to an outcome which best protects your interests, either in relation to bonuses specifically, or in the broader context of your financial circumstances on divorce.

Every January, the press take great pleasure in writing about Divorce Day, which is considered to be the most popular day for divorce petitions to be filed with the court. It is fair to say that most family lawyers see an uplift in enquiries at the start of the new year, when in many cases couples have stayed together for the sake of their children, spent Christmas together, and then choose to action their separation more formally once the Christmas decorations have been packed away.

However an issue that has possibly also affected and influenced peoples’ decisions to action their formal separation or divorce, are the increased costs that everyone has been faced with in this present cost of living crisis. Potential clients are becoming increasingly reticent and concerned to initiate proceedings, with many taking advice and then telling us that they want to sit tight, believing a divorce or separation to be ‘unaffordable’ at the moment.

Certainly, mortgage costs have increased exponentially, and house values have simultaneously slumped, with the property market on its knees. The prospect of dividing one house into two and of paying a mortgage at current interest rates, is a very real worry for people. It makes it even harder for them to fathom and deal with the situation than it naturally is in a ‘good’ financial climate.

Some people choose to emotionally separate but not formally move apart and deal with their financial arrangements. This arrangement is often something that we would advise against. Whilst some may believe that they would prefer to wait until asset values increase, the family business picks up, or until the house prices go up, this can be a false economy. Certainly, once a couple (or even one party) has made the decision to separate, staying in a marriage or relationship at that stage can be very claustrophobic and stressful, and can also seriously impact the mental health of children involved in the midst.

It is true to say that this arrangement will also only work if there is complete trust between the separating couple. If there is not, and one of the couple has the majority control of the finances, there is every chance that money might be over-spent, moved around, the ownership of assets changed… It is crucial to deal transparently with financial disclosure in the event of a financial separation and divorce, but if one party is intent on making this difficult, and if they have been given even more time to action any such dealings with any delay in formally sorting out the financial separation, it will make it much harder, and much more expensive, to unpick the truth and work out what a true representation of any financial outcome ought to be.

Prolonging the inevitable might not be the best financial decision in the long term, particularly if pensions need to be divided. We have seen drastic fluctuations in pension valuations recently. Whilst that of course affects everyone across the board, formally sharing pensions on divorce sooner rather than later at least provides some certainty to the recipient party that they have full control of their share of what is often the most significant asset of the marriage or partnership, after the family home, even in a volatile market.

The timetabling of the way in which a person chooses to handle their personal life, and the huge decision of ending a relationship with all the emotional difficulty that comes with that, is entirely their decision. As family lawyers, we must be mindful of the potential pitfalls that come with waiting, which we will always discuss with them honestly but mindfully. Divorce is not something that ought to be, nor is it usually rushed in to, especially when children are involved. In the event that we are instructed to assist, when someone decides to press ahead, our aim is to advise pragmatically from the outset to try to preserve a good working relationship with the other party and/or their solicitor, and give advice that is sensible from the outset in terms of preserving your costs position. If, therefore, one of the big concerns is proportionality in dealing with the case sensibly and cost effectively, and that is what is putting a potential client off from formally actioning their separation, we can certainly assist. At the very least, anyone who is considering divorce and is concerned about the costs or potential outcome, should get legal advice early on to discuss the pros and cons.

REMO stands for Reciprocal Enforcement of Maintenance Orders and it is essentially an international agreement between countries to help recover child maintenance from parents who live in different countries.

REMO can help parents living in England or Wales (when the other parent has moved abroad) and if a parent is living abroad (and the paying parent lives in England or Wales). This is on the strict basis that both countries are participating REMO countries.

Before beginning the REMO process you must first ensure that you have a child maintenance order (or equivalent) that you can enforce. The aim of the REMO system is for reciprocating countries to enforce the child maintenance order you have as if a court in that country had made the order itself. It sounds straightforward but the REMO system can be complex and slow.

The first stage is to find out where the ‘Central Authority’ is in the country where you live. All applications must go through this Central Authority. The Central Authority in England is at: The Reciprocal Enforcement of Maintenance Orders Unit (REMO), Victory House, 30-34 Kingsway, London, WC2B 6EX. You can find the list of reciprocating countries and their Central Authority addresses here: https://www.hcch.net/en/states/authorities

Once you know where your Central Authority is, you need to make an application for ‘registration and enforcement of your order’. The precise form and details you need to provide will vary from country to country.

Your application will need to be supported by documentation i.e. your original court order and details of any steps you have taken to try to obtain payment from the paying parent directly. It will also be helpful for the application to include details of where you think the paying parent lives and works. The more information the better. If any of your documents are not in the language of the court who will be asked to deal with enforcing the decision, you will need to obtain a translation.

Registering and applying to enforce your order is a very important step that must be done correctly. If it is not, the court will not have the power to obtain payment from the other parent. You can make the application yourself in England or Wales (with the assistance of REMO) but you may want to consider instructing a specialist family solicitor to ensure this is done correctly.

Your Central Authority is likely to require you to obtain a ‘Statement of Enforceability’ from the court that made the original order to send with the application. So, contact the court as early as possible about this. You may need to attend in person before a judge to obtain this documentation. Again, you may prefer to instruct a specialist family solicitor to assist with this.

You do not have to use a lawyer to access the REMO system, but the application process can be complex and confusing. Even if you do not instruct a lawyer to assist you with the application, it is advisable to instruct a specialist lawyer in the country where the court will hear your application to ensure that you are best represented at any court hearings.

Once your court order has been registered in the reciprocating REMO country (this can take many months), you can proceed as if that country made the order in the first place. In England or Wales, an application to enforce the order and deal with any arrears is likely to involve 3 separate court hearings. The first two will be preliminary ‘directions’ hearings at which the court determines what further evidence is needed from the parties – for example disclosure of P60s, tax returns or witness statements. Eventually a Final Hearing will be listed (at which you may need to give evidence) and the court will determine whether or not money is owed and, if so, how much. The court may also use its powers to ensure payment is made. For example, in England and Wales the court has the power to put a charge on someone’s property or make an ‘attachment of earnings order’ (where the court can obtain payment directly from someone’s employer). The power the court has to obtain funds for you will depend on which country is dealing with your REMO application.

If you are successful in enforcing your court order and you incurred legal costs in doing so, it would be advisable to seek a cost order against the other parent. Whether or not you can obtain a cost order at the end of REMO case will depend on the specific rules of the country enforcing the order and the specific circumstances of your case, but it is always something to request.

Edwards Family Law is a niche London-based firm specialising in complex family law cases. To find out more about enforcement of maintenance orders, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

International travel has boomed since the pandemic, with many families planning trips abroad to make up for lost time. Holidays can be a great opportunity to create fun memories for children in particular, but what happens when one parent wants to take a child on holiday without the consent of the other parent? This article will consider the law in relation to parental rights, the position on taking children abroad following divorce or separation, and provide guidance to help parents navigate the relevant considerations to be made.

Parental responsibility and the law

The rules around taking a child abroad without consent hinge on the concept of parental responsibility. The Children Act 1989, which defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” Practically, this means that a person with parental responsibility may make decisions about the child’s upbringing, such as:

Where the child goes to school;
How to discipline the child;
Consenting to the child’s medical treatment; and
Choosing, registering or changing the child’s name.

How long does parental responsibility last?

Parental responsibility usually comes to an end when the child reaches the age of 18. The responsibility may however end earlier if:

A court makes an order terminating the responsibility; or
A child arrangements order ends or is discharged.

Who has parental responsibility?

Parental rights as a mother differ slightly from a fathers’ rights. In England and Wales, a mother automatically has parental responsibility for her child from birth. A parent who is married to or in a civil partnership with the birth mother will also automatically have parental responsibility for the child from birth.

If parents are not married, a father may usually obtain parental responsibility by:

Being named on the child’s birth certificate or birth registration (if the child was born after 1 December 2003);
Marrying the child’s mother;
Entering into a parental responsibility agreement with the child’s birth mother; or
Applying to a court for parental responsibility, sometimes known as a ‘parental rights order’.

Other adults may acquire parental responsibility in some circumstances, for example, through adoption.

Can parental responsibility be removed?

Parental responsibility will only be removed in extreme cases where it is in the child’s best interest. For example, for the protection of the child’s physical or emotional health.

Note that the concept of parental responsibility is distinct from the issue of child custody or child arrangements, which concerns a child’s living arrangements, both in terms of where they live and with whom, and the time they spend with the other non-resident parent.

The rules

In order to take a child abroad for any length of time, consent must first be obtained from every individual with parental responsibility for the child. In the absence of consent being provided, the parent seeking to remove the child from the jurisdiction must apply to the court for permission in good time, and certainly well ahead of any planned trip. However, it is worth noting that if there is a child arrangement order which states that the child lives with you (and spends time with the other parent – what used to be called a ‘residence order’), and there are no court orders preventing you from taking the child abroad, then you may take them abroad for up to 28 days without the requirement to obtain consent from the non-resident parent in advance.

Where consent is required, it is advisable to get written consent in the form of a signed letter from each other individual with parental responsibility towards the child. You may be required to produce this letter at the UK or foreign border, or you may need to rely on it in the case of any dispute. The letter should include contact details for the other person. If you and the child do not share a surname then it is also wise to carry documents which evidence your relationship with the child, such as a birth or adoption certificate, a divorce or marriage certificate, or any change of name deed where relevant.

If you are unable to get consent of other individuals with parental responsibility to take a child abroad, you can apply to the family court for permission. This will involve providing details about the trip, such as the destination, and proposed departure and return dates, as well as details of other people with parental responsibility staying in England and Wales. The court will consdier your application and may then make what is referred to as a ‘specific issue order’, allowing the child to go abroad.

Conversely, if a parent or other adult with parental responsibility wishes to prevent a child being taken abroad, perhaps because of concerns that the child will not be brought back to England or Wales, they may apply to the court for a ‘prohibited steps order’ to stop the child being taken abroad.

In each case, the court will consider the wishes of the parents (or other adults with parental responsibility) and decide what is in the child’s best interests.

As with all matters relation to children, it is preferable to seek to reach an agreement outside of the courts directly with the other parent in the first instance, using open and honest communication, or other means of dispute resolution, such as mediation, before engaging in court proceedings.

What happens if you don’t get permission?

If you do not have the appropriate permission to take a child out of the jurisdiction of England and Wales, or abroad internationally, and you do so anyway, you could face charges of child abduction. Child abduction is a criminal offense under the Child Abduction Act 1984 and it can carry serious consequences.

How can we help

Whether you are divorced or separated we understand that you want to continue creating memories with your child. This issue of taking a child abroad can be complex where there is disagreement amongst adults with parental responsibility for that child. Our experienced team of family lawyers at Edwards Family Law will help you navigate your parental legal rights, responsibilities, the relevant legal procedures and other considerations to ensure that you are able to reach a solution that is in the child’s best interests. If you have any questions, please get in touch with us at Edwards Family Law.

Child maintenance payments play a key role in ensuring the financial support of children whose parents are no longer in a relationship. This article will explore how maintenance payments are calculated in England and Wales and important points to be aware of.

What is child maintenance?

Child maintenance is a regular payment made by the paying parent to the receiving parent of a child following divorce or separation. It can also be payable even if the parents have never been in a relationship. The maintenance payments cover the child’s living costs when one of the parents does not live with the child. The person paying child maintenance, the “paying parent”, is the person who does not have the main day-to-day care of the child. The receiving parent is the person who does have the main day-to-day care of the child.

A child maintenance agreement must be in place if the child is under 16, or under 20 and still in full time education, up to and including A level or equivalent. Child maintenance payments may be agreed privately between parents, or can be put in place more formally by the Child Maintenance service (CMS). The CMS calculates weekly child maintenance payments using a six step process, which takes into account various factors with the aim of arriving at a fair figure. It is possible to use the CMS calculator and use that figure privately and ‘informally’ between parents.

Working out child maintenance

If the CMS is contacted by the parent with the main day-to-day care of the child and is asked to formally assess the amount payable, the following steps are undertaken.

Step 1 – working out income

The CMS will gather information from HM Revenue and Customs (HMRC) to ascertain the paying parent’s annual gross income. The CMS will also check if the paying parent is receiving benefits. Tax credits, student grants and loans will not be counted as income.

Step 2 – looking at factors affecting income

The CMS will check for factors which could increase or decrease the gross income amount, for example, pension payments, and/or other children the paying parent is supporting.

Either parent may ask for extra income, assets or expenses to be taken into account, such as:

Rental income exceeding £2,500 a year;
Interest and dividends from savings and investments exceeding £2,500 a year;
Any income the paying parent may be diverting to avoid it being included in the calculation (for example, by giving it to someone else); and
Assets like shares, stocks, gold or money worth more than £31,250.

As the paying parent, you may ask for the following expenses to be taken into account:

Costs of keeping in contact with a child you pay maintenance for (for example, fuel to travel between your home and the child’s home with the other parent);
Costs of supporting a child with a disability or long-term illness who lives with you;
Repaying debts from a previous relationship;
Boarding part of boarding school fees for a child you pay maintenance for; and/or
Mortgage, loan or insurance payments for the home you used to share with the receiving parent – if the receiving parent and your child still live there.

The CMS will then convert the yearly gross income into a weekly figure.

Step 3 – applying child maintenance rates

There are 5 different rates and the one that applies will depend on the gross weekly income of the paying parent:

Gross weekly income	Rate	Weekly amount
Unknown or not provided	Default	£38 for 1 child, £51 for 2 children, £64 for 3 or more children
Below £7	Nil	£0
£7 – £100, or if the paying parent gets benefits	Flat	£7
£100.01 – £199.99	Reduced	Calculated using a formula
£200 – £3,000	Basic	Calculated using a formula

If the paying parent’s gross weekly income exceeds £3,000, the receiving parent may apply to the Family Court for extra child maintenance in the form of a ‘top up’ order.

Step 4 – other children

The CMS will take into account how many children the paying parent has to pay maintenance for, whether this has been arranged privately by the parents, or through the CMS.

Step 5 – weekly amount of child maintenance

Using all the gathered information, the CMS will decide the weekly child maintenance amount.

Step 6 – shared care

Occasionally the paying parent’s child may stay overnight with the paying parent. Where this is the case, CMS will make a deduction from the weekly child maintenance amount based on the average number of ‘shared care’ nights in a week.

Changes to child maintenance payments

The amount due for child maintenance payments may change as a result of the CMS’ annual review of a case. Each parent may apply for a variation.

There are certain changes which must be reported to CMS by law, such as:

A change in how often the child stays overnight with the other parent;
A change of address (CMS must be notified within 7 days of moving);
A change in who the child’s main carer is; or
A change of bank details.

Failure to provide requested information or the deliberate provision of false information could result in a fine of up to £1,000.

If a parent is unhappy with the CMS calculation of maintenance payments, they must ask for the decision to be looked at again in a process called ‘Mandatory Reconsideration’, before they will be allowed to submit an appeal to the Social Security and Child Support Tribunal.

How we can help

It is important to reach a child maintenance agreement that is in the best interests of the child, and fair to both parents. Whether you need support in reaching a child maintenance agreement privately, or you would prefer to use the CMS process, our experienced team of family lawyers at Edwards Family Law will help you navigate your options and help you reach a suitable solution.

There has been lots mentioned about children and their surnames in the press recently following an Italian court ruling in which it was confirmed that new-born Italian children should be given the surname of both parents. This decision reversed the long-standing tradition of children being given the surname of their father.

In the UK, a child acquires their name when it is registered following their birth by the child’s parent or another person with parental responsibility. A child’s name must be registered within 42 days of it being born. If the parents are married, both parents have the power and duty to register a birth. If they are not married, only the mother has the power and duty to do so. It is therefore easy to see how issues can arise during the birth registration process. Issues can also arise a number of years after the registration of a birth. For example, the parents of a child who was registered with the father’s surname, might separate and the mother thereafter wants their child to be known by her surname or the surname to be double barrelled. Equally, there are fathers who were not consulted prior to the child’s registration of birth who would like the surname to be amended to reflect their own or to be double barrelled.

To change a child’s name, you need either the consent of all persons with parental responsibility or a Specific Issue Order. Applications are made under s.8 Children Act 1989 and must address any relevant welfare concerns under s.1 of the Children Act 1989 (the welfare checklist).

The Law

The case of Re W, Re A, Re B (Change of Name) [1999] EWCA Civ 2030, [1999] 2 FLR 930 (“Re W”) is the leading case relating to the change of a child’s name. In case, the judge set out some general guidance for cases such as these:

(a) If parents are married, they both have the power and the duty to register their child’s names.

(b) If they are not married, the mother has the sole duty and power to do so.

(c) After registration of the child’s names, the grant of a residence order (now known as a ‘lives with order’) obliges any person wishing to change the surname to obtain the leave [permission] of the court or the written consent of all those who have parental responsibility.

(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave [permission] of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) [of the Children Act 189] criteria [the welfare checklist].

(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

(i) The reasons for an earlier unilateral decision to change a child’s name may be relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.

(l) Where the child’s parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.

Each case will be decided on its own facts and with the welfare checklist being the court’s paramount consideration. The higher courts are increasingly supporting the idea that a child’s name should reflect both their maternal and paternal heritage – as has become law in Italy. For example, in the case Re H (Child’s Name: First Name) [2002] EWCA Civ 190, the judge said [at paragraph 13] that a child’s surname is of ‘particular significance’ because it ‘denotes the family to which the child belongs’. In the case of Re R (a Child) (Surname: Using Both Parents’) [2001] EWCA Civ 1344, the judge said, “In my judgment, parents and courts should be much more prepared to contemplate the use of both surnames in an appropriate case, because that is to recognise the importance of both parents”

In Practice

Whilst the case law seems to favour the recognition of both parents when deciding on a child’s surname, applications to change a child’s surname are considered by lawyers to be ‘roll of the dice’ type cases. Much may depend on who is hearing the case and, of course, the specific circumstances of each case. It is therefore very difficult to advise clients on the likely outcome. The expense and uncertainty is therefore inevitably off-putting to prospective applicants. To some, however, it is worth the risk.

Edwards Family Law is a niche London-based firm specialising in complex family law cases. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.