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.

Are you going through a divorce in a foreign country but you or your spouse has an English pension? This area has potential trips and pitfalls so it is important you think about it early, and take early advice – read on!

You might now be living in another jurisdiction, but have spent considerable time in England, during which period you built up an English pension. Your English pension might even be the only asset that you still have in England, and all the rest of the assets relevant to your divorce are located in the other country where you are divorcing. This might mean that you forget about the English pension, when it’s important not to do so!

An English pension cannot be shared without an English court pension sharing order, or “PSO”. A foreign court order that says that all pensions should be shared will not be applicable to or enforceable against an English pension. If your divorce is completed abroad and you have a foreign court order dealing with the finances associated with your divorce, it is therefore required that you also get an English PSO. The only way to do this is to make an application to the English courts under Part III of the Matrimonial and Family Proceedings Act 1984, commonly known as a “Part III claim”. This law enables the English court to review a foreign financial order associated with divorce, and possibly provide further financial provision to the applicant above and beyond the foreign order.

The criteria to qualify for a Part III claim is that your divorce in the other country was legally valid; you have not remarried since that divorce; and that you have a “sufficient connection” with England. You will have a “sufficient connection” if either you or your spouse are domiciled in England and Wales (and were/was at the time of the foreign divorce), or if either of you have been habitually resident in England and Wales for a year before making the Part III claim.

Prior to Brexit, there was an additional limb of the “sufficient connection” test that was called the “forum Necessitatis’” limb. Essentially this allowed for England to secure jurisdiction for a Part III claim if no court of any other EU country has jurisdiction on any other ground. This was very helpful for making a Part III claim for a PSO because you would only have to prove that you are not domiciled or habitually resident in any EU country (other than the country you divorced in, if relevant). This made applications under Part III for an English PSO by parties who are both resident and domiciled abroad possible.

This “forum Necessitatis’” jurisdiction option was removed by post Brexit legislation. This means that, if neither of you are domiciled or habitually resident in England or Wales, you will not be able to secure an English PSO, and the English pension will remain with the person whose name it is in. You do not want to have gone through your whole divorce settlement negotiation acting on the assumption that the English pension would be shared, only to discover that will not be possible. Therefore, if you are entering a divorce abroad but you know that you or your spouse have an English pension, take advice at the outset on whether or not you will be able to get an English PSO and ideally before you even issue the initial proceedings, if possible. If a lawyer confirms this will be difficult for you, you can consider “off-setting”, whereby you account for the fact that the English pension is out of scope of any financial order by granting a higher share of other assets to the non-pension holding spouse. It is best that this forms part of the settlement negotiation from the outset and will likely require specialist actuarial advice to determine the value of the pension to the party who is retaining it.

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.   

At the point that two people decide to enter into marriage, they never expect that their marriage or civil partnership will end.

If you are faced with this issue, our experienced, compassionate, and tenacious family law solicitors will guide you through the processes involved and ensure that your best interests, and those of your children, are protected.

We have created this brief article to answer some common questions which might be of assistance in advance of any consultation with any of our solicitors.

Do I have to prove adultery or unreasonable behaviour to get a divorce in England and Wales?

Since April 2022, the Divorce, Dissolution and Separation Act 2020, changed divorce laws to the extent that neither party has to now ‘blame’ the other for the divorce. Instead, one or both parties simply need to make a statement that the relationship has ‘irretrievably broken down’.

There is no scope for either party to defend or contest the divorce in order to prevent it. The Court must accept the single or joint statement that the marriage has irretrievably broken down and then make the divorce orders, subject to court requirements in relation to the timing of the orders.

How is a financial settlement negotiated?

An experienced family law solicitor will take the time to understand what you and the family need in terms of a financial settlement, both in terms of capital funds but also in relation to the day to day income and outgoings.

To do this, you and your spouse or ex-partner will need to disclose what you each have and what you need. This process can take some time and is often the stage in the process that incurs the most cost, especially if either party is not clear about what they have, or if they are deliberately obstructive.

After establishing what the financial ‘pot’ looks like, together with assessing your respective priorities and positions, your solicitor will communicate with your ex-partner or spouse’s solicitor and commence negotiations.

In the event that it is not possible to immediately resolve matters by agreement, alternative dispute resolution methods such as round-table negotiations, mediation or an early neutral evaluation of the case are often productive and successful. That being said, it is true that sometimes going to court proves inevitable, especially in the context of non-disclosure. Court proceedings are hopefully a last resort in any case, and arbitration also remains an option in most cases; it is not reserved simply for high net worth and/or complex cases.

What factors does the Court consider when deciding on a financial settlement?

The court must refer to the provisions set out under section 25 of the Matrimonial Causes Act 1973 when deciding whether to move away from the starting point of equal sharing of matrimonial property.

The section 25 factors are:

  • the income, earning capacity, property, and other financial resources each party has access to, both now and in the near future;
  • the financial needs, obligations, and responsibilities of each of the parties now and in the near future;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the age of each party to the marriage and the duration of the marriage;
  • any physical or mental disability of either of the parties to the marriage;
  • the contributions that each of the parties has made, or is likely to make in the near future, concerning caring for any children of the marriage;
  • the conduct of each of the parties, and particularly if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it; and
  • the value of any benefit one party would fail to acquire as a result of the divorce.

What is a Consent Order?

If you and your spouse have been able to negotiate an agreement using alternative dispute resolution methods, round table negotiations or mediation, for example, or indeed have reached an agreement between yourselves, the parties can apply to the Court to have the agreement approved in the form of a ‘Consent Order’ with the assistance of their solicitors, or with at least one of their representatives.

Although the Court has the ultimate discretion to decide whether or not to ratify a financial agreement, Baroness Hale stated in Sharland v Sharland [2015] UKSC 60 that if experienced legal representatives draft the order, it is likely to be approved and the Court will be “heavily influenced by what the parties themselves have agreed”.

Once approved, the Consent Order is binding on the parties, with only very specific elements of it being variable on strict application to the Court, about which a party would be encouraged to take very specific advice.

How does the family court decide who gets to live in the family home?

When deciding how property and assets are to be divided in a divorce financial settlement, the Court must consider all the factors under section 25 of the Matrimonial Causes Act 1973. As mentioned above, this includes (but is not limited to) the financial needs of the parties, the standard of living enjoyed during the marriage, and the current and future earning potential of each spouse. The welfare of any children involved will be the Court’s paramount consideration.

Most financial settlements on divorce are agreed outside of Court. We can advise you on a range of options concerning the family home and any other property that you and your spouse own together. For example, you may both agree to allow the party with whom the children live most of the time to reside in the family home until the children turn 18, after which the property will be sold, and the proceeds of the sale apportioned between you both. Another potential solution is to offset the family home against the value of any pensions.

We will guide you through the options and advise you in relation to an outcome which best protects your interests, and those of your children.

Edwards Family Law is a niche, London-based firm specialising in high net worth divorce and international family law. To find out more about divorce and financial settlements, please call +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk to arrange a consultation with one of our specialist solicitors. All enquiries are treated in the strictest confidence.

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.

ToLATA or Not ToLATA? That is the question; well it may be for separating unmarried couples seeking to resolve a dispute relating to their land or property.  Today, the number of couples who cohabit (i.e. live together but do not marry or enter into a civil partnership) is increasing, with around 25% more people now cohabiting than a decade ago (according to the Office for National Statistics (ONS)) Contrary to popular belief, there is no such thing as a “common law marriage”, so these cases pose a particular challenge when it comes to  dividing assets following separation,  This is where the Trusts of Land and Appointment of Trustees Act 1996 (‘ToLATA’) comes in.  In this article, we will explain the purpose of ToLATA, and why this may provide recourse when determining how property and land should be handled following the separation of an unmarried couple.

What is ToLATA?

In the event of a property or land dispute following the separation of an unmarried couple, a claim can be brought under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) to request that the Court make a decision regarding that property. 

Under ToLATA, the Court will have the power to make a decision (as it sees fit) on:

  • Who owns the property, and how this is shared
  • Whether the property or land should be sold
  • Who should remain in the property following separation
  • Whether parents or grandparents should be able to regain their financial interest in a property.

They cannot, however, remove or appoint trustees.

Before ToLATA, its predecessor, the Law of Property Act 1925 imposed a duty to sell property owned by more than one person in the event of separation.  Section 5(1) of TLATA, in contrast, states that there is no duty to sell in such circumstances.

What is a ‘Trust of Land’?

A trust of land can arise in several ways, including:

  • expressly in writing
  • implied, resulting, or constructive – where the proprietor has acquired the land using funds provided by another
  • as a statutory trust – imposed when two or more persons own land jointly
  • as a bare trust where the trustee is a nominee for a beneficiary

As such, where a couple have been living together in a property that was purchased by one person partially using the funds of the other person, this would create an implied trust of land.  Where property is jointly owned by two people (i.e. co-owners), they are classed as both trustees and beneficiaries.  Claims brought under ToLATA can, therefore, be brought by either party as a trustee or beneficiary.

Section 14 of ToLATA states:

“(1)Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the Court for an order under this section.

(2)On an application for an order under this section, the Court may make any such order—

(a)relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b)declaring the nature or extent of a person’s interest in property subject to the trust, as the Court thinks fit.

(3)The Court may not, under this section, make any order as to the appointment or removal of trustees.

(4)The powers conferred on the Court by this section are exercisable on an application whether it is made before or after the commencement of this Act”.

How can a family law solicitor help with a ToLATA claim?

It is always advisable to seek advice from a family law Solicitor who deals with ToLATA claims, as this is a specialist area of law. They will be able to explain the best options based on your circumstances and whether making a ToLATA claim is appropriate.  Key to this is collating enough evidence that a trust of land exists and who has a beneficial interest.  A family law Solicitor will act quickly to protect the interests of their client, especially where they have no legal ownership of the property and their beneficial interest is not protected on the registered title at the Land Registry. Where necessary, an application can be made to the Land Registry to have their beneficial interest noted and place a restriction on the title of the property to prevent the registered owner from selling it.

A family law solicitor can also intervene urgently where one person has been unlawfully excluded from the property by the other party by seeking an interim injunction.

Where possible, offers will be made (a Part 36 Offer) in order to try and  reach an agreed conclusion out of court either before ToLATA proceedings are commenced or throughout the course of the proceedings. 

Before an individual or their Solicitor can bring a claim under ToLATA at court, they must follow the required pre-action protocol. This includes seeking an Alternative Dispute Resolution (ADR) (e.g. mediation, negotiation, or arbitration) outcome, as well as sending a letter before claim setting out the facts of the dispute, the law and the relief claimed..  If necessary, a claim can then be brought under section 14 of ToLATA before the High, County, or Business and Property Court, depending on which is appropriate.  Your Solicitor will also  determine whether to follow the part 7 or part 8 procedure – this depends on the extent of the dispute, whether matters of fact are disputed, and the outcome required (e.g. part 8 must be followed if the application is to sell the property in question).

Costs

As ToLATA proceedings are must follow the Civil Procedure Rules, the general rule is that the successful party is entitled to recover their costs from the losing party, although what order is made is at the court’s discretion. In deciding what order (if any) to make about costs, the Court will have regard to all the circumstances, including—

a) the conduct of all the parties;

b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

c) any admissible offer to settle made by a party which is drawn to the Court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

If a party brings a ToLATA claim which is unjustifiable, defends a claim or an issue on which they should have conceded, or neglects to make any reasonable offers they could find themselves having to pay their opponent’s legal fees in addition to their own.

It is therefore essential to take advice in respect of the merits of any claim you may bring or have to face defending from a specialist family solicitor.

Final words

Bringing a claim under ToLATA to resolve a property ownership dispute following the separation of an unmarried couple requires careful consideration of the possible outcomes, the likelihood of making a successful claim, and the costs (including the costs risk) and timescale involved.  An experienced family law Solicitor will listen to the details of your case and explain all aspects of bringing a claim before you make the decision to proceed.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about bringing a claim under ToLATA, please phone +44 (0)20 7129 7978 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.