The rise in civil partnerships and why cohabitation agreements are more important than ever

Many cohabiting couples are still misinformed as to their legal rights and that a cohabitation agreement can help resolve this.

This article explores some of the misconceptions where cohabitation, civil partnerships and marriage is concerned. We discuss the importance of cohabitation agreements for those living together or in legally recognised civil partnerships and where a relationship problem results in the partners going their own way.

Society today is faced with many growing pressures and challenges, from the basic cost of living, changing working practices, evolving societal values, Brexit, Covid, global unrest, the list seems endless. The impact of each is unique to those experiencing it, with many experiencing some form of mental health impact as a result. The overall effect though, is the potential for pressure and stress within a family unit; a problem that can lead to relationship breakdowns and ultimately those involved finding out where their relationship stands legally and what rights they can expect in reality.

Common terminology and misconceptions

A survey carried out a few years ago by NatCen (a society research company), showed that around half of those surveyed thought that people living together in unmarried relationships, often referred to as ‘common law marriages’, had the same or similar rights to those in recognised marriages. This thinking underlines two important problems with how the legal rights of ‘cohabiting couples’ are understood.  The first is one of circumstance; too many people don’t understand the legal situation concerning ‘living together’ or ‘cohabiting’  and the jeopardy they may be in should a relationship fail. Secondly, there is too little awareness that this situation can be rectified by putting in place a suitable ‘cohabitation agreement’.

Common law marriage doesn’t exit in England and Wales

It’s a term often heard from those adults choosing to live together rather than opt for a legally recognised relationship. Unfortunately, living together or ‘cohabiting’ doesn’t grant any specific legal status to such couples and is not recognised in England and Wales. The same is true for Scotland, but there is provision for what’s referred to as an ‘irregular marriage’ and called ‘ marriage by cohabitation with habit and repute’ – this may apply to those couples who have lived together and believe they were in essence, married. However, Scotland’s laws are not considered here.

What are the differences between cohabitation and civil partnerships?

Cohabitation or living together.

With the busy and often complex lives we live today, it’s no wonder those that place no special value on more formal marriage proceedings, chose to live simply by just living together. There may be some intention in the future to ‘finally get married’, but the reality is, many people simply do not.

Between 1996 and 2020 the number of opposite-sex couples cohabiting grew from 1.5 million to around 3.4 million – that’s around 21% of couples cohabiting, up from 10% in 1996. Furthermore, in 2020 there were around 1.3 million cohabiting couples with dependent children.

The increase in same-sex couples cohabiting was considerably more dramatic. Although a smaller number, such relationships grew from 16,000 to 120,000 – that’s an increase of 650%.

Cohabitation affords no special rights, no matter how long a couple has lived together. Upon separation, there are no specific rights to share ownership of assets. The same is true for ongoing support and maintenance. This is true, even if one party chose to give up work to become the homemaker or look after any children involved. Naturally, this situation can lead to problems, potentially leaving one party extremely vulnerable.

If nearly half of these families believe incorrectly that they have the same or similar rights to those in recognised relationships, there’s a significant problem brewing should those relationships start to break down. At some point one of the parties will become aware that their situation is quite tenuous. This is why it’s incredibly important for couples living together to be aware of the legal situation they may find themselves in and take action by formalising their relationship is one of the ways outlined and available to them – civil partnership of marriage, or by drawing up a ‘cohabitation agreement’.

Civil partnerships

Introduced in 2005, civil partnerships provided legal recognition to couples in a same-sex relationship and affording them similar rights to married opposite sex couples. However this created an odd situation which meant that opposite sex couples had only a single choice in forming a recognised relationship, that of marriage. In 2019 civil partnerships were extended and now opposite sex couples can choose between a civil partnership or marriage.

Unlike a marriage formed by vows, a civil partnership is created by signing a contract – a civil partnership document. Civil partnerships can be ended through a process called ‘dissolution’ which is not that different from divorce.

Partners in a civil partnership share almost identical rights to those in a marriage in that upon separation financial considerations, inheritance, tax entitlements and estate assets all form part of the rights and obligations.

Again, it is often a mistaken belief that a civil partnership creates some for of common-law spouse. This is not true, a civil partnership is legally documented and recognised, whereas a common-law partnership is simply not recognised in England and Wales.

Differences between civil partnerships and marriages

A very useful explanation of the key differences between same-sex, opposite-sex, married, and civil partnerships can be found as a table from the government website. It outlines the key differences from an administrative perspective,  entering into a relationship, getting a relationship annulled, divorced or obtaining a dissolution. Also, it considers what happens to your state pension upon death or separation. Just follow the link here.

What is a cohabitation agreement and why is it important to have one?

cohabitation agreementNot every couple ‘living together’ will be ready to formalise their relationship, some may never do, but without some form of agreement between each other, not matter if it’s an opposite sex or same-sex marriage, each party is potentially vulnerable should the relationship breakdown. In short, there’s no legal requirement to support each other after separation. There’s no automatic share of ownership over savings, property, possessions, investments, etc. If you owned something prior to the relationship, you still own it. If you bought something together, there’s shared ownership based on contribution. Gifts are owned by those in receipt of the gift.

Particular issues arise around debt. For instance, debt on a joint credit card is the responsibility of both parties. If one party fails to pay, the other may also be pursued for the full amount. This is similarly true for other household debts. Some unfortunate partners find out after the fact that their partner has debt problems they failed to share with them, and where the debt was drawn from a credit card or bank account set up in joint names.

This is where a ‘Cohabitation Agreement’ becomes valuable. A cohabitation agreement is a form of contract that clearly outlines shared responsibilities and what happens to assets and debts upon separation and any contributions to be made by either partner.

Cohabitation agreements are very useful where children and property are involved, as they can specify the responsibility towards the children, or not, of each partner. Similarly, if one partner purchased a home, it can outline the rights of the other partner post separation, such as a share in its sale, or rights to continue to live there while they transition.

Interestingly, where children are involved, cohabiting couples are treated in a similar way to married couples, such as issues with childcare arrangements, who the children should live with, maintenance etc.

Death of a cohabiting partner

Unlike married partners, cohabiting partners have no automatic rights to inherit the estate of the deceased partner – unless they are specifically named as beneficiaries in a Will – another important reason to make a will!

You may make a claim on your partner’s estate if you can show you have lived together as ‘man and wife’ for at least two years and that you can prove you were financially dependent on them. This is true even if you are not named as a beneficiary in the will.

Your home may also be at risk if your partner dies, depending upon the form of legal ownership you had in place. If you owned the home as ‘joint tenants’, then you would continue to own the whole home. If however, you were ‘tenants in common’, the deceased partner’s share would fall within the scope of any will left.

State pension and benefits, such as the ‘Bereavement Support Payment’ will not be available to the surviving partner, meaning they could endure significant financial hardship at a time when they need it the most.

Things to consider before drawing up a cohabitation agreement

It might be useful at this point if you do wish to enter into a cohabitation agreement to think of your position as being married and how you’d want your assets divided should you die or become separated. Think of it a little like a will and a separation agreement. Your assets will likely include:

  • Your home or other property
  • Investments in stocks, shares, crypto currencies
  • Your pension(s)
  • Any savings you have between you or jointly.
  • Personal possessions, such as jewellery, hifi, cameras, computer equipment, furniture, cars.

Liabilities are a significant consideration too, even children could be considered a financial liability of one partner passes on, even though it may be a responsibility you’d welcome. Other liabilities and responsibilities may include:

  • Debts
  • Rent payments
  • Mortgage payments
  • Education fees
  • Hire purchase / lease agreements

It’s not a great way to spend a day planning for failure, but it is a reality a couple shouldn’t ignore. In short, enter this with your eyes fully open, imagine the circumstances should you decide to part ways or should one partner die – or even if both partners die, particularly if there are children involved.

List them all out in a spreadsheet prior to contacting a solicitor like Foys Solicitors. This will make the whole process flow a lot more smoothly. You may also ask the solicitor to help in valuing your assets.

Can I use a free cohabitation template available online?

You could, be beware though; while these templates may provide some flexibility, it’s important to remember that each relationship is unique, as are your circumstances. It’s tempting to use a ‘one size fits all’ type of template cohabitation agreement, but it’s best if it is created to accurately reflect the personal circumstances of your specific relationship. A solicitor expert in the intricacies of cohabitation agreements will help you create an agreement that matches your exact needs. This is especially important if you have considerable assets and if children are involved.

One last point to bear in mind. The cohabitation or ‘living together agreement’ should protect both your interests and reflect that which you both want to happen.

Finally, if you don’t have a will, either of you, arrange to have one drawn up as soon as possible. Foys Solicitors can assist with that too!

Are you cohabiting and want to protect your future rights? Talk to the experts at Foys Solicitors today.

Foys Solicitors have been practising family law in the Doncaster, Sheffield, and Rotherham areas for decades. We’ve assisted countless families through the best and worst of times. You can always guarantee a warm, receptive and sympathetic welcome when discussing personal issues as cohabitation agreements or if one doesn’t exist how we may assist resolve difficult and traumatic separation issues.

Call one of our family law team today at an office nearest you or on our main Doncaster office number: 01302 327 136 who will put you in contact with the most appropriate solicitor. Alternatively, reach out via our contact form.

Note: This article is intended as an awareness piece and does not constitute legal advice – always consult a solicitor before making important legal decisions.

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Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below


Forced marriages in the UK 2022

Forced Marriages in the UK

Forced Marriages in the UK

Foys Solicitors has extensive experience in the area of family law. Family law is a wide ranging topic, dealing with scenarios related to domestic abuse, family disagreements, divorce and child abuse, to name a few. However, one troubling family problem area that gets limited exposure is that of forced marriages.

This article is meant to serve as an information piece to raise awareness of the issue and the actions that can be taken by those concerned or those familiar with somebody who might be in such a position.

Not specific to culture or religion

Forced marriages are not the preserve of a particular culture or religion, the idea that it is, is a common misconception. People from many backgrounds, ages, genders, ethnicities and religions may find themselves forced into a marriage without their consent. The typical annual number for reported forced marriages in the UK varies between around 1200 to 1500. 2021 however was different, only 759 reported cases, likely due to the impact of Covid restrictions.

While the numbers do not appear high given the populations size in the UK, it is believed that the real number of forced marriages in the UK is likely much higher as many go undisclosed.

In November 2021 MP’s backed a Bill raised by MP Pauline Latham, that sets out to raise the minimum age for marriage to 18 principally to protect children. The bill, known as the Marriage and Civil Partnership (Minimum Age) Bill, received a third, unopposed reading.

“In the context of the Children Act 1989 (CA 1989), a child means a person under the age of 18 except in relation to certain applications”

The current marriage law in England and Wales

The current marriage law in England and Wales requires parental consent if on one or other of the parties involved is between 16 and 17 years of age. However, it is clear that contrary to this, some marriages take place, under non-registered circumstances, at even earlier ages. Part of the reason for this is due to a loop hole – there is no law that forbids ceremonies involving under 18’s for religious or cultural purposes that do not get registered with the local council.

By raising the marriage or civil partnership age to 18, it makes all such arrangements under this age, including those of a religious and cultural nature, illegal.

Mrs Latham, when presenting the Bill, had highlighted concerns that children as young as 7 years old had been made to marry with no legal consequences for the parents and adults involved. She also noted that even with registered weddings involving children aged 16 or 17 and relying on parental guidance, they could still be forced into marriages that could ultimately expose them to child abuse and “damaged life chances”.

One of the anticipated impacts of the change affects marriages that take place outside of England & Wales. Any marriage involving under 18’s that takes place overseas, and because marriage law in the UK is devolved this would include Scotland and Northern Island, where one party is domiciles in England and Wales, will not be legally recognised including civil partnerships.

Parliament’s goal is to make the Bill law without delay and as such it will pass to the House of Lords.

Forced marriage is abuse

Many forms of coercion can be involved in forcing somebody to marry against their will, including through physical, emotional, mental or sexual means. Such marriages are an abuse against the person’s human rights. If the person is under the age of 18, a forced marriage is considered a form of child abuse.

Since June 16 2014, forced marriage is a criminal offence under section 121 of the Antisocial Behaviour Crime and Policing Act 2014, an offence that can lead to a seven year prison sentence.

Those particularly vulnerable are children and those with mental health issues, as there have been cases where individuals have used the incapacity of the other, forcing them to marry so as to benefit from the other’s financial assets. Circumstances such as these are spread across a wide demographic base and not confined to a particular ethnicity or religion. In short, it becomes a form of fraud.

It’s interesting to note that there are no religions that advocate forced marriage. The scenario comes about typically when arranged marriages are unwanted or go awry. Unwilling participant’s can tricked or deceived into travelling overseas, for instance for a holiday, only to find that they are attending their own wedding, sometimes when they are not even aware that an arranged marriage is even planned.

Forced vs arranged marriages

Just because somebody is involved in an arranged marriage, it doesn’t mean that it is a forced marriage. Many people around the world enter arranged marriages legally and with their full consent. Forced marriages though are entirely different and are illegal in many of the countries where arranged marriages are the norm. Of course, if somebody is part of an arranged marriage and this isn’t with their full consent, then this is likely to be a forced marriage situation.

The Forced Marriage (Civil Protection) Act 2007

Under the Family Law act of 1996, a court can issue a forced marriage protection order (FMPO). This can be used to protect an individual being forced into a marriage against their will. Such measures could include requiring individuals to surrender passports.

In 2007 however, the The Forced Marriage (Civil Protection) Act came into force. This introduced new provisions into the Family Law Act aimed at preventing forced marriages and protecting those already in a forced marriage. The broadened scope means that a FMPO can include measures that prohibit, restrict or place additional requirements on individuals associated or involved with a victim. The Act details ‘involvement as:

“ . . . aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage; or conspiring to force, or to attempt to force, a person to enter into a marriage”.

The full details of the act can be found here:

The Forced Marriage Unit

The FMU (Forced marriage Unit) is a special unit within the government, jointly run by the Home Office and Foreign and Commonwealth office. It was set up in 2005 to provide victims with advice as well as expert training and guidance to professionals.

The Unit’s website can be found here:

Some statistics on forced marriages

Figures are available from the Forced Marriage Unit for 2020. In 2020 the FMU provided advice or support in the following cases:

  • 91 cases related to a ‘reluctant sponsor’*.
  • 659 cases related to forced marriages not involving ‘reluctant sponsors’.
  • 3 cases related to both forced marriage and FGM (female genital mutilation).
  • 6 cases related to FGM.

(Source: Forced Marriage Unit; Home Office and Foreign, Commonwealth & Development Office
* The FMU provided assistance when an unwanted spouse is due to move to the UK)

How to recognise a forced marriage

The tell tale signs are similar to domestic abuse of a child. The individuals concerned may exhibit the signs of physical abuse, but often the abuse is mental and emotional. Sometimes emotional blackmail is used to force somebody into an arrangement out of fear of damaging a family’s reputations of because of the health impacts not doing so have on an elderly parent, or even because the family a related individual overseas wishes to use the marriage as an opportunity to relocate to the UK.

Numerous cases have arisen where children have approached the school teacher, fearing discussing the problem with a family member would trigger a harmful reaction. In such cases, the teachers concerned have reached to the FMU and the FMU has acted with local services to remove the child from the parental home.

What action does the FMU take when a case is reported to them

The first consideration of the FMU is to ensure the safety and well being of the child concerned. The FMU will provide specific guidance to individuals that approach them on then actions they should take.

The FMU will work with local authorities, including the police, to impose a Forced Marriage protection Order on those involved, such as one of the parents. The order may restrict parents from applying for passports on behalf of their child, or outright restriction on travel overseas.

If a child has already been forced overseas, the FMU will work with the police and overseas agencies to force the parents to return the child to the UK where they will likely be placed in to safe accommodation.

Some instances involved individuals with limited mental capacity, sometimes children, but this can also involved older people who are being forced into a marriage without their comprehension, often to perpetrate a fraud. In these instances, the FMU will work with local social services where the adult social care department will likely carry out a capacity assessment. It is a criminal offence for somebody to be marries if they do not have the mental capacity to consent to marriage.

Resources

The following are links to some useful resources that may help those in such a situation, for those who suspect somebody maybe in trouble or those who have experienced a forced marriage and need to move on.

Forced Marriage Survivors Handbook

What is Forced Marriage – Leaflet

Guide to Forced Marriage and the Law – from The rights of Women

The Forced Marriage Unit 


Family law concept image

Family law solicitors today

Family law solicitors that put your family first

At Foys, our family law solicitors understand the importance of legal family matters and the sensitivities of family disputes, especially where children are involved. We are committed to ensuring the best outcome for you and your family.

Family law at Foys Solicitors consists of three main areas: matrimonial,  child matters and financial arrangements. Within this falls areas such as child abuse or neglect, divorce, domestic violence, children legal issues such as guardianship.

A more complete list can be found below and also in our family law services section.

Family law today

We live in unprecedented times. The daily pressure faced by families and individuals caused by lifestyle restrictions, peer pressure and economic uncertainty, has driven some to breaking point. Perhaps the most visible effect of this pressure has been in the growth of mental health issues within the younger age groups, although not exclusively so. With parents beset with their own problems, such as increased cost of living due to inflationary pressures and possibly employment issues, the additional pressure of problems with children can end up being the breaking point.

The most immediate impact of this may be found within spousal relationships. As tensions grow, relationships deteriorate, sometimes to the point of abuse or even domestic violence. 2020 and 2021 saw a considerable rise in domestic abuse and violence cases, as well as separations and divorce. Naturally, this can have an even bigger impact on the metal state of any children involved, often leading to their own bad behaviour at home, anti-social behaviour outside the home, depression and in the worst cases, suicide.

Family law solicitors at Foys Solicitors, are very aware of the social trends causing problems within families. While we may not be social welfare councillors, our goal when clients come to us, is to be as empathic and sympathetic as we can, and not project a cold legal face to the disputing couples. We also understand that reconciliation, a preferable outcome, isn’t always possible where family and matrimonial disputes are concerned. We’d like to see couples and their families resolve their differences amicably wherever possible, but whatever the requirement, clients can rest assured that we will work to achieve the best outcome for both parties possible.

Why would you consider using a family law solicitor?

Hopefully, most people won’t need the services of our family law team, as they will enjoy a happy and stable family life. However, cases of family disagreements, issues with family estates when a loved one has died, divorce, domestic abuse and child support issues have all seen considerable increases in recent times. The pandemic period saw a significant increase in domestic abuse cases that required sensitive treatment.

Many families will try to resolve matters themselves, which is obviously preferable. But in some cases, professional help is required and advised.  Often times, mediation is recommended, as this can avoid expensive legal cases between the parties concerned, as it allows each side to present their position and with the help of a skilled family mediator, hopefully come to a more agreeable outcome that avoids much of the unpleasantness and stress associated with full blown legal action. This is especially important where children are concerned as the disposition and demeanour of the parents during such a contentious and stressful time can have a serious negative impact on any children involved.

Family law matters require specialist assistance and a lot of empathy

Family law can be complex as it covers a wide range of legal issues that address different matters. Therefore, it is important to understand the details involved in order to ensure the outcome you desire. We understand the stress and confusion such issues may cause, therefore, our experienced family team takes a sensitive approach to help you understand the legalities. We will support you through the difficult times and on your journey to securing a better future for you and your loved ones.

Any family disagreement, divorce, or child guardianship matters are likely to be hugely stressful on the family concerned. It is always of prime focus to ensure that the parties involved are made to feel safe; your welfare comes first. This means that our family law practitioners would not look to create additional stress, treating both sides with sensitivity and empathy through the process.

Our family team can advise and assist you with the following:

  • Divorce
  • Collaborative law
  • Civil partnerships
  • Separation agreements
  • Premarital agreements
  • Cohabitation agreements
  • Financial matters
  • Domestic abuse and injunctions
  • Children’s legal matters
  • Change of name

For more information regarding how we can help you, check out our recently updated ‘Family Law Solicitors‘ page. Here, we dive deeper into the areas of family law that we cover.

Contact Foys Solicitors for sound advice on family law today

To book an initial free consultation or to find out more about our family law services, call Foys’ family law solicitors on 01302 327136 to book your FREE initial consultation. Alternatively, you can send us a message via our Contact Form.


Changes to divorce law coming in 2022

Divorce law changes in April 2022 - the end of the 'blame game'.

The laws associated with divorce will be changing from April 2022 onwards. The current divorce laws embodied within the Matrimonial Causes Act, which went into force in 1973, was due for an update after 40 years. Despite the introduction of the groundbreaking Children’s Act in 1989 not much has changed since the 1970s and earlier attempts to introduce changes failed in the 1990’s.

April 6th of April 2022 will see the biggest change to divorce law in England and Wales since the Matrimonial Causes Act. This will finally see the introduction of a system of no-fault divorce, ending what many commonly refer to as ‘the blame game’ in divorce cases.

The Divorce, Dissolution and Separation Bill was voted through with the overwhelming support of both houses in 2020 and saw the bill obtain Royal Assent in June of that year. It has been the hottest topic in the legal world for over a decade and now it will finally be implemented.

The old system of ‘defended divorces’ will disappear. That system required divorcing couples to prove ‘irretrievable breakdown of the relationship’ was the result of one of the following:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years separation with consent
  • Or, five years separation without consent

new life after divorceAs of April 6th 2022, all that is required to start divorce proceedings is for one or other of the parties to file a statement with a court to the effect that the marriage has irrevocably broken down. This statement will be accepted by the court as absolute proof that a divorce is genuinely sought.

This means that with the new Act, married and civil partners can be separated without either party having to petition with an accusation blaming the other party. This also effectively puts an end to a process whereby the other party could drag their feet endlessly, causing further distress and cost.

There is hope that the new process will improve the prospects of achieving an amicable divorce and reduce the hostility between separating parties seen in some cases., especially where there are children involved.

Final divorce may take a little longer though

Although there’s no requirement to wait for 2 or 5 years anymore, under the new system it can take a minimum of 6 months to achieve the final decree absolute. The new system is however, much simpler but requires a cooling off period of 20 weeks after the initial application, during which time the parties reflect on what is to happen. After 20 weeks, a ‘conditional order’ will be issued (equivalent to the decree nisi). A further 6 weeks after that, the court will issue the ‘final order’ (equivalent to the decree absolute).

Summary of the three key aspects of the changes in divorce law

  1. Couples can make a joint applications for divorce, although one party still can. This makes it easier for couples to emphasise their intent to split amicably.
  2. No blame is assigned to either party for the divorce, replacing the current system of five possible ways  to prove that a marriage relationship has broken down.
  3. There’s now a 20 week cooling off period between the application and conditional order, with another 6 weeks after that before the final order is issued. This means a minimum of 6 months for the process to complete.

Key wording changes

  • The ‘petitioner’ becomes ‘the applicant’
  • The ‘decree nisi’ becomes the ‘conditional order’
  • The ‘decree absolute’ becomes the ‘final order’

Why did the old system need replacing?

Unless both parties agreed to the underlying cause of the relationship breakdown, it could take either 2 or 5 years for the process to work through without accepting one of the other three reasons. This means that if the couples wanted a quick divorce, one or other has to accept ‘blame’.

Naturally, this could cause a lot of consternation and emotion, as to who should take the blame. Mistakenly, separating couples often believe that admitting guilt, whether made up or not, as part of the legal requirement for separation, that there’s potential for the blamed party to suffer financially as a result.

Having to wait two years will likely have a serious impact on the lives of people involved. Essentially, people cannot move on and in some cases, this found couples having to run expensive and separate financial affairs.

The system was also open to abuse should one party refuse to accept the relationship has ended.  This is because the grounds for proving ‘unreasonable behaviour’ meant one party could effectively drag out the process unreasonably, making it difficult financially and emotionally for the other party.

Reach out to Foys divorce solicitors

Talk to Foys and let our divorce experts guide you through a more amicable divorce settlement. We’ve been helping separating couples in the local communities around our regional offices work through the tricky process of separation and divorce for decades. Simply reach out to our sympathetic divorce team at one the locations nearest you or call our head office on  01302 327 136, and let them direct you to the appropriate divorce specialist to speak to.


parenting through separation

New free parenting guide offered to separating families in Doncaster

New free parenting guide offered to separating families in Doncaster

Foys Solicitors is offering the guide for free to local families who are divorcing or separating. The Parenting Through Separation Guide is written by family professionals and advises parents of how to put their children first during a separation.

The guide is launched during Good Divorce Week which runs from 29 Nov – 3 Dec, run by national family justice organisation Resolution.

This year the focus of Good Divorce Week is parenting through separation.

parenting through separation A local firm of solicitors is offering parents in Doncaster and the surrounding areas of Sheffield, Rotherham, Worksop, Retford and Clowne  a free guide that contains advice and information to help them put children first during a separation or divorce.

Foys joins with thousands of family professionals to launch the Parenting Through Separation Guide during Good Divorce Week, an annual initiative by the family justice organisation Resolution to raise awareness of how families can separate amicably.

Anuj Makol said:

“We know that the pandemic has put huge pressure on families and even more so on those who are separating. Every parent wants to put their children’s interests front and centre, but all too often they don’t know where to turn for help and aren’t given the support they need in order to do this.

“It’s important for parents to have access to good, authoritative and professional advice that helps them to parent responsibly through their separation. We hope all local separating parents will use the Parenting Through Separation Guide, to help them find a better way forward for them, and for their children.”

The free guide is available to any parent seeking help during their separation. It contains advice about how to co-parent with a former partner, background on the common disputes that arise between separating parents, and how to talk to children about the painful topic of divorce or separation, plus much more.

Juliet Harvey, national chair of Resolution, said:

“I’m really pleased to have Foys support during Good Divorce Week. Resolution members like them do really important work in their community to help families separate in a constructive and amicable way. The more families who know about and use the free Parenting Through Separation Guide, the better equipped they will be to navigate the challenges divorce and separation brings, particularly when it comes to putting children first.”

Here’s an extract of advice contained within the guide:

Top tips for discussing divorce with your children

  • If your situation allows, try to have a joint conversation when all of your children are present. Keep this age appropriate.
  • Plan a series of conversations, including different follow up conversations, if your children are different ages. Be mindful that their reactions will depend on their age, developmental stage and their individual personality.
  • Reassure your children that it is okay to feel sad or scared and showing emotion is good. They can always talk to either of you and ask questions.
  • Remember you are a role model and your children are watching how you manage this situation. If they see that you are still their parents, making decisions together about them, then they will cope better.

Enquire About Our Services Today

Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below


Marriage breakdown and the impact on children

How to deal with a divorce involving children during COVID-19

COVID-19 is responsible for a rise in divorces, but this has also had a huge impact on children

There has been a huge surge in divorces during the COVID-19 pandemic. Many couples have struggled with the strain of spending time indoors together and this has been especially hard when they are also living with children.

The stress, lack of breathing space and restricted movement brought about by the pandemic has played a huge role in causing marriage breakdowns amongst couples of all ages – from newly-weds to long-standing relationships. Unfortunately, this situation is particularly hard on couples with children.

Children have faced huge challenges during the pandemic. Not only has schoolwork been disrupted, but kids have missed out on developing social skills, seeing their friends and extended family, and doing activities that are major contributors to their development into adulthood.

At the best of times, a child confronting the possibility of their parents’ divorce can be heartbreaking so, at a time such as now, it can have the potential to create even more ramifications. However, if the relationship has no chance of survival, and it is the right thing to do, we’re here to give you the proper information you need to navigate this issue as deftly and sensitively as possible to the benefit of the spouses and children involved.

The mental health crisis during COVID-19

Even before the pandemic, many have stated that we are living through a mental health crisis. So for an event to come along that changes so many of our lifestyles, it’s completely understandable as to why so many people – particularly couples – have seen their mental health suffer greatly during this time.

Mental health problems reported by people during the crisis have included, but not restricted to, the following:

  • Depression,
  • Sleep disorders,
  • Anxiety,
  • Stress,
  • Panic attacks,
  • Impulsivity,
  • Irrational anger

Aside from those who were infected with the virus, and may also be dealing with ‘long-COVID’ symptoms, people waiting for other healthcare services from the NHS have seen huge delays in the provision of this service. All of this serves to ramp up even more stress – especially when one is already worried over their health. This has lead to many going private and perhaps even spending money they don’t have.

Money has been another huge trigger point and this is especially true when it comes to couples. A loss of work or an inability to do work due to the stress of the situation has left many people facing pressure and poverty which, of course, leads to mental health problems which can be shared between couples.

It has been estimated that there has been an over 8% drop in the amount of funding provided to mental health services in the UK since 2010 despite the need for these services having approximately increased by about 20% since that time. In fact, during the pandemic, a whopping 1.6 million additional people were added to an already extensive NHS waiting list for mental health services.

As such, the pandemic has made an already deepening crisis hit new lows and has left many with mental health problems without the proper support in place to help them get through their conditions. Should you be feeling particularly low from the possibility of an imminent separation,  we encourage you to reach out to one of the many support helplines in the UK for those dealing with immediate mental health problems.

A rise of marital disputes during the pandemic

It’s unsurprising that such a rise in mental health problems would lead to an increase in relationship breakdowns. Whether it is was a new partnership or a long-standing marriage, couples at both ends of the spectrum have been feeling the pain of lockdown and restrictions. This trend has been observed all across the world with stats from the UK, Sweden, China and the US suggesting that, much like the virus, breakdowns in relationships during lockdown do not respect borders.

It’s not often the case that a new problem has arisen; rather, it’s that a long-standing issue has been brought to the fore due to each partner being exposed to the other for longer than normal periods of time. While more women appear to be initiating break-ups – a side-effect of historic, gendered expectations of childcare and housework – this can also be true of all genders. Marriage rates have also gone down.

The marriage problems generally stem from not only longer-standing issues, but poor mental health, too. An increase in anxiety and anger can lead to situations boiling over and even, in some cases, lead to domestic abuse. On top of that, job losses and reductions in pay have also increased tensions in housesholds.

If you’re just looking at information right now, it’s worth keeping a cool head and considering if you have explored all your options for resolving the conflict (if possible). Being more mindful of your own bad habits and your mood can make a difference. Additionally, becoming more adaptable and understanding of your partner’s problems can really help close any gaps that have been created during the pandemic. However, this should never be at a risk to you, or your child or children’s, health and well-being.

Despite the increase in enquiries and information gathering, other facts – such as the cost of divorce mirrored with the precarious financial situation caused by the lockdown – may also come into play and effect what court of action you take. Thankfully, there are ways around lengthy and costly court cases by utilising mediation as the first step.

Mediation is a great way to come to amicable agreements with your spouse/partner over what you want to do. It not only leaves the door open for the divorce to be mulled over, but it can be the best way to deal with things when children are involved. Whether you’re just making enquiries or not, we can help you with that here at Foys.

How the COVID-19 has affected children’s mental health

In addition to adults suffering from increased mental health problems, there has been a huge surge in the amount of children needing a referral to NHS mental health services, too. This is due to the situation having an impact on children’s ability to do schoolwork, seeing their friends and family and even just to play without having to worry about things.

We also know that increased strain between parents, as well as difficulties in the ability for some parents to home school their child with the proper effectiveness, has also caused difficulties. But, on the flips side, some children escaped the stress of peer pressure and even bullying by being at home.

Even in the year before the pandemic, NHS referrals had increased by 35% while the number accessing services only increased by 4% over the same period. Additionally, a study in mid-2020 found that there had been a huge 50% increase in significant cases of mental health problems and conditions amongst children when compared to the same period three years earlier.

However, a study team at the Children’s Commissioner’s Office surveyed 2,000 young people aged between 8-17 years old in England during Spring/Summer 2020 found that, surprisingly, children had been getting progressively less stressed as the lockdown continued. The answers also seemed to demonstrate that many children enjoyed having their own space away from the crowds.

But, as we know about the leftover vegetables on dinner plates, what children say is good for them – despite many kids being more articulate and sharper than us adults – isn’t necessarily good for them. While major stress levels decreased, the level of persistent stress in children stayed at close to roughly one-quarter of all those surveyed. Additionally, another study found that 80% of children who already had mental health needs saw their stress worsen during lockdown.

Managing a divorce involving children

Given the increased strain that children have been under, particularly kids already living with mental health problems, a divorce of their parents can be devastating news. That is not to say that you shouldn’t go ahead with the process, as you must also look after your own physical, mental and emotional well-being (as well as everyone else’s in the household), but it’s good to be aware of how you can help a child cope with divorce proceedings.

Children are often far more perceptive than we realise and, just like us adults, many can pick up on cues that something isn’t right. Or they know when there’s tension in the air between parents. Noticing these feelings, which sometimes can remain unsaid, can be very stressful for children and it’s not uncommon for them to end up (often secretly) blaming themselves for it being bad.

This is why it’s so important to try and keep everything as ‘normal’ as possible. Let them know that they are loved by both parents while not going so far as to be dishonest about the situation. Being honest about what is happening can be very important in how they deal with the news. A divorce is something that can’t be hidden from a child so there is no point in shielding them now in order for them to be devastated and surprised later.

They may have questions and it’s important to let them ask both parents what they need to know and so they are aware that they aren’t alone in feeling sad. This is why it’s also important to avoid blaming your partner in front of the child. You want to keep things as friendly as possible as the child is still almost assuredly going to be a huge part of both parents’ lives going forward.

How the divorce process works for couples with children

There is a step-by-step that can be followed in order to find the best results for the child or children where divorce is concerned. It’s important to note that birth mothers, in almost all cases, will have automatic responsibility for the child; however, the parental responsibility is shared between partners until the child is 18.

Trying to find an arrangement that works for both parties, the resident (the parent the child lives with most of the time) and the non-resident parent, when it comes to contact periods (which is when the non-resident parent sees the child) can often be difficult at the best of times. However, this can be even more heated during an ongoing pandemic.

However, it should be noted that contact with a child or children depends on each parent’s individual circumstances and whether or not the child is at risk of emotional or physical abuse, or any other type of detriment to their well-being. A parent cannot force a child to see their non-resident parent should they not wish to but this must be the child’s decision alone and not the resident parent’s decision.

This process is generally achieved through discussion between the parents and need not involve the stressful, costly and time-consuming courts. However, if relations are not good, both parents can work through a representative to achieve the best result for the child or children.

However, when there are disagreements involving children, a trained mediator can be appointed to independently help forge an agreement that is signed by the parents and legally bound. In such cases, you may not need to worry about cost if your income is low as it may be possible for you to apply for legal aid.

However, if mediation fails, then the process must progress a step closer to the courts. The last stop before this juncture, which should always be a last resort anyway, is your closest Cafcass (Children and Family Court Advisory and Support Service) office. This is a more formal, and final, attempt to achieve a resolution through mediation between the parents that, primarily, meets the best interests of the child and, lastly, of the parents.

If this cannot be achieved, then a Child Arrangement Order (CAO), pushed through by the courts, is the final step to resolve any conflict involving parents and children. The couple must show that they have tried mediation and that the process failed. It should be noted that as the courts are dealing with a backlog of cases brought on by the pandemic and lockdown, this may take some time to achieve which should serve as further motivation for mediation. It is expected that the family courts will not be able to return to their pre-COVID waiting times until 2023.

Once awarded a CAO, should a parent breach this order then they can be taken to court. There should be no attempt to deny contact between the child and a parent. The only exception is if the resident parent believes the child could be harmed by the process and they are willing to demonstrate in the courts that this was a justifiable action to take (should they need to do so).

In the case that no order was put in place, it is still possible for a parent to refuse access to a child but only if it is in the child’s interest and not that of the parent who is refusing access. Should the parent who is being refused access feels unfairly treated, they can take legal action against the other parent.

Lastly, but not least, there are no rights afforded to other family members – including grandparents – to see the child or children. However, such arrangements are generally made on an informal basis and with the consent of both parents. Should a parent feel that a child is unsafe around certain family members of their ex-spouse or ex-partner, they should consult a family lawyer to achieve the best path forward.

These are some of the reasons why it is so important to have a good family lawyer on your side. This can make all the difference in helping you achieve the most favourable result for the child or children and all involved.

Foys seeks the best outcome for children

Family law can be a very complex area of law without even considering the ethical ramifications and the emotional baggage that can come along with each individual case. However, our varied team of qualified lawyers and solicitors cover all areas of family law and we have portions of our team who specialise on matters pertaining to divorce cases with children.

They don’t just offer a tailored, specialised service for this particular area of family law, our team are also incredibly sympathetic and easy-to-talk-to at all times. They will make it easy for you to understand each possible path and any potential pitfalls that could lie ahead.

Areas of family law that Foys specialise in includes:

  • Divorce/annulment,
  • Child custody,
  • Spousal supports,
  • Visitation rights and child support payments,
  • Drafting legal documents (e.g. property arrangements)

We want to ensure that your child or children have the best possible future and so everything we do will keep their best interests at heart, as well as the interests of your side of the dispute. You needn’t worry about paying any initial fee to consult us either – we offer a FREE initial consultation to all of our clients and, if possible, we will try to help you secure legal aid to help fight your case.

To get in touch with our family law team today, get in touch with us on 01302 32713 to book your free consultation or get in touch via our contact form.


mediation is the best path for divorce

5 reasons why mediation is the best way in marriage breakdowns

5 reasons why mediation is the best way in marriage breakdowns

No matter how difficult it may be, divorcing couples should consider the benefit of mediation over any other form of dispute resolution. While it’s sometimes difficult to mutually agree on decision, there are a number of reasons why it is for the best.

Perhaps unsurprisingly, there has been huge rise in divorce rates during the COVID-19 pandemic and the various lockdowns. With many couples forced to spend more time together in the enclosed spaces of their home, alongside additional worries such as childcare constraints and money issues, it was only inevitable that such an event would lead to the dissolution of many relationships.divorce case mediation

In 2019, the divorce rate was at approximately 7.5%; but, nine months into 2020, it was found that the rate was up to roughly 33.3%. Deciding to track just how much enquiries increased during the pandemic and the varying lockdowns, one UK law firm saw a 122% increase in the amount of enquiries they received between July and October 2020.

Despite these difficult and unusual circumstances, one thing remains consistent – you should always look for a peaceful resolution to your relationship. While the pandemic has increased volatility and emotional turmoil, mediation remains the best way to navigate a marriage breakdown.

What is mediation?

Irrespective of whether a person is happy or sad to be getting divorced, there’s one part of the process that no-one looks forwards to – the legal separation. It is a heartbreaking time for all parties involved and the fear of going through a divorce is compounded with the thought of signing off documentation, going through intermediaries and, eventually, the dreaded and costly appearances in court.

This is where alternative dispute resolution comes in. These are the processes that can be approached to successfully navigate a divorce without having to go through lengthy court appearances. While there are a number of alternative dispute resolution approaches, the first one to try should always be mediation.

This is where you and your partner talk in a face-to-face manner with a trained, impartial mediator who will try and aid both of you in making mutually satisfactory agreements. It can also happen with both parties in separate rooms. The mediator will talk to you both to understand your perspectives, your individual priorities, the misconceptions or problems that could arise, and offer up ideas for solutions.

It is not the mediator’s job to tell you what to do – they are simply there to facilitate an agreement and to act as someone to bridge the divide between both you and your partner. However, it’s important to note that they will not step in to act in any party’s interest. Should you wish to have someone there who will think through the consequences on your life, you can hire a consulting attorney to help.

Five of the top reasons why you should go to mediation

There are a number of reasons as to why mediation is the go-to strategy when you are looking to settle a divorce; however, there are some reasons that stand out above others. We’ve compiled the top five reasons why the next step in deciding to separate from your partner should be mediation.

1. Costs less time and money

Both the monetary and time cost of mediation is a huge selling point over other forms of divorce settlement such as collaborative divorce and litigation. It currently costs £550 to file a court petition for divorce and solicitors can cost approximately £300/hour in the courtroom. And even before you get to court, you could even be paying as much as £100/letter in the protracted communications between you and your partner’s solicitors.

Not only that, but you also have to consider the cost of post-divorce living – especially if you have children. When all is said and done, you could have already racked up thousands of pounds worth of fees before you’ve even set foot in a courtroom! However, with mediation, you’ll either pay a by-the-hour or flat rate so you needn’t have many worries about costs spiralling out-of-control.

When it comes to time, legal proceedings can last anywhere between months to years, depending on the schedule. Currently, this is being made worse due to restrictions resulting from the COVID-19 pandemic as there was already a backlog before the pandemic. Mediation, however, is relatively quick and can be tackled within just a few weeks or, at worst, months – generally anywhere between two to less than 10 sessions.

2. You have more control

There can be nothing worse than feeling as if you’re not in control of how proceedings are going. Sadly, this is the case for many couples going through the agonising process of divorce proceedings in court. However, with mediation, you’ll find that you can have more input and less need to deal with rules or judges that don’t fully understand or empathise with your situation.

A mediator is not there to tell you what to do. Mediators are merely there to guide you and understand the priorities and wants of either party, and help you out when a compromise is needed. In closing, the mediator will produce a Memorandum of Understanding as well as an Open Statement of Financial Information. The former outlines the outcomes and the agreements by both parties, while the later is to enable a financial order to go through the courts.

3. Less animosity and stress

One of the most feared repercussions of divorce is the strained relationships that can occur not just between the couple, but the children and extended families. Mitigation  severely reduces this strain versus litigation as mediators are trained in counselling and are able to acknowledge the feelings of both sides.

This approach allows for the possibility of a relationship between the couple once the divorce has been finalised. This is even more crucial if children are involved in the divorce. Not only does it set a good example, but it’s important as parenting duties will continue beyond the split and this ensures your children get the best life possible. The mediator will be there to clarify things – such as where the kids go for school holidays or on weekends – in a way that is perfectly clear to both parties.

A mediator essentially makes sure there are no crossed wires and that no one person will dominate proceedings. They will prompt you to think things through, think with more empathy, reduce any argumentation to a minimum and make commentary when necessary. There is no need for there to be a ‘winner’ and a ‘loser’, as in court cases.

4. No public record

For those that like to keep things private, mediation offers the best way to do that. Matters are kept undisclosed and are not a matter of public record. If you pick an experienced mediator, you can rest assured that they will have dealt with hundreds of case anonymously and you needn’t worry about matters ever being disclosed beyond you, your partner and the mediator.

This means that even if there are disagreements or impromptu shouting matches, no-one will be any wiser. Your mediator will be bound by the Family Mediation Council’s code of conduct and policies that ensure that all info regarding the mediation is destroyed following completion. The only information that is retained is very basic to keep in line with the Data Protection Act and other relevant legislation.

5. You still have the option of court

It should be noted that even if the mediation process were to fail, you still have the right to litigate. As established above, mediation is a confidential process and mediators cannot be called to discuss the details of the mediation process. The only exception to this are any written agreements that were signed or any financial affidavits.

Do keep in mind the cost of money, time and energy that occurs when you choose to go to court. Mediation should always be the first and, in almost all cases, last step in divorce proceedings.

Foys mediation solicitors are here to help

At Foys Solicitors, we have our own specialist team of experienced mediators who have helped hundreds of families through their divorce process. We do this in three stages which we outline to all of our clients before any proceedings begin so you are fully aware of what is to come.

Our team has full Family Mediation Council accreditation and Family Mediation Association membership, meaning they have the best skillset and training for the job to ensure that your mediation process has every chance of succeeding. You will find our mediators to be outstanding – empathetic, caring, understanding, non-judgemental and legally qualified to help guide you and your partner through this difficult process.

To learn more about our mediation services and to get your FREE initial consultation, simply call Foys today on 01302 327 136, contact your nearest local office or fill in our online enquiry form on our Contact page.


Regardless of Covid, don't be tempted to stop spousal payments

Regardless of Covid, don't be tempted to stop spousal payments

The COVID-19 pandemic has been an emotionally and financially fraught time for everyone and, unfortunately, some relationships have also been causalities to the carnage. If you’re dealing with divorce or divorce payment problems during this time, it’s important to seek a resolution.

Everyone is feeling the impact of the pandemic and lockdowns of varying severity. However, there are certain groups who are being forgotten about amongst news of vaccines, the NHS and businesses – one of which is people who are either paying or receiving spousal payments following a divorce, or are in the midst of the divorce process.

If you’ve found your way here, there’s a good chance that you’re amongst this group. You may have lost your job or been furloughed, leaving you worried about how you are going to keep making spousal or child payments. You may be concerned that your ex-partner is about to suddenly stop making payments. Perhaps this has already happened. Or it could be that you are currently going through divorce proceedings and you have been left in limbo because of financial changes that are going to limit your ability to make or receive payments.

These precarious positions cause even more problems that can lead to a breakdown of any cordial relations between you and your ex-spouse or soon-to-be ex-partner. If you’re feeling tense about any of the above issues, it’s important that you seek out good legal advice that can not only help inform you about what to do, but can help ease these tensions and allow both parties to see each other’s perspectives in a calm manner. This is part of what we do at Foys.

But before we get to that, it’s important to walk through this situation, remind you that you are not alone in this struggle, discuss the ramifications of electing not to work with your ex-partner during this process, and establish why it is so important to avoid getting yourself in hot water with the courts.

The effects of the pandemic on divorce

Whether you were in the midst of divorce proceedings when COVID-19 hit hard, you’ve been divorced for a long time or the strain of lockdown propelled you and/or your partner to end your marriage, it’s not hard to understand why things have become much more heated between two people who were previously a couple. Worldwide rates of divorce, and sales relating to divorce-related legal proceedings, have seen major increases. In the UK, one law company found that inquiries into divorce had increased during periods of 2020 by well over 100% when compared to the same period of 2019.

It’s a staggering rise that suggests many are struggling to keep their relationship together whilst in lockdown. However, even Sweden, which tried to approach the pandemic with a non-lockdown approach, has also demonstrated similar trends. The effect of financial strain caused by the global situation cannot also be overlooked. This is something that people who are making – or are in the process of setting up – spousal payments will be all too aware of right now.

Whether a divorce has been brought about by changing financial circumstances, being around a partner too much, lockdowns causing untenable and unliveable situations for some people, or the pandemic making people think twice about what they want their post-pandemic life to look like, there’s no doubt about the correlation between the pandemic and divorces.

How divorcees and children are being affected

For people who are currently experiencing fear around making or receiving payments, the cause of this tension is also likely to be something out of their control. We know from an up-to-date YouGov poll that over a quarter of people who divorced over five years ago have reported dealing with conditions affecting their mental well-being – such as depression and anxiety. And when it comes to more recent divorcees, these mental health problems were present in nearly half of all respondents.

So even without considering the pandemic, we already know that people struggle during divorces. And now with the pandemic causing not only a loss of jobs, but people who have seen their investment portfolio hit an all-time low, substantial outgoings – such as maintenance payments – are going to seem absolutely untenable. Unfortunately, all of this has a knock-on effect on the partner who is receiving the payment too. Worry can set in when they hear that their ex-partner is in financial difficulty as this may also affect their quality of life, as well as their children’s quality of life, too.

And these aren’t the only problems. Access to children has become an even more difficult issue to navigate as some people are not allowing their previous partner to see their own kids for safety reasons. Or there is a partner who previously took the children at weekends who is now refusing to do so because they may now live with dependents who have underlying health issues that make them vulnerable to COVID-19. The whole situation is a veritable minefield.

Whether the pain of divorce resulting from the pandemic is from fresh verbal jousting or old wounds that have re-opened, it is clear is that mediation is always the best step you can take to try and solve divorce-related problems. The YouGov survey found that nearly two-thirds of all respondents agreed that had they accessed professional, legal advice at the start of divorce proceedings or when problems with an ex-partner first arose, their personal experiences would have improved.

The legal perspective

Divorce lawyers, such as the team here at Foys, are seeing a huge increase in people making all sorts of enquiries relating to divorce – both from old and soon-to-be-old marriages and civil partnerships – during the pandemic. It’s always a good idea to involve a divorce/family lawyer as soon as possible in the process due to the emotional nature of divorces.

From our perspective at Foys, we care about your mental health. Matters regarding divorce and family are never easy and our family lawyers have the speciality and experience to move at your pace. We’re that honest voice at the end of a call that you can rely on to help guide you through this difficult time. It’s important to keep emotions in check when dealing with your ex-partner or their legal representatives. We’ll always be the people who are going to look out for your interests, the interests of your children, and the interests of all parties involved.

We will always try and keep things out of the courts. This is something that can be achieved by conversing with your former spouse through a mediator in the form of a trained, professional lawyer. During the pandemic, this is even more important as the financial situation may make it impossible for one partner to make the payments they were previously making. There is no point going to court to fight for money that isn’t there.

In that instance, nobody wins from a financial or a mental and emotional perspective. However, should this process fail, you will likely need to get the courts to review the maintenance agreement and adjust any payments. However, you need to be able to prove – rather extensively – that these payments have to be reduced.

Knowing what you can and can’t do

It’s important to realise that you are on dangerous ground if you suddenly just stop child maintenance payments to your ex-spouse – especially if you do so without notifying them. If you already have a pre-existing agreement, you need to take every possible action to honour that agreement. Transparency and honesty will always reflect well should the case have to go to the courts, and this applies to both sides.

If your arrangement was made recently (i.e. within the past 12 months), then you cannot just stop these payments. If you are over this period and you do not make a payment, you do risk enforcement. However, if you are able to genuinely prove that you cannot make the payments – such as a demonstrable loss of income or employment – then the court may choose to wipe (either in part or in full) the payments that have accrued over the duration of that time.

Regarding spousal payments, if you do stop these then you need to be able to demonstrate that you are making changes to your lifestyle and that your personal expenditure is reduced. As with child maintenance payments, you leave yourself open to enforcement should you already have a pre-existing agreement. You will need to talk to your ex-spouse to agree upon a temporary reduction, or seek a court agreement.

Collaborative law is the process that the team at Foys will attempt to go through before taking matters to the courts – seeing us take on the role of an impartial mediator to the dispute.

The current court process under Covid

Should any mediation process fail, then you are bound to end up in the courts. Currently, the courts are struggling under the pressure of not just the increased amount of divorces during the pandemic, but in catching up with the disruptions to the service as a result of actions taken to reduce the spread of the virus. That means they are both behind on cases, and dealing with more cases than ever. As maintenance orders tend to take somewhere between half a year to a year to go through as it is, these time frames may end up increasing over the duration of the pandemic.

As such, the response by the courts has been to try and reduce the level of cases by only accepting applications they see as urgent. At the best of times, judges do not look kindly upon cases that they see as nothing more than a grudge; during the pandemic, they’re going to have even less time for such cases. It’s why you need to consider the possibility of avoiding the courts and finding a way to negotiate with your partner if you feel things are unnecessarily volatile.

This is because an application for judgement on financial orders when an agreement hasn’t been reached between parties currently costs £255 in England and Wales. While you may be exempt from making this payment under certain circumstances, there’s a good chance you could lose that money if your circumstances aren’t seen as strong enough.

What happens if legal advice gets ignored

Be advised that if you are making maintenance payments and you elect to simply stop paying, this will only come back to bite you in the future. You may decide to chance your luck because of the courts being snowed under and/or because you believe your ex-spouse doesn’t need the money. Aside from being irresponsible, the risk of taking such an action can come with a penalty.

You will be liable for enforcement, further court appearances/fees and you may be required to pay a further 8% interest on any money you owe to your ex-partner. If you are genuinely struggling to make these payments, it would be unwise to pile even more debt onto your name.

When your child is involved, the ramifications of missed payments can be far more consequential than just financial implications. Access to your child or children, as well as their future emotional well-being and relationship to you, could be irrevocably damaged. Simultaneously, these repercussions can also be felt when a parent takes the other parent to court over payments that the latter cannot afford. This is why mediation from a firm such as Foys is the best step you can take to solve the situation amicably with minimal emotional, mental and financial damage to all parties involved.

Divorce proceedings are in safe hands with Foys

Whether you’re in the early stages of deciding on a divorce, or you need a resolution with your ex-partner regarding spousal and/or child maintenance payments, Foys is here to provide you with all the support you need during this difficult time. Our experienced team knows that matters relating to divorce or an ex-spouse can be distressing in normal times – doubly so during a pandemic – and we simply want to provide the best outcome possible for all involved.

Foys’ specialist team are consummate professionals when it comes to tackling the intricacies of family law. Amongst our inter-disciplinary ranks are accredited resolution specialists, Law Society Children’s Panel representatives, and a collaborative family lawyer. We strongly believe that an empathy-driven approach, combined with a commanding knowledge of family law, ensures that everyone is safe in the hands of our experienced solicitors and administrative staff.

At Foys, we don’t want you to feel overwhelmed by the situation and that’s why we will walk you through the whole legal process on a step-by-step basis in a way that you can easily understand. This ensures that you have all the information at hand to make the right decisions for your situation. This process starts with a FREE initial consultation with one of our family law solicitors. Just call 01302 327136 or fill in our online enquiry form to start the process of putting that worry behind you.

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domestic abuse

Domestic abuse and coronavirus - a perfect storm?

Domestic abuse is a constant problem, but has the Coronavirus pandemic made matters worse?

Domestic violence reports during the first coronavirus lockdown increased significantly, with one charity, Refuge, reporting a 25% increase. With a new lockdown in place and the festive season fast approaching, we all need to be aware of the signs of domestic abuse and help those who may be suffering as a result of it.

When we think about domestic abuse, it’s normal for physical abuse to be uppermost in most people’s thoughts. However, in today’s increasingly technological and socially driven world, serious abuse can manifest in surprising ways.

How does domestic abuse affect a person?

Abuse has phases which cycle. First, there is tension building. During this stage, the victim may attempt to change their behaviour in the hope of stopping an abusive incident from occurring. The second stage is an abusive episode. This is then followed by a reconciliation stage. At this point, the abuser may apologise, ignore the event or put blame on the victim. A period of relative normality may follow and give the false impression that the abuse has come to an end until the tensions begin to build again.

Under usual circumstances, there are ‘breathing spaces’. These allow the individual a period of respite during which they can seek support. The abuser will be away from home for activities such as work and seeing friends. The victim will be able to leave the home for permitted activities like food shopping, collecting children from school and other domestic errands. Going to school also provides an opportunity for children to escape the situation at home and ask for help.

The suspension of activities outside the home, such as during lockdown, creates a situation with no breaks and tensions begin to rise. In a survey carried out by Women’s Aid 76.1% of respondents said that their abuser was spending more time at home as a result of lockdown. As a result, the victims are likely to feel increasingly on the edge as they try to ward off an episode by keeping their abuser happy.

This extra time at home under the eye of their abuser also makes it more difficult to seek help or make arrangements to leave without being discovered. Fear of spreading the virus reduces the possibilities of in-person support from friends and family. Meanwhile being at home with your abuser reduces the opportunities for seeking help via phone calls, text messages or online. Necessary lockdown restrictions have contributed to keeping victims in their homes and support at arm’s length.

What defines abuse?

Although domestic abuse is often violent, this definition fails to appreciate the whole picture. Women’s Aid defines domestic abuse as ‘an incident or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour’.

Abusers seek to dominate their victims both through physical and psychological methods with exacting standards of behaviour. They will also want to isolate their victim and prevent access to support which could end the abuse. So this will likely include restricting who they can spend time with and inspecting phones, computers and other devices for any activity they have not authorised.

Lockdown has limited access to family and friends for support and made remotely seeking support more challenging. Calling a helpline when your persecutor is just a few feet away is not an option. And every text message or brief phone call is an activity that may subject you to further abuse if discovered. Removing access to technology is both abusive behaviour and a way to further isolate the victim. This may take the form of deleting social media accounts, refusing to top up mobile credit or confiscating devices. Thus access to support of any kind is further reduced.

Other elements of lockdown may be used as part of the abuse. For example, blaming the victim for economic difficulties, refusing to purchase medications or food and insisting that if they leave the house they will be arrested.  Lockdown may also be used as an excuse to follow a constricting regime. At the other extreme restrictions may be disregarded altogether putting the victim at risk of infection and fear that they may trigger an episode if they attempt to take precautions.

Leaving an abusive relationship

Government guidelines made it clear that leaving your home to evade domestic abuse was permitted during lockdown. But for those seeking to leave, the reality was not so simple. The impact of the virus meant many organisations closed their doors temporarily or began working remotely limiting the kinds of support they could offer. 84.8% of services have reported having to reduce the support services they offer. Additionally, government guidelines have impacted on the number of places available at refuges.

Such reductions are unlikely to give victims the confidence they need in order to leave their situation. But it doesn’t mean that they should just continue to suffer. The Police have indicated that they would not look to leave a family homeless as a result of trying to escape domestic abuse. Louisa Rolfe, West Midlands Deputy Chief Constable and the domestic abuse lead for the National Police Chiefs’ Council has confirmed that they would seek to remove the perpetrator.

If you’re in immediate danger then calling 999 or texting 18001 101 remains the recommendation. Landline calls are traced and if the operator thinks you are in danger they will put the call through to the police. The issue of ‘pocket dialing’ has resulted in another option for mobile users. Once connected to the emergency operator there will the option, known as the Silent Solution or Make Yourself Heard, to dial 55 for connection to the police.

There is also an option for those who are deaf or cannot communicate verbally. It does require setting up in advance but is easy to do. Gain access to the emergency SMS service by texting REGISTER to 99 so that you can make use of it when you need to.

Online help for domestic abuse

Meanwhile, agencies such as Women’s Aid are looking at technological solutions. They recognise that making a phone call during lock is likely to be difficult. Hence their website features a quick cut-off button and will not appear in browser history.

Along with Refuge they also have safety tips for survival during Coronavirus. These include choosing a code word that you can use with a friend or family member if you urgently need support, talking to children about where they can take refuge and avoiding areas of the home which have items that could be used a weapon.

For those who are able to make a call, there is the National Domestic Abuse Helpline offering free, confidential support on 0808 2000 247.

A list of organisations offering specialist support to victims of domestic abuse is available at Gov.uk. This included services for people with disabilities, ethnic minorities, men and the LGBTQ community. It also flags organisations that can help with different kinds of abuse. For example, Refuge’s TechSafetyTool explains how to secure mobile devices and ensure that location services are not accessible.

What are the symptoms of abuse?

If you are concerned that someone you know is a victim of domestic abuse there are a number of signs that you can look at for. These include marks of physical abuse such as bruises, burns and bites.

There may also be indications that someone is being limited in what they are allowed to do. This can include being prevented from attending work or education, having their finances controlled resulting in a lack of money for food or bills, and their phone and computer use being monitored.

Additionally isolation from friends and family and being withdrawn are also signs to watch out for.

Refuge and Women’s Aid has useful tips on their website for how to proceed if you think abuse is taking place. Don’t expect them to open up immediately and avoid appearing judgemental. Do let them know they are not alone, say that it’s not their fault and offer to go to solicitor or talk to the police if they feel ready. However, they warn against putting yourself or the victim at risk by confronting the perpetrator.

What happens in a domestic abuse case?

Once the victim has had been able to escape from domestic abuse, the support they require will come from a number of different sources to cover areas such as housing, benefits and income, children and legal action. Foys understand the difficulty of the situation and offer confidential domestic abuse advice to help you explore your options in advance.

Domestic abuse is not a specific crime in itself but covers a number of different offenses. A police investigation will pass evidence to the CPS.

The next step then will be to obtain an injunction to prevent your abuser from having access to you. Foys can assist you with the requirements in applying for this including preparing a witness statement.

Where to live may be a concern. Seeking a refuge place may be an option and there is a likely legal requirement for local authorities to house anyone fleeing domestic abuse.

If you are married or in a civil partnership with your abuser then talking to a solicitor is important. Foys can advise and support you with protecting your property rights including anything that is owned jointly.

You may also need to protect your children in which case you will require a specialist. Foys puts the welfare of the child first and can help you to decide what type of court order would be best for your situation.

Other agencies and organisations such as Citizen’s advice, The Links GroupRefuge and Women’s Aid will be able to provide support and direction on accessing housing and benefits.

Leaving domestic abuse is not easy but neither is living with it. But the victims are not alone. Help is on offer to support those planning to escape and to assist them in finding the confidence to do so.

If you are a victim of domestic abuse and want to take legal action to help secure your safety, call and speak to one of our compassionate family legal advisers at a Foys office near you.

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probate inheritance and wills

The responsibilities of an executor

The responsibilities of an executor

If a deceased person leaves a Will, they will name someone as an executor – a person who will oversee and deliver portions of the estate to the relevant parties.

The executor is generally a person that the deceased person knew and someone who they felt could be trusted to ensure that their estate would be properly distributed. As most (but not all) have knowledge that they will be the deceased person’s executor, it is likely that they already have a general idea of the Will’s contents or even have a copy of it.

The executor will perform a lot of roles following the person’s death. Officially, an executor’s primary role is to deliver portions of the estate to the relevant parties (known as ‘beneficiaries’) after any debts or taxes that the deceased person owed have been paid off. Unofficially, however, they will do far more than this. This can include everything from being the person who registers the death to even arranging the person’s funeral.

As there is often a lot to manage as an executor, it is often helpful to secure the services of a probate solicitor. The term ‘probate’ is the legal term to describe the action of confirming and administrating the Will according to the deceased’s wishes.

As such, a probate specialist will be able to work with you to ensure that you fulfil all of your legal duties as the executor, help you understand the intricacies of probate law and complete the relevant legal documents. They will also ensure that you cannot be found to have performed your duties incorrectly and will minimise the threat of any legal action from the deceased person’s family members or creditors.

These are just some of the roles an executor is expected to fulfil as part of their duties:

  • Death registration,
  • Organising funeral arrangements,
  • Tracing the deceased’s property,
  • Valuation of the estate,
  • Settling taxes and debts,
  • Application for legal right to distribute the estate (probate),
  • Distributing notice of the deceased’s estate,
  • The sale of assets,
  • Allotting the estate in accordance with the Will,
  • Making a record of transactions

As there is a lot to manage, this is why it is best to consult with a solicitor who specialises in probate law – such as the Wills, Trusts and Probate team at Foys. As estates worth under £5,000 do not need you to apply for probate, we are going to focus on some of the above things that you need to do as an executor when dealing with an estate in England that has a value in excess of £5,000.

Death registration

As soon as a person dies, their death should be registered as soon as possible at the nearest registry office. In England, this is required within five days. To do this, the executor and/or next of kin must secure a certificate from the hospital doctor or, alternatively, permission to register the death (which is given by the coroner). From here, you should make an appointment at the closest registrar’s office to complete the registration process.

As well as this medical certificate, you will also need documents that prove the person’s identity and address (such as a birth certificate, certificate of marriage, a driving licence and/or a council tax bill). The registrar will tell you what exactly they need. Once this is done, they’ll provide you with two documents: one known as the ‘green form’, which is a Certificate for Burial or Cremation, and a BD8 form which is a Registration of Death. The former permits a burial or cremation to take place for the deceased person; the latter is a form you should fill in and return in the pre-paid envelope if the deceased was receiving state benefits or a State Pension.

In order to execute the estate, you will likely need extra death certificates to pass onto various utility companies (such as energy and water providers), banks, insurance companies, government bodies and other organisations that would need to know about the person having passed away.

The government’s service for doing this is known as the ‘Tell Us Once‘ service. This service will notify nearly all government organisations of the person’s death. As well as a death certificate, you’ll need to also provide the following to use this service:

  • The deceased’s date of birth,
  • Their National Insurance number,
  • Their driving licence number,
  • Their Vehicle registration number (if applicable),
  • Their passport number

As well as these details, you’ll also be required to give the following:

  • Any details regarding the deceased person’s benefits or entitlements (e.g. State Pension),
  • Any details regarding the provision of local council services that the deceased was in receipt of (e.g. Blue Badge for disabled people),
  • Details regarding a surviving spouse or civil partner (i.e. their name, address, telephone number and their National Insurance number or date of birth),
  • Should there be no surviving nor mentally capable spouse or civil partner to handle affairs, details regarding the deceased’s next of kin (i.e. their name and address),
  • The name, address and contact details of the executor,
  • Any details regarding any other pension schemes the deceased was involved with (e.g. public sector or armed forces’ pension schemes)

Organising funeral arrangements

As soon as you have the ‘green form’ – the Certificate for Burial or Cremation – you, the executor, will be able to make arrangements with a funeral director. Often a Will contains instructions regarding this process, such as: who should be consulted; how the ceremony should be conducted (if at all); and, if applicable, what should be done with the ashes after a cremation (e.g. scattered across a particular area or given to a specific person for safekeeping) or where the deceased should be buried.

The costs associated with a funeral or ceremony should come from the deceased’s estate; however, as money to cover the costs of a funeral or ceremony cannot be made available before the probate, the costs will have to be temporarily covered by the executor. There are services that can help cover the costs for you who will then recover the costs from the estate at a later date.

Tracing the deceased’s property

At this point, you should also be moving to track down any assets that were owned by the deceased at the time of their death. While the most valuable and important of these assets are generally stated on the Will, some may not be. These assets will include bank accounts, property and possessions. However, this should also include debts such as loans, bills and mortgages too.

There are tools to help you – such as the Land Registry. You can use this to find any additional properties that the deceased may own. Should you find any property, note that any house that is unoccupied following the death of the owner needs to be secured and the relevant insurance company must be notified of the occupant’s death.

Valuation of the estate

In order to determine the value of the estate, the executor must work with a number of different professional valuers and organisations to work out the true worth of the estate. This can become rather complicated. While houses and property are relatively easy to accurately value with the use of a Chartered Surveyor, it’s often contents that can prove problematic to value. Valuable paintings, porcelain collections and expensive jewellery can prove (if not trickier then) time-consuming. It is best to use professional valuers with specialisation in the field that the possession belongs to as this will ensure accurate valuations.

As for other items that are not valuable, you may want to see about using a company that does house clearances. This will ensure easy, safe and legal removal of household items while enabling the house to be viable for sale as soon as possible. We still have more to discuss but, as you can see, being an executor can be very difficult work – particularly as this may be a time of mourning. At Foys, our probate solicitors will help guide you through the process and can seriously lighten the load.

Settling taxes and debts

If an estate is valued above £325,000, there will likely be Inheritance Tax to pay. This is because anything above that threshold figure will be subject to tax. This tax will not be paid by the individual beneficiaries but by the estate. It is the executor’s responsibility to obtain the value of the estate, complete forms and pay the relevant tax due. Significant gifts made by the deceased in the seven years before their death should also be factored into Inheritance Tax too.

However, tax may not be due if everything above the £325,000 threshold was either left to the deceased’s spouse/civil partner or was given to a charity/community amateur sports club. This is because there is no Inheritance Tax due on any asset transfers between spouses/civil partners. The threshold can also be significantly increased if everything is given away to the deceased’s children or grandchildren. This is inclusive of stepchildren, adopted children and foster children. How much it increases by is dependent on the tax year.

Another consideration is if the deceased has left at least 10% of the estate’s net value to charitable causes, then the amount of Inheritance Tax charged on assets over the threshold will decrease from 40% to 36%. As the executor will be personally responsible for any mistakes made in the calculation and payment of Inheritance Tax, it is important to get in touch with one of our probate solicitors at Foys to ensure you are doing everything correctly.

Application for probate

The need for a solicitor who specialises in Wills and probate can be an important step – especially in cases where there is some level of complexity involving the estate. While the executor can apply for a grant of probate themselves, it is definitely worth considering using a solicitor to do this for you. At Foys, our Wills, Trusts and Probate team will be able to do this.

Distributing notice of the deceased’s estate

As it is not always clear that a deceased person has debts, the executor may want to consider placing a notice in both the local newspapers and public record publication The Gazette. This will afford any local or national creditors an opportunity to make a claim as they are not likely to be aware of the person’s death otherwise.

This is important because, as aforementioned, the executor is personally responsible for the distribution of the estate. If you did not make the necessary efforts to find any hidden creditors, then you (the executor) will be held personally responsible for the debt. This is another matter that our solicitors at Foys will be able to help you with to ensure compliance and eliminate this risk.

The sale of assets

As long as there aren’t any surviving joint owners of a house that the deceased owned, and there were no instructions in the Will to indicate what should be done with the property, the executor will be responsible for what should be done with the property. Often the executor will decide to sell the estate in order to pay off any debts (like the mortgage) and deliver the remaining funds according to what is specified by the Will.

It can be very important to have a probate solicitor on your side when selling property as, again, the executor is personally responsible for the estate. It may be beneficial to sell the house off quickly in order to get access to more immediate funds. However, if the property is sold off quickly and for less than the market value, then the executor may face legal action from beneficiaries of the Will. Conversely, the beneficiaries may want to wait for higher offers to come in which can extend the amount of time, effort and energy required to sell the house. At Foys, we can help you with this process to ensure any decision is taken on sound legal advice that offers you the best protection against any legal action.

Allotting the estate in accordance with the Will

After all of the above has been completed, it’s time to distribute what is left to the beneficiaries in accordance with the Will. This is not a quick process and you should only do this after at least half a year has passed to ensure that there are not any late creditors or others who may challenge the Will or the way it has been executed – as set out by the Inheritance (Provision for Family and Dependents) Act 1975.

A complicated part of this process is the question of pensions and life insurance claims. You need to check and see with any pension or insurance providers to see if there are certain rules around how the money that was paid into these schemes should be distributed. This money may be due to a particular person or it may be able to be rolled into the estate.

One thing to watch out for is whether or not one or more of the beneficiaries have been declared bankruptcy. If you make a payment directly to a beneficiary who is bankrupt (either wittingly or unwittingly), then you (the executor) may be hit with a debt. This is because any inheritance to a bankrupt beneficiary must be shared to their Trustee in Bankruptcy (or Official Receiver) and not directly to the beneficiary. This enables the Trustee to use the money to pay off any debts accrued by the bankrupt beneficiary.

While any bankrupt beneficiaries are required by the Insolvency Act of 1986 to disclose to their Trustee in Bankruptcy that they are to be in receipt of inheritance, they may not always do this. As such, the executor must perform their own due diligence and find out whether or not beneficiaries are bankrupt before making any payments.

If this is not done, the bankrupt beneficiary may face prosecution in the Magistrates Court, and the executor can be held personally liable to pay the amount to the Trustee in Bankruptcy. As checking to see if beneficiaries are bankrupt can be a time-consuming process, particularly if the estate has a lot of beneficiaries, then it’s another reason why our probate solicitors can seriously reduce the load. They will be able to make searches to ensure that you know whether or not beneficiaries are bankrupt or not.

Making a record of transactions

Finally, an executor is responsible for keeping a note of every transaction that has been carried out in their role as executor of the estate. This is not only a legal requirement, as set out within the Administration of Estates Act 1925, but a very important step in covering you against any legal action. What you should detail as part of the estate’s accounts include the following:

  • The estate’s assets and value at the time of the person’s death,
  • The estate’s liabilities and value at the time of the person’s death,
  • Any money to HMRC as part of Inheritance tax (the Inheritance Tax account),
  • Any value that assets gained or lost (the capital account),
  • Any money gained after the person’s death to when the assets are transferred or otherwise realised (the income account),
  • Any fees paid to the court, conveyancing services, surveyors, legal advisors, estate agents, bankruptcy search services and other relevant expenses (the administration expenses account),
  • The total money paid to each beneficiary (the distribution account)

What else can a probate solicitor help with?

We have described a route that is followed by many executors; however, there are also many instances where this path can be deviated from due to other circumstances. Take, for example, if there is disagreement over who should be the executor or if two executors were appointed and cannot reach agreement on decisions taken on behalf of the estate. Additionally, if the deceased person did not leave a Will, this can cause serious complications for any potential executor.

A probate solicitor can be essential in these scenarios and in others, including:

  • If the estate is bankrupt, thought to be bankrupt or there are questions surrounding the estate’s bankruptcy,
  • There are complex and unconventional circumstances (e.g. when the deceased person’s assets are within possession of a trust),
  • The estate continues to earn a regular income that pushes it over the Inheritance Tax threshold,
  • If the deceased lived outside the UK and/or had foreign assets or properties,
  • If a potential beneficiary was intentionally left out of the Will but tries to make a claim as if they were a beneficiary (e.g. an estranged child, an ex-partner, etc.)

There are many more instances that can complicate matters for an executor. As well as the previously mentioned benefits, these are further reasons why an experienced probate solicitor can be so important as it is likely that they have seen most, if not all, scenarios play out before and, consequently, know the correct response.

Contact the wills and probate specialists at Foys

Being an executor may seem like a thankless task but there is likely a good reason as to why you were chosen for the role and the likelihood that the deceased person put their trust in you to distribute their estate. This sense of responsibility to this friend, loved one or valued acquaintance often motivates executors to do their best. But, in order to ensure that happens, it is advisable to have legal counsel in place.

An executor can face many challenges so having a probate solicitor help can be hugely beneficial to not only their ability to carry out their responsibilities, but also ensures that there is an expert offering practical and sound legal advice who is never more than a phone call away – should a sudden problem arise.

Our qualified and dedicated Wills, Trusts and Probate team at Foys are considered amongst the best in England in dealing with all matters relating to executing Wills and managing probate. For over 40 years, we’ve helped executors settle estates all across the north of England and Midlands. Our service helps executors understand the process, what it entails, the responsibilities of an executor – all in a way that is digestible and easy to follow. For many, this advice and guidance from Foys is invaluable in settling the estate with minimal stress.

We’re happy to offer you a FREE initial consultation so that we can understand your case and explain to you how we can help – all without any financial commitment. To talk to a member of our Wills, Trust and Probate team, and get your free initial consultation, simply call 01302 327 136 or get in touch using our Online Form today. 

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