Depending on your situation you may be eligible for government funding called Legal Aid.  Legal Aid is still available for a number of family cases, but if you are not eligible for Legal Aid you may want to consider the following:

Family Fee Choices 

Many people are put off instructing a solicitor because they are worried about the fees they will have to pay.  We have created “Family Fee Choices” to deal with those concerns and make our fees as transparent as possible.  We leave the choice of what you want to agree to pay to you, by offering you several alternatives.  You simply decide which of our fee schemes works best for the level of legal support you feel you need and what fits your budget. 

  • Pay as you go - This scheme allows you to pay for each piece of advice you seek from us, for a fixed price.  We don’t go on the court record as acting for you, so you continue to receive all the letters and court orders from the court and the other parties’ solicitors.  We won’t write to anyone on your behalf.  You simply come and see us when you need us and pay an agreed fee for that meeting and an email confirming what we have discussed and what we recommend you do next.  You can come as many times as you like, for as much or as little advice as you like, paying for each time you come.

  • Pay as you go (court) - Allows you to pay for us each time you need us.  One of our in house team of court experienced solicitors or barristers, will agree a fee with you for the type of hearing you need help with.  We will meet you at court, represent you there, and then send you an email setting out what happened and what you need to do next.  And that’s it. You pay us one agreed fee, and as long as the funds are with us before the hearing we will be there for you.  Next time you need us, just call again.

  • Fixed fee support - We will go on the record as acting for you and will correspond on your behalf with the court and the other parties.  We will prepare documents on you behalf and write to you at regular intervals to let you know what is going on.  All we ask of you is that you pay us the fixed fee up front.  We will set out in a detailed letter what is covered within the fee you have agreed with us.  We won’t charge you a penny more than the agreed amount, unless the case develops in a way that takes it out of the scheme or you ask us to do more.  This will be set out in the letter to you before you decide.  No court hearings will be covered in this fee scheme.  Although, if you want us to help you at court, you can pay us on a “Pay as you go” basis.

  • Traditional full legal support – Where you pay us a regular payment on account each month, and we will bill you each month based on an hourly rate charged for each piece of work we do for you.  The rate is based on the level of experience of the solicitor or legal adviser assisting you.  We will undertake all steps and correspondence involved in your case, including representing you at court.  We will send you a detailed letter at the beginning of the case estimating the likely overall costs of the case to be incurred and also additional costs like court fees, process server’s fees, and doctor’s report fees.  As long as you continue to keep us in funds we will continue to act for you, but if you are unable to continue to pay us we reserve the right to stop acting for you.  We will see you in a fixed fee appointment to get the details of the case and then write to you setting out all the costs information before you decide if you want to instruct us in this basis.

Dealing with the finances on divorce or following a separation can be very worrying. It is important to get legal advice quickly to reduce some of that anxiety.

Our dedicated family team can advise you of your rights and options and assist you in reaching a financial outcome with respect to the family home or other assets, including properties and pensions; and any income needs, through negotiation, mediation with a specialist facilitator (mediator), or through a Court decision.

These legal agreements allow couples to set out what they say should occur in relation to their assets and any financial support to each other in the event of their marriage breakdown. Whilst at present these agreements are not strictly legally enforceable, the purpose of entering into such agreements is to remove the discretion that the Court may exercise in the division of assets and income to ensure fairness.

The fact is that not all marriages last and unfortunately marriages do break down. The purpose of having a prenup is to try to avoid the acrimony and cost of having to deal with a financial dispute if the marriage breaks down.

What is a Prenuptial Agreement?

A prenuptial agreement is just one of a range of marital agreements which can be drawn up including:

  • A Prenuptial Agreement (Prenup) is made by a husband and wife before their marriage. 
  • A postnuptial agreement is the it is entered into by the husband and wife after their marriage.  
  • A Pre-civil Partnership Agreement is made between a same sex couple before they enter into a Civil Partnership and works in the same way as a Prenup.
  • A Separation Agreement is entered into by a husband and wife after their separation.

What is the Point of a Prenup?

The purpose of entering into a Prenup is effectively to protect one party’s pre-acquired assets or inheritance. For an agreement to be upheld by the court you will need to follow recommended guidelines as to best practice to ensure that the agreement is fair.

What Assets can be Protected?

The type of assets that the agreement could protect include Non-matrimonial assets acquired before the marriage or assets held in family trusts or assets received in inheritance whether before or during the marriage so as to ‘ring-fence’ and exclude them from any division between the parties, thereby being retained by the economically stronger party.

How Do I Get a Marital Agreement?

Before an agreement can be drawn up there will need to be full and frank financial disclosure by each party as to their financial position when entering into an agreement. This information is set out in a schedule which is attached to the agreement providing a summary of each party’s financial positions.

If you are the financially stronger party you will need to ensure that the other party cannot be said to have been subjected to duress into entering the agreement. You should make provision for a sufficient period of time to be factored into the preparing an agreement to allow both parties to receive independent legal advice as to the consequences of entering into an agreement. For Prenups we would advise drafting of an agreement 6 months before the date of marriage.

The agreement can set out what assets are to remain held by each party and separate; what is to happen to any assets acquired during the marriage and what should happen to any joint assets. The agreement can say whether any spousal maintenance is to be paid and if so for what duration and what should happen in the event there are any children. The agreement can also deal with any debts or liabilities that the parties may incur before or during the marriage and what provision should be made on the death of either party.

What if Our Circumstances Change During the Marriage?

We would advise that you provide for the agreement to be reviewed after a period of time to take into account changing circumstances. These reviews can be set at time periods of your choice for example every 3 or 5 years.

What is the Law Regarding Prenuptial Agreements?

The court has discretionary powers to redistribute a couple’s income and capital on divorce taking into account of all the circumstances of the case to achieve fairness between the couple. This includes any marital agreement entered into by the parties. This means that at present it is not possible to make a Prenup agreement which cannot be interfered with by the court.

The Supreme Court in Radmacher v Granatino [2010] established the principle that:

"The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement"

This meant that if a prenuptial agreement had been freely entered into by a couple with full understanding by the parties it would be upheld unless it would be unfair.

In 2009 the Law Commission conducted a research project entitled Matrimonial Property, Needs and Agreements which was published in 2014.  It recommended legally binding prenuptial agreements and in order for these ‘Qualifying Nuptial Agreements’ to be enforceable certain requirements would be necessary:

  • there must be a valid contract - no undue influence or misrepresentation
  • the agreement must be made by deed
  • the agreement must contain a statement signed by both parties that they understand they are signing a qualifying agreement and it is intended to remove the court’s discretion to make financial orders other than in relation to financial needs
  • for a Prenup, the qualifying nuptial agreement must be signed at least 28 days before the date of wedding
  • parties must receive material financial information from the other
  • both parties must receive independent legal advice at the time of the agreement

The Law Commission report makes a clear the shift from the ‘Radmacher’ principle of ‘fairness’ to ‘needs’. As such it will not be possible for parties to contract out of meeting each other’s financial needs on divorce or those of any children of the family.

We Can Help

At MW Solicitors, our mission is to "To make quality legal services accessible to everyone" including those couples who wish to make preparations for every eventuality set up a Marital Agreement. 

Our team of dedicated Family Lawyers have years of experience dealing in all aspects of Family Law and can help you to get the right agreement which meets your individual need.  If you would like to speak to one of our specialist Family Solicitors call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

When you are separating, a real concern for many couples is what the financial outcome of the split will be. Questions about,  whether you'll be able to keep the house? or whether your children will have to change schools?,  or can you afford to pay the bills?, and what will happen about pensions? are the kind of questions we are often asked.

If you and your partner are married or in a civil partnership and can't agree on how to split property and sort out your finances you can apply to the courts for a financial remedy.

The courts are able to make a range of orders for cash payments, transfer of property or other assets, maintenance and pension sharing. The position is not the same for unmarried couples who have been living together.

We would encourage you to come and see us for an initial meeting, so you fully understand your options.  For most people a session with a mediator will be best before making an application to the court.  We would work with you alongside that process. Mediation isn’t right for everyone, or sometimes things drag on or you just cannot reach agreement, so a court application is then necessary.

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