Child arrangement – frequently asked questions

Fourth in our series of frequently asked questions about family law is the subject of child arrangement. These are usually only relevant in the matter of a divorce or separation.

You can read the previous articles in our series of Family Law frequently asked questions here.

What is a Child Arrangements Order?

A Child Arrangements Order is an order that regulates the arrangements for a child. The Court can make orders such as with whom a child is to live and how contact with the child should be maintained and in what way.

What is contact?

Contact is the time that a child spends with an adult. This includes 1. Direct contact between the child and the person named in the order; 2. Overnight stays; 3. Supervised contact, and 4. Indirect contact through letters or cards.

What can the Court order in a child arrangement case?

The Court may order: No contact with the child, if it is in the child’s best interests (this is rare); Who the child will live with; The child to live with one parent only; or Contact time to be shared between both parents (does not mean equal split).

What can you apply to the Court when it comes to child disputes?

You can apply to the court for: Child Arrangements Order; Prohibited Steps Order; Specific Issue Order; and/or Consent Order,.

Who is entitled to apply for a Child Arrangement Order?

The following people can apply for a Child Arrangement Order without permission from the Court: Parents, including unmarried fathers; Guardians; Special guardians; Step-parents with parental responsibility; Any person in whose favour a residence order is in force in respect of the child; Any party to a marriage in relation to whom the child is a child of the family; Any person with whom the child has lived with for a period of at least 3 years (does not need to be continuous but must not have begun more than five years before, or ended more than three months before the making of the application). Any person who is not entitled (e.g. grandparents) may apply for the Court’s permission to make an application.

What is the requirement before applying to the court for Child Arrangement Order?

The Court encourages both parties to reach an agreement outside of Court and only apply to the Court where it is strictly necessary to do so. Before applying for the court order, you are legally required to attend a Mediation Information and Assessment Meeting, unless you are exempt or applying for a consent order.

What is Mediation Information and Assessment Meeting (MIAM)?

A MIAM is an initial meeting where you will be given information about mediation and alternative ways of reaching an agreement without going to Court. A mediator will consider with you whether other methods are more suitable for your case. Note: A MIAM is a one-off meeting and is not the same as mediation.

What happens at a Mediation Information and Assessment Meeting (MIAM)?

At the MIAM, a mediator will explain: How mediation works; The benefits of mediation; Whether mediation is right for you; The likely costs; Whether you qualify for help with the costs of mediation and legal costs; Other methods to help you reach an agreement.

After you attend the MIAM, the mediator should provide you with a signed document to confirm you attended a MIAM, or if you do not need to attend the MIAM, certify that you are exempted. If you don’t have such a document, you should ask the mediator for one. You must bring the signed document from the mediator to the first court hearing.

Why does the Court encourage both parties to reach an agreement outside of Court in children’s proceedings?

Even though the outcome is legally binding, and the decision is made in the best interests of the child, the court process can take a long time and can be very expensive. In addition, involving the Court may be more stressful for you and your child, it may increase conflict between you and the other party and you may not be in control of the outcome.

What are the alternative ways to reach an agreement?

If there are no safety concerns, you should see if there is a more suitable way to agree on child arrangements with the other party other than going to Court. By reaching an agreement out of court, you may be able to make the situation less stressful for the child, reduce conflict with the other party, help the child maintain existing familial relationships and save costs and time. You can seek help from: Professional mediation; Lawyer negotiation; or Collaborative lawyer (negotiate face-to-face).

What is the procedure for children proceedings?

If you still can’t reach an agreement with the other party using an alternative way, then you can apply to the Court for a court order. The Applicant submits the application online or by post. The Court will set a time and place for you and the other party to attend a First Court Appointment. It is called the First Hearing Dispute Resolution Appointment (FHDRA). Information about this appointment and the application will be served to the other party and any other adults involved as they need to complete a form and send it back to the Court.

The Court will also send a copy of the application to Cafcass (Children and Family Court Advisory and Support Service) and they may attend the FHDRA. Usually, the Court investigates the issues and enquires into the possibility of a settlement in a FHDRA.

If an agreement still cannot be reached in the FHDRA, the Court will identify the outstanding issues and will give directions on how the case should proceed. The Court might order a Cafcass officer to prepare a report to help the judge at the final hearing, or it might order that the child be legally represented in the proceedings. The Court may also order the parties involved to prepare written statements of the evidence that they want the Court to hear. Sometimes the Court will also adjourn the case for mediation to take place, if the Court thinks the parties can reach an agreement through mediation.

If the issues still cannot be sorted out, the Court will ultimately hold a final hearing. At that stage, a judge will hear evidence from, the Cafcass officer, any adult parties involved in the proceedings and any other necessary experts, and then make a decision.

What are the factors the Court will take into consideration in children proceedings?

The first concern of the court is the child’s welfare. The Children Act 1989 directs the Court to pay particular attention to seven factors when making a decision, this includes: The wishes and feelings of the child concerned; The child’s physical, emotional and educational needs; The likely effect on the child if circumstances change as a result of the court’s decision; The child’s age, sex, background and any other characteristics that will be relevant to the court’s decision; Any harm the child has suffered or may be at risk of suffering; The capability of the child’s parents (or other relevant people) in meeting the child’s needs, and The powers available to the Court.

Additionally, the Court must presume when considering an application for a Child Arrangement Order, unless the contrary is shown, that involvement of each parent (either direct or indirect) in the life of the child concerned will further the child’s welfare. That presumption applies if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The Court must also be satisfied that making an order is better for the child than not making an order at all.

How long does a Child Arrangement Order last for?

A Child Arrangement Order that regulates with whom the child is to live and when, will last until the child is 18 (unless the court orders an earlier date). A Child Arrangement Order that regulates when the child is to have contact with a person will usually end when the child is 16 but in limited circumstances can last until the child is 18.

Can you change or enforce a Child Arrangement Order?

A court order is not flexible. You will need to apply to the Court again if your situation changes. You or the other party involved can apply to the Court to enforce the order if any of you breaches it.

How much do you charge for child arrangement matters?

It depends on whether you and your spouse are able to reach an agreement. We charge at an hourly rate of £300+VAT. How much you would end up paying in total depends on how much time we will need to spend on your case. Generally, if the parties can agree on the terms regarding residence and contact of the child, we would be able draft a Parenting Plan for you.

Our fees will depend on the complexity of the terms and will start at £1500+VAT. If a child arrangement consent order is required, i.e. you and the other party will agree that the terms are valid and enforceable, but would like the Court to endorse your agreement. Depending on the complexity and Court’s direction, our fees will start from £2000+VAT.

If no agreement can be reached and a contested proceeding is required, our fees will start from £10,000-15,000, depending on the Court’s directions for the hearing. In addition, there are court fees and barrister fees, which will in the region of £6,000-£8,000, depending on the level of experience of the barrister.

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New Innovator Founder Route opens – how do I apply?

The new Innovator Founder route came into force on 13^th April 2023. It replaces the previous innovator route and start-up route.

The route is for those that wish to set up and run an innovative business in the United Kingdom. The business must be new, and an original business idea that is different from anything else on the market.

What is different about the Innovator Founder Route?

The two biggest changes in the new Innovator Founder Route are:

Removal of the £50,000 investment requirement – Previously businesses were required to show that they were going to invest a minimum of £50,000 in their new business.
Removal of the restriction from undertaking additional employment

The removal of the £50k requirement in particular gives more flexibility to innovators while retaining the requirement for an innovative business idea with sufficient funds to deliver on it. Furthermore, this removal also means that the there is no longer any need for the Start-up route as neither route will require access to £50k of funds.

Who is eligible for the Innovator Founder Route?

To be eligible for the visa, your business or business idea must be endorsed by an endorsing body. The previous endorsing bodies have now been replaced by four endorsing bodies, which are:

1. Geminus Innovation

2. Envestors

3. UK Endorsement Services (UKES)

4. The Global Entrepreneurs Programme (GEP)

You are also required to show that you meet the English language requirement and have enough personal savings to support yourself whilst you are in the UK.

Should you wish to find out more information about this route, then contact us and we will be happy to answer any questions.

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Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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Abuse of YouTube copyright policies leads to permanent injunction against defendant

By Fiona Huang

For those who conduct business by using Amazon, eBay, YouTube or other platforms, you may have encountered intellectual property (IP) infringement by your competitors. One of the most effective ways to protect your IP rights is to report the infringement to the platform provider. The provider should always respond swiftly and take action against the infringer.

However, a recent judgment (Moviebox Megastores International Ltd and others v Rahi and others [2023] EWHC 501 (Ch)) should be of importance to rightsholders by clarifying that the court may issue injunctions against those who abuse the platform’s policy with regards to IP protections. This article will briefly introduce the case and highlight its practical implications, including the question of

Keep reading to learn more.

Background of case

In February 2017, Mohammad Rahi (Defendant) emailed Moviebox Megastores International Ltd (one of the Claimants), claiming that the 4 albums (claimed to have been written by the Defendant) published by Moviebox’s YouTube and iTunes accounts infringed his copyright. The Defendant then requested that Moviebox remove the material on the platforms. After being rejected by Moviebox, the Defendant issued various complaints (referred to as copyright ‘Strikes’ under YouTube policy) against Moviebox’s YouTube account and an additional account run by Oriental Star Agencies (another Claimant).

According to YouTube policy, parties can report copyright infringement on the platform and this will trigger YouTube’s internal takedown process. YouTube will then use its discretionary right to suspend the alleged infringer’s account. The Defendant, by making 3 separate strikes which covered 26 YouTube links appearing on Moviebox’s YouTube channel, successfully had the alleged infringing contents removed from the Claimants’ YouTube accounts and ultimately had the accounts suspended. These strikes resulted in Moviebox’s loss and damaged the relations between Moviebox and YouTube. Therefore, Moviebox brought a claim against the Defendant.

The court’s decision

After having heard and viewed the evidence and the parties’ arguments, the Court ruled that the Defendant did not own the copyrights in the relevant albums. It was the Court’s view that the Defendant wilfully ‘pursued a relentless and fraudulent campaign’ aimed at damaging the economic interest of Moviebox and allowing his own free use of the works. As a result, the court granted a permanent injunction against Defendant, which prohibited the Defendant from making further Strikes against Moviebox. Clearly, the injunction would also help Moviebox to demonstrate to YouTube that the Defendant was abusing the platform’s procedure and his complaints should not be actioned on.

Practical implications of the case

It can be seen from this case that the platform providers were willing to take action against the alleged infringer without carefully verifying the complainant’s identity. As a result, a party may abuse the platform’s policy to unlawfully have its competitors’ products removed and accounts suspended and hence achieve an outcome it desires. From now on, it is likely that platforms will take more serious investigation as to whether the complainant is the true rightsholder.

A business wanting to remove any alleged products or contents by claiming IP infringement should be prepared to show its ownership of the IP. Otherwise, the other party will likely apply for injunctive relief, particularly where the abusive complaints result in unlawful interference with the other party’s business.

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Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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Can you achieve UK settlement without speaking English or passing the life in the UK test?

To apply for settlement / indefinite leave to remain in the UK, there are a number of requirements that an applicant needs to satisfy. One requirement is knowledge of language and life in the UK.

Under the Home Office Discretionary Leave Guidance, it states that those who have been granted discretionary leave and are applying for settlement do not need to meet this requirement.

Case study

We were recently instructed by a client that had come to the UK in 2008 and claimed asylum. Her asylum claim was refused in 2011, however she was granted discretionary leave, outside the immigration rules on the basis that she had a child in the UK.

Over the years, she applied for a number of extensions, and instructed us to apply for settlement. We advised her that she does not need to undertake the English test nor the Life in the UK Test and explained the above said guidance.

An application was submitted and yesterday she was granted Indefinite Leave to remain. The client is understandably very pleased and can now plan her future in the UK as a settled person.

Are you eligible?

To be exempt from the English test and Life in the UK test requirement, you need to have been first granted discretionary leave which is often granted by one of the following methods:

1. Applicants are normally failed asylum seekers;

2. Application was initially made by way of further submission, rather than using FLR(FP);

3. Extensions have been done by form FLR(DL), rather than FLR(FP), as HO’s system has always stopped such persons from using FLR(FP) forms and premium service.

How about if you were granted Discretionary leave, and then placed under the 10-year route within the immigration rules after an extension application?

We are of the view that if you 10 years lawful residence comprises of leave outside of the immigration rule and within, then it should be argued that the English test and Life in the UK test requirement should not be applicable to your case as the initial grant was granted outside of the immigration rules.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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Is it possible to disinherit your spouse? Widow awarded 50% of estate in recent court case

By Angeline Teoh

A Will is a legal document that ensure your assets are distributed according to your wishes after your death. However, if your Will is not handled properly, it may result in your spouse or close family members bringing a claim under the Inheritance Act (Provision for Family and Dependants) 1975 to seek a fair share of the estate if they are not named as beneficiaries in the Will. This means that even if you have made a Will, it may not fulfil your wishes as you intended.

In a recent case, Kaur v Estate of Karnail Singh & Ors [2023] EWHC 304 (Fam), a surviving wife successfully brought a claim under the Inheritance Act (Provision for Family and Dependants) 1975 and was awarded 50% of the estate, despite not being named as a beneficiary in the Will.

This case shows how important it is to ensure that your will is professionally drafted to avoid situations where you cannot disinherit your spouse as was intended in this case.

Background to case

The case involved a wife and husband (deceased) who had been married for 66 years and had 6 surviving children, including 2 sons and 4 daughters when the husband passed away on 21 August 2021. In the husband’s Will, he left the whole estate to his two sons in equal shares. The reason was that he wanted his estate to be passed down solely through the male line, and the wife was not entitled to anything. However, the wife subsequently brought a claim and claimed the estate was worth £1.99m.

The wife was 83 years old, unemployed, had modest assets and disabled. During the marriage, the wife made a significant contribution to the marriage and the family business without receiving any salary. The wife was financially dependent on the husband, who had contributed to all family outgoings. Following the husband’s death, the wife moved out of the family home when one of her sons, with whom she had a strained relationship, moved in.

The Court had to decide whether the Will had failed to make reasonable financial provision for the wife and, if so, what the financial provision should be. The Court considered the factors set out in the Inheritance Act (Provision for Family and Dependants) 1975, including the wife’s financial resources and needs in the foreseeable future, the deceased’s obligation towards the wife, the physical and mental disability of the wife, the size and nature of the net estate of the deceased, as well as the age of the wife, the duration of the marriage, and her contribution to the family.

After considering all the factors, the Court held that reasonable provision had not been made for the wife. The Court concluded that after 66 years of marriage and full and equal contribution, it was clearly unfair for the wife to be left with nothing. If the case had proceeded to a divorce proceeding, the wife should have received more than 50%. It is unreasonable for the surviving spouse to be worse off as a widow than in a hypothetical divorce.

Therefore, the Court concluded that the wife should receive 50% of the net value of the estate, and the disposition of the estate affected by the Will be varied accordingly. The wife’s legal costs should also be paid from the estate and deducted from the gross value of the estate before division.

What can we learn from this case?

In conclusion, this case highlights that despite making a valid Will, the estate may not distribute purely according to the deceased’s wishes. This case also serves as a warning to anyone who wishes to make an impulsive and unfair decision as to the beneficiaries for their estate. Spouses who have contributed significantly for a significant number of years cannot simply be disinherited. It is also not a valid reason for the deceased to leave all the estate to the male line and disinherit the spouse or other dependents.

The judgment was clearly fair and reflected what the wife had contributed to the family. In fact, should the deceased have not died, the wife would have been able to apply for financial remedies to claim her entitlement to the family assets in a divorce proceeding. As the deceased was dead, such remedy was not available to her any longer. Her only choice was to make a claim under the Inheritance Act (Provision for Family and Dependants) 1975.

But not everyone can bring a claim

It should be noted that not everyone can bring a claim under Inheritance Act (Provision for Family and Dependants) 1975. The appropriate applicants include the spouse or civil partner of the deceased, the unmarried former spouse or former civil partner of the deceased, children of the deceased, and a person who was being maintained by the deceased. However, the effect of this legislation is that the testator will not be able to disregard the needs of someone who is dependent on him.

It is essential to have a professionally drafted Will that considers your finances and personal circumstances. This provides an opportunity to discuss your estate planning with your family and significantly reduces the likelihood of disputes arising after your death. Please contact us if you need help with your Will and we will be able to advise you based on your circumstances.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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UK Ancestry visa – do you qualify for the UK’s ‘easiest’ immigration route?

The UK Ancestry visa is one of the most popular routes to residency in the UK. As its name suggests, acquiring the UK Ancestry visa requires you to have ancestry from the UK. More specifically, you must have a grandparent who was born in the UK, the Channel Islands or the Isle of Man.

There are a number of other requirements for the UK Ancestry visa which you must also meet. Nevertheless, the UK Ancestry Visa is hugely advantageous route for those Commonwealth citizens who are eligible. It is therefore vitally important to make that you fill in your application correctly. That is where we can help!

Get all you need to know about the UK Ancestry Visa below.

You can contact us here to get started.

Why are only Commonwealth citizens eligible?

The Commonwealth of Nations is a political organisation made up of 56 member states, the vast majority of which are former colonies of the British Empire. The organisation comprises over 2 billion people from all over the world and represents one of the easiest routes for Commonwealth citizens who qualify in the form of the UK Ancestry visa. Commonwealth citizens are given special status due to their unique political, cultural, economic and familial ties to the United Kingdom.

What are the basic requirements for the UK Ancestry visa?

There are very few basic requirements for the UK Ancestry visa. The applicant must be as follows:

At least 17 years of age at the time of the application
A Commonwealth citizen
Have a grandparent born in the UK/British Isles, or in Ireland before 31/03/1922, or on a ship or aircraft that was either registered in the UK or belonged to the UK government
Be able and intend to work
Must be able to support yourself and any dependants while you are in the UK

You can also claim ancestry if you or your parent were adopted, or if your parents or grandparents were not married. However, you cannot claim ancestry through your step-parents.

But what are the financial and work requirements?

The UK Ancestry Visa is unique in that, comparably, the financial and work requirements are very low. There is no specified amount of money you must have in savings, there is no minimum salary you need to be earning, and you do not even need to have a job lined up.

All that is required for the work requirements for this route is that (as mentioned in the previous section) the applicant can show that they are ‘able to work and intend to seek and take employment’. This can be proven in the form of examples of past experience of work, future job offers or even signing up with a UK recruitment agency.

As for financial requirements, the applicant must be able to prove that they are able to support themselves without needing to access public funds. This can include being able to demonstrate ‘credible promises of financial support from a third party, such as a relative or friend of the applicant’.

You are able to work for any employer you wish, meaning that the route is not limited to licensed sponsors. You are also able to use the UK Ancestry visa to study.

Can I bring my partner and family?

Once again, the UK Ancestry visa is particularly advantageous when it comes to allowing dependants of the applicant to qualify for settlement. Dependants qualify for settlement as soon as the applicant does.

Dependants are classed as your partner, any child under the age of 18, as well as any child over the age of 18 who was previously on either you or your partner’s visa as a dependant.

Your partner is classed as someone you’re in a UK-recognised civil partnership or marriage with, or someone you’re in a relationship with who you’ve been living with for at least 2 years when you apply.

Meanwhile, unless they’re living away from home for full time education, your child must live with you. They cannot be married, in a civil partnership or have a child.

Finally, they must be supported by you without public funds.

How long does the UK Ancestry visa last, and does it allow you to qualify for leave to remain?

The UK Ancestry visa lasts for a maximum of five years. By the end of this period, you should be eligible to apply for indefinite leave to remain (ILR). This is conditional on whether you meet the requirements, such as:

Continuing to satisfy the requirements
You spent five years continuously in the UK
You did not spend more than 90 days per year outside of the UK during the five years
You have worked throughout the five year period

If you do not qualify for ILR, you may be able to extend your UK Ancestry visa by another five years.

A big advantage of the UK Ancestry visa is that, unlike others UK routes to settlement, you don’t have to be on the UK Ancestry visa to qualify for settlement. This means that you are able to rely on any previous five-year period you held as a UK Ancestry visa holder.

How much does the UK Ancestry visa cost?

The fee to apply for entry clearance for a UK Ancestry visa costs £516. Nevertheless, it is worth bearing in mind that you will also need to pay for the Immigration Healthcare Surcharge, which typically costs £624 per year. This will allow you to use the National Health Service (NHS). If you don’t pay the Immigration Health Surcharge then your visa won’t be granted.

If you decide to extend the visa after five years then your application will be more expensive. The fee in this situation will be £1,048, plus the healthcare surcharge.

What documents do I need to provide?

It is very important to provide the correct documents. If you fail to do so, your application is likely to be refused. Some of the documents you will have to provide include:

Passport
Birth certificate (your own)
Birth certificate of the parent or grandparent on which your application is based
Evidence that you plan to work in the UK (job offer or business plan)
Bank statement showing you have sufficient funds to support yourself and your dependants

In addition to these documents, you may also need to provide (where applicable):

Evidence that your parents/grandparents have changed their name since birth, such as marriage/civil partnership certificates or deed poll.
Legal adoption papers if you or your parents are adopted
If you are from one of the countries where a tuberculosis test is required then you will need to provide your TB results
Finally, your civil partnership/marriage registration document if your spouse or civil partner wants to join you in the UK

Our thoughts

If you are eligible for a UK Ancestry visa, then it makes perfect sense for you to apply as there are a number of key advantage over other immigration routes that we have already mentioned. You will have an advantage over other routes through the relative ease of applying for settlement once the five year period of the Ancestry visa comes to an end. You will be able to work in any job as long as you can support yourself and can bring dependants providing they can also be supported.

We would be happy to help you with your UK Ancestry visa application, and offer a highly competitive fee of £1,500. Contact us now to start your journey to the UK.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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March 31, 2023
Family, Family Law, FAQs

Nuptial agreements – frequently asked questions

Third in our series looking at frequently asked Family Law questions is nuptial agreements, both prenuptial (prenup) and the less-common postnuptial agreement (postnup). Nuptial agreements continue to gain in popularity having only been considered legally enforceable in England and Wales since the 2010 test case of Radmacher v Granatino.

But what are some of the top questions our Family Law department are frequently asked about nuptial agreements? Get the lowdown in this article.

What is a nuptial agreement? What is the difference between a pre-nuptial agreement and a post-nuptial agreement?

A nuptial agreement is a written contract usually entered into before marriage (pre-nuptial agreement), it can also be entered after the marriage (post-nuptial agreement). A post-nuptial agreement is what is needed when the parties didn’t enter into a pre-nuptial agreement before getting married. Normally, the parties have no intention of separating or getting a divorce when they enter into a nuptial agreement. A nuptial agreement sets out the ownership of the pre-marriage assets and determines how the parties’ assets should be divided in the event of a divorce or separation and it also seeks to regulate their financial affairs during the relationship.

What is a separation agreement?

Unlike nuptial agreements, a separation agreement is made at the end of a relationship when separation has become a reality. It sets out what the parties intend to happen to their assets, their agreement to live apart, arrangements for any child and other practical matters as a consequence of their current or planned separation. It should be noted that the agreement reached between the parties regarding their financial division is not legally binding and is not legally enforceable, i.e. a Court cannot enforce it if there are any issues or disputes later, therefore, even if an agreement can be reached between the parties, it is advisable to obtain a Consent Order to get a clean break between them.

What is the purpose of a nuptial agreement?

The purpose of a nuptial agreement is to promote and encourage marriage rather than to facilitate its breakdown. That is because one of the main purposes of having such an agreement is so that the parties can reach an agreement in advance to record their respective and mutual intentions in the event of divorce on the basis of what each believes to be a fair outcome and avoid having to engage in litigation to resolve any financial claims they may have against one another.

When do you recommend having a nuptial agreement?

A prenuptial agreement is generally recommended if:

1) one party is much wealthier (substantially greater capital or income) than the other party, which could be because he/she has a much higher income; or

2) if one party want to retain and protect their pre-marriage assets, such as an inheritance from their family, or their family business; or

3) to define what is considered to be ‘matrimonial property’ or ‘non-matrimonial property’, for example in relation to business assets owned by one of you; 4) to protect assets/interests that were generated by their sole effort. It can also be beneficial in the case of a second marriage or if you have children from the previous marriage to protect assets for the purposes of inheritance planning.

What is the legal status of nuptial agreements in England and Wales?

Generally speaking, nuptial agreements cannot override the Court’s ability in deciding how your finances should be divided in a divorce. In a Supreme Court decision in 2010 (Radmacher v Granatino), the Court said, ‘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 their agreement’.

How to ensure the nuptial agreement is entered into in the right way?

The agreement must be freely entered into of each party’s own free will, both parties must have a full appreciation of the implications of the agreement, and the terms of the agreement must be substantially fair. Before entering into such an agreement, the parties should each obtain independent legal advice.

Both parties should also fully and frankly disclose their financial situations to each other, this includes listing out all the assets/properties they both own. Additionally, the agreement should seek to regulate pre-marital acquired assets, jointly acquired assets and interests of children etc. Also, if it is a pre-nuptial agreement, it should be finalized at least 28 days before the wedding, to give both parties enough time to consider the terms.

What can you include in a nuptial agreement?

A nuptial agreement is a bespoke document tailored to cater for both parties’ particular circumstances. You are able to include almost anything in the nuptial agreement, some examples of what you can include in the nuptial agreement are set out below:

a) What will happen to the property that either of you brought into the marriage (i.e., pre-marriage asset);

b)What will happen to the family home;

c) What will happen to any property given to you or inherited during the marriage or any income or assets derived from trusts;

d) What will happen to money held in joint accounts and any property purchased jointly etc. There are more provisions that are included in the nuptial agreement. Please consult us and we will be able to advise you based on your circumstances.

How much do you charge for a nuptial agreement?

Our fees start from £1500+VAT for a simple nuptial agreement, we might charge more depending on the complexity of the terms.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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Welcome Goldie

We are delighted to welcome back Goldie Teoh, who re-joins us as a Solicitor in the conveyancing department. Goldie brings a wealth of legal experience to Lisa’s Law, and we are very pleased to have her back.

Goldie is a qualified solicitor in England and Wales (having completed her training contract with Lisa’s Law in 2018). She has a wealth of experience advising on commercial transactions as well as acting in both residential and commercial conveyancing matters.

In terms of conveyancing, Goldie has considerable experience representing high net worth individuals in purchasing new build/off plan properties. In this regard, Goldie has travelled to East Asia, including China, Hong Kong and Singapore for international property launches by UK developers. Goldie therefore has experience in meeting and providing potential clients with legal advice of purchasing properties in England. Goldie is also proficient in secondary market purchases and disposal of residential/commercial properties.

In addition, Goldie has experience as an in-house solicitor within a start-up property finance business where she advised on (unregulated) lending matters and any other legal issues that impacted the business.

Goldie is fluent in English, Mandarin, Malay and Hakka.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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Discretionary leave to remain – Home Office grants leave for trafficking survivors with a pending asylum claim

By Zhuoqi Li

The Home Office has updated its caseworker guidance on Discretionary Leave to Remain. The new version of the guidance has provisions that allow acknowledged victims of trafficking to be granted leave if they have an ongoing asylum claim related to their trafficking.

Discretionary leave to remain relates to permission to stay outside of the UK immigration rules. This is often granted on the basis of exceptional or compassionate grounds. From 30 January 2023, based on the requirements in Section 65 of the Nationality and Borders Act 2022, victims of human trafficking, slavery, servitude, and forced and compulsory labour who are conclusively recognised as such by the National Referral Mechanism (NRM) may be eligible for temporary permission to stay.

This criterion includes giving the individual the opportunity to cooperate with a public authority during an investigation or criminal proceedings related to the relevant exploitation, helping the individual recover from any physical or psychological harm caused by the relevant exploitation, and offering the individual the opportunity to seek compensation for the relevant exploitation. This route is available throughout the UK.

Keep reading to learn more about the changes to the caseworker guidance for discretionary leave to remain.

What was the background case for this decision?

This implements the Court of Appeal’s findings in EOG & KTT v SSHD [2022] EWCA Civ 307:

“KTT, who is a Vietnamese national, was at the relevant time a confirmed victim of trafficking: that is, she had received a positive conclusive grounds decision. She had also made a claim for asylum based on the risk of being re-trafficked if she were returned to Vietnam. Her complaint is that the policy should have provided for the grant of leave to remain pending a decision on her asylum claim.”

In the case EOG & KTT v. SSHD [2022] EWCA Civ 307, referred to as “KTT,” the Court of Appeal held that the Home Office’s handling of requests for Modern Slavery Discretionary Leave did not comply with Article 14 (1)(a) of the ECAT (which the policy was found to commit to implementing). States are required to determine whether the victim’s “stay is necessary owing to their particular situation” under ECAT’s Article 14(1)(a). The court determined that in order to pursue an asylum claim, a confirmed victim of trafficking with an unresolved asylum claim also related to trafficking needs to be given consideration for leave to remain in the UK. The reason for this is that their “stay in the UK is necessary” due to their unique situation as a victim of trafficking.

Further clarification on the definition of when an asylum or protection claim is related to trafficking was provided in the Upper Tribunal decision of SSA (Ethiopia) v. Secretary of State for the Home Department [2023]. According to the Upper Tribunal, in order for a person to qualify for leave to remain under the KTT judgement, their pending asylum or protection petition must be “in a major part” based on a fear or risk of being trafficked again.

Pre-30 January 2023 modern slavery (including human trafficking) cases

But what about modern slavery cases from before 30^th January 2023? Individuals who, prior to January 30, 2023, had both a positive conclusive grounds decision and made an asylum claim or other submissions based in large part on a claim of a well-founded fear of re-trafficking or a real risk of serious harm due to re-trafficking that had not yet been finally determined, were potentially eligible for discretionary leave. This is the case even if their leave applications had been approved under Home Office policies at the time.

When the Home Office make a decision on a claim that is related to trafficking (even if that decision may be to reject that element of the claim), it means that the claim is related to a well-founded fear of being trafficked again or the risk of suffering serious harm because of being trafficked again on return.

Eligibility of Discretionary Leave

Please note that a claim will not be considered trafficking-related and discretionary leave cannot be granted if a person just mentions their past involvement in trafficking incidentally and fails to express any fear or risk of re-trafficking in any portion of their claim.

Discretionary leave will not be considered on these grounds if the individual:

already has permission to remain in the UK, including permission to apply for Modern Slavery Discretionary Leave
has had their asylum claim found to be inadmissible under the applicable Immigration Rules
has had their asylum claim or further submissions rejected, and their right to appeal are exhausted
received a Modern Slavery Discretionary Leave refusal prior to the KTT judgement
falls to be refused discretionary leave under Part 9 of the Immigration Rules
is subject to deportation proceedings

Duration of Discretionary Leave

Those who are given discretionary leave on this basis should usually be entitled to 12 months leave. Persons are only qualified for discretionary leave under this basis pending the outcome of their application for asylum or other submissions. This implies that their leave must be modified or restricted once the outcome of their asylum requests or other submissions.

If the asylum decision results in the granting of protection status, the person’s leave must be varied to become a refugee or receive humanitarian protection leave for applications submitted before June 28, 2022, or permission to remain on a protection route for applications submitted on or after June 28, 2022.

When an individual receives a family/private life or discretionary leave but their application for asylum is refused for another reason, their discretionary leave must also be modified.

If there are no pending applications and the asylum decision is a refusal with an appeal right outside the country or no appeals right, arrangements must be made for the person’s leave to be restricted. If the appeal rights have been exhausted, curtailment action must be planned if the asylum judgement is a refusal with an in-country right of appeal, or leave to remain must be varied if the appeal is permitted and leave to remain is granted.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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March 24, 2023
Family, Family Law, FAQs

Divorce Financial Settlement – Frequently Asked Questions

This article is the second in a series of family law blogs focusing on questions our family law team are frequently asked. Today, we will focus on divorce financial settlement. Keep reading to learn more about some of the most frequently asked questions when it comes to divorce financial settlement.

Do I need to divide the matrimonial assets in a divorce?

Once you start your divorce, it is advisable to deal with your financial matter at the same time to avoid unexpected claims from your former spouse in the future. If you are able to reach a mutually acceptable agreement on the finance division, you may wish to apply to the Court to endorse your agreement in order to obtain a clean break. This can be achieved by applying for a Consent Order.

When filing a Consent Order, the Court requires full and frank disclosure of your assets, liabilities and income from the both of you to ensure that your agreement is fair. It is important to note that a Consent Order for divorce can only be applied once the Conditional Order is made. If you and your spouse are unable to agree on the terms, you can negotiate with the help of solicitors, attend mediation or apply for a financial order in Court. Please note that the Court will not make a binding financial order unless you or the respondent ask it to, or unless your separate financial court proceedings have reached a conclusion.

Can I just sign a divorce financial agreement with my spouse without getting a financial order from Court?

The agreement reached between the parties regarding their financial division is not legally binding and is not legally enforceable, i.e. a Court cannot enforce it if there are any issues or disputes later. When one party seeks to resile from such agreements, they can make an application to the Court for a financial order, which might or might not be made according to the terms of the original agreement. This is because, under the Laws of England and Wales, it is not possible, at the end of a Financial Agreement, to exclude the jurisdiction of the Court to make orders.

Generally, if the agreement was reached properly and fairly with competent legal advice, the agreement should be upheld by the Court, but the Court has discretion. Therefore, even if an agreement can be reached between the parties, it is advisable to obtain a Consent Order to get a clean break between them.

What does financial disclosure mean?

The process of financial disclosure in a divorce is where you will give full details of your personal financial position, resources, and future needs, e.g. value of the property, savings balance, pension valuation etc. In order for the Court to make a binding financial order regarding your financial arrangements on divorce, both you and your spouse must file a financial disclosure form with the Court and serve it on the other party. You have a duty to provide full and frank disclosure of your financial circumstances and any other relevant information.

What are the factors affecting the Court’s discretion when making an order about your financial arrangements?

It is important to note that the factors considered by the Court are not absolute and will depend on the circumstances of your case. The primary consideration of the Court is the needs and welfare of the minor children, in particular the children’s housing needs.

The Court will also consider the following factors:

1) Each party’s income, earning capacity, property and other financial resources, either available now or in the foreseeable future;

2) The financial needs of the parties, such as accommodation needs, income needs, debt repayment needs, etc;

3) The age of both parties, as age will normally affect borrowing capacity and how easy it would be for either party to retrain or re-enter work and become financially independent etc;

4) The length of the marriage, the longer the marriage the greater the degree of financial dependence on each other;

5) The standard of living prior to the breakdown of the marriage;

6) Any physical or mental disability of either party, as it will affect the earning ability;

7) Contributions made to the family and;

8) Loss of chance to acquire any benefits as a result of the divorce.

It is important to note that parties’ behaviours such as adultery, domestic violence, etc will generally be disregarded.

How much do you charge for a divorce financial settlement?

It depends on whether you and your spouse are able to reach an agreement. We charge at an hourly rate of £300+VAT. How much you would end up paying in total depends on how much time we will need to spend on your case. If you and your spouse can agree on the terms and choose to file a Consent Order, our fees will depend on the complexity of the terms and conditions, and will generally start from £2000+VAT. If you and your spouse choose to enter into a Nuptial Agreement, our fees will depend on the complexity of the terms and will start at around £1500+VAT, please note such an agreement cannot achieve a clean break.

If you and your spouse cannot agree on how to divide the assets then it becomes contentious. In this case we will charge at an hourly rate of £300+VAT. A contested financial proceeding generally involves 3 hearings. Prior to each hearing, the Court will give directions as to trial materials and we will advise you of our fees in advance of each hearing. Our fees will start at £10,000-£15,000 for contested financial proceedings. In addition, there are court fees and barrister fees, which can be in the region of £6,000-£8,000, depending on the level of experience of the barrister.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

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News and Insights

What is a Child Arrangements Order?

What is contact?

What can the Court order in a child arrangement case?

What can you apply to the Court when it comes to child disputes?

Who is entitled to apply for a Child Arrangement Order?

What is the requirement before applying to the court for Child Arrangement Order?

What is Mediation Information and Assessment Meeting (MIAM)?

What happens at a Mediation Information and Assessment Meeting (MIAM)?

Why does the Court encourage both parties to reach an agreement outside of Court in children’s proceedings?

What are the alternative ways to reach an agreement?

What is the procedure for children proceedings?

What are the factors the Court will take into consideration in children proceedings?

How long does a Child Arrangement Order last for?

Can you change or enforce a Child Arrangement Order?

How much do you charge for child arrangement matters?

What is different about the Innovator Founder Route?

Who is eligible for the Innovator Founder Route?

Background of case

The court’s decision

Practical implications of the case

Case study

Are you eligible?

How about if you were granted Discretionary leave, and then placed under the 10-year route within the immigration rules after an extension application?

Background to case

What can we learn from this case?

But not everyone can bring a claim

Why are only Commonwealth citizens eligible?

What are the basic requirements for the UK Ancestry visa?

But what are the financial and work requirements?

Can I bring my partner and family?

How long does the UK Ancestry visa last, and does it allow you to qualify for leave to remain?

How much does the UK Ancestry visa cost?

What documents do I need to provide?

Our thoughts

What is a nuptial agreement? What is the difference between a pre-nuptial agreement and a post-nuptial agreement?

What is a separation agreement?

What is the purpose of a nuptial agreement?

When do you recommend having a nuptial agreement?

What is the legal status of nuptial agreements in England and Wales?

How to ensure the nuptial agreement is entered into in the right way?

What can you include in a nuptial agreement?

How much do you charge for a nuptial agreement?

What was the background case for this decision?

Pre-30 January 2023 modern slavery (including human trafficking) cases

Eligibility of Discretionary Leave

Duration of Discretionary Leave

Do I need to divide the matrimonial assets in a divorce?

Can I just sign a divorce financial agreement with my spouse without getting a financial order from Court?

What does financial disclosure mean?

What are the factors affecting the Court’s discretion when making an order about your financial arrangements?

How much do you charge for a divorce financial settlement?

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