Full disclosure of your financial situation is a legal requirement during divorce, and if it later comes out that the value of your business increased after you separated, and you did not disclose this, it may invalidate the settlement. Conversely, if you have hit a run of bad luck in your business and the value has gone down, you will want to ensure that this too is taken into account so you will not be paying over-the-odds.

However, the significance of any such fluctuations will be limited if the overall value of the business is low, and therefore unlikely to make a meaningful difference to the overall settlement and to meeting each partner’s reasonable financial needs. In that situation, the family courts may take a greater interest in any assets acquired or businesses started during the period between separation and the start of the divorce, in order to ensure that reasonable financial provision is made for each party.

The family courts often also take into account how much effort the business owner or operator has made to keep the business afloat and increase its value or profitability during the period of separation. If such efforts can be demonstrated, and this has resulted in the value of the business increasing, this may mean that the other partner will receive a smaller share in the value of the firm since the increase in value was clearly not because of their efforts or contributions during the marriage.

Why this matters

When spouses separate and proceed toward divorce, the valuation of business assets can become one of the most complex and contentious aspects of their financial settlement. A common issue arises when the value of a business changes between the point of separation and the eventual divorce proceedings. Understanding how such shifts are treated in law requires a closer look at how the courts assess assets, what factors influence valuation timing, and how fairness is interpreted in relation to business interests.

When couples divorce, their assets are divided – either by mutual agreement, mediation or (occasionally) the intervention of a family court judge. This will, of course, include any businesses wholly or partly owned by one – or both – of the spouses. A revenue-generating business is a valuable asset. But it is more complicated one than a bank account or a house because its value relies on it continuing to operate and generate profit.

During the divorce, the value of any businesses owned will be carefully assessed, and a decision made regarding a fair course of action. Although exceptions are made, the starting point for divorce in England and Wales is an equal division of assets – although a clear contribution to the success of the business by a non-owner will count in their favour.

Dividing the value of a business could be done in several ways – for example:

• Allotting shares in the firm to the other spouse
• Via an agreed sale
• Using revenue from the business to support the other spouse
• One partner buying out the other

The particular course of action chosen will depend on the individual circumstances of each couple. The last option above is the usual approach for businesses that are jointly owned by a divorcing couple. This approach may also be appropriate on some occasions when the partners in a business are not married to each other but one is divorcing and needs to liquidate their interest in the company.

How is a business valued in divorce?

Both parties are legally required to make full and frank financial disclosure, and this includes providing up-to-date information about any business interests. This disclosure isn’t static. If a business significantly increases or decreases in value after separation, both parties have a continuing obligation to reveal that development, even if it complicates earlier assumptions. Courts place considerable weight on transparency, and failure to disclose updated valuations can lead to prior settlements being reopened.

One of the core issues is the date at which the business is to be valued. There isn’t a hard-and-fast rule dictating whether the date of separation or the date of divorce should be used as the valuation point. While the date of separation often serves as a logical starting point—since it marks the end of the matrimonial partnership—it may not be fair or practical if a long time has passed. In those cases, the court may look at updated business valuations to reflect the present-day reality, particularly if the value has substantially shifted.

Increases and decreases in valuation

When a business increases in value after separation, the court’s approach largely depends on why the value has grown. If the increase results from broader market forces or trends—such as a sector-wide boom or general economic upswing—that growth is often deemed “passive” and remains part of the matrimonial assets to be shared. The logic here is that neither spouse specifically caused the growth, and both should benefit from the increase, even if they have stopped living together.

However, if the value of the business has increased because of the direct efforts or decisions of one spouse after separation—perhaps through restructuring, innovation, or securing new investments—that gain may be seen as “active” and attributable to that person’s individual post-separation contribution. In such cases, the court may decide to exclude this added value from the matrimonial pot. Essentially, the spouse who drove the improvement may be entitled to retain the fruits of that labour, as the increase is seen as a result of post-separation effort rather than joint matrimonial enterprise.

At the other end of the spectrum, a business may experience a downturn between separation and divorce. When this happens, the court will seek to identify the underlying cause. If the decline is because of external factors beyond either party’s control—such as inflation, recession, or industry disruption—then the fall in value is generally accepted as part of the shared financial consequences of divorce. In this scenario, both spouses bear the impact equally. But if the fall in value stems from one spouse’s mismanagement or reckless decisions made after separation, the court may adjust the settlement to reflect the avoidable loss. There have been cases where a judge has effectively re-inflated a diminished asset to its previous value (a process sometimes referred to as “adding back”) in order to prevent one party from being unfairly disadvantaged by the other’s conduct.

If a party delays proceedings or manipulates the timing to capture gains or losses strategically, the court has wide discretion to correct for that. Judges have commented in various cases that they will not allow gamesmanship or opportunism to skew equitable outcomes.

Experts used to value businesses

In these cases, the method and timing of business valuation are vital. In most situations involving business assets, the court will rely on the expertise of a forensic accountant or valuation expert, often jointly instructed by both parties. The expert will produce a valuation report using appropriate methodologies, which could include assessing income, net assets, or comparisons to similar businesses. If the parties cannot agree on the date of valuation or which changes in value should count, the expert may be asked to provide valuations for multiple time points—typically one at separation and one more current—so that the court can determine the most appropriate benchmark for dividing assets.

Business valuations are rarely straightforward. Experts must consider the company’s liquidity, growth prospects, and risk exposure. When one spouse is expected to retain a business that is difficult to sell or speculative in nature, a discount is sometimes applied to reflect that reality. The court is careful not to overestimate what that business is “worth” if, in practice, it can’t be turned into cash or easily sold. For example, if someone holds a minority stake in a private company, their ability to realise the paper value of that stake may be extremely limited, and this has to be accounted for in the settlement.

Can we sell the business?

While selling the business outright and dividing the proceeds can be a clean solution, it is often not realistic. Businesses may be illiquid or dependent on the owner’s personal involvement, making them unsellable in the short term. Instead, the court may award the business to one spouse—typically the one most involved in its operation—and compensate the other through a larger share of liquid assets, such as savings, property equity, or pension rights. This offsetting approach aims to balance fairness while keeping the business intact and viable.

In some rare instances, divorced spouses may retain joint ownership of a business post-divorce. This requires a particularly high level of trust and cooperation and is typically only viable in amicable divorces or where the business functions best as a partnership. However, more commonly, arrangements are structured so that one spouse exits the business entirely.

Pre and post-nuptial agreements

Some couples take steps before or during their marriage to regulate how business interests will be treated in the event of divorce. Prenuptial and postnuptial agreements can be used to ring-fence business assets or specify how future gains or losses will be handled. While such agreements are not legally binding in the UK, courts increasingly give them considerable weight if they are entered into voluntarily and meet the fairness criteria, including making adequate provision for the other party’s needs.

Contributions to the business

The court will look at the roles each spouse played in the business over the course of the marriage. A spouse who worked unpaid in the business, or managed household responsibilities to free the other to focus on business development, may be deemed to have made significant contributions. The court’s ultimate aim is to reflect both direct and indirect efforts fairly in the asset division.

Ultimately, fairness is the overriding principle. This doesn’t necessarily mean an equal split, especially where one spouse has contributed more, taken more risk, or will be left with a less stable asset base. The court considers needs, contributions, and the specific context of the marriage. If one party walks away with an appreciating business while the other receives cash or a house, the court may factor in the risk being carried and adjust the division accordingly.

What happens after the divorce?

At the conclusion of the divorce process, when the ‘consent’ order specifying the division of assets is agreed, signed and ratified by a judge, that is usually that. The division has been agreed, and it is not usually possible for either spouse to reopen a claim against the other. In order to do so, it is generally necessary to demonstrate ‘material non-disclosure’ by the other spouse – i.e. a meaningful failure to fully disclose all financial assets and information during the divorce negotiations. If, for example, a business owner had reason to believe that their company was likely to increase in value at a defined point in time – because of a buyout for example – but they did not reveal this during the divorce negotiations, that could constitute material non-disclosure and become the basis for a fresh claim in the divorce courts by their former spouse.

If you or your spouse has business interests and you would like advice on how these interests might be handled in the event of divorce, contact us today for a free consultation.

The post What happens if the value of my business increases or decreases between separation and divorce? appeared first on Major Family Law.

Helping the children

In the emotional fallout of divorce and separation, children are the innocent bystanders. Even very young children may be acutely aware of tension and unhappiness in the home, and most will struggle to make sense of the unsettling ways in which their family is changing. It’s palpable and yet deeply confusing if you’re too young to understand.

Children draw their sense of security from their parents and will naturally look to them for answers. It’s your job as Mum or Dad to protect your children and make the separation as easy and stress-free as you can. Sadly, some parents become so caught up in their own dramas, they fail at this task.

Centre the child’s welfare as your number one consideration

Under the Children Act 1989, the court must always place your child’s welfare as the foremost priority—this is known as the welfare principle. Section 1(3) includes a checklist: the child’s wishes and feelings (in light of age and understanding), emotional, educational, and physical needs, likely effect of change, harm suffered or risked, and each parent’s ability to meet those needs.

Your watchwords should be:

• Communication
• Reassurance

All but the oldest and most emotionally aware youngsters will have little understanding of the problems that have driven their parents apart: all they will know is that parents they loved are no longer everyday figures in their lives. Their home, their centre of their world, has come apart. The reassuring duopoly of Mum and Dad is no more.

Explain what is happening in an age-appropriate way. This will help your children to manage their own emotions and anxieties about the situation. In the absence of clarity, children often turn to their vivid imaginations to interpret the behaviour of their divorcing parents. Many youngsters worry that the separation is somehow their fault – that they caused it, somehow, by not being good enough. Others will worry about their new living arrangements, or about when and where they will see the parent who has moved out. Does that parent even still love them?

What you can do:

• Frame all proposals around your child’s routine and emotional stability
• Emphasise continuity—school, extracurriculars, close family links—and how proposed arrangements minimise upheaval
• When legal advice is sought, ask your solicitor to use wording and structure that aligns with the welfare checklist

Developing a detailed, child‑centred parenting plan

A parenting plan lets both parents agree on weekly contact schedules, responsibilities, extracurricular logistics, holidays, and rules for electronic communication.

• Include contingency plans: What if one parent is late or contact is cancelled?
• Avoid using children as messengers or middle‑people—explicitly state this in the plan.
• Agree not to undermine the other parent in front of your child, and keep negative comments out of earshot.

Use mediation to reach agreements outside court

Family mediation is a voluntary, impartial process that helps parents settle child arrangements and other issues without litigation.

Key advantages include:

• If you attend a MIAM (Mediation Information and Assessment Meeting), this often fulfils pre‑court requirements and avoids court delays or extra hearings.
• Mediation can be quicker, cheaper, and less adversarial, reducing emotional strain on children.
• It’s more flexible: decisions can be tailored to your family’s needs rather than imposed by a judge.

Minimise children’s exposure to conflict

High‑conflict divorce has documented negative effects on children’s mental health. Family law guidance strongly emphasises shielding children from parental disputes.

Practical steps:

• Schedule difficult discussions away from children; don’t argue in their presence.
• Use communication tools or parenting apps designed to keep exchanges neutral.
• Agree boundaries: for instance, no negative comments about the other parent—even indirectly—during handovers or around children.

Shared residency, where a child lives part‑time with each parent, has been associated with better health, wellbeing, and fewer behavioural issues compared to the child living with only one of their parents.

Factors to consider include:

• Court approval is often contingent on stability, suitability of both homes, and parents’ ability to cooperate. If domestic abuse was present during the relationship, or one party was controlled by the other, the court is less likely to make an order for shared care.
• Even if not equal time, consistent involvement by both parents is encouraged in CAOs – when in the child’s best interest.
• If one parent obstructs contact, the courts may intervene with specific orders or even supervised contact provisions.

Safeguarding emotional well‑being with professional support

Children may experience anxiety, guilt, or confusion during a divorce, but emotional resilience can be fostered through reassurance, routine, and external support. Various support options are available to help children navigate this difficult period. Organisations like Childline and the NSPCC offer counselling services and helplines specifically tailored for children in distress.

It can also be helpful to inform the child’s school, enabling staff to monitor any behavioural changes and provide additional safeguarding where needed. Additionally, professional therapists or dedicated support groups for children of separated parents can provide a safe and structured environment for children to express and process their emotions.

Secure financial stability through maintenance planning

Securing financial stability through proper maintenance planning is a vital part of protecting your child during a divorce. Under UK law, child maintenance—distinct from the division of matrimonial assets—must be arranged either through a private agreement, the Child Maintenance Service (CMS), or a legally binding Consent Order, although the last option, in the majority of cases,  is rarely used.

You may decide to use the CMS online calculator which helps parents estimate appropriate payment levels based on factors such as income and shared care arrangements.

However, it is important to be aware that the government is introducing major reforms to the CMS, set to take effect in the financial year 2027–28. One of the central changes is the abolition of the “Direct Pay” system, where parents currently transfer money between themselves without CMS involvement. This system will be replaced with a streamlined, single statutory service based on the existing “Collect and Pay” model. Going forward, parents will either be encouraged to establish private, family-based arrangements (with support) or be placed under the Collect and Pay system.

The reformed service will include a revised fee structure. Currently, Direct Pay users pay no fee, while Collect and Pay users are charged 4% if they are the receiving parent and 20% if they are the paying parent. Under the new model, compliant users of the service will be charged a flat 2% fee on both sides—paying and receiving. For those who are non-compliant, the 20% surcharge for paying parents will remain as a deterrent for missed or late payments.

Another major improvement aims at reducing the time it takes to enforce missed payments. At present, enforcement can take up to six months, but the government plans to cut this to around six weeks to ensure faster, more efficient compliance. These reforms are designed not only to streamline payment systems but also to reduce child poverty. The Department for Work and Pensions estimates that around 20,000 fewer children will live in relative poverty (after housing costs) if the changes are successful.

The reforms follow a consultation that concluded in July 2025, with the government publishing its response in June 2025. By replacing the dual-option model with a single, more efficient statutory service and introducing faster enforcement alongside fairer fees, the government aims to increase regular, reliable child maintenance payments, improving financial stability for many separated families across the UK.

With these changes in mind, where possible, parents should agree on a family-based arrangement. Although if either parent’s financial situation changes, you may decide to use the CMS to review and adjust the amount as this can prevent disputes and maintain consistency, avoiding reliance on informal or inconsistent arrangements.

In high‑conflict or safeguarding cases, take immediate legal steps

If child safety is at risk (domestic abuse, neglect), you can make an application to court under Section 8 or Part IV of the Children Act:

• Prohibited Steps Order to restrict a parent’s decision-making (e.g. removal from country).
• Specific Issue Order for decisions such as schooling, religion, medical care.
• In extreme cases, the local authority may apply for care or supervision orders, or courts may order guardian appointments and assessments by Cafcass.

Engage a specialist solicitor early

A skilled family law solicitor helps navigate legal forms, court deadlines, and strategy. They can assist with:

• Drafting Witness Statements focused on child welfare
• Liaising with Cafcass
• Drafting and securing Consent Orders
• Advising on mediation, court strategy, or emergency legal action if needed

Offering reassurance

Make sure your children understand that the separation is nothing to do with them, and that yes, they will still get to spend plenty of time with that the other parent, even if no longer every day.  It is important that they fully understand – especially if young – that the parent who has moved out is still their father or mother and will still be part of their lives.

Routines are an important part of this reassurance. Serve meals at the usual time, help your kids off to school at the time they’ve always gone, let your kids see their friends as usual and enjoy their regular pursuits. Let them feel safe and secure in the knowledge that their pre-divorce lives will continue in many ways, even as other aspects of their lives change.

If you are still on relatively good terms with your estranged spouse, you might want to sit down and discuss the situation with your children together. But if that isn’t possible, the same clear messages can be conveyed separately. It is better to both agree on the approach you plan to take, so try to discuss this with your ex beforehand if you possibly can: a unified, consistent message will help console upset children and give them confidence in the future.

The post How do I protect my child during my divorce? appeared first on Major Family Law.

Following divorce or separation, child support is paid by the non-resident parent in order to support the upkeep of the child or children. The payment of child support is a legal requirement, but separated parents are encouraged to reach a private agreement between themselves on how much will be paid and when. This is called a family-based arrangement. Private arrangements can be straightforward and they have the advantage of helping to keep lines of communication between the parents open – something that is very definitely in the interests of their children.

The Child Maintenance Service (CMS) will only intervene if the parents cannot reach an agreement, the non-resident refuses to cooperate, or the resident parent has a good reason to not want to contact the former spouse or partner: for example, domestic violence or coercive behaviour. The resident parent must apply to the CMS for assistance, and a small fee is payable when they do.

The CMS has the authority to locate the other parent (if that is at issue), calculate a reasonable sum, and then enforce payment.

Gender-‑neutral nature of maintenance

Family law makes no distinction between mothers and fathers when it comes to entitlement to maintenance. The principle of equality between the sexes is firmly embedded in both legislation and judicial interpretation. Whether a parent is male or female, married or unmarried, the determining factors for maintenance are grounded in responsibilities toward children, the division of childcare, and the respective financial positions of the parents. For single or divorced fathers, this principle can provide a foundation for claims to either child or spousal maintenance, depending on the specific circumstances.

Parental responsibility and its importance

A father automatically acquires parental responsibility if he was married to the mother at the time of birth or if he is named on the birth certificate. If neither condition applies, he may acquire it through a parental responsibility agreement with the mother or by applying for a parental responsibility order from the court. In practice, establishing this status strengthens any maintenance-related claim, especially if there is a dispute over the child’s primary residence or financial contributions.

Child maintenance through the CMS and courts

As we briefly mentioned above, maintenance for children is usually addressed through one of three methods:

• Informal family-based arrangements
• Formalised court orders (it is unusual for the court to become involved in child maintenance issues. This tends to be reserved to high net worth cases, where things such as school fees are payable).
• Applications to the CMS. Fathers who are the primary carers for their children, whether as a result of a Child Arrangements Order or by circumstance, can seek maintenance from the mother. The CMS calculates maintenance based on a statutory formula that takes into account the non-resident parent’s gross income, the number of children involved, and the number of nights the children spend with each parent.

Shared care and financial imbalances

Where the care arrangement involves an equal division of time, the CMS may decide that no maintenance is due from either parent. However, the calculation is not purely mathematical. The CMS also looks at the actual arrangements in place, including whether there is a significant imbalance in the day-to-day costs borne by each parent.

If a father shares care but ends up covering a disproportionate share of expenses such as clothing, school equipment, extracurricular activities, or transport, he may still have grounds to request additional financial support. This can be pursued through a Schedule 1 application under the Children Act 1989, allowing the resident parent or a parent with substantial care responsibilities to seek specific financial contributions beyond the basic CMS calculation.

Spousal maintenance for divorced fathers

Child support is one of the two types of maintenance payment typically ordered by the family courts following divorce: the other is spousal maintenance. As the name suggests, these ‘periodical payments’ are made by the wealthier party in a marriage to their former spouse as form of ongoing financial support, in addition to the settlement agreed or ordered during the divorce. The law concerning payment of spousal maintenance is also gender neutral. If a wife earns more money than her husband or is simply wealthier, he may be awarded some level of spousal maintenance if there are limitations on his ability to find employment and earn a salary.

The Matrimonial Causes Act 1973 provides the legal basis for such claims, and courts will examine factors including the length of the marriage, the standard of living enjoyed during the marriage, the financial needs of each party, and their ability to earn an income. Spousal maintenance is often awarded on a time-limited basis—commonly until the youngest child reaches adulthood or the receiving party has retrained or re-entered the workforce.

Considerations for high-net-worth fathers

It is important to note that in high-net-worth families, while the courts are increasingly wary of creating lifelong dependency through spousal maintenance, they may still make substantial financial orders where one parent retains primary care responsibilities and lacks immediate earning capacity. For fathers who have exited the workforce to raise children, or whose post-divorce career options are limited, this can be a vital source of financial stability.

Do single Dads always get maintenance?

The law may be gender neutral, but of course, reality is often more complicated. Single fathers are still uncommon and many have to run the gauntlet of age-old gender stereotypes that insist looking after children on a daily basis is a mother’s job and fathers should be out there earning a salary.

Some single fathers encounter outright suspicion and confusion as they go about their day, and unfortunately, these old-fashioned attitudes can leak into the family courts. Judges and magistrates are not always as sympathetic as they could be to fathers during divorce or following separation, so if you are a single Dad, you may have to make a strong case for a maintenance award. But don’t be dissuaded by old school attitudes – if, for whatever reason, you are looking after the children every day, or if your former spouse is significantly wealthier, you are just as entitled to financial support as she would have been had the roles been reversed.

Challenges in enforcing maintenance

In practice, enforcing maintenance can be fraught with difficulties. Despite possessing a range of statutory powers, including deductions from wages, seizure of assets, and even revocation of passports and driving licences, the CMS has been widely criticised for its inefficiency and lack of enforcement. For fathers who are owed maintenance, whether child or spousal, this often translates into long delays, administrative errors, and a general lack of resolution. As of writing, hundreds of millions of pounds are in arrears, with thousands of families affected by systemic failures.

Court-based enforcement options

In some cases, especially where enforcement through the CMS proves ineffective, fathers may have to pursue remedies through the courts. A court can issue enforcement orders, including charging orders against property, third-party debt orders, or in extreme cases, committal proceedings for contempt of court. That said, such remedies can be costly and time-consuming, often requiring legal representation, financial disclosure, and detailed evidence of default.

Reaching agreements through mediation

To ensure a fair and enforceable maintenance arrangement, solicitors recommend that separating parents first attempt mediation. Not only is this a prerequisite for many court applications, but it also allows both parties to reach mutually agreeable terms in a less adversarial environment. If an agreement is reached, it can be formalised by way of a Consent Order, which gives the arrangement legal force and simplifies enforcement. Fathers who negotiate such agreements, particularly where they assume the bulk of day-to-day childcare, can often secure regular maintenance payments in a way that is both efficient and long-lasting.

Cross-border and blended family complexities

There are also unique challenges that fathers may face depending on their individual circumstances. For instance, if a father lives abroad, enforcement of UK maintenance orders can be complex, particularly in jurisdictions without reciprocal arrangements. On the other hand, where the mother lives abroad, it may be more difficult to secure payments or to have a CMS assessment recognised. In these situations, applications under international laws or mutual enforcement treaties may be required.

Another complicating factor arises when fathers are part of blended families. The CMS takes into account the number of children living with a paying parent, including stepchildren, which may reduce the amount payable or impact eligibility for receiving maintenance. Fathers must be prepared to provide clear financial disclosure and documentary evidence to support claims relating to household composition and care arrangements.

Impact of abuse and coercive control

Cases involving domestic abuse or coercive control add yet another layer of complexity. A father who has been subjected to controlling behaviour may find it difficult to assert his financial rights, particularly if the abuser controls access to financial documents or household income. However, exemptions from mediation are available in such cases, and courts are increasingly sensitive to the impact of coercive control in determining both maintenance and contact arrangements.

Support services and resources

Organisations such as Families Need Fathers, Gingerbread, and Citizens Advice offer guidance, peer support, and legal referrals tailored to the unique needs of single fathers. In addition, the government’s Child Maintenance Options service provides calculators, advice on agreements, and an overview of the various enforcement mechanisms available.

Asserting maintenance rights fairly

Maintenance is not only about securing funds; it is also about enabling a stable, supportive environment in which children can thrive. Fathers who document their caring responsibilities, seek legal recognition of shared care, and make use of both court and CMS options stand the best chance of receiving fair, long-lasting financial support. Despite the shortcomings of the system, the law does provide a framework within which fathers can claim the maintenance to which they—and their children—are entitled.

An experienced family solicitor will be able to outline your rights and the options open to you.

The post Are Single Fathers and Divorced Dads Entitled to Maintenance? appeared first on Major Family Law.

Separation vs. divorce: What’s the legal difference?

It is important to understand the difference between separation and divorce:

• Separation can be informal. Couples may choose to live apart without any legal documentation. Some might create a separation agreement, which outlines responsibilities and arrangements during their time apart.
• Divorce, on the other hand, is a formal legal process that not only ends the marriage but allows for a financial settlement through the courts. Until a divorce is finalised, your financial ties to your spouse remain intact.

In short, while emotional and physical separation may have occurred, the law still sees the marriage as valid until a divorce decree is issued.

Can a spouse claim money after years of separation?

Yes — and this often comes as a shock. Under family law in England and Wales, there is no automatic expiry on a spouse’s ability to make financial claims, even if you’ve been separated for decades.

As long as you are still legally married:

• Your spouse can seek spousal maintenance
• They may be entitled to a share of your property or assets, including any acquired after separation
• They can make a claim on your pension
• If you pass away without a valid will, they could inherit under intestacy rules

This legal entitlement only ends once a legally binding financial order has been approved by the court following divorce.

In the 2015 case of Wyatt v Vince, the Supreme Court ruled that a woman could pursue financial claims against her former husband more than 20 years after their separation — and 19 years after their divorce. The court reasoned that although no claim had been made during the divorce, there was no statutory limitation preventing one.

Although the parties in this case were divorced, it highlights a key legal principle: without a financial order, the door remains open indefinitely for a spouse to seek financial redress.

Financial orders: The only way to ensure finality

When a couple divorces, they should not only seek a final divorce order but also obtain a financial order. There are two main types:

• Consent Order – Where both parties agree on asset division and submit the terms to the court for approval. Once sealed by the court, it becomes legally binding.
• Financial Order – If no agreement can be reached, the court will decide how to divide assets following a series of formal hearings.

Without one of these orders, your former spouse can come back years later with a claim, especially if your financial situation has improved.

What assets can be claimed?

Even if you separated many years ago, your spouse might be entitled to assets such as:

• The marital home (even if only one name is on the title)
• Pensions
• Savings and investments
• Business interests
• Inheritances, depending on timing and use

If these were accrued during the marriage — or in some cases, even after separation — they can potentially be included in a financial settlement.

What if I’ve remarried or moved on?

If you remarry before making a financial claim, you may lose your right to apply for a financial order under divorce law. However, your ex-spouse — if they haven’t remarried — can still make a claim against you.

If you’ve acquired wealth or property since separation (e.g., from a new partner or business success), these can sometimes be considered “matrimonial assets” — particularly if the marriage was long or you had children together.

This means that even assets accumulated post-separation could be at risk without a clean break order in place.

What should you do if you’re separated but not divorced?

If you’re in this situation, there are proactive steps you can take:

• Seek legal advice: A family solicitor can help you understand your exposure and advise on the best steps to protect your interests.
• Start the divorce process: A formal divorce is essential to legally end the marriage and begin resolving finances.
• Negotiate a financial settlement: Even if you and your ex are amicable, put all agreements in writing. Mediation can help if communication is difficult.
• Apply for a financial order: Don’t skip this step. Without a financial order, your ex can still come after your assets in the future.

How can you protect yourself?

Here are key ways to shield your financial future:

• Get a consent order: This locks in the terms of your settlement.
• Create a Will: If you don’t, your ex could inherit your estate if you die while still legally married.
• Document all agreements: If you have informally divided assets, record it — though this won’t carry legal weight without court approval, it may be helpful evidence.
• Don’t wait: Delaying the divorce or financial settlement can backfire, especially if your financial situation improves.

Common misconceptions

“We’ve been separated for years — surely they can’t claim anything now?” Wrong. Time apart doesn’t erase financial obligations. Only a court order can.

“They’ve moved on — they wouldn’t claim anything.” People’s circumstances change. A future financial need or dispute can lead them to seek claims.

“I have nothing now, so I don’t need to bother.” Your situation may change. A lottery win, inheritance, or property appreciation can become a future target.

Remaining legally married — even after years of separation — creates ongoing financial risk. If you don’t obtain a divorce and financial order, your ex-spouse can legally claim against your income, pension, home, and other assets. Separation may feel like a clean break emotionally, but it is not a legal one.

To protect your financial future, take steps now:

• Initiate a divorce
• Seek a clean break financial order
• Work with a solicitor to secure your position.

The post I separated from my spouse years ago but we didn’t get divorced. Are they entitled to money now? appeared first on Major Family Law.

Researchers from Lancaster and Swansea Universities conducted a study for the Nuffield Family Justice Observatory, an independent organisation which researches family law, with a special focus on improving outcomes for children. The researchers tallied cases involving children made across England and Wales in 2019, each involving section 8 of the Children Act 1989. This concerns living arrangements for children following divorce or separation, when the parents have been unable to reach an amicable agreement between themselves. They typically result in a ‘child arrangements order’ specifying where they will live and how often and for how long they will see the other parent, but such legal orders can also address other far-reaching aspects of the children’s lives.

Long-lasting impact

In the new report, the Nuffield Family Justice Observatory explained the far-reaching nature of family court cases:

“Decisions made within private law children’s proceedings can have a very significant and long-lasting impact on the lives of children and their families. They can include who children live with and spend time with, as well as more specific questions such as what name they are known by or whether they are brought up in a particular religion.”

Approximately half the 67,000 children surveyed by the research team were never formally asked for their views on their families’ circumstances. Surprisingly, older children were no more likely to be asked about their “wishes and feelings” than younger ones.

The importance of being heard

The Children Act 1989, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights all cite the importance of allowing children involved in family disputes to express their views. However, there is currently no formal mechanism within English family law for doing so. The Children Act 1989 does state that the welfare of children must be the court’s “paramount consideration” in any case involving them, and that decisions made should include consideration of their “wishes and feelings” if they are old enough and show an understanding of their family situation.

In some cases, welfare reports are compiled by social workers, and these may include the views of the children involved. In other instances, courts appoint a guardian to intervene on behalf of children and protect their welfare, but both measures are only taken in a minority of cases and do not always involve direct communication with the youngsters in question.

The Nuffield findings come in spite of previous research showing that consultation helps many children feel more positive about the outcomes of court cases they have been caught up in, and that many youngsters feel distress if their views are not sought.

Children feeling ignored

Lisa Harker is director the Nuffield Family Justice Observatory. She said:

“Hugely important decisions are made about a child’s life during private law proceedings – but a strikingly large proportion of children aren’t seen by the professionals involved, and have no voice. Children of all ages – even older children and teenagers, who are routinely expected to make important decisions about other aspects of their lives – are not being consulted. Worryingly, children might feel completely ignored, even invisible, and that their views aren’t valued.”

The Family Justice Observatory report, Uncovering Private Family Law: How often do we hear the voice of the child, is available here.

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In most cases, new partners eventually meet the children of the earlier relationship and spend time with them. It’s very easy to fall into a semi-parental role in such situations. You’re an adult, they’re children and their other parent is not around.

A balancing act

But it’s a delicate situation. The child may resent you for being too firm with them, feeling that you are attempting to take the place of the absent parent. But equally, if their other parent has passed away, they may welcome a new parental figure in their lives as they grow up.

If the other parent is still on the scene, they will almost certainly expect you to keep a distance, and will be unhappy if you do not. This is especially likely if the break-up was acrimonious and they resent the loss of day-to-day contact with their children.

But every family is different. An absent parent may not be especially involved in the lives of his children, especially if he or she has started a second family or has a demanding job that keeps them busy or away for long periods. In those cases, you as a step parent may have a valuable role to play in the lives of the children – not a substitute for the other absent parent, but as a caregiver. Children living in difficult family situations often welcome an adult who provides stability and reassurance.

Perhaps the best approach to life as a step parent is to follow your intuition – to ‘play it by ear’. This is not a situation in which strict rules or rigid formulae are appropriate. Be sensitive to family dynamics and to the individuals involved, and adopt your approach as the situation inevitably changes over time.

The law and step parents

Step parents have no default status in family law. They do not automatically hold parental responsibility – the legal status of parent – even if married to the one of the actual parents. This means that, even if they look after the children on a daily basis, step parents have no say in the child’s education, for example, and no status in medical matters either.

Medical emergencies are one situation in which parental status is clearly in the best interests of the children – especially if the absent parent lives a significant distance away and is not easily contacted. Fortunately, there is a potential solution, as long as the step parent is married to one of the biological parents, or in a civil partnership with them. Step parent responsibility agreements are legal documents that confer parental responsibility on the step parent, in addition to the biological parents or parent.

As you might expect, such agreements require the consent of both biological parents (provided both are still living). All parties – including the step parent – sign the document in the presence of a court officer and this is then despatched for formal ratification by the family court.

If the step parent is not married to a parent, or in a civil partnership with one, an application can be made in court for the conference of parental responsibility. This is also necessary if one parent does not agree to the extension of parental responsibility. Judges will make a decision based on what they believe to be in the best interests of the child.

An expert family lawyer will be able to guide you through the options most appropriate to you and your circumstances.

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Each episode of the SplittingUp.com podcast tells the real stories of real people’s experiences before hearing from experts in areas such as family law, finance and mediation, to help others who might be going through a similar situation.

Hosted by award-winning family lawyer Joanne Major, the podcast accompanies a new website designed to help those going through a separation to find help and advice.

In the latest episode “Andrew” tells how close he came to suicide while spending four years in court fighting for a fair financial arrangement and to determine his children’s future.

He used relationship counselling to help him through a court case that eventually ruled in his favour, so listeners hear from a relationship counsellor on the value of therapy during separation and a specialist family lawyer about the risks of going to court and the alternatives now available.

The website SplittingUp.com is a new information and contacts portal for anyone facing a separation, answering the most-frequently asked questions on crucial topics, and helping link people to top experts and lawyers they can contact for advice.

Joanne Major of  Major Family Law is listed in The Legal 500 Hall of Fame as an expert in divorce and family settlement, and created the site and the podcast after more than 25 years advising people struggling to navigate a separation. She said:

“When people are considering a breakdown of a relationship or splitting up for the first time, they often just don’t know where to start. Separation is always traumatic, but getting the right advice makes it easier for everyone.”

Joanne has been working with former BBC Foreign Correspondent Alastair Leithead to develop a new concept based around storytelling and expert interviews.

Court & Counselling: A Dad’s Story is the fifth episode in the series and follows programmes on where to turn for help, managing the family finances and protecting the children, taking the kids abroad and safeguarding the children’s inheritance when moving on.

All the episodes are available here and on Apple Podcasts and Spotify.

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What is the current law on transferring property and other assets?

Under current legislation – the Taxation of Chargeable Gains Act 1992 – spouses or civil partners can transfer assets between themselves on a ‘no gain or no loss’ basis for the remainder of the tax year in which they first separated. ‘No gain or no loss’ means that the transfer does not incur any capital gains tax, even though the recipient has technically gained an asset.

Capital gains tax will only be incurred if and when the recipient spouse sells on the assets at a later date. The sale will then be taxed according to its value at the time it was acquired by the spouse who originally held it, before the transferral of ownership.

Then, from the beginning of the following tax year, any transfers of ownership between separating couples begin to incur capital gains tax in the usual way.

What is the new law on assets transfers?

From April 2023, the ‘no gain or no loss’ period will be extended to three years after separation – unless the assets were transferred during formal divorce proceedings, in which case the grace period will continue indefinitely.

In addition, estranged or divorced spouses who retain an interest in the former family home will be able to claim private residence tax relief when it is eventually sold on.

These changes are set to introduced via amendments to the Finance Bill 2022-23.

According to HM Revenue and Customs, the changes will make the divorce and civil partnership dissolution process fairer for couples, especially those working out more complex financial settlements. The extended grace period will allow such couples to focus on reaching an ideal settlement and less on minimising tax liabilities and financial loss.

Major Family Law can provide expert guidance on the financial complexities of divorce and help you ensure your best interests are fully protected. Get in touch today.

The post Divorcing couples to be given three years for asset transfers appeared first on Major Family Law.

Holidays can be a flashpoint when a couple divorce or separate, especially if they have not done so on good terms. Typically, one parent is keen to take a holiday abroad with the children and the other is reluctant, or even outright refuses to give their permission, something they are legally able to do.

They may object to the presence of the holidaying parents’ new partner, for example, or feel the money would be better spent in other ways.

Taking a child abroad without the permission of other individuals holding ‘parental responsibility’ (the legal status of parenthood) is child abduction under the law.

How do I negotiate with my ex?

If you are keen to take your child on holiday but your ex is reluctant, try your best to discuss the situation with them and address their concerns as best you can. Emphasising the benefits to the children of a fun holiday and time with their other parent may be a good tactic. Put the children first, rather than yourself.

Calm co-parenting is always in the best interests of children and this requires open lines of communication and a willingness on both sides to compromise and respect the other parent’s perspective. The child’s welfare will be the foremost consideration of the family courts and it should be the foremost consideration of every parent too.

If you are really struggling, mediation may be helpful. This is a form of guided negotiation in which the participants attempt to reach out-of-court agreements on contentious issues. The sessions are guided by mediators trained to take an impartial stance and steer the former couple towards mutually acceptable compromises.

The next step, if mediation fails, is to seek advice from an expert family solicitor to discuss the possibility of legal action. Family courts have the legal power to make a ‘specific issue order’ allowing the holiday to take place, if a judge believes this will be in the child’s best interests.

When applying for a specific issues order, you will need to provide full details of the planned holiday – for example, where you will be staying, your contact details during the holiday and a full breakdown of the flights you plan to take. It can also be a good idea to propose ways to make up for any lost time with the other parent.

Sometimes legal action is the right choice, but to avoid the inevitable acrimony, it should always be the option of last resort in any family dispute.

Do I always need the permission of the other parent?

Not always. There are two key exceptions.

A child arrangements order is an enforceable legal order setting down the living arrangements for a child or children following divorce or separation – for example, which parent they will live with on a day-to-day basis, and how often they will see the other parent. If a child arrangements order has been made in favour of the parent planning the holiday, they will not need to ask for permission, as long as the order does not state otherwise and the holiday will not exceed one month. However, even in those circumstances it is generally still sensible to give the other parent notice and send them details of the holiday.

In addition, there is no need to seek the permission of biological parents who do not hold parental responsibility. This is an uncommon situation but it does occur occasionally. Unmarried fathers who are not named on the birth certificate of the child fall into this category.

In some cases, holidays abroad may not be a possibility at all. The courts may have previously issued a ‘prohibited steps’ order forbidding parents from taking their children abroad for holidays or visits, out of concern they may abduct them.

Holidays in the UK are a simpler proposition. Parents do not normally need the specific permission of the other parent for these, although clear communication remains sensible, as does making up any lost ‘contact’ time with the other parent. In some cases, a family court order may have placed restrictions on UK holidays too, but those will be specific to the circumstances.

The post How do I persuade my ex to let me take the children on holiday? appeared first on Major Family Law.

In this post, I will be exploring family law issues involving adult children – both as ‘splitters’ themselves and as the offspring of separating parents.

Thirty pieces of silver

Society changes and increasingly we family lawyers work with ‘silver splitters’ who are separating later in life. This later-life separation often happens when couples who managed to trundle on when one or both were out at work, but who then find themselves struggling when retirement takes away that respite, leaving them to cooperatively occupy their home and get along. Their adult children have usually left home by this point, so there is no longer any need to ‘stay together of the sake of the children’, as the old maxim had it.

People sometimes refer to this situation as ‘empty nest syndrome’.

Of course, many unhappy couples decide to separate without that wait, but increasingly family lawyers find that we are dealing with people nearer the end of their working life than the start. This brings to the fore a particular set of issues which are different to those of younger couples.

Once children have grown into adults the law may have only limited regard for them, but they remain an important consideration within families, both emotionally and practically.

Pots of gold

It is probably not energy-effective to chase the end of a rainbow in the hope that a leprechaun has left his pot unguarded and out in the open. It is more likely that rainbow’s end is with the couple’s pension trustees.

One particular problem to be resolved is income on retirement.   After years of service, people may have earned defined benefit pensions where their years of employment entitle them to an ongoing income of a percentage of their earnings – a ‘final salary’ scheme which is commonplace for those in public service. Doctors, nurses and other medics usually have such pension arrangements and the benefits can be considerable over a long career, even if NHS pensions administrators usually take an age to formally confirm what those benefits amount to, and even then, they are not always correct.  That significant capacity for error has led some pension experts to specialise solely is checking NHS figures – so that part of the wider NHS may or may not have deserved clapping during the covid lockdowns. The wait for pensions information from the NHS is not one of the published waiting times which politicians are so fond of quoting and it never hits the news headlines. It does however cause difficulties for separating couples and their advisers.

Outside of public service, the most common private pension arrangement is the defined contribution scheme, otherwise known as a ‘money purchase’ scheme under which a fund is gradually accumulated and then used to buy an income or invested in some other way. People may not be able to touch that fund (although at time of writing 55 is the magic age for that) but the value of the fund is certain and people can usually log on and find the amount in their pension pot.

Even when couples both work, it is unusual for pension income to be similar and during the marriage there are often informal plans about how retirement is expected to be funded. Separation smashes those expectations.

Death and taxes

Whilst prolific Bostonian Benjamin Franklin is often cited as the originator of the 1789 sentiment that nothing is certain in life except death and taxes, Londoner Daniel Defoe had it in print earlier – in his Political History of the Devil of 1726. So two writers who remain important outside of the classroom both penned what is now a truism.

With humans expiring an inevitability, even the most loving of children are obliged to recognise that their parents will eventually die and so part of their future financial planning may include inheritance. Great Expectations they may not be, but honest couples will consider what difference their probable inheritances will make to their resources when the inevitable occurs. Money does not replace people, but it often follows human loss and some couples will have considered how that inheritance will be used, as undesired as it may be.

Losing a parent is one of life’s most stressful times, and many couples experience difficulties in their marriage within a year or two of a parent dying, even if that event is not accompanied by a change in wealth (because the other parent or step-parent is still alive, for example).

The law does not ring-fence inheritance on divorce. On a human level it is often thought ‘morbid’ or ‘greedy’ to consider inheritances, as ‘need’ is the highest placed factor in deciding how matrimonial assets should be allotted. But if the money (or property) exists and remaining assets will not meet all reasonable needs, that inherited wealth must be considered.

If parents of adult children wish to do so, they can skip a generation with their wealth and leave it to their grandchildren to avoid it being fought over as the matrimonial property of their child. All that is needed to do so is a Will, but will writers usually suggest that any such decision should be properly discussed beforehand.

Taxes follow from death and tax-planning is outside the scope of these musings, but do note that leaving money to children or grandchildren will have tax implications. An accountant will be able to explain the ramifications.

It is certainly worth considering the options if a person with wealth is elderly or has health issues and their offspring has a shaky marriage. When I worked as a mediator, inheritance was something that I would discuss. Many separating couples were prepared to acknowledge that an inheritance should be looked at outside the general matrimonial assets. Sharing sometimes still occurred, but that acknowledgement made the emotional pain of parting with family money more tolerable. My experience is that people can behave decently, even when they are suffering the loss of a parent and the turmoil of a separation.

No plan survives first contact with the enemy

Helmuth Von Moltke got it right: in later life, the enemy is time. The world just doesn’t run smoothly and even good plans rarely anticipate all eventualities. Holiday plans can be destroyed by a pandemic, a strike, a business failure or even a war (thank you for that unwelcome addition to the list, President Putin). Holidays are usually planned just weeks or months ahead, but retirement plans carry many more risks as they begin many years before the event planned.

There may not be any choice to make when it comes to which partner is going to concentrate on amassing a pension for the couple to use in retirement. If one spouse is going to devote time to childcare, then it is probable that their earnings and capacity to amass a pension will be less and the ‘breadwinner’, of whatever gender, will have those pension rights in their name. For an unmarried family, that fact leads to considerable unfairness as a pension is presently not able to be shared on separation, despite any informal agreements that may have been made when times were happier.

For the last two decades, the law has allowed pensions to be shared on divorce. Prior to that, that they would remain in one spouse’s name and be ‘earmarked’, but that could leave the poorer spouse vulnerable.

Imagine, for example, a police officer who gets divorced. They then subsequently lose their pension following disciplinary action against them. I once dealt with exactly that kind of case: a police divorce where the (former) officer misbehaved to such an extent that his pension was taken as part of the punishment. If that pension had been earmarked, it would have been lost for both halves of the couple, even though that loss would have been the fault of one spouse only. Sadly, in another police divorce I handled, before introduction of pension sharing, the officer died in an traffic accident, and so his ex-wife had no automatic entitlement to death benefits.

The replacement for earmarking, pension sharing orders, can transfer pension rights and some funds to the other spouse, so both have a share of the income that they had expected to live on together in retirement.

The law regards maintaining the home and childcare as valuable contributions to a marriage, so while one spouse may feel they ‘earned’ the pension and should keep it, that is rarely the outcome the law expects. As with inheritance, pension rights are a resource to be applied in divorce to meet reasonable needs.

You’re not my real Dad/Mum: re-marriage after divorce or separation

In long marriages, there are very few exceptions to the full sharing of resources such as pension rights. But if the couple came into the marriage later in life after they had amassed their wealth, and the marriage was consequently short, then more regard can be paid to the sources of the funds and also to any agreements they may have reached.

The best way for a couple to protect their resources is for them to enter into a pre-nuptial settlement, which sets out which assets each brought to the marriage and how they have agreed to divide them if they separate. This applies especially to couples with adult children.

I say ‘especially with adult children’ because one factor which often crops up when advising people is the feelings of those individuals. If those children fear that the new step-parent is going to takie away their probable inheritance then there will be hostility. I have had people seek advice about protecting their resources driven by concerns about their adult children’s attitude, rather than suspicion of their intended spouse.

When a spouse brings in family wealth – for example money earned by the floating of a family company or a concentration of inheritances – then there can be pressure on them from the family not to dissipate that wealth through divorce. It is common for a spouse with money they are not familiar with controlling to go on a spending spree or to otherwise use the money rashly. Running into the arms of a ‘gold digger’ or ‘adventurer’ creates the risk of that wealth being lost to the family. I have seen many financial agreements in which parents with money set out precisely how they will protect the family-origin money so that their children will eventually benefit.

Usually, the nomination of death benefits and the writing of wills is involved. But children can also enter a pre-nuptial or living together (cohabitation) agreement if they plan to set up home with somebody – particularly if that person has fewer resources.

Hard-working ex-husbands generally find toy-boy replacements annoying, even if the latter are motivated by genuine affection and not the wealth that may be handed over on divorce. The impact of the latter can be addressed.

It does not seem unreasonable to protect wealth for the children of the family, provided such arrangements are discussed openly and the solutions fair. I have advised many clients looking to reduce the likelihood their family wealth will fall prey to an avaricious partner in the aftermath of separation and divorce.

You can’t kid a kidder (unless you can)

Many years ago, I had a client who persistently denied she ‘had somebody else’. At court, as part of the overall settlement, she accepted a five-figure lump sum in substitution for lost spousal support rights, claiming she could never bring herself to remarry after the trauma of her husband’s betrayal.

Two weeks later she was married to a galloping major of a suitor. The situation turned out to be similar to the film Dirty Rotten Scoundrels when it transpired that each had developed the inaccurate impression that the other was wealthy and they had then effectively ‘conned’ each other into a whirlwind wedding.

When all this came to light, the ex-wife lost all credibility, so when fraud was asserted by her ex-husband, we negotiated for a rebate for the ‘lost’ spousal rights compensation.  She was fortunate that her ex-husband left the remainder of the generous settlement in place and did not ask a judge to start again, knowing that she was deceitful, dishonest and motivated solely by hard cash. Despite his ex-wife having already sold her story to the tabloids, the husband seemed to accept her protestations of trauma at the breakdown of the marriage and his previous infidelity.

The lesson to be learned here is: protect your resources by having a formal agreement. If done correctly, this will enable you to have some confidence the court will respect your assets. ‘Direct access’ barristers (which can be instructed directly by clients) represent the best value for such agreements, so we direct clients to such specialists when that is their chosen route.

Advice for family members

Adult children can be a source of worry as separating spouses, and they can also be bystanders in their own parents’ divorce.

What can be done to help them?

Time

The biggest gift that you can give a family-member going through relationship troubles is your time. Lawyers are a pricy second choice if talking a situation through with friends and family has not worked out.

When listening, remember that you are unlikely to be told the full story – the situation may be worse than they describe or it may be that their perceptions are making the situation seem worse than it really is: you cannot usually know.

If there are children of the relationship, remember that you might need to act as a buffer between the parents and offer the children a safer space, away from their parents’ conflict. That ‘honest broker’ intermediary role is far more difficult if you have nailed your colours to the mast in unquestioning support for your relative.  Even when you hear both sides of the story, you still might not get anything that resembles the objective truth, so it is wiser to avoid too much comment and condemnation, especially if your knowledge of the situation does not come from direct observation. Holding back comments you might want to make is not easy, but it can put you in a situation where you will have a better chance of being trusted, something which is particularly important if you have a role in dealing with the children.

All that takes time.

The gift of lending

Parents are sometimes willing to make loans of part of their pension funds or other wealth. At other times, adult children have done well and wish to help their parents financially.

Whilst loans within a family will not often be scrutinised or questioned, it is prudent to keep a record of what you give, the purpose for which it was advanced and whether it is a repayable loan or a gift. If a loan is given – either during the marriage or after the family member separates – it is not a legal requirement for there to be a formal agreement, but it is prudent to be clear and to set out in what circumstances it will becomes repayable.

‘Legal aid’ – financial support for legal representation – has largely been abolished in family law, so funding proper legal advice and representation is a very helpful way to support your relative. You can specify when any loans are repayable and keep a record of payments made. Loans could become a debt to be respected as part of the formal divorce settlement, but to have any chance of that, there needs to be credible evidence that the debt was treated as real and valid by both the lender and the person who received the money.

Providing property

In a previous blog, I discussed where a father ran into problems after buying a property for his son and the latter’s family to occupy.

Here at Major Family Law, we are not regulated to advise on taxation issues, so we recommend seeking the advice of somebody suitably qualified, but as a general rule, when buying property in similar circumstances, it will be right for the property to be in the names of the couple sometimes, and on other occasions it will not be.

Having a trust deed which proved the real owner of the property saved my client from losing his investment to his erstwhile daughter-in-law. But such deeds are not always possible – as false ‘gifts’ may amount to mortgage fraud if the couple borrow as well as use family money to fund the purchase of a property.

Whether the lender will accept that their borrowers have ‘non-commercial’ debt as well as a formal commercial mortgage is something that ought to be checked. Often parents sign to say money is a ‘gift’ even if, ultimately, they expect it to be repaid when circumstances allow.

Those ‘gift’ declarations/ forms/ letters can have long term consequences, even though everybody was fully aware of the source of the funds and what the expectation really were. It may be worth formally setting down expectations if you are calling money towards a property ‘a gift’. If you do so, remember to say who is liable for the repayment, so that the obligation lays where it ought to.

If you are using money or other resources to support a parent, or family member, it’s prudent to be open with your spouse. In separations people sometimes deny knowledge of loans or ‘understandings’ about property. They may try to grab resources truly owned by third parties – for example, parents, children or other family members.

Courts decide on evidence, so it is important that there is both a paper trail for the money and evidence of intent. If a spouse challenges the relative and loses, they can be liable for reimbursement of legal costs in a way that is not the norm in family finance cases. Those costs can sometimes wipe out a massive chunk of the settlement.

Ordering the payment of costs can mean a spouse no longer has enough to meet their needs. But in one recent case, the court held that some ‘itigation misconduct- such as denying a loan was repayable or claiming property owned by a third party – was too serious to overlook. It would, the court declared, give people a license to misbehave if they did not face such consequences for that kind of behaviour.

So, openness and integrity are important when helping family members. Whichever way the funds may flow – young to old or old to young – it is worthwhile getting the right documents in place to reduce the chance of arguments later.

There is much more to say about how family members can help rather than hinder, but for now, I hope thee few points are thought-provoking and of some practical use.

Lewis Hulatt joined Major Family Law in 2016 as a consultant working with clients in both the south east and the north of England. In addition to his many years of experience as a solicitor, Lewis is a trained mediator and often advises on how to resolve disputes outside the courtroom. 

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