Bournemouth Solicitors

FAMILY LAW FAQ – BOURNEMOUTH SOLICITORS

What’s the position on contact orders for children ?

Divorced children parents or relatives who are worried about the arrangements for children can apply to the court for a section 8 order. The applications are normally made by mothers and fathers who cannot to agree about contact.

Section 8 orders include:

• ‘Contact orders’ – they identify the person responsible for the child, and the communication is to be  with the other parent
• ‘prohibited steps orders’ – prohibit  a child’s parents  from taking particular actions. The action can only be allowed if the court permits.
• ‘Residence orders’ – state who the child lives with.
• ‘Specific issue orders’ – identify specific matters about the child, for example schools or medical issues.

A contact order specifies who should collect and deliver the child for visits, the time and place.

Can a child change his/her name ?

Yes but children under age 18 will need permission of both parents before being able to legally change their name.

What are common and/or legal reasons for contesting a will ?

• The will was signed under undue influence, for example the deceased was pressured into signing the will.
• The will does not reflect the wishes of the deceased because it was drafted negligently or not according to correct instructions.
• The deceased lacked the necessary mental capacity to sign or to give instructions for a will, e.g. the person was suffering from dementia or a similar mental illness when the will was made
• The will is not legally valid, such as not being signed and/or witnessed properly, which is a common problem with homemade wills

The Inheritance (Provision for family and Dependants) Act

This is an important Act which applies either where a valid Will has been made but does not provide for dependents, or where no Will exists and the intestacy rules apply. This Act allows an application to be made to the courts to redistribute the deceased’s estate where the Will or intestacy rules fail to make “reasonable financial provision” for a dependant.

Who is a dependant ?

The definition is fairly wide and can include :-

• surviving husband or wife
• co-habitees
• children
• a person who, as a matter of fact was being financially maintained by the deceased
• civil partners

What is “reasonable financial provision” ?

This is the legal term used in the Act and the definition varies from claim to claim. The big difference is between inheritance claims brought by surviving spouses and inheritance claims brought by other categories of claimant.

If the Inheritance Act claim is being brought by a spouse of the deceased then reasonable financial provision will be such financial provision as would be reasonable for a husband or wife to receive, whether or not that provision is required for their maintenance.

For all other people making an Inheritance Act claim, reasonable financial provision means such financial provision as would be reasonable for their maintenance.

How does a trust work ?

A trust is a means of separating legal and beneficial ownership of property. In a trust a Trustee is appointed to oversee the management of assets for the Beneficiaries and trustees have legal duties to the beneficiaries. There are many reasons for setting up a trust, some of which are :-

• limiting the exposure of assets to taxes and other legal claims

Legal ownership & family trusts

Where a trust is set up the trustee(s) are legal owners of any assets, including property. Consequently, on the face of it, the trustees have legal power to sell assets or to invest.  This means that in the example of a family property, a 4rd party buyer from trustees is not required to ascertain whether the trustee is selling with the consent of beneficiaries. As long as he/she/they establish that the trustees are legal owners, this is sufficient. Trustees are bound to act for the benefit of the beneficiaries as a general principle but very specific wording may be needed to guide or restrict the Trustee in what they can do without being liable for breaching their mandate.

What is beneficial ownership of a trust ?

Beneficial ownership represents the entitlement to the value in any assets in a trust. Disputes do arise between trustees and beneficiaries concerning the management of property contained trusts. To the extent that a Trustee or trustees is/are mismanaging his/her/their duties, beneficiaries can make court applications to force certain decisions on the Trustee, or to have trustees removed, or to have a Trust dissolved entirely.

I don‘t want my partner to have access to the children

The starting point under English law is based on children’s rights and that a child has the right to contact with both parents.

The courts have many options available which can include :-

• limiting the length of time children spend with a parent
• ordering that contact can only take place with supervision.
• Ordering that contact should be limited to indirect

What is the role of CAFCASS

CAFCASS officers are appointed by the court to meet with parents and children and to provide an objective report to assist the court in disputed children situations. Children over 9 may be asked to come and see the CAFCASS officer at court at an early hearing so that the parents and Judge can find out their wishes and feelings early on.

What is Parental Responsibility ?

Parental Responsibility (PR) is the legal concept relating to the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has, in relation to the child and his property.

Is Parental Responsibility automatic ?

When a child is born, the mother automatically has parental responsibility. If the parents are married, both parents automatically have parental responsibility. If a child is born to unmarried parents after 1st December 2003 with both parents’ details, this also gives the father parental responsibility. If these circumstances do not apply parental responsibility can be obtained with a parental responsibility agreement entered into by both parents or a parental responsibility order made by the court.

What is a Residence Order?

A Residence Order details the person with whom a child will live. When the court makes a Residence Order in favour of someone who is not the parent or guardian of the child concerned, that person will have parental responsibility for the child while the Residence Order remains in force.

What is the purpose a separation agreement and what does it include ?

There are situations where a married couple decide to stop short of divorce, such as if there may be a prospect of resolving differences in the future or where a divorce is not available, such as if none of the divorce grounds are available. In those circumstances a separation agreement generally includes :-

• Agreement to live separately
• Financial support provisions which can include maintenance but note that an agreement not to apply to court in the future for financial support is not binding legally
• Contact arrangements for any children.

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