The 12 Days of Christmas with BPE's Family team
The Christmas period can be difficult to navigate, and particularly when there are changes to your family situation. Madison Noel and Olivia Moore from BPE’s Family team have shared some key things to consider over the Christmas period – from adopting and surrogacy, how gifts are treated upon divorce, things to consider when getting engaged, and more - all wrapped up in our 12 days of Christmas!
A partridge in a pear tree
Child Arrangements
It’s hard to know where to start when making arrangements for children after separation. Ideally, arrangements should be agreed as early as possible to ensure any potential conflicts can be avoided, particularly during the Christmas period.
The key timings to consider are where the children will spend Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve and New Year’s Day. The facilitation of handovers should be considered too.
If you are unable to agree, you may want to seek guidance from a solicitor. It is important to remember that Christmas comes around every year and if arrangements can be agreed, it will be in everyone’s best interests. With a little planning and communication, you can make Christmas appear smooth for everyone!
Two turtle doves
How gifts are treated upon divorce
The court’s approach to considering how gifts are treated upon divorce depends upon the origin of the gift.
For example. an inherited asset that is ringfenced and not mingled into the ‘matrimonial pot of assets’ will mostly be viewed as a non-matrimonial asset. However, this will depend upon the circumstances in each case.
If a gift from a third party is for the benefit of a couple, it would be considered as a matrimonial asset however, as with an inherited asset, a gift to an individual that remains for the benefit of that one party will be considered a non-matrimonial asset.
In general, gifts from spouses will be seen as matrimonial property. There can be a fine line between what is yours and what is dove-initely matrimonial.
Three French hens
Taking children abroad during the festive period
If there is an existing child arrangements order in place stating that the child lives with you, you are able to take your child abroad on holiday for up to 28 days without getting permission from the other parent.
Regardless of whether you have a ‘lives with’ order, you should still provide the other parent with details of the holiday, as they have parental responsibility.
If there is no court order in place, parents will need to obtain the permission from the other parent, providing full details of the trip to them. They should confirm in writing of their consent to the trip.
If the other parent refuses to allow the trip to go ahead, you can make an application for a ‘specific issue order’ in which the Court will consider both parents’ position and whether or not it is in the child’s best interests to go on the trip. In the majority of circumstances, unless there are safeguarding concerns or other risks, it is likely that the Court will consider a holiday is in a child’s best interests.
Remember – you don’t want to ruffle any feathers over the Christmas period! We hope that this is as easy for you as un, deux, trois!
Four calling birds
Parents' communications after separation
When there are children involved in a separation, finding an effective means of communication is essential. For some parties, having a prescribed form of communication solely about the children is required. In such cases, there are a number of options available, including:
- A designated email address to discuss matters regarding the children.
- A parenting app, such as My Family Wizard. This app requires a monthly payment; however, it offers a variety of features such as tracking expenses, messaging and calendar tracking. These apps can help to reduce conflict as the tone of the messages are flagged and suggestions of how to make the messages more child focussed are provided.
If you are unable to communicate effectively with your ex-partner, our team are here to assist you and advise on the way forward, if you are unable to keep communications ‘chirpy’.
Five gold rings
Celebrating getting engaged this season? The benefits of pre-nuptial discussions
If you are considering proposing over the festive period, or you find yourself being proposed to, safeguarding your future is a key element worth considering before entering into your marriage.
A pre-nuptial agreement acts like an insurance policy, in the hope that it will never have to be used. Whilst these are not strictly legally binding, a well drafted document executed in the correct way is likely to carry significant weight with a Judge.
Such an agreement can help avoid future legal costs in contested court proceedings and can help provide clarity to a relationship and what the parties are entering in to. So, before you exchange gold rings, make sure you have considered your future to ensure the marriage doesn’t cost you more than you bargained for!
Six geese a-laying
Resolving assets and finances
There is no ‘one size fits all’ approach to resolving finances following a divorce. The options available will depend on the circumstances of each case and how amicable the parties are with each other. Whilst some individuals require the assistance of legal professionals to lead the communication and potentially assist with contested Court proceedings, others feel able to discuss their finances directly with their partner, while receiving some advice in the background to facilitate these discussions.
Regardless of the route that parties take to reach an agreement, it is key that once an agreement is reached, it is recorded in a financial consent order to ensure it is binding. Such an order can allow for a ‘clean break’, therefore severing any future claims the parties have upon the other.
When it comes to dividing assets on divorce, things can become eggs-tra complicated. However, our team of solicitors are here to support you.
Seven swans a-swimming
A guide to no-fault divorce
On 6 April 2022, no fault divorce was introduced in England and Wales. This means as part of the divorce process, neither party can blame the other for the breakdown of their marriage. Before this reform was brought in, the party instigating the divorce had to give a reason why the marriage had irretrievably broken down. The aim of the reform was to remove unnecessary conflict and to ease the swim against the tide for couples and children.
https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force
Eight maids a-milking
Mediation and forms of non-court dispute resolution
The Family Court is encouraging non-court dispute resolution to resolve the backlogs within the court system. Before couples can apply to the court for a resolution on their finances and child arrangements, an initial mediation meeting is required to be undertaken (aka mediation information and assessment meeting).
Additionally, other non-court dispute resolution such as arbitration, round table meetings, and private financial dispute resolution are available to provide resolution outside of the court room.
So, rather than letting the court system milk you of your time and money, why not try non-court dispute resolution that could potentially be cheaper and quicker for all parties involved.
Nine ladies dancing
Become parents: surrogacy and adoption
If you are thinking of increasing the amount of people dancing around the Christmas tree by either adopting or surrogacy, here is some helpful information to get you started…
Whilst surrogacy is legal in England and Wales, and a surrogacy agreement can be made to record the arrangements during pregnancy and post-birth, a surrogacy agreement is not enforceable under English and Welsh Law and a surrogate cannot be paid, except for their reasonable expenses.
To become a child’s legal parents (if you are not the child’s biological mother or father), you will need to apply for adoption. To adopt, both birth parents of the child usually have to agree, unless they cannot be found, are incapable of giving consent or there would be a risk to the child if they were not adopted.
Ten Lords-a-leaping
A guide to pensions on divorce
Pensions make up part of the matrimonial financial pot for division on divorce. This means couples can make a claim against each other’s pension to increase their own pension upon separation. To determine how the pensions should be divided, it is often sensible to instruct a Pension On Divorce Expert to provide the relevant information.
You may want to leap with joy if you were relying on your ex-spouse to support you through retirement!
Pension Sharing Orders: This allows one party to receive a specified share of the other’s pension, creating a completely separate pension pot in their own name.
Pension Offsetting: Here, the value of the pension is balanced against other assets, such as the family home. For example, one spouse may keep the house while the other retains their pension.
Pension Earmarking (or Attachment Orders): A portion of the pension income is paid to the ex-spouse when the pension becomes payable. Unlike pension sharing, this doesn’t create a separate fund, and payments may stop if the receiving party remarries.
Choosing the right approach depends on your circumstances, including your age, retirement plans, and financial priorities. Our Family team at BPE Solicitors specialises in guiding clients through these decisions, ensuring a fair settlement that supports your future.
As part of our 'Twelve Days of Christmas' series, we’re highlighting the importance of taking expert advice when dealing with complex financial assets like pensions. If you’re facing a divorce and need guidance, contact us today.
Eleven Pipers Piping
Prickly disputes with cohabiting couples over property ownership
In England and Wales, there is no such thing as a ‘common-law marriage’. Therefore, unmarried couples who own property together are more vulnerable upon separation than married couples. On separation, a court can only order a sale of the property but cannot divide the equity in the property fairly depending on the parties’ needs. The starting point is to divide the net proceeds of sale 50/50 unless an alternative agreement was made when the property was bought.
At BPE Solicitors, we recommend proactive planning to avoid potential disputes. Before purchasing a home together:
- Discuss your intentions – Have an open conversation about what happens if you separate.
- Draft a Cohabitation Agreement – This legally binding document clarifies financial contributions, ownership shares, and arrangements if the relationship ends.
- Consider a Declaration of Trust – A formal statement that sets out the exact ownership proportions of a property.
If you’re already facing a property dispute, our Family team can provide expert guidance to help resolve matters fairly and amicably.
As part of our ‘Twelve Days of Christmas’ series, we’re raising awareness of these often-overlooked issues. Avoid falling out of tune – take advice early and protect your interests. Contact us to learn more about cohabitation agreements and resolving property disputes.
12 drummers drumming – key stats from 2024
The top three family statistics for April to June 2024 are… drum roll please!
- A 17% increase in the number of both finance and private children law cases closed within the family courts.
- A 6% increase in adoption applications and orders in the equivalent time in 2023.
- A 1% decrease in the number of domestic violence remedy applications and 8% increase in the number of orders made compared to the same time period in 2023.
These statistics could demonstrate an increased efficiency in the family court and an increased desire of the family court to make orders for applicants. Time will tell… in 2025!
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.