Written by Hannah Newberry, Solicitor in our Family Law department.
When providing legal advice to clients in a family law context, it is crucial that any barriers to accessing advice are addressed early on. It is equally important that clients understand the advice we provide so they can make informed decisions. For vulnerable clients, such as those who have suffered serious injury or lack capacity, we can still find solutions within the scope of family law.
The services we can provide to vulnerable clients:
Prenuptial and post-nuptial agreements
While Prenuptial and post-nuptial agreements are not legally binding by in England and Wales, the court can still be persuaded to follow them if the parties took legal advice and all needs are met, as seen in the case of Radmacher v Granatino.
For clients who have received or expect to receive a settlement from an injury, it’s beneficial to discuss protecting their money in the event of a relationship breakdown. If they are planning to or considering marriage, it is beneficial to speak with a family lawyer to discuss how they intend to use their money and how it can be protected in the event of relationship breakdown. We also advise clients how the Court would approach financial settlement so that the proper approach is followed when the agreement is drafted.
If a client is married, they can consider a post-nuptial agreement. A post-nuptial agreement may not offer the same level of protection as a pre-nuptial agreement but if both parties have taken legal advice and the agreement clearly sets out the reasons for protecting the funds (but also ensuring that the parties are needs are met), the court is likely to accept the agreement . It is imperative that early advice is taken with a family lawyer so we can steer a vulnerable client in the right direction and provide protective family law advice.
Cohabitation agreements
Sometimes, disagreements can arise in relation to financial management and financial contributions to a property. If a client lives with a partner in a property, a cohabitation agreement can be drafted to secure certainty on each person’s responsibilities. These agreements can specify who is responsible for outgoings or renovations on a property, obligations to contribute savings or income support, and to confirm legal or beneficial interest (and potentially how much this is) in the event of sale or separation.
Clients are able to discuss their wishes and ensure there is no breakdown in communication about their existing living arrangement. This can be used more commonly for vulnerable clients in situations where their sole capital assets, income stream or settlement monies need to be specifically ringfenced out of the joint cohabitation arrangements.
Cohabitation agreements are increasingly popular as a result of cultural and financial changes, resulting in less marriages. However, a cohabitation agreement does not provide the same protection as marriage, regardless of how long the cohabitation has been taking place.
Specific issues that can be advised upon includes identifying liability for joint and sole debts and ensuring there is clarity if one party is unable to afford or is declined for any loan agreements. Additionally, the lack of entitlement to life insurance or a pension of a cohabiting person, if they were to pass away, can be significant, especially if there is some level of income dependence. Cohabitation agreements help clients assess logistics on a greater scale, and to ensure they are able to manage independently in the event of a relationship breakdown and to be aware of any right they have, if at all, to remain in the property.
Clients can discuss how trusts can form, deliberately or inadvertently. For example, if one party owns a property and the other moves in, they are able to obtain a beneficial interest even if this is not the intention. In addition, if parties buy together but the vulnerable client has paid in far more, it may be useful to explore a recording of how the different shares in the property are held within a deed of trust.
Children Act matters
Parental responsibility is always applicable for the mother and can be for the father if they are married at the time of the birth, on the birth certificate, or there is an agreement between the parents. This responsibility is not lost if a client loses capacity or incurs an injury. Vulnerable clients have the same ability to apply for parental responsibility if it cannot be agreed by consent.
In England and Wales, there is a ‘presumption of parental involvement’, meaning that a child should benefit from the involvement of both parents unless there is risk or a concern for safety. This remains even in the event of an injury or doubts as to ongoing capacity. If there are questions about whether a client is still able to care for a child, experts can be appointed to explain their view to the Court. However, the starting point assumption by the Court is that they will be able to care unless proven otherwise.
By taking into consideration the client’s specific needs, such as their ability to care / have contact independently and the age of the child, they can secure contact after a relationship breakdown even if this is not agreed by the other parent. The same avenues apply to secure contact in the event of a dispute arising, where a client can negotiate or attempt mediation, or invite the Court to make an order where Non-Court Dispute Resolution (NCDR) is not possible. The Court is open to the use of supervised and supported contact, even on a long-term basis, as assisting the client to meet the child’s needs, and the benefit they will have by maintaining this relationship, is at the forefront of the guiding Children Act principles.
Domestic abuse
Protection is available for vulnerable clients who may have suffered from harm. We can obtain injunctive relief under the Family Law Act, to prevent intimidation or harassment if there is a link between the vulnerable person and the aggressor. This relief can be in the form of a non-molestation order (protecting a person from intimidation or harassment), or an occupation order, which will allow a vulnerable person to live in a home without threat from abuse.
If the aggressor is not associated to the vulnerable client, we can make an application under the Harassment Act.
Continuing advice and support
Our family team work closely with the teams dealing with serious injuries and medical negligence, to provide early advice to protect vulnerable clients. We listen to and understand a vulnerable person’s needs, discussing how to protect their assets on a case-specific level.
However, our relationship with vulnerable clients does not stop there – we provide ongoing advice to protect them from unwanted behaviour or difficult decisions, even if there is not an irreconcilable breakdown or separation on the horizon.
