The Church does not own marriage

The Government is moving ahead with its determination to allow same sex marriage.  It is reported on the BBC that Equalities minister Lynne Featherstone stated:

"it is the government's fundamental job to reflect society and to shape the future, not stay silent where it has the power to act and change things for the better."

 

She said: "(Marriage) is owned by neither the state nor the Church, as the former Archbishop Lord Carey rightly said. 

"It is owned by the people."

Is this the end of Civil Partnership Agreements? A rather unattractive and cumbersome phrase... 

Child Abduction... whose rights prevail?

Some of the most difficult cases arise when parents separate and choose to live in different countries.  The Hague Convention - an international law which all countries in the European Union adopt states that a child who has been removed from their country of residence needs to be returned to that country and the Court of the home country will decide in which country it is best for the child to live.

Countries who sign up to the Hague Convention apply its force diligently.  There are limited defences - one of which is the risk of harm to the child if a forced return is ordered.  The best defence is that the other parent gave their permission of course.

There is a case before the Supreme Court which involves a mother who took the child from Australia and claims that she will suffer mental harm and post tramatic stress if she is made to return.  The father has offered a whole raft of promises - undertakings to the Court - with regard to paying for her accommodation, maintenance for the child and having no direct contact with her.  The case will now be heard by the Supreme Court as the mother is appealing the Court of Appeal's decision for her to return to Australia with the child. 

If a child is abducted to England, the parent who is left behind is eligible for Legal Aid in this country - no mater which country he/she is from. These hearings take place in the High Court, are highly specialised, would involve both solicitors and barristers and perhaps an interpreter. 

Child's right to see father does not mean equal time with each parent

So says Ken Clarke "meaningful relationship is not about equal division of time, but the quality of parenting received by the child", as reported in The Independent

The Government stress that they are putting the interest of children first - no change there then and that there is a belief that fathers are treated unfairly but this belief is unfounded. He said:


 "What we are doing is going to state that principle in the law, because there are far too many people who think it's not being applied - although I do think the courts do apply it and try to apply it in most cases."

Not sure the statement of the principle will acheive anything.

The norm is that a child has one home post separation. If a father wishes to have an equal division of time with his child the onus is on him to prove that it is in the child's best interest.  Judges are not averse to citing the norm as a counter argument.

The Government's response to the Family Justice Review is to encourage parents to agree, to recognise the important role each parent plays in a child's life.

They state in a forward by Kenneth Clarke and Michael Gove:

 

"It means improving the enforcement options available where one parent fails to comply with decisions made either through mediation or by a judge. And it means going further than the previous recommendations and making it clearer that there is no in-built legal bias towards either the father or the mother. We believe that where there are no significant welfare issues, we should reinforce the principle through law, that it is in the best interests of the child to have a full and continuing relationship with both parents. We are aware of the debate on this issue, and the arguments are finely balanced. However, if we are to improve the effectiveness of private family law, we firmly believe that families' confidence in its fairness must be strengthened."

 With regard to shared parenting:

• The changes in education and the introduction of parenting agreements which the review recommended will help ensure better recognition of the joint role of parents within wider society.  
• It also accepts the need to clarify and restore public confidence that the courts recognise the joint nature of parenting. It will therefore make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child's best interests. The government is mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution. It will therefore consider very carefully how legislation can be framed to ensure that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child. 

They are going to make a statement then.  Very good.  Not sure what difference that will make though.  How do you legislate for a meaningful relationship?  Will it be a contract like marriage?  What if the mother is abusive to the father and his new wife?  What if the father does not show up for contact?  What if the father is, as David Cameron describes "a deadbeat dad"?  Are these behaviours going to be punished?

As I see it, the vast majority of parents sort out their own arrangements upon separation and there does not appear to be a predominance of equal care being chosen.  Is it that the majority of families simply do not want this?  It therefore seems odd to attempt to legislate for everyone for what a minority want.

But what of that minority?  What of the father who is genuine is his desire and ability to have an  equal share in a child's day to day care?  What of the child who wants to spend equal time with each parent? Perhaps, if an application for shared care were to be made, the arrangements should commence on shared care and then it would be for the parent arguing against it to show it was not in the child's best interest and seek a change- rather than the other way round as it is at present.

Government u turn on fathers rights

Well, children's rights actually.  Rather than accept that giving father's a stronger role in law in their children's lives post separation may be harmful, the Cabinet revolt, led by Ian Duncan Smith and Nick Clegg has stated that there will be an overhaul of the Children Act 1989.

This will overturn the family justice review, which last November concluded no change needed and that increasing father's rights, even the right to maintain a meaningful relationship "would do more harm than good".

Parents are to be discouraged from going to Court and further encouraged to mediate - this objective seems to run through every proposal on family law.  Cuts in legal aid - mediate.  Can't see your children - mediate.

This news will be welcomed by lots of estranged fathers who feel that the Courts are biased against them.  It does seem odd that parental responsibility is designed to give equal rights and duties to both parents but post separation it is often the case that the mother makes unilateral decisions as to when the father can see their children.  It is also frustrating when the mother labels the father as "controlling" because he will not accept the limited contact with the children she offers.

It will be interesting to see what they actually do - anything short of an assumption of 50/50 care post separation will probably lack impact. 

It is reported in  The Daily Mail

What hapened in Family Law in 2011?

The rules changed... New Family Procedural Rules came in with the new fiscal year so ... more delay with mistakes happening ...

Reduction in Court Service... due to financial cuts

Increase in number of care applications... baby P response

Increase in the number of divorces in 2010 ( bit slow on the figures coming through)... blamed on the recession and not on affairs... survey of lawyers stated more people get divorced because they have gone off their partner not because one has had an affair.  In my experience if one party has an affair the other goes off them...  Lots of anecdotal talk about people being too worried about the financial crisis to have an affair. Really?

Increase in number of Children Act Applications for Residence and Contact... a bit like the prisons... we need a reduction in people using this resource because we cannot cope....

Somewhat coincidentally anyone contemplating litigating their finances or children matters has to go for a Mediation Assessment

Lots more Mediators around... or does it just feel like that?  Reminds me of HIPS... the main people who gain will be the training providers

Bill to withdraw Legal Aid unless domestic violence proved (via an injunction or an arrest so the law needs to be involved), a forced marriage or a threat to have your children taken into care.... the Lords are still debating this....

The COOP will be offering a nationwide divorce service via its 5000 outlets and has employed at least 2 lawyers....

No new laws for Cohabitants but a great new case from the Supreme Court which was fair on the facts but opens the door for yet more litigation..

In summary.... the numbers have increased and the facilities have reduced...











 

Change equals fear or excitement - You choose

The fear of change can paralyse some people into staying in an unhappy situation for years.

I am grateful to Rosie Hamilton-McGinty for describing the difference between fear and excitement as parallel lines - like railway tracks.  They are so close and the choice to switch is easy.

Think of a fairground ride - some are terrified and some relish the adrenalin rush. It's the same ride just a different perspective.

Divorce and separation means change and events happening that are out of your control.  You can embrace the change and look forward to a new beginning.  Perhaps a change in career as well as marital status - lots of  people use forced change to implement wanted change as well.

Some people can't cope with the change and sink into depression to avoid facing the future.  Some people are so afraid of change they use emotional blackmail to trap their partner - attempted suicide being the extreme.  Divorce is stressful and painful for everyone.  The first step in dealing with the change of separation, whether the choice is yours or not, is to accept that it is happening.  Accept that you will lose your past life.  Accept that you may be lonely, sad, fed up, lost and alone. Understand that everything changes. No one knows what lies ahead whether married or not.  Something totally unexpected will happen in the next 4 weeks which will change your life.  Mark the date in your diary and then look back in 4 weeks time and note what happened - good or bad that you did not expect.  Isn't that exciting?  We all have that life... do not fear life itself...

Planning on getting married again?

Unsurprisingly a number of people who get divorced do get married again.  If you are in that exciting group then check out SimonJohn photography.  Simon is a friend and neighbour of mine and is passionate about photography and it shows in his work.  Every wedding is individual and Simon's portraits make it so.  The shot above is one of his... need I say more?

What's a 37 inch TV worth? 18 months!!!

I am grateful to other legal bloggers for diverting my interest from Family Law to that of the sentences passed down to the first convicted rioters today.  I felt a smile of gladness when I read the Judgement. It is reported by the BBC  

So many people feel that the criminal justice system is unfair - that it is weighted in favour of the criminal - the victim is forgotten and the human rights of the perpetrator take priority.  Years ago I heard the Chief of  Police from one of the Southern Counties stating, tongue in cheek, that a return to Botany Bay may be in order to redress the balance.

Criminal law is about four things:

1.  Punishment or retribution

2.  Prevention of vigilantism - people must have faith that the criminal justice system works

3.  Deterrent - both to the perpetrator and others

4.  Protection of the public

Matrimonial law is about one thing:

Dividing the assets according to judicial discretion.

There is no punishment or retribution.

So many people feel that the law relating to divorce is unfair and rewards the wrong doer.

So often a case is based on need and behaviour will be ignored unless it has the gasp factor. We do mean shocking, for example, the husband shot the wife and she could not work so needed extra help from him but he was sent to prison so had no income - therefore she needed his capital to replace it.

Getting past the disbelief of the unfairness of it all is the first step for many people. Acceptance of the process may then result in the parties negotiating fairly - perhaps via mediation.... our new site is launched today... 

Still wondering if it's worth having a pre nuptial agreement?

Let this be a lesson to you.

Britain's biggest divorce payout has been reported in The Guardian The divorce of Russian Oligarch Boris Berezovsky resulted in a payout to his ex wife estimated to be in excess of  £100 million.

They did not have a pre nuptial agreement....