Fancy Going on a Course to Save your marriage?

According to The Telegraph the Government are now considering sending separating couples on a course to show them the impact their divorce will have on their children. Apparently it works in Norway.

What is the infidelity rate in Norway?

I know it's dark a lot and people are good at handicrafts, skating and other winter sports.

What is the obesity rate like in Norway?

What about the use of internet porn and computer addiction?

What about the rate of alcohol consumption and domestic violence?

I imagine their culture is very different to ours and taking one statistic out of context may not work here.

If the Government wants to reduce divorce and the breakdown in cohabitation in this country it need to look at its own policies. Why do so many people have children they cannot afford? Why are single mothers better off without a partner due to the generous tax credits system?

I spoke with a lawyer who specialises in legal aid last week and her comments were distressing indeed. Stop people having children she said. Mothers who have their fifth child when the others have already been taken into care are surely causing themselves distress as well as their children? Were there less of these pregnancies when everyone was scared of aids?

People do not make the decision to divorce lightly and their reasons are usually valid and genuine. Research now suggests that adult children of divorce fare better than those in homes where their parents are always fighting. Surely the real challenge is to make people be nicer to each other?

Want a divorce? Put on some weight!!!

Apparently men go off women who add girth... even if it is only half a stone as reported in the Daily Mail

Is that surprising? Look at how many beautiful women are married to less beautiful men.

No doubt there will be a follow up report saying that women go off men who lose their money.

Would that surprise you?

Some people marry for love

Some people marry for companionship

Some people marry for money

Some people marry for looks

Some people marry for their parents

Some people marry for their children

Some people marry for... add in your own story

Why does the world pretend that everyone marries for love and then act surprised when someone bales out because the bargain they struck has been broken?

Whatever the reasons people marry, when they divorce it is painful and society needs to offer more support and guidance as opposed to judgement and condemnation. Remember in every divorce there is usually one party who is forced down that road, who would like to remain married but who is rejected and hurt and then condemned as selfish and a quitter by the rest of society.

Marriages should have regular MOT's like cars then perhaps more could be saved!!

Merry Christmas everybody!!!!

Rise in numbers of women killed in domestic violence

101 women were killed by their partners or ex partners last year according to The Guardian

The article is interesting asking why people stay in abusive relationships... the stark truth is fear, women and children are most at risk at the point of leaving.

Unfortunately wife beaters don't have a tattoo on their forehead... maybe they should. Maybe this would be a cheaper and more effective punishment than prison. Use semi permanent make up so that it only lasts 3 to 5 years.

Women become involved with abusers who are initially charming and caring until there is a catalyst for change.

What of the children who witness this abuse? The Government is trying to focus on the problem. Trying to help victims can be frustrating when they go back to the abuser time and again. Trying to stop the cycle of abuse is the challenge. It is so hard to help people. I knew someone 20 years ago who was so badly beaten up by her husband, broken jaw and teeth knocked out that she told the hospital she had been in a car accident. I heard recently that she is still with her husband.

Judge says Punish Mothers who Refuse Fathers Contact with their Children

A Family Law Judge talks of 3 strikes and you are out in The Daily Mail

In other words if a mother refuses Contact with the father and defies a Court Order 3 times the children are moved to live with the father.

Problems with this approach:

1. Children suffer more - it does not work if the child is adamant that he wishes to remain with the mother and have no contact with the father. A recent case put a child in foster care and then had to return him to his mother as the child was so depressed.

2. Fathers who do not want their children to live with them - perhaps they have no room - the mother got the house maybe to accommodate the children in the divorce and the father has work commitments.

3. There could be valid reasons why Contact is being flouted

This is yet another punitive approach.

More resources should be channelled towards educating the parents - such as the Parenting Courses now available via the Courts.

What about a general acceptance that sometimes adult issues prevent children having a sustained and healthy relationship with either parent and that some people are just not very nice? After all if they do that to their own children how do they treat strangers?

There seems to be a focus in our society on people pursuing their own selfish ends and an obsession with their rights.

My suggestion:

There should be a presumption of Contact on Separation of at least every other weekend and the onus should be on the resident parent to show why this should not take place. Let us not forget how damaging and prevalent Domestic Violence is and the Courts should be able to assess the risk of this. After all that is their job!

Is it worth getting a Consent Order?

Yes if you want peace of mind!!

Getting divorced is not enough.

A lottery winner paid his ex wife who he had been divorced from for 10 years £2 million in an out of Court settlement as reported in The Daily Mail

What is a Consent Order?

It is the legal document which finalises financial arrangements on Divorce. It is the only way to obtain finality and to prevent your spouse having a future claim it needs a clean break clause.

I explain it more fully here Bastows Divorce Solicitors

Want to set aside your divorce settlement?

A father and son are in Court arguing over whether the £5.1 million paid to the deceased mother upon divorce should be varied. In this tragic case as reported in The Independent the mother died months after the divorce case was finalised, with the father retaining the business assets. He is now being sued for potentially £3 million and claims that this is an intervening event, that his wife is now dead and does not need the money and that the claim relates to when they were joint owners ( He may well have indemnified her on that point as would be a normal precaution).

Life is unpredictable. The wife dying within months is potentially an intervening event. The damages claim is potentially an intervening event. The matter was brought to the Court's attention early. Is it fair to amend? The son says no. The father took on the risk and potential gains of the business.

Glad he's not my son.

The tragedy of this case is that the father and son are fighting over money. I can never imagine trying to get money from my father. I can never imagine my children trying to get money from me. Relationships like that are worth more than £5 million pounds.

Family Legal Aid to be Cut

So Ken Clarke announced today no more Legal Aid for Private Family Law cases unless they involve domestic violence, forced marriage or risk of children being taken into care as reported in The Guardian

What does this mean to individuals seeking divorce who cannot afford to instruct a solicitor?

No Legal Representation?

What does this mean to the solicitors who previously offered Legal Aid and can no longer offer the above services? Maybe they will agree to do the work at Legal Aid rates provided they get their fees from any monies gained?

Maybe all divorcing couples will be forced to Mediate unless there is Domestic Violence?

What will happen when Alternative Business Structures enter the arena next October?

Free fall in prices maybe?

Thinking of washing less? Want a divorce?

This article in today's Guardian reports that a growing number of people are washing less! A new ultimatum may result:

"It's me or the planet!!!"

I predict an increase in divorce if this environmentally friendly soap dodging catches on!!

PRE-NUPTIAL AGREEMENTS CARRY MORE LEGAL CLOUT IN ENGLAND AND WALES

The Supreme Court has ruled that Pre-Nuptial Agreements, entered into willingly by both parties are to be given decisive weight unless there are factors which render it unfair as reported throughout the press and the attached is Chanel 4's version.

What this means for the man in the street in England and Wales is that there is now more certainty attached to entering into a Pre-Nuptial Agreement and marriage. Previously the Court would consider a Pre-Nuptial Agreement as one the factors of the case. Now there is legal precedent from the Supreme Court which the lower courts are obliged to follow which states that it will be a decisive factor unless there are special circumstances. Special circumstances could be one party losing their ability to work during the marriage or giving up a successful career to look after the family.

The flip side is that any couple which does not enter into a Pre-Nuptial Agreement from now on will probably find it more difficult to argue that the lesser earning spouse should receive less. The facility is now there to limit their claim so why not use it?

Is Romance now dead? This brings our family law more into line with Europe and America and the real world.

If you have more money than your future spouse ask yourself:

Would my intended be offended if I asked her to sign a Pre-Nuptial Agreement?

If the answer is yes the next question is:

Why?

And then:

Is my intended offended because I am suggesting we may divorce and she may seek to have an equal share of my money?

If the answer is yes the next question has to be:

Why is my intended marrying me?

And then:

Is it for me or my money?

If you don't want to know the answer then the risk is yours!

This case should also give more weight to Post-Nuptial Agreements - those entered into after marriage. The same questions can be asked as above but the tense needs to change and it is a bit like tying a horse up after it has bolted. Anyone who married for money is hardly likely to sign an agreement removing their right to make a claim but you may just want to know where you stand!!

Feuding parents forced to mediate?

So the Government is considering making fighting parents mediate before they can litigate. Not everyone agrees this is a good idea according to the Law Society Gazette.

There is an argument that the state should not waste it's resources allowing parents to battle over the arrangements for their children.

When parents separate 40% of fathers cease having contact with their child within 12 months. Often the reason cited is the mother's behaviour towards the father. There are many cases where it is apparent that the mother is indeed seeking to undermine the child's relationship with the father.

There are also many cases where the father seeks to continue bullying the mother post separation and uses the child as a means of doing so. In both these scenarios the unreasonable parent does not care what harm they cause their child and indeed would refuse to acknowledge it. There are none so blind as those who do not wish to see.

How can mediation help these unreasonable, selfish people come to understand that what they are doing is harmful to their child and they should stop? The Court has started ordering parents to go on Parenting Classes. The feedback has been positive but how to keep up the momentum? Plus, why tar all parents with the same brush? Some are dragged into Court by the other party who is behaving unfairly. Some are forced to use the Courts to make the other be reasonable.

In a recent Court case the father had told the child that the mother was unfair and had texted the mother to say that the child would grow up to hate her. The mother asked the Court to ensure that the child was not told about the proceedings and the father's legal advisor stated that the child should be given age appropriate information. No the child should not!!! It is never appropriate to tell your child anything bad about the other parent, unless the child is in danger.

I think the Courts should make it standard that parents do not discuss each other negatively or the proceedings with their children and if they do serious sanctions will follow.

Telling your child that daddy does not love him because he has gone on holiday with his girlfriend is cruel to your child. Telling your child that mummy is unfair because she will not drive 2 hours to drop her off is unfair to your child. Yes you may manage to get your child to side with you and dislike their other parent but why would you want to do that to your own child? Getting people to appreciate their responsibilities as parents is the crucial step. Most everyone claims to love their own children. Unfortunately not everyone behaves as if they do.

What Happens If My Spouse Goes Bankrupt?

If your spouse is adjudged bankrupt whilst Divorce Proceedings are ongoing then any subsequent agreement concerning the Matrimonial Finances can be set aside by the Trustee in Bankruptcy. Any transfer of property made by the bankrupt would be void except where it is made with the consent of the Court. What this means is that a Consent Order needs to be finalised in order to escape the Trustee in Bankruptcy seeking to reverse any such transfer.

Frequently in Matrimonial Finances the equity in the Former Matrimonial Home is not distributed on an equal basis. If one party receives more than 50% and the other party subsequently goes bankrupt then there is a risk that the Trustee in Bankruptcy will seek to have that transfer of the additional percentage set aside. It is important to act quickly and ensure that the financial matters on Divorce are concluded as swiftly as possible.

In a recent Appeal Warwick (Formerly Yarwood) v Trustee in Bankruptcy of Clive Graham Yarwood [2010] EWHC 2272 (Ch) the High Court ordered that the transfer to the wife of an additional 25% of the property should be given over to the trustees dealing with the husband's bankruptcy as a transfer of the 25% share had not taken place prior to the bankruptcy.

There are other cases which have caused alarm with one spouse deliberately going bankrupt in order to avoid the other's claim. In this instance the reverse happens and there is an attempt to declare the Bankruptcy void as to preventing the transfer of the property to the other spouse.

It is important to take legal advice on all issues when contemplating Divorce particularly if one of the parties is potentially insolvent.

Are the Family Courts biased against fathers?

This article in The Observer this Sunday suggests that they are and is well worth a read.

If you are a father seeking contact with your child the onus is on you to prove that increased time with the father is in the child's best interest. A visit to CAFCASS website describes what Residence and Contact are, and what the Courts are required to consider. It states that CAFCASS are neutral and there is no bias towards either parent.

The public policy has been that it is in the child's best interest to live with one parent and have regular contact with the other. Some states in America, such as Florida, take a different approach and the starting position on separation is 50/50. There has been an increase in Shared Residence Orders, ie the children are to live with both parents and not necessarily on a 50/50 basis.

For all you fathers out there who think this is too hard to achieve His Honour Mr Justice Mostyn gave judgement in Re AR (A child: Relocation) (2010 EWHC 1346 (Fam) at para 52

"I am clearly of the view that a joint or shared residence order should be made. Indeed, such an order is nowadays the rule rather that the exception even when the quantum of care undertaken by each parent is decidedly unequal. There is very good reason why such orders should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order, which was one of the reasons that we were ridden of the notions of Custody and control by the Act of 1989."

Would you stay with a cheat?

Seems it depends what else he/she has going for him. According to this article in the Daily Mail one wealthy surrey housewife has decided to stay with her husband as she cannot give up the lifestyle. Methinks they interviewed her too early. Even if she divorced him, it appears she would still have a lifestyle in excess of what she could have attained on her own steam without him.

Lots of people choose money and misery. Even more people choose money and misery initially. People do not seek happiness, they seek the least unhappy choice. Only when they get to the stage of realising that the status quo is the most unhappy option do they choose to leave.

For some it is a lifestyle choice. Some people regret staying married, some people regret getting divorced. I can think of a few high profile celebrities who have gone off the radar since their divorce, mentioning no names but they have gone to extremes as far as self promotion is concerned and they are still ignored!

If you are able to forgive your partner and move on then staying married may be the right option. What is important is to work out what you want. Implementing it is not easy but at least you are working towards your dreams.

What do you want?

Feel Like Killing Your Spouse?

Some people are full of rage. As The Guardian reports a man from Kentucky killed his wife and 5 others because he did not like the way she cooked his eggs. Mad definitely! Driven to it? Who knows. Were there warning signs? A neighbour is reported as saying that "he was always trouble".

How do you protect yourself in a violent relationship? If your safety is at risk leave immediately. Sadly, in all these cases it appears that there were warning signs, but people ignore them, or are too scared to act.

I know someone who resigned from his job because he could not live with the stress of worrying about being made redundant. I also know someone who left her husband and her home in her nightie in the middle of the night with nothing. Which of the above two would you say acted irrationally?

If you are in fear of your partner there are steps you can take to have your partner removed from the property. However, sometimes there simply is not time and it should be obvious that life itself is worth more than getting a better financial deal.

Lots of people put up with lots and lots of abuse. Some never report it to the Police and by the time they do it has escalated.

The advice is always the same:

Call the Police and go to the doctors to report any injuries and photograph the injuries in case you need to take civil action later.

The Police are there to help and have been told not to tolerate domestic violence.

If you have any suspicion that your partner may lose control and you cannot predict the consequences then remove yourself from the danger immediately.

Has Divorce got Easier?

Is divorce now acceptable? Expected even? It is certainly more affordable with the tax credits system. Some divorcing women are better off given the tax credit system, provided they have at least 2 children. Even if they only work 16 hours a week and earn only £500.00 per month, their tax credits are likely to be higher than their income and they get child support from their ex husband.

The tax credit system ignores the level of maintenance you receive from your ex, so in this respect it is non means tested.

The system encourages people to work only 16 hours. An increase in earned income can have a direct impact on the level of tax credits received so it is a disincentive for people to work full time.

What else? Oh yes, the non earning spouse is also usually entitled to legal aid.

There are reports that legal aid will no longer be available for Ancillary Relief (the financial aspect of divorce) and that tax credits are about to be revamped. David Cameron may well support marriage by the detour of making divorce financially unpalatable!!

Remember your wedding day?

If more people could focus on the time when they were madly in love there would be less divorce. Next time your spouse drives you mad remember his wedding speech... or perhaps not. I read somewhere that there was a fight at 1 in 8 weddings... and there are some hilarious videos on you tube if you are fed up or bored.

List 3 nice things your partner has done for you today.

List 3 nice things your partner has done for you this week.

Still can't think of anything? Ok list 3 nice things you have done for your partner today, this week or even this month. Maybe you are contributing just as much to the disintegration of your relationship.

You can change your own behaviour far easier than you can influence anyone else's. So if things are tough try changing your own behaviour first. Can't be bothered? Try calling me!!!

There Is Something To Be Said For Getting On With It!!

Some people wait for their parents to die!

Some wait for the kids to leave home...

Some wait for the economy to improve...

Some even wait for their spouse to die!!!

Some wait for their relationship to improve....

Some wait until they meet someone else...

Some even wait for their partner to decide...

What are you waiting for?

The secret to a long and happy marriage!!

I met a lovely, charming American couple in Paris this week who had been married for 57 years. They had 5 adult children, and had both had sufficiently successful careers to fund their extensive European travel.

What is your secret I asked?

Tenacity... he replied.

Not worrying about the small stuff... she replied.

Hmmm...

Not easy then.

Perhaps before throwing away a marriage people should write a list of the issues...

The Ethics of Dating During Divorce

People often ask:

“Can I date now that we’ve started divorce proceedings?”

The answer most often is:

“No”

Amicable divorces can be turned into acrimonious divorces overnight if your spouse finds out. At the very least it will complicate financial issues and lead to questions concerning prospective cohabitation. It can also affect the divorce itself, because behaviour after divorce proceedings have commenced is relevant.

Divorce is one of the most traumatic events an adult can go through and as such has an impact on your own, and your spouse’s behaviour. So, even if your spouse has left you for someone else, expect a reaction if you start the dating game yourself. Divorce turns the most rational, fair minded, individual into an irrational twin.

ARE THERE CHILDREN OF THE MARRIAGE?

If so, they will not want to know about any new person in your life. A suitable period of at least six months after the divorce is finalised is fair to them. Do not burden your children, no matter how mature, with your emotional and financial worries. They will not be able to support you in this and their insecurity will be magnified by your confidences. Expect regression and bad behaviour, or worse, the perfectly behaved child desperately trying to make everything right.

WHAT TO DO?

Even if you have met your soul mate (or you think you have) tact, discretion, diplomacy and patience are called for. Explain the circumstances and ask them to wait. Concentrate your efforts on resolving matters with your spouse as quickly and amicably as possible. Then you are free, to do as you please and get back into forging your future.

Divorce Epidemic?

The Daily Mail reports that having your friends divorcing encourages you to do the same.

There is a theory that you become like the 5 people you spend the most time with! I have found this to be true in my own life and only after you have got rid of negative influences such as gossips and heavy drinkers do you realise how much they influenced your own behaviour.

Behaviour is a habit. Eating, thinking, exercising, all can be changed dramatically after three weeks of making yourself act differently, suddenly it will require no effort whatsoever.

Want to change something? The hardest thing is the first small step - after that it is easy. The next time someone wants to talk negatively about someone else - change the subject. Do you really want to spend any of your time on this planet discussing other people? It's boring and will drag you down. Focus instead on people you admire. List five. Can't think of five? Time to change your friends!!!

How do the courts deal with Parental Alienation?

A recent case has shown how impossible it is to change a child who has decided he wants nothing to do with one of his parents. The Independent reports in the case of Re S that a heartbroken father has given up and has agreed by Consent that the child, who is 12, should live with his mother.

The judge had ordered a transfer of Residence and, given the child's refusal and extreme hostility towards his father, he was placed in foster care. There was then concern that the child was becoming depressed - was anyone surprised? The child also refused to communicate with his father and his extended family and was uncooperative on scheduled visits.

The Court was of the view that the hostility towards his father had been created by the child's mother, and the child would suffer less harm if he was made to live with the father. However, it was too late, the child was suffering significantly in care and he was allowed to go back to live with his mother. No doubt she was overjoyed!! The father now only has indirect contact.

The above case has been to the Court of Appeal, has taken up a lot of Court time and money and has been an experiment in social engineering. The parents did not live near to each other, so the boy was to lose touch with his whole peer group as well, just as he was approaching teenage years. The distance of two hours, from everyone he held dear at the age of 12 was predictably too much to bear. Perhaps, in future, a parent seeking a transfer of residence should be ordered to move to the child's locality?

There is a small ray of hope. The boy's Guardian in her email to the judge added that the boy stated " this is not the end" and that he would consider seeing his father after his GCSE's. A lot of pain, time and effort expended by a large group of professionals resulting in some small progress then.

So that's why you want a divorce!

The Daily Mail reports that "ambivalence may be the reason many people divorce. The article states that people cannot cope with conflicting emotions - one minute they think their partner is perfect and the next they hate them and can't stand the sight of them. The solution they suggest is to work through these emotions - which will pass and accept your partner and relationship and expect matters to improve.

Sounds a bit daft to me. When you get to the stage where you hate the other person coming through the door at night, seems mighty unlikely that that emotion will simply pass. A lot of people try to weather the storm and, by the time they leave the relationship, sometimes years after, they could not bear the sight of their partner!! The relationship is virtually irretrievable. It is also not good for children to live in an atmosphere of resentment and dislike. I know some people who are waiting for their spouse to die. How sad is that? I know one woman who died first! How even sadder is that?

Breakdown in Cohabitation?

Lawyers are receiving more enquiries from cohabiting couples seeking to end their relationship as reported in The Law Society Gazette. There has been a reported increase in Children Act Applications to preserve the family home for the children.

The recession is to blame apparently. Given that cohabitation is more likely to break down than marriage, I consider that the main difference now is that people are seeking alternative legal solutions. It used to be rare to make a Children Act Application for one party to remain in the home until the children are 18. Now, it appears the standard advice to the resident parent. The previous Government put on hold any change to Cohabitation Law (ie there is still no such thing) stating that they would observe the success or otherwise of the system in Scotland.

If you are unmarried, it is possible to make an application to the Court to delay the sale of the home until the youngest child is 18, only then will the non resident partner get his share of the equity upon sale. Success is dependent upon the individual facts of the case and an unsuccessful application can result in a costs order being made against you.

What is the advice to give to people in the meantime:

1. If you are the non earning partner and have children or not, get married.

2. If you are the earning partner, with children or not, do not get married. If you do get married have a Pre-Nuptial Agreement.
Some solicitors are suggesting that Civil Partnership Agreements should be extended to heterosexual couples. Why? My understanding of a Civil Partnership Agreement is that it is a marriage in everything but name, given the religious sensitivities, and that this Government may well relabel it as Marriage. So cohabitees will be able to take advantage of the new law and ...... get married!!!

Do you secretly want your children to hate your ex?

There is such a thing as covert parental alienation. It is subtle, but real never the less.

Examples:

1. Refusing to let your child speak to the other parent when he calls such excuses as " he's doing homework" or "watching TV"

2. Arranging fun things to do as a tempting alternative when the child should be with the other parent.

3. Suggesting that you will be lonely and sad when the child is with the other parent.

4. Refusing to be flexible on contact arrangements.

5. Making holiday arrangements difficult.

6. Refusing to let the child go for contact if he has the slightest health issue, such as a cold.

These subtle alienation techniques can rapidly degenerate into hostile parenting:

You know when you are being unreasonable but here a few obvious examples which cause children extreme emotional damage and harm:

1. Undermining and criticising the other parent to the child.

2. Blaming the other parent for your poor financial situation and comparing life styles " If your dad loved you he'd take you on holiday instead of his girlfriend ".

3. Interfering in contact - continually ringing the child to check he is ok and hence suggesting to the child that there is a possibility his father (and it is usually the father) cannot care for him properly.

4. Preventing the child spending important memorable days such as Fathers day, birthdays and Christmas with the father.

5. Involving the child in the divorce and sharing details of the settlement and negotiations with the child.

6. Asking the child to lie to the other parent.

7. Interrogating the child as to what the other parent is doing.

The list can run to over 40 different hostile behaviours, and the parent typically succeeds in destroying a previously good, loving relationship and causing extensive emotional harm to their own child, whilst insisting that it is all the fault of their ex.

Research into adults who have lived through such abuse can be compared to cult survivors. Those who work it out for themselves have better outcomes, usually reject the hostile parent and with therapy are able to escape the cycle for their own children.

One scary outcome of extensive research is that a number of the adults aligned themselves with the parent with power, not the parent best able to look after their well being and a significant percentage reported sexual, physical and emotional abuse at the hands of the alienating parent.

Still want to tell your child his dad is a loser?

Is it worth having a Pre-Nuptial Agreement?

Yes!!!!

As the law stands they are one of the factors that the Court can take into account in deciding what is a fair settlement based on the individual case facts.

If you are the party with assets it is better to have one than not.

There is a Case which the Supreme Court is about to announce it's judgement on - Radmacher - a German heiress and this may tip the balance either way. There is a general expectation that the Supreme Court will make Pre-Nuptial Agreements more likely to be enforceable because Judges have spoken out suggesting that Parliament should do so. However, I will not be placing a bet on the outcome...

There are lots of people around, divorced and unhappy who wish that they were binding, and who probably also wish that they had taken one out and that they had never married!! No doubt there are an equal amount of people around, pleased with their settlement who are also pleased that they were not binding!!!

The level of uncertainty in English Matrimonial Law is exacerbated by the current situation!! David Cameron wants to encourage and support marriage, but must understand that a lot of people choose not to marry because of the potential financial loss they face if the relationship ends. Endorsing Pre-Nuptial Agreements might help increase marriage! I would bet on that!!

Thinking of stealing and copying your ex's documents?

Some people going through divorce and separation obtain copies of their ex partner's financial documents without permission of their ex in the interest of "self help". The justification being that the Family Courts require full financial disclosure in order to do their job properly and there is a genuine suspicion that the other party will seek to mislead the Court by hiding details of their true financial position.

The case of Imerman and Tchenguiz at the Court of Appeal reported in The Evening Standard has sent out a warning bell to all such self helpers. The Tchenguiz brothers shared an office with Mr Imerman, their sister's soon to be ex husband. When the waring couple started arguing over a £250,000 Rolls Royce, which Mr Imerman removed from his wife's possession when it was being serviced, her brothers then copied thousands of Mr Imerman's documents from his computer. So far so exciting!!!!

Last year The High Court ordered the information to be returned to Mr Imerman without anyone reading it. Today the Court Of Appeal has confirmed this order. They stated that the practice in Family Courts (Hildebrand - named after a case) cannot be relied upon to protect criminal conduct or conduct which the other party could sue you for.

The case may yet go to the Supreme Court but for now the advice is - do not do anything which leaves you open to a criminal action - interfering with your spouse's mail, hacking into your spouse's password protected computer, removing documents. Pretty obvious stuff really....

So More people are divorcing?

Yet another boring article by the Daily Mail this time claiming that the Divorce rate is about to rise as the recession is ending. It says that Divorce rates fell due to the recession. Have they considered that the annual total may have fallen due to the reduction in marriages over the past decades?

I have noticed no difference. The Courts are still overloaded and this will get worse with the proposed budget cuts.

Divorce results in financial loss but is chosen because the alternative, staying together, would result in more misery.

I have never met anyone who says they can't afford to get divorced... But I have met lots of people who say they can't afford to get married!!!! The decision to divorce is a complex one, normally an emotional one, and the financial impact on lifestyle is just one of the factors to be taken into consideration. Maybe more people are delaying waiting for financial matters to improve... maybe, maybe not.

The only way to tell is to offer a real financial incentive to stay together, the working tax credit system creates a viable alternative for many women who would otherwise be on benefits or stuck in a miserable marriage. Some women are financially better off divorced, by working only 16 hours a week and taking into account their entitlement to tax credits together with the child maintenance they receive, than they were married!! This is a financial incentive to divorce and was created by the last Government to encourage single parents to work. Instead, I consider that it has increased the number of households dependent on the State, as many of these women may have remained in their marriages.

Oh dear, a Government that set out to destroy child poverty may simply have encouraged more divorce!!!

Ready to Leave?

I went out for a meal in the West End on Saturday night. It cost £80.00 for two including tip, the place was packed and the food and atmosphere were great. I went out for a meal to a Chinese restaurant in Hampshire last night it cost £90.00. We were the only two people in there and the food was mediocre. Which restaurant would you think was going to survive? I would say the London one, but what if their business rates and lease were costing more than they turned over?

What has this got to do with divorce? Just that everything is not as it seems on the outside. The Chinese restaurant probably should go out of business, it is overpriced, the food is not good and the result is an empty restaurant. It is a family run business so their overheads are probably low and they are all supporting each other. We all know marriages that struggle on and couples co existing in unhappiness for the sake of what? Their extended families? Money? Security? Fear of change?

There are also marriages which appear grounded but suddenly implode - think Tiger Woods.

Getting divorced is extremely stressful and can result in an avalanche of loss:

Loss of companionship
Loss of security
Loss of home
Loss of social life
Loss of status
Loss of mutual friends loyal to your ex
Loss of money

It can also result in

Loss of feeling that life is passing you by
Loss of living in a miserable atmosphere
Loss of irritation
Loss of having to compromise
Loss of fear
Loss of boredom

Unless of course you are prone to bitterness!!!

Will Mediation work for me?

Mediation is suitable for most separating couples. However, if there are issues around domestic violence or if one party is bullied or oppressed by the other, then Mediation may not be the answer.

Also, some people feel too raw in the divorce process, too upset and perhaps unable to sit in the same room as their partner.

In some circumstances, Mediation can be conducted in separate rooms but mediation is a voluntary process and both parties need to agree to proceed on this basis.

A Mediated Agreement is not legally binding and either party can withdraw from it prior to the Consent Order being approved by the Court. However, most people having gone through Mediation, are prepared to endorse their agreement as they feel a level of commitment to it.

It is always advisable to have a Solicitor assisting throughout the Mediation Process. The Mediator is there to supply details of the options available. However, the parties' individual Solicitors can advise them of their legal rights, obligations and expectations and ensure that they are aware of this prior to participating in Mediation.

The Solicitors should also advise the parties on the terms of the Mediated Agreement prior to filing it with the Court.

Does Mediation work?

Given that the Courts do not collect statistics as to how many Consent Orders are obtained via Mediation or otherwise, it is difficult to assess how successful Mediation is. Mediators are not advised after they have completed their task whether the couple have gone to have their agreement ratified into a Consent Order. It is the public policy to encourage Mediation and more and more couples appear to be choosing this route. With regard to Children Act Applications some Courts have a pilot system where the parties are actively encouraged to Mediate and a Mediator is available at Court to assist them at the First Appointment.

The public policy in Children Matters is that is better not to have an Order. A Court Order will only be given if it is judged to be in the child's best interests to do so. The policy is that it is in a child's best interests for their Parents to work out their own arrangements for that child, which is why couples are encouraged to Mediate in order to assist in this process.

CAPITAL - THE TYPE OF ORDERS THE COURT CAN MAKE

In a divorce the legal ownership of assets can be distributed by the Courts in the following ways:-

I) Lump Sum Order

The Court can order one spouse to transfer a lump sum to another.

II) Property Transfer Order

The Court can order a property to be sold or transferred from one spouse to another and transferred from the joint names of the couple into the sole name of the Husband or Wife.

THE TYPE OF PROPERTY WHICH THE COURT IS CONCERNED WITH

I) Houses

Normally this entails the former matrimonial home but more and more couples own more than one property, either as a holiday home or buy to let property.

There are important Capital Gains Tax considerations to be taken into account in the transfer of assets on divorce.

II) Insurance Policies

Endowment policies have a surrender value which the Court will include in the division.

III) Shares

IV) Business Interests

V) Personal possessions with an individual value of more than £500.

Normally individuals keep their personal possessions but it depends on the relative value and need. If a Wife's jewellery collection makes up the majority of a couple's wealth, then the Husband's needs will be taken into account in considering re-distribution.

Can I Enforce an Agreement?

Perhaps. Even a Private Agreement, such as a verbal Agreement to "split everything equally". If it is deemed fair to hold both parties to the Agreement then the court will uphold it, even if it would have ordered a different settlement.

What is important in enforcing an Agreement?

Were the parties on an equal footing? i.e. one was not coerced by the other
Was there full and frank disclosure about all the financial circumstances?
Did both parties have legal advice?
Was there a mistake?
Was there fraud?
The conduct of both parties before and after the Agreement
Has something happened since the Agreement which invalidates it?
Has there been delay?
Has either party relied on the Agreement and acted upon it?
Were the parties actually in Agreement?

All of the above is dependant upon the individual facts of the case and one party can often believe they are in accord when they are not... or they can be deliberately misled by their ex partner...

Beckhams to divorce?

Are the rumours true? the Daily Mail has made the most of this story.

Often celebrity couples deny rumours... and then separate a few months later.

The Beckham split or non-split story has been around for a number of years.

I have never heard rumours that the Queen and Prince Philip are going to divorce but there were lots about Charles and Diana.

It is often the people you least expect who decide to separate.. giving an outward appearance of harmony and then shocking their acquaintances, for example, Chris Hulme.

Everyone who gets divorced receives unwanted notice, comments and attention. It is acceptable to tell over-inquisitive people that you do not want to talk about it!! However, maintaining a dignified silence may be hard when you want the world to know how awful your spouse has been. Remember that some people feed off other's misery.

Finally, if you are still talking about your divorce 2 years later then it is probably wise to think about getting some counselling...

Does Mediation Work?

The Courts and the Government are trying to encourage couples to Mediate upon separation.

DOES IT WORK?

There are no statistics to confirm how successful Mediation is. When a couple obtain a Mediated Agreement they then take it to a Solicitor who converts it into a Consent Order which is filed with the Court.

However the Courts do not keep statistics as to how many Consent Orders are agreed via Mediation. Unfortunately, Mediators often say that once they have completed a Mediated Agreement, that is the last contact they have with their clients. They have no feedback as to whether the agreement was ratified into a Consent Order.

Mediators have records of how many of their own Mediations are successful and how many breakdown. The statistics alone do not reveal how successful Mediation is given the lack of follow-through from the Courts.

One thing is certain, Mediation is being more and more actively encouraged. There are many more qualified Mediators. Indeed, most Family Law Solicitors are encouraged to become Mediators as well.

I myself am a qualified Mediator and find the process of Mediation very different to that of the role of a Divorce Solicitor.

The key points of Mediation are as follows:-

1. It is voluntary. Couples choose to Mediate and can choose to cease Mediating at any stage of the process.

2. The Mediator is an impartial third party who is there to assist the couples to negotiate their own agreement. The Mediator cannot give legal advice.

3. The Mediated Agreement is not legally binding. In order to make it into a legally binding agreement, it is necessary to have it converted into a Consent Order and filed with the Court.

4. The purpose of Mediation is to obtain an agreement at lower cost, with the least stress, anxiety and acrimony. It is particularly suitable for dealing with Children Act Applications.

It is important to remember that a Mediator cannot give legal advice and, therefore, parties are advised to have their own Solicitor representing them throughout the process. Solicitors should cease attempting to negotiate whilst Mediation is ongoing, but should meet with their client at each stage to advise them as to their legal rights and obligations.

Remember too that you can instruct a Mediator direct - you do not need a referral via a solicitor.

I blogged recently about UGLIMEDIATION they offer a new service in that they will Mediate over the phone - this is especially useful for couples who live some distance apart or who do not want to meet up but do want to resolve their differences with as little acrimony as possible!!!

What is Mediation?

I am a Mediator as well as a Solicitor - the 2 roles are very different!!!

Mediation is a process through which an independent third party who is neutral and normally a fully qualified solicitor helps the parties to obtain a negotiated settlement by agreement.

The Mediator's role is to assist the parties in obtaining their own agreement. The Mediator cannot give legal advice and does not represent either party.

The Mediator can outline the options available to the parties. However, it is for the parties to choose how they wish to proceed.

The process normally takes at least four sessions. Initially there is an intake session where the Mediator meets the parties individually to assess suitability for mediation. The first meeting will outline what the Mediator aims to achieve and answer any initial queries. At the second session, both parties will be expected to supplied and exchanged full financial disclosure. This means a full list of their assets and liabilities, including Pensions, Credit Card debts, individual items worth more than £500 and 12 months' copy Bank Statements.

All income details are also required, including three months' payslips and the lastest P60 and Tax Returns. If there is Company involved, then two years' accounts will also be required.

If there are large Pension assets or trusts, sometimes an independent expert's Report will be required prior to proceeding with mediation.

Once the parties have full financial disclosure, the Mediator can then produce an Asset Schedule and the purpose of the following session is to assist the parties in negotiating an agreement which they can both live with.

Mediation does not necessarily obtain the best scenario for either party, but it obtains a compromise which both parties are prepared to stick to.

Once a Mediated Agreement (Memorandum of Understanding) is drawn up it then needs to be given to the parties' Solicitors to be drafted into a Consent Order. Once Decree Nisi has been obtained, the Consent Order can be filed with the Court and becomes legally binding upon Decree Absolute.

What is Ugli mediation?

Anyone Contemplating getting divorced may be interested in a new resource:

Uglimediation

The new approach offered by UgliMediation is that they will mediate with you over the phone.

It is therefore now possible to mediate even if you and your partner are in different locations, or if you do not want to be in the same building as your ex – not so unusual a reaction.

More details will be available at the Divorce Workshops

formspring.me

Ask me anything http://formspring.me/divorcedivorce

formspring.me

Ask me anything http://formspring.me/divorcedivorce

What Happens at a Divorce Workshop?

I have set up a series of divorce workshops to answer the questions you need answering when you are contemplating divorce:

What are my rights?

What are my choices?

Do I have to go to Court?

We have an agreement, what next?

What will happen to my children?

Should I move out of the house?

Will I have to get a job?

What is mediation?

Does mediation work?

A lot of questions people ask are similar and the workshops will give you the answers to help you decide what to do next. Very specific detail may require a follow up but we shall do our best to answer all questions as fully as possible.

Can I bring my mum?

Yes.

In dispute over taking your child to live abroad?

If an application to leave the Country ends up in Court how will the Court decide whether to let the parent leave with the child? The Court needs to consider a whole manner of information, not least the child's wishes and feelings.

In the past the case of Payne v Payne (2001) paid little attention to the effect of the removal on the child and the loss aspect. Instead it focused upon the effects on the Parent leaving and how a refusal would impact badly on the child via the parent's disappointment.

Payne is still binding on Judges who are entitled to find against the child leaving the Jurisdiction if it is considered the effect of the removal on the child and their relationship with the Parent who is left behind would cause greater harm to the child. Yet again, there is no straightforward answer. The views of the children will be more compelling the older the children are and, as with everything, children's views can change.

There is never a foregone conclusion in such proceedings, which can be traumatic.

What age can a child choose who to live with?

A recent case in the Court of Appeal re W(Children)refused permission to the Father to appeal against a High Court ruling which found that two children aged 8 and 6 had sufficient maturity in order for their views to be given priority.

In the past, the wishes and feelings of a child have always been taken into account in compliance with the Welfare Checklist, but the caveat is in accordance with their age and maturity,

Anecdotally, Social Workers have advised that children of 10 and above have a viewpoint which the Court is unlikely to ignore.

This case is surprising, given the extremely young age of the children.

Contrast this to another case before the Court of Appeal, widely reported, where a 13 year old boy has been ordered to live with his Father, despite having no contact with him and steadfastly refusing to do so. The Court considered that staying with the Mother would cause the child further emotional harm and the child has been placed in temporary foster care as he refuses to co-operate with the Court Agreement.

It would, therefore, appear that there is no such age at which a child's views carry priority. Each case is, therefore, judged upon its own facts. It is also difficult to judge on what basis a very young child makes their decision. Is it because one Parent allows them to stay up late and do as they please? Is it because one Parent buys them expensive gifts and takes them on expensive holidays?

Sometimes the children's wishes and feelings can be against their own best interests. I know my 7 year old Son would love to drive a car!