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.