Tuesday, March 29, 2011

Want a share of your spouse's premarital asset?

The High Court has ruled that a wife cannot have a bigger slice of her husband's wealth as reported in The Telegraph

What is the position with regard to pre marital assets?

The answer is:

Not clear.

This case has taken into account assets brought to the marriage and the judge has decided that the husband can keep £1 million. This is on the basis that the wife does not need it and it is fair. This is a case I will be quoting a lot and it gives a good summary of the recent approach taken by the Court's to pre marital property.

The longer the marriage and the more the assets have merged the less likely a claim to disregard is to being successful.

Each case is decided on it's own facts. Pre marital assets are not ringfenced in England and Wales. The Court will consider whether they should be a reason to depart from equal division of total assets on the basis of contribution.

An argument against this is need - If the other spouse can show that they need a share of the pre marital acquest then the Court will take this into account in apportioning the assets.

It is crucial to obtain good legal advice in the preparation of financial documents for disclosure and to have a great advocate represent you in Court.

Exaggerating your needs will be discounted by the Court and parties may well be criticised for doing so. Changing your mind part way through a case is a difficult one to pull off as well so it is important to get good advice early.

I know of a mother who cut her costs so low to fund the mortgage on the former matrimonial home for her and her four children that the Court refused to order a maintenance claim and ordered a sale of the house as the husband needed better accommodation to have the children stay overnight. She was unrepresented in Court and he had a good legal team behind him.

Even with good representation people can still feel aggrieved that the legal system is unfair... unfortunately it can be a whole lot worse for others

Wednesday, March 23, 2011

Fight to end payments to "workshy" ex wife

According to the The Telegraph, the Court of Appeal will hear a banker's case to end his monthly maintenance payments to his ex wife. Initially, he was due to pay his ex wife £1,000 a month to end at the end of 2009, providing her with enough time to become self sufficient.

Unfortunately, Mrs Norman returned to Court to claim a larger sum of money over a longer period of time. Mrs Norman was not working and at an earlier hearing one of the Judges stated that Mrs Norman appeared to think that her husband indefinitely gave her and her children a meal ticket. However, she ruled that she would still receive £12,000 per annum with the payments due to finish in April 2012. By this time she would have found herself full-time employment. Mrs Norman successfully appealed and the payments were extended to 2015.

The parties separated in 1998 after only five years of marriage. The case has been ordered to go before the Appeal Court for a further Hearing. Mr Norman has now quit his job for medical reasons.

This case will be watched with much interest. The opportunity to continually refer the matter back to Court and extend litigation results in large financial and emotional costs for both parties. Lots of ex husbands (and it is usually the husband) settle rather than incur additional legal costs.

The Court has a duty to consider a clean break between husbands and wives; other countries such as Scotland manage to enforce this upon the Court by making maintenance payments limited for a maximum of three years.

It appears on the presented facts that Mr Norman is unable to move on with his life and left with an unending financial responsibility to his ex-wife of five years. He stated that it was like getting divorced twice.

The system in Scotland and elsewhere provides more certainty. Our Government is encouraging mediation, but this is partly led by European legislation. and there is a cost pressure to free up Court time. Perhaps removing some of the Judge's discretion in family law would reduce the number of ex couples litigating?

The date for the Appeal is not yet set. If Mr Norman succeeds this may result in a number of husbands seeking a reduction in their payments to their exs. If the case fails it may result in a number of ex wives seeking an increase. Litigation awaits whatever the outcome. Not forgetting the interlude of a Mediation Assessment of course....

Sunday, March 20, 2011

Credit Card Companies predict Divorce 2 years in Advance

According to the Vice President of google credit card companies can predict who is going to get divorced 2 years in advance - with 98% accuracy. What are their spending patterns?

Here's my guess:


Plastic surgery
Weight Watchers subscription
Education and retraining - teacher training, social worker, mediators, TEFL
Gym membership
Nights out with the girls
Weekend away with the girls


Hotels working away
Apps for phone and computer gaming.

I doubt that the spending pattern is of those committing adultery - many marriages survive this. It is of those growing apart....

Sunday, March 13, 2011

How do the Courts help children see their fathers?

What do the Courts do if Contact is not being supported by a Resident Parent (usually the mother)?

The whole process is exactly that - a process. There are no short cuts.

The father makes an application for Contact with his children.

The couple are now probably referred to Mediation.

If Mediation breaks down there is a further Directions Hearing.

Statements and perhaps a Welfare Report or a Children's Wishes and Feelings Report (depending on the issues and the children's ages) will be ordered.

About 3 months later there will be another Directions Hearing.

If agreement cannot be reached there will then be a Final Hearing.

An Order is made.

We are now at least 6 months down the line and if the mother so chooses Contact could have been denied in this period completely.

An application for Interim Contact can be made - extra cost and if the mother raises allegations of domestic violence is unlikely to succeed.

Oh yes, if there are allegations of domestic violence then this could necessitate a separate Finding of Fact Hearing in any event.

Add another 3 months.

If the Order is breached its back to Court again for an Enforcement Hearing

The first hearing will be another Directions Hearing

If the mother is found guilty what does the court do?

Send her on community service or if the breeches are persistent send her to prison.

How does all this help a child see his/her father?

How does this help solve the parental dispute?

What is needed is analysis of the protagonists.

If the dad is being controlling/angry send him on anger management. Give him a 3 strikes and you are out card.

If the mother is being bitter/resentful/using the children - have her psychoanalysed and look to take the children out of that environment if she will not change.

It is not normal to fight for years over your children seeing one of you.

What is the issue?



Hatred of your ex?

The courts need to focus on the causes of this behaviour and take out the adversary.

Usually it is one party who is stuck.

Wednesday, March 09, 2011

Is Mediation Assesment a good Idea?

The Ministry of Justice have announced that they are going to insist that separating couples consider using mediation in order to resolve their disputes prior to making an application to the Court. They need to have at least one mediation awareness session where they will both find out what the process can offer before they decide whether it is right for them or not.

Mr Djamogly states "Mediation is often quicker and less confrontational than going to Court".

"Now everyone will have the opportunity to see if Mediation could be a better solution than going straight to Court".

Everyone always has had the opportunity to consider Mediation. Most of the solicitors of my acquaintance, myself included, discuss Mediation at the first appointment and actively encourage parties to Mediate. Often there are times when Mediation has started and not continued for various reasons. Mediation has been regarded as a panacea of goodness and there are cases where even the mediated agreement cannot be incorporated into a Consent Order because the parties have failed to take legal advice at the appropriate stage. My advice is:-

1. Attempt to Mediate.

2. Make sure the Mediator is a qualified solicitor.

3. Instruct your own solicitor prior to each appointment with the Mediator. It may sound cynical, but Mediators are trained differently to solicitors. As a trained Mediator, I understand that the quest for a solution sometimes can work against one party's best financial interest. As a solicitor, I will always have my client's best interests at heart. This is not a bad thing, but people need to understand the difference prior to embarking upon Mediation. Mediation can indeed work provided both parties are prepared to be reasonable and negotiate. It is not a situation where you expect to go into the arena and win everything. That said, neither is the Divorce Court. Sometimes people will have no choice other than to go to Court. For example, if you have an extremely unreasonable ex, or if you have an intractable problem, such as the sale of the former matrimonial home.

It will be interesting to see how this develops.

Friday, March 04, 2011

Was 2010 a good year?

The Financial year in review by Money Co UK makes interesting reading. Have a look at the year's financial highs and lows. It might make you feel a bit better about things... so many crises and we're still going!

Here's a few I picked out:

1. Ebay made a lot of money.
2. Harry Potter's publisher's profits dropped.
3. UK refused to bail out other EC members.
4. Twitter secured huge funding, and of course...
5. The election and
6. The Royal Proposal

It is interesting to review the previous 12 months when looking forward to this year.

There are a lot of changes happening in Family Law:

1. Couples will need to go for a Mediation Assessment before issuing Court Proceedings (unless they fulfill the exception criteria)
2. New Family Proceedings Rules come into effect in April
3. Alternative Business Structures will be available from October - opening up ownership of law firms to non lawyers - COOP are very interested - they already have a bank and funeral service - why not offer a will, conveyancing and a divorce too?
4. Withdrawal of Legal Aid in November, for all cases except those with domestic violence, forced marriage or a risk of your children being taken into care.

So coupled with a huge change in the procedure it is predicted that there will be a large increase in the litigant in person as well as substantial court closures and cut backs.

My advice to anyone contemplating divorce and separation is to act now ahead of all changes. Why?

1. So much is changing there are bound to be issues.
2. If you qualify for Public Funding you need to apply while it is still available and
3. Procrastination is the enemy of the soul...