Thursday, December 27, 2012

Why do I need a Consent Order on Divorce?

One of the irritating things about getting divorced in England and Wales is that the divorce itself does not deal with the finances. For that you need a Consent Order.

A Consent Order:

1. Is the only legally binding route to deal with the division of finances on divorce.

2. Gives finality. It is difficult to overturn.

3. Is the only way to have a pension share.

4. Confirms what happens to all assets and debts in sole or joint names.

5. Deals with income claims - is there maintenance to be paid? Do you want the opportunity to make a claim in the future? Do you want the removal of a claim - known as a clean break.

6. Prevents your ex coming back for money in the future. A lottery winner last year who divorced decades earlier was ordered to make a lump sum payment to his ex wife.

7. Needs legal knowledge to ensure it is correct. I was called last week by a lady who had her own draft rejected 3 times by a judge and was ordered to get legal assistance to draft it. She said it was simple so she did not want to pay much. This lack of understanding will no doubt result in more rejections by a judge or a badly written Consent Order that does not cover all eventualities.

8. Is worth paying for if you have any assets now, expect any in the future and earn a living or expect to earn a living in the future.

Getting to the stage of agreeing what goes in a Consent Order is the hard part... Once you have an agreement make sure it is legally binding!

Wednesday, December 19, 2012

Certainty in Divorce payouts better than fairness?

Our current system for dividing the spoils upon divorce is the most uncertain of all. It is based upon an individual judge's view of what is fair. The judge has to take all factors of the case into account and apply the law based on individual facts. Consequently it is difficult to predict what will happen on an individual case by case basis.

The Law Commission is reviewing this and as reported in the Evening Standard  "divorce judges welcome "cookie cutter" share out plan".

"The aim would be to ensure greater consistency in judges’ decisions and give couples greater certainty about how much each will receive if they decide to split. The Law Commission, which is studying the idea for ministers as part of a wider overhaul of divorce legislation, also believes that the reform could reduce conflict and the cost of divorce cases by making people less likely to pursue unrealistic claims.

Critics of the system, which was introduced in Canada in 2008, claim that it leads to “cookie cutter” justice in which the size of divorce settlements becomes too fixed, rather than decided on the merits of each individual case."

There would be a formula which judges could depart from if necessary. Formula's are used in criminal cases and personal injury cases and they are used in family law cases in other countries. For example in Scotland spousal maintenance is only paid for three years. The formula is also used for child maintenance. Why not spousal maintenance and capital division? It could be related to the length of the marriage,the number of children and the relative earning capacity of the parties.

There would be an upper and lower limit which judges would work with them. Currently the upper and lower limit is what an individual judge considers is fair. The judge can be influenced by the manner in which a case is presented and the way in which the parties conduct themselves.

A formula would indeed reduce uncertainty and reduce meritorious claims.

In my experience more people are prepared to proceed to a Final Hearing since the law changed to remove costs orders in the majority of cases. It used to be that if you made an offer which the other party did not accept and which you bettered at court you would receive your costs if the offer had been outstanding for 28 days or more. The risk of paying both party's costs encouraged people to negotiate and settle sooner. Now more people are prepared to risk the costs of a final hearing given the fact that the outcome can be so different. People even proceed ignoring legal advice and potentially represent themselves.

I consider that a formula would indeed be of assistance and a curtailment to litigation.

Monday, December 10, 2012

Ex girlfriend loses Court of Appeal case for share of house

This case involved a  couple who separated in 2005.  The appeal was heard in October this year.Originally the boyfriend Stephen Mark Condappa (Stephen) had purchased a property in October 1986 with a previous girlfriend and he had bought out her share when their relationship ended..

He then began a relationship with another girlfriend and has a child with her. She lived at the property from 1989 to 1990. She claimed a beneficial interest and managed to have him removed from the property but did not succeed in her claim. He regained possession of his house in September 1992.

He knew the claimant Yvonne Slater (Yvonne) since they were teenagers. She was married and divorced and she had a council flat which Stephen moved into when he was excluded from his house.

Not having learnt his lesson Yvonne then moved into the property in 1994 with her daughter.

The couple then ran a computer business together. Yvonne never gave up her council tenancy, despite living full time at Steven's property. This was a key fact in the case. She lied to the council to retain the flat and filed a witness statement claiming it was her main residence and successfully defended a possession order.She also claimed she lived there in order to receive income support and housing benefit. This despite her running a company which was mainly trading in cash and never declared to the Inland Revenue.

Their relationship ended in January 2005 and she moved out of the property

The relationship broke down because Steven had a relationship with another woman which had been going on since 1999.

Yvonne admitted to her dishonesty but claimed that Stephen was also dishonest, having been unfaithful throughout the relationship and involved in the cash business..He also had his mother's property transferred to him to enable her to obtain legal aid.

 Yvonne was not represented at the hearing and expected the court to believe that Steven had promised her a 50% share of the property. He was the sole legal owner and she had no legal claim but was seeking a beneficial claim based on common intention.

The judge refused to believe her stating her claim was fanciful. He accepted that Steven was dishonest but her level of dishonesty was far worse he regarded her as "habitually dishonest".

Paragraph 65 of his judgement:

" I have also, of course had the opportunity of assessing both the Claimant and the Defendant whilst giving evidence and one thing which struck me about the Claimant was how she supposedly admitted her various deceits and perjuries and so on, but in so doing looked me straight in the eye without a flicker of regret, remorse or contrition about what she had done done or, indeed, of what she was still doing. In my view, she so-called came clean to this court but has not come clean to anybody else or any other agencies who, in fact, suffered a loss, and the reason she has done so to this court is because it suits her to do so to me but it does not suit her in respect of any other of these matters".

There was also an issue about potential forged letters from a previous employer to increase a personal injury claim of Yvonne's. The judge stated that her dishonesty did not mean she was lying about the agreed share in the property but it meant he had to be ultra-cautious about her evidence.

Yvonne had to establish an agreement which she had relied on to her detriment. She had not done so. Neither had she suffered the loss as her contribution of the cash from the computer company was used to supplement family life not meet mortgage payments and other expenses relating to the property.

In order to prove an interest in a property owned by one party the other party has to show that there was an agreement or a common decision, or a promise or some other such oral declaration that the property will although legally held in one party's sole name was held for the benefit of both beneficially.  This is a difficult hurdle to jump. Typically there will be no written agreement and a verbal agreement is down to the believability of the witnesses. Where both are dishonest and evidence is shown to prove their dishonesty against other parties and Government Agencies the claimant cannot expect the court to support such a claim.

The legal terminology is come to equity with clean hands.

It is wholly possible that what Yvonne was claiming was true. She stated that he offered her a share which the judge regarded as implausible however couples do act in implausible ways.  She also stated that he reiterated his promise in order to try to reignite the relationship once his adultery had been discovered. She failed because she was not a believable witness.

This case highlights how different cohabitation law is to matrimonial law. If they were married she would have had a claim of at least 50% of the property. The court could have disregarded any gain prior to the relationship and made an award based upon her need.

Unfortunately many people believe that if they cohabit they acquire common law rights. They do not.  This problem will become worse in the future as more people are choosing  to cohabit.

Monday, November 26, 2012

High Court rules - Debt to ex Wife remains after Bankruptcy

If one party goes bankrupt after a divorce and has not repaid the other what happens to the debt?

It remains in place but an Application can be made to Court to have it discharged. The Court has a wide discretion and each case is decided upon its own facts.

The case of Mr and Mrs McRoberts was reported in  The Daily Telegraph

Since the article the Judgement has been issued and the High Court decided to leave it in place for the following reasons:

1. Mr McRoberts would not be adversely prejudiced by the debt remaining.

2.Mr McRoberts had pursued a lifestyle which did not support his claim that he had no income to pay the debt, for example holidaying in the Maldives at Christmas time.

3.  It was not evident that Mr McRoberts had no potential income source in the future.

The court was therefore left to conclude that Mr McRoberts had not done everything he could to discharge his obligations to his ex-wife and had a sense that his finances  "may not be entirely transparent".

The court also concluded that it was likely that Mr McRoberts could continue to earn sufficient in the future to meet both his and his family needs and his obligations to his ex-wife.

Mr McRobert's lawyers tried to argue that although this was a lump sum payment it should be viewed as a spousal maintenance order and Mrs McRoberts should not be able to pursue it given the debt had been outstanding for more than 12 months. The court rejected this argument stating that Mrs McRoberts should not be punished for her restraint. This was a lump sum payments order and the Matrimonial Courts would be unable to review its payment unlike an application to vary a Spousal Maintenance Order.

Mr McRoberts has stated he may go bankrupt again. His bankruptcy was discharged in 2007. Perhaps he feels that delay has prejudiced his case. The judge did point out that the crucial element was whether there was so little prospect of the outstanding lump sum being paid, even in part, that its release would not substantively prejudice Mrs McRoberts but would materially advantage Mr McRoberts in a realistic effort to build a viable financial future.

Tuesday, October 09, 2012

Equality at last... Women upset by Divorce Settlements

The aim when couples divorce is to rehouse both in similar housing commensurate with the standard of living during the marriage and taking into account all the factors of the case.  What that means is that in an ideal world both parties would have a house similar to each other and the one they have left.  Often this is not possible due to lack of money.  What then happens is that the capital that is available is shared.  

The starting position is a 50/50 split but one party can get more if they need it.  How do you work that out?  Taking account of each of their earning and mortgage capacity.

Typically the husband earns more  and can get a bigger mortgage so the wife will get a bigger share of the capital or the husband will have a charge on the wife's house to be paid back when the youngest child leaves secondary education. 

The situation would be reversed if the wife earns more.  According to The Telegraph Pannones have a number of high earning female clients who are annoyed that they lose out in divorce and do more of the housework.  What about male client's whose wives spend their day lunching and having beauty treatments who then end up with an income for life and half the capital?  I think the time for women to complain is when they have a non earning spouse who spends his time watching sport, drinking beer in the pub and playing xbox... 

Thursday, August 30, 2012

Why not forgive adultery and stay married?

So we British should loosen up, commit adultery and stay happily married like the French?

An article in The Telegraph admonishes us to do just that.

People I know whose partner has strayed are full of anger and mistrust, sadness and loss. How does having an affair make you become happier and nicer then?

 The article compares sex to having a meal in a restaurant:

 " Sex is no more a moral issue than eating a good meal,” she writes.

“The fact that we eat most meals at home with spouses and partners does not preclude eating out in restaurants to sample different cuisines and ambiences, with friends or colleagues."

Depending on whether you are the one contemplating adultery or the one feeling betrayed by your partner your viewpoint may be different...

The article makes no mention of any other potential problems.  What if the adultery is with your sister? Boss? Father? Best friend? Neighbour?

Next time I go to France I will keep an eye out to see if the French are skipping with joy... they all look quite a serious bunch to me...

Tuesday, June 26, 2012

Divorcing Woman Wins Right to Move House

In an unusual case, a father had succeeded in applying for a Prohibited Steps Order to prevent his divorcing wife moving house - this was to facilitate Contact with his children as he lived nearby.  This has been overturned in the High Court as it has been recognised that the woman should have the right to move to seek employment for example.  She said she felt as if she was under house arrest.

The woman has been ordered to remain within England and Wales whilst Divorce Proceedings continue ( it has been going on for nearly 2 years) and to facilitate Contact which is contained in a separate Court Order.  There is a Contact Warning Notice attached to all Contact Orders now which threaten Parents with Care with Enforcement Action of they do not comply with the Order.  The Parent with Care is expected to make the child available for Contact - normally it will be the responsibility of the Non Resident Parent to collect and return the child after Contact.

It is probable that now the woman is free to move she will and my guess is that she will move quite a distance. She will need the father's agreement to any change of schooling so it is unlikely that this case will cease litigating any time soon.

In my experience once one issue has been resolved another pops up.

In this tug of war between parents the only tactic I have seen which ends a one sided fight is to turn matters upside down.  In this case it would be for the father to  relax all attempts at control and accept what the mother does, or for the mother to move and offer the children to live with their father.  If the mother is seeking to hurt the father his capitulation will remove the fire.  If the father is seeking to control the mother - he will not want to have the children live with him and will back off.  High risk stakes.  If both are determined to fight then it will go on and on.... What of the children in the middle of all this?  Perhaps neither parent wants to fight and they have both been pushed into battle by their solicitors... Perhaps not... the woman was a litigant in person...

How do you tell which parent wants the fight?  The parent who criticises the other to the children...  

Wednesday, June 13, 2012

Law set to change re Shared Parenting???

The Government has decided to go against advice and make it a legal requirement that both parents' share the legal responsibility for their children post separation. What does this mean in practise?  I have read the attached article in The Guardian five times now and I cannot work out what the practical effect will be.  There is to be no presumption of 50/50 shared care. The child's welfare remains the priority.

Deputy prime minister Nick Clegg said: 

"Both parents have a responsibility and a role to play in their children's upbringing and we want to make sure that, when parents separate, the law recognises that. Children should have the benefit of contact with both of their parents through an ongoing relationship with them.
"This is why we are publishing proposals today setting out that, where it is safe and in the child's best interest, the law is clear that both parents share responsibility in their upbringing."

I cannot work out what they have changed.

Is it all just words?

Access and custody was replaced by Contact and Residence to remove the perception that one parent had superiority.  That has not worked so now it will be replaced by, in the Government's own words:
By introducing a new child’s arrangement order, children’s needs will better determine the practical arrangements made for their upbringing. There will similarly be no link between contact and maintenance in enforcing court orders. These cannot be seen by parents as commodities to be traded. Children are entitled both to receive financial support from both parents and to maintain contact with both parents, where this is safe. It is difficult to conceive how withholding either of these things meets the welfare needs of the child.
 The new form of order should help parents to focus on their children’s needs. However, the making of the order needs to be underpinned by swift and effective mechanisms to ensure that any difficulties that may subsequently arise are resolved swiftly. At present, delays in getting cases back to court when contact orders are breached, and lack of effective enforcement measures, have seriously undermined the credibility of the court process.

What I don't understand is why changing the label will help parents focus on the children's needs.  It didn't work last time they changed it.  If anything there is more of a focus on the parents rights.

It will be interesting to see if any change comes of this new terminology.

Tuesday, June 12, 2012

Is it worth fighting on twitter?

The latest high profile divorce to hit the headlines concerns a twitter spat between Ben Goldsmith and Emma Rothschild. My summary is that she has moved on to an exciting new relationship and he is angry. Fairly normal scenario.  Slightly unusual though to argue via twitter but tis a sign of the times.
Imagine retweeting their posts! Very voyeuristic. Slightly more interesting than the normal weather/ food you have eaten today update though.

The saddest show to watch is that of the rejected one desperate to make everyone else hate their ex including their ex's family! School playground tactics trying to get a gang together. Such behaviour normally backfires as you will be the one left spending weekends with people you barely like whilst your ex is off having fun.

Break ups are great for helping you find your true friends and getting rid of hangers on. Once you have an acrimonious split you will know who your true friends are and you will be bound to them for life. People who simply love you as a friend and provide fantastic support when you need it most. 

Divorce often results in a lot more changes than leaving your ex....

Thursday, May 24, 2012

Should Divorcing Couples be forced to Mediate?

The Government is keen to encourage all couples who are divorcing to attend Mediation.  They consider this better for the couple so that they can avoid the costs, both financial and emotional, of going through the Court systemWe even have High Court judges speaking out telling people they should not get divorced at all.

The Government laments the reduction in marriage and the increase in cohabitation.  The Government does not make the link that more couples are avoiding the pain of Divorce by avoiding marriage.

The Government has closed, or plans to close, up to 40% of our Courts. Is it not more honest to say to people the State does not have sufficient resource to cope with litigated Divorce rather than present Mediation as a benefit to the couple?  A panacea of  success and a remedy to the malaise of the bitter, contested divorce.

Mediation is voluntary.  To make it compulsory undermines its fundamental ethos. Mediation should be considered, as it is now, but couples should choose whether they wish to proceed.

If Mediation is to be made compulsory then Mediators need to be regulated more thoroughly and there needs to be a better vetting system.  It takes 6 years to become a solicitor. After that another 3 before you can supervise others.  It takes 3 days to train as a Mediator. You then need to be supervised for a number of hours before you can Mediate alone. Virtually anyone can train as a Mediator. The training providers have a discretion to allow those without a degree to train. Any degree?  Any background?  The quality of Mediators and their knowledge of family law varies widely.

This Mediation focus reminds me of HIPS.  A whole training industry blosoomed and made money out of individuals seeking a new career on the back of Government policy.  The Government then reversed their policy.

Records need to be kept as to how many Consent Orders are as a result of a Mediated Agreement. Mediators need to have a minimum knowledge of family law greater than the half a day provided on some courses.

Couples need to understand that the Mediator cannot give legal advice and they need to obtain legal advice from their solicitor as they proceed through the process.

Most Mediation referrals come via solicitors. A growing proportion of family law solicitors are also Mediators.  Most solicitors I know who also practice as Mediators find the process rewarding. Some have chosen to become full time Mediators. 

I beleive that Mediation can work, that the quality of the Mediator is paramount and we are looking to expand our Mediation pracitce and employ another Mediator. If people are unable to Mediate, whether both or one of the couple is against it then Mediation will not work. Unfortunately, Mediation does break down but there are inadequate statistics available to be able to properly analyse its usefulness and growth.

Tuesday, May 15, 2012

She must be mad to leave me!

Some men are genuinely shocked when they receive a divorce petition.  Mr Savva from Crouch End went to the Court of Appeal to defend his divorce on the basis that his wife lacked mental capacity - if she wanted to leave him then she must be mad and needed a psychiatric assessment. He did not succeed.  The full story is reported in the Telegraph.

When my first marriage ended my husband used to come home from work later and later. I asked him to make sure he was home by 7 30pm.  I used to call him every night to make sure he had left work to start preparing the evening meal.  Then I stopped calling.  He started arriving home at 9pm and had to feed himself.  Then I divorced him and he was shocked saying he thought our marriage had improved because I had stopped nagging him and he could now do as he pleased.

So, for all you potentially surprised men out there, here are a few signs that your marriage may be over but you have not been told yet:

1. She stops nagging you - You can go on as many golfing holidays as you like, stay out all night, not text or phone her  and there is no backlash.  Unless your wife has been on a Tony Robbins weekend this is not a good sign.  This is a sign that she no longer cares what you do.

2. Your wife moves out of the bedroom - this needs no explanation. Mr Savva's wife said she had slept alone for 8 years, He said it was because of her business paperwork, she needed space, the house was a mess.  Unless you are a chronic snorer, and even then, there is only one explanation - she wants to get away from you.

3.  Your wife takes a new interest in her appearance, loses weight, new clothes, plastic surgery. If your intimate relationship is also on the slide this could be a sign she has found or is looking for someone new.

4.  Your wife has a new set of friends that she sees without you.

5.  Anything else different that makes you feel uncomfortable.  Men are not usually good at spotting these signs,but if something does not add up there is usually a reason for it.

If you are a woman the above list does not apply - men act differently when they move on and that is the subject of a future post...

Tuesday, May 01, 2012

Divorce? Don't even think about it!!

The Daily Mail has a Senior High Court Judge announcing that he has launched a campaign to promote marriage.  His view on marriage:

'It involves endless hard work, compromises, forgiveness and love. However right the person is, they might not be right two years later. It doesn't matter how wonderful you appear to be to your partner at the beginning, you will begin to display faults that we all have.
'In order for a relationship to last, you have to hang in there and adjust and change and alter and understand. Long, stable marriages are carved out of the rock of human stubbornness and selfishness and difficulties.' 

He says we need to end the Hello style divorce and the increase in older couples getting divorced is disturbing - adult children in their 20s and 30s can still be hurt.  

My aunt got divorced after 40 years of marriage and misery and her 6 children all supported.  My uncle was, let's say a lovable rouge.  My aunt is now in a much happier marriage and my uncle... he is dead... Wait for someone to die then? Die miserable yourself?

People now live longer,if you are born today you can expect to live until you are 104, life is easier and the focus on survival and mutual need is gone.  Plus since the 1970s women have had equal rights. So, if you marry when you are in your early twenties (as I did) you can expect to be with your partner for 80 years.

Lots of people marry the wrong person and for the wrong reason. People change so much and can grow in opposite directions. In my experience nobody takes the decision to divorce lightly, but equally nobody regrets it.

Since my first divorce I have made it my quest to find a long term happy couple ... my parents seem to have an affectionate regard for one another but apart from that I have drawn a blank.  Again, in my experience many of those who present a united front seethe with hatred in private or live totally separate lives.

Marriage is expensive and so is divorce, emotionally as well as financially.  

What if you could marry for 10 years and then choose whether to remarry for a further 10 years or split? What if the Government made laws that made it clear what would happen to your money and your children when you split?  What if Judges offered similar judgements that we could all follow?  What if people who lived together had even limited  financial responsibility for each other on separation? What if everybody married for love? What if there were no gold diggers, wife beaters, horrid, mean controlling people, liars, cheats and thieves? What if...


Tuesday, April 24, 2012

Does Mediation Work?

Yes..... but there is a catch..... only if you both want it to work!!!!

Life has a habit of giving you what you want and desire rules the world and convincing someone to do something they don't want to do is virtually impossible.

How to approach mediation and get what you want from your ex partner.

1. Do not criticise them

2. Use sincere praise - very difficult I know but....

3. Communicate and this means listening more than talking

4. The art of persuasion is simple..... make the other party feel that you genuinely care about them and that you want what is best for them. Work together to achieve a successful joint solution.

I am not good at applying this art but Lincoln was fantastic at it. Copy him not me!!!!

Friday, April 20, 2012

Divorce Solicitors reveal petty goods their clients fight over

There is a lack of celebrity divorces to write about at present.  To fill the gap Nick Britten from The Telegraph has asked divorce lawyers to revel their worst tales....

Not as interesting as you might think... not on a par with suits being cut and expensive wine collections being left on neighbours' doorsteps.

Where emotions run high and the level of acrimony is extreme the combatants are rarely able to move on...  we all know bitter, angry people we prefer to avoid...

Unfortunately, people who come out of divorces with an estranged ex who is full of anger cannot expect that things will settle down...

Real life example:
When a husband left his ex wife he requested 2 wine glasses from their extensive collection.  He was allowed only one which he has yet to collect...
 A sign that there was an objection to him sharing a glass of wine with someone special?
Is it ok for him to have a partner now 4 1/2 years later?
Unfortunately no...
Will it ever be ok?
Probably not....
Does it make any difference if the ex wife gets a boyfriend?
Nobody knows....  

If you feel any emotion apart from relief and sadness at your divorce then it is in your interest to seek professional help to get over any jealousy, anger, hatred or the need for revenge...

Monday, April 16, 2012

What is family Law Arbitration?

Arbitration is now available for Family Law disputes.  It was set up last month by the non profit making Institute of Family Law Arbitrators

What does it do?

It enables couples, in a financial dispute following separation, to achieve a settlement without the need to go to Court but with the certainty that once they sign up to Arbitration the Arbitrator's decision is final...

What are the advantages?

It is more flexible.  It can even be conducted via written statements.  It can cover only one issue if necessary and can take place instead of or even during litigation.

You can choose your Arbitrator - so far only 20 are available on the website but another 20 are qualified and there is a queue for training.

It is private and confidential.  A very important consideration for the super wealthy who do not want their private lives examined in detail in the Daily Mail et al for the sake of "public interest"...

You still need a lawyer each to advise you but it aims to be cheaper and less stressful than Court Proceedings and has the certainty that Mediation and Collaborative Law lack.

What does the Institute of Family Arbitrators say?:
" IFLA developed the arbitration scheme to enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal setting than a court room. It is also expected to save court resources and reduce pressure on the already stretched family courts."

Who will use the scheme?

I have yet to meet a separating couple who are concerned about the Courts' resources but the scheme should appeal to wealthy, separating couples who are used to being in control of their lives and seek a private settlement to their dispute.

Friday, March 30, 2012

Contribution argument succeeds in Gay divorce

The Court of Appeal has ruled on the case of Pete and Don - a wealthy city chap and a fabulous West End actor.  Having lived together for 11 years, the Court took account of the pre marital cohabitation - sorry pre Civil Partnership Cohabitation, which removed the divorce from the short marriage list.  This is the norm now.  

Bizarrely, if you cohabit for 20 years and marry for 12 months you are probably going to have to half your assets with your ex, even if they contributed nothing financially.  If you cohabit for 20 years and split and keep all assets in your name and your ex makes no financial contribution you will pay your ex nothing.  It's not difficult to workout why marriage is a less popular choice these days Mr Cameron.

The Court of Appeal have ruled that the Judge in the lower court was wrong not to give sufficient weight to the pre marital contribution made by City High-Flyer Peter Lawrence.  His ex partner Don Gallagher, a famous West End star, will receive £300,000.00 less as a result.

The case was reported in The Independent

Mr Lawrence said: "The case was not in fact about the principles of civil partnership, which are the same as on divorce, but about how to divide assets which were largely brought into the relationship by one party."

Hmm wonder what Mr Gallagher's view is on that...

The Judges said it was fair... Do you agree or no?  A catch phrase used by an Italian I used to know to browbeat people into submission... 

Monday, March 26, 2012

The brave new world of 3 parents

The Court of Appeal has ruled that a gay father can have a fuller role in his son's life who is being brought up  by a lesbian couple.

As The Telegraph reported Lord Justice Thorpe said:

 "It is generally accepted that a child gains by having two parents. It does not follow from that that the addition of a third is necessarily disadvantageous". 

The focus is on the welfare of the child, not the sometimes selfish wishes of the parents. The lesbian mothers wanted the gay father to have a subordinate role and for them to be the primary parents.  The Judge stated that given all 3 parents had high powered jobs it appeared that the nanny was the child's main carer.   The Judge also rejected that an agreement reached before the child was born could be enforced as life is not so simple - people change, circumstances change and the child had a lot to gain from a relationship with his father.

What happens if the lesbians split up?  A three way care plan?  Shared parenting could get complicated.  

Research suggests that a child's secret wish is for their parent's to reconcile - in this case the biological parents did have a marriage of convenience.  Is this child going to grow up wishing for the impossible as well as the highly unlikely that most children of divorce secretly wish for?  

Friday, March 23, 2012

Separating homosexuals should not share assets in same way as heterosexuals?

A city financier has taken his case to the Court of Appeal to argue that his ex whom he separated from in 2008, after a Civil Partnership of only 7 months but cohabitation of 11 years should not have a share of his assets acquired prior to the relationship.  Why not?  Equal rights but only if it works in my favour, otherwise selective equal rights?  They are arguing that husband and wives are different because they are more likely to have children.  They also argue that a homosexual couple are more likely to have joint careers.  I disagree - plenty of homosexuals support their partner but also so what?  The case should be decided on its own facts not on what one side terms the norm.

The case is reported in The Telegraph

They could of course raise a contribution argument - an asset should be ringfenced because it was acquried a long time before the relationship began.  The counter argument to that, and the one that has succeeded so far is one of need.  This was the matrimonial home which after Miller V Miller in Supreme Court takes special priority - even if one party did contribute everything.

The Judges will have to ensure their judgement is fair... someone will be unhappy...

Monday, March 12, 2012

Do you want to know your partner's violent past?

What if you meet a new partner on a dating website?  You know nothing of him and have no mutual acquaintances.  Would you contact the police to find out if he had a history of violence against other women?  What would you do with the information? Refuse to get involved with him or decide that you are different?

Some women are their own worst enemies - witness those who become pen friends and then marry convicted murderers on death row.

A lot of men who are guilty of domestic violence are not known to the police.  Some who have a criminal record have one because of a very minor incident that they admitted to.  Some who are guilty of serious domestic violence have no police record because they deny it and the victim refuses to proceed.

We do not live in a perfect world. Domestic violence charities are against Clare's Law as reported in The Independent .  Clare's father states that it can't do any harm. It can do harm if people rely on it inappropriately.  One of my friends employed a plumber who was arrested at her house.  She rang the police and asked if she should be worried and should she allow him back in her home.  They said she had nothing to worry about.  He was a serial conman, identity thief, and charged with domestic violence and breaking and entering.  He was wanted by 3 separate police forces and he was bailed and went on to steal substantial sums from her and 2 of her friends. As far as I know he is still on the run. In my experience the police make mistakes so obtaining a reassurance from them is no guarantee of safety.

Anyone who becomes involved with a complete stranger is taking a risk. We met a London Cab driver at the weekend who regaled us with his failed on line dating experiences.  Women who lied about their age, posted the wrong photo etc.  He drove from London to Stratford upon Avon for a date with someone who claimed to be 42 but had just had a hip replacement and looked 62.  More fool him you might say but what risks are these women taking with their safety?

Monday, March 05, 2012

How to show your spouse is hiding assets

When divorcing it is no longer possible to follow the self help route and obtain the other parties documents to show that they have more money than they are admitting too.  The change has been called a "cheats charter" but what is left for the less wealthy spouse if she knows her husband is hiding his wealth to defeat her claim - and it is usually a she?.

In a recent court of appeal case (NG v SG [2011] EWCH 3270 (Fam), [2011] All ER (D) 180 (Dec)) the judge set out an 8 point check list for the court to follow in determining whether assets have been hidden.

1. The court is duty bound by the use of adverse inferences to consider whether assets have been hidden.

2. The inferences must be reasonable based on an assessment of the evidence.

3. If a court concludes that assets have been hidden then the court must attempt to quantify those hidden funds.

4. In doing this the court will first consider direct evidence - documents and details given by the other party.

5. The court then considers the scale of the business and the lifestyle enjoyed.

6. Allegations as to reputation and opinions of third parties will be ignored.

7. The technique from a previous case of concluding that the assets were double those revealed should not be the only measure used.

8. The non discloser should not benefit from his actions - therefore it is better to make an order that is unfair to him than the other party.

Speculation, rumour, conviction of the other spouse which can verge on obsession are all to be ignored.  The court will rely on evidence.  If you have none there there is an uphill struggle to get the court to assist you in making adverse inferences.  Yet again it is down to Judicial discretion as to whose argument is more persuasive...

Monday, February 27, 2012

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... 

Monday, February 20, 2012

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. 

Monday, February 13, 2012

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.

Monday, February 06, 2012

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.

Friday, February 03, 2012

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