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...