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Holidays and the separated family

Family-Holiday

When a family separates, the timing and nature of family holidays can become an issue.

There can be particularly difficulty where one parent wishes to take children abroad against the wishes of the other. It is a criminal offence to take a child out of the country without the permission of everyone who has “parental responsibility” for that child, typically the other parent.

Someone who has a “lives with” child arrangements order in their favour can take the relevant child abroad for up to one month without needing permission unless there is a court order to the contrary.

Typically, the court will have expected you to have undergone a mediation information and assessment meeting before you make an application to the court.

Disputes about holidays can form part of more general proceedings about with whom a child should live with or who they should spend time with and when. It is important that, should there be a dispute over the single issue of a holiday, then it may take a good deal of time to get to a final hearing which may overtake the holiday period in dispute. Because there is a huge workload creating great demand on court centres you should apply to the court once a dispute has been identified, several months in advance. It is possible to make an application on an urgent basis but there are huge pressures on court time and exceptional circumstances would be necessary.

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Grandparents & grandchildren

Tree-Puzzle

Grandparents can perform an essential function in supporting parents with children. But, in a relationship breakdown, what if a parent stops a grandparent from seeing their grandchild?

As a grandparent you do not have an automatic right to see your grandchildren. One way of trying to resolve matters is to mediate. Family mediation is a process in which those involved in family breakdown, whether or not they are a couple or other family members, appoint an impartial third person to assist them to communicate better with one another and reach their own agreed and informed decisions concerning some, or all, of the issues relating to separation, divorce, children, finance or property by negotiation.

If mediation does not succeed and it comes to a grandparent making an application for a child arrangements order then they must first seek the leave, or permission, of the court. When considering whether leave should be given the following is taken into account:

(a) the nature of the proposed application for the section 8 order;

(b) the applicant’s connection with the child;

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How does the court make orders over the children?

Lonely-child

When a couple splits up the parties have to decide with whom their children shall live and how much they see of them.

There is no longer any concept of “custody”. All mothers have parental responsibility (PR) which means all the rights, duties, powers, responsibilities and authority a parent has for a child. All dads married to the mother of their children have PR. Unmarried fathers gain PR when they are named on the child’s birth certificate. PR can also be acquired by way of a deed executed with the mother or by an application to the court for a PR order. Each parent can exercise PR independently of the other save in relation to certain limited cases.

Following break up a couple can simply agree arrangements for a child. If they can’t agree then an application can be made to the court for a child arrangements order. Once termed residence and contact orders these are defined as orders:

“(a) with whom a child is to live, spend time or otherwise have contact, and

(b) when a child is to live, spend time or otherwise have contact with any person;”

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Deciding the financial outcome of a matrimonial split

Sharing-Money

What is taken into account when considering who gets what on divorce? The answer lies in the provisions of Section 25 of the Matrimonial Causes Act 1973. The section provides that it shall be the duty of the court to have regard to all the circumstances of the case, first consideration being given to the welfare of any minor children. It must have particular regard to the following:

• the income, earning capacity, property and other financial resource which each of the parties to the marriage has, or is likely to have, in the foreseeable future. This includes in the case of earning capacity, any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire;

• the financial needs, obligations and responsibilities which each of the parties to the marriage has, or is likely to have, in the foreseeable future;

• the standard of living enjoyed by the family before the breakdown of the marriage;

• the age of each party to the marriage and the duration of the marriage;

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My spouse is disposing of assets: Can I stop him?

Running-Away-with-Mone_20210715-153207_1

All too often does a client present to us concerned that their spouse is disposing of matrimonial assets. It might be that they have cashed in a policy with a view to going on a spending spree or perhaps they have transferred funds to a third party.

The law can offer relief in such circumstances. First there needs to be a petition on foot. Second there needs to be a financial application in Form A made. One can normally only file a Form A when one has undergone a mediation and information assessment meeting. However, there is an exemption where the case needs an urgent hearing.

Under the Matrimonial Causes Act 1973, section 37, one must satisfy the court that the other party intends to defeat the claim for financial relief. The section enables an applicant to restrain anticipated dealings that may defeat the applicant’s financial claim. The court may also set aside a reviewable disposition.

Can I get an order urgently? This can happen without notice only in limited circumstances in emergency cases or where there is a real risk that if the respondent is tipped off they will take steps to defeat the court’s order.

The injunction order made by the court must set out clearly what the respondent can and cannot do. The court may make whatever order is necessary to protect the claim including a freezing injunction.

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How can I protect myself from my partner?: Non-molestation orders & Occupation orders

Abuse How can I protect myself from my partner?

Statistics covering the quarter ended September 2020 show a 26% increase in domestic violence remedies from the year before. What protection is available?

What is a non-molestation order (NMO)? An NMO is designed to stop various kinds of abusive behaviour which could involve harassment, physical, verbal and emotional abuse. They can be ordered under section 42 Family Law Act 1996 if a free-standing application is made for an order by a person associated with the respondent.

Can I get an NMO without my partner knowing? Yes. It is sometimes known as a “without notice” or “ex parte” order. If making such an order the court would list a “return date” when both parties would need to attend.

Can I get an order that excludes my partner from my home? Yes. An occupation order is another form of injunction order that regulates occupation of a property. For example, an order could permit your return if you have been excluded. It can even prohibit your partner from visiting the neighbourhood where the home is situated.

How long can these orders last? An NMO generally is designed to deal with an immediate occurrence of harassment or abuse and to reduce the temperature by prohibiting behaviour that might inflame the situation further. It is good practice for an order to stipulate its end date and that is not likely to be more than 12 months.

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Meeting your Family Law Solicitor for the First Time

Meeting your Family Lawyer

Stepping over the threshold of your divorce lawyer can be a nerve-wracking process but it needn’t be. That’s if you follow this guide.

Always speak to your solicitor before your meeting. Don’t simply speak to a secretary to book the appointment.

My practice is to suggest to a client on the ‘phone that they prepare a timeline or potted chronology of their relationship. This is particularly relevant for financial relief on divorce. So what goes into such a document? As well as the obvious dates of marriage, separation and children’s birth dates, you should set out any pre-marital cohabitation as, if it is seamlessly joined to the marriage, it effectively lengthens it. Other items for inclusion might be injections of capital, inheritances, redundancies and loans from third parties.

I also ask prospective clients to jot down a list of questions that they want dealt with at the meeting. This means that you don’t leave the meeting wishing you had asked something.

Sometimes clients ask what should they bring with them. Matrimonial clients should bring with them the original of their marriage certificate or a certified copy. All clients should bring with them relevant “know your client” material to include proof of identity and address, passport, driving licence and recent utility bill.

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Funding your divorce

Funding_your_divorce

Media reports have it that Prime Minister Boris Johnson was writing a biography of William Shakespeare to fund his divorce from his second wife, Marina Wheeler. Others don’t have the luxury of penning a work of literature to pay for their divorce. So how much does it cost and how can you fund it?

At this firm, as well as offering a free 30 minute meeting, we offer a fixed fee for filing an undefended divorce, £500 plus VAT plus the court issue fee of £550, £1,150. “No fault divorce” is not due to come in until next April. Where one currently files for divorce on the basis of the other party’s adultery or behaviour, costs follow the event. In other words, one can claim one’s divorce costs from the party who committed adultery or whose behaviour is in question.

So much for the costs of the divorce. The majority of costs come in resolving financial and property matters unless there is an agreement at an early stage. One cannot rely on getting a costs order against the other spouse as such orders are only made if there has been litigation mis-conduct which is not easy to establish.

Legal aid is only available from a few franchised providers where there has been domestic violence and the party satisfies stringent means and merits tests.

So what other options are there to help fund a divorce matter? Many clients meet their legal costs from savings. The other option is to borrow. This firm accepts credit cards except for disbursements, items we have to pay out on the client’s behalf.

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Why a divorce is not enough: The need for consent orders

Consent-Order

Divorce statistics

There were 107,599 opposite-sex divorces in 2019, an increase of 18.4% from 90,871 in 2018. This is the highest number of opposite-sex divorces recorded since 2014 when 111,169 divorces were granted in England and Wales. It is also the largest annual percentage increase in the number of divorces since 1972, following the introduction of The Divorce Reform Act 1969, which made it easier for couples to divorce upon separation.

The implications of divorce

Some people get divorced without consulting a solicitor. They do not perhaps realise all the implications of the process. Many do not appreciate that obtaining decree absolute can deprive one of their former spouse’s pension’s death in service benefits.

There is a misconception that a divorce resolves financial and property matters between a couple. It doesn’t. Notwithstanding the divorce each party may still make claims against the other for income, lump sum, property and pension orders and such orders can be made against assets acquired years after separation if needs arguments prevail.

The only way to avoid future claims being made is to have them dismissed. This is normally done by having a draft consent order prepared which enshrines the agreement a (former) husband and (former) wife has reached. A consent order can create a “clean break” settlement if that is the appropriate outcome. This protects any money or assets that you may earn or receive in the future from being claimed by your ex-partner. 

What is a consent order?

A consent order is an important and technical legal document upon which each party should get independent specialist family law advice. It is made up of three main sections, recitals, undertakings and orders. Recitals set out what the couple have agreed. Undertakings are enforceable promises to the court and, if breached, punishable by way of a fine or even imprisonment. Orders are the operative part of the document and deal with financial and property matters as well as pensions. Orders can also include a dismissal of claims.

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Couples should consider legal agreement over custody of pets

Pet_Nup

Couples intent on marrying or living together who have acquired new pets during lockdown should consider signing a legal agreement setting out who gets custody if they break up, a Surrey law firm has said.

Camberley-based Foster Harrington said the soaring price of pedigree pets during the pandemic had increased the risk of post-split disputes. The document would stand as a binding contract, the firm said.

An estimated 3.2million households in the UK have acquired a pet since the start of the pandemic according to the Pet Manufacturers Association.

Tony Roe, who has just joined the firm as head of family law, said that the firm started offering the service this month. He said that the firm's pet-nup - a play on the shortened version of the term pre-nuptial agreement - were documents that would act as legally binding contracts between a married or a cohabiting couple.

"Once upon a time pre-nuptial agreements were contrary to public policy. Now thousands of couples choose to plan for what needs to happen should their relationship break down and they are frequently seen as the norm. Having a pet-nup drafted is a logical next step and is good housekeeping for those entering into marriage or beginning to live together. Pets are seen as chattels and pedigree breeds can cost thousands of pounds but that overlooks the emotional attachment to them". 

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Poor conduct costs dear: Maintenance pending suit and costs orders

Divorce_Costs

A recent case has highlighted the importance of properly negotiating in family finance matters.

In LM v DM, a wife brought proceedings for maintenance pending suit and interim periodical payments for the children. Mr Justice Mostyn said that the obligation to negotiate openly and reasonably is especially important in interim applications, which ought to be pragmatically settled in circumstances where by definition they do not make a final determination of the parties' positions.

The result of the case was clearly a win for the applicant wife. Although she did not achieve as much in quantum as she sought, the result was much closer to her position that the respondent husband's. She also succeeded on issues of principle which divided the parties. The judge agreed that there were aspects of the husband's case which were unreasonable and which reinforced his starting point that the wife should be awarded her standard costs of the application.

However, the judge found that the wife made no serious attempt to negotiate openly and reasonably beyond setting out her in-court forensic position in her witness statements. His impression was that the wife was determined to fight the application come what may.

He stated, “Litigants must learn that they will suffer a cost penalty if they do not negotiate openly and reasonably”. He added, “Accordingly, the applicant will be deprived of 50% of the award which I would otherwise have made in her favour. Therefore my order is that the respondent shall pay 50% of the applicant's costs of the applications to be assessed on the standard basis if not agreed”.

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Maintenance pending suit: Interim cash for divorcing parties

Divorce_funding

Maintenance pending suit (MPS) does not often feature in the law reports so a recent case is noteworthy. MPS is a court process that financially supports one spouse by ordering the other to fund them during their divorce. This happens after divorce proceedings have started and lasts until the divorce proceedings come to an end by way of a final judgement regarding the finances between the parties.

In the appeal in Rattan v Kuwad, a wife successfully appealed an order allowing a husband’s appeal from an MPS order granting her monthly payments of £2,850. Permission to appeal was granted on the basis that it raised an important point of principle as to the correct approach of the court when determining applications for MPS.

The marriage had lasted for around a decade and after separating the wife remained in the former matrimonial home with the parties’ child and a child from a previous marriage. The wife began divorce and financial remedy proceedings, claiming MPS to cover, what she described as, a shortfall in her income including school fees and essential house repairs.

The Court of Appeal (CA) noted that the court’s power to make an MPS order was extremely valuable as it enables it to make an order meeting the income needs of a spouse and the children at a time when they might be in real need of financial support following the parties’ separation and commencement of proceedings. It is intended to enable the court to act expeditiously and to make an order meeting that need early in the proceedings when the evidential picture might be far from clear. It is a very broad statutory power which extends to the court making such order as the judge thinks reasonable.

Though judicial guidance has previously been given the CA made clear that the only substantive requirement is that the order must be reasonable. The purpose of it is to meet immediate needs, but the principal issue raised in this appeal was what needs qualify as being immediate and how the court should approach determination of this question.

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Gates Divorce and Separation

Gates Divorce and Separation

Bill and Melinda Gates have announced their divorce after 27 years of marriage, saying "we no longer believe we can grow together as a couple".

The pair tweeted, "After a great deal of thought and a lot of work on our relationship, we have made the decision to end our marriage”.              They first met in the 1980s when Melinda joined Bill's Microsoft firm.

The couple have three children and jointly run the Bill & Melinda Gates Foundation.

Bill Gates, 65, is the fourth wealthiest person in the world, according to Forbes, and is worth $124bn (£89bn).

According to US media reports, Bill and Melinda Gates agreed how to divide their property and assets before announcing their divorce, reportedly signing a separation contract outlining how their estate would be split. But they did not sign a pre-nuptial agreement before their wedding in 1994.

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Redundancy and Divorce

Redundancy and Divorce

The Coronavirus pandemic has had a significant impact on so many aspects of our lives. It is estimated that more than 9 million jobs have been furloughed in the United Kingdom as part of the Government's job retention scheme. Despite this, we have still seen redundancy programmes in many businesses and, when the scheme comes to a close, it is expected that further redundancies will follow. A difficult time under any circumstances, redundancy (and redundancy pay) also has implications in divorce proceedings.

How does this interact with resolution of finances on divorce?

Where a maintenance Order is in place, it is important to realise that this is a variable Order. It is open to the payer who is facing redundancy to make an application to vary downwards the level of maintenance or periodical payments. The court may not immediately be persuaded to reduce the payments as the redundancy package itself is intended to compensate for loss of income and the court may regard it as a capital fund from which maintenance can be paid.

However with no alternative employment on the horizon and the redundancy payment running out, an application to vary maintenance downwards is the appropriate route along with an application to remit, or waive, arrears if they accrue.

It goes without saying that you should communicate with your (former) spouse about your financial difficulties so that they are not taken by surprise. They may agree to a variation after all.

Child support

Anyone subject to a child support assessment who has been made redundant should contact the Child Maintenance Service and ask for a reassessment on the basis of their altered circumstances.

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Disclose all Assets

Finance

Divorce

Parties must promptly reveal all their assets when required by the Court process so to do.      Failure to do so only worsens the party's case with the Court taking a dim view of partial-disclosure or deliberate and improper delaying of matters;  cost penalties await and indeed risks the Judge looking at that party as showing bad faith which may well influence the final judgment.

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Divorce - Matrimonial Property

divorce-split Matrimonial Split

Once married is everything you both own all in the one pot ?    Yes and No  (give me a one-handed lawyer please  -  on the one hand ....on the other....)    The starting approach is everything must be disclosed (the quaint words of the traditional marriage service spring to mind  " with all my worldly goods I thee endow ..."      Judges have developed two types of approach to adjusting this where they see fit :-

  1. The (supposedly) scientific approach whereby the court tries to identify the whole matrimonial pot and then attempts to exclude non-matrimonial assets; this leaves the matrimonial property to be divided according to the equal sharing principle.
  2. The artistic approach whereby the whole pot is adjusted from the 50:50 starting point to another percentage split based on " judicial feel" as to what seems fair, to reflect the existence of  "non-matrimonial assets"      

Observant readers will notice that as ever with Divorce there is some uncertainty and a client needs sound legal advisors to present their cases    persuasively .

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Civil partnerships for all

Civil_partnership

A civil partnership is a legally recognised relationship between two people. 

At present, the law in England and Wales permits same-sex couples to marry (same-sex marriage was legalised in 2014 with the passing of the Marriage (Same Sex Couples) Act 2013) or enter a civil partnership  (legalised by the Civil Partnership Act 2004) but only allows mixed-sex couples to marry. 

The Supreme Court has now determined that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights.  As such, Theresa May has announced that mixed-sex couples are now going to be allowed to have civil partnerships.

The proposed change comes after the Supreme Court, in June, ruled in favour of Rebecca Steinfeld, 37, and Charles Keidan, 41, who wanted to be allowed to have a civil partnership.  They, like many others, felt that marriage did not fit with their ideologies.  Unlike marriage, civil partnership has no historical connection to religion or the church.  For some, the fact that marriage is steeped in patriarchal tradition (with the woman being “offered up” or “given away” to the man and for her to thereafter “obey” him) is offensive and does not sit comfortably with the idea and desire for both parties to a legal union to be recognised as entering it willingly and equally.

The process of entering into a civil partnership is straightforward; with no need to exchange vows and the union becoming valid after both parties simply sign the civil partnership document.

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When is half too much? Sharp v Sharp 2017

When_is_half_too_much

Sharp v Sharp [2017] changed the way the courts divide up a divorcing couple's assets where the marriage is short and childless.

The Sharp’s had been married for four years, following two years of living together.  They separated in 2013 when Mrs Sharp discovered her husband's infidelity.  

They had no children together and both worked full-time.  At the start of their marriage they were both earning similar basic annual salaries of around £100,000, but Mrs Sharp received bonuses thereafter of £10.5 million.  Mr Sharp's bonuses were insignificant. 

Before they got married they bought a property in joint names for £1.02 million which was funded solely by Mrs Sharp.  During the marriage they bought a second property in joint names for £2 million.  Other than the jointly owned properties they generally kept their finances separate.

Originally the court awarded Mr Sharp £2.725 million but Mrs Sharp appealed, saying this was too much on the basis that:-

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Til death us do part? A 2018 study into what makes a successful relationship

Successful_relationahip

Asking ten “critical” questions before embarking on a serious relationship can help couples thrive according to a 2018 study by the University of Exeter.

Long-term relationships last when they are built on friendship, respect, realistic expectations, shared interests and humour, according to the research.

Evidence from couples, as well family lawyers, mediators and judges has helped identify the ten key aspects of a relationship which other couples can use to reflect on to see if they are likely to thrive and stand the test of time.

Continuing to ask the ten critical questions can also help couples build their relationship.

The questions are:

  1. Are my partner and I a 'good fit'?
  2. Do we have a strong basis of friendship?
  3. Do we want the same things in our relationship and out of life?
  4. Are our expectations realistic?
  5. Do we generally see the best in each other?
  6. Do we both work at keeping our relationship vibrant?
  7. Do we both feel we can discuss things freely and raise issues with each other?
  8. Are we both committed to working through hard times?
  9. When we face stressful circumstances would we pull together to get through it?
  10. Do we each have supportive others around us?
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Common law marriage is a myth

Common_law_marriag_20181002-060055_1

'Cohabiting couples need basic legal protections’ A coalition of legal organisations has written to The Guardian (September 2018) urging the government 'to take steps to bring forward, as a minimum, basic protections for cohabiting couples.'

The organisations note that marriage numbers are declining. Currently, one in eight adults in England and Wales are cohabiting, a trend steadily increasing since 2002.

However, a recent survey showed as many as two in three cohabiting couples were unaware that there is no such thing as "common law marriage" in England and Wales.

As such, parties who end a cohabiting relationship; whether of short or long duration, do not have the right to bring legal claims against the other for a fair share of the capital or pensions held in the sole name of the other and nor are they entitled to receive monthly maintenance from their wealthier partner.

The letter to the Guardian states:

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