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Ending the Divorce Blame Game

Stuart Duncan a family lawyer with Charles Lucas & Marshall, believes we are overdue a change in the law which will allow couples to divorce with minimum conflict.

Stuart Duncan

Stuart Duncan

The law affecting families in England and Wales is changing. Since legal aid was withdrawn from family law cases in 2012, resolving disputes amicably has never been more important. An increasing number of people are having to navigate complex legal rules without legal support and at one of the most difficult times of their lives.

Our current divorce laws are not helping, as they effectively encourage separating couples to blame each other for the breakdown of their marriage.

At the moment a couple cannot agree to a divorce unless they have been separated for more than two years. In the majority of cases one person has to blame the other for behaving unreasonably or committing adultery to obtain a divorce.

This can create unnecessary conflict and make it harder to reach agreement on more important issues such as their children and finances.

As lawyers, we can end up spending several months arguing about who is responsible for the marriage breakdown when it would be more productive to focus on other issues.

We encounter a large number of people who would like to divorce amicably but cannot do so under the current system.

The Family Law Act 1996 was supposed to introduce no-fault divorce but was abandoned by the Blair government.

There is now growing consensus that people should not have to blame each other to end their relationship.

The Law Commission, tasked with reviewing and recommending reform, supports no-fault divorce, as do a number of Family Division and Supreme Court Judges. The President of the Family Division believes that no-fault divorce would ‘bring some intellectual honesty to the system.’

He says, ‘a District Judge has to go through the ritual of assessing whether the cited reason for a divorce is acceptable when both parties often agree that it is… we have had for quite some time in this country, divorce by consent, in the sense that both parties wish there to be a divorce… the process is essentially a bureaucratic, administrative process, albeit one conducted by a District Judge.’

Resolution, an organisation of 6,500 family lawyers and other professionals, believes that all family matters should be approached in a constructive and non-confrontational way. In a recent survey, over 90 per cent of members agreed that no-fault divorce should be available to all separating couples. A recent campaign gathered significant support on social media and lobbied MPs for a change in the law.

Many other countries around the world – including Australia, the United States, and Spain – have already introduced no-fault divorce. It remains to be seen whether we will join them.

For further advice please contact Stuart Duncan on 01635 521212 or stuart.duncan@clmlaw.co.uk

Written by Stuart Duncan

December 23rd, 2016 at 10:57 am

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Written by Stuart Duncan

October 13th, 2016 at 3:53 pm

What is an Inheritance Act Claim?

Stuart Duncan

Stuart Duncan

Many people are under the misapprehension that the length and commitment of a relationship will grant rights akin to those in marriage. Stuart Duncan, a family lawyer with Charles Lucas & Marshall, explains why this is not actually the case and the options open to family and dependants who want to make an Inheritance Act claim.

Where an individual has died without making proper provision in their Will for their relatives or dependants, judges have a wide discretion to redistribute assets to produce a fair result.

The Inheritance (Provision for Family and Dependants) Act 1975 aims to make further financial provision for those who:

  • have not inherited as a result of intestacy (where there is no Will)
  • have been left out of a Will entirely
  • have not been left as much as they need

Only certain people are entitled to make an Inheritance Act claim. Broadly speaking, these are the immediate family of the deceased or their partner if they were living together as husband and wife (or as civil partners).

A surviving spouse or civil partner can apply for such financial provision as is reasonable in all the circumstances, whether or not that provision is required for his or her maintenance.

Everyone else is limited to such reasonable financial provision as is necessary for their maintenance, insofar as the estate can provide it.

The time limit for making a claim is usually six months from the date on which representation (Grant of Probate or Grant of Letters of Administration) is taken out and so it is very important to act quickly.

There has been an increase in recent years of Inheritance Act claims.

Earlier this year the court awarded Ms Joy Williams, a half share in her deceased partner’s house.  Ms Williams had lived with Mr Norman Martin, for nearly 20 years and they had bought a property together in Dorset in 2009.

The problem was that Mr Martin had never formally divorced from his wife, nor had made a Will leaving his share of the Dorset property to Ms Williams. Mr Martin’s share in the property automatically passed to Mrs Martin on his death.

Ms Williams made an Inheritance Act claim and the Judge found that Ms Williams and Mr Martin had in ‘all material aspects’ lived as husband and wife. He therefore decided that Ms Williams should be entitled to Mr Martin’s share of the property as well as her own share.

Whilst justice was done in the end, it would have been much less risky, expensive and time-consuming to clarify matters before Mr Martin died.

Many people are still under the misapprehension that the length and commitment of a relationship will grant rights akin to those in a marriage but this is not actually the case. If you are in a cohabiting relationship, then the best way to protect your partner is to enter into a living together agreement, hold your property as joint tenants, and/or ensure you make a Will, clearly setting out your wishes on death, in order to avoid the situation that Ms Williams found herself in.

If you are involved in a dispute over a Will or need advice on preparing one, it is important to get advice as soon as possible.

For further advice please contact Stuart Duncan on 01635 521212 or stuart.duncan@clmlaw.co.uk

Written by Stuart Duncan

September 27th, 2016 at 8:45 am

Child Maintenance – Some Changes

If you are separating or divorced, or about to become so, and if children are involved you should be aware of some changes to the child support regime.

Stuart Duncan

Stuart Duncan

From 29th July 2013 the Child Maintenance Service (CMS) came into being. It is intended that eventually it will completely replace the old Child Support Agency (CSA).

Already the CMS deals with all new applications where there are 2 or more “qualifying children”. “Qualifying children” means that the children have the same parents and there is no existing case involving both these parents.

The principle change is that the amount of the payment of the payment will be based on the gross income rather than the net income of the non-resident parent.

The CSA will continue to deal with the all other new applications which will mostly be those by parents with one child.

It is important to say at the outset that if there is truly equal shared care then no child maintenance is payable. However if one parent is in receipt of Child Benefit then there is a presumption that they are “providing care” for the child and should therefore receive the payment.

Broadly speaking the calculation is as follows:-

For gross income up to £800 per week (£41,600 per annum gross or £3,466 per month gross) child support is payable:

For 1 child at 12%

For 2 children at 16%

For 3 or more children at 19%

Where the paying party is earning between £800 per week and £3,000 per week (£156,000 per annum) then the following rates apply:

For 1 child at 9%

For 2 children 12%

For 3 or more children at 15%

The next step is to make a deduction for other children living in the non-resident parent’s household. There are also staged reductions for the extent of shared care.

“Gross Income” is defined as the total of the non-resident parent’s income from all employment, self employments and pensions. That person’s pension contributions may be deducted.

Other points to note are that:

  • The flat rate for those with an income of less than £100 per week gross is now £7.
  • There is reduced rate for those earning between £100 – £200 per week.
  • In the future it is intended to bring in a fee for making the application and collection charges payable by both the non-resident parent and the receiving parent.
  • Payments can of course be agreed between the parent in order to prevent the stress, animosity and delay incurred to applying to the CMS.
  • Agreement as to child maintenance can be recorded in the financial consent order made in the divorce proceedings. But after 12 months from the date of the order either parent can make an application to the CMS (or CSA) for an assessment to be made.

Whilst the new regime endeavours to make the calculation more straightforward by removing the necessity to calculate “net income”. It is difficult to see any other clear improvements nor any better modes of enforcement. It still all looks cumbersome and time consuming, and sadly having the potential to prolong animosity between the parents.

For further advice please contact Stuart Duncan on 01635 521212 or stuart.duncan@clmlaw.co.uk

 

Written by Stuart Duncan

July 8th, 2016 at 9:00 am

Will My Accident Compensation Still Be Mine If We Divorce?

In a successful accident claim, the Court will decide the amount to be paid to the Claimant. When a person has suffered a serious injury with longer term consequences and possibly the award includes sums for future loss of earnings, future care and perhaps aids and appliances, most Claimants will consider that the funds are “theirs” and should not be “shared” in any way!

Stuart Duncan

Stuart Duncan

Should the Claimant be in a relationship – either a Marriage or Civil Partnership, that fails, then there are legal consequences that might challenge this assumption.

Firstly, before beginning any arguments as to whether certain matrimonial assets can be “ring fenced” for the benefit of one of the parties, the Claimant must realise that he or she is obliged to disclose the extent of those assets so that they can be ‘taken into account’ by the Court.

Section 25 of the Matrimonial Causes Act 1973 contains the essential factors that will be taken into account by the Court when deciding a matrimonial/Civil Partnership settlement.

These include the income, earning capacity, ages and standard of living of the parties. Physical and mental disabilities are also considerations but carry no more weight than the others.

In a leading case in 1992, when considering monies received as a personal injuries settlement, the Court found that it was not “sacrosanct nor any part of it secured against the application of the other spouse”.

The Court will first assess the financial “needs” of each party and if the joint assets do not produce a surplus over and above these needs, then the Court will assess the ongoing needs of each spouse/partner including their housing and future care needs.

It might be the case that the injured spouses’ (or partner’s) future needs will increase in time as his or her disability worsens with age; it may be that the party who is the primary carer for the children will reduce once the children become independent or finish education.

In cases of catastrophic injury where ongoing care needs are very substantial, the Court may consider that a substantial amount of the joint capital and income is required by the injured party and that to use any or any substantial amount or all of the settlement sum will be to the detriment of the injured person’s quality of life and needs of the future.

If the parties are Married or in a Civil Partnership prior to the award being received, then a ‘Postnuptial Agreement’ is worth considering. If a Marriage or Partnership is to take place following settlement then a ‘Prenuptial Agreement’ might be considered. Although these Agreements do not automatically “bind” a Court, if they are drafted properly they become very strong evidence of the parties agreed intentions and difficult to displace.

If the parties are not married and a home is to be purchased and or adapted from the settlement funds, a ‘Co-habitation Agreement’ or ‘Declaration of Trust’ might be considered so that the extent of the injured parties share in the property can be clearly set out.

If you wish to know more please contact us as my firm has considerable experience in both complex and substantial personal injury claims and also in giving family law advice in complex financial situations.

For further advice please contact Stuart Duncan on 01635 521212 or stuart.duncan@clmlaw.co.uk

Written by Stuart Duncan

July 8th, 2016 at 8:00 am

Posted in Divorce

Dealing With Pensions in a Divorce

Elianne Edgington, a family lawyer at Charles Lucas & Marshall, explains the choices facing divorcing couples.

Elianne Edgington

Elianne Edgington

A pension is often a significant asset in a marriage and requires proper consideration on divorce. Although a divorcing spouse’s attention is often focussed on the family home and what will happen to it, pensions can be extremely valuable and should not be forgotten.

Pensions are valued by obtaining a Cash Equivalent valuation of the benefits acquired to date. This is the figure provided to the other party and to the Court. However, in some cases a Cash Equivalent value may not be representative of the true value of the pension and further investigation is necessary.

There are three ways of dealing with pensions on divorce: pension sharing, pension attachment and offsetting.

Offsetting means to offset the value of the pension against other assets, for example the equity in the family home. It is sometimes favoured when it is important for one party to keep the home whereas the other party is more concerned that their pension is left intact.

Care needs to be taken in using this approach, because a pension is a very different asset and its Cash Equivalent value should not necessarily be compared pound for pound with the value of equity in the home or other liquid assets. If good advice is not taken, it is possible for one party or the other to be disadvantaged by this approach.

A pension attachment order means that part of a person’s pension income or lump sum is diverted to their spouse on the pension member’s retirement. However this method is now rarely used as it gives the non-pension member spouse less security of income.

Pension sharing is the most common way of dealing with a pension where it is a significant asset. It enables a percentage of the Cash Equivalent value to be transferred to the non- member spouse giving them a completely separate pension under the same scheme or transferred out to a different scheme of their choice.

Whether pension sharing is appropriate and how much of the pension should be shared will be dependent upon several factors including the age of the parties and the length of the marriage.

It can be complicated to work out what percentage of a Cash Equivalent value should be transferred to the other spouse. It may not be simply fifty percent, even after a long marriage, for several reasons:

  • the Cash Equivalent may not be representative of the true value of the pension
  • there may be several pensions which need to be compared to work out which one or more should be shared
  • it may be fairer to work out what percentage would give the parties an equal income in retirement rather than an equal capital value
  • there may be a long gap between the parties’ respective retirement dates which could have a big impact on the income received
  • it may be considered fair to take into account that a proportion of the pension was built up before the marriage or after separation.

In any of these circumstances the parties and their solicitors may decide to consult an actuary and ask for a report and calculation of the percentage transfer in order to achieve a fair outcome.It is important to remember that pensions cannot be shared without a Court order on divorce.

For further information contact Elianne Edgington on 01235 771234 or Elianne.edgington@clmlaw.co.uk

 

Written by Elianne Edgington

December 5th, 2015 at 4:56 pm

Grounds for Divorce

In October the proposal for no fault divorce was debated in the House of Commons.

Elianne Edgington

Elianne Edgington

Currently spouses can only divorce on the grounds of unreasonable behaviour or adultery if they do not wish to wait for two years (or more) after separating. Adultery must take place between two partners of the opposite sex (despite the introduction of same sex marriage) and must be no less than a sexual relationship.

Unreasonable behaviour is commonly used when adultery is not relevant, but involves listing out details of the other party’s behaviour in writing – not a pleasant thing for the other spouse to read.

Both grounds can cause unnecessary conflict between parties from the outset, leading to greater problems resolving financial issues, increased costs, stress and a detrimental impact upon children.

Many clients believe (mistakenly) that if the other party is the one at fault in the divorce this will impact upon the financial division or arrangements for children.

Although there is the alternative of waiting for two years and divorcing by mutual consent this necessitates a long delay in fully resolving the financial division so that parties are left without financial security for two years and cannot move on.

The idea of divorce without fault is not new and was even enacted (but never implemented) twenty years ago. Unfortunately there are opponents who believe it could make divorce too easy and in some way undermine marriage. I am in no doubt that the calls for reform should be heard and hope this much needed change will finally be brought into law.

For further information contact Elianne Edgington on 01235 771234 or Elianne.edgington@clmlaw.co.uk

Written by Elianne Edgington

December 1st, 2015 at 12:03 pm

Women Get Right To Reopen Divorce Settlements

Divorcing spouses must fully disclose their assets and income or risk their financial agreement or order being set aside at a later date. 

Elianne Edgington

Elianne Edgington

This is the result of the landmark decisions of the Supreme Court in the joined cases of Sharland and Gohil delivered on 14 October 2015.

In the case of Gohil, the husband had deliberately concealed his true wealth saying that the majority of his assets were held on behalf of others. In Sharland the husband lied to the Court in evidence about his plans to float his company on the stock market and significantly undervalued his shares.

Both cases had originally been settled by agreement but the wives later made applications to set aside their financial orders when evidence of their husbands’ deceit came to light. Now both wives have been successful and new hearings will consider what financial awards should be made in all the circumstances.

The Sharland case is interesting because the wife had already received a very good award, to include 30 per cent of the net proceeds of sale of the husband’s shares, whenever that took place.

The earlier Court of Appeal decision in the same case was based on the view that even if the husband had not been fraudulent, it was unlikely that a substantially different order would have been made.

However the Supreme Court overturned that decision, ruling that ‘fraud unravels all’ and that the wives should have the benefit of a full and fair hearing.

In my view this is absolutely right. A husband or wife who is deliberately dishonest about their financial position should not be allowed to benefit from that dishonesty. These decisions now provide an opportunity to other spouses who may have agreed a settlement in the past but now suspect their husband or wife of deliberately providing misleading or incomplete information.

If you would like further information please contact Elianne Edgington on 01235 771234 or Elianne.edgington@clmlaw.co.uk

Written by Elianne Edgington

October 20th, 2015 at 3:30 pm

Can I change my child’s surname?

Several clients have recently asked me this question. The short answer is not without the written consent of the other parent or a Court order.

Why the problem? 

Elianne Edgington

Elianne Edgington

Most usually a child is registered at birth with their father’s surname; whether this was because the parents were married or thought that they would marry in the future, or to reflect the biological link between the father and the child, or for reasons of tradition. On the parents’ separation or some time later the mother may seek to change the child’s surname to that of her own. Perhaps the parents were never married, or the mother has decided to revert to her maiden name. She may have remarried and had further children with the result that all the other members of the household have the surname of her new husband. She may perceive it as being difficult for the child, particularly once they start school, to have a surname which is different to hers if she is the primary carer. 

What should be done? 

A child’s surname can only be changed legally if all those with parental responsibility for the child provide their consent in writing. A father will have parental responsibility if he is named on the child’s birth certificate or was married to the mother when the child was born. If a father will not agree to the change of name, then an application to the Court will need to be made. 

How does a Court decide? 

The most important consideration for the Court is the child’s welfare. The Court will listen to the arguments of both parties and consider all the circumstances of the case, with particular regard to the welfare checklist set out at Section 1(3) of the Children Act 1989. This includes the child’s own wishes and feelings, although the weight attached to these will depend upon the age and understanding of the child. Other factors listed under Section 1(3) include the child’s needs (including emotional needs), the likely effect on the child of a change of circumstances and any harm that the child may be at risk of suffering, amongst other factors. 

The fact that the child’s surname is different to the mother’s does not on its own carry much weight. It is now not uncommon for school children to have a different surname from their mother. The fact that the name represents a link to the biological father of the child is an important factor. The level of commitment to the child and involvement of the father in the child’s life is likely to be significant. If he has disappeared or shown no interest in seeing the child, or if there is a history of serious domestic abuse or similar then this could well tip the balance in favour of the mother. 

Sometimes a parent causes a child to be known by a different surname informally, without applying for a deed poll or Court order. Whilst this may be done for some purposes, it is likely to be looked upon unfavourably if the other parent brings it to the Court’s attention, and therefore it is advisable to obtain the permission of the Court. If that is not done, the Court may not allow the change of name and this could cause further confusion and upset for the child. 

A common compromise is to allow a mother to give the child a double-barrelled surname, encompassing both parents’ surnames. This still requires the written consent of the father or a Court order, but is more likely to be successful.  

Once a child is 16 it is not necessary to make a court application and a child can apply to change their own name by deed poll.

Please contact us if you would like advice about your own circumstances or assistance with a Court application.

For more information or to arrange an appointment, please contact Elianne Edgington (elianne.edgington@clmlaw.co.uk) in the Wantage office (01235 771234).

 

 

Written by Elianne Edgington

September 26th, 2015 at 12:26 pm

A warning to those who try to avoid financial responsibilities on divorce

In an unusual case a wife has been awarded 100% of the family assets, consisting of the home worth £250,000 and savings of over £300,000. Although the usual starting point for dividing assets on divorce is based on equality, this was a case where the husband, Mr Aly, had moved to Bahrain a year after the parties separated, since which time he had paid no maintenance or child support for his son and daughter. 

Elianne Edgington

Elianne Edgington

A judge found that there was no real prospect of the husband paying maintenance in the future, he had effectively “washed his hands” of his family in the UK and started a new family in Bahrain. He was out of reach of both the Child Support Agency and the British Courts meaning that any order for maintenance would be difficult to enforce. With this in mind, the judge decided that the only way to ensure that the children were properly provided for was to award the wife 100% of the assets. The decision was made in July 2014 and has now been confirmed by the Court of Appeal. Mrs Aly had previously secured a freezing order over the husband’s assets so that they could not be dissipated before the hearing.  

The case should serve as a warning to those who try to avoid their responsibilities that the Courts may find other ways to achieve a fair outcome. 

In another recent decision, Charles Williams-Wynn, a wealthy aristocrat who will in due course inherit part of a £2 million estate and was receiving a proportion of his family’s income, was jailed for 28 days for refusing to pay child support and building up arrears of £4800. 

A further two cases in which husbands Mr Sharland and Mr Gohil were found to have deliberately concealed their true wealth in divorce proceedings, has recently been heard by the Supreme Court. The wives argued that husbands who lied about the value of their assets in such proceedings should be subject to greater penalties for fraud and that their settlements should be renegotiated as a result. A decision in these cases is still awaited but could have significant consequences for husbands or wives who try to hide their true financial position.  

Surely it is correct that spouses who lie to the other party and to the court should not be allowed to keep the settlement that was awarded as a result of such deceit. 

However, it remains the case that spouses should not go “digging” for a truth they believe has been hidden. In yet another recent decision the Court of Appeal upheld a decision of a judge not to look at evidence that had been obtained by a wealthy banker, Mr Arbili, who had illegally hacked into his wife’s emails, in an attempt to prove that she was wealthier than she had claimed. This leaves spouses who suspect dishonesty in a tricky position.

For more information or to arrange an appointment, please contact Elianne Edgington (elianne.edgington@clmlaw.co.uk) in the Wantage office (01235 771234).

 

Written by Elianne Edgington

July 17th, 2015 at 2:18 pm