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Going to Live in Ireland?

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Posted on 5th January 2012 by Suzy Hamshaw in Child Arrangements |Custody |Divorce |News

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Q. I have separated from my partner and the father of our 10 year old son. I wish to return to live and work near my family in Ireland.   What do I need to do?

A. Suzy Hamshaw, family lawyer at Charles Lucas & Marshall

Regions of Ireland

Regions of Ireland

The first question to consider is whether your son’s father has parental responsibility for him.  If you were married, entered into a parental responsibility agreement or if there is a Court order for parental responsibility then he will have parental responsibility.  His name being on the birth certificate will not be enough as your son was born before 2003.  

Any decision to emigrate or ‘remove a child permanently from the jurisdiction’ should be made jointly by those with parental responsibility and in any event your son’s father’s consent should be sought.  If he agrees then it would be sensible to record that consent in writing before making arrangements.  If he does not agree and you wish to go ahead with the planned move then, assuming he has parental responsibility, you will need to consider making an application to the Court under The Children Act 1989 for leave to permanently remove your son from the jurisdiction of England and Wales.

Your partner may also choose to make an application for a prohibited steps order to prevent you from removing your son and possibly a residence order should he wish for your son to live with him in the event of you moving.

If residence is in dispute the Court will deal with this aspect first and the approach will differ to a situation where you are the clear primary carer.  In all cases the Court will give paramount consideration to your son’s welfare.  The Court will also give consideration to the whole of the period of your son’s dependence and not just the immediate future.

The Court will consider the reason for the application and your desire to emigrate. A move for compelling reasons such as employment, family etc may be viewed differently to one simply made as a ‘lifestyle’ choice.  The reasonableness of the proposed move must be considered alongside the effect of the application being refused.

The circumstances of the proposed move will also be considered such as living conditions and financial implications and as your son is 10 years old the Court is likely to give significant weight to his wishes and feelings.

The effect of the proposed move on your son’s contact with his father will be important as will be the impact on their relationship.  In this respect much might depend on the arrangements for residence and contact you currently have and to what extent you share the care of your son.

Applications to the Court of this nature can be costly and complex and need to be thoroughly and properly thought through and prepared.  In any situation, before Court proceedings are contemplated, it is always sensible to consider other ways in which you might try to reach agreement such as attending mediation or by using  collaborative law.

For further information contact Suzy Hamshaw on suzy.hamshaw@clmlaw.co.uk or telephone Charles Lucas & Marshall’s Hungerford office on 01488 682506.

Property Entitlement After Break-Up

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Posted on 30th November 2011 by Suzy Hamshaw in Collaborative Family Law |Divorce |News |Pre-Nuptial Agreements

Q. I bought my house nine years ago with my partner but we split up five years later. I now want to sell it but my ex-partner says he is entitled to 50 per cent of the sale even though he has not contributed a penny towards the mortgage in the last four years. What is he entitled to?

Suzy Hamshaw - Divorce Specialist, Family Law Expert and Financial Claims on Divorce
Suzy Hamshaw

You could have avoided this dispute by taking proper legal advice either when you set up home together or when you separated. So often arrangements between couples are founded on “trust” and there is a reluctance to incur legal fees in documenting transactions. However, it is usually in the interests of all parties that steps are taken to avoid the potential for costly litigation further down the line.

Ideally, you should have tried to come to an arrangement with your partner to transfer the property into your sole name when you split up and agreed what amount of money he was entitled to for his share of the property at that point. Perhaps, financially, you were not in a position to do this.

So what can you do now? Where the property is jointly owned, there will be a presumption of joint beneficial ownership unless there is an express declaration otherwise. In joint names cases, the presumption is difficult to rebut but it can be done by demonstrating that the parties had a different common intention as to their share of the property,  either at the time the property was bought or later.

The case of Kernott v Jones decided by the Supreme Court in November 2011 upheld an earlier decision that joint owner Mr Kernott was entitled to only 10 per cent of the property, based upon the parties’ common intention changing following their separation. This decision has been welcomed by family lawyers because it gives more clarity about property division for those living together.

As a law firm, we see many cases such as yours. The good news for you is that there is a growing willingness of the courts to get away from the rigidity of the default position of 50/50 and to use powers to adjust property shares based on evidence of what must havebeen intended by people’s conduct after the acquisition of the property.

It is always difficult to find good evidence to make this apportionment because ‘what happens if it goes wrong’ is usually a million miles away from what the parties are thinking about when they are ‘starry- eyed’ about a ‘permanent’ relationship. This is why there are good reasons to get advice both before you set up home with someone and/or at the time of a break up because things might not be quite as you think.

For further information contact Suzy Hamshaw on 01488 682506 or suzy.hamshaw@clmlaw.co.uk

Are Cohabitation Agreements Effective?

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Posted on 19th October 2011 by Herbert Bosin in News

Suzy Hamshaw, a family lawyer with Charles Lucas & Marshall reports on the rise of cohabitation agreements and argues that even though they are far from perfect, they do give a couple some protection if their relationship breaks down.

If you love me put it in writing
If you love me put it in writing

I have prepared a large number of cohabitation agreements in recent months and I expect this trend to continue. Given that marriage rates are apparently at their lowest since 1895, it may not seem all that surprising.

However, despite the undoubted popularity of cohabitation, the law, as yet, has failed to keep pace with this choice.

When things go wrong they are at the mercy of property law and the Trusts of Land and Appointment of Trustees Act, 1996, succession law and the Inheritance (Provision for family and Dependants) Act, 1975. If children are involved, the Child Support Agency and the Children Act, 1989 will come into play.

This can result in separate claims being brought in relation to property and children with property being strictly dealt with on the basis of trusts. Contrast this with the list of factors that a court can take into account when dealing with financial claims on divorce under the Matrimonial Causes Act 1975 and the wide discretion of the court hearing the case.

However, it is possible for those planning to live together to formalise their arrangements and enter into a cohabitation agreement.  While not perfect, this will go some way to protecting the couple in the event of a relationship breakdown. To be of any use, it is essential that a cohabitation agreement complies with the requirements of contract law and in this respect the agreement must:

  • Make it clear that there was an intention to create a legal relationship
  • Be entered into freely by each party without duress from the other
  • Be precise
  • Not be contrary to public policy or oust the jurisdiction of the court

Therefore, an increase in cohabitation agreements is welcome and I hope is perhaps evidence of a greater understanding of the vulnerabilities of the cohabitee.  Unfortunately a worrying percentage of people living together still believe that they are a ‘common law’ spouse and protected in some way despite the fact that common law marriage hasn’t existed in England and Wales since 1753!

So, is reform likely?  In 2007 the Law Commission recommended that cohabitants should be given rights to financial relief at the end of a relationship to ’provide economically vulnerable members of society with the private means to rebuild their lives and to ensure a fairer division of assets on relationship breakdown and to ensure that the pluses and minuses of the relationship were fairly shared between the couple.’

However these recommendations have not been acted on. In 2009 the Cohabitation Bill did not proceed beyond the House of Lords.  It appears therefore that the vulnerability of the cohabitee will remain for the time being at least

On a more positive note, for those cohabiting as a prelude to marriage, the Office for National statistics has good news. The figures suggest that the key to a strong marriage is to live together first.  Perhaps this is one of the reasons for recent divorce rates showing a decrease.

For further information contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

The Advantages of Marriage

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Posted on 6th July 2011 by Michael Berrett in Marriage |News

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Michael Berrett is a partner with solicitors, Charles Lucas & Marshall, specialising in family law and is also an assistant Anglican Priest working in the Diocese of Oxford. His two roles mean he sees marriage from very distinct perspectives.

The Advantages of Marriage

The Advantages of Marriage

When the parties have been married, the Court has powers to make orders to deal with their property and their finances so as to try to ensure ‘fairness.’  Fairness does not relate so much as to who brought which assets into the marriage but as to what would be a fair footing to enable the parties to ‘move on.’

Where couples are not married the Court’s powers to bring about this fairness platform are substantially less.  For example, if the mother of a child not in a married relationship has opted out of the employment market in order to bring up a family and to be a homemaker for a while, this is less likely to attract recognition financially than if the parties had been married.

There is also an innate reluctance in the Courts to recognise the effect of ‘Pre-Nuptial Agreements.’ These have become fashionable in trying to engineer what might happen should a marriage break – even before the vows are taken!  These agreements try to restrict the Court’s powers and set the parties on the fairest footings they can at the time of break down.

Our legal definition of what constitutes a marriage comes from a very early period in our history.  It must be formed on mutual vows between a man and a woman to be committed to each other for life and to the exclusion of all others.  It is interesting to note that when civil partnerships were created by Parliament there is no such life time requirement nor is unfaithfulness a specific ground for the dissolution of a civil partnership.

There is no doubt that marriage is therefore a unique and demanding concept.  The intention of both parties when it is formed is that it must be life-long and monogamous.

Monogamous and life-long marriage is not an exclusively Christian concept but in the Christian tradition the imagery associated with marriage is that of the commitment of the creator to his creation.  It is indissoluble bond based on a relationship rather than on subjection and domination.  The word used in the Jewish scriptures is ‘covenant.’  Such a relationship creates a lasting sense of belonging.  Belonging and knowing that we are uniquely valued is a quality that many seek and find elusive in our society.

While those who opt for marriage are perhaps thought brave or optimistic, it calls them to a relationship of greater commitment and trust than any other.

Michael Berrett can be contacted on 01235 771234 or michael.berrett@clmlaw.co.uk

PRE-NUPTIAL AGREEMENTS –

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Posted on 3rd May 2011 by Michael Berrett in Pre-Nuptial Agreements

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We have had a number of enquiries recently about Pre-Nuptial Agreements.  They raise the ISSUE of whether sensible adults should be free to determine their own  property affairs or whether the Court should always retain its powers to protect the vulnerable from exploitation and try to ensure fairness? 

As always it is a balancing act.  There was a lot of publicity after the Supreme Court Case of Radmacher –v- Granatino last year when the Court seemed to say that a written agreement governing how property should be split should be “given weight” by the Court provided that it is entered into freely.

But the law is still uncertain as to what is required to make these agreements binding.  The Law Commission has published a consultation paper about this and the consultation period has just closed.  It may be that the current uncertainty will be resolved shortly by Act of Parliament.

While we wait, Clients have to decide whether it is worth their while entering into such agreements.  No guarantees can be given, but it is likely that more weight will be given to such an agreement if it is-

• Clearly worded and entered into freely
• Each party has received independent legal advice before entering into the agreement
• Each party is able to demonstrate that they have had full disclosure of the other’s assets and means

So at the moment we can only advise on client by client basis.  The Courts have always jealously guarded their rights to exercise their powers to ensure fairness by disregarding earlier informal agreements.  It may be that, in some cases in the future, clients will be able to ring fence pre-acquired wealth such as a business, a farm or inherited assets. 

We all await the outcome of the consultation paper after which we will be able to advise in more detail.

Can’t Get a Mortgage – Can’t Afford to Split

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Posted on 19th April 2011 by Suzy Hamshaw in Divorce

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A lack of mortgages and stricter lending criteria mean unhappy couples are having to stay together because they cannot find a way of living separately.

Suzy Hamshaw - Divorce Specialist, Family Law Expert and Financial Claims on Divorce

Suzy Hamshaw

Suzy Hamshaw, a family lawyer with Berkshire law firm, Charles Lucas & Marshall says increasing numbers of couples are starting divorce proceedings only to call a halt – because they realise they won’t be able to source a mortgage to fund their new living arrangements.

“If a couple is splitting the equity in the family home, often it means the deposit they have for their next home is not particularly large,” says Suzy Hamshaw. “Stricter lending requirements often mean they do not have a big enough deposit to buy another home – and they cannot borrow enough to bridge the gap.”

Charles Lucas & Marshall says it has noticed a rising trend over the last year with couples coming to see them seeking divorce advice – only for the process to come to a grinding halt because couples realise they cannot afford to split.

“It is a very harsh reality check for many couples,” says Suzy Hamshaw. “But if the equity in a property is being split and lenders are looking for a 20 per cent deposit for a new mortgage application then often it can’t be done.

“In the past, unhappy couples often stayed together for the sake of the children – but now they are just as likely to stay together because they cannot afford to divide up the family home. Couples feel stuck in a relationship out of which there is no economic escape.”

For further information contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

Amicable Divorce – It Does Exist

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Posted on 25th January 2011 by Suzy Hamshaw in Collaborative Family Law |Divorce

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Swindon lawyers will be contributing to National Collaborative Law Week (24 January)  – with the aim of urging divorcing couples to separate as amicably as possible.

Law firms who specialise in collaborative law are planning a series of events throughout the week to highlight the fact that divorcing couples now have an alternative to going to court.

Suzy Hamshaw - Divorce Specialist, Family Law Expert and Financial Claims on Divorce

Suzy Hamshaw

“The traditional approach of divorcing through the courts, polarises attitudes quickly and forces couples to highlight their differences,” says Suzy Hamshaw, a family lawyer with Swindon law firm, Charles Lucas & Marshall.

“The emotional costs of this approach can be enormous and the effect on children and wider family members can be long lasting.”

Collaborative Family Law aims to help families manage their separation in a more respectful way. Couples and their collaborative lawyers agree in writing  that they will not go to court but will work together to resolve issues amicably.

This is achieved through structured meetings, with couples setting the agenda and listening to each other’s wishes and needs.

“This is not mediation by another name,” says Suzy Hamshaw. “Using our knowledge of the law, we help to shape agreements and support couples through their separation.

“While some couples may shy away from the prospect of meeting face to face, with support, these feelings do not last. We can help couples to see ways in which they can actually work together and plan decisions about their new lives apart.”

“Most couples would prefer to resolve issues without confrontation. Protecting their children from emotional harm and the worry of separation is a high priority.”

For more information visit www.collaborativefamilylawyers.co.uk or contact Suzy Hamshaw on 01793 511055 or suzy.hamshaw@clmlaw.co.uk.

Swindon Family Lawyer Criticises Government Plans To Withdraw Legal Aid for Divorce Cases

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Posted on 19th January 2011 by Suzy Hamshaw in Divorce |News

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A Swindon lawyer has criticised Government proposals to withdraw legal aid for divorce cases.

Suzy Hamshaw, an experienced family lawyer with Swindon/Newbury/Wantage firm, Charles Lucas & Marshall, says the proposals will discriminate against women and the poorer sections of society.

“Wealthier partners will have the advantage – and this is often the husband,” says Suzy Hamshaw. “He will be able to afford private legal fees. The poorer partner will have no alternative but to represent herself.

“Just picture it: a wife who has been dominated for years trying to cross-examine her soon-to-be-ex-husband on his financial conduct and then being cross-examined herself by an experienced barrister.”

Under Government proposals, published this week, legal aid will no longer be available for divorce cases, including those which involve child residences. Aid will only be available for cases where domestic violence, forced marriage or international child abduction is proven.

“Ask the average family lawyer how many of their cases involve any of those factors and I’ll bet a pound to a penny that it’s a small minority,” says Suzy Hamshaw. “Most child residence cases, for example, involve a breakdown in communication between the parents that has reached such a stage that they need an independent arbitrator – in other words a judge – to intervene.”

The new rules will force separating couples to go to mediation before involving the courts. The Law Society and Resolution, the mediation body, have both made representations to the government on the issue.

“Like most lawyers, I am in favour of mediation,” says Suzy Hamshaw. “But a vital element of mediation is the feeling by both parties that they are meeting on equal terms. How many times do we hear a separating spouse tell us that she or he feels too intimidated by the other to be in the same room, let alone carry on meaningful discussions?”

The government’s own assessment of the impact of the proposed changes shows that the impact on three groups of people – women, ethnic minorities and the disabled – would be disproportionate.  However, no action has been taken to mitigate the effects upon these groups.

For further information contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

Bah! Humbug!

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Posted on 22nd December 2010 by Suzy Hamshaw in Divorce |Marriage |Observational

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At this time of year Family lawyers could be forgiven for shouting “Bah! Humbug!”, retiring to bed early on Christmas Eve and staying there for a week, having been exhausted by last-minute contact applications, emergency maintenance hearings and the usual crop of people who just can’t stand the prospect of Christmas with their in-laws.  Is it just me or does everybody else get the impression that the courts list First Appointments and FDRs for the week before Christmas just to annoy us?  How many of us have missed out on various firms’ lunches because we’ve been stuck in Court trying to negotiate contact arrangements over Christmas?  By the time we emerge into the gloom of a December afternoon, the rest of the staff have scoffed all the mince pies, quaffed all the drink and pushed off home, leaving us to an empty, cold office where we dictate our attendance notes to the sound of merry-makers reeling past the window.

All the extra work we have at this time of year only goes to prove how stressful Christmas is for many families.  Tensions already bubbling beneath the surface are likely to explode in a family confined to a small house with unlimited alcohol available.  And relations between ex partners are likely to deteriorate over the annual squabble about where the children should spend Christmas Day.

But I did wonder about the ethics of an offer from one firm of solicitors who advertised a fifty percent discount for divorces commenced in December.  Cynical as we all might be, should we really be encouraging our clients to divorce sooner rather than later?  We all recognise the client who comes in for an initial interview wanting to know “where they stand” before they decide whether to issue proceedings.  Sometimes they decide to proceed, sometimes they decide to stay and work on the marriage.  Somehow it seems wrong to encourage them to take that irrevocable step because they can save themselves some of the costs.  Many clients are caused to think twice about divorce purely because of the potential cost and in some cases, the hesitation leads to the marriage being rescued.

Even the most Scrooge-like among us must surely welcome a little bit of good cheer at this time of year?

Pre-Nuptial Agreements – Now More Likely To Protect the Family Fortune

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Posted on 30th November 2010 by Suzy Hamshaw in News

Radmacher -v- Granatino

Radmacher -v- Granatino

The recent Supreme Court decision in the case of Radmacher -v- Granatino has made a significant change to the way divorce courts will view pre- or post-nuptial agreements. Suzy Hamshaw, a family lawyer at Charles Lucas & Marshall explains the implications of the court’s decision.

It is now much more likely that courts in England and Wales will uphold the terms of a pre-nuptial agreement unless it would be manifestly unfair.  Such agreements are still not legally binding on the divorce court but they will be a much more significant factor that the court will have to take into account.

Miss Radmacher was encouraged by her father to sign a pre-nuptial agreement before she married Mr Granatino. In effect, the agreement stated quite simply that if the couple divorced, neither would make any claim against the other’s assets.

The couple had two children and during the course of the marriage, Mr Granatino decided to give up his career in the City to study for a PhD at Oxford University.  This meant that his income was reduced from over £300,000 a year to some £30,000.  Meanwhile, his wife’s fortune had been increased by the settlement of some £100 million pounds from her family fortune.  No doubt this cushioned somewhat the impact on the family of Mr Granatino’s drop in income.

When they divorced, the first court in London held that the pre-nuptial agreement was not valid for several reasons and ordered, amongst other things, that Miss Radmacher should pay Mr Granatino a lump sum of £5 million. The court said that circumstances had changed since the agreement had been signed and these circumstances were more pertinent to the settlement than the fact that an agreement had been signed.

Miss Radmacher appealed against this judgment and the Court of Appeal reduced the lump sum to £1 million, saying that the terms of the pre-nuptial agreement should stand.  Mr Granatino then appealed to the Supreme Court, which found against him and upheld the payment of the lesser sum.

The impact of this judgment on Family Law is significant. Although the court has not specifically changed the law – that has to be done by Act of Parliament – it has set a precedent that all courts will now follow.  This means that pre-nuptial agreements will be taken into account by a court when couples divorce.  The courts will only change the terms of the agreement if it would be unfair not to do so, taking any changes of circumstances into account.

Interestingly, in this case it is the wife who has the greater fortune to protect and it was the husband who went into the marriage in a weaker financial position.

Among the many articles in the press about this case, I was particularly struck by the comment that an effective pre-nuptial agreement would cost between £5,000 and £7,000 in London.  That may be so for couples having fortunes of £100 million but for the vast majority of people the cost is far less and could be a worthwhile investment.

For further information contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

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