Archive for October, 2010
The recent furore over student fees reminds me that it is important to ensure that any agreement for child maintenance should be clear as to when payments cease.
I recently acted in a case where an order had been made back in 1992 which provided for the children’s maintenance to cease when the youngest child “finished full-time education”. This led to a dispute as the youngest daughter of the family not only went from school to college, she then went on to university, dropped out of one course after two years and took up another course which was set to last four years.
Not surprisingly, her father was somewhat aggrieved when his ex-wife expected him to continue paying her substantial maintenance when the daughter was 23 years old and living away from home at university with her boyfriend, especially as the ex-wife had re-married and was being supported by her new husband. He had no problem with supporting his daughter but objected to paying child support payments to his ex-wife.
The difficulty in that case was how to define “full-time education”. At the time that order was made neither parent foresaw the explosion in university education and the father fully expected maintenance payments to his ex-wife to cease when his youngest child left school. Unfortunately the order did not make that clear and a very expensive legal battle ensued.
If the recommendations are adopted that will lead to hugely increased costs of going to university, many students will be leaving university with debts of over £30,000. Most parents will want to help their children as far as possible and the more they can support their children financially at university, the more they will be able to mitigate that debt.
It is essential therefore that divorcing parents should make sure that any provision for child support in their financial settlement is crystal clear to avoid disputes when the children leave school and have to take decisions about whether to go to university. Consideration should be given to when the paying parent should cease giving child support to the payee parent and start supporting the student offspring directly.
The parent receiving the child support has to bear in mind that her income may go down at that point although she may well feel obliged to continue offering a base home for the student during the vacations. The student offspring might be legally independent but not all of them find well-paid jobs as soon as they leave university.
And so the seven month wait is over and judgement has finally been delivered. A majority of 8 out of 9 members of the Supreme Court dismissed Mr Granatino’s appeal against the decision of the Court of Appeal, which he said attached too much weight to the Pre-nuptial agreement between him and his former wife Ms Radmacher.
The result of this outcome is that Pre-nuptial agreements will have significant importance in determing the outcome of a financial application to the Court within divorce proceedings. What the judgement does not and cannot do, of course, is make Pre-nuptial agreements legally binding but it does take us much further towards this position in the future.
The case of Radmacher has established the principle that “the Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement” and this principle applies to all ‘nuptial’ agreements whether ‘pre’ or ‘post’.
Whilst a Pre-nuptial agreement is still not a watertight guarantee, it is certainly going to be worth having one!
All 195 paragraphs of the judgement can be found on the link below…
This morning, we in the family team are eagerly awaiting the judgement in the landmark Pre-Nuptial case of Radmacher and Granatino. In March, nine Supreme Court justices heard the appeal by Nicolas Granatino and have spent seven months considering what level of award should be made to him in light of the Pre-nuptial agreement that the couple entered into. Pre-nuptials are not, at the moment, legally binding, although are often a factor taken into account by the Judge when deciding a case. The result of this case and a review by the Law Commission should lead to clarification on the legal standing of such agreements, something that is long overdue.
Watch this space for further news later this morning…
Statistics show that the number of divorces is steadily falling. Does this mean that we are all living happily ever after? No, it means that we’re not getting married in the first place!
So why is this? Certainly there is less social pressure to get married for those wishing to live together, or indeed to have children. No longer do we necessarily meet, get engaged, marry and have children. We are just as likely to try living together first, then perhaps have children and then some time later get married….or not.
More statistics show that the average cost of a wedding has climbed to £20,000 with couples taking on average two years to plan their perfect day. So it is both costly and time consuming.
Ed Milliband, the new Labour leader has been quoted as saying that he does intend marrying partner Justine Thornton but that political events have prevented them from setting a date. Milliband met Cambridge educated barrister Thornton in 2004 and they have a son together. For those with already busy lives and in high pressured jobs, there may simply not be sufficient time to devote to the level of planning that seems to be so often expected.
However it remains the case that, on separation, unmarried partners are not afforded the same protection and help from the law as those that are married and this can be particularly difficult after a long relationship and where there are children. It might therefore be in Thornton’s interests to ensure that she and Milliband find the time to get married.
On a separate note, it is apparently the case that Milliband does not appear on his son’s birth certificate and so unless he has entered into a formal agreement with Thornton, he will not have Parental Responsibility for his son. This will be remedied if they marry.
It may be time to get married or visit a family lawyer?
Sir Nicholas Wall, President of the Family Division and therefore the most senior Family Court Judge in England and Wales gave a speech this week in which he warned parents against using their children as “the battlefield and ammunition” in their battle with their ex spouse.
Oh, if only his speech could be printed out in foot-high letters and stuck up on the wall of my office, or better still, perhaps all divorcing and separating parents should be made to listen to the whole speech at the start of the separation process and to be reminded of it several times during the process.
How many times have I listened to mothers who feel themselves perfectly justified in preventing contact between their children and their ex-partners because the partner has not paid the maintenance this month, or to fathers who feel they are justified in not paying maintenance because “she stopped contact just to be spiteful”.
Of course judges only see cases that come before them when the parents have been unable to solve their disputes, so they see the worst side of people. The majority of divorcing parents manage to sort out a reasonable way of living that involves acceptable residence and contact arrangements. However, even in cases that don’t come to court, we see a huge number of parents who make threats to withdraw contact simply because they see that as a weapon against the ex-spouse. They do not see the harm that this does to the children.
As Sir Nicholas said: “Many parents make matters worse by their disputes over their children …
Disputes over contact between absent parents and their former partners are rarely about the children concerned …
Far more often, the parties are fighting over again the battles of the relationship …”
Those of us who advocate Collaborative Practice sometimes suggest that Family or Relationship Counsellors should be brought in at an early stage so that families can be helped to come through the trauma of divorce with as little impact as possible on all the members of the family, especially the children.
If more couples could be made to see the harm they are doing to their children by using them as ammunition against each other, a lot less would be spent on legal fees and a lot fewer children would be damaged. And maybe we would not feel the temptation to bang our client’s heads together so often.