Archive for the ‘Collaborative Family Law’ Category
Q My husband and I have fallen out of love and want to divorce. We’re still good friends and no-one is to blame so can we agree to a ‘no-fault’ divorce?
A. Suzy Hamshaw, family lawyer, Charles Lucas & Marshall.
Although the concept of ‘no-fault’ divorce was included in Part II of the Family Law Act 1996, that part of the Act was never brought into force and was recently repealed. It had been intended that couples wishing to divorce should attend an information meeting (with a view to reconciliation being encouraged where possible and where not, mediation to resolve issues) but if that didn’t change things then after filing a statement of marital breakdown and waiting for a period of reflection, the couple would be granted a divorce.
Despite its intention to promote reconciliation, the Family Law Act actually provoked an outcry that it was undermining the sanctity of marriage and making divorce too easy.
As a result we are, for the time being, left with the Matrimonial Causes Act 1973 which sets out the basis for divorce in England and Wales. Contrary to common mistaken belief, grounds for divorce is not ‘irreconcilable differences’ – it is ‘irretrievable breakdown of marriage’.
Irretrievable breakdown of marriage then has to be proved by one of five facts: adultery, unreasonable behaviour, two years separation where both parties consent, five years separation where consent is not necessary and finally, desertion. So, to an extent I suppose, we do have ‘no fault’ divorce because where there is separation of two years or more (subject to consent), no-one needs to take the blame.
For many couples though who have come to the difficult but mutual decision that their marriage is at an end, two years can seem an unnecessary wait. In those circumstances the only way to go ahead with a divorce sooner is for one party to be proved to be at fault in a petition based on unreasonable behaviour or adultery. This however can lead to ‘mud slinging,’ moving us further away from, rather than closer to, a conciliatory approach to family law.
Speaking at the annual Resolution conference in Leeds last month, Sir Nicholas Wall, President of the Family Division claimed that divorce is now an “administrative” process rather than judicial and it was no longer important “to demonstrate you were the ‘innocent’ party”.
In practice, I regularly advise clients that (subject to certain exceptions concerning costs and the nature of the allegations of behaviour) it usually does not matter whether they are the petitioner or the respondent.
In a recent Court of Appeal case where the respondent, Susan Rae fought against her husband’s application for decree nisi, Lord Justice Thorpe said much the same thing as Sir Nicolas Wall. In this case he felt it was counter-productive that the minutiae of a 20 year marriage had to be raked over in such a painful way because divorce laws meant one spouse or the other must be shown to be at fault. Mrs Rae was fighting the decree nisi on the basis that her having moved the television aerial, taken the fuse out of the washing machine and thrown away her husband’s food for his packed lunch should not be sufficient to end their marriage.
For further information contact Suzy Hamshaw at Charles Lucas & Marshall’s Newbury office on 01635 521212 or at the Hungerford office on 01488 682506 or e-mail her at firstname.lastname@example.org
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?
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 email@example.com
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.
“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.”