Family Law

Back to School

Divorce rates may still be highest among couples in their late 20s … but it is often when children start school that the real cracks begin to show.

Latest figures show that for the fourth consecutive year, both men and women in their late 20s had the highest divorce rates in England and Wales. Some experts believe this is partly explained by couples starting a family and the dramatic change in lifestyle a young baby can bring.

However, Lyn Ellins, a family law specialist with Swindon law firm, Charles Lucas & Marshall says that from her experience of advising divorcing couples over the last 30 years, divorce is far more likely to happen when children start school and the couple’s expectations of marriage start to diverge.

“There is often resentment on the part of the husband if the wife shows no real interest in going back to work,” says Lyn. “She has had five or six years to establish a new lifestyle, centred around the home, friends and children -  which to the husband, looks very cosy and enjoyable.

“The kids start school and financial reality kicks in. The husband, who is invariably the income-earner, becomes resentful that he is the one with all the financial responsibility. It is also quite difficult and daunting for women to find a job after many years out of the workplace and this also causes tension within the marriage.”

Lyn Ellins believes this is a major reason for divorce in Swindon because more women have the option of taking time out of work to raise young children because their husbands are on high incomes.

“Children starting school can trigger a real crisis point because women have more opportunities to do new things – and at the same time, a resentful husband is more inclined to start looking at nice, ‘shiny’ workmates in a new way.”

For further information please contact Lyn Ellins on 01635 521212 or lyn.ellins@clmlaw.co.uk.

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…

http://www.familylawweek.co.uk/site.aspx?i=ed68495

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.

With the publication of Tony Blair’s book we learn that Gordon Brown could be ‘maddening’ and that he had ‘zero emotional intelligence’.  How fascinating to find that all those rumours, so hotly denied by Downing Street, of a rift between Blair and Brown were true.

It seems that Brown was only kept in his job because he was less of a risk in the government, where Blair could exercise some sort of control, than out of it.

Yet back in the mid-nineties, they were Labour’s golden couple – destined for a long and happy life together in Downing Street.

Doesn’t this remind you of so many divorcing couples?  The marriage starts off in a haze of good intentions to the accompaniment of bell-ringing and joy; it settles into a few years of reasonable contentment and production of children (or ‘political policies’); the niggling arguments start; they both start complaining to friends and family about each other (known in politics as ‘briefing’); they struggle to stay together for the sake of the children (or Party); there’s a period of icy separation in the marital home (or Cabinet); finally one can stand it no longer and leaves (or ‘resigns’), leaving the other to pay the bills.

 The worrying thing is our government is now headed by a golden couple whose coalition has been likened to a civil partnership ………

 Perhaps someone should drop a few leaflets in Downing Street extolling the virtues of Collaborative Law and the advantages of splitting without fighting.  Just for future reference, you know, in case the coalition doesn’t last for life.

Family lawyers see many cases that are heart-rending from the point of view of the children involved.  Sometimes it seems that the people who would make the best parents can’t have children and those that make the worst parents have them like shelling peas.

Gillian St Lawrence, aged 30, who lives in Washington has recently blogged that she and her husband have decided to freeze their embryos with a view to giving birth when they are able to offer children a secure financial future.  So a little test tube of tiny embryos will be kept in frozen suspended animation for the next ten years or so.

It’s understandable that a couple who both grew up in families without much money and who left university with student debts of $250,000 (and we think students have it tough in the UK!) would want to make sure that they can launch their own children into the world free of debt.  Understandable, too, they want to hedge against their fertility tailing off.  After all, family planning means planning not to have children; you can never be sure that you will have them just when you want them.

Mrs St Lawrence says that she has no moral qualms and has no plan for what would happen if she and her husband should divorce.  That ‘will never happen’ she says.  Clearly a woman of strong convictions who likes to have her future all planned out.

Recent figures have shown that it now costs over £200,000 to raise a child in the UK but if we all waited until we had that sum safely tucked away in a trust fund, we could end up with a society of very old parents and very young dependent children.  Then who would be earning the money to pay the taxes to keep society going?

Somehow, I can’t see a woman whose biological clock is chiming getting quite the same satisfaction from a frozen test tube as from holding a live, warm baby.  And if we all waited until we were in our forties to have children, none of us would be grandparents until our eighties and bang goes the built-in free babysitter!

The choices now offered by the advances in medical science just seem to have made life more complicated, don’t they?

I was watching a recent episode of Heartbeat and was a little disgruntled at the way in which a female family solicitor was represented. 

The storyline involved a married couple both with fiery characters, who were engaging in rather petty arguments.  The wife poured her husband’s bottles of brandy down the drain and took his Jaguar car for a spin, colliding with a bin en-route and the husband broke the wife’s china doll collection.  The wife retaliated by sawing the heads off the husband’s golf clubs! 

This appeared to be a rather childish “tit for tat” situation but the wife decided to instruct a solicitor to issue divorce proceedings and the solicitor was very forceful in persuading her to apply to the court for an injunction to restrict the husband’s behaviour, whilst putting words in the wife’s mouth to imply that she was “frightened” of her husband. 

Whilst we family lawyers appreciate the necessity for certain actions (such as injunctive relief) in the correct circumstances, we should certainly not try to “influence” our clients along such paths if not appropriate.  Let us hope times have now changed as I do not think that this family law solicitor was a pioneering member of Resolution and was certainly not following our Code of Good Practice.  Perhaps we could refer the programme makers to the Resolution website www.resolution.org.uk for further guidance!

This was one of the headlines on the BBC recently.

Whilst we do not take children cases which involve care proceedings, we do have experience dealing with Private Children matters such as Residence, Contact and other specific issues.  It is true to say the process can be very lengthy and, in particular, if CAFCASS (Children And Family Court Advisory and Support Service) has been ordered by the court to prepare a report. 

In some local courts, it can take CAFCASS 4-6 months to carry out their investigations and prepare a report, which means that the families involved may not be able to move forward.  It is fully appreciated that CAFCASS are under-resourced and it is certainly not a criticism of them, but the outcome is still negative for children and families alike. 

The position also appears to mean that in some cases the District Judges will simply not order such a report as CAFCASS is not available, but this can also have negative consequences.  The reality of the situation is that if an Application has been made to the court to deal with a dispute between the parents, it usually means that one or both parents have significant concerns which should be addressed properly. 

Unfortunately, there does not appear to be an answer as CAFCASS is far too stretched, under-resourced and under-staffed and cannot cope with the number of cases, both private and care proceedings, which are being referred on to them.
 
Does our new Government have any solutions?