Archive for the ‘Divorce’ tag
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.
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 Since legal aid was withdrawn from family law cases in 2012, resolving disputes amicably has never been more important.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 email@example.com
Elianne Edgington, a family lawyer at Charles Lucas & Marshall, explains the choices facing divorcing couples.
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.firstname.lastname@example.org
In October the proposal for no fault divorce was debated in the House of Commons.
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.email@example.com
Divorcing spouses must fully disclose their assets and income or risk their financial agreement or order being set aside at a later date.
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.firstname.lastname@example.org
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?
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 (email@example.com) in the Wantage office (01235 771234).
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.
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 (firstname.lastname@example.org) in the Wantage office (01235 771234).
What changes have already taken effect?
Since April 2013 legal aid has not been available for family law advice, other than for victims of domestic violence. This has meant that many people simply cannot afford a family lawyer and more individuals are choosing to represent themselves. This may leave some people vulnerable, without knowledge of what their options are and what they can expect to happen.
In December 2013 the new Child Maintenance rules came into effect. These introduced a different and less straight-forward formula for calculation, but more significantly for families, introduced a charge payable for a calculation of maintenance (£20) and further ongoing fees payable by both the paying parent (20% of maintenance) and the receiving parent (4% of maintenance) if the Child Maintenance Service is asked to collect and enforce payments. These charges, while designed to encourage parents to reach agreement and pay voluntarily, have the unwarranted effect of depriving the child of often much needed funds if parents are unable to sort out child maintenance between themselves.
Separating parents in modest income families often struggle due to the same income having to fund two households rather than one. Further, ongoing changes to welfare benefits may mean that separated parents are on an even tighter budget than before. If both parents need to or wish to work, the high cost of childcare is a particular problem. This is an issue on several of the parties’ election manifestos and hopefully will see some additional government funding in the future, which would help separated parents to return to work.
In April 2014 there were further family law reforms, aimed at stream-lining procedures and encouraging the involvement of both parents in a child’s life. The terminology for orders relating to children was changed again and these are now called Child Arrangements Orders, but are in real terms very much the same as before. It was also made compulsory for parties wishing to issue court proceedings in financial or children matters, to attend a meeting about mediation before doing so, save in exceptional circumstances.
Other reforms which have been proposed by the Law Commission, in relation to the rights of cohabiting couples, and enforceable prenuptial agreements have been shelved for the time being despite much discussion.
Resolution, the family lawyers’ association, has produced a Manifesto of reforms it would like to see promoted in the next parliament. These are designed to provide more support and guidance for couples going through divorce or separation and put children’s interests first. Some of the reforms which Resolution is promoting are:
- That the £20 fee payable for a Child Maintenance assessment is abolished, along with the 4% fees charged to the receiving parent when the Child Maintenance Service is asked to collect the payments. It is also proposed that the 20% fees charged to the paying parent for collection of payments be reconsidered.
- Make it is easier for those with limited funds to have some government funded initial advice from a solicitor to help them consider their options.
- Introduce a “Parenting Charter” to set out what children should expect from their parents when they are separating, and what separating parents need to do in the interests of their children, which includes points such as the right to “a childhood, including freedom from the pressure of adult concerns such as financial worries” and the right to “be at the centre of any decisions made about their lives”.
- Allow people to divorce without blaming each other, scrapping the need to show adultery or unreasonable behaviour, which currently sets proceedings off in an unnecessarily acrimonious way and has no effect on the issues at stake whether financial or relating to children.
- Clearer guidance on how finances might be dealt with on divorce, with guidelines on how much maintenance might be payable and for how long, and how the assets and pensions might be divided, with pre-nuptial agreements to be enforceable (with some safeguards).
- Greater rights and responsibilities for unmarried cohabiting couples, so that eligible couples are able to apply for some financial orders on separation, unless they have previously “opted out”.
All of these changes would have a positive effect for separating couples and parents in particular, as they need to continue to work together for the benefit of their children.
The family team at Charles Lucas & Marshall are all Resolution members and are committed to helping families to deal with relationship breakdown in a constructive and non-confrontational way. We offer an initial fixed fee interview for £120 (including VAT) to enable clients to access some early advice and consider their options armed with some knowledge of the law and procedure. We are also able to help and advise at various stages throughout the procedure on a “pay as you go” basis should a client prefer to deal with the proceedings themselves.
For more information or to arrange an appointment, please contact Suzy Hamshaw (email@example.com) or Mark Chapman (firstname.lastname@example.org) in the Newbury office (01635 521212) or Elianne Edgington (email@example.com) in the Wantage office (01235 771234).
Divorcing couples are turning their backs on mediation and once again resorting to the courts to sort out their divorce, says Newbury lawyer, Suzy Hamshaw.
Figures from the Ministry of Justice show that between April – June 2013, the number of divorcing couples attending a mediation information and assessment meeting fell by 47 per cent, compared to the same period in 2012.
Additionally, the number of couples starting family mediation sessions fell by 26 per cent over the same period.
Suzy Hamshaw, a family law specialist with Newbury firm, Charles Lucas & Marshall, says the fall in mediation coincides with cuts to the Government’s legal aid budget which has meant legal aid is now only available to divorcing couples in cases where domestic violence is involved.
“The numbers show that the Government has achieved exactly the opposite of what it intended to do,” says Suzy Hamshaw. “The intention was to persuade couples to attempt mediation before applying to the court. However, by this stage it is often too late in the process.
“It also failed to appreciate that many couples are only made aware of mediation when they visit a solicitor, who can act as the middleman in getting the mediation process underway. Due to the absence of legal aid, fewer people are seeking the advice of a solicitor.”
Statistics show mediation can be a quicker and more cost effective way of settling divorce cases with a high success rate of 85 per cent. Agreements reached via mediation are also likely to last longer than those made in courts. However, to be successful it has to take place at the right time and the parties need to have the benefit of legal advice to ensure any agreements are fair.
“With the cuts in legal aid , many people no longer have access to legal advice and have fewer options – this is resulting in more applications to the court, often with people acting as litigants in person,” added Suzy Hamshaw.
“Mediation is not a cure for all – but its benefits should not be overlooked and the need for legal advice at an early stage is essential .”
For further information contact Suzy Hamshaw on 01635 521212 or firstname.lastname@example.org
Question: My son has recently separated from his partner who is refusing him contact with his children. I am worried we will lose our relationship with our grandchildren. What can I do?
Suzy Hamshaw, family law specialist, Charles Lucas & Marshall
It is a well known fact that after a relationship breakdown, up to one in three children lose touch with an absent parent within three years – normally the father – and do not see that parent again.
What is often forgotten is that these children also lose touch with their grandparents.
The time spent with grandparents is an integral part of a child’s upbringing which can provide a child with experiences that cannot be derived from other relationships. The loss of this relationship when a child is going through the distress of family separation is therefore devastating for that child.
If possible, the first step is to encourage your son to resolve his own contact arrangements as normally a grandparent’s contact can develop as part and parcel of those contact arrangements.
If this is not successful then you should try and talk with the children’s mother and explain to her that despite what might be going on between her and your son, your wish is only to maintain a relationship with your grandchildren and not to take sides.
However, if the relationship is too strained, then a referral to family mediation may be an option. This would require the agreement of all parties and would involve a series of meetings with an independent mediator who will help you to try and reach an agreement through structured negotiations.
Failing this, a child focused and amicable letter from a solicitor setting out why it is important for you to maintain your relationship with your grandchildren may be all that is needed to bring an agreement.
If none of the above lead to a resolution then an application to court for a Contact Order will be needed. Presently grandparents do not have an automatic right to apply for a Contact Order so you will have to apply for leave (permission) from the court to make the application. You will have to demonstrate that you have a meaningful connection with the children in order to be granted permission but this should not be a hurdle.
For more information please contact Suzy Hamshaw on 01635 521212 or email@example.com
A rejected husband attempted to stop his wife divorcing him by telling a court that she must be mad to want to leave him. This article appeared in the Daily Telegraph and can be accessed here:
At first glance one might be inclined to chuckle at the bravado of the husband. However, on closer inspection this is a deeply sad story and an all too common tale of a marriage breakdown.
Peter Savva, said that his wife of 34 years, Niki, must be “ill” or “confused” to want to end their marriage and asked the Court of Appeal to order a psychiatric assessment of her. The judge, Lady Justice Black, did not agree stating that the wife showed no sign of being mentally unstable but that Mr Savva was unable to accept that the marriage was over.
As a family solicitor it is a common occurrence to find that one party believes the marriage to be at an end and the other does not. This creates difficulties for all involved. We family solicitors are often portrayed as ruthless and unprincipled characters – the reality is very different. The majority of us are members of Resolution who are committed to handling family matters in a sensitive, constructive, amicable and cost effective way. I will always discuss with the client the possibility of reconciliation and direct them to marriage guidance where possible.
However, the simple fact of the matter is that if one party is set on obtaining a divorce there is little, if anything, the other party can do to prevent that. It is only right that the person who feels the marriage has irretrievably broken down has the right to bring it to an end.
Mr Savva was also of the view that there be a “cooling off” period before any party could go ahead with the divorce. The parties often reach different stages of emotion at different times. Many can be initially angry or distressed and perhaps not in the best frame of mind to conduct serious proceedings at first. Whereas others may have been thinking of separation for a long time and adjusted to the prospect of a separation. There are a mix of emotions following a separation and each situation needs to be handled sensitively. I actually think this is a sensible suggestion but the technicalities would be difficult. When would the “cooling off” period start (many parties cannot even agree on their date of separation!) and how long should it be?
Mr Savva has stated that he would now seek a judicial review of the laws governing the process of divorce. I wish him luck – but sadly this is an area of the law that many governments have tended to leave alone.
For expert and specialist advice please contact Suzy Hamshaw on 01635 521212 or firstname.lastname@example.org