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Divorcing Couples Turn Away from Mediation

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

Suzy Hamshaw

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 suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

December 9th, 2014 at 11:58 am

Grandparents – We Are Worried We Will Lose Our Relationship With Our Grandchildren. What Can We Do?

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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

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

Suzy Hamshaw

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 suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

December 9th, 2014 at 8:55 am

Husband Tells Court His Wife Must Be Mad To Want To Divorce him

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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:

Divorce

Divorce

http://www.telegraph.co.uk/news/uknews/law-and-order/9252538/Husband-tells-court-his-wife-must-be-mad-to-want-to-divorce-him.html

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 suzy.hamshaw@clmlaw.co.uk

 

Written by Suzy Hamshaw

December 9th, 2014 at 7:20 am

Company Assets in a Divorce

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Expect Fewer ‘Hiding Places’ – Wealth Protection in Company Structures

Will Not Be Safe in a Divorce

Suzy Hamshaw, a family lawyer with Charles Lucas & Marshall, believes courts will look more closely at how company assets are held in a divorce and in particular whether they are being held on trust for a spouse.

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

Suzy Hamshaw

The Supreme Court has unanimously allowed an appeal by an oil tycoon’s former wife – reversing the decision of the Court of Appeal. The case addressed whether the court could treat properties belonging to a limited company as if they were assets belonging to the husband where he was the sole shareholder of the company.

In the original proceedings the High Court found that the husband had sole control of the companies and could deal with the assets as he wished and so they should be treated as belonging to him. The Court of Appeal reversed this decision, applying company law that a company and its shareholders are separate legal entities and that the assets of a company belong to it and not to its shareholders.

The Supreme Court reversed this decision but applied different principles to the High Court. In deciding the case, the court used trust law rather than company law to declare that the properties were on the particular circumstances of the case, not owned by the company but held on trust for the husband and therefore formed part of his assets on the divorce.

In doing so the Supreme Court upheld the company law principle that the corporate veil can only be pierced in very limited circumstances and that assets held by a company are not owned by the shareholders unless it can be shown there had been a fraudulent or dishonest use of the company to avoid an existing obligation.

This was an important decision both for family lawyers and company lawyers. The court was clear that the relaxed approach of family courts to ownership of assets cannot continue and that the strict interpretation of the law of property applied across all legal divisions.

However, it also sent a clear signal that the court will look closely at assets in the ownership of a company and how they came to be and that attempts to hide assets from the divorce courts by transferring assets into a company will not necessarily succeed.

This should pose no problems for properly run companies and the court has reaffirmed the law on the piercing of the corporate veil which will only happen in very rare circumstances. However, directors may wish to take this opportunity to examine their company’s asset portfolio to determine in what capacity the company assets are being held.

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

Written by Suzy Hamshaw

December 9th, 2013 at 11:57 am

Proposed Legal Aid Cuts will Place Vulnerable At Risk

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A Newbury solicitor who specialises in family law has warned that forthcoming cuts to legal aid will place the vulnerable at risk, particularly women and children.

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

Suzy Hamshaw

It will also lead to an increase in people representing themselves and clogging up the court system – resulting in couples having to wait longer for their family dispute to be resolved.

From April 2013, legal aid will no longer be available for divorce, financial disputes and disputes in relation to children, except in cases where domestic abuse is involved.

Andrew Kingston, a family lawyer with Newbury firm, Charles Lucas & Marshall, says that once legal aid is removed from family cases, it will particularly affect women who have little or no income if they are caring for children.

“They will not be able to afford legal advice compared to their working husband or partner, placing them at a disadvantage,” he says.

“This will lead inevitably to more couples representing themselves in court. This always slows down the legal process.”

Cases involving domestic abuse will still get funding under legal aid. While this is to be welcomed it also raises concerns.

“It could lead to some people making unfounded allegations in order to obtain legal aid, and that fathers, in particular will not be able to fight to see their children,” added Andrew Kingston.

However, as well as violence there may be other concerns, such as alcohol or drug misuse within a family. These issues may never reach the surface because but they are not in the public domain.

“One person in the relationship is aware there is a problem but cannot afford to contest the matter,” said Andrew Kingston, “They may give in, which could lead to children being exposed to risk of harm.

“Yet if the case was to go to court, there are simple tests available to check for alcohol or drug misuse and the court can ask for thorough risk and psychological assessments to be conducted. Previously the costs of these would have been covered by legal aid – but how will these costs be met now?”

Suzy Hamshaw is a member of Resolution, a national organisation of family lawyers who are committed to conducting family disputes in a constructive and non-confrontational manner.

“Although the aim should always be to keep family disputes out of court, there are going to be cases where court intervention is in the best interests of children and one or both of the parents,” he added

“There are many cases where legal aid is a genuine need and many couples will soon be denied access to it. The fallout could lead to social and economic problems which far outweigh the savings the government is attempting to make from the legal aid budget.”

For expert and specialist advice please contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

December 9th, 2013 at 11:10 am

Funding your Divorce

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How the costs of a divorce are to be financed is an issue for all clients and it is essential you make the right choice about how to fund your case at the earliest opportunity. 

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

Suzy Hamshaw

As of 1st April 2013 legal aid is no longer available for family law cases unless there is evidence of domestic violence. Even if this is the case, legal aid is only available if you have a low income and limited capital.

You should also be aware that the legal aid advice given is not always “free”. Depending on your level of income you may have to pay a monthly contribution to your funding and/or pay your fees from your settlement at the conclusion of your case.

There are a number of options available:

1. Your Own Resources

If your income exceeds your outgoings or you have access to savings then this is the most accessible way of funding your divorce. If you have assets you may want to consider selling these to meet your ongoing costs. However, consider this carefully – as any such disposal might be viewed by the court as an attempt to prevent your spouse from having a share of that asset and you could be penalised as a result.

A loan from a friend or family member is another option. The benefit of such loans are that they are usually interest free with no fixed date for repayment. They are also good for those with a bad credit rating as no credit check would be needed.

However, such loans can be viewed by the court as a “soft loan” (ie one that the individual is not considered to be obliged to repay). A loan agreement should be entered into and possibly security taken to cover the loan.

2. From a Third Party

If you are likely to recover assets in your divorce then you may consider incurring some temporary liabilities with a view to repaying them when you receive your settlement.

Credit card/Overdraft

Nil or low rates of interest may be available on a short term basis but this needs to be considered carefully as they can revert to high rates of interest very quickly.

A Personal Loan

You may decide to take out an unsecured personal loan from a financial institution. However, consideration will need to be given as to whether you have sufficient surplus income to meet the monthly repayments.

3. Litigation Loans

A litigation loan is a specialist loan where the lender will assess the prospects of your case and the likely level of your settlement. If their lending criteria are met then they will release the funds direct to your solicitor to cover legal fees as they fall due.

The loan that will be redeemed from any settlement before any funds are released to you, once the divorce is finalised. Some lenders also have other strict requirements including security being given for a loan, by a charge being registered against a property.

4. Insurance

Consideration should be given to any existing insurance policies you may have as some include an optional extra of legal expenses insurance. If you are in any doubt you should review your insurance cover and contact your insurance provider.

5. Arrangements with your solicitor

If there is capital which may not be accessible until the case is resolved, in some circumstances it may be agreed with your solicitor that costs are paid at the end of your case from the settlement.

Such arrangements are usually dealt with under a legal contract known as a Sears Tooth Agreement in which you contract to pay the solicitor’s fees from your capital settlement at the end of the case. An interest charge will normally be made and security such as a charge over your property might need to be given.

Such arrangements are not freely available as there can be risk of non-payment. Each case would be assessed on its own circumstances as to whether funding in this way is appropriate.

6. From Your Spouse

This could be by way of an agreement to pay some or all of your legal costs. Alternatively if an agreement cannot be reached with your spouse then, in some circumstances, you could make an application to the court for a Legal Services Order. This is an interim order requiring your spouse to make financial provision for your legal costs.

A formal application to the court is required and a judge will consider various factors before granting or refusing the request. In particular, the judge will consider your income and available capital and those of your spouse.

Also a Legal Services Order will not be made unless there is no other source of funding available to you. You could only obtain funding via this method if none of the above options are available to you.

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

Written by Suzy Hamshaw

December 9th, 2013 at 10:25 am

Do Not Forget About Your Separation Agreement!

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A separation agreement can help regulate the financial arrangements between you and your spouse in the time between when you separate and when your divorce becomes final.

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

Suzy Hamshaw

Many couples wish to avoid an acrimonious divorce on the grounds of adultery or unreasonable behaviour and wait until they qualify for a divorce on the grounds of 2 years separation.

However, in the meantime they still wish to resolve their financial settlement and often any agreement is incorporated into a legally binding agreement known as a Separation Agreement with the proviso that the terms will be made into a court order dealing with their financial claims on the later divorce. Whilst a Separation Agreement can provide legal protection it is only a court order on the divorce that can provide finality in respect of the parties’ financial claims.

The recently reported High Court case of T v T [2013] EWHC B3 (Fam) is a useful reminder for separating couples of what can go wrong if they forget to embody their agreement into a court order.

The case makes interesting reading. The parties entered into a separation agreement in 1991. Both parties had independent legal advice and had provided full financial disclosure. Under the terms of the agreement the husband received a lump sum of £175,000 in return for transferring to the wife his interest in their two properties. This was to be in full and final settlement and there would be a clean break with no ongoing spousal maintenance between the parties. The agreement included provision for a divorce after two years separation and to invite the court to make an order dismissing all financial claims between them on the divorce.

The parties subsequently divorced in 1995 but the agreement was never made an order of the court. The wife gave no explanation for that failure, whilst the husband maintained that he had expected his solicitors to do so, and had always regarded the matter as resolved.

Some 20 years after the Separation Agreement the wife sought to pursue financial claims against her husband. Over that period the husband’s finances had prospered but regrettably the wife’s financial circumstances had deteriorated, to the extent that she was of the view that she was now in need (being left with only nearly £1million tied up in her house!). The wife sought spousal maintenance but for this to be capitalised into a lump sum.

In response to the wife’s application the husband made an application for the wife to show cause why the agreement should not be made an order of the court.

The wife argued that there had been material non-disclosure, she had been under pressure from the husband and that she had been bullied by her solicitor at the time into entering into the agreement.

The judge found that the evidence did not support these arguments. There was nothing to suggest that the agreement was not fair and that the wife had not been competently advised. The Judge’s approach was to ask herself: i) had the parties reached an accord by which they intended to resolve the matrimonial affairs, and ii) how have they conducted themselves?

The judge held that “this was an agreement which was entered into, intended to be acted upon, and acted upon. In those circumstances the existence of the agreement of the agreement must be regarded of magnetic importance.” The court was under no duty to examine their current means. The length of time since the agreement was entered into further secured it as it was never treated as a nullity or as redundant.

The husband’s application was therefore granted and a costs order was made against the wife. The husband’s costs were stated to be £74,734 but would be subject to assessment by the court. A very expensive lesson for the wife.

Those entering into Separation Agreements need to be aware that, whilst they have there uses, these do not bring finality and that only a court order can conclude the parties financial claims on a divorce. Those with Separation Agreements need to be sure that on any subsequent divorce the terms of those agreements are embodied into Consent Orders.

For expert and specialist advice please contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

December 9th, 2013 at 9:28 am

The Treatment of Inherited Wealth on Divorce

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The recent case of Y v Y [2012] EWHC 2063 is a useful reminder of how the courts treat inherited assets upon a divorce.

The extent to which the courts take inherited assets into account will depend on the circumstances of the case; such as the length of the marriage, the parties’ financial resources, their needs and how the assets have been dealt with during the marriage.

Inherited assets are often treated as non-matrimonial property, however, if they contain a property used as the family home or the assets were intermingled or used by the family then the court are likely to deem these assets to be matrimonial property.

The court’s approach as set out in the case of White v White in 2000 made it clear that whilst there might be a distinction between matrimonial property and non-matrimonial property this will carry little weight, if any, in a case where the parties’ financial needs cannot be met without recourse to this property.

Whilst inheritance will be considered a contribution towards the marriage and credit given for this ultimately this factor will be trumped on the basis of need. If the couple requires the inheritance to meet their needs then the significance given to the inherited asset would diminish.

In Y v Y this showed even where there were significant assets the court still needed to divide some of the inherited assets to meet the parties needs.

The facts of the case were unusual. The husband inherited and managed the family estate comprising a country mansion with staff cottages surrounded by over 1600 acres of gardens and farmland; further residential properties; a farm with farmhouse; commercial properties; an Equestrian Centre and a pub! The estate was valued at nearly £36 million gross and nearly £23 million net.

The parties were married for 26 years and the wife sought a significant portion of the estate to meet her reasonable long-term needs. The court awarded her 32.5% of all assets to meet her needs reflecting the lifestyle they had lived. However, she did not receive an equal share which she would have received if the bulk of the assets had not been inherited.

It may be possible for inheritances received by a party before or during the marriage to be ring fenced, or at least partly protected, by entering into either a pre-nuptial or a post-nuptial agreement. Such agreements will often be respected as fair and can be a valuable insurance policy for the future.

For expert and specialist advice please contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

 

Written by Suzy Hamshaw

December 9th, 2012 at 7:45 am

Farmers Plough into Pre-Nups !

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The Financial Times has recently reported that there has been a significant increase in the number of farmers signing up to pre and post nuptial agreements to protect their wealth from enlarged divorce payouts to their spouses. The reasons behind this are two-fold. Firstly, over the last 5 years the price of farmland has seen a significant increase from an average of £3,000 per acre to £6,000 per acre.

Farmers and their family members need to be aware that under matrimonial law inherited property such as a farm is not automatically ring fenced and protected on a divorce. The court is entitled to take all assets into consideration and if those assets are needed to ensure the parties’ needs are met – then this will take precedence over where the asset came from. Matters are more complicated in farming cases as the matrimonial home is often the farmhouse and surrounding land as so its value is normally taken into account by the courts and added to the matrimonial pot for division.

Radmacher -v- Granatino

Radmacher -v- Granatino

Coupled with the increase in value of farmland is the increasing weight that courts will now give to pre and post nuptial agreements. In the recent Supreme Court landmark decision of Radmacher -v- Granatino it held that courts should give effect to a nuptial agreement 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. This decision has given significant weight to the signing of nuptial agreements, which had previously provided little guarantee upon the breakdown of a marriage.

All farmers should now seriously consider entering into either a pre-nuptial or post-nuptial agreement to protect their family wealth from enlarged divorce payments which otherwise would go to their spouse.

If a farmer does not enter a pre- or post-nuptial agreement then they can be faced with the very unwelcome prospect of either selling farmland or borrowing money to finance a fair divorce settlement.

For expert and specialist advice on pre-nuptial and post-nuptial agreements please contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

 

Written by Suzy Hamshaw

August 10th, 2012 at 10:38 am

No Fault Divorce !

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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.

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

Suzy Hamshaw

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 suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

May 18th, 2012 at 11:11 am