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Archive of articles by our divorce experts

Accessing financial information from computers on divorce

Many of the divorce cases that have made the headlines over recent months have concerned issues over disclosure. Wives in particular have been concerned that their other halves haven’t disclosed a complete picture about their financial circumstances. If that complete picture isn’t being given how can they have any confidence that the result of their divorce is a fair one?

This has prompted renewed questions from clients about the information they can and can’t access, particularly from shared computers.

Great care has to be taken when dealing with this question. Get it wrong and you could face prosecution under the Data Protection Act or the Computer Misuse Act.

The first point to make is that any information about assets you hold jointly with your spouse – such as joint accounts, investments or mortgages – can generally be accessed without any problems.

With regard to other information though, the key question to ask yourself is: ‘would my husband/wife consent to these documents being accessed and copied?’ If the answer is no, that document is likely to be considered confidential and so accessing it could lead to an actionable criminal prosecution.

The following general principles should act as a good touchstone when considering whether information can be accessed:

  • If the information is password protected and the password is unknown, you must not attempt to access this information or ask anyone else to do so.
  • If the information is unprotected or available with a password that is known (or it is a joint password) then access to this information can be obtained if it is known that the spouse would agree.
  • If computer access is freely available but it is known by you that your spouse would not consent to this information being copied then it should not be copied.

These principles would generally apply to:

  • electronic devices with memory storage, including a home or business computer, an external hard drive, memory stick or CD/disk
  • information held on handheld devices
  • private email
  • private social network, but not a public ‘wall’

Before accessing information of this nature, it is often crucial to first take legal advice about whether information you should be going near it at all. Getting it wrong can have significant consequences in terms of the admissibility of the information, and crucially, whether criminal proceedings could follow.

Andrew Barton is a partner in the Stephens Scown Family team and a Resolution Accredited Specialist in complex financial issues arising from divorce. Stephens Scown has offices in Exeter, Truro and St Austell. Its top-rated family team advises clients on a wide range of family law issues including divorce and family finance. Andrew advises clients on divorce related issues and also pre and post-nuptial agreements.
View their Divorce Aid Directory page

 

In the summer holidays, domestic abuse and child abduction could be more frequent
The summer holidays should be a time of picnics and beach trips, lazy sunny days and precious family time. Unfortunately, however, they are also a time when disputes among families increase considerably, sometimes to a serious degree.

Similarly to the way in which during the Christmas season there tends to be an increase in family arguments as a result of the amount of additional time families spend in each other’s company, the summer holidays can bring to a head tensions that were previously being diffused by work, school runs, and general every day activities.

While for some families this might mean a few petty arguments, in other situations this can result in serious disputes, some of which may border on domestic abuse.

A number of women’s protective organisations report seeing a rise in domestic abuse incidents during the summer months. Many say that there is also an increase in the severity of the incidents, which is particularly troubling. Physical factors such as the rise in heat, the pressure of having children at home to entertain around the clock, the increase in expenses during the summer for days out, as well as the fact that most people tend to drink more during the summer months, are all thought to be to blame for the spike in domestic abuse.

As well the problem of arguments and conflicts within families over the summer, disputes over access to the children, particularly where one parent is living – or comes from – abroad also raise their head. Whether there is an ongoing residence battle and one parent wants to permanently take a child to another country, or parents are going through the process of divorce and trying to work out a fair way for a child to visit abroad without making a mockery of agreed visitation rights, this can be a complex and emotional time.

Although fairly uncommon, summer holidays do present the threat for one parent of a child being abducted by the other and taken by to another country where that child is hard to reach.

This is the one time of year when there is a legitimate reason for taking a child out of the country, which raises the risk of abduction by a struggling parent quite considerably. Even if a parent doesn’t intend to abduct their child, it can be tempting at this time of year to simply go away on holiday with the child without obtaining permission from the other parent, particularly in a situation where permission isn’t likely to be given. This can simply add to tensions which may already be at boiling point between separated or divorced parents.

Unfortunately, all of these issues can have a very significant impact on children in a family situation where disputes or abuse issues are ongoing.

If you need advice on family law issues, including residence, contact issues or domestic abuse support, our dedicated team can help. From working out well in advance where the children will be spending the summer, to dealing with an abusive partner, we have years of skill and experience helping our clients negotiate the summer months with minimal disruption.
Contact Stephensons Soliciors LLP central customer service line on 0333 344 4885 for offices in London, Manchester, Altrincham, Wigan, Leigh, Bolton & St Helens
and visit their website


Legal aid changes affecting families going through divorce

(Editor's note: You may also receive some legal aid for mediation and a bit of legal advice but this depends on your ability to pay. Always ask your advisor or solicitor).

Changes to legal aid funding from April 2013 are now affecting many lower income families going through divorce or separation.

Pre 1 st April 2013, people on low incomes were eligible for legal aid to cover all aspects of family disputes, including divorce, children (such as contact and residence disputes), financial matters, care proceedings and domestic abuse. Under the new rules, legal aid will be limited, to low income applicants (on benefits or means tested), but only if their situation falls into one of these categories:

  • Cases where there has been domestic abuse

Children, financial matters and applications for injuctions where the applicant is, or has been, the victim of domestic violence. These involve cases where one party has hurt, abused or threatened the divorce applicant or the applicant’s child, and even where the abuse does not form a relevant part of the case before the courts.

Domestic violence is defined as "any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality". As well as the physical aspects the definition includes aspects of control e.g. preventing access to money or family/friend support networks and also verbal abuse such as name calling.

Evidence of this abuse will need to be provided, and can be in the form of a conviction or caution, injuctive order or undertaking, a finding of fact made by the court, letter confirming violence from the Local Authority, health care professionals, domestic violence refuge or MARAC.

  • Local authority child protection matters

If the local authority has child protection concerns, parents, children and other interested adults will continue to be able to access legal aid.

  • Child abduction cases

If there is a history of, or risk of, child abduction outside the UK, or a child has been unlawfully removed within the UK, legal aid may be available.

  • Forced marriage

Anyone threatened or forced to marry against their will can apply for a Forced Marriage Protection Order.

Save in child protection and child abduction cases, legal aid will not be available for individuals responding to a divorce application, unless the respondent is also a victim of domestic abuse.

According to figures from Citizens Advice, these changes mean that of the 250,000 cases of divorce and family breakdown that historically received legal aid each year, only 40,000 cases will be eligible in future.

Dominique Gillan, a Barrister at Guildford Chambers said, “Unfortunately Legal Aid is no longer an option for most divorcing couples on low incomes. However, there are alternatives that may help families come to arrangements over finances or children.”

The first point of call is to try and resolve the issues amicably. If discussions prove hard, help can be provided through such relationship agencies as Relate or with the assistance of a qualified mediator or collaborative lawyer , experienced in helping people with family issues.

If mediation is unsuccessful and matters need to progress to the family Courts, it may be possible to obtain free representation via organisations such as the Bar Pro Bono Unit or the Free Representation Unit.

There is also a scheme called ‘Public Access’ where you can appoint a Barrister directly to represent you, without having to use a solicitor. Many barristers who do public access work offer reduced fee schemes for those on low incomes. This scheme has the further advantage of permitting the client to call on legal help only as and when this is required, thus enabling the client to keep a very close eye on the purse.

It is also possible for people to represent themselves in Court as a “litigant in person”, but whilst this might appear to be a way to save money, you should be careful as there are numerous pitfalls to catch out the uninitiated . Knowledge of what evidence and how to obtain this, as well as a working knowledge of the relevant laws and the courts’ interpretation of these is key. There are some charities such as the Personal Support Unit who provide practical and emotional support to people who are representing themselves in court, although they do not offer legal advice.

Dominique Gillan, Barrister, Guildford Chambers www.guildfordchambers.com

 

The purpose of the FDR Hearing is for a divorcing couple to try to settle their finances by agreement.
At the FDR Hearing your legal representative puts forward your case and assists the Judge with any queries the Judge may have. You do not speak at the Hearing.  After this the Judge gives an indication of how he or she might decide your case if this was your Final Hearing and you then leave the courtroom for negotiations. The Judge cannot then hear your Final Hearing.

Between your First Appointment Hearing and your FDR Hearing your solicitor is likely to have a lot of work to do to ensure your case is ready for the FDR Hearing so that the Judge will be in a position to give an indication.

In some cases there is little prospect of an agreement being reached for various reasons. Your case is unique and your solicitor is really the only person who can properly advise you on your case. My focus is simply on your role and what you can do to prepare.

It is important that you respond promptly to any requests from your solicitor for information even if your FDR Hearing seems a long way off. The information may seem unnecessary or it may be difficult to secure but you need to respond as promptly as you can. There will be a good reason why you have been asked for the information. You can of course ask for the reason if you are not sure !

At the FDR Hearing you have a crucial role to play in terms of proposals that are made and settlement decisions as ultimately only you can make these. You need to be ‘thinking straight’. This can be difficult to achieve on the day when you may also be feeling stressed and it is worth considering what might help you with this.in advance of the FDR Hearing and prepare yourself accordingly.  

It is sensible to keep your diary clear for the FDR Hearing. If you have an appointment or perhaps children to collect then, if negotiations are protracted, you may find it stressful if time seems to be running out. Negotiations are usually protracted when there is a real prospect of agreement so in these circumstances it can be worth staying longer at Court than may have been planned for.   

It is not a sign of dependency or weakness to bring someone to be with you outside the courtroom. You may have to make a decision on an agreement fairly quickly in comparison to the time you will spend afterwards living with it. It is highly unlikely you will later be able to change your mind about any agreement you reach and you may find it comforting therefore to be able to consult with someone who knows you well and whose judgement you trust generally in life. The right person can also play a useful role if you feel stressed providing they are a calming influence of course !

Your mobile may be useful.  If you are on the brink of making a final decision you may want to call a friend or relative to discuss this, particularly if you have come on your own. Your mobile may also prove useful as there can be lengthy periods of time when you may be on your own in a bare room when your legal representative is off negotiating on your behalf.

The decisions you face at the FDR Hearing invariably involve figures and you may find it useful to have a pen, paper and a calculator with you if you wish to check figures or do your own calculations.

If you reach an agreement it is likely that you will both have had to make compromises to reach the agreement and both of you may feel you could have done better. You are unlikely to feel ecstatic but hopefully you will at least feel some sense of relief. You may wonder how on earth you got this far and question why you did not reach an agreement long before. You may feel a bit sad. This is all normal. In addition, it is worth bearing in mind that you may well feel the same after the next Hearing, the Final Hearing, when a Judge has decided your financial settlement for you and when your costs would be significantly higher.
See Susan Jubb Family Law Doncaster in our Directory and SusanJubbFamilyLawWebsite

 

One of our leading firms has a remarkable week in the media.

In the Press 

Articles

The Times

16 February 2013

Moving in together? It pays to be hard-hearted; A 'no-nup' could be the answer to harmonious cohabitation, says Mark Atherton

Seddons, the West End firm of solicitors, says there has been a sharp increase in no-nups in recent years, often driven by wealthy parents' desire to ensure that money given to their child is not frittered away by free-spending partners.

Asian News International

16 February 2013

Couples who get a pet before a baby 'likelier to last'

The Marriage Foundation, the think-tank set up by the High Court judge Sir Paul Coleridge, which studies marriage and relationships, and the law firm Seddons commissioned a survey of 3,500 adults to find their views on what promotes stability.

Daily Telegraph

15 February 2013

Couples who get a kitten before a baby 'more likely to last'

Deborah Jeff, head of family law at Seddons, said: “Although having a baby together is seen as a sign of commitment, many relationships where there are children still break down.”

Daily Mail

15 February 2013

High house prices are undermining marriage because people can't afford a home AND a wedding, claims High Court judge

The survey for the Marriage Foundation was carried out by law firm Seddons and found that 40 per cent of couples in the capital said they were delaying marriage because it is too expensive to proceed.

London Evening Standard

14 February 2013

Judge: House prices are undermining marriage

A survey for the Marriage Foundation, carried out by West End law firm Seddons, found that 40 per cent of couples in the capital said they were delaying marriage because it is too expensive to proceed.

The Daily Telegraph

13 February 2013

Treat your lover to a romantic no-nup; Increasingly, cohabiting couples are drawing up agreements that define ownership and responsibilities in case of a split

Deborah Jeff, head of family law at Seddons, says that those signing the agreements include financiers with assets of over £20 million. “One client was very concerned about keeping her rather powerful family happy by protecting the money her father had made," she explains.

LBC Radio

12 February 2013

Deborah Jeff speaks to LBC radio about the rise of the ‘no-nup’, which seeks to provide cohabiting couples with certainty over shared finances and commitments.

The Daily Telegraph

12 February 2013

Divorcees to plunder partners' pensions; Half of the 1.5m divorce settlements in the last year may have been undervalued

Deborah Jeff comments on the impact of pensions on divorce settlements.

The Daily Telegraph

12 February 2013

Parents of unmarried couples behind rise of the 'no-nup'

Deborah Jeff comments on why more couples are signing cohabitation agreements.

The Daily Mail

11 February 2013

Leading law firm says number of people signing cohabitation agreements has doubled over the last five years

Deborah Jeff discusses increasing trends in cohabitation agreements. 

London Evening Standard

11 February 2013

Rise in 'No-Nups' for Unmarried Couples who want to Protect their Wealth

Deborah Jeff comments on the rise in couples seeking to regulate their terms of living before they even move in together.

Families Magazine - North London

January 2013

Shared Parenting, Post-Separation: A Subtle but Powerful Change in the Law

Deborah Jeff gives her take on government plans to address problems in the process of where children should live after the separation of their parents.

Follow Deborah Jeff on The Huffington Post.

The five best friends of the abusive man
Truly abusive men are out for themselves. These are the narcissists and sociopaths who walk among us in plain clothes. Abusive men rely on these five strategies to gratify their needs ahead of or at the expense of their partner:

1.   Denial

Even with fingers caught in the biscuit jar, abusive men are apt to outright deny wrongdoing. I didn’t do that. That’s not what you saw! This is quite crazy making for the women who live with them. These women are left questioning their own perceptions, seeking to resolve the cognitive dissonance between their experience and their partner’s description of what appears as an alternate reality. Bottom line: If you experience something with your own senses, don’t question yourself and don’t take your partner’s rubbish.

2.   Distortion

Distortion differs from denial in that while some truths are admitted to, they are manipulated to suit the abuser’s point of view. With distortion, they can turn a lie into a plausible truth: I may have done such and so, but I was just joking around. Because they rely on a half lie, the abusive man can be more difficult to hold accountable. The partner who is subject to this form of manipulation is apt to give the abuser multiple chances, feeling the need to have absolute certainty before they can really catch the abuser at this game. Bottom line: Don’t let him play games with your mind. If it smells bad, it is bad.

3.    Deflection

The abuser that uses deflection never addresses any issue put to him. Rather, he is apt to barrage you with a host of other issues to throw you off his scent. He will make anything other than himself the issue and will be on it like a junk yard dog on a bone. What are you blaming me for? You know your mother doesn’t like me. Quit listening to her and we would be all right.She’s the problem between us! Don’t let yourself be misguided. Stick with the facts and continue to hold the abuser accountable. Don’t let him throw others under the bus to save himself.

4.    Deception

Abusive men like to get away with whatever they can. The tactics include sneaking, stealing and lying. These are the guys who will tell you they are out bowling when having a sexual meet-up or say they are working late when out with the boys. As long as they don’t get caught, they continue to lie. Catch them in a lie and they are apt to deny, distort or deflect. How many lies do you have to catch your partner in before you get the message; this is an abusive man. No solid relationship can be built on lies.

5.    Denigration

Denigration is a verbally violent tactic of the abusive men. These are put-downs that are meant to cause their partner to feel bad. To the degree they can make their partner feel bad, they elevate their own status. These men will demean and/or blame you for any issue originating with them. This kind of abuse is particularly dangerous to a women’s self-esteem. Once you accept that you are a lowly dog, he’s got full control of you and will use you up and spit you out when finished.

Sadly, abusive men live among us and what’s worse; they can hide like wolves in sheep’s clothing. They can appear charming and they will try to work their way into your heart. They seek to ingratiate themselves to you. However, once in, they’re out to exploit. Try and thwart them and they rely on their five best friends to hold power so they can continue to win their way for their own gratification.

If your partner uses any of these strategies or combination of strategies on you, see what you can do to help yourself. The likelihood of changing the truly abusive man is limited.
See our article on domestic abuse with helplines for both women and men.

Gary Direnfeld, MSW, RSW.
Gary is a social worker. Courts in Ontario, Canada, consider him an expert on child development, parent-child relations, marital and family therapy, contact/residence recommendations and social work. Read more about him at Divorce Social Worker

An uncommon marriage
You may have read in the newspapers about a Ms Brown, the former partner of a celebrity holistic health guru, who has launched a High Court claim for a Common Law Divorce pay-out of 50% of her ex-partner’s wealth, something of course not uncommon (if you excuse the pun) in the case of a normal divorce settlement following a long marriage.

Her claim includes a half share of the £500,000 home in which they lived as a couple for more than 15 years (which was in the sole name her partner), his classic car collection and royalties from the sales of the books he wrote and sold during their relationship.

It appears that Ms Brown, like many other unmarried cohabiting couples, had always been under the mistaken illusion that Common Law Marriage exists and protects people in her position. Ms Brown, claims her partner told her that she "need not worry" about their home being in his sole name "as she was protected as a Common Law wife" should they split up.

It is worrying that the Common Law myth continues to prevail, especially as there over 3 million cohabiting couples in the UK with this figure set to grow. In reality, the starting position is that unmarried couples have no claims against each other’s property or assets. There are exceptions if the couple have children in that the person with whom the child resides has claims for child maintenance and possibly housing. If property is owned by one person only, the other would have to prove a financial contribution or a common intention that the non-owner should have a beneficial interest in it.

There have been moves afoot for a number of years for cohabiting couples to be treated in the same way as married couples or those in a Civil Partnership when the relationship breaks down. We will certainly be watching with interest to see how the case proceeds.

In the meantime, anyone who, like Ms Brown, lives with their partner and is not sure of their rights should the relationship end is advised to seek legal advice as there are a number of sensible steps you can take to clarify the rights each person has, such as living together agreements, owning as joint tenants/tenants in common, declarations of trust, and provision in Wills. Whilst taking legal steps may not seem romantic, it can be a sensible precaution just in case the worst happens.

For more information please contact Marilyn Young
See Clifton Ingram LLP, Reading office
Clifton Ingram LLP website

 

Husband who failed to disclose assets faces further payments
Liz Orman, solicitor in the family department at Vanderpump & Sykes, looks at why full disclosure is necessary when trying to resolve financial matters in a marriage/civil partnership breakdown.

The Court of Appeal has recently dismissed an appeal by a husband who claimed that a Judge had overvalued his assets when ordering further payments to his ex-wife.

The case involved the marriage between a wealthy property developer and his wife, which ended extremely acrimoniously. Their battle over a financial settlement lasted more than a decade!

As part of their divorce settlement following their separation back in 2000, the husband was ordered to pay his wife £176,000 in full and final settlement of her financial claims against him.

However, following this settlement, the wife continued to be somewhat surprised at what seemed to be her ex-husband’s “apparent wealth” and this in turn, led her to question whether her husband had been entirely truthful as to the value of his assets at the time of the divorce and whether he had provided full and frank financial disclosure regarding all of his assets at the time of the settlement.

Following further proceedings, it came to light that a house owned by the husband (which was now worth £1.3 million) had never been disclosed. The husband claimed that the property was owned by him in trust for one of the couple’s children.

The Court were singularly unimpressed by the husband’s lack of disclosure and despite the passage of time, ordered him to pay an additional £384,000 to his ex-wife. Not surprisingly, in view of his conduct he was also ordered to pay the wife’s legal costs.

The husband appealed the decision on the basis that his assets had been "grossly overvalued" by the Judge who had ordered the settlement. After a five day hearing, the husband’s appeal was dismissed by the Court of Appeal. The husband was criticised by the Court for the lack of credibility of his evidence and for his failure to produce reliable documentary evidence in support of his alleged position. In the circumstances, the Judge’s findings, which were findings of fact, could not be displaced.

The salutary lesson to learn from this case is to ensure that when trying to resolve financial matters on a breakdown of a marriage/civil partnership, both parties provide full and frank financial disclosure which accurately reflects their true financial position at the time that the settlement is being negotiated. Failure to do so, could, as in this case, result in a party being ordered to pay additional monies to the other for failing to disclose assets which existed at the time that the original settlement was reached.
See details about Vanderpump & Sykes in the Divorce Aid Directory of Solicitors
Vanderpump & Sykes website

 

An Introduction to the Children Act 1989
Section 1 of the Children Act 1989 provides that the child’s welfare shall be the court’s paramount consideration when the Court determines any question with regard to either:-

  • The upbringing of a child;  or
  • The administration of a child’s property or the application of any income arising from it.

The same Section of the same Statute contains what is known as the welfare checklist'.

When, amongst other things, the court is considering whether to make, vary or discharge what is known as a Section 8 Order and the making, variation or discharge of that Order is opposed by any party to the proceedings, the Court is required to have regard to:-

  • The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  • His physical, emotional and educational needs;
  • The likely effect on him of any change in his circumstances;
  • His age, sex, background and any characteristics of his which the Court considers relevant;
  • Any harm which he has suffered or is at risk of suffering;
  • How capable each of his parents and any other person in relation to whom the Court considers the question to be relevant, is of meeting his needs;
  • The range of powers available to the court under the Children Act in the proceedings in question.

The Orders the Court is able to make under Section 8 of the Children Act are as follows:-

  • 'A Contact Order'.  This is an Order requiring a person with whom a child lives , or is to live, to allow the child to visit or stay with the person named in the Order, or for that person and the child otherwise to have contact with each other. Prior to the Children Act, such Orders were known as 'Access Orders'.
  • 'A Prohibited Steps Order'.  This means an Order that no step which could be taken by a parent in meeting his parental responsibility for a child and which is of a kind specified in the Order, shall be taken by any person without the court’s consent.
  • 'A Residence Order'.  This means an Order settling the arrangements to be made as to the person with whom a child is to live.  Prior to the Children Act, such orders were known 's 'Custody' ones.
  • 'A Specific Issue Order'.  This means an Order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

'Parental responsibility' is defined in Section 3 of the Children Act as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.'

The mother of a child automatically has parental responsibility for a child upon his or her birth.

Section 2(1) of the Children Act 1989 provides that if the child’s parents were married to each other at the time of the child’s birth, they shall each have Parental Responsibility for the child.

A father will also acquire parental responsibility in the event that he subsequently marries the child’s mother.

Section 2(2) of the Children Act 1989 provides that if the child’s parents were not married to each other at the time of his/her birth, the father shall have parental responsibility if he has acquired it (and has not ceased to have it) in accordance with the provisions of the Act.

Section 4(1) of the Act provides that the father shall acquire parental responsibility if:

  • He becomes registered as the child’s father;
  • He and the child’s mother enter into a written agreement, called (unsurprisingly) a 'Parental Responsibility Agreement';
  • The Court, on his application, makes a 'Parental Responsibility Order' in his favour in respect of the child.

The provision referred to under point 1 above was introduced by Section 111 of the Adoption and Children Act 2002 which came into force on 1 Dece mber 2003.

A father who was not married to the mother at the time of the child’s birth will acquire parental responsibility provided that the father’s name is placed on the child’s birth certificate at registration or re-registration of the child’s birth under the Births and Deaths Registration Act 1953.

For further information regarding matters arising from this article, please contact Martin Chambers from
LSG Solicitors, Piccadilly, London W11 or see their website at
LSG family law

An introduction to family mediation
Family mediation is a voluntary process for resolving disputes following relationship breakdown. Rather than the issues going to Court for a judge to decide, a neutral mediator helps the parties to arrive at proposals and arrangements by discussion, in a co-operative and stress-free environment. If entered into in good faith by both parties, mediation can provide a far less costly and acrimonious outcome than the judicial process. Relationship breakdown, children and financial/property/pension issues, or all three (termed "all issues") can all be dealt with in family mediation.

Family mediators come from a variety of backgrounds but are often specialist family law solicitors who are totally familiar with the legal complexities surrounding relationship breakdown. The mediation itself is by discussion between the parties, and the mediator's role is to assist the parties to focus the discussion on the issues in dispute. The mediator can facilitate discussion by providing legal information. However the mediator cannot give advice to either of the couple on their individual positions and cannot take sides in any dispute between them. However the mediator will usually recommend that each party obtains legal advice alongside the mediation process. The mediator is not marriage guidance or other relationship counsellor and cannot provide counselling. The mediator cannot make decisions for the couple. The mediator is not a judge and will not seek to impose a “solution” upon a mediating couple.

Mediation can be appropriate for any kind of family unit, married or unmarried, civil partners, living together or separated, divorced or not, and with or without children. What is required is a willingness by each party to find solutions by means of sensible discussion, and the mediator will need to be satisfied that there will be sufficient goodwill and co-operation to make the process a success.

A mediator may be contacted directly or parties may be referred to one by their solicitors.

Prior to commencing mediation, the mediator will meet with each of the couple and will identify those issues upon which they cannot agree. The mediator will help the couple to try to reach agreement. The mediator will assess each party individually to ensure that mediation is appropriate and likely to succeed. This is often done at what is termed “an assessment and information meeting” where the parties can ask questions and any concerns can be addressed. The mediator will not proceed with mediation unless satisfied that the parties will feel safe and will be committed to the process and that they will be completely honest in their disclosures of information, particularly financial information. The mediator will require the same information from both parties that would be required if they were to go to Court.

Family mediation is a confidential process and the mediator cannot reveal anything that has been spoken about without both parties' permission, but under certain circumstances, such as a child being at risk, or the financial details suggesting proceeds of crime issue, the mediation will be halted and the mediator is legally obliged to pass information to the appropriate authorities.

Once the parties have proposals that both find acceptable, the mediator will prepare a summary of them together with a summary of the financial information, and this will be sent to them both to discuss with their lawyers. Having received advice, if both parties are still happy with the proposals, the lawyers will convert the summary into a legally binding document called a Consent Order and carry out any necessary implementation of this.

Successful mediation will normally be less expensive than going to Court. Whilst the mediator's fees may be roughly equivalent to those of a solicitor, they are shared between the two parties and each party's legal fees from their own lawyers will be much less than if the case went to Court. Potential Court fees can also be eliminated although there is a fee (currently £45.00) for approval by the Court of the terms of a Consent Order. Successful mediation does not entirely rule out the need to go to Court, for instance to petition for divorce or dissolution of a civil partnership.

Should the mediation process not succeed then there may still be some positive outcome in at least getting the parties to discuss the issues and find some common ground, or to better understand each other's points of view. Should the parties go to Court then all mediation discussions (but not factual financial details) remain confidential and may not be referred to in Court.

As stated above the mediator will usually recommend that each party obtains legal advice alongside the mediation process. The parties’ lawyers will be required to obtain the Court Consent Order and to then implement the terms of this.

As a specialist Family Lawyer and a trained Family Mediator, Martin Chambers of LSG Solicitors has vast experience in supporting parties undergoing family mediation and in obtaining and implementing the terms of Consent Orders.
LSG Solicitors in Divorce Aid Directory
LSG website family law section
Editor's note: Please see more information on mediation in divorce

Leaving on a jet plane?
Why taking your child abroad may not be plain sailing
Sarah Williams and James Sandiford
Passport - check, suntan cream - check,
toothbrush - check, ensuring you know
your legal rights to take your child
abroad?...maybe not.

There are many issues for separated parents to consider when raising their child and taking your child abroad is just one of them. So, before you pack your bags, where do you stand? I look after my child, what’s the problem? Even if you are the primary carer for your child, the law says that before you take a child abroad, you must seek the permission of all those with Parental Responsibility or get a Court Order. There are some exceptions to this and to be confident of your legal position on taking a child abroad and on whether or not you have parental responsibility, you may wish to consult a family solicitor. However, good practice for all families is that in the interests of having a good relationship for the sake of your child, you should consult with the other parent to seek permission and to tell him or her of your child’s travel plans.

What if I don’t want to give permission? Your separation from your ex-partner may have been acrimonious but do you have a good reason for your child not to go on holiday? In most cases a parent will not begrudge their child a holiday and an opportunity to travel. You may want to ask for details of where your child is going, flight details and a contact number is case of emergencies. This may satisfy you that you know where your child is being taken and when he or she is coming back. If you have reasons for not wanting your child to go on holiday, if for example you think the destination is too dangerous or your child too young then you can take legal steps and ask the Court to decide whether your child should go.

I am worried that my child won’t come back home? If you have concerns that your expartner is planning more than just a holiday with your child and not planning on returning to the UK, you must act fast. Despite the potential criminal implications of abducting a child, child abduction is on the increase in today’s international world. If you are worried that your child is at risk of abduction, there are legal steps you can take to prevent a child leaving the UK. Time is of the essence - once a child has left the UK, a parent must rely on International Law such as the Hague Convention to get their child returned. This provides some legal protection although can be fraught with difficulties.

I want to move abroad with my child / my ex wants to move abroad with my child – what can I do to stop them? If you plan on moving abroad with your child, and the other parent is going to remain in the UK, you will both need to agree to the move before it can happen, agree contact arrangements and record your agreement in writing. If you don’t agree, you will need to get permission from a Court before you can leave with your child.

If you do apply to a Court, the judge’s role is to weigh up whether or not the move would be in the best interests of your child and will be testing the reasons and proposals for moving– where you would live, how you would support your child, your child’s education, and crucially, how your child will maintain contact with his or her parent in the UK. If you oppose your child moving abroad, you will need to think carefully about how you would show the judge that the move isn’t what’s right for your child and the judge will take this into consideration. Your application is likely to be stronger if you’re from the country you plan to move to, if you have existing ties there or if travel to the UK is straightforward, but at the end of the day the judge will apply the same principles whether you plan to move to Belgium or Botswana.

Whether you are planning a holiday with your child or a more permanent move, having full and frank discussions as early as possible with your former partner with a view to reaching an agreement is key to ensuring a stress free get away. Failing that, some advice from an experienced family law solicitor or accredited international family lawyer may assist to ensure that your travel plans go smoothly. Russell-Cooke Bishops Place House
Kingston Bridge
Kingston-upon- Thames KT1 IQN.
For further information visit
www.russell-cooke.co.uk

Husband loses appeal against financial provision Order
Mark Heselton, partner in the family department of North London based firm, Vanderpump & Sykes Solicitors, looks at ancillary relief (the legal term for financial provision for an ex-spouse).

A husband has lost his appeal against an order made in July 2010 for ancillary relief. The ancillary relief put family assets of £10 million, including £7 million held in two trusts, into the pool of ‘matrimonial assets’ to be split between him and his ex-wife. The Court of Appeal rejected the husband’s argument that most of the trust assets were not available to him.

The case concerned a Mr and Mrs Whaley, who married in 1987 after two years of cohabitation and separated in 2008. The couple had four children, now aged between 12 and 20, and owned homes in Spain and England. Mrs Whaley and the children spent most of their time in England, joining Mr Whaley in Spain during school holidays.

During the earlier hearings, the couple’s estimates of their assets varied widely. Mr Whaley estimated that the total assets were worth just over £3 million and Mrs Whaley valued the assets at almost £12 million. The judge settled the valuation at around £10 million and made the asset division order accordingly. Mr Whaley appealed against the order on the grounds that some of the assets had been overvalued. Some were held in trusts over which he had no control and were not therefore available to him and the assets he would be left with would be liquid. Mr Whaley argued, that he would have to sell his home in order to meet the payments to his former wife.

The first of the two trusts, known as the ‘Farah Trust’, was set up by Mr Whaley’s parents in order to secure the future of their children. They had also created a second trust, the ‘Yearling Trust’, as a sub-trust of the Farah Trust, to provide for their grandchildren – Mr Whaley’s four children and the four children of one of his brothers. The trial judge, however, had found sufficient evidence that Mr Whaley had access to the assets of both trusts to consider them resources likely to be available to him.

The Court of Appeal rejected Mr Whaley’s arguments and held that the judge in the earlier proceedings had been right to form the conclusion that the trustees of the two trusts would be likely to make the assets available to Mr Whaley if he required them. The Court also made further comments regarding the lack of precise information about the legal framework of some of the assets. Mr Whaley’s appeal was duly dismissed.
See Vanderpump and Sykes in the Divorce Aid Solicitors Directory
Website: Vanderpump & Sykes Solicitors, Enfield

Divorce is a difficult process but there is an alternative
way to settle disputes

The Government initiative to persuade
all separating couples from April last
year to consider mediation before
taking their disputes to court has meant
mediation has been in the news... or at least
pushed up the agenda. In reality, mediation has
been available to separating couples since the
1980s but until this latest initiative it has hardly
been the first port of call for such couples
needing to resolve questions like: where are the
children going to live, is there enough money to
go round and what will I live on when I retire?

So what is mediation?

How can it help you?

Where can you find out about it?

How do you start?

How do you get the best out of the process?

Mediation is a way to help you discuss, face to
face, the problems you have to resolve when
separating, whether relating to children or
finances, with the intervention of an
intermediary – a neutral mediator.

The mediator does not give legal advice; you will
still need to obtain that from your lawyer.
Your family lawyer is also required to translate
your proposals agreed in mediation into a legally
binding agreement or order for court approval.

Mediation can help if you would both prefer
to find solutions together rather than placing
your family and finances in the hands of the
court. The emphasis is on working together.

The advantages of mediation are that:
• You both arrange your own timetable with
the mediator
• It’s a speedier, more immediate and cheaper
process than going to court
• You both have the chance to say what you
want to say and also be heard in a safe
environment
• You own your own solutions, they are not
imposed upon you
• You have a much greater chance of reaching
an agreement that you can both live with and
which will last
• You set the scene for the future, to work
together as parents, as you will always be
connected by your children, like it or not.

Mediation is unlikely to be appropriate for you,
or your children, if you have had serious problems
with physical violence or emotional abuse during
your marriage or relationship, or if you suspect
your former spouse/partner is likely to ‘ hide the
ball’. Conflict is not, of itself, a reason not to try
mediation however, as this goes with the territory
of splitting up.

If you are considering going to court then you
are required first to go to a Mediation Information
and Assessment meeting with a mediator (with
or without your spouse/partner) to explore
whether mediation would be suitable for your
situation.

Helpful tips on how to get the best out of the
process:

• Participate in good faith
• Be prepared to see things from your
spouse’s/partner’s perspective
• Determine to use the process to resolve
issues with goodwill
• Accept the negatives, whilst searching for
the positives
• Be tough on the problem, not your partner
• Cultivate an ability to consider the
needs/interests of others
• Adopt an interest-based approach to
negotiations
• Look for a win – win scenario

Please contact Divorce Aid (or Therese Nichols if in the Kingston on Thames area) for further details of your nearest qualified family mediator. Email us with your full postcode and brief details:
Family mediator request

Helpful reading
Getting to Yes by Roger Fisher and William Ury
Difficult Conversations by Douglas Stone, Bruce Patton
and Sheila Heen.

You might feel that going into mediation is a
daunting process, without any support
immediately on hand, but this need not be the
case. Nowadays some mediators adopt the
lawyer supported mediation approach. This is
where your family lawyers can be present in the
mediation to give both of you advice and help.

Alternative approach of one long meeting
Furthermore, some family mediators can offer,
where appropriate, just one session of mediation
which comprises one long meeting. This
alternative approach fits where you disclose your
financial circumstances to each other, before the
mediation, and you agree what you have by way
of income or assets. The mediator is sent the
relevant paperwork to read through beforehand
and both parties attend this one session with
lawyers. In these circumstances it is quite possible
for a settlement be reached there and then to
reach a conclusion.

Therese Nichols, Accredited Mediator
Family Lawyer and Partner
Russell-Cooke, Bishops Place House,
Kingston Bridge. Kingston-upon-
Thames,KT1 IQN.
For further information visit
www.russell-cooke.co.uk

 

Scroll down for articles on:

'Silver divorce'still on the rise
Divorce and family wealth protection
Home paternity test kit now available in Boots
but should carry a family health warning warns Divorce Aid Last minute scramble for equality
Homeowners given new protection
Help for victims of domestic abuse in York
Dads at work
Prenups and postnups podcast
The Courts have given a clear message that prenuptial agreements should be binding
Some good news for divorcing couples contemplating CGT
The Impact of Capital Gains Tax
Honey, I shrunk the shares...
Pre-and post-nuptial agreements after MacLeod
Loxley's Law Podcasts
What is the situation regarding prenuptial agreements?
Divorce is at its lowest rate since 1981 but still brings misery to many, especially children
‘They think it’s all over…’ The importance of full disclosure in ancillary relief proceedings
Marriages abroad must be legalised in the UK
Government abandons plans to protect cohabitees
'It's been a hard day's night, and I've been working like a dog'
So you think you can represent yourself in court?
Nigel Wilson of Ware and Kay LLP in Wetherby discusses Trusts in light of the Charman case
Who's the Daddy?
Reports suggest that Angela Cannings and her husband are going to divorce.
Blandy & Blandy Solicitors of Reading discuss child issues in divorce
Has Christmas turned your thoughts to cohabiting?
Endowment Policies
When is a divorce really final?
CSA gets tough on 62,000 parents who refuse to take responsibility for their children
Cohabiting couples
How to be a stepchild
How to make the divorce process less painful
Destroying the myth of the common law marriage
Survey on the myth of the common law marriage
Civil partnerships
The Pre-Nuptial Agreement – 'For better, for worse

Most clients breathe a sigh of relief when they obtain their Decree Absolute.
Pension sharing and the moving target syndrome
Most clients breathe a sigh of relief when they obtain their Decree Absolute and financial settlement which can often include a Pension Sharing Order. They could be forgiven for thinking that the complicated bit is done. Unfortunately there are many issues in relation to the implementation of the Pension Sharing Order that need to be anticipated and planned for.

On divorce the court does not deal with the pension income – it divides the capital value of the pension often known as the “Cash Equivalent Value” or CEV.  In negotiations the parties often discuss monetary solutions – e.g. that from a pension fund of £800,000, one party should receive a pension credit of £400000 being one half. The problem is that the legislation does not permit a pension sharing order to be expressed as a monetary sum – it must be expressed as a percentage of the fund – i.e. in the above example 50%. The difficulty can arise when the CEV of the pension alters between the date of the pension sharing order and the date on which the pension company actually implements the order and divides the fund.

The pension company can choose any date within four months of receiving the Court Order, Decree Absolute and all relevant forms in which to implement the order. At that point they will revalue the pension fund and that is where the problems can begin if they have not been anticipated. It is not unusual for the fund value to change substantially in a few months and this is sometimes known as moving target syndrome. In an occupational pension scheme for example the person with the benefit of the pension may receive a promotion which sharply increases the value of their fund, or in the case of an armed forces scheme they may achieve a milestone of continuous service which can substantially increase the pension value. In a private scheme there can, particularly since the recession be substantial fluctuations in the value due to stock market movements. The effect of all this can be that the person who was expecting to receive a fund with a value of a certain amount can find that their pension has been reduced (or indeed increased) due to unexpected movements in the fund value.

So, what can be done to avoid this?

Care must be taken to ensure that there is an up to date fund value before concluding a settlement if at all possible. This minimises the risk of substantial fluctuations before the order is implemented

Orders should be implemented as quickly as possible to ensure that the time for fluctuations is as short as possible

It is also possible to agree alternative lump sum arrangements to make good in capital terms any loss from the pension fund due to market fluctuations

In a private scheme it may be possible to transfer the fund into less risky assets to protect against sudden fund fluctuations but financial advice should always be taken in relation to this

Where the pension is in payment and the parties are dependent on the income, care should also be taken to make sure that the maintenance arrangements are continued until the pension order is implemented as this can take some time to be done.

So, the watchword for avoiding the problems so far as possible is planning and careful professional advice

Liz Allen is a partner and Team Leader for the Devon Family Team at Stephens Scown Solicitors. She specialises in financial and business divorce settlements and is regularly identified as a leader in her area of law by independent guides to the legal profession, the Legal 500 and Chambers and Partners, as well as being named on the 2010 Citywealth Leaders List, an international guide to the most highly regarded figures in private wealth management. See their website

'Silver divorce' still on the rise
 Over recent weeks several national dailies have run articles on the increase of divorcing couples in their twilight years, colloquially known as the “silver divorce”.

According to The Telegraph, more than 11,500 couples aged 60+ were divorced in England and Wales in 2009. Moreover, the over 60s is the only age group where divorce is increasing. Whilst this may be a symptom of many couples of younger generations tending to live together rather than marrying, the increase in the silver divorce is very much a new trend.

I have certainly seen an increase in the amount of clients divorcing after 30 years of marriage or more. Whilst any divorce is a tragedy for any couple, it’s always particularly sad to divorce a client where they have spent the majority of their life with their spouse, watched their children, and often grand-children, grow up and now be at the stage in life where they have substantial time to devote to each other again.

There isn’t just one factor to blame for the current trend; rather it would appear to be is a combination of current beliefs in society and a change in our outlook. We now live in a society where it is more socially acceptable to divorce than it ever was before, thus the stigma of divorce has by and large been removed. We also live in a very disposable age, one where we are far more likely to throw something away and start afresh with a new product/item/friendship rather than try to mend the first one and marriage has also been tainted by this attitude.

We are living longer than ever before and many may fear their extended years of retirement stuck in a marriage that hasn’t been happy for some time. Since a change in divorce law in the year 2000, women who have had a traditional family arrangement where the wife stays at home to care for the family and the husband works have had their domestic endeavours recognised as being equally valuable as those of their breadwinning husbands. Unless there are unusual circumstances of a case, after a long marriage a wife can now expect her 50% of the assets rather than only having her “reasonable needs” met as was the case previously in law.

Women are now also encouraged to be financially independent of their husbands. More high earning roles are filled by women who as a result have never been dependent on their husband’s salary so a divorce will not be a choice between financial survival and happiness.

For great sections of society, religion is now playing a very small part, if any, in their lives, thus many are untroubled by the concept that a divorce would be viewed as wrong.

As late as the 1970s, more couples tended to marry in their early twenties, often before they had a chance to achieve any of their professional and personal ambitions. I have seen clients who married early then want to achieve their personal goals later in life once responsibility for young children has passed. Many of us change considerably in our twenties and early thirties as we form our view of the world. Clients have confessed to me in the past that they changed in the early years of their marriage when their children were young but decided to stay in the marriage until the children had grown up, which is certainly not a new phenomenon.

Any major change in life causes stress, even if it is a change for the better. Particularly where there is such a long history between spouses, this major life change can be very difficult to adjust to. Family and friends can provide invaluable support during these times but it can also help to discuss matters with someone independent who is trained to make this period easier to cope with. Psychological support from a professional can provide invaluable guidance as clients process what can feel like a labyrinth of emotions.

Where there is any chance that a marriage can be saved, I always refer my clients to marriage counsellors to work on the issues that are causing the problems. This is no different for older couples and good communication with the help of a third party can often be the start of repairing many years of unhappiness.

However, unless there is a significant change in general views held by society, the silver divorce trend is likely to be here to stay. We are now in a very different world to the one in which the older generations married and human relationships are always at risk in such changing times.

Deborah Jeff, Head of Family Team at Seddons Divorce Solicitors, Portman Square, London W1H 6N, 28 November 2011.
See Seddons directory page

Divorce and family wealth protection
Purchasing and registering assets in one’s sole name will not “ring fence” those assets against spousal claims on divorce. The court has the power to adjust property ownership and provide for the transfer or sale of all or any part of an asset in favour of the other spouse. A court will consider the comparative needs of the parties and determine the division to achieve fairness. All assets however held by the parties, whether in sole or joint names, with third parties, in trust or family companies form part of the “matrimonial pot” for division.

To protect one’s wealth, therefore, it is important that one plans carefully either before marriage or in advance of relationship breakdown. It is particularly important if there are tax issues and/or if one wishes to protect “dynastic” family wealth in a trust or private family company.

It is not correct to assume that there will be a 50% division of the assets. 50% could provide more or less than a party’s need. Need is determined by such factors as age, length of the marriage and the resources of the parties. In high value cases need may be adequately met by an award of less than half of the matrimonial pot. This becomes particularly relevant when there have been “special contributions” into the marriage pot such as inheritances, where there have been pre-marriage acquired assets or where there are shares in a family business. In these circumstances the court prefers not to interfere with these assets so that they are retained by the spouse who has introduced them unless the needs of the other party dictate otherwise. In determining this issue, the court may take into account whether or not these assets have been used within the marriage, for example, invested in the matrimonial home or integrated with other matrimonial assets. If so, then the Court may not protect them from an opponent’s claims.

In some circumstances the court may treat differently inheritance received during the marriage which it will divide between the parties compared with family wealth that has been passed from generation to generation which it will protect. Nevertheless after a long marriage where the parties have reached middle age and have both contributed to the marriage albeit in different ways, i.e. one as a bread winner and the other as a home maker, then the principles of sharing and fairness will be followed and invariably the assets will be divided equally. The court may be less concerned with arguments in relation to inheritance or pre-marriage acquired assets.

The court will generally not seek to interfere with a long established family business in which one party holds shares with siblings and parents. If possible the court will compensate the other party for this by awarding a greater share of other assets thus keeping the family shares intact but still doing justice to the fundamental principles of sharing and fairness. Furthermore, trying to quantify a minority interest in a private limited family company is difficult for divorce purposes. A minority interest will usually be heavily discounted. A formal and usually expensive forensic report valuing these shares may be of limited value.

Although reported cases can provide a guideline as to the possible approach a court may take in any given case nevertheless each case is decided on its own facts and therefore there are anomalies which create uncertainty.

Therefore, preventative measures should be considered.

One step is to enter into a pre-marriage and/or post marriage agreement (Pre and Post Nuptial Contract) setting out how assets will be held during marriage and divided on separation and divorce. Although such agreements are not currently binding upon the court nevertheless they are taken into account as one of the factors to consider when determining division provided they are fair and properly entered into. The Law Commission is currently preparing a consultation paper to determine whether or not they should be binding. Pre and Post Nuptial Agreements are already binding in some foreign jurisdictions.

There are other measures that can be taken. Examples include:

  • Where there are unequal contributions to the acquisition of property a Declaration of Trust can be entered into which sets out the beneficial ownership of each spouse. This may be influential on the court particularly in a short marriage case and will also protect each party’s share on death for the benefit of their estate (depending upon whether or not the parties have made a will and the terms of their will).
  • Make a will and regularly review/update it.
  • Do not subsume pre-marriage acquired assets or inheritances into jointly owned assets including and in particular the matrimonial home.
  • Review the Memorandum and Articles of any family company to ensure ownership/transfer of shares can only be implemented within the family to avoid the risk of shares being transferred to ex spouses.
  • Question the advisability of employing a spouse in a family business who may subsequently have employment claims against the family business if dismissed following separation and divorce.
  • Protect family wealth for future generations by the creation of a Discretionary Trust. This must be beyond scrutiny, however, i.e. if the Trust can and does advance capital to the spouse then it will be capable of attack by the opposing spouse in divorce proceedings.
  • Ensure properly completed pension and life insurance nominations.

It must be borne in mind, however, in relation to any of the above preventative measures that there will be costs of drafting and administration as well as possible tax implications. Therefore, the measures taken should be proportionate to the wealth that one is attempting to protect.

For further information or an informal chat about any issues raised in the briefing please contact Elisabeth Howe , Senior Associate in the Family Law Team at Anthony Collins Solicitors LLP on 0121 212 7417 or email elisabeth.howe@anthonycollins.com


Families need fathers too

(Axis Magazine ~ Legal Advice Feature)
Meryll Llewellyn-Jones, family paralegal in the family department at Vanderpump & Sykes, defines Parental Responsibility and explains how it is acquired.

You may think, as a parent, that you automatically have rights relating to your child from the moment they are born. However, this isn’t always the case. Families Need Fathers, a charity which campaigns for greater rights for fathers, has recently reported receiving record numbers of calls. Many of these calls are from unmarried fathers who are frustrated about the lack of rights they have in respect of their children.

When a child is born, the mother automatically and immediately has Parental Responsibility (PR) for that child. Parental Responsibility is the legal term for the right and responsibility associated with decision-making about a child’s upbringing and includes things like choosing or changing a name; deciding on a school; religious upbringing and consent to medical treatment. Although mothers are automatically granted PR as of right, the position for fathers is more complex.

Where a child’s parents are married at the time of birth, the father too automatically receives PR and therefore has an entitlement to be involved in decision-making. If the parents marry at a later date the father acquires PR at that stage. The number of unmarried couples who have children together is increasing – statistics suggest that over 40% of children are born to unmarried parents. In this situation a father does not have PR for the child, unless it is specifically acquired. PR can be acquired in one of three always:

  • For children born after 1st December 2003, if the father registers the child’s birth together with the mother and his name appears on the birth certificate, he shares PR with the mother;
  • The mother and father can enter into a Parental Responsibility Agreement – a formal document which is signed by both parties and lodged at court;
  • The father can apply to the court for a Parental Responsibility Order. To gain an order the father has to satisfy the court that he has a sufficient level of commitment and degree of attachment to the child.

Once PR has been obtained by a father, both parents are entitled to be involved in the decision-making process. Obviously, in an ideal world, decisions should be made by agreement on a joint basis, but where this is not possible it is open to either party to make an application to the court to determine issues that are in dispute.

To contact Meryll Llewellyn-Jones, please see her firm's page at
Vanderpump & Sykes Enfield divorce solicitors or click on their website

Home paternity test kit now available in Boots
but should carry a family health warning warns Divorce Aid

An over-the-counter DNA test may at first blush be seen as a quick, cost effective way to banish any uncertainty over paternity of a child, be they a newborn or adult says Deborah Jeff, spokesperson for Divorce Aid and Head of Family Law at Seddons in London. Usually, such DNA tests are carried out after at least one of the parents has taken legal advice, enabling that parent to weigh up all the advantages and disadvantages of such testing. There is more at stake than just the knowledge of who has fathered the child; the legal, psychological and emotional consequences are immense and the results could be life-changing. By seeking legal advice and taking such test as part of that process, clients can then prepare themselves for the consequences, whatever the outcome.

One can see how an over-the counter DNA test may lead to an increase in the break-up of the family unit when true paternity is discovered, causing immense distress for all concerned, particularly when a child has bonded with someone they believed was their father. So whilst such easily obtained DNA testing may provide certainty for the adults involved, it is important that the needs and benefit to any minor children are prioritised in that process. Plan ahead before taking the test - seek legal advice and the guidance of a counsellor or psychologist for how to prepare yourself and the children, whatever the test results are.

For details about Seddons Solicitors, see our Divorce Directory

Press release:

Assuredna was the first UK approved and regulated paternity test to be made available nationwide on the high street.

Test provides peace of mind for parents seeking to resolve paternity issues

The first UK approved and regulated DNA paternity testing kit is to be made available nationally via Boots. assuredna is a simple, safe and proven test that processes and returns paternity results in one to five days. For the first time, consumers will have nationwide access to a trusted UK based testing service via the high street.

Some families are uncertain about the paternity of their children, and every year in the UK the father’s name is left blank on approximately 50,000 birth certificates. Research has estimated that 1 in 25 assumed ‘fathers’ in the UK are actually not the biological father. The assuredna paternity test is designed to simply and accurately resolve uncertainty over paternity.

“Every paternity issue is different, but for the majority of cases, families receive the results they were expecting,” says Dr Mandy Hartley, technical manager at Anglia DNA, manufacturer of assuredna. “assuredna provides families with peace of mind so they can move on with their lives. Around half of all tests we conduct are related to children under 12 months , helping confirm paternity before the child has matured and is fully aware.”

The assuredna test kit is easy to use, safe, and reliable with accuracy of results in excess of 99.99%. Samples are taken from father, child and mother with a cotton swab. The swab is rubbed over the inside of the mouth, to remove cells containing DNA. The swabs are then placed in the correct colour coded envelopes, sealed and posted to Anglia DNA for analysis. Manufacturer, Anglia DNA, is a leading DNA testing service accredited to the ISO 17025 International Standard, and thoroughly regulated by the UK Accreditation Service (UKAS). Anglia is monitored and regularly audited to ensure that the laboratory complies with all relevant legislation such as the Human Tissue Act 2004.

The assuredna paternity test requires signed consent and identification documents from father, child, and mother in order for the test to be processed. If the child is under sixteen years old, the mother must consent for the child to be tested. assuredna provides paternity testing for peace of mind purposes – not non-consensual testing. For this reason, the test cannot be conducted without the father’s and mother’s consent.

Service and aftercare

The test is available to anyone aged 16 or over and retails at £29.99, plus an additional lab fee of £129, for the standard 5 day service. Before samples are taken, consumers must first call the Anglia DNA helpline and speak with a trained member of staff to find out if the test is suitable for them. Families are encouraged to contact support groups and all customers are offered an aftercare call post result. Customers are also able to call the helpline at any stage during and after the testing process.

This press release was distributed via Response Source, a service from Daryl Willcox Publishing, on behalf of Road Communications

How to make the divorce process less painful
We hear from Kim Beatson, Head of Family Law Team at Anthony Gold

I went to a wedding recently where the bride’s parents (each with their new partners) sat on opposite sides of the aisle. The wedding reception was a tense affair. Both the bride’s father and stepfather made speeches but the animosity between them was evident – all very sad as the bride’s parents had divorced some ten years earlier.

Each year around 275,000 couples marry and around 168,000 couples divorce. The divorce rate has stabilised over the last few years but the popularity of marriage as an institution is in gradual decline.

There is increasing public awareness of the huge pain that divorce can inflict on families both in emotional and financial terms. Divorce lawyers often take the blame for this but what are the alternatives to the conventional legal process?

Many couples are choosing the mediation option as a civilised means of resolving disputes that arise when a relationship ends, such as whether to divorce or separate and what arrangements should be made for the children, finance and accommodation. This has nothing to do with reconciliation. Instead, couples meet with a trained mediator who will help them to identify the areas of disagreement and to explore the areas for settlement. The mediator does not give the parties legal advice and, therefore, both parties are encouraged to take independent legal advice before any agreement is finalised. The parties’ solicitors can then draw up a binding agreement if a settlement is reached. The process is confidential.

Susannah and Alan came to see me in mediation earlier this year. Both agreed that the marriage was over but were still living together. Both were anxious to see as much of the children as possible. Alan had formed a new relationship and Susannah was upset about this and mindful of the effect this could have on the children. Both had strong views about whether the matrimonial home should be sold. In mediation it was possible to agree a pattern of contact so that Alan was spending frequent time with the children. Alan was able to agree that the children should not be brought into contact with his girlfriend until the separation took place. It was agreed that the house should be sold but Susannah received a greater proportion of the proceeds to reflect the fact that Alan had greater pension provision. Both took their agreement to their own lawyers after mediation, an agreed settlement was reached and the legal costs were reduced considerably.

In mediation a negotiated settlement can be achieved in a matter of weeks, saving thousands of pounds on each side. However, the mediator still requires full details of the parties’ financial circumstances.

Mediation is equally suitable for cohabiting couples or same sex couples. It is particularly helpful where couples disagree about the future welfare of their children.

Mediation has been around for years, but there is a new way of resolving family law matters that is known as collaborative practice. This involves the couple working with specially trained collaborative lawyers (one each). They each receive legal advice and guidance and, together with the lawyers, discuss and resolve issues through face-to-face meetings. The threat of Court action and horrendous legal costs are avoided because everyone signs an agreement that disqualifies the lawyers from representing the couple if the collaborative process breaks down.

The advantages of negotiating outside the Court process are that the couple set the agenda according to what matters most to them and their family. Working outside the Court process allows the couple to work at their own pace and to resolve matters as quickly as they wish. Once again, full and frank disclosure of financial circumstances is central to the process. Collaborative practice is an excellent option for people who want to avoid the uncertainties of the Court based system. It allows clients to benefit from legal advice without risking the threat of Court action during the negotiations. Both partners and their lawyers work together to find the best solutions.

If you are keen to achieve an amicable end to your marriage or relationship, then I urge you to consider mediation or collaborative practice. It is impossible to truly walk away from a relationship where children are involved. School meetings, graduations and weddings mean that couples may continue to meet as parents. Mediation and collaborative practice assist in creating an environment whereby it is possible to continue those activities with a spirit of respect and courtesy that can often be lost as a result of a legal battle.

Kim Beatson
Anthony Gold
See their details at Anthony Gold Divorce Aid Directory
Their website is Anthony Gold Website

Panorama highlights dangers of using will writers
In tonight's Panorama programme on BBC1 at 8.30pm or later on iPlayer, presenter Vivian White highlights the risks in using a will writing service. Many people are under the false impression a ‘Will Writer’ is a solicitor, but unlike a solicitor they do not have to undergo any training nor have insurance. They are not regulated by any organisation which ensures that they conduct their activities in the interests of the consumer and provide some form of redress, if things go wrong. If they go out of business, there is little that can be done - sometimes the Will cannot be found, even where charges have been made for storing it.

Andrew Poole’s wife Suzanne used a Will Writer, but the Will failed to include any provision for him, leaving the entire estate in trust for his stepdaughters. Caroline Bielanska, Chief Executive of Solicitors for the Elderly (SFE), appears on the programme and expresses concern that a spouse had not been provided for. The Will Writers appeared to have failed to advise on his right to bring a claim against the estate for inadequate provision. She said, ‘a specialist solicitor would have asked why a spouse was left out, kept a detailed record of those reasons and advised of the high risk that the Will would be challenged’. Solicitors are in the business of giving legal advice, taking into account the client’s domestic and financial circumstances- it does not appear that Suzanne Poole received any such advice’.

The lack of regulation has enabled many Will Writers to adopt high pressure selling techniques which is illustrated in the programme. They often offer wills for a low or discounted fee, and then recommend themselves to be appointed as executors, selling other services without full advice, such as transferring the home into a trust in an attempt to avoid care fees. Terms and conditions can be poorly worded and difficult to understand. In secret filming undertaken by the BBC for the programme, an elderly couple was not told the details of charges which were confusingly set out in writing but then taken away by the Will Writer.

The fear of solicitors costs, prompts some people to use will writers. Clare Wills, Head of Wills & Probate at Vanderpump & Sykes and a member of the SFE, commented, “Solicitors are required to set out in writing the basis of their charges, and in many cases Wills are undertaken for a fixed fee with free storage of Wills and other documents.”

Recent research by the consumer group, Which? found that the average fee for will drafted by a solicitor was £130, compared to a will writer of £107. Clare says, “This programme will highlight the potential for getting it wrong without full legal advice and the need for proper regulation of Will Writers. It can be very costly to undo after you have gone and can leave your family in disarray when they have to pick up the pieces as problems generally only come to light when you have died.”
For further information about Vanderpump & Sykes Litigation services, see Solicitors Directory
See BBC News for more on this story

Last minute scramble for equality
The Equality Bill finally became law in the scramble to rush through legislation in the final hours before Parliament was dissolved in the run up to the General Election.

In the main, the Act just consolidates and simplifies existing discrimination law, but it does extend existing law in certain areas too.

The Act now protects a person against being discriminated against, harassed or victimised because of a protected characteristic. The protected characteristics are age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, and sexual orientation.

Most of the provisions of the Act will take effect on 1 st October 2010 as the Equality Act 2010. The most important changes introduced by the Act are:

It introduces the concept of combined discrimination where an employer discriminates against a person because of two protected characteristics. These provisions will not take effect until April 2011.

Pre-employment health questions are another important area of change. If a prospective employee is turned down for a job and later alleges disability discrimination, it will be for the employer to prove that there was no discrimination if the rejected employee alleges that the employer asked questions about their health when considering them for employment.

The Act does not remove the default retirement age of 65, but this is under review. It is likely that the default retirement age will either be raised or scrapped altogether, in due course.

Employment Tribunals may now make recommendations as to the action to be taken by an employer to stop discrimination, even if those actions cannot benefit the aggrieved employee.

The Act contains powers to introduce regulations at some time in the future requiring businesses that employ more than 250 persons to publish details comparing the pay of males with that of females.

A term in an employee’s contract which prevents them from discussing their pay will be unenforceable if the discussion is about whether an employee’s pay is connected to a protected characteristic such as age or gender.

Positive discrimination will now be allowed at the time of employing or promoting a person, so if a company reasonably believes that it does not have enough women on its board, it will be able to pick a candidate for the job on the ground that she is a woman, provided she is as well qualified as the other candidate or candidates.

The Act paves the way for introducing a single equality duty for public sector employers. The duty will require public sector bodies to adopt policies to: eliminate discrimination, harassment and victimisation ; advance equality of opportunity and foster good relations between persons who share a particular protected characteristic and those who do not.

Richard Stephens, partner in the employment department, says: “The Equality Act 2010 is important because it consolidates the existing anti-discrimination legislation and by providing for things such as positive discrimination and transparency on pay, it sets up a framework for developing anti-discrimination policy in the future."

To contact Vanderpump & Sykes, see them in the
Divorce Aid Legal Directory

Homeowners given new protection
Vanderpump & Sykes Solicitors are highlighting to homeowners that the Financial Services Authority (FSA) has introduced new rules to ensure individuals who fall behind with their mortgage payments receive fair treatment from their lenders.

Jenny Howe, solicitor in the Litigation department at Vanderpump & Sykes, said “Once an agreement for repaying the arrears has been made, firms must not apply a monthly fee, and the payments made have to be used for the mortgage instead of charges, which can be repaid later.

Lenders will also need to record all calls with homeowners who are in arrears and keep them for three years”.

New rules have also been introduced for sale and rent back arrangements, where an individual sells their home, but remains as a tenant.

High-pressure sales techniques are now forbidden, as are cold calling and leaflet drops. Customers will have a 14-day cooling off period, as well as a guaranteed tenure of at least five years. This will stop unprincipled firms from evicting tenants after 6-12 months, as has previously been the case.

For further information about Vanderpump & Sykes Litigation services, see Solicitors Directory

Last minute scramble for equality
The Equality Bill finally became law in the scramble to rush through legislation in the final hours before Parliament was dissolved in the run up to the General Election.

In the main, the Act just consolidates and simplifies existing discrimination law, but it does extend existing law in certain areas too.

The Act now protects a person against being discriminated against, harassed or victimised because of a protected characteristic. The protected characteristics are age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, and sexual orientation.

Most of the provisions of the Act will take effect on 1 st October 2010 as the Equality Act 2010. The most important changes introduced by the Act are:

It introduces the concept of combined discrimination where an employer discriminates against a person because of two protected characteristics. These provisions will not take effect until April 2011.

Pre-employment health questions are another important area of change. If a prospective employee is turned down for a job and later alleges disability discrimination, it will be for the employer to prove that there was no discrimination if the rejected employee alleges that the employer asked questions about their health when considering them for employment.

The Act does not remove the default retirement age of 65, but this is under review. It is likely that the default retirement age will either be raised or scrapped altogether, in due course.

Employment Tribunals may now make recommendations as to the action to be taken by an employer to stop discrimination, even if those actions cannot benefit the aggrieved employee.

The Act contains powers to introduce regulations at some time in the future requiring businesses that employ more than 250 persons to publish details comparing the pay of males with that of females.

A term in an employee’s contract which prevents them from discussing their pay will be unenforceable if the discussion is about whether an employee’s pay is connected to a protected characteristic such as age or gender.

Positive discrimination will now be allowed at the time of employing or promoting a person, so if a company reasonably believes that it does not have enough women on its board, it will be able to pick a candidate for the job on the ground that she is a woman, provided she is as well qualified as the other candidate or candidates.

The Act paves the way for introducing a single equality duty for public sector employers. The duty will require public sector bodies to adopt policies to: eliminate discrimination, harassment and victimisation ; advance equality of opportunity and foster good relations between persons who share a particular protected characteristic and those who do not.

Richard Stephens, partner in the employment department, says: “The Equality Act 2010 is important because it consolidates the existing anti-discrimination legislation and by providing for things such as positive discrimination and transparency on pay, it sets up a framework for developing anti-discrimination policy in the future."

To contact Vanderpump & Sykes, see them in the
Divorce Aid Legal Directory

Help for victims of domestic abuse in York
Domestic Abuse is something that we all hope will never happen to us. When it does the impact can be enormous, and doing something about can take a great deal of emotional and sometimes financial commitment.

In January 2010, a scheme was launched in York, which is free to those who qualify, and offers both support and easy access to the protection and remedies which are often available through the local county court.

Nigel Wilson and Natalie Smith from Ebor Law [Specialist Divorce and Family Lawyers], along with volunteer students from the College of Law, York, will be on hand to see clients, offer advice and assistance and also attend Court if necessary.

The scheme is believed to be unique in the Yorkshire Region as a whole, and one of just a few such schemes in the country. It was set up because Nigel and Natalie felt that the existing system created unwelcome obstacles to people accessing remedies at a very vulnerable time – a time when often they are ill equipped to deal with or make informed choices about accessing such remedies with the assistance of public funding [and the complex and inflexible contribution and statutory charge rules that relate to the same] – a time when they also may shy away from a remedy at all when it is explained, as it must be, that breach of a non molestation order is now an offence which if prosecuted puts all before the magistrates courts. This scheme represents a significant step in improving access to the courts for the victims of domestic abuse, and puts the focus squarely back on the County Court Judges who under this scheme will be asked to deal with breaches as a civil matter, unless the client specifically requests otherwise. The scheme is run on a Pro Bono basis

York Barristers chambers are assisting with the scheme and P & B Collections, a process servers based in Leeds have also offered their services and will be available to serve the Court Orders if and when granted.

The scheme was set up after consultation IDAS [formerly Women’s Aid], Victim Support and North Yorkshire Police.

For more information and to see if you qualify for the scheme please contact IDAS on 01904 646036.

Ebor Law details

Dads at work
The Government has announced that additional paternity leave will be introduced in April 2011 for parents of babies born after 3 April 2011. Effectively, this means that the period of maternity leave can be split between parents so that if the mother returns to work early, the father can take over the remaining period of maternity leave to look after their child. This will be subject to a maximum of three months paid at the statutory rate and three month unpaid.

The Government has launched a month long awareness campaign called 'Dads at Work' to raise awareness amongst fathers as to their rights at work. The campaign, which commenced on 18 February, was in response to findings that many new fathers were unaware of their legal rights.

Dads are entitled to take two weeks of paternity leave upon the birth or adoption of their child. The leave is paid at the lesser rate of:

£123.06 (rising to £124.88 on 4 April 2010); or

90% of the employee's weekly earnings

Dads are also entitled to request flexible working if they have been employed for a period of 26 weeks. Employers need to ensure they follow the procedure set out below upon receiving a flexible working request:

within 28 days of receiving the request, arrange to meet with the employee to discuss the application. The employee is entitled to be accompanied by a colleague; within 14 days after the date of the meeting, write to the employee with outcome; if the request is rejected, the employee can appeal within 14 days;

within 14 days of receiving the appeal, the employer must arrange an appeal meeting.

Fathers many also choose to take parental leave. They have the right to take:

13 weeks parental leave for each child up until they reach the age of 5; and 13 weeks parental leave for each adopted child until the fifth anniversary of their placement; and

18 weeks for each disabled child receiving disability living allowance up until the child reaches 18 years of age.

Statutory parental leave is unpaid but employers can make a payment to employees taking parental leave if they so choose. As the preservation of terms and conditions of employment are limited during paternity leave, provisions relating to pay or other benefits are suspended unless the parties have contractually agreed otherwise. For example, the employee's right to accrue contractual holiday, which is over and above statutory holiday, is dependent upon the terms of the employee's contract of employment.

Paternity rights 2011
The Government has announced that additional paternity leave will be introduced in April 2011 for parents of babies born after 3 April 2011. Effectively, this means that the period of maternity leave can be split between parents so that if the mother returns to work early, the father can take over the remaining period of maternity leave to look after their child. This will be subject to a maximum of three months paid at the statutory rate and three month unpaid.
For more information contact Wright Hassall LLP

Meryll Llewellyn-Jones, family paralegal at Vanderpump & Sykes Solicitors, looks at separating co-habitees and the family home

Family break-up is always difficult and when there is a property involved, things can get very complex indeed.

This is particularly the case for the increasing number
of cohabiting couples. Figures from the Office of National
Statistics indicate that one in six couples living together are not married and this figure is likely to increase.

Most people assume that a property belongs to whoever is shown on the deeds as the owner. This does not always reflect the true position as sometimes the owner is holding the property on trust for others. As you can imagine, this allows plenty of scope for argument between couples upon separation about what was or wasn't agreed when they bought the property.

In the first flush of a relationship it rarely occurs to couples that they might split up, let alone what should happen to their property in the event they do. Without a written agreement, there can be long and expensive arguments about what should happen to the proceeds of sale.

In such cases, the courts will consider the intention of those involved. When one party claims a share in the property, the court will first ask whether there was an intention to share the beneficial interest in the property. If the answer to that question is ‘yes’, then the court will decide what the proportions of the couple’s shares should be. Factors which will help substantiate a claim to a beneficial interest in a property will include:

  • making a contribution to the costs of purchase;
  • making a contribution to the mortgage;
  • making a contribution to the costs of significant improvement works;
  • making a non-financial contribution (e.g. working to renovate, improve or maintain
    the property); making an indirect financial contribution (e.g. paying other household
    bills so that the other partner can pay the mortgage etc.).

Above and beyond this, where there are minor children, the court will put their interests first. They will normally ensure that their accommodation needs are met until they reach the age of majority. This often happens when the mother and children live in a property which is owned by the father. Such arrangements may well involve a settlement into trust with the trust capital (the property) reverting to the father when the youngest child reaches 18, so the property is effectively lent to the mother as a place to live in while bringing up the children.

Entering into a written agreement at the start of cohabitation can clarify a couple's intentions and help to avoid disagreements in the event of separation.

To contact Vanderpump & Sykes, see them in the Divorce Aid
Legal Directory

 

Prenups and postnups podcast
Prenups and postnups explained in a 4 minute interview/Podcast and includes:

a general introduction to prenuptial and postnuptial agreements;

who might consider them and why;

what is typically addressed in these agreements;

steps t hat should be taken to give the agreements maximum weight in future divorce proceedings; and  

the likely costs. 

To listen to the podcast please click Seddons/Divorce Aid Podcast

To see Seddons' details, refer to our Directory

The Courts have given a clear message that prenuptial agreements should be binding
The decision of the Court of Appeal shows that the Courts are now more likely to agree that a pre marital contract should be upheld – even when one party has not obtained legal advice and where there has not been full and frank disclosure of their assets.
This is a real turnaround in the Court’s positioning. Until now, the guidance and advice given by all lawyers was that to make a pre marital agreement as water tight as possible, the couple should tell the other about the extent of their wealth and they should each get independent legal advice. In the case of Granatino, the wife did not disclose her assets and the husband did not seek advice.
There is considerable commentary within the Judgement about the fact that there should be “due respect for adult autonomy”. Where there are two consenting adults who wish to regulate their financial affairs, why shouldn’t they be allowed to agree on what should happen in the event of a divorce? This decision makes it plain that there needs to be a change in the law which only Parliament can do.
The Courts have given a clear message that prenuptial agreements should be binding – unless there is duress or fraud. What is particularly interesting about this case is that it seems that there is no longer a need to disclose details of assets – although it is anticipated that this will still be the advice that is given to couples about to marry. There needs to be a change in the law and the courts have gone as far as they can to ensure that two adults can now regulate their financial affairs”

Elizabeth Hicks
Partner and Head of Family Law London
For and on Behalf of Irwin Mitchell LLP
This comment was published in Jurist, the award-winning legal news and research website at the University of Pittsburgh School of Law

Some good news for divorcing couples contemplating CGT
The Impact of Capital Gains Tax
Is there ever a right time to get divorced? Commentators often point to the emotional benefit of separating in early January after the rush of the festive season has subsided and this is demonstrated by the rise in new enquiries around this time from couples taking advice and beginning proceedings in the new year.

But few couples give any thought to the most tax-efficient way of separating, particularly in relation to Capital Gains Tax. With a little foresight now, a significant financial burden can be avoided later on.

Capital Gains Tax (CGT) is essentially a tax levied on the increase in value of a “chargeable asset” such as shares, business property, second homes and items worth over £6,000 where there has been a sale, gift or transfer. Spouses can transfer assets between themselves with no liability for CGT but it is a different situation for a divorcing couple. Instead, they become liable for CGT on the date that they formally stop living together in circumstances that are likely to be permanent. From that point onwards, the couple are treated as separate individuals, each with their own annual exemption (£9,600 for the 2008/9 tax year). They are also no longer able to transfer to the other any qualifying chargeable assets without incurring any CGT liability.

Chargeable assets

However, one important caveat is that upon separation (usually taken to mean when one party formally leaves the home although this can include a separation under the terms of a court order or separation deed), both parties will still be treated as living together for the remainder of the tax year in which they separate. Therefore, the decisive element in obtaining any exemption from CGT will be the date on which the couple formally separate.

The UK’s tax system runs its financial year from 6 April to 5 April. As a result, the couple that separate on 7 April 2009 will have nearly a year to assess their respective positions and agree a financial settlement whilst retaining the key advantage of not attracting CGT on the transfer of any assets. The couple that formally separate on 1 April 2010 will have just five days to instruct solicitors, consider their options and implement the transfer of any assets. This is simply not a realistic proposition.

The former matrimonial home

A common order in any financial settlement is the transfer of the former matrimonial home into the sole name of the husband or wife. Often, the former matrimonial home is the main asset and in most instances, a separating couple will be able to take advantage of the exemption for CGT on the transfer of the former matrimonial home provided that the transfer takes place in the tax year during which the parties are still living together as outlined above.

It is important to note that a spouse will be held to have been resident in the former matrimonial home during the last three years of his ownership whether they are actually living there or not. This means that most transfers between separating spouses will be caught by the exemption provided that the transfer takes place within three years of the spouse leaving the property.

If, prior to any transfer, three years have elapsed since the spouse left the former matrimonial home, then provided they have not elected another property to be their principal primary residence, and their spouse has continued to live in the former matrimonial home, they will still be deemed to have been in occupation for the purpose of the CGT exemption. This extra statutory concession is known as ‘Statement of Practice D4’.

Even where the departing spouse has elected a new principal primary residence, their liability for CGT is not calculated from when the former matrimonial home was purchased or during the three years following his departure. Instead, the CGT liability will be calculated on any gain in value of the property from the end of the three year period.

Working in tandem with your solicitor, specialist advice should be sought from an independent tax advisor or accountant for a full appraisal of any potential liability. With such advice, an informed decision can then be made about moving ahead with the pre-emptive transfer of any chargeable assets.

~ David Lillywhite, Family Law Solicitor, Seddons Solicitors.
See Seddons in our Directory
See Seddons website

Honey, I shrunk the shares...
Shares and share alike
says Divorce Aid's expert family lawyer, Sandra Marshall, from Blandy and Blandy Solicitors
When businessman, Brian Myerson, reached an agreement with his former wife, Ingrid, which left him with 57% of the family assets, he presumably thought he had achieved a good result.

With the benefit of hindsight, however, Mr Myerson’s “informed gamble” to take his share of the assets entirely in the form of shares in his investment company Principle Capital Holdings (of which he was Chief Executive at the time) proved to be a mistake.

Mr & Mrs Myerson had accrued assets worth 25.8m during their 25 year marriage. Their agreement in 2008 provided for Mrs Myerson to receive £11m - £9.5m in cash and £1.5m by way of the transfer of a property known as The Beach House in South Africa. It was agreed that the £9.5m would be paid by Mr Myerson in instalments, with an immediate payment of £7m and the remainder by way of four further instalments of £625,000 to be paid over the next four years, the first on 3rd April 2009. The £7m was duly paid.

The passage of time and the world economy led to a dramatic reduction in share prices. By 4th November 2008, the shares in My Myerson’s company, valued at £2.99 at the time of the original settlement, were worth only £1.40. This change meant that the net effect of the settlement was that Mrs Myerson would retain 66% of the re-valued assets as opposed to the original 43%. Accordingly on this date, Mr Myerson made an application to the Court to vary the order for the payment of lump sum by instalments and also to extend the time for the transfer of The Beach House. On 23rd December 2008 he made a further application seeking leave to appeal the original Consent Order saying that the collapse in the shares prices meant that the result was no longer fair and was unworkable. As a result of the drop in the share prices, Mr Myerson could neither sell them to raise capital nor could he borrow against them. By this time the value of his shares had dropped even further, to 72.5p each.

When the matter came before the Court of Appeal on 11th March 2009, the total value of the matrimonial assets had fallen to £12.7 (approximately one-half of their original value). The shares were worth just 27.5p each. It was submitted on behalf of Mr Myerson that if the original Order were to be implemented, he would have a deficit of £539,000 as opposed to the £14.8m envisaged at the time of the agreement. Mrs Myerson would, of course, still have £11m. He argued that this significant change should permit him to appeal the terms of the order even after such a long time had elapsed.

Mr Myerson’s application failed. The three judges in the Court of Appeal dismissed his challenge saying that the “natural process of price fluctuation, however dramatic”, did not satisfy the legal test for a change in a settlement. In addition, the order was not one imposed by the Court but was one the parties had agreed between them.

Writer’s comment
The threshold for setting aside an existing court order is extremely high. In broad terms it requires a major change in circumstances which could not have been foreseen at the time of the original order. This case clearly illustrates that fluctuation in asset values caused by economic changes is insufficient.
In this particular case, Mr Myerson chose to retain his shares as his part of the asset division, presumably knowing that shares can go down as well as up. Had the shares increased significantly in value, one wonders whether he would have offered Mrs Myerson an increased lump sum.

The case is a warning for parties agreeing terms of settlement as a result of which one spouse retains all the risk laden assets and the other keeps all the cash. It is unlikely that a Judge would have imposed an order in the terms agreed between the parties, but would have shared out the risks between the parties.
Mr Myerson still has the right to seek to vary his maintenance payments to his former wife and it is believed he will be returning to the High Court in July seeking to have these dismissed. In addition his application to vary the instalments of the lump sum has yet to be heard, although it seems unlikely that that application will be any more successful than his application for leave to appeal. Court orders in divorce proceedings need to achieve finality between the parties whenever possible.

To contact Sandra Marshall at Blandy and Blandy Solicitors in Reading, Berkshire, see our solicitors divorce directory

Pre-and post-nuptial agreements after MacLeod
In the wake of several high-profile financial settlements in the news recently, a lot of attention has once again focused on the issue of pre-nuptial agreements. We have devoted considerable time to this burgeoning practice area over the past year with more and more clients consulting us regarding how best to protect their financial position in the event of divorce.

In light of this, and the guaranteed column inches these stories tend to generate, it seems surprising that the case of MacLeod v MacLeod [2008] UKPC 64 has so far managed to escape receiving a significant degree of attention from the media. This is remarkable considering how much it changes the advice practitioners will now have to give clients who are exploring the possibility of a pre-nuptial agreement.

MacLeod was a judgement eagerly awaited by family lawyers as it was another opportunity for the courts to rule on the enforceability of pre-nuptial agreements.

The case itself concerned the validity of the second of two post-nuptial agreements that the separating couple had entered to. The parties had already entered into a pre-nuptial agreement on their wedding day in 1994 and they subsequently reviewed it twice by way of two postnuptial agreements, the most recent variation being in 2002. The wife’s argument was that the latest of the agreements should be ignored. The Manx court where the matter was first heard decided to largely keep to the terms of the second post-nup, and also to provide a further lump sum of £1,250,000 to the wife to house the children. The wife then appealed and the court held that the 2002 agreement did not provide sufficiently for the children of the family and the terms of the financial settlement should be decided by the court. The husband then appealed to the Privy Council.

In her judgement, Baroness Hale took the opportunity to review the law on the validity of separation and maintenance agreements but unfortunately stopped short of making pre-nuptial agreements binding by saying that it was not the Board’s place “to reverse the long standing rule that ante-nuptial agreements are contrary to public policy and thus not binding in the contractual sense”. In acknowledging the difficult legal tightrope that pre-nuptial agreements walk, Baroness Hale made the point that she saw further developments in the law being as a result in the change to legislation rather than as a result of any judicial decision, reiterating the point made by Mrs Justice Baron in NA v MA [2006] EWHC 2900 (Fam).

Nonetheless, the facts of MacLeod required that Baroness Hale addressed the validity of post-nuptial agreements. She recognised that pre- and post- nuptial agreements are very different from one another. With a post-nuptial agreement there was “nothing to stop a couple entering contractual financial arrangements governing their life together”. However, with a pre-nuptial agreement there is the possibility of one party saying the marriage will not go ahead unless the agreement is entered into.

Accordingly, in MacLeod it was held that the latest post-nuptial agreement signed by the husband and wife was valid and enforceable both for the arrangements the husband and wife had made for when they lived together as well as for when they had separated. Baroness Hale went on to say that “the latter arrangements were subject to the court’s powers of variation and the provisions which purported to oust the jurisdiction of the court, whether on divorce or during marriage were void”. We therefore now know that provided the post-nup has been executed properly and there has been no undue influence (improper pressure) or duress, the starting point is that it is binding in law. In MacLeod, the court agreed that there should be a further financial allowance to the wife to house the children, but this would be by way of a trust rather than being given to the wife outright something the original agreement had failed to do. Baroness Hale said: “The only principled basis for interfering with this particular agreement was in order to make proper provision for the children”. She also confirmed that another ground for varying the terms of a post-nuptial agreement would be if there had been a subsequent change in circumstances which would make it unfair to hold one party to the agreement.

MacLeod v MacLeod brings welcome clarification to the law regarding pre- and post-nuptial agreements. While practitioners will for the foreseeable future continue to add the caveat of ‘persuasive not binding’ to their advice regarding pre-nuptial agreements, it now makes sense upon marriage to arrange for a post-nuptial agreement to be drafted restating the terms of the pre-nuptial agreement and updating it where necessary over the years to reflect any changes in the parties’ circumstances.

So our advice to clients now when entering into a post-nup is:

(a) Make sure both parties have the benefit of considered, independent legal (and possibly accountancy) advice;

(b) Both parties should make full and frank financial disclosure to each other;

(c) There must be no undue influence or duress;

(d) It must contain suitable financial provision for any children of the family; and

(e) It is regularly reviewed, particularly if there is a change in circumstances of one or both parties.

Provided this checklist is followed, there will be little room for the court to interfere with those financial arrangements in the event of separation. The result should make divorce a cheaper and less stressful proposition.
~ David Lillywhite, Family Law Solicitor, Seddons Solicitors.
See Seddons in our Directory
See Seddons website

Loxley's Law Podcasts
Martin Loxley, Partner and Head of Family Law at Irwin Mitchell Solicitors, has made a series of Podcasts in conjunction with
The Sheffield Telegraph.

Credit crunch divorce
During this stressful economic crisis, Martin's podcast should provide food for thought. Click on the link below.
Credit Crunch and divorce

Loxley's Law Podcast archive:
Click on the links below to listen to the podcast

Grounds for divorce

Disputes of paternity

Grandparents' Rights

Fathers' Rights

Credit Crunch and divorce

Children in family disputes

Domestic violence

Civil Partnership

Prenups

Marriage vs Cohabitation

Are divorce terms public or private?
Includes Non Disclosure Agreements

Irwin Mitchell have other offices in Leeds, Manchester, Birmingham and London. All these offices deal with divorce and family law. Irwin Mitchell are leading experts in international divorce. They have other offices in Newcastle-upon-Tyne, Glasgow, Madrid and Marbella.
For details see the Sheffield office where Martin is based
Irwin Mitchell Sheffield in our Directory or view the

Or contact Divorce Aid Office for further details

Pre Nuptial Agreements
Last week five Law Lords, sitting as the Judicial Committee of the Privy Council, heard a case concerning the enforceability of a pre nuptial agreement. The hearing related to a husband’s appeal from a decision of the Court of Appeal in the Isle of Man.

Sandra Marshall, an associate in Blandy & Blandy’s family law team looks at the details of the case.

Background to the case
The couple, who are both US Citizens, were married in Florida in 1994 and signed a pre nuptial agreement on their wedding day. Had they stayed in Florida, the agreement would have been binding, but about a year later the couple moved to the Isle of Man.

The pre nuptial agreement was subsequently varied by the parties approximately 12 months prior to the filing of divorce papers. By this time the wife had allegedly entered into an adulterous relationship.

Within the divorce proceedings, it was the Wife’s case that she should not be held to the pre nuptial agreement. She argued that the Husband had not made full disclosure before she signed the deed, she had not had adequate legal advice and she had only signed the document under duress.

As the couple live in the Isle of Man, Manx law applied to the determination of the issues concerning the breakdown of their marriage and, in particular, whether or not the pre nuptial agreement should be upheld. Whilst the Judge at first instance did not agree with the Wife’s arguments, neither did he consider the pre-nuptial agreement to be binding and he ordered the Husband to pay an additional lump sum to the Wife. The Husband appealed this decision but failed, hence this further appeal.

The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom and is the court of last resort for UK overseas territories. If the Husband succeeds, the case will set a precedent on the enforceability of pre nuptial agreements in England and Wales. A decision is expected in the next few weeks.

What is the situation regarding prenuptial agreements?
At present, those wishing to enter into pre nuptial agreements in England & Wales, do so knowing that the agreement is not binding. Such an agreement is just one of the factors to be taken into account by the Court when considering financial settlement on divorce. Over recent years, however, pre nuptial agreements have been given more and more weight by the Courts, particularly in short, childless marriages.

An increasing number of people wish to enter into a pre nuptial agreement. It is advisable for any agreement to be entered into at least 21 days prior to the date of the marriage and following each party having made full financial disclosure to the other and having received independent legal advice concerning the terms of the agreement.

Whatever the outcome of this case, it is a first opportunity for the Law Lords to give couples more guidance on the effect and enforceability of pre nuptial agreements.

Once the outcome of this case is known a further bulletin will follow.

To contact Brenda Long at Blandy and Blandys in Reading, Berkshire, see our divorce directory

Divorce is at its lowest rate since 1981 but still brings misery to many, especially children
The provisional divorce rate in England and Wales has fallen for a third consecutive year, reaching its lowest level since 1981, according to today's provisional statistics on divorces in 2007 released today by the Office for National Statistics (ONS).
The divorce rate fell to 11.9 divorces per thousand married men and women compared with the 2006 figure of 12.2.

For anyone going through this emotional process, these figures bring little comfort. The sad statistic is that the number of children affected by divorce has not fallen. Fifty-one per cent of couples divorcing in 2007 had at least one child aged under 16. There were 117,193 children aged under 16 who were in families where the parents divorced in 2007. Twenty per cent of these children were under five and 63 per cent were under eleven. So these are the same percentages which were stated in 2006.

Children can be the worse affected by divorce but it is not the actual divorce which is most harmful, it is the parents' animosity during and indeed after the legal process has ended. Christina Tait, Divorce Aid's founder, says,

'We are contacted by many adults who experienced their parents' divorce as children and are still suffering twenty years later as they try to avoid conflict between warring parents. This is most evident at special times such as their marriages and the birth of children.
Resources were not as readily available twenty years ago but we try our best to provide as much information and advice as possible for children and young adults. We also have a section for parents too.'

It is quite alarming that for the sixth consecutive year men and women in their late twenties had the highest divorce rates of all five-year age groups. Last year there were 26.6 divorces per 1,000 married men aged 25-29 and 26.9 divorces per 1,000 married women aged 25-29. One would have thought that the perils of marrying at an early age would have filtered through to this age group but youthful hope triumphs over warnings. Many of these couples may not have had children but the grief and stress of divorce can still hit them quite badly and Divorce Aid speaks to many who have difficulties restarting their lives and regaining their confidence.

Not surprisingly, rates increased for men and women aged 60 and over as Divorce Aid has noted this growing trend of silver surfers looking to restart their lives as life expectancy increases. It is still common for the wife to rely on her husband to be fair and many women do not seek legal advice at all. According to Divorce Aid's enquiries, most divorce cases are instigated by husbands or, more accurately, by the actions of husbands.

Although women instigate more divorce proceedings, this can be partly explained by the need to resolve financial and child issues before the Courts. A petition for divorce or Judicial Separation has to be made before the case can come to Court. If a husband leaves his wife and will not settle things amicably, then there is little choice for the wife; she will have to instigate divorce proceedings.

Figures also increased for women aged between 45 and 49.

But one must take into account the falling marriage rates when considering these figures. The ONS published figures in 2007 showing that the proportion of men and women in England and Wales choosing to marry was at the lowest level since the figure was first calculated in 1862. The continuing decrease in the divorce rate in England and Wales is still encouraging and welcome news.

Divorce can bring an end to a miserable marriage but if decided upon in haste, it can bring sadness and suffering to all those involved, especially the children.

For more information, please email Divorce Aid Editor

‘They think it’s all over…’
The importance of full disclosure in ancillary relief proceedings.
The process of divorcing and obtaining a financial settlement can often be trying and exhausting. However, in the vast majority of cases couples can feel confident that they will be able to walk away with a final court order (whether negotiated or imposed by the court) safe in the knowledge that the legal process has ended and they can move on with their lives.

Unfortunately, there are a handful of cases where this finality is short lived after it is discovered that one of the parties has failed to disclose a fact material to the case. It can then become necessary to re-visit and even set aside the final court order if it can be shown that had this information been known, it would have resulted in a substantially different order being made.

Whilst applications to set aside final orders are very rare, being party to one can be a time consuming and costly process. If the application is successful, the final order will be ineffective and the financial proceedings will effectively be re-opened. This means that the process must begin again. There are likely to be requests for further disclosure and, if necessary, a re-hearing.

If you are the party found ‘guilty’ of a material non-disclosure, there is a strong chance that you will have to pay your ex-spouses costs relating to the application. Furthermore, you may face issues of credibility and arduous disclosure requests during the new financial proceedings.

So, how can you minimise the risk of this happening to you? Without meaning to state the obvious, honesty really is the best policy! There is a fundamental obligation on both parties in financial proceedings to provide full and frank disclosure. This can often feel like an onerous task. During the proceedings, both parties must complete and exchange a financial statement, commonly known as a ‘Form E’, which provides full details of their financial circumstances. Questionnaires asking for further disclosure often follow and if the matter goes to a final hearing, parties will give further oral evidence. Taking time to ensure that you provide thorough and honest information during these tasks will help to protect you from further costly litigation at a later date.

It is not uncommon for people to feel that there are some facts which are ‘not important’ or ‘do not need to be mentioned’, but these are exactly the kinds of issues which may come back to haunt you. You must ensure that you provide comprehensive disclosure at all times. If you are unsure as to the relevance of some information, you should inform your solicitor so that they can advise as to whether it can be disregarded in the context of financial proceedings. It is generally better to provide too much information than not enough.

It is understandable that clients can feel confused and distracted during their divorce and ancillary relief proceedings, but the disclosure process is not one which should taken lightly. Full and frank disclosure of all information material to the case will ensure that when you obtain a final order from the court you can start to get closure on the situation without fear of someone discovering a skeleton lurking in your closet….
Author: Claire Dyer of Blandy and Blandy Solicitors of Reading, Berkshire
See Directory
Blandy and Blandy website

Editor's note: This article co-incides with the news that one fifth of couples who divorced last year tried to conceal their assets or income from their spouse - a figure which has doubled since 2006 according to a new report by Grant Thornton. The Daily Telegraph reports,
'In cases where assets had been hidden, 88 per cent involved men concealing wealth from their wives. Just two per cent involved women hiding assets. In the remainder of cases, both partners tried to conceal wealth from one another.'
Read full article at Telegraph/Divorce Aid

Marriages abroad must be legalised in the UK
The growing trend for summer weddings in faraway romantic settings has led a solicitor to warn that not all foreign marriages are automatically recognized as legal in the UK. With hundreds of couples choosing to marry abroad each year, Kevin Harris-James, of national law firm Irwin Mitchell, says that if a couple wish to live in the UK as a married couple they have to ensure their wedding vows will be recognized by the law of England and Wales once they are back home.

“If a couple gets married, say, on the beach in Antigua the marriage must be in accordance with the law and custom of Antigua,” says Kevin Harris-James. “But the couple must then ensure they have official proof of this “legal” marriage for it to be properly recognised back in England and Wales.

“This means coming back with a valid certificate confirming the marriage, which must then be registered at the General Register Office in Southport (or Edinburgh or Belfast as appropriate to Scottish and Northern Irish couples).”

“This may seem obvious, but couples will need to provide a copy of the entry into the local marriages register certified by the appropriate authority in the foreign jurisdiction, together with an English translation. The Consul will also need to be satisfied that the certificate or extract is authentic and the translation is accurate.

“Armed with these official document, the newly weds can settle down to happy and legal, wedded bliss in the UK!” says Kevin Harris-James.

Kevin is a Partner and Head of Private Clients in the Birmingham office of national law firm Irwin Mitchell. He is recognized nationally for his representation of a number of high profile professional footballers and media celebrities in their private legal affairs. Divorce Aid also benefits from his advice and we thank him for his valued input.
For details see Irwin Mitchell in our Directory or the Irwin Mitchell website

Government abandons plans to protect cohabitees
The Government has announced that it does not, for the time being at any rate, intend to proceed with reforms to the law that would have given cohabiting partners similar rights to married couples or civil partners on the breakdown of their relationship.

This unexpected announcement was made by Justice Minister Bridget Prentice and is all the more surprising given the inconsistency of rulings made by the courts in this problematic area.

The Law Commission had spent two years working on proposals to give protection to couples who live together. If introduced, these would have set out the respective rights of cohabitees as regards the financial arrangements on the termination of a relationship.

The number of people who are living together in a relationship but who are neither married nor civil partners continues to rise. Many of these people are probably completely unaware that they have few rights in the event of a break-up of their relationship and that such rights as they do have centre around any children of the relationship.

“The problem stems from the fact that, contrary to popular belief, in law there is no such thing as a ‘common law spouse’,” says Mark Heselton of Vanderpump & Sykes Solicitors. “Couples who live together do not acquire legal rights and there are no set rules for how their assets should be divided if they split up. With over 2.5 million people currently living together informally, the courts are seeing a flood of disputes about who owns what when such relationships end.”

One common problem is where partners have lived together for a long time but the property they share continues to be held in the name of only one of the couple. If the couple then split up, this may give rise to a claim that the property should belong to both parties. The issues involved are often complex and such disputes can be very expensive to resolve in court. In some cases, people who have made a very substantial contribution to the financing and improvement of a shared home have been left with little or nothing for their efforts.

The review of the law in this area was intended to create more certainty in such cases, but the Government has chosen instead to wait to see what are the effects of planned reforms to the law in Scotland before any changes are made to the law in England and Wales.

“Meanwhile, the position of cohabitees is best protected by having a formal written agreement, which should be made with the benefit of independent legal advice on both sides,” says Mark. “This is particularly important where the assets involved are substantial, so that in the event that the relationship founders, a drawn out and acrimonious dispute can be avoided.”

For details of Vanderpump and Sykes, see the
Divorce Aid Directory or refer directly to their website.

'It's been a hard day's night, and I've been working like a dog'
So you think you can represent yourself in court?
Includes top 10 tips for litigants in person

Heather Mills has taken the brave decision to represent herself in the trial of her divorce claims against Paul McCartney. But are Heather Mills and others like her brave or merely foolish? Sir Paul is represented by one of the top family law QCs and the hearing is before a very experienced High Court Judge. Can Heather really compete?

More and more people are taking the decision to represent themselves in family proceedings (known as litigants in person). There might be many reasons for choosing to do so, but no doubt the most common reason is an inability or unwillingness to pay for legal representation, particularly at a time when few people qualify for legal aid. Some might believe that by representing themselves, they will be treated more leniently and achieve a more favourable outcome, or be able to make points which a lawyer has advised them are not relevant. Others might have sought legal advice initially, but found it unpalatable.

So what challenges might Heather Mills face in representing herself?

The first, and most obvious, is that her knowledge of the law – both the statute and the numerous relevant cases – will be significantly less than that of her opponent and the Judge hearing the matter. This may result in her failing to identify or sufficiently emphasise strengths in her case or to challenge points made on behalf of Sir Paul.

In addition, however used to public speaking, Heather’s advocacy skills cannot possibly match those of Sir Paul’s QC, acquired as a result of years of experience. This will impact in more than one way. A skilled legal representative will ask the right questions to ensure that all relevant evidence is before the Court. Without representation, the litigant in person’s evidence is not guided by questions, risking the possibility that some points are not made or alternatively, that so much irrelevant information is given that any good points are lost. Further, cross examination (questioning one’s opponent), which can be a very useful tool, is a specialist skill benefiting from experience and a lack of personal involvement.

Whilst it is possible to take someone known as a “MacKenzie Friend” into Court, this person can only have a limited role, providing guidance in relation to the law and giving prompts, but being unable to make statements or ask questions.

In reality, experience shows that cases where one party does not have legal representation, rarely settle prior to trial. There is far less incentive for the unrepresented party to settle as they do not have ongoing concerns about escalating legal fees. This does not mean they will be any happier with the final order made by the Judge. Historically, couples who are best able to move forward following divorce proceedings are those who have reached agreement rather than having a Judge impose a decision.

The lack of representation on one side can also have costs consequences for the represented party. It can result in more Court time being needed to hear the case, both to give the litigant in person more time and also because greater input is required from the Judge. Each day in Court increases the legal costs of the represented party. It often also means that the represented party’s legal team have to take on more of the burden of preparing the paperwork for the hearing. This imbalance can lead to the represented party feeling less inclined to offer to settle “at the door of the Court”, preferring to take their chances in front of a Judge in the knowledge they have secured skilled legal representatives to argue their case.

Heather has of course received legal advice from both a solicitor and a barrister in the past. She is not alone in deciding to seek legal advice early on in the proceedings, before deciding to represent herself at trial. In an ideal world, everyone should have the benefit of specialist legal advice and representation at Court. If this is not affordable, at the very least it makes sense to obtain advice whilst the case progresses, even if lawyers are not engaged for the final hearing. Unless either Heather Mills or Sir Paul appeal against the final decision from the Court, the general public will never discover the exact terms of their settlement as all family proceedings are conducted in private. However, it is worth remembering that decisions as to final settlement on divorce can have a long lasting impact and it is important to do everything possible to get the best possible deal.

TOP TEN TIPS FOR LITIGANTS IN PERSON

1. Make sure you know where to go. Allow plenty of time for the journey. Arrive early and be prepared to be at Court all day.

2. Don’t interrupt either the Judge or the other side when they are speaking. You will be given an opportunity to put your case and you should afford the same courtesy to others. Treat your opponent and the Judge with respect.

3. Find out who your Judge is and how to address him.

4. Dress smartly and if you are female, avoid revealing clothing!

5. Before you go into Court make sure your mobile phone is switched off.

6. If there are any documents you want to rely on make sure they are supplied to your opponent well before the hearing.

7. Make sure you take spare copies of any documents you have filed in support of your case. These are not always on the Court file.

8. Don’t be guided by what happened in your friend’s case, every case is different.

9. Prepare a brief note for the Judge which sets out your case.

10. Don’t run arguments that are doomed to fail. Even though you are a litigant in person you could still be ordered to pay your opponent’s costs if you conduct your case unreasonably. Beware!

Authors: Brenda Long and Sandra Marshall of Blandy and Blandy Solicitors of Reading, Berkshire
See Directory
Blandy and Blandy website

Ware and Kay

Nigel Wilson of Ware and Kay LLP in Wetherby discusses Trusts in light of the Charman case
Financial provision upon divorce is a developing area of law and it is fair to say that principles applying to ‘big money cases’ do not always have a wider application. However, the recent case of Charman v. Charman, in which the courts awarded an unprecedented* £48 million to the wife, has implications for both divorcing couples and those involved in wealth management (such as solicitors and financial services professionals).

The case caused a media sensation, not only because it is reportedly the largest settlement ever imposed by a court* but also because of the courts’ decision to take into account the £68 million put into an offshore discretionary trust by the husband.

Brief history/explanation of trusts

Trusts date back to the Crusades. Land owners going off to fight would transfer all their estates to a ‘trusted friend’ who would run things in their absence, with the understanding that, upon return, the land owner would once more take possession of his lands. Unfortunately, the ‘trusted friend’ did not always return the lands. The land owner’s only recourse was to go to the King. The King turned the matter over to his Chancellor who had the power to do what was ‘fair’ and thus was born the idea of equity. Over time it became known that the Chancellor’s Court [Chancery] would recognise the claim of the crusader and return his lands on request - the crusader was known as the ‘beneficiary’ and the ‘trusted friend’ was known as the ‘trustee’ of what came to be known as a ‘trust’.

Since then, many types of trust with differing purposes have evolved. For example, trusts are now routinely considered a wealth management tool. The trust on which the Charman case focused was a discretionary trust, such as are often set up for the purposes of asset protection. This type of trust ‘alienates’ the creator (in this case, Mr Charman) from the assets he places in the trust so as to protect these assets from creditors if that creator later becomes bankrupt. Although Mr Charman was one of the beneficiaries, he was not the only beneficiary, and therefore he did not ‘own’ the assets.

The court’s decision in Charman v. Charman can be seen as one which made those assets which were unavailable to creditors effectively available to the spouse on divorce, and this has made it the subject of much discussion..

To understand how this came about, we need to look briefly at the facts of the case itself: The parties were both aged 54, had been married nearly 28 years and had two children aged 24 and 20. At the time of the marriage, nether had any assets. The wife worked as a civil servant until late into her first pregnancy, and the husband began as a junior clerk at Lloyds, thereafter enjoying phenomenal success in the insurance industry.

The trust in question was called The Dragon Trust and was set up by the husband during the marriage. He was also the main beneficiary. The letter of wishes [the document which sets out what the creator wishes the trustees to consider when exercising their independent discretion] said that the husband wished to have the ‘fullest possible access to capital and income’. The Husband also retained the power to appoint or replace trustees. At the time of its creation some 50% of the family wealth was put into this trust.

The husband contended that the Dragon Trust was ‘dynastic’ [i.e. for the benefit of future generations], that it was not his nor under his control and thus should be excluded when calculating the totality of the parties’ assets prior to division of wealth.

The wife claimed that she knew nothing of the asserted ‘dynastic’ intent of the Dragon Trust and had thought it was for the benefit of the immediate family. As there was no written evidence of ‘dynastic’ intent, the courts, after hearing from them both, favored the wife. The husband had admitted that if the need had arisen, he might have called upon the funds in the trust, and that he had discussed collapsing the trust during the same year in which the he and his wife separated. His position as primary beneficiary coupled with his retaining power to appoint and replace trustees contributed to the family courts’ decision not to view this trust as ’dynastic’.

The court’s position was this: “it is in law a perfectly adequate foundation for the aggregation of trust assets with a party’s personal assets for the purposes of [finances on divorce] that they should be likely to be advanced to him or her in the event only of “need” “ . The court also observed that if it made a given order in favor of the wife, this created such a ‘need’ and thus the Dragon Trust money could be taken into account by the family court when looking at what award to make to the wife.

So, what lessons can be taken from this? If you hope for a trust and a creator’s intentions to survive the family courts, bear in mind the following guidelines:

1. If the intention is to establish a dynastic trust then make it so. Exclude the creator of the trust from the beneficiaries and make express provision for future generations

2. Ensure that the trust benefits a wider group, rather than just the creator and his/her spouse and it will help if actual distributions are made by the trust to the wider group.

3. Make the creator’s intentions clear at the time the trust is set up and ensure there is written documentation in place, taking special care with the wording of the ‘letter of wishes’.

4. If ‘alienation’ is the intent then do it properly and do not preserve for the creator the power to appoint or replace trustees

5. If creating a trust before marriage, avoid nuptial wording and avoid later additions of matrimonial property

6. Ensure that any spouse gets independent advice before looking to ‘alienate’ matrimonial property

It is important to be aware that following the guidelines above won’t guarantee survival in the family courts. The courts will continue to look at each case on its merits/individual facts. However, such a high profile case provides useful indication of possible future rulings.

In this particular case, Mr Charman failed to persuade the court to ignore the trust assets. This reflects the particular facts and evidence in this case. It does not mean that the family court will always look to take into account trust assets on divorce.

Aspects of this case served to highlight the importance of early authoritative advice in any divorce or separation situation, and to take care in relation to such things as the drafting of asset schedules, even preliminary ones.

The case deals with many other aspects of the currently developing law relating to finances on divorce but they are beyond the scope of the current article.

*in England and Wales

Nigel Wilson of Ware and Kay

Nigel has specialized in family law for 12 years is a partner at Ware & Kay LLP and is Head of their Family Law Department based in Wetherby. See our Directory for details


Who's the Daddy?
Karen Chapman, Resolution Specialist accredited solicitor,
in the Vanderpump & Sykes Family department, offers
guidance on the sensitive subject of paternity disputes

Between 2004 and 2005 CSA statistics showed that 1 in 6 men
who had DNA paternity testing were not in fact the biological father.
If the media is to be believed between 10% and 30% of all children
are not related to the father who has been helping to raise them.
UK figures show that non-paternity was closer to 2%.

Establishing Paternity
Anyone with sufficient interest may apply to the court for a declaration of parentage. A declaration can also be made under the Child Support Act but this is only effective for determining liability to pay Child Support.

The introduction of DNA testing makes it possible to establish paternity with near certainty however the court is unable to compel an adult to provide a sample for analysis which means that paternity in some cases is still a matter of inference from evidence. There are certain presumptions, for example paternity is presumed if a father is named on the birth certificate but presumptions can be disproved.

DNA Tests
The court has power to direct the use of bodily tests to establish paternity and can order the taking of a sample from a child. Testing can be refused but if paternity is a real issue the court will rarely do so nowadays because of the child’s right to know the true facts about his paternity.

A Child’s Right to Know?
Cases of disputed paternity can often lead to disruption of settled family life, cause embarrassment and make life far more complicated, particularly in cases where children have been brought up believing another to be their biological father.

*The chance of 2 people sharing the same DNA is less than 1 in 1 billion however identical twins share the same DNA profile

Whilst there are competing rights of mother, and child not to have their settled life disturbed, in most instances the court is likely to take the view that the interests of the child are best served if the truth is known.

Some of the More High Profile Paternity Disputes:
*Tennis champ Boris Becker conceded he was the father of 10 month old baby girl after model Angela Ermakova launched a paternity dispute claiming the child was conceived in the broom cupboard of a London restaurant!

*In August 2007 Spice Girl Mel B established actor Eddie Murphy as the father of her daughter

*...and spare a thought for Mick Jagger, the ageing rock star has found himself involved in 2 court disputes, in 1970 his first daughter was born following an affair with Marsha Hunt who sued for child support and then followed Luciana Morad in 1999, the affair with the Brazilian supermodel ended his marriage and cost him a staggering £10,000 per month in child support!

See this firm in our Divorce Solicitors Directory
For further advice on this article please contact Karen Chapman at Vanderpump & Sykes on: 020 8367 3999. The full article is downloadable on www.vanderpumpandsykes.co.uk
Reports suggest that Angela Cannings and her husband are going to divorce. Blandy & Blandy Solicitors of Reading discuss child issues in divorce
As if their personal circumstances were not already sad enough, recent reports suggest that Angela Cannings and her husband are going to divorce and that there might be a dispute as to the future living arrangements for their 11 year old daughter.

Fortunately, many separating parents are able to agree the arrangements in respect of their children, either between themselves or with the help of mediators or solicitors. However, when they are unable to reach such an agreement, the Courts are asked to intervene.

There is an increasing media interest in such matters, particularly in respect of the children of celebrities or those in the public eye. The reporting is not always accurate, both in terms of the terminology and the factors which the Courts take into account.

Since the Children Act of 1989, the words ‘custody’ and ‘access’ are no longer used. Instead, the terms are:

Residence: this describes with whom the child lives. This would usually be a parent, though not necessarily. Residence can be, and commonly is, shared between two parents.

Contact: this means the arrangements for seeing any person, again usually a parent, with whom the child does not live.

Parental Responsibility: this is the legal package of rights and responsibilities in respect of a child and therefore covers bringing the child up, caring for him and making decisions about him. Where parents are married, they will both automatically have Parental Responsibility for their child and it cannot be taken away following separation or divorce. If the parents are not married, the mother will have Parental Responsibility, but the father will only have it if he has acquired it by virtue of being named as the father on the child’s birth certificate (registrations after 1 December 2003) or by formal agreement with the mother or by court order. Although technically an unmarried father’s Parental Responsibility could be taken away by order of the Court, it is hard to envisage when the Courts would exercise this power. Accordingly, reports suggesting that Angela Cannings is going to attempt to gain full Parental Responsibility in respect of her daughter are incorrect, as both she and her husband will retain Parental Responsibility after any divorce.

The factors the Courts must take into account when considering arrangements for a child are set out in a checklist in the Children Act. The paramount consideration is the child’s welfare. In addition, the following matters, known as the Welfare Checklist, must be considered (the list is not intended to be exhaustive):

• The child’s ascertainable wishes and feelings – this very much depends on the age of the child and his or her level of understanding. The older a child, the more likely the Courts are to follow his or her wishes. So in the case of the Cannings, where the child is 11, her views will be very relevant, but, depending on her level of maturity, probably not determinative.
• The child’s physical, emotional and educational needs and how capable each parent is of meeting these needs. In many cases, both parents will be equally capable.
• The likely effect of any changes in the child’s circumstances. This is often referred to as the ‘status quo’ argument. The Courts are usually more reluctant to move a child from his or her settled home, particularly if this involves a change of school, geographical area and loss of friendship groups, etc. So the fact that Mrs Cannings was separated from her daughter for a few years prior to her release in 2003 is unlikely to be relevant, but if, as reports have suggested, the daughter has been living with her father since the parents separated last year, this is a factor which the Courts would take into account.
• The child’s age, sex, background and any other relevant characteristics.
• Any harm the child may have suffered or is at risk of suffering.

In order to ascertain the facts of the case, the Courts will usually ask for statements from the parents and sometimes from third parties. In addition, where residence arrangements are in dispute, the Courts will usually invite a CAFCASS (Children and Family Court Advisory and Support Service) officer to prepare a report. The CAFCASS officer (previously called a Court Welfare Officer) generally meets with both parents and the child(ren) along with any other relevant third parties and, following the Welfare Checklist, prepares a report giving his recommendation on the appropriate outcome.

The Judge will very rarely meet the child(ren) and the CAFCASS officer will probably only see them once or twice. It follows, therefore, that it is far better for the parents, who after all know the children better than anyone else, to try and reach their own agreement as to the best arrangements. This also has the benefit of ensuring that the children are not involved in a dispute and do not feel that they are being forced to choose between their parents.

Sandra Marshall and Brenda Long

The writers do not have all the relevant facts relating to the Cannings family and are not seeking to express a view as to the likely or appropriate outcome for this particular family.
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Blandy & Blandy website


Has Christmas turned your thoughts to cohabiting?
Caroline Ford, the latest addition to the Family team at Vanderpump & Sykes, gives food for thought when considering cohabitation.

You may have heard recently that the Government wishes to reform the law regarding cohabitation. Quite right too. Existing legislation does not assist the many who believe in "common law marriage" and assume that they are protected. New legislation may well assist but it is still some way off. Until it is in place partners should protect themselves so that in the event of a breakdown of the relationship, they don't find themselves unexpectedly out of pocket or involved in an expensive dispute.

The essence of our advice is get organised, communicate with one another and put documents in place which will bind both of you if things go wrong. Of course, people don't like sitting down and having conversations with their partner about what happens if they split up. It's unromantic. Is he trying to tell her that he has no confidence in the relationship? Is she not committed after all and just wants to make herself a fast buck? Death is an equally unappetising prospect and, inside and outside of relationships, far too many people go to their grave without having made a Will, thereby leaving chaos and their nearest and dearest not benefiting as the deceased would have intended.

Talk to each other, even if it does feel awkward. Consider what would happen if one or other of you dies. It's not always easy but it could save a lot of hassle and a lot of money.

Here are things we would suggest :
1. When buying property together, enter into a Trust deed. This is a document which will state how you want to hold the property and sets out what happens if it is sold or the relationship breaks down.
2. Enter into a Cohabitation Agreement. this extends your agreement to as many areas of your finances as you wish. It helps focus your mind on issues you may not think about until it is too late (e.g. what happens on separation to the furniture, car, cat etc).
3. Not all unmarried fathers have parental responsibility (PR). If you do not have PR and have children together enter into a Parental Responsibility Agreement. This will give an unmarried father all those rights and duties that go with being a parent.
4. Make a Will. It doesn't cost a fortune. A Will makes your intentions clear as to how your assets are to be dealt with on death.

We can advise on and prepare any of these documents for you. Following the above is easy and can be construed as looking after your partners interests as well as your own. Does the idea seem so unromantic now?
See Vanderpump & Sykes' details Mark Heselton and his Family Team offer a fixed fee initial meeting which is great value.

Endowment Policies
In the unfortunate event of marital breakdown it is very often the case that upon sale of the former matrimonial home any endowment policies previously secured to the property are simply surrendered (i.e. cashed in). It is, however, in my opinion, incumbent on the solicitor advising in the divorce settlement to investigate all sensible options to properly represent the client's interests.

Before considering all alternatives, it is important to understand how an endowment policy works. It is a form of life insurance with payment of a fixed sum to an insured person on a specified date, or to his estate on his earlier death. To this sum reversionary or normally annual bonuses are added with final or terminal bonuses also being paid by most insurance companies.

The type of endowment usually associated with mortgages are a variation of the with profits endowment known as a "low cost endowment". It combines a normal with profits policy with a decreasing term assurance. The death benefit usually equals the outstanding balance of the mortgage loan but the "fixed sum" or sum assured is usually much lower than this sum in the early years of such policy.

Endowment policies have been an attractive way of securing low cost "interest - only" mortgages as they represent relative security to a Mortgagor and can achieve a comparatively high return to the investor. Endowment policies now feature regularly as part of a matrimonial estate.

There are administrative costs levied by a life company and these charges tend to be deducted in the early years of the policy. For that reason if an endowment policy is surrendered in it's early years it generally fails to attract its true market value. It may acquire a "surrender value" which is sometimes lower than the amount paid into such a policy.

Generally speaking if an endowment policy is less than 5 years old, surrendering the policy is usually the most sensible option, if the premiums cannot be maintained by either party.

However with an endowment policy that has been running for a period in excess of 5 years there is sometimes a more attractive option to consider, namely to sell or auction the policy. Having said this for a twenty five year policy most market traders will require the endowment to have been running for at least 10 years.

Over the last few years there has been a growing market in second hand endowment policies for private or institutional investors who are prepared to pay in excess of the surrender value. Such policy represents a safe investment because the value of the policy tends to improve significantly in its later years, and it is also secured on the life of the policy holder and as such there is always the possibility of an early return in the event of their prior to the conclusion of the term of the policy.

There are a growing number of highly regarded companies dealing with second hand endowment policies who are often able to secure over 25 per cent more than the surrender value of a policy by way of auction. There are of course fees to be paid but nevertheless the returns still remain the same.

A word of caution - it is not the place of the solicitor to advise whether or not it is in a particular client's interest to auction an endowment policy. It is for an independent advisor to assist in this respect. It is however the solicitor's role to fully explore all options to ensure the client is able to make an informed decision.

During times of marital upheaval there are many difficult decisions to make and in my experience clients tend to opt for the route of least resistance by simply allowing an endowment policy to lapse or surrendering a policy. Selling or auctioning an endowment policy is not a difficult or expensive process and therefore should be considered in appropriate circumstances.

Written by Kevin Harris-James. He is a Partner and Head of Private Clients in the Birmingham office of national law firm Irwin Mitchell. Kevin was recently chosen as Family Lawyer of the Year by the Birmingham Law Society, and is recognized nationally for his representation of a number of high profile professional footballers and media celebrities in their private legal affairs. Divorce Aid also benefits from his advice and we thank him for his valued input. For details see Irwin Mitchell
Editor's note
Please see our information about Endowment Selling

When is a divorce really final?
It is a common misconception that a divorce means the end of any financial claims, it does not. Some people have found themselves facing claims by an ex-spouse years after the divorce was made final, perhaps even after they have remarried.

This is particularly damaging if they have in the meantime done well in life, inherited property, built up a business or even won the lottery. An ex wife or husband can make a claim against income and capital, even if it has been acquired after the divorce, unless there is an appropriate order made within the divorce proceedings.

It is relatively simple to get divorced nowadays, a basic package is even available on the internet. It is however vital to ensure that you not only obtain the final divorce order, known as Decree Absolute, but also a final order dealing with financial issues.

The initial divorce petition must contain the appropriate financial claim, and this must be followed up by a separate financial order at a later stage in the divorce. It is in both parties interests to try to agree as much as possible about the division of finances, this can be done by direct discussions, at mediation or by negotiations with the assistance of solicitors. If agreement is not possible, the court can make the decision.

A properly worded order can ensure that what each of you agree should happen, does actually happen, and no more. Each party can then face the future secure that anything they build up after that order is no longer vulnerable to claims from their ex husband or wife.

By Dawn Coller, Partner at MCP Solicitors, Thetford
See MCP Directory details for Thetford office

CSA gets tough on 62,000 parents who refuse to take responsibility for their children
Think carefully if you intend to stop paying your child's maintenance as the Child Suppor Agency still has teeth. There have been 13,000 non-payers across Great Britain during 2007 who have had their cases passed on to bailiffs and/or been presented with a summons and taken to court. Surprisingly, 400 have received immediate or suspended prison sentences.

It has launched a campaign targeting 62,000 parents who collectively owe their children almost £200 million. The campaign has rolled out in Birmingham, Manchester, and Nottingham. Liverpool, Glasgow and Cardiff will follow next month.

Across these six cities, 62,000 parents owe just under £200 million in child maintenance - money that their children deserve and have a right to. In many cases, this money would make a real difference to their child's quality of life.

Lord McKenzie said:

'Our enforcement team is more determined than ever to track down these parents and force them to support their children. Parents are given every opportunity to pay, but for those that refuse the CSA has a range of enforcement measures it can use, including deducting money straight from pay packets and taking non-payers to court. In extreme cases they could end up losing property or possessions.

This campaign sends a strong and simple message to those who refuse to pay child maintenance throughout Great Britain: Your time is running out. Act now or we will.'

The campaign will raise awareness of the Agency's powers via advertising on radio, billboards, and in local newspapers, as well as posters in washrooms, pubs and gyms. The ad creative focuses on the CSA's enforcement powers and highlights the frequency which with the Agency uses these powers. For example, every day 37 non-paying parents have their cases passed onto bailiffs. Each advert carries the warning,
"Your time is running out. Act now or we will".

Editor's note: See our article on Children and the CSA

Cohabiting couples
On 31st July, the Law Commission published a report into the financial consequences of relationship breakdowns between cohabiting couples.
Many couples still wrongly assume that, in the event of a breakdown in their relationship, they will have some protection as a “common law spouse” and will be treated by the law as if they were married, at least if they have been living together for some time.

There is no such thing as a “common law spouse” and, at present, cohabiting couples have no extra claims to deal with the financial consequences of their relationship ending, even if they have children together. This area of law is currently governed by property, trusts and contract law. This is complicated and can be expensive to rely on. It was not designed for these circumstances and can often give rise to outcomes that are unjust. Many believe the current position is unfair and that more protection should be afforded to those who do not marry.
Following a process of consultation, the Law Commission’s report for cohabiting couples has now been published. The recommendations for obtaining financial relief are restricted to the ending of a cohabiting couples’ relationship through separation or death and does not extend to other relationships between those sharing a home such as relatives, carers and dependants or commercial relationships.

The proposed legislation would only apply to cohabitants who have had a child together or who have lived together for a specified number of years (somewhere between 2 and 5 years has been suggested). It would not follow that an applicant has a presumed entitlement to a share in any property as is the case for divorcing couples. To obtain a remedy via the court an applicant would have to prove that a “qualifying contribution” had been made to the parties’ relationship.

Couples would be able to disapply the law by entering into an “opt-out” agreement leaving them free to make their own financial arrangements. In these circumstances, and in situations where the individuals sharing the house do not fall within the definition of “cohabitants”, the existing law would still apply.
It should be emphasised that this report only makes recommendations. It remains to be seen whether this will be adopted by the Government and made into law.

In the meantime all co-habiting couples should ensure they have taken legal advice and drawn up a proper Deed of Trust or Cohabitation Agreement, as well as ensuring that all the conveyancing documents accurately reflect their intentions in relation to the ownership of their property.

Blandy & Blandy offers a specialist service dealing with multiple ownership of property including cohabitation. For more information contact Sandra Marshall at Sandra_Marshall@blandy.co.uk or telephone 0118 951 6800.
For other areas, please refer to our Family Law Directory

How to be a stepchild
New relationships bring new joy but also new problems

Here we hear from Jill Curtis, a psychoanalytic psychotherapist working in private practice in London. She is a frequent broadcaster on family matters and has written several books. Jill even has time to contribute to this site as well as running her own family site.

How to be a stepchild
Today I received an e-mail from a girl, I will call her 'Alison', who told me she was twelve years old and wanted to ask me a question. She went on to say: 'Daddy is going to marry someone else and he is taking me to meet her on Saturday. Please tell me what to do?'

A simple, direct question, but one which set me thinking. It made me wonder how many children there are who are thrust into the complicated arena of stepparents without any idea how to go about it. Or, indeed, what is expected of them.

Has this happened to you?
Look in any magazine, and on the internet, and you will find plenty of advice for parents and stepmothers and stepfathers. There are many organizations, forums for discussion, and conferences planned around the idea of step parenting. There are plenty of dos and dont's on offer for parents about how to 'deal' with stepchildren. And yet, you (if you are a child) may find you have been faced - sometimes without warning - with a parent's new boy or girl friend. They may even have been introduced, perhaps with a laugh, as "Your new 'mum' or 'dad'". Believe me; this happens more often than you might think.

Perhaps the grown-ups should put themselves in your shoes for a moment.
What do we all do when we don't know what is expected of us? What we do, especially when we are uncertain, is to look at the floor, fiddle with our hair, or answer in a monosyllabic way. All ways guaranteed to bring down the wrath of the adults. Perhaps you recognize this?

The difficulty for any child of divorce (and by 'child' I do mean 'adult' children too) is feeling torn between the two people they love most. If on one hand you see mum or dad radiantly happy with a new partner, and on the other a depressed distraught parent, then it is hardly surprising that you view the outsider as the cause of all the family problems. That may not, in fact, be so. But what are you to do? By pleasing one parent, you are likely to feel you are twisting the knife in the other.

A real crisis can occur when there is to be a wedding, just as in the e-mail I received: it had become crunch time for 'Alison'. How can it be that a twelve-year-old is so desperate to 'do the right thing' and that I am the only person she can ask? From speaking with many parents over the years, I would guess that 'Dad' is too busy setting up the meeting with his new partner to think just what it means for his daughter. And 'Mum' is the last person to give advice on step parenting 'etiquette', so 'Alison' is left wondering just what to do, and say, on Saturday.

Introducing a new partner?
If you are a parent reading this article, and planning to introduce your children, try to remember that you have had time to know and to grow to love your new partner. Your child will have a very different perspective, and will need time to form a view of his or her own. So, too, will your new partner, who may be scared to death about meeting your child. If you are planning a wedding be extra sensitive to your children's feelings, even in the midst of planning a celebration. They may not feel like celebrating.

So are their any guidelines on 'How to be a stepchild'?
If you are old enough to be reading this article you should be aware that you mustn't be rushed into a step-relationship. This may, or may not, happen. Try to get to know your mum or dad's new friend as you would any new person in your life. Then you can decide whether you like them as a person, or not. Accept that by recognizing this new 'someone', you are not necessarily giving the union your blessing. It may be a bitter pill to swallow, but one reason for apprehension and antagonism is often because hopes that your parents will get together again, will be finally dashed. Whether you can allow your parents new partners to become loving members of your family - well, only time will tell.

So, to all the 'Alisons', remember nothing you can do can repair the fact that your parents have divorced. If one of them is to re-marry wait and make up your own mind in your own time. So, you don't have to 'do' anything on Saturday. Just be yourself, no more, no less. No one can ask more of you.

And, here is the good news, there is a space for you on this site, so don't feel alone. There is always someone there to listen and to help you over the difficulties of 'being a stepchild.' © Jill Curtis

We highly recommend Jill's latest book, 'How to Get Married...Again' which discusses the above subject as well as planning for the future and remarriage. Please check out our Books section for details.

How to make the divorce process less painful
We hear from Kim Beatson, Head of Family Law Team at Anthony Gold

I went to a wedding recently where the bride’s parents (each with their new partners) sat on opposite sides of the aisle. The wedding reception was a tense affair. Both the bride’s father and stepfather made speeches but the animosity between them was evident – all very sad as the bride’s parents had divorced some ten years earlier.

Each year around 275,000 couples marry and around 168,000 couples divorce. The divorce rate has stabilised over the last few years but the popularity of marriage as an institution is in gradual decline.

There is increasing public awareness of the huge pain that divorce can inflict on families both in emotional and financial terms. Divorce lawyers often take the blame for this but what are the alternatives to the conventional legal process?

Many couples are choosing the mediation option as a civilised means of resolving disputes that arise when a relationship ends, such as whether to divorce or separate and what arrangements should be made for the children, finance and accommodation. This has nothing to do with reconciliation. Instead, couples meet with a trained mediator who will help them to identify the areas of disagreement and to explore the areas for settlement. The mediator does not give the parties legal advice and, therefore, both parties are encouraged to take independent legal advice before any agreement is finalised. The parties’ solicitors can then draw up a binding agreement if a settlement is reached. The process is confidential.

Susannah and Alan came to see me in mediation earlier this year. Both agreed that the marriage was over but were still living together. Both were anxious to see as much of the children as possible. Alan had formed a new relationship and Susannah was upset about this and mindful of the effect this could have on the children. Both had strong views about whether the matrimonial home should be sold. In mediation it was possible to agree a pattern of contact so that Alan was spending frequent time with the children. Alan was able to agree that the children should not be brought into contact with his girlfriend until the separation took place. It was agreed that the house should be sold but Susannah received a greater proportion of the proceeds to reflect the fact that Alan had greater pension provision. Both took their agreement to their own lawyers after mediation, an agreed settlement was reached and the legal costs were reduced considerably.

In mediation a negotiated settlement can be achieved in a matter of weeks, saving thousands of pounds on each side. However, the mediator still requires full details of the parties’ financial circumstances.

Mediation is equally suitable for cohabiting couples or same sex couples. It is particularly helpful where couples disagree about the future welfare of their children.

Mediation has been around for years, but there is a new way of resolving family law matters that is known as collaborative practice. This involves the couple working with specially trained collaborative lawyers (one each). They each receive legal advice and guidance and, together with the lawyers, discuss and resolve issues through face-to-face meetings. The threat of Court action and horrendous legal costs are avoided because everyone signs an agreement that disqualifies the lawyers from representing the couple if the collaborative process breaks down.

The advantages of negotiating outside the Court process are that the couple set the agenda according to what matters most to them and their family. Working outside the Court process allows the couple to work at their own pace and to resolve matters as quickly as they wish. Once again, full and frank disclosure of financial circumstances is central to the process. Collaborative practice is an excellent option for people who want to avoid the uncertainties of the Court based system. It allows clients to benefit from legal advice without risking the threat of Court action during the negotiations. Both partners and their lawyers work together to find the best solutions.

If you are keen to achieve an amicable end to your marriage or relationship, then I urge you to consider mediation or collaborative practice. It is impossible to truly walk away from a relationship where children are involved. School meetings, graduations and weddings mean that couples may continue to meet as parents. Mediation and collaborative practice assist in creating an environment whereby it is possible to continue those activities with a spirit of respect and courtesy that can often be lost as a result of a legal battle.

Kim Beatson
Anthony Gold
See their details at Anthony Gold Divorce Aid Directory
Their website is Anthony Gold Website

The Pre-Nuptial Agreement – “For better, for worse”
Britain has one of the highest divorce rates in Europe, with almost 40% of marriages collapsing. Divorce can have a devastating impact upon marital wealth and so a Pre-Nuptial Agreement at the outset of a relationship is an essential form of asset protection.

PNA’s are commonplace amongst the rich and famous, and increasingly popular with wealthier members of the business sector. I have prepared many over the years for a number of well-known professional footballers and local media celebrities, but of late I have noticed an increased demand from the business / professional community.

It is of course the celebrity marriages that make the headlines, but that does not detract from the increasing demand for Pre-Nuptial Agreements from the wealthier members of society.

Elizabeth Taylor had the foresight to ensure she entered a PNA with her latest husband Larry Fortensky in order to protect her substantial wealth upon separation only allowing her husband a $1 million settlement – obviously learning from the experience of the several failed marriages.

Another well publicized PNA was that entered into by Sharon Stone and her partner whereby if they separated within the first two years her partner will only receive $300,000.00 of her $60 million estimated fortune.

Rod Stewart and his now estranged wife Rachel Hunter entered a PNA at the beginning of their relationship. It is anticipated that the rock superstar will have protected the majority of his £65 million estimated wealth.

It is believed that Mick Jagger and Jerry Hall entered a PNA, although later a question was raised concerning the validity of the marriage. The couple’s recent separation is well documented and it is understood that the PNA only allowed Jerry Hall $10 million of her famous husband’s $250 million estate.

The current position in English law is that the PNA is at best a statement of intent between the parties. They are of evidential value. This is however a long way from legal acceptance of the PNA. In this respect English law is out of synch with other legal jurisdictions who have long supported the PNA.

The Labour Government grasped the nettle when first elected when the Government set up the Family Policy Group chaired by Jack Straw which subsequently recommended the PNA as a way of avoiding protracted and expensive legal battles. These recommendations took the form of a consultation paper entitled Supporting Families which invited comment from the legal profession and associated groups. There was a general consensus of support to make PNA’s legally binding, but the initiative seems to have gone quiet of late at political level.

However, the Family Court has continued to show its support for the PNA in a number of high profile cases bringing pressure to bear for a long overdue change in the law if anything to bring us in line with the rest of Europe where the PNA receives legal recognition and consequence.

In a series of cases in recent years the existence of a PNA has been given increasing weight and in one celebrated short-marriage case the Court was persuaded to adopt without alteration a PNA and in doing so awarded the Wife just £120,000 notwithstanding that the Husband was worth about £50 million.

There can be no doubt that PNA’s are an increasingly attractive proposition for wealthy clients contemplating marriage, typically where that wealth is largely one-sided. Moreover where that wealth is likely to be increased sharply in the first few years following marriage they hold an added lustre. It is thus easy to see why some of my professional football clients would find the PNA attractive in protecting wealth over the span of a playing career.

However it is important to note that the Courts do not simply accept all PNA’s. Instead they adopt a staged approach. Firstly they ask whether the PNA was fairly negotiated? If it was then the Court will go on to consider the extent to which it is still fair to hold a party to the PNA.

Thus advising clients in respect of PNA’s has now become exceptionally complex, and therefore legal advice from a specialist family lawyer with particular experience in drafting such agreements is essential. There are no longer any hard and fast rules. For example, it was often said that PNA’s signed on the eve of marriage would be disregarded by a Court because of unfair pressure on the signing party and often this is true. However the Court of Appeal has recently been prepared to uphold just such an agreement notwithstanding the timing.

This is an area of law that looks to be in transition. Government intervention is inevitable to bring about statutory recognition of the PNA. Thus there is a real chance that the law in several years time (if not sooner) will favour PNA’s even more strongly, adding to the incentive to make one today.

For the time being however the significance of the PNA will turn on a number of complex assessments of factors including (but not limited to) the following:

• The extent and accuracy of disclosure of means from both parties prior to the signing of the PNA.
• Whether both partiers had independent legal advice and time enough to consider it.
• Whether either party was placed under undue pressure to sign.
• The length of the marriage to be governed – the longer the marriage the less weight the PNA will carry.
• Whether there have been children in the marriage and the extent to which this constitutes an unexpected change of circumstances.

Critics suggest that PNA’s are an affront to the sanctity of marriage and undermine the moral fabric of a relationship…”for better for worse.” Talk of PNA’s is seen as defeatist – an admission that a marriage is doomed to failure before it has even started.

Marriage is thus seen as a binding contract between the parties with no exclusion clauses whatever the circumstances. A commendable ideal.

However, it is a harsh reality in modern life that relationships break down, whatever moral code you subscribe to. PNA’s pre-empt such an unfortunate outcome to a relationship and can make the separation easier to bear for all concerned.

Divorce can be a costly and traumatic process leaving only victims in its wake. The advancement of the PNA is just one further step to trying to diffuse some of the animosity and recrimination so often associated with divorce.

It is said that it is too easy to get divorced. Critics loath the concept of the “quickie” divorce. However, is this not a case of putting the cart before the horse? The real criticism should be levelled at the fact that it is too easy to get married – a decision very often made from the heart rather than the head.

We live in a rational thinking society and plan for the future. We plan for ill health (BUPA membership, critical illness cover), loss of employment (income protection cover, education), retirement (pensions, annuities), death (life cover, wills) – all examples of preparing for the worst. Therefore why the stigma surrounding the PNA which is another way of planning for the future? Parties entering a marital contract should consider their respective positions, clarifying explanations and sorting out problems before they occur. In other words laying the foundation for a relationship and planning for the future in positive and negative terms – making a rational decision.

PNA’s should be thus seen in a positive light, encouraging beneficial and mutual understanding between the parties to contribute to the longevity of a relationship. It should be seen as a preventative measure to avoid future heartache and distress, enabling the parties to decide matters for themselves rather than resorting to litigation which may involve the court imposing a solution which may be contrary to both party’s wishes.

For those with substantial assets, particularly overseas, the PNA is an essential form of wealth protection. For intended couples to talk of PNA’s may be seen as unromantic. However, it can be seen as a solid basis upon which to build a long and lasting relationship.

Written by Kevin Harris-James. He is a Partner and Head of Private Clients in the Birmingham office of national law firm Irwin Mitchell. Kevin was recently chosen as Family Lawyer of the Year by the Birmingham Law Society, and is recognized nationally for his representation of a number of high profile professional footballers and media celebrities in their private legal affairs. Divorce Aid also benefits from his advice and we thank him for his valued input. For details see Irwin Mitchell

Destroying the myth of common law marriageIn England and Wales, over 4 million people cohabit – between 1996 and 2004 there was an increase of over 50%. Two in three women believe they have the right to financial support from a partner if they have lived together for more than 5 years, and 61% believe that couples who have lived together have the same legal rights as married couples. This is a myth. Contrary to popular belief, and regardless of the length of the cohabitation, there is currently no such thing in England and Wales.

If the relationship breaks down (statistics show that less than 4% of cohabitants last for ten years or more), then the courts will have little or no regard for the relationship regardless of how long you may have lived together.

Andrew Leakey, partner at North West law firm Stephensons, says: “Whereas married couples are afforded a great deal of protection from the courts, unmarried couples are treated as friends who happen to have lived together. This means that you do not need a divorce or family lawyer who practices under the Family Proceedings rules. Any action is brought to the courts under the Civil Procedure rules, and you will need a civil lawyer to deal with the dispute.

“When a married couple splits up, the divorce can take into consideration all aspects of the marital relationship. An unmarried couple are treated entirely differently. The courts will not grant to an unmarried couple provision for such things as maintenance. Any dispute as to who owns certain items such as furniture and cars will normally be resolved by reference to who paid for them only.

“The main asset of a couple will usually be a property or properties. Whether it is in joint or sole names, you are likely to need some advice as to what you are entitled to.

“If the property is in joint names, then the transfer document signed when the property was purchased will need to be considered by a specialist. In certain circumstances, the courts will grant a non-owner a share in a property, for example if there has been an agreement to share the property or where the non-owner has contributed significantly to the property.

“If you are not named on the deeds to the property, you have no automatic right to stay in the property. To obtain a share is a long and complex procedure often requiring the courts to determine the shares. When deciding the shares, the court can award a share of the equity (which is the value of the property less any secured loans such as a mortgage). The equity will be taken at the time the dispute is dealt with, and not the time the relationship breaks down.

“It is vital to obtain legal advice as soon as possible as house prices can change significantly over a relatively small period of time. This means that your ex-partner could leave you in a property for a substantial length of time and then seek a share of the increased equity. You could pay the mortgage for 10 years only to find that your ex-partner then wants their half share.”
This article was written by Stephensons Solicitors LLP. 'Stephensons is a UK top 100 Law Firm, one of the largest fastest growing and most successful solicitors in the North West .'
(Legal 500). Offices in Manchester, Wigan, Bolton (free initial interview), Leigh and St Helens.

Contact details:
Email: cth@stephensons.co.uk
Website: www.stephensons.co.uk
Contact: Ceri Thomas
Telephone: 01942 774436
Fax: 01942 774536


The myth of the common law marriage: 77% of people surveyed mistakenly believe they are entitled to their live-in partner's assets.

  • 50% of people think that they have automatic entitlement to a share of each other's assets after two years
  • 14% of people surveyed think that they would be entitled to a share of each other's assets after three years
  • 13% of people surveyed think that they would be entitled to a share of their live-in partner's assets after five years
  • Only 23% of people surveyed knew that they had no automatic entitlement to their partner's assets

More and more couples are choosing to not get married because of convenience, the expense or simply because the traditional pressures from society and the church are in decline. However, even though so many single people are living together, very few are aware of their legal rights, or rather lack of them, when it comes to property, maintenance, children, or tax, according to a survey by Blandy & Blandy, one of the leading law firms in the Thames Valley.

The myth of the 'common law spouse' is still going strong with the majority of co-habitees surveyed, mistakenly believing themselves to be a part of a 'common-law marriage', yet such a thing does not exist in modern law. The reality is that unmarried couples enjoy and/or acquire no special rights in relation to each other. Accordingly, when their relationship ends, whether through separation or death, they are treated as if they are two unrelated individuals no matter how long they have lived together.

The truth is that it is usually very difficult and expensive for co-habitees to make a successful claim on the property that they share with their partner, unless their name is on the title deeds. Moreover, co-habitees are liable to pay more inheritance tax and have no automatic claim on their partner's pension and no right to housing succession.

The Blandy survey revealed that 77 per cent of people surveyed thought that they had automatic rights to their unmarried partner's assets if they lived with them for 2-5 years or more. Both sexes were equally ignorant of the law with 71% of women surveyed and 85% of men thinking that they had 'common law rights', with the large majority thinking 2 years was the trigger point.

The 20-29 year olds seemed to have the most awareness with 39% knowing the law, however 80% of 30-39 year olds and a massive 89% of 40-49 year olds we unaware of the true legal implications.

Andrew Don, Partner at Blandy & Blandy commented on the findings: " Time and again, when advising a separating co-habitee on his/her financial claims, it is apparent that had they obtained proper legal advice at the outset of the arrangement, they could have saved themselves a lot of anguish and legal expense, and probably ensured a fairer outcome."

That being the case, until the law catches up with modern living trends, it's down to the co-habitees to arrange their own legal documents, drawn up a by a solicitor, to ensure that their wishes are carried out and assets shared fairly. For example, in the case of home ownership there are various options;

For couples who wish to buy a property together they can become either joint tenants or tenants in common. As joint tenants there is a presumption that each party has a 50% interest in the property. Upon the death of one partner their share of the property will pass automatically to the other. When partners own a property as tenants in common they can leave it to other people under their Will.

In either case, in the event of a dispute, either party can ask the Court to find that they have unequal interests in the property. However this can be difficult to prove and so such disputes can be avoided by having a Deed of Trust drawn up specifying exactly how the property is held and the interest that each party has in it.

Another option, which is particularly pertinent for those co-habiting couples with children, is a Co-habitation Agreement. A Co-habitation Agreement can deal with maintenance, the division of assets on separation, and whether each partner has the option to buy out the other.

Blandy & Blandy, based in Reading, is one of the oldest law firms in the country with a strong presence throughout London, the South, South East and South West of England. The firm specialises in both commercial and private client work, offering a full range of legal services. Its reputation has been built up over 300 years of delivering the highest quality service and the finest commercial and private client legal expertise.

For more information, contact Melissa Baxter at Blandy & Blandy
Tel: 0118 951 6931 Fax: 0118 951 6901 or e-mail: Melissa_Baxter@blandy.co.uk
See our Spotlight on family law firms article.

Editors' note:
Government proposals set out possible changes to unmarried couples' rights on property. See the Daily Telegraph article for more information.

The Civil Partnership Act - What does it all mean?

What is a civil partnership?
The Civil Partnership Act gives lesbian and gay couples the option of making a formal legal commitment to each other through a statutory civil registration procedure. Until this act came into force same-sex couples had no way of gaining legal recognition of their relationship. Any same-sex couple can register a partnership after 5th December 2005, providing they have given notice of their intention to register and waited the mandatory fifteen days following that notice. The legislation does not apply to heterosexual couples.

What is the position in relation to 'pre nups'?
For public policy reasons, pre nuptial agreements, sometimes known as pre marital contracts, are not absolutely binding on divorce (although there has been a move in recent case law to giving them more weight). However, the legislation which has introduced civil partnerships into English law has been very careful not to equate civil partnerships with marriages - for instance, there will be no exchange of vows as part of a civil partnership registration. It may therefore be that 'pre registration agreements' will be enforceable. Such an agreement may therefore be a sensible precautionary step for couples intending to register as civil partners.

What happens if a civil partnership breaks down?
There is a procedure which is similar to divorce. An application can be made for dissolution of a civil partnership one year after the partnership has been entered into. There is one ground for such a dissolution, which is that the partnership has irretrievably broken down. There are four facts that can be used to prove this irretrievable breakdown: unreasonable behaviour, desertion, separation for two years (provided that both parties consent) and separation for five years. These are the same facts that can be relied upon by divorcing heterosexual couples although, interestingly, the fact of adultery cannot be relied upon for the dissolution of a civil partnership, unlike upon divorce.

How will the interests of children of civil partnerships be catered for?
Any decisions taken by the Court in relation to a child are made on the basis of what is in the child's best interests. This will continue to be the case whether the child happens to be living with a couple in civil partnership or in any other family arrangement. With the consent of those who already have parental responsibility, or permission of the Court, a civil partner may acquire parental responsibility for a child of their partner, therefore being able to take key decisions in that child's life and being automatically able to make applications for contact and/or residence should the partnership break down.

How is property divided following the dissolution of a civil partnership?
The provision for financial relief relating to civil partnerships corresponds with the provision for financial relief following divorce. It is therefore likely that much of the legal authority that has developed in case law, governing the division of property and the provision of spousal maintenance on divorce, will also apply to civil partnerships. Certainly civil partners will have the obligation to support a child of the family, as married couples do, and such maintenance payments could be quantified and enforced by the Child Support Agency if voluntary payment were not forthcoming.

Will it affect people's wills?
From a Wills perspective, civil partnerships purport to put registered same-sex couples on an equal footing with married couples. However, same-sex couples who choose not to go through the registration process will still be left in the same difficult position as heterosexual couples who choose not to marry.

Whilst it has always been possible to provide for same sex partners in Wills, the laws of Intestacy (i.e. what happens to your estate if you die without having made a Will) have never provided for non-married couples. However, once a civil partnership is registered, the parties will be entitled to a portion of their partner's estate, if they die intestate. This goes some way to protect the partners of those who have simply not got around to making a Will, but note that the Intestacy Rules may not provide for the whole estate to pass to their partner. It is equally possible that some people may have deliberately made no Will, thinking that their money will go to their family, whereas this will no longer be the case.

There will also be changes to the laws relating to existing Wills. For example, registering a civil partnership will have the same effect on a Will as marriage - it will automatically revoke it. Therefore same-sex couples need to make a new Will after the registration, or alternatively, it may be possible to make a Will 'in contemplation of' the registration, which should protect the validity of the Will.

If a registered civil partner has cut their partner out of their Will, the aggrieved partner will have the same status as a spouse, to make a claim against the Estate for 'reasonable provision' to be afforded to them. Civil partners will no longer have to establish a financial dependency, as they did before.

What about Inheritance Tax?
Civil Partners will now be able to leave their entire Estate to each other, free of Inheritance Tax. This will give the survivor a level of security not previously afforded and will also enable civil partners to implement common tax planning schemes in their Wills. This involves making use of their two Nil Rate Bands, ensuring that the maximum inheritance can be passed on to their families.

Civil partners will also be treated as married couples are, for Capital Gains Tax purposes. Therefore, registered civil partners will be able to transfer assets between themselves at no gain or loss. This will enable them to equalise gains and losses they have each made, for tax-planning purposes, and should be considered before entering into a civil partnership.

What if someone has already entered into a civil partnership abroad?
There will be many cross-jurisdictional problems for civil partners, as the Civil Partnership Act recognises formal partnerships entered into abroad. Therefore, civil partners who have registered their partnership in another country should seek legal advice as to the effects of recognition under the UK regime, to ensure that their Estate and tax planning measures still work as they intended.

Does this mean the law considers civil partners as 'next of kin'?
Not always. Unfortunately, the Act does nothing to strengthen the position of civil partners when faced with decisions about medical treatment. Usually, hospitals will take instructions from 'next of kin' and as this is not a status in law, the partner will still be at the mercy of the hospital staff. If problems were anticipated with family members, then it is still advisable to make a Living Will, setting out instructions as to your treatment and directing whom should be consulted in an emergency.

Will this affect registered couples at work?
The Civil Partnership Act amends the Sex Discrimination Act 1975 by protecting those who have entered into a civil partnership as well as married persons. If an employer discriminates against an employee who is in a civil partnership the employer may face a potential claim for sex discrimination. If a claim of direct or indirect sex discrimination is upheld against an employer the usual remedies for sex discrimination will apply. One of the potential remedies is compensation and in sex discrimination cases there is no statutory limit on the amount that can be awarded.

The Act together with the Employment Equality Regulations provide for pension provisions to be made for civil partners or their dependants. From the date the regulations come into force it will be unlawful for trustees of private pension schemes to provide members with civil partners with lesser benefits than members who are married.

As in other areas of family law, you should seek your own independent advice from a family law solicitor and if you are in the Reading area, please make contact with Blandy and Blandy Solicitors. You will be in safe hands.
Blandy & Blandy Solicitors in our Directory

Caroline Ford, solicitor in the Family department of Vanderpump & Sykes, looks at what Grandparents should do if access (contact) to their grandchildren is denied.  

Recent research carried out by Families Need Fathers, The Grandparents' Association and the Family Matters Institute shows that 42% of grandparents lose contact with their grandchildren after the grandchildren's parents separate.

This is incredibly unfair, especially if the grandparents have a meaningful relationship with the grandchildren. There are approximately 14 million grandparents in the U.K; 82% of children benefit from grandparents care. Grandparents provide 60% of childcare provision. Research from Age Concern shows that one in every hundred children resides with a grandparent.

What should grandparents do if access to their grandchildren is denied? First of all, I would certainly recommend the direct approach to the parent with care, or even mediation. If these fail, then an application can be made to the Court for a Contact Order.

It is unfortunate that grandparents do not have an automatic right for contact with their grandchildren despite the courts recognising that grandparents play an important and invaluable role in the child's life.

If a grandparent makes an Application to Court for a Contact Order, firstly they must seek permission of the court to do so. The court will consider:-

  • the grandparents' connection with the child.
  • the nature of the application.
  • whether the application might potentially be harmful to the child's well being in any way.

Potentially, a grandparent's application can cause conflict as the respondents to the application will be both parents of the children. If either parent raises an objection to the application, then all parties concerned will need to give evidence in the form of statements. It is essential for the grandparents to establish that they have a meaningful and ongoing relationship with the grandchildren, which is of significant benefit for the child concerned.

The court considers all the circumstances of the case. An order will be made if the court decides it is in the best interests of the child to do so. A very important consideration is whether the grandparents' contact will have a negative effect on the parents' relationships with the children. For example, grandparents' contact time may eat into the absent parent's contact time.

Often where a grandparent no longer has contact, it is linked to the absent parent's lack of contact. If the absent parent makes an application for contact, it is worth considering the issue of the grandparents' contact within their own application and to seek the agreement of the parent with care to have no restrictions on the absent parent taking the children to see their grandparents during their contact time.

If both the absent parent and the grandparents make applications to the court, then it makes sense to request that the court consider the applications together.

See Vanderpump & Sykes page in our Solicitor Directory.

FAQ's in divorce from Forbes Solicitors in Lancashire, Top Ranked in Chambers UK 2011

How can I divorce?

If you have not been separated for two years or longer, and if you wish to divorce immediately, the law, as it stands, allows you to do so provided one of you blames the other. The blame is very rarely relevant to how the assets are divided. The divorce itself is not usually contested, and for this reason it is relatively inexpensive.

What happens to the children?

The children can be overlooked when parents' emotions are raw, the children can even be used as pawns in the domestic "battle". You will be encouraged by your Solicitor, the Court and other individuals who may become involved with your family, to put the welfare of the children at the top of your list. Arrangements for them should be reached by agreement wherever possible. The Court will intervene where agreement cannot be reached. There is opportunity for both parents to receive guidance from mediation/conciliation services.

Who gets the house?

On divorce, as a general rule, all assets are usually considered "family assets" regardless of whose name they are in. Your solicitor will encourage you to disclose details of all savings, property, shares and so on. Only when both of you know and agree how much capital and income there is, can you then try and reach some agreement about division. If agreement cannot be reached, it may be necessary to ask the Court to make a decision for you.

Can they touch my pension?

Pension values have always been taken into account when dividing assets. Publicity over the last few years has led to misconceptions about how they will be treated. Recent legislation makes division of assets fairer, and easier, bringing advantages to men and women alike.

What will it cost me?

If you cannot reach agreement about money, the children and so on, of course the cost will be greater. Our Divorce Solicitors will encourage you to try and reach agreement wherever possible. Solicitors are obliged to give you information at regular intervals about how much the costs are. Public Funding (Legal Aid) may be available, but usually you have to pay back your costs to the Legal Services Commission.

Do I have to have a Solicitor?

No, but it can help. You might think that you should receive a vast proportion of the assets, for example, when in reality you are going to be entitled to much less. A solicitor will give you realistic expectations and will encourage you to try and reach agreement. This could prevent you from having to pay your opponent's costs.

How do I go about changing my name?

All adults can change their name at any stage (over 18). The procedure is simple, a Deed is drafted, signed and witnessed. In relation to the change of childrens' names however, the situation is a little more complicated. You must take legal advice before contemplating changing a child's name.

Forbes Solicitors have offices in Accrington, Blackburn, Chorley, Preston and Manchester . If you mention Divorce Aid, there is a free half hour initial consultation. Just click on one of the offoces above for full details.

Fear for the future of family law
The Government has announced that it is seeking to radically reform the provision of family legal aid. The reality is that they are seeking to cut £350million from the legal aid budget which will have a devastating effect upon the advice and assistance given to separating families throughout the country. The Legal Aid, Sentencing and Punishment of Offenders Bill is presently making its way through parliament. The proposals are to remove legal aid from all disputes between separating couples relating to financial matters, child contact and residence cases. People will no longer be able to have the benefit of representation of even advice in these areas save for some exceptional cases where, for example, there has been domestic violence.

The Government aims to have disputes relating to contact with children and disputes as to who should live in the family home decided by mediation. Mediation is where the parties negotiate with each other with the assistance of a trained facilitator (mediator). Mediation can resolve a number of disputes and it is an impressive process when it works. However, mediation presently resolves only a small minority of disputes and it is wholly unrealistic to consider that such a process will resolve a significantly greater number of disputes in the future. Legally aided mediation is presently available for these disputes, but many mediators deem referrals as being inappropriate. Almost by definition the cases which presently can’t be resolved by mediation are the ones that are more difficult and challenging.

On the Government's own estimate there will be some 600,000 people who will no longer have the potential benefit of family legal aid. It is no surprise that there were over 5000 responses to the Government's Green Paper on legal aid reform launched in November 2010. Despite the huge response and opposition to the reforms, the Government's proposals remain virtually unaltered.

The concern is that many people who presently would have the benefit of legal aid are simply not going to be able to resolve disputes. If disputes cannot be resolved in an effective way then there is fear that there will be a marked increase in domestic abuse cases and it will be the children that inevitably suffer. Those entitled to legal aid are inevitably the poorest and most vulnerable in society and often lack the necessary skills and abilities to resolve disputes themselves, or through the sophisticated process of mediation.

Any person who recovers property or money in the process has to repay all their legal costs. Therefore, legal aid in respect of financial disputes is largely self-funding. In all finance cases, legal aid effectively operates as a loan through the operation of the statutory charge.

Legal aid is going to be withdrawn from people wanting to:

  • Obtain advice and representation in relation to a divorce.
  • To resolve financial issues such as whether the parent caring for the children can remain in the family home to look after the children until they’re grown up.
  • Cohabitation cases, where there is a dispute as to who owns property.
  • Parents who have separated and are trying to see their children. Parents who have a real fear that their child would be abducted by the other parent.
  • Disputes between parents as to where children should live.

Take, for example, a couple that separate. The mother remains in the family home with the two children. The father seeks contact with the children. He has not been violent to either the mother or the children. On the face of it there is no reason why the children should not have the benefit of contact with their father but the mother says no contact. The case is referred to mediation and the mother either does not attend, or simply refuses to allow contact. The mediator cannot force the issue. In this situation the father has two alternatives. He can issue a contact application himself under the Children Act at a local County Court for a Judge to decide whether or not there should be contact, but legal aid will no longer be available. In a case where there are clearly difficulties between the parties, the father faces a long battle through the Courts to obtain the inevitable Order for contact. Alternatively, he could simply give up and not see his children. The fear is that many parents will be fearful of the Court process. It is often difficult and challenging and without the advice and assistance of lawyers, many cases will fail or simply not be pursued.

Another example is where a couple separate and they jointly own the family home. The wife remains in the home and looks after the three children perhaps working part time. The husband lives in rented accommodation and believes that because the property is jointly owned that he should be entitled to an equal share of the property and that he should be able to have his share now. Without proper advice and representation the mother may well agree that the house should be sold and the equity divided equally, thus depriving the children of a secure home. With proper advice and representation, the sale of the house would be postponed until the children had grown up. Proper advice and representation ensures that the interests of children are looked after. The homeless wife with three children would be an even greater burden to the tax payer in terms of rehousing.

The reforms are obviously a boost for mediation, but we can also expect to see the Courts clogged up with people taking their own cases as litigants in person. Whereas people always should have the right to take cases to Court themselves, the reality is that without legal advice and guidance, cases take significantly longer because they do not have the benefit of the issues being narrowed by the lawyers.

The reforms should be opposed. Legal aid should be available for representation in private family law disputes where a mediator determines that mediation is unsuitable or mediation is unsuccessful. Legal aid also should be available for collaborative law. Collaborative law is where both parties have the benefit of legal aid but commit not to go to Court. Instead, the parties meet with their legal representatives and armed with the commitment not to go to Court and using mediation techniques, the parties seek to resolve issues relating to the children and finance directly.

Author: David Emmerson, Divorce Aid member
www.familylawyerlondon.co.uk


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