Friday, May 15th, 2009
Several safeguards have been put in place to protect the privacy of children as family courts are opened up to the media.
The Government hopes that allowing journalists to attend hearings will increase public confidence in the system. However, the Justice Secretary Jack Straw has confirmed that only reporters who hold a valid UK Press Card will be accredited to attend family courts and they will not be allowed to identify children and families.
People involved in a case will be able to request that the media be excluded if they feel there are valid reasons why the proceedings should not be publicised. The court can also place restrictions on what can be reported in order to protect the welfare of children and their families.
Judges can still deny access to reporters if they feel it is necessary in order to protect the welfare of a child, or for the safety or protection of other participants in the case such as witnesses.
Jack Straw, Secretary of State for Justice, said: “Public confidence in the justice system is a necessary and vital part of a democratic society. I want to ensure that reforms to the family courts system increase their accountability to the public.
“People need to trust the justice system. One important way is by creating a more open, transparent and accountable system while protecting children and families during a difficult and traumatic time in their lives.”
Family courts were opened to the media on 27th April. Only a tiny minority of cases are likely to attract any media attention.
Please contact Marie Stock if you would more information about family law.
Friday, May 1st, 2009
A businessman whose assets have been decimated by the recession has failed to get a reduction in his divorce settlement with his former wife.
The Court of Appeal said the law could not be used to protect him from fluctuations in the economy. The ruling may influence the way some divorcing couples negotiate settlements in future.
Brian Myerson reached a settlement with his former wife Ingrid in March last year in which he agreed she should receive 43% of their combined assets and he should retain 57%. This valued her share at £11m and his at £14.5m.
The wife’s share was to be provided in cash and property, paid in instalments over four years, starting with an immediate lump sum of £7m. There are four more instalments to pay over the next four years.
The husband’s share was made up largely of shares in his investment company. At the time of the agreement, those shares were worth £2.99 each which meant his holding was worth just over £15m.
However, a year later the shares slumped to just 27.5p each because of the global recession.
Mr Myerson then applied to have the settlement reduced on the grounds that the collapse in the market meant it was unfair because his assets are now far less than he anticipated. He would end up out of pocket if the settlement were to stand.
However, the Court of Appeal has ruled against him.
Lord Justice Thorpe said that the court could set aside an ancillary relief order in the wake of some dramatic event but only if it was truly exceptional. Such exceptional circumstances did not include market fluctuations in shares or the price of property – no matter how dramatic.
He said the husband’s appeal also failed because the order was not imposed by a court but agreed between both parties.
“The husband, with all the knowledge both public and private, agreed to an asset division which left him captain of the ship, certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead.”
“When a businessman takes a speculative position in compromising his wife’s claims, why should the court subsequently relieve him of the consequences of his speculation by re-writing the bargain at his behest?”
Lord Justice Thorpe said that had the shares risen in value, Mr Myerson would not have had to pay his wife any more.
A further reason for rejecting his appeal was that it was still open to him to seek to vary the future instalments that he is due to pay to his former wife. These would amount to £2.5m over four years. Mr Myerson has indicated that he plans to return to the High Court in July to have these payments cancelled.
In the light of the Appeal Court’s ruling, many couples now going through divorce proceedings may want to think carefully before committing to settlements involving assets such as shares which can fluctuate so much in value.
Please contact Marie Stock or Kevin Smyth us if you would like more information about divorce proceedings and settlements
Thursday, April 23rd, 2009
The Court of Appeal has upheld a ruling that a father should be granted residency of his two children during school term time despite opposition from the mother.
At one stage during the couple’s relationship, the father had been the primary carer of the two children and had been responsible for sending them to the local school. When the relationship broke up, the mother took the children with her to live with her family.
The father then applied for a residence order so the children could return to him. The judge said he preferred the father’s evidence but noted that it was a finely balanced case and the children would thrive with either parent.
He then decided that the children should be returned to the father during term time so they could continue their education at the school they used to attend before their mother took them away. They should then spend alternate weekends and the school holidays with their mother.
The mother appealed saying the status quo was with her – that is, the children were already living with her and they should not be disturbed from their settled environment – especially as the judge had already said they would thrive with either parent.
However, the Court of Appeal upheld the judge’s ruling. It said that having decided the issue was finely balanced, the judge had been mindful of the need to consider the child welfare checklist as directed in the Children Act 1989. On that basis he had decided it was in the children’s best interests that they lived with their father during term time.
The Appeal Court judges said there was no reason to interfere with that decision.
For help with all your family matters contact Marie Stock.
Saturday, April 18th, 2009
A court has annulled a man’s bankruptcy order after the judge decided that he was simply using it as a way to avoid having to pay maintenance to his wife.
During the divorce proceedings the wife had obtained an order for interim maintenance. The husband then successfully issued a petition for his own bankruptcy saying that he was unable to meet his debts.
The wife immediately applied for the order to be annulled because she believed it was simply a device to enable him to avoid paying maintenance. After a long and complicated hearing, the judge questioned the husband’s honesty and agreed to annul the order.
The husband then took the case to the Court of Appeal but it too ruled against him after hearing that at the time he petitioned for bankruptcy, he had assets of £1.2m and debts of only £136,000. The court held that with such substantial assets, the onus was on him to prove that he was unable to pay his debts.
He had not been able to do this and so the judge at the original hearing had been right to conclude that the husband was able to pay his debts at the time he was petitioning for bankruptcy. His motive had simply been to defeat his wife’s maintenance claim and so the decision to annul the bankruptcy had been correct.
Please contact Marie Stock if you would like more information about this or any aspect of divorce proceedings.
Monday, April 6th, 2009
The media will soon be able to attend family court hearings. The Government hopes that by subjecting proceedings to more scrutiny it will increase public confidence in the system.
However, the Justice Secretary Jack Straw insists that the welfare of children and vulnerable adults will still be protected. Announcing the new measures in a statement to the House of Commons, he said: “It is critical that family courts make the right decisions and the public have confidence they are doing so. A key part of building trust in the system is that people understand how it works.
“At the same time, we must protect the privacy of children and families involved in family court cases so they are not identified or stigmatised by their community or friends.”
Under the proposals, the media will be able to attend family courts unless the judge decides that access should be denied in order to protect the welfare of a child, or for the safety or protection of other participants in the case such as witnesses.
Some people may be concerned at the thought of a reporter attending a hearing in which they are involved but in reality, only a tiny proportion of cases are likely to attract media attention.
There are also safeguards. People involved in a case will be able to request that the media be excluded if they feel there are valid reasons why the proceedings should not be publicised. The court can also place restrictions on what can be reported in order to protect the welfare of children and their families.
There are also proposals to give people involved in a case a copy of the judgment so they have a record of how the court reached its decision. The Government is also looking how court judgments might be retained so that children involved in proceedings can access them when they are older and able to understand the reasons for decisions affecting their welfare.
A pilot project to test out some of the proposals is due to begin in the spring.
Please contact Marie Stock if you would more information about family law.
Friday, April 3rd, 2009
The mother of a child who is subject to a shared residence order has lost her appeal to be allowed to relocate to another part of the country.
The woman and the child’s father both lived in London. The residence order stipulated that their four-year-old daughter’s time should be divided between them. The mother then applied for permission to relocate to Somerset where she had been offered a new job.
The court rejected her application. The judge held that the mother was partly motivated by the desire to diminish the father’s relationship with their daughter. This would not be in the girl’s best interest as she had a close and loving relationship with her father.
The judge also held that a distinction should be made between a case where a parent with a residence order in his or her favour wanted to relocate internally within the UK and one where there was a shared residence order.
The mother took the case to the Court of Appeal but that too has now ruled against her. The Appeal Court judges held that the trial judge had been wrong to say there should be a distinction between cases involving shared residence orders and those where there was an order in favour of just one parent.
However, in spite of this, the judge had still been entitled to refuse the mother’s application. The most important element in these cases was the welfare of the child. The judge believed that the move was not in the child’s interests and therefore he was entitled to refuse the application.
Please contact Marie Stock if you would like more information about this or any aspect of family law.
Tuesday, March 31st, 2009
Divorce can be stressful under any circumstances and now the financial downturn is creating new problems.
Couples obviously have to negotiate a financial settlement when they separate. This often means selling the family home. However, because of the slump in the property market, it can be very difficult to sell at the moment.
This can result in one person having to move into rented property for extended periods which leads to more financial difficulties and yet more stress. In some extreme cases, couples have to continue living in the same house even though they can hardly bring themselves to talk to each other.
With people under so much pressure it’s perhaps not surprising that attitudes can harden as each side digs in their heels and tries to get the best settlement possible. There is rarely much to gain from this approach, however, and it is even less appropriate now with people having to wait much longer than usual to sell their homes. This can be frustrating but it is important that the couple remain on reasonably good terms during this extended period if they are to keep the stress to a minimum both for themselves and their children.
Each partner should realise that as a general principle, everything they own, irrespective of where it came from, will be regarded as part of their joint assets to be shared out. The law also works on the principle that these assets should be shared out equally so unless there are some genuinely exceptional circumstances, there is little to be gained by trying to argue against a 50-50 split.
Many people do of course and some try to tip the balance in their favour by concealing their assets or squirreling money away in a secret bank account. The other partner can counter this by taking legal action so those assets can be frozen and included in the divorce settlement.
Some people think they can circumvent the system by putting money into their pension but that won’t work either as pensions are considered as part of the pot to share out.
Most couples try to reach amicable arrangements over the children but where this is not possible then mediation may help. A trained mediator can act as an honest broker enabling a couple to overcome stumbling blocks. Mediation can also help couples to remain on good terms, which is the best approach in the long term, especially if children are involved.
If a couple still can’t agree then they may need to go to court. They should realise, however, that a court will always try to do what is best for the child rather than what may seem best for the parents. Courts also take a dim view of parents being obstructive or behaving unreasonably so there is little to be gained by trying to put one over on your partner.
They may never be able to eliminate the heartache completely but they can at least reduce the stress if they think calmly and do what is best for themselves and their children.
For clear sensitive advice on divorce and separation contact Marie Stock now.
Thursday, March 26th, 2009
The charity Childline has urged divorcing parents to put the needs of their children first however difficult the situation may become as the marriage comes to an end.
The plea comes at the start of the New Year period which invariably sees an increase in the number of couples divorcing following the stresses of the Christmas holiday. It’s feared the extra pressures brought on by the current economic climate could lead to even more break-ups.
Childline says it has had numerous calls from children whose families are in turmoil. They tell counsellors that they are frightened by arguments between their parents and feel as though they are being made to choose between mum and dad. Some even feel the marriage break-up is their fault.
Divorce lawyers often come across these situations and will always try to advise parents against actions that may put extra pressure on their children. The first thing parents must do is put their emotions aside and be prepared to compromise to find a fair and workable solution.
Be prepared to negotiate over matters like where the children should live and the amount of contact they should have with each of you. Make sure you get good legal advice. This will help you reach a settlement which is good for your children and fair to both of you.
If negotiations become difficult then mediation may help. This is where a trained mediator like a solicitor acts as a kind of broker and helps smooth the way to an amicable agreement. Arrangements made in this way are less stressful and more likely to stick because they are voluntary.
If a negotiated settlement proves impossible then it may be necessary to go to court. It’s important to realise, however, that the courts place the needs of the children ahead of what parents may consider to be their rights. In fact, the law thinks primarily in terms of parental responsibility rather than parental rights.
Before making any decision, the court will work through a welfare checklist to determine what is best for the child. It will look at age and background, emotional needs, educational requirements and any other matters it considers relevant. These factors are likely to weigh more heavily than any personal preferences put forward by mum or dad as to where the child should live or how much time they should spend with each parent.
Once a court makes a decision then both parents must abide by it. Parents who try to thwart a court order can find that they have their contact rights reduced.
Thankfully, it should never come to that if both parents behave reasonably and follow the correct legal procedures.
For expert advice on family matters contact Marie Stock.
Saturday, March 21st, 2009
The family lawyers’ association, Resolution, is urging the Government to drop plans that would give civil servants increased powers to clamp down on parents who fall behind with child maintenance payments.
The proposal, which Resolution describes as draconian, is contained in the Welfare Reform Bill now making its way through parliament. It would allow the Child Maintenance and Enforcement Commission (CMEC) to confiscate the driving licence or passport of defaulting parents without the need to obtain a court order.
The Department for Work and Pensions says the measure would only be used as a last resort after all other sanctions to make parents pay had failed. It believes that allowing civil servants to take such direct action would be faster and easier and beneficial to the taxpayer. It will be tested in certain areas of the country before being adopted nationally.
Work and Pensions Secretary James Purnell said: “We are supporting parents in these tough times, but for those who choose not to support their own kids, we will not stand by and do nothing.
“If a parent refuses to pay up then we will stop them travelling abroad or even using their car.”
However, the new powers are opposed by Resolution. A spokesman said: “We agree with the government’s aim that all parents meet their pastoral and financial responsibilities toward their children. However it is well known that the administration of child support in this country is riddled with errors and bureaucratic failures.
“Until the system is fixed, running smoothly and has public confidence there can be no justification for not allowing a right to challenge such draconian measures in the courts.”
The subject of child maintenance payments often evokes strong feelings on both sides of the argument. Many parents, usually but not always mothers, can suffer great hardship when their former partner fails to pay child maintenance. On the other hand, many other parents, usually but not always fathers, often feel they are being hounded unfairly.
Whatever view one takes there is little doubt that there is a determination on behalf of the Government and CMEC to make sure more parents face up to their responsibilities. Parents on both sides of the argument who are affected by these issues should seek legal advice to protect their interests.
Please contact Marie Stock if you would like more information about child maintenance payments or any aspect of family law.
Monday, January 19th, 2009
A husband has won his appeal against a court order that he should transfer 30% of his assets to his wife following their divorce.
The Court of Appeal said the order was excessive considering that the marriage had not lasted very long and the husband had acquired most of his assets after the couple had separated.
For the duration of the marriage the couple had lived in the husband’s local authority flat. He acquired the right to buy shortly after his wife moved in. The couple had two children but the marriage only lasted four years.
The wife moved to another local authority flat while the husband remained in the marital home. He exercised his right to buy and then sold the flat at a good price. He put the profit towards another property which he bought with the help of a loan from his family.
The wife then applied for ancillary relief. The court ordered that the husband should pay her a lump sum of £75,000 and also make periodical payments.
However, the Court of Appeal has now overturned that order describing it as excessive given the short duration of the marriage. The order for periodical payments was struck out because the court held that a clean break was appropriate in this case. The lump sum payable to the wife was reduced to £40,000.
Please contact Marie Stock if you would like more information about divorce issues.
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