Tuesday, January 6th, 2009
Many fathers fear that family courts are prejudiced against them, but a newly published report says there is no evidence of bias.
Research commissioned by the Ministry of Justice says the perception of bias is misplaced and most men are successful in securing contact arrangements for their children.
The report says that 90% of contact arrangements are agreed between the parents without any court involvement. That leaves one in ten parents, usually fathers, seeking a court order because it has not been possible to reach a voluntary agreement.
The study, which was carried out by the Oxford University Centre for Family Law and Policy,
found that there was no evidence to suggest that the courts were biased against these fathers. Instead, it was clear that courts start from the principle that there should always be contact unless there are over-riding reasons to the contrary.
Justice Minister Bridget Prentice said: “The well-being of children is at the heart of the family justice system. Courts should be the last resort for people involved in contact disputes, as mediation can be quicker and less stressful.
“Where contact cases do come to court, the child’s welfare is always the paramount consideration. Clearly in some circumstances, such as where there is poor parenting or even abuse, contact can be very damaging.
“The government firmly believes that children should not be denied meaningful contact with their other parent, where this is safe.”
As the minister points out, mediation can be very helpful in these difficult situations. A solicitor acting as mediator can help couples resolve differences in an amicable manner. This is not only less stressful for the parents, it is also much better for the children who can easily be adversely affected by conflict between mum and dad.
Parents who cannot reach a voluntary solution can apply for a contact order under the Children Act 1989. The Act adheres to the welfare principle, which means that it considers the child’s needs to be the paramount consideration.
Please Marie Stock if you would like more information about contact arrangements, mediation or any aspect of family law.
Wednesday, December 31st, 2008
Family courts now have new powers to help resolve disputes between estranged parents over contact arrangements for their children.
The new measures are part of the Children and Adoption Act 2006 and are effective from 8th December 2008. They’re designed to help resolve conflicts between parents over such things as who the child should see, how often and under what conditions.
The changes mean that courts now have the power to direct a parent in a dispute to undertake a contact activity. They will also be able to attach an activity condition to contact orders.
If one of the parents suffers a financial loss from the other’s failure to comply with a contact order then the court will be able to award compensation. The court will also be able to impose an unpaid work requirement on the person who breaches the contact order.
The Government says the background to the changes is the principle that the “well-being and interests of the child are of paramount importance” rather than the personal interests of either parent.
Please contact Marie Stock if you would like more information about the new powers or any aspect of family law.
Monday, December 22nd, 2008
The number of divorces among the over sixties has reached a record high, according to figures released by the Office for National Statistics.
Ironically, it comes at a time when the overall number of divorces in the UK fell to its lowest level in 26 years.
There was a total of 128,534 divorces in 2007- a 3% drop compared with the 2006 total of 132,562 and the lowest figure since 1976.
The over-sixties was the only age group to see a rise in the figures. There were 13,678 divorces among the over sixties compared with 12,636 in 2006. The rising figures are thought to be related to changes in attitudes with many people not prepared to accept the prospect of remaining in an unhappy marriage into their sixties and seventies
While the over-sixties are the only group to show a rise in the figures, couples in their twenties are still the most likely to split up. They have the highest divorce rate across all the age groups at 26.8 per thousand.
Whatever a person’s age, divorce is always likely to be difficult and emotionally draining. The main issues are likely to be the division of assets and arrangements for the children. Finding a settlement that is acceptable to both parties can be difficult so couples should always ensure that they each get good legal advice.
A solicitor will be able to protect your interests and help you to make the right choices for yourself and your children. Some couples who find it hard to reach an amicable settlement may benefit from mediation. This is where a solicitor can act as broker to help couples overcome differences without having to resort to court action.
If agreement still proves impossible then court action may become necessary but this should generally be considered as a last resort.
Please Marie Stock if you would like more information about divorce issues.
Thursday, December 18th, 2008
Changes to the child maintenance system allowing all parents, including those receiving benefits, to agree their own arrangements have now come into force.
The changes have been introduced by the Child Maintenance and Enforcement Commission (CMEC) and became effective on 27th October.
It means that all parents with day-to-day care of their children can now choose the kind of child maintenance arrangement which best suits their particular circumstances. Until now, parents claiming benefits had to use the statutory service provided by the Child Support Agency (CSA).
Janet Paraskeva, the Chair of CMEC, said: “The Commission will have increased powers to take firm and effective enforcement action against those parents who fail to meet their responsibilities to their children.
“From 2009/10, to enable swifter enforcement the Commission will have the power to issue a liability order without the need to apply to the courts.
“Additional measures, also due to be introduced in 2009/10, include the power to deduct child maintenance debt directly from bank accounts; apply to the courts for travel disqualification and curfews; and recover debt from the estate of a deceased non-resident parent.”
The CSA is to continue operating the two current statutory maintenance schemes for the time being. Then, in 2011, CMEC will introduce a new scheme in which maintenance calculations will be based on the gross income rather than the net income of the parent without day-to-day care.
Tuesday, December 2nd, 2008
Madonna and Guy Ritchie say that despite the breakdown of their marriage, their relationship is still cordial and they want to reach an amicable divorce settlement.
Many couples start out that way but then find that things deteriorate as they start to negotiate the details of how their assets should be divided. We see this not only in divorces between high profile couples like Sir Paul McCartney and Heather Mills but also with thousands of ordinary couples throughout the country.
It is all too easy for emotions to take over and then couples start to dig their heels in making progress very difficult. Nevertheless, it is possible to achieve an amicable settlement, as long as both sides can put their emotions aside and behave rationally. These are a few pointers that may help couples in this situation.
Talk to each other
Communication is obviously difficult for couples who are splitting up, especially if one partner has had an affair or there are arguments over the children. Eventually however, no matter how bitter the arguments, you are going to have to talk. The sooner both sides accept this, the better the chances of reaching a quick and relatively painless settlement.
Be realistic about money
Some men resent paying maintenance, even if they have been married for 30 years and their wife has stayed at home to look after the children. In these circumstances, men need to accept that their wives are likely to get a large share of their assets as well as maintenance to compensate for the fact that their earning power diminished while they stayed home to care for their family. By the same token, women divorcing after a short marriage that hasn’t produced children and hasn’t interrupted their careers or earning capacity may have to accept they’ll get very little or no maintenance.
Think of the children
All couples love their children but don’t always act in their best interests. Sometimes the children are used as weapons in the heat of the battle with one parent trying to deny the other contact. Otherwise rational people will tell themselves they are doing it for the good of the child when really they are punishing their partner. Couples must realise that nearly all divorce settlements will result in both sides being granted some form of contact so it is better to accept that right at the outset and try to reach agreement as soon as possible.
Think ahead and realise how much better it will be for the children if they have regular contact with both parents, particularly if those parents can put their differences aside and bear to face each other for landmark events such as birthdays, engagement parties, weddings and so on.
That is what is best for the child. Deep down people know that but sometimes they have to be reminded.
Try mediation
Put some couples in the same room and they’ll tear each other apart so mediation may not be for everyone. Nevertheless, mediation doesn’t have to be face to face across the table. It’s possible to use separate rooms to iron out differences with both parties receiving advice from their solicitors.
Avoid court
Madonna says she wants to reach an agreement without going to court. That is certainly the best way if possible because a judge may reach a decision that upsets one side or another, and in some case, upsets both sides.
Negotiated settlements in which couples are prepared to be reasonable are nearly always better. Couples who reach agreement in this way are more likely to form a civilised relationship for the future. That is better for them and their children.
Make a pre-nup agreement
For those who’ve yet to tie the knot, pre-nuptial agreements are worth considering. They have the advantage of allowing couples to discuss financial matters rationally when they still love each other as opposed to irrationally in the midst of a bitter divorce. Pre-nups aren’t legally binding in this country but courts will take them into account if they are properly drawn up so they can be very helpful.
For more help contact Marie Stock.
Monday, November 17th, 2008
With mortgage defaults rising, banks are increasingly seeking to repossess properties on which they have advanced mortgages. When proceedings are commenced, it is by no means unusual for a bank to find that the property is not occupied by the mortgagee, but by someone else – often another family member.
Under the law, an ‘undisclosed tenant’ (one who is there without the knowledge of the mortgagor) has no right to remain and cannot prevent the repossession, even by paying the mortgage. However, there are exceptions to this rule. If the occupier is the spouse or civil partner of the mortgagee, then the lender will have to negotiate with them. Another issue may arise if the person living in the property claims to have contributed to the mortgage and offers to continue to pay it. Unless the lender makes it clear than any payment is accepted as being made on behalf of the mortgagee, the occupier may acquire equitable rights over the property.
In a recent case, a woman who had contributed to the mortgage on a house owned by her husband’s cousin was faced with an application for possession, from UCB Home Loans, after her marriage broke up and significant arrears built up on the mortgage. She also faced an application for possession from her husband and his cousin. She claimed she had built up an equitable interest in the property because she had paid the mortgage. UCB agreed that they would not seek possession of the property if she paid the arrears and that they would treat any payments made as being made on behalf of her husband’s cousin.
When she fell into arrears again, UCB again sought possession and she sought to suspend the order. The court ruled that UCB was prevented (by a doctrine called estoppel) from not treating her as if she were the mortgagee and ruled that the possession proceedings should be held in abeyance pending the conclusion of the divorce proceedings, when the divorcing couple’s financial arrangements could be settled.
This case illustrates that the courts will seek to ensure that in circumstances similar to these, fairness will prevail. If you are faced with a claim for repossession of your property, taking professional advice promptly can mean the difference between retaining your home and losing it.
For partial advice on all property problems contact Jonathan Friend.
For advice on divorce or separation contact Marie Stock.
Monday, November 10th, 2008
On divorce, the valuation of a family business is often a highly emotional and contentious issue, so it was unsurprising when the divorce of a couple after 15 years of marriage led to an acrimonious dispute over the value of their successful restaurant business.
The ex-husband valued the total assets (including the business, which he had run for 33 years) at £4.2 million. His ex-wife placed a valuation on the assets of £7.6 million, valuing the business at £5.3 million. She sought 50 per cent of the net assets plus school fees for the children. Her ex-husband offered 42 per cent of the net assets (£1.7 million), although this offer was later reduced.
Both produced expert witnesses to back up their respective valuations of the business, which was the main point of dissent. The experts differed, but the main point of contention was whether the valuation should be based on a multiple of six times ‘maintainable earnings’ or nine times.
The judge relied on evidence of transactions in similar circumstances and ruled that the multiplier should be 6.5. He commented that the valuations of experts were of ‘doubtful utility’ because they are a matter of opinion and experts’ opinions differ. He therefore adopted a broad brush approach. Since there were insufficient resources for a ‘clean break’ arrangement to be financed, he ordered that the wife should receive £1.45 million plus periodical payments of £60,000 annually, child maintenance of £20,000 per annum and the cost of the school fees.
Says Kevin Smyth, “Few aspects of the financial arrangements in a divorce can be as contentious as the value of a family business and it is by no means uncommon for quite unrealistic values to be put forward. In many cases, the best overall result is achieved by the use of a single joint expert and sensible negotiation.”
Contact Kevin Smyth for advice on all family law matters.
Monday, October 20th, 2008
The award was made after the court was told that she was devoted to the animals which were a key part of her life. Her husband, who is an investment banker, was also ordered to give her £900,000 so that she could buy a house with surrounding fields so the horses could graze.
The woman will also receive £30,000 a year maintenance for herself in a divorce package worth a total of £1.5m. The husband had argued that the money for the horses was an unnecessary extravagance and that £600,000 would be enough for her to buy a house.
However, the district judge made the award after being told that horses had been a prominent part of her life. The couple, who have not been named, had been married for 11 years and had no children. The court was told that the horses were like a child substitute for her, particularly after she had lost a baby in 2001.
In the past, she had spent £20,000 from a personal inheritance to buy two horses and her husband had given her a foal to celebrate their tenth wedding anniversary. She told the court: “Horses are my family. I see them every day. You form a very close bond with horses.”
The couple, who live in Gloucestershire, had joint assets of £3m. The husband earned £60,000 a year plus substantial bonuses and the wife undertook interior decorating and part time book-keeping.
The Court of Appeal has upheld the district judge’s award. Sir Mark Potter, one of the three Appeal Court judges hearing the case, said: “During the marriage the horses played a major part in the wife’s life with the consent and encouragement of the husband.”
He added that while the husband remained in his post with his current level of income, “it was not right to expect the wife to work full-time so she was left with no time for her horses”.
This is an unusual case which sets something of a precedent but it doesn’t mean that divorcing wives will automatically be able to claim large sums to pay for the maintenance of their horses or other animals.
Each case will be different and, of course, a couple would have to have considerable assets for this to become an issue. However, it is possible that in certain circumstances, a person could receive maintenance for pets if they could show that they were an important part of their life.
Please contact Marie Stock if you would like more information about divorce or cohabitation issues.
Tuesday, September 9th, 2008
A man has been a granted parental responsibility for a six-year-old boy even though he is not the biological father and in spite of strong opposition from the mother.
The man, referred to in court as Mr A, began a relationship with the mother in 2002 and the boy was born later that year. He thought the child was his own and brought him up as such. The couple’s relationship broke down in 2004 and Mr A began proceedings for parental responsibility, residence and contact.
During the proceedings, DNA tests proved that Mr A was not the biological father. The biological father was a man referred to in court as Mr C, whose relationship with the mother was just ending when she began her relationship with Mr A. The court was told that Mr C did not want to play a significant role in the boy’s life.
Mr A still continued with his application which was contested by the mother and resulted in court proceedings lasting more than four years. The mother contended that that he was a dominating and controlling personality who was used to getting his own way. She felt overwhelmed by him. However, the Recorder who presided over the case found that she too could be determined and controlling in her desire to marginalise Mr A’s role in her son’s life.
In spite of their differences, it was never an issue between them that the boy loved both of them and was loved by both of them.
The Recorder acknowledged that Mr A was the only father figure the boy had ever known and that a continuing relationship between them was in the child’s interest. He ordered that there should be a joint residence order which effectively provided Mr A with the parental responsibility he wanted. However, the mother was to remain the primary carer with the boy spending most of his time with her.
That ruling has now been upheld by the Court of Appeal.
For caring and supportive advice on all family matters contact us now
Sunday, August 10th, 2008
When the financial arrangements are being made on divorce, the court must ask itself whether these are fair and do not discriminate against one party bearing in mind all the circumstances.
Recently, a woman appealed to the Court of Appeal regarding the orders for ancillary relief (as they are known to lawyers) made for her benefit following her separation from her husband. The couple had married in 1992 and had a child that year. They separated twelve years later. The wife had inherited a substantial sum which the couple lived off without working for the first five years of their marriage. In 1997 they used her capital to set up a car wash business, which the husband ran, paying a below-market rent to his wife.
When they separated, the couple’s assets were valued at a little under £1.4 million, which included the car wash business. The judge concluded that the yardstick of equality was applicable to the division of the assets and ordered the transfer of the building housing the car wash to the husband.
The wife had argued that her husband’s misconduct had been so grievous as to justify departing from the normal 50:50 split. Indeed, she argued that his application for ancillary relief should be rejected altogether. This argument was rejected on the facts in the lower court, as was her contention that since she had introduced all the assets to the marriage, they did not constitute ‘matrimonial assets’ for the purposes of making an equitable division. She appealed to the Court of Appeal.
In the Court of Appeal, it was held that the assumption of equality of division of assets could only be departed from if there were a good reason for so doing. In the present instance, the assets had been disproportionately brought into the marriage by the wife. Whilst it made sense that the ex-husband should be able to continue in business, this did not mean that the property he let should be transferred to him.
The Court therefore concluded that the ex-husband should be allowed to continue to occupy the premises, paying rent at half the present market rate, and that on the sale of the premises, the money received should be divided equally. The judge declined to transfer the car wash premises into joint ownership because to do so would have adverse tax consequences.
In practical terms, the decision split the family assets so that approximately two thirds remained with the wife.
“The judge made the point that each case must be dealt with on its own facts and that this case did not set a precedent,” says Marie Stock. “It is instructive to note that as is normal, arguments relating to the conduct of the husband were not considered relevant.”
Contact Marie Stock or Kevin Smyth for advice on all family law issues.
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