Month: June 2019

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Committee recommends strengthening of Domestic Abuse Bill

Last week was a bumper week for new family law legislation. First we had the introduction of the Divorce, Dissolution and Separation Bill on Thursday, and that was quickly followed on Friday by the publication of the report of the Parliamentary Joint Committee (of MPs and Members of the Lords) on the Government’s draft Domestic Abuse Bill.

Before I look at the report, a little background, for the benefit of those who have not been following. In February 2017 the Prime Minister announced plans for work “to transform the way we think about and tackle domestic abuse, leading to the introduction of a new Domestic Abuse Bill.” In March 2018 the Government launched a consultation to seek views on how this transformation could be achieved, and in January this year the Government published its response to the consultation, including a draft Bill. In the following month the Joint Committee was appointed to conduct ‘pre-legislative scrutiny’ of the draft Bill.

The draft Bill contains a number of provisions, including the first statutory definition of domestic abuse, and the establishment of a ‘Domestic Abuse Commissioner’, “to drive the response to domestic abuse issues”. For further details of what the Bill contains, see this post.

OK, so what does the report recommend? Well, it covers a lot of ground, running to over a hundred pages, so I can only give brief details here. In summary, the Committee say that whilst it welcomed the proposed measures in the Bill, it was concerned with ensuring their effectiveness in practice. Their recommended changes to the Bill “are to ensure that all those affected by domestic abuse receive protection and a tailored response to their differing needs.”

As to the specifics, the recommendations included:

  • Children – The Committee is concerned over the absence from the definition of domestic abuse of children as victims of abuse perpetrated by adults upon adults. They recommend that the Bill be amended so the status of children as victims of domestic abuse that occurs in their household is recognised
  • Gendered nature – The Committee believe it is crucial that the gendered context of domestic abuse is recognised on the face of the Bill, and recommend the Government introduce a new clause into the draft Domestic Abuse Bill in the following, or very similar, terms: “When applying Section 1 and 2 of this Act [which contain the definition of domestic abuse] public authorities providing services must have regard to the gendered-nature of abuse and the intersectionality of other protected characteristics of service users in the provision of services, as required under existing equalities legislation.” Note that a gendered definition of abuse does not exclude men.
  • Courts – “the Committee strongly supported the proposal to require the provision of special measures such as video links and separate waiting rooms to protect witnesses in criminal proceedings from coming into contact with their abusers, but recommended that these measures should be extended to family and other civil courts.”
  • Cross-examination – The Committee called for a mandatory ban upon cross-examination of survivors of abuse by the perpetrators in the course of family and other civil proceedings. As I reported in my post about it the Bill does cover this, but the Committee is concerned at the potential for inconsistency in application, because too many victims of domestic abuse will be protected only at the discretion of the court. They therefore recommend that the mandatory ban is extended so that it applies where there are other forms of evidence of domestic abuse, as in the legal aid regime threshold for obtaining legal aid in domestic abuse cases.
  • Domestic Abuse Prevention Orders – The Committee was concerned about the potential for inconsistent application between civil and criminal courts, and that the courts would be reluctant to impose the orders in all but the most exceptional of circumstances. The Committee therefore recommends that the Government carry out a thorough review of the protective measures currently available before going ahead with its proposals for the Domestic Abuse Protection Order. Following that review, the Committee anticipates that the Government will amend the current scheme, “both to tackle the flaws seen in the Domestic Violence Protection Order process and to ensure that the courts are not obliged to take a restrictive approach to imposing the new order.”
  • Bail – Lastly, “The Committee called on the Government to urgently bring forward legislation to increase the length of time suspects can be released on pre-charge bail in domestic abuse cases, and to create a presumption that suspects under investigation for domestic abuse, sexual assault or other significant safeguarding issues only be released from police custody on bail, unless it is clearly not necessary for the protection of the victim.”

You can read the Joint Committee report here (PDF – an HTML version is here). The draft Bill can be found at Annex D of the Government’s response to the domestic abuse consultation, which you can find here.

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Author: John Bolch

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Divorce on the farm

Farming businesses are often a family affair that span generations; fathers, mothers, brothers, sisters, may all have a share in the land and the business. These complex ownerships can pose issues in several areas but nowhere more so than in the breakdown of a relationship or divorce.

David Milburn, our expert in family farm divorce cases at our Harrogate office joins us with his top tips for farmers facing a divorce.

What makes farming divorce cases complicated?

There is no particular difference in how a farm is dealt with by law in a divorce. The difficulty is that they are often a lot more complicated due to several key issues that can affect how the matrimonial assets are worked out and divided:

  • Liquidity: often assets held within a farm are tied up and not easily realisable.
  • Farming families can be capital rich but income poor.
  • Inherited assets/generational farms for example, if the farm has been handed down through the generations and is to be preserved for the next.
  • Any impact upon third parties, for example, parents, sisters and brothers who may live on or be involved in the ownership or running of the farm.
  • A reliance upon farm subsidies that affect the revenue of the farm.
  • The existence of family farm trusts and/or complex ownership structures.
  • Tax, such as capital gains tax and/or inheritance tax.

With such complicated assets and structures, it is crucial to instruct a solicitor that is a specialist in dealing with farming divorces and who has a good understanding of agriculture and how farms work.

What factors are considered in the divorce?

One of the biggest questions running through these types of cases is “what the parties’ needs are and how can they be met?”

The starting point is to define the assets and then look at how to share those assets built up during the marriage.  The Courts ultimately have a wide discretion in order to achieve fairness. Fair, however, does not necessarily mean equal and farming cases do merit special consideration including:

Inherited assets are often treated differently and are not subject to the sharing principle in the same way.

A farm owned by the wider family, with siblings and/or parents, will require careful thought as Courts are reluctant to damage the livelihoods of other third parties.

If there are enough liquid assets to go around, the Court can depart from equality in order to protect any inherited element.

How to protect your farm

If you are not married, consider a prenup agreement to evidence what is intended from a financial point of view if the marriage ends. This will save time, stress and money in the future. It is also possible to put assets in trust for future generations.

Expert in farming divorce cases. 

Based in Harrogate, I am an expert in farming divorce cases and have acted in a number of high-value cases in North Yorkshire and beyond with a successful track record for clients, both litigated and negotiated.

I understand the unique difficulties farming cases bring and work in partnership with third parties including land and agricultural valuers’ and our expert in-house accountancy team to get the right team and strategy in place.

You contact me by email here.

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Author: David Milburn

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A closer look at the new Divorce, Dissolution and Separation Bill

As I’m sure the reader will be aware by now, last Thursday the Lord Chancellor David Gauke introduced the Divorce, Dissolution and Separation Bill into the House of Commons. The Bill intends to amend the law on divorce, civil partnership dissolution and judicial separation by doing away with the need to attribute blame, or fault, for the breakdown of the marriage/civil partnership (in the case of divorce and dissolution), and as a ground for obtaining a judicial separation. I mentioned the Bill in my weekly review post here last Friday, and now I thought I would take a closer look.

The Bill is actually quite short, containing just nine sections and a schedule, setting out the amendments that the Bill makes to previous statutes. The Bill is in three parts, headed “Divorce and judicial separation”, “Civil partnership: dissolution and separation”, and “General”. I will deal with each in turn, although as you may have guessed, the second part is just the civil partnership ‘version’ of the first part, so I won’t be spending much time repeating myself: just take it as read that whatever applies to divorce applies also to civil partnership dissolution. And I won’t be spending much time at all on the third part either.

OK, to section 1. This essentially states the new basis for a divorce, and the basic procedure.

As to the former, we are told that either or both parties to a marriage may apply to the court for a “divorce order”, which dissolves the marriage on the ground that the marriage has broken down irretrievably (i.e. the same ground as at present). Such an application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably, and the court must take the statement to be conclusive evidence that the marriage has broken down irretrievably, and therefore make a divorce order. This “conclusive evidence” point has some lawyers and academics in a bit of a spin: surely, you can’t tell a court whether a thing is true – it must be up to the court to decide? Well, yes that is usually the case. But the point here is that the law will at last recognise that once one party decides that the marriage is over, then unless they change their mind it is over, and there is nothing that the court, or the law, or the state itself, can do about it.

Although not mentioned in section 1, it should be noted that the bar on petitions/applications for divorce within one year of marriage will remain.

As to the procedure, this will be in two stages, as at present, with the first stage culminating in a ‘conditional’ order (equivalent to the present decree nisi), and the second stage culminating in that conditional order being made final (equivalent to the present decree absolute). Again, there must be a six week gap between the two, but the big difference is that the conditional order cannot be made unless the applicant or applicants confirm that they wish the application to proceed, such confirmation having to be made after twenty weeks have elapsed since the proceedings were started. This is the so-called “period for reflection”, designed to give the parties time to reconsider. Personally, I think it is rather patronising for the state to think that they will have applied for a divorce without having already given the matter full consideration. I also think that twenty weeks is a very long time, meaning that even if everything is completely straightforward the quickest divorce is going to take at least six months. Why should people have to put their lives on hold for so long, just because the state says so? The Bill does provide that the periods can be shortened by the court “in a particular case”. Presumably, this would include those cases where one party has a terminal illness, and may not live long enough to get divorced before they die. The Lord Chancellor may also at a later date shorten or adjust the time periods, so long as together they do not exceed six months.

One other point of interest in section one is that an application made jointly by both spouses may subsequently proceed as an application by one spouse only, if one of the spouses changes their mind.

Moving on, section 2 deals with judicial separation. Again, there will be a modernisation of the terminology. The old ‘decree of judicial separation’ will be replaced by a ‘judicial separation order’. As one would expect, an application for an order may be made by either or both parties to the marriage, and must be accompanied by a statement that they seek to be judicially separated (no need to allege fault, etc.). The only other thing to say is that, once again, the court has no choice: upon receipt of an application the court must make a judicial separation order.

Moving on again, section 3 deals with dissolution of civil partnerships, and section 4 deals with separation orders for civil partners. I’ve had a look through both, and as far as I can see the amendments to the existing law are exactly as one would expect, matching the amendments to divorce and judicial separation law.

Finally, the last part of the Bill deals with general matters, in particular consequential amendments to the various pieces of affected legislation, most of which are to do with the terminology changes.

You can read the Bill as introduced, here.

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Author: John Bolch

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Using the Sun to Dehydrate Fruit Leather

It’s been hot lately. Like really hot. Like people were joking that the weather had a fever and needed to see a doctor, because the temperature was above what a human body’s fever would feel like, hot. We’ve been roasting. And complaining. And thanking the makers of air conditioners every single day.
Fortunately the temperature the past few days has at least been slightly more tolerable,


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Author: Penniless Parenting

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3 sure-fire ways to maximise your income

Saving money is great, but even better is if you can manage to increase your money. If you need some ideas how, here’s some suggestions from a reader.

There a ton of quick, easy ways to manage your money correctly, including cutting costs on weekly shopping by choosing where’s cheapest for each item, spending less on takeaways and cooking more meals at home, and even looking at ways to cut


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Author: Penniless Parenting

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In re Marriage of Benner

(California Court of Appeal) – In a marital dissolution action, addressed whether a doctor appointed by the court to prepare a child custody evaluation report must repay all of the fees the parties had paid him pursuant to his appointment. Finding his report deficient, the trial judge had given it no weight.


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A week in family law – domestic abuse, Cafcass figures, oh – and a divorce bill

I thought it was going to be another quiet week for family law news, and then the last story appeared…

But first, the other news. As I reported here, Research by Birmingham University has found that women who experience domestic abuse are three times more likely to develop a serious mental illness. The study was based on 18,547 women who had told their GP of domestic abuse they had experienced. They were compared with a group of more than 74,000 women of a similar age who had no experience of domestic abuse. The study found that domestic abuse survivors were twice as likely to develop anxiety and three times as likely to develop depression, schizophrenia and bipolar disorder. Dr Joht Singh Chandan, lead author and academic clinical fellow in public health at the University of Birmingham, said: “Considering how common domestic abuse is, it is important to understand how strongly the two are connected and consider whether there are possible opportunities to improve the lives of women affected by domestic abuse.” The only thing I would add is “and men”.

Moving on, Sally Challen, who killed her husband with a hammer in 2010, will not face a retrial, after prosecutors accepted her manslaughter plea. In 2011 Mrs Challen was found guilty of murdering her husband, and jailed for life. However, she appealed against her conviction on the basis of fresh evidence, namely a diagnosis by a consultant forensic psychiatrist that she was suffering from two previously undiagnosed disorders at the time of the killing, and fresh evidence as to alleged coercive control by her husband. In February this year the appeal was allowed by the Court of Appeal, which quashed the conviction and ordered that she should face a retrial for murder. However, prosecutors accepted a manslaughter plea on the grounds of diminished responsibility, and she was sentenced to nine years and four months for manslaughter, but walked free due to time served. Mr Justice Edis said the killing came after “years of controlling, isolating and humiliating conduct” by her husband. The outcome has been welcomed by many, who believe that it shows that the law recognises the effects of psychological abuse upon victims. It has also been criticised by others, who say that Mrs Challen could have simply walked away, that it implies that her actions were proportionate to his, and that it turned a killer into a hero. Hmm. I’m not sure that she would consider herself to be a hero, and we must not forget that she was found guilty of manslaughter, for which she served a lengthy sentence, so it can hardly be said that she ‘got away with it’.

Next, the latest figures for care applications and private law demand, for May 2019, have been published by Cafcass, and the picture of a long-term downward trend in care cases, and a long-term upward trend in private law cases continues. In that month the service received a total of 1,152 new care applications, 11.5% lower (149 applications) than May 2018. As to private law demand, Cafcass received a total of 3,950 new private law cases, 8.5% (311 cases) higher than May 2018.

And finally, that big story, and arguably the biggest family law story for fifty years, is of course the introduction of the Divorce, Dissolution and Separation Bill (‘dissolution’ of course referring to dissolution of civil partnerships, and ‘separation’ referring to judicial separation) to Parliament (i.e. the House of Commons) yesterday by the Lord Chancellor David Gauke (you can read his statement here). If passed, the Bill will finally bring in a system of no-fault divorce, thereby ending the ‘blame game’. The Bill, which is actually quite short (you can read it here), does three things: it replaces the requirement to prove either a conduct or separation ‘fact’ with a requirement to file a statement of irretrievable breakdown of the marriage (couples can opt to make this a joint statement); it removes the possibility of contesting the decision to divorce as a statement will be conclusive evidence that the marriage has broken down irretrievably; and it introduces a new minimum period of 20 weeks from the start of proceedings to conditional order stage. David Gauke commented: “Marriage will always be a vitally important institution in society, but when a relationship breaks down it cannot be right that the law adds fuel to the fire by incentivising couples to blame each other. By removing the unnecessary mudslinging the current process can needlessly rake up, we’ll make sure the law plays its part in allowing couples to move on as amicably and constructively as possible.” The Bill is apparently to have its Second Reading in the Commons today, so it may be passed sooner than previously thought. I suspect that I, and others, may have something more to say about the Bill in the coming days…

Have a good weekend.

The post A week in family law – domestic abuse, Cafcass figures, oh – and a divorce bill appeared first on Stowe Family Law.


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Author: John Bolch

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Father’s Day without the kids

Whether it is your first Father’s Day as a single parent or your tenth, being away from your children on a special day can be tough.

One of the key challenges is if Father’s Day does not fall on your weekend with the kids. In this situation, who the kids spend the day with very much depends on how amicable you are.

Hopefully, in most cases, flexibility and respect will be in place and the kids will spend the day with their Dad. However, we know this is not always the case, so the five tips below will help you manage the day, the best you can.

Think ahead

If Father’s Day does not fall on your weekend, then some pre-planning will help. Talk to your ex-partner months in advance to see if weekends/days can be swapped so you can be together. And ensure that you do the same for Mother’s Day.

Communicate in a different way

If seeing the children is simply not possible then look at other ways to communicate. Pick a good time with your ex-partner, calling during screen time or lunch is never good, and call them for a video chat. Depending on the age, why not read a bedtime story?

Do something different with your day

If you cannot see them, then do something with your day. Get friends together for who Father’s Day is difficult and get out even if it just for a quick drink. If possible, spend time with your own Dad. You will miss your kids and it will not be the best of days, but you can control it not being the worse.

Pick a different day

Father’s Day is just a date. So, move it. Plan something for a day when you do have the kids and organise something for you all to do something together.

Stowe top tip – Stay off social media

Our number one tip is to AVOID social media. Nothing worse than scrolling through hours of #blessed posts about father’s celebrating with their kids.

Put your phone down and disconnect for the day. Instead, focus your attention on having the best day possible and creating a special day for you and your children later.

And remember, being a father is a lifetime job so do not let 24 hours overshadow all the rest of your good times together.

If you are struggling to deal with Father’s Day after a divorce or separation, the following websites have some useful tools and advice.

Families need Fathers

Hear other father’s experiences

Separated Dads

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Author: Stowe Family Law