Category: Divorce

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Surviving Mother’s Day after divorce or separation

Whether it is your first Mother’s Day as a single parent or your tenth, this ‘family’ day can present certain challenges during or post-divorce/separation.

One of the key challenges is if Mother’s Day is not 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 Mum. However, we know this is not always the case and you may spend the day without the kids, something that will be emotionally distressing for all.

If Mother’s Day is not on your weekend, then some pre-planning will help. Perhaps 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 Father’s Day.

Perhaps you could detail how you will deal with ‘family’ days in your parenting plan and ensure that the same rules apply to family times throughout the year.

Not with the kids

Handling the emotional fallout of a Mother’s Day without your children is going to be difficult. Of course, you would prefer to be with your children, but if you cannot, then there some things you can put in place to help you deal with it as best you can.

Have your own Mother’s Day

Why does Mother’s Day have to be dictated to us? The answer, it doesn’t! So, take control of the situation and organise your own special Mother’s Day for a Sunday when you do have the kids. Plan something for you all to do together and enjoy your own special day.

No cards and presents

If your children are pre-school age, a card and gift may not be on the table. Older children will usually make a homemade card at school and perhaps friends or family could step in, so you get a little something. However, why can you not buy your own gift? The kids could wrap it for you and at least you get what you want.

Do something different with your day

Take the opportunity to do something different with your time. Gather your friends for who Mother’s Day is difficult and arrange lunch/spa day etc. Or get out in the countryside, fresh air does wonders to lift your mood. If possible, spend time with your own Mum. It won’t be the best of days, but you can control it not being the worse.

Stay off social media

Take a digital detox for the day and do NOT go on social media. Seeing pictures of people with breakfast in bed, flowers and cards will make you feel worse. And, remember it is just a snapshot of the day – not the reality of the whole day. Even when I was in a relationship, I found social media tough as I compared my situation to the smiles on my news feed. And finally, please remember it is just one day and you are not alone.  Single parents, married mothers in lonely relationships and all those people who have lost their Mum will struggle. Instead, focus your attention and energy on having the best day possible and creating a special day for you and children later.

If you are struggling to deal with Mother’s Day after a divorce or separation, Relate has some useful tools and advice on its website.

 

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Author: Stowe Family Law

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Can you email divorce papers?

Well, the short answer is no. The Family Procedure Rules state that a civil partnership order or a matrimonial order such as a dissolution/divorce petition cannot be served on the Respondent (the person receiving the divorce papers) by email or fax.

In fact, there are specific rules which must be followed once divorce proceedings have commenced including the correct service of divorce papers to the respondent and this must be proved.

In most cases, the Court will post the documents to the respondent, who will then complete and return to the Court an Acknowledgement of Service form to confirm that they have received them. The Acknowledgment of Service form is there to prove that the respondent has been properly served, and the divorce/dissolution proceedings can continue.

If the respondent fails to return the Acknowledgement of Service, stalling the divorce proceedings, there are a number of options:

  1. Arrange for the personal service of the divorce/dissolution papers to the respondent;
  2. Make an application to the Court for deemed service – this can only be used if the respondent has acknowledged in writing (for example letter, email or text message) that they have received the divorce/dissolution papers.
  3. Make an application to the Court to ask for permission to serve the papers by an alternative method where there is a ‘good reason’ to do so.

Log in, break-up

However, whilst you cannot serve divorce papers by email you can now apply for divorce online with a fully digital divorce online application portal launched by the Ministry of Justice (MOJ) to the public in May 2018.

Speaking at the time, Justice Minister Lucy Frazer, said: “Allowing divorce applications to be made online will help make sure we are best-supporting people going through an often difficult and painful time.”

And the initial take up has been positive with more than 23,000 applications made by January 2019.  The MOJ even reported 13 online divorce applications on Christmas Day.

To apply for divorce online you need to ensure you have the following prior to starting your application:

  1. Your husband or wife’s full name and address (this can be their residential or solicitors address). The court needs this so that it can send your husband/wife their divorce papers.
  2. Your original marriage certificate or certified copy (you can order one here)
  3. A debit or credit card to pay the £550 fee (you can get help if you are on benefits or a low income)

You can apply online here

The importance of legal advice

Applying online sounds simple but you need to consider the consequences of your marriage breakdown before you finalise your divorce.

It is important that you make arrangements for assets, property, money, children etc and you will need legal advice to make sure this is handled properly.

We recommend that you seek legal advice to protect yourself and your family. Decisions made quickly and without awareness of the law can often not be changed after the event.

Get in touch

You can email our Client Care Team here or call using the contact number below.  All calls and emails are strictly confidential.

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Author: Maria Coster

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The cost of ‘initial skirmishes’

We have all seen cases in which there have been seemingly endless initial skirmishes between the parties, as they jostle for position before the real proceedings begin. Unfortunately, the cost of this skirmishing can often put a huge dent in the assets available to the parties, and sometimes even use them up entirely.

AJ v DM, in which a preliminary point (or two) was recently decided by Mr Justice Cohen, is a case in point.

The facts of the case were as follows. The husband was born in Ireland and the wife in England. Both subsequently became Australian citizens, in addition to their original citizenship. They met in Australia in 2014, and were married there in December 2015. The wife fell pregnant in about January 2016. In March 2016, whilst on a holiday to England, she decided that she wished to see out her pregnancy in England. In June 2016, the husband returned to Dublin, where his family live, making trips over to England to see the wife, and in September he moved to England to resume cohabitation with the wife. The child was born a month later. In January 2017 the husband started a new job in St Lucia, and the wife joined him there in the following March.

The marriage became increasingly unhappy in early 2018. On the 2nd of April the wife and child left St Lucia and came to England, for what was agreed between the parties to be a holiday. However, whilst in England the wife decided that the marriage was over and issued divorce proceedings in England. It was her intention to remain here with the child. She also issued a financial remedies application and an application for a child arrangements order.

The husband responded with an application for the summary return of the child to the jurisdiction of St Lucia. However, before the application was heard the wife, presumably realising that a return order would be made, took the child back to St Lucia, where she then applied for leave to remove the child to England. That application remains outstanding.

Meanwhile, to make matters even more complicated, in June 2018 the husband applied to the family court in Australia for financial relief. That application is also outstanding. In the following month the wife made various applications, including an application to amend her divorce petition to show that the English court had jurisdiction to deal with the proceedings as the parties “were last habitually resident in England and Wales and the petitioner still resides there.” Without going into the legal details, the importance of this was that the wife could not pursue a maintenance claim here if the petition was not amended. (The only ‘asset’ in the marriage was the husband’s income, so all the wife could effectively claim by way of financial remedy was maintenance.)

So, to summarise, there were various proceedings taking place, in three different jurisdictions.

To cut a longer story short, the English proceedings went before Mr Justice Cohen in the High Court. He had to decide whether the wife could amend her petition, whether the financial remedy proceedings issued here by the wife should be stayed, as the husband maintained, and whether both of those matters should be adjourned until the court in St Lucia had determined the wife’s leave to remove application, as the wife wished.

Mr Justice Cohen felt that it would be inappropriate to adjourn, partly because he did not consider that there was a sufficient connection between the outcome of the leave to remove application and the other issues he had to determine.

As to the amendment application, Mr Justice Cohen felt that this was doomed to failure – it was plain on the facts that the parties were not last habitually resident in England and Wales. They were habitually resident last in St Lucia. This effectively decided the husband’s application for the financial remedy proceedings to be stayed, as there was no jurisdictional basis for the making of a maintenance order here.

OK, there is some more to this case, but for the sake of simplicity I have left out other details, and simplified things somewhat. If you want the full story, you can read the full judgment, at the link below.

Mr Justice Cohen did, however, have one other thing to say, and we have seen similar things said by judges on many occasions in the past. He concluded his judgment as follows:

“There is an important final thing that I ought to say. This case has generated an enormous amount of legal costs. The parties cannot begin to afford continued litigation in the way that they have spent on it so far. There is next to no money in the case other than an income which cannot sustain the level of fees. I would urge the parties to sit down and mediate their dispute, hopefully on everything but, if not, at least on the money, because it must be possible for them to be able to reach an agreement.”

In short, enormous costs have been incurred, but nothing substantial has yet been decided. As usual, I hope that the parties heed this advice.

You can read Mr Justice Cohen’s full judgment here.

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Author: John Bolch

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Divorce tips: Managing financial disclosure in divorce

Making the decision to get divorced, painful as it is, is just the beginning of the many decisions that you will make through the process of separating. Regardless of your situation, there will always be financial issues that need to be addressed.

Financial decisions potentially have far-reaching effects on your and your family’s future. So, we asked Mark Chapman, Partner, at the Stowe office in Reading to join us on the blog with advice on how to best manage financial disclosure in divorce.

Getting the right divorce lawyer

The first thing to do to secure a fair financial settlement in your divorce is to choose the right divorce lawyer for you. (We recently shared our top seven tips to help with this on the blog. You can watch our short video here)

With the right divorce lawyer by your side, there are a number of ways a fair settlement can be reached and in light of your circumstances, what is the right avenue for you to go down.

Now, this article is not about the different approaches to divorce settlements but, in short, they are, your solicitor dealing with the cases and leading negotiations for you, dealing with matters collaboratively, mediating, arbitration, the use of private judicial hearings for a neutral evaluation of your case and lastly, court hearings.

Plenty of options to consider, however, they all have the same conclusion: to come away with a legally binding financial settlement, set down in a document called a Consent Order. Or if reached by agreement or following arbitration or in the case of a Court imposed decision, a Court Order. Both will confirm how matrimonial finances are to be dealt with.

A fair settlement 

The concept of fairness can be difficult to quantify however in a legal sense, it is what is reasonable and equitable considering the financial circumstances of both parties in the marriage.  To establish this, there needs to be a detailed understanding of what is in the ‘matrimonial pot.’ You cannot fairly split the assets until you know what they are.

Most financial settlements will consider capital, income and pension. Often it is the house which is the most valuable asset but if it is burdened with a large mortgage there may be limited capital. It may be your pension which has the greater value, but you may not be able to access it for many years due to your age. It may be a business which has provided the family with an income, but it may also have a capital value which needs to be considered.

All such assets need to be dealt with. In some of my cases, there has not been enough sufficient income to warrant an award for spousal maintenance. In other cases, pensions have been non-existent or of such a low value that they had no impact on the settlement.  Often the equity in the house, when combined with other savings, is insufficient to buy both parties houses without relying on mortgage borrowing. In those instances, one party may “need” more money than the other, often because they have a lower earning potential.

The form E 

Before one gets to answer these questions however, a full and frank financial disclosure will be facilitated by both parties using the standard Form E. You can get advice on how to fill in Form E here. You will need to provide information on any mortgages, bank accounts, debts, pension, tax etc.

Whilst it is an onerous form to complete it is thorough. The risk of just providing disclosure without completing this form is that something maybe omitted either accidentally or deliberately. However, if the financial resources are simple, sometimes the parties choose to avoid completing the form E but be aware of the risk of trying to cut corners.

Once completed the financial information is exchanged with the other party and this should take place at the same time.  Once you have the other party’s detailed financial information, you can then start to consider what a fair financial agreement may look like.

Hidden assets?

When reviewing the details, I always advise my clients to not take the information at face value. Use your instincts and if there are any gaps you have the right to ask the other party to clarify those issues, before entering negotiations. You need a clear understanding to ensure that the final settlement reflects yours, and possibly your children’s needs, whilst also not ignoring the needs of the other party.

In many commercial transactions e.g. before a business is purchased you would expect there to be a process of “due diligence” to ensure that you have a full understanding of what there is. When you buy a house, you undertake a proper survey, when you have a medical procedure this is often preceded by an X-ray. The reason is that you don’t want to be making important decisions without full knowledge. It is very difficult to undo mistakes made in haste, desperate to reach a quick settlement or to save costs. When the mistake is realised later, it can be too late.

If someone is not willing to provide full and frank financial disclosure, then it may be necessary to issue court proceedings and place the division of the matrimonial finances in the hands of the court. As lawyers, we cannot force someone to deal with matters on a voluntary basis, but a Judge has various powers at their disposal to ensure that the correct procedures are adhered to so that matters can be resolved.

We also have an in-house team of forensic accountants who can help. Highly experienced accountants they can advise on valuations, businesses, tax, trust and pensions. The team is also highly experienced in uncovering hidden assets. You can read more reasons why you may need to use them here on the blog.

To close, the key to achieving a fair settlement in your divorce is to have a clear picture of both parties’ financial circumstances, backed up with the appropriate evidence. Once this is in place, we can make sure an offer is made and the best settlement achieved for you.

Get in touch 

If you require advice on how to achieve a fair settlement in your divorce please do contact us at the details below or send us an email.  All enquiries are strictly confidential.

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Author: Mark Chapman

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Sir James Munby finds that irregularity in divorce did not make it invalid

“Rules are rules, and must be obeyed”. Or so we are often told. However, even that rule has exceptions, as the remarkable case M v P demonstrates.

The rule in question is quite simple: that if you wish to divorce on the basis that you and the other party have been separated for a particular period (i.e. use that basis to prove the ground for divorce: that the marriage has irretrievably broken down), then that period must have been completed before the divorce petition is presented to the court. Thus if, as in this case, the petitioner wishes to divorce  on the basis that he and the respondent have been separated for at least two years and the respondent consents to the divorce, that two year period must have been completed before the petitioner presents his petition. (It should be noted in passing that it will not be necessary to prove irretrievable breakdown under the proposed no-fault divorce system, so the particular problem in this case will no longer arise if we get no-fault divorce.)

And what if the separation period has not been completed? Well, prior to this case I’m sure any family lawyer would have said that the petitioner has not proved that the marriage has broken down irretrievably, and cannot therefore have his divorce. But it seems that things are not quite that straightforward…

The facts in M v P were somewhat unusual. The parties were married on the 19th of September 2011. It appears that they never lived together (the husband claimed that the wife refused to share the same household as him). The husband, who was not legally represented, presented a divorce petition on the 14th of June 2013, on the basis that he and the wife had been separated for at least two years, and the wife consented to the divorce. The wife confirmed in her acknowledgement of the divorce petition that she consented to the divorce. The divorce proceeded, and a decree nisi was pronounced on the 21st of November 2013, and made absolute on the 24th of February 2014. Both the husband and the wife subsequently remarried.

I’m sure at this point that the reader will have spotted the problem in this case. If the parties were married on the 19th of September 2011 then they could not have been separated for two years by the time the petition was presented on the 14th of June 2013. The problem finally came to the attention of the court staff in October 2016. The matter went before a district judge, who allowed the husband to amend his petition to rely upon the wife’s ‘unreasonable behaviour’, and directed that the decree absolute remained valid.

The matter was then referred to the Queen’s Proctor. The Queen’s Proctor is an officer of the judiciary, who may intervene in divorce proceedings “to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued”. The Queen’s Proctor did intervene here, applying to have the decree nisi set aside as it was a ‘nullity’, because the requisite period of separation had not expired before the divorce petition was presented, and the district judge had not had the power to cure the defect by allowing the petition to be amended. Obviously, if the application succeeded, the husband and wife were still married to one another, and had therefore committed bigamy by remarrying.

The Queen’s Proctor’s application was heard by Sir James Munby, the former President of the Family Division. To keep this post to a reasonable length, I will summarise his judgment very briefly. The central question, he said, was: was whether the decrees made by the court were void, or merely voidable. If they were void, then they were nullities, and the parties were still married to one another. If they were merely voidable, on the other hand, he could decide not to have them set aside. He decided that they were voidable (you can read his reasons for this in paragraph 103 of the judgment) and that they would not be set aside. The district judge was right to amend the petition, and therefore the decree nisi would be amended to reflect that the divorce was on the basis of behaviour, rather than separation and consent. Accordingly, the decree absolute remained valid – the parties were divorced, and had not committed bigamy.

To be honest, I found my eyebrows rising a little when I read the judgment. Whilst one obviously has enormous sympathies with the parties – they were victims of the failure of the court to spot the irregularity – the law seems to me to be quite clear, and it had not been followed. It is all very well to say, as Sir James did, that “the modern judicial conscience would revolt” if it were compelled to say that the divorce was a nullity, but the simple fact remained that parliament had decreed that the two years must elapse before the presentation of the petition, and it had not. And to retrospectively alter the divorce to behaviour after the event seems to me to be stretching logic beyond breaking point – the divorce had never happened, so it could not be amended. Still, what do I know, I am just a humble hack, not the former President of the Family Division.

You can read Sir James’s full judgment, including his searing criticism of the unavailability of legal aid for the wife (see paragraphs 116 to 122), here.

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Author: John Bolch

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The honeymoon is over…

Most marriage vows refer to ‘til death do us part’ but sometimes they barely last past the honeymoon (Britney famously had her first marriage annulled after just 55 hours).

So, as the press start to claim that the infamous Mrs Hailey Bieber (nee Baldwin) has called in divorce lawyers after just six months of marriage to Justin, I started to think about the issues people face that want to divorce so soon after the big day.

Interestingly, if the couple were to commence divorce proceedings in the UK, the first stumbling block would be the fact that they have only been married for 6 months.

In the UK, you must be married for at least 1 year before you can file a divorce petition.  The only option you have prior to that is an annulment and there are only a handful of scenarios where that would be applicable.  For example, Hailey would have to prove that one of them did not consent to the marriage, for example due to duress, or that one of them was suffering from a mental disorder or venereal disease, or that the marriage had never been consummated.

The length of a marriage is an important factor in any divorce proceedings and this would be something to consider when looking at whether there should be any sort of financial order in this case.

In this situation, the couple are both celebrities and no doubt have their own significant personal wealth.  It is highly likely that they may have prenuptial agreements, particularly as these are very popular in the United States. However, if they have not and were getting divorced in the UK, then the Court has a wide discretion when deciding how to divide their assets, though inevitably arguments over assets being held pre-marriage would carry significant weight.

Consideration would be given to the fact that they do not have any children together and they are both financially independent.  If Hailey was not a global supermodel and had a very young baby, then she could be looking at a reasonable financial settlement to help her with her future as a single mother.

Another factor may be that she made financial sacrifices by entering the marriage and may need to be compensated for the same. This compensation does not necessarily have to mirror exactly what was sacrificed prior to or during the marriage as ultimately, they are both adults and both decided to enter a relationship with each other. However, if it was difficult for Hailey to move forward on her own then it could be reasonable for her to have some form of financial support in the short term.

If you have recently married and are concerned that you have made a mistake, I would recommend that you seek legal advice about what the consequences would be if you start divorce proceedings.

Alternatively, you can contact Relate, a charity specifically designed to assist couples that are going through relationship difficulties.

 

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Author: Victoria Clarke

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Report comparing divorce laws in other jurisdictions makes fascinating reading

The Nuffield Foundation has published a report presenting the findings of a project to explore the legal and procedural details of the divorce process in selected other jurisdictions. The report is designed to inform the current Ministry of Justice (‘MoJ’) consultation on reform of the ground for divorce and dissolution in England & Wales.

As the report explains, the MoJ is proposing that the sole ground for divorce of irretrievable breakdown should be evidenced by a new notification system or waiting period. The report examines what lessons can be drawn from the experience of notification and/or separation-based divorce in eight comparable jurisdictions: Australia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden.

Having never really studied divorce law in other jurisdictions, I find the report quite fascinating, both in terms of how similar different jurisdictions are in some respects, and how different they are in other respects. Overall, though, the report makes the important finding that jurisdictions are converging “towards recognition that a divorce must be granted where one or both parties insists that the marriage is over and away from scrutiny of a decision to divorce according to objective standards.” This is surely excellent news for the people of the countries/states concerned and, as the report says, indicates that the MoJ’s proposal to remove fault is fully consistent with international trends.

The report looks at various aspects of divorce law and procedure in the various jurisdictions, ranging from the grounds of divorce, through the different parts of the process, to whether the divorce can be opposed, and a number of other details.

The centrepiece of the report is a tabular summary of the law and procedure in England and Wales (at present) and the eight other jurisdictions. This sets out in an easy to read form all of the aspects mentioned above. To pick out a couple of the interesting facts at random, we find that most of the other jurisdictions have not had major reforms for almost as long as we have here (suggesting that we are rather behind the times), that Spain, Sweden and Finland do not have any grounds for divorce (and no available defences), and that in all countries/states save for England and Wales and Germany the court must approve or determine child arrangements before the divorce goes through (this was also the case here until 2014).

The report then examines various aspects of the divorce law and procedure in the different jurisdictions, and sets out possible implications for the MoJ to consider when deciding exactly what form our new divorce system should take.

I won’t comment on all of the points here, as I have not given detailed consideration to all of the various details of any new system. However, I do find the following points interesting:

  1. That there is a trend away from requiring any ground for divorce at all. Here, it is expected that we will keep irretrievable breakdown as the ground for divorce, but do we even need that? As the report says, in Spain, Sweden and Finland divorce is a right and, in the absence of a divorce ground, no proof is required.
  2. Most other countries do not have our two-part divorce process (decree nisi and decree absolute). Do we really need this?
  3. Our proposed six month notification period is in line with many other jurisdictions. As I have mentioned before, I wonder whether that is too long, although I don’t expect the MoJ/government to agree to a shorter period.
  4. The report says that in some jurisdictions defence of the marriage remains possible in theory, but is futile in practice. Quite. No jurisdiction has a specific provision to allow a respondent to register their wish to remain married. This must be the right way.
  5. Lastly, the report finds that a specific provision on the minimum duration of marriage is relatively unusual. Here, we have a bar on divorce petitions within one year of the marriage, and the government is proposing that that be kept. But is it really necessary? Clearly, other countries/states think not. After all, it is quite possible (and not unheard of) for the parties to a marriage to realise very soon after the wedding that they have made a mistake. Why should they be forced to lose one year of their lives because of a mistake?

Ok, I’ll leave it there. For further details, you can find the full report here.

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Author: John Bolch

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Will divorce affect my credit rating?

Divorce and separation often focus on the division of assets: who gets the house? Maintenance for the children? However, many couples must also decide what happens to the debts, in joint and sole names, and ask the question: will divorce affect my credit rating?

Changing the legal status of your relationship does not affect your credit score directly, whether you are moving in, getting married, forming a civil partnership, separating or getting divorced.

However, it is likely that during your relationship you have taken out joint credit, be it a mortgage, a bank account with an overdraft facility, names on a utility bill or a loan. And if this is the case, your credit ratings will affect each other.

Why?

When you and your partner apply for credit together the lender will look at both of your credit files and scores. This is because with any joint credit each of you is legally responsible for all the debt and all the payments. So, if one of you cannot keep up with your share of the debt, the other is legally obliged to make the payments.

Financial connections

The shared debt will show up on your credit report (it is usually under the heading financial associations or financial connections).

Once listed, it may mean that in the future their credit report will also be taken into consideration on any future applications you make, even if it is in your sole name. And the association will remain if you have those joint debts. Getting divorced or separating will make no difference.

What can you do?

Until all joint debts are paid and accounts are closed you’re still financially linked, but you do have a couple of options:

Split the debt

If possible, sit down with your ex and get a clear picture of what you owe and who will take responsibility for what. You can then have the joint accounts transferred to the person who is solely responsible for the payments.

Look at your property

Often the biggest asset, you may need to refinance to remove one name from the mortgage or sell the home and divide the proceeds.

Keeping paying the bills

Money is likely to be tight as you separate but keep paying the bills. If you don’t have enough money to keep up payments on your loan(s), credit card(s), bills and mortgage or rent, it’s important to prioritise which you can pay. Don’t ignore your debt problems. They will not go away.

If you are struggling please visit the Money Advice Service website for further information and support.

Removing a financial association

Once you no longer share joint finances you can ask credit reference agencies  to remove them from your credit report, this is known as a notice of disassociation. Be prepared to provide proof that your financial connection has ended.

Get in touch

If you are going through a divorce or separation and have debt concerns our highly experienced family lawyers can help. You can get in touch here.

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Author: Emma Newman

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Court of Appeal confirms that third party cannot be ordered to pay lump sum

It’s not an unusual scenario: a party to financial remedy proceedings does not have the means to pay a lump sum to the other party, but has the ‘benefit’ of funds belonging to a third party. In such circumstances, it can obviously be tempting to seek an order that the third party pay the lump sum. However, as we shall see, this is simply not possible, as the court has no power to order lump sum payments against third parties.

The situation arose in the recent case Wodehouse v Wodehouse. The facts of the case, very briefly, were that the parties were married in 1992, the marriage came to an end in 2011, and the parties were divorced in 2015.

When the financial remedies claim went before the Deputy District Judge the parties were, to use the words of Lady Justice King, “in a parlous state financially.” The wife had had two hip replacement operations and was unable to carry on her previous employment, and the husband had just been made bankrupt (for the second time) and was also unable to work. There were no assets of any significant value save for the husband’s police pension, and the wife was responsible for a £97,000 debt, being the negative equity on the former matrimonial home when it was repossessed by the mortgagee (the husband was not liable for his share of the mortgage shortfall because of his bankruptcy).

The husband, however, was a beneficiary under the terms of two family Trusts (he is one of four sons of the late John Wodehouse, the 4th Earl of Kimberley). Without going into the details (OK, simplifying things quite considerably!), the Deputy District Judge ordered the husband to pay to the wife a lump sum of £138,500, essentially representing debts that the husband had accrued during the marriage, in default of which he ordered that one of the Trusts should pay the lump sum (or the balance of it), from the husband’s interest in the Trust. The husband appealed against this order (it is not clear whether the Trust also appealed, but it was not represented before the Court of Appeal).

The Deputy District Judge also made a pension sharing order, dividing the husband’s pension equally between the husband and the wife (the husband also appealed against this order, but his appeal was dismissed).

The matter ended up in the Court of Appeal. However, the wife’s representative conceded that the lump sum order could not stand, as the court did not have jurisdiction to make such an order against a third party. The lump sum order was therefore discharged.

Which still left the wife with the £97,000 debt. She could have sought a rehearing, but she indicated that she could not face the prospect of further litigation. Accordingly, that was the end of the matter.

Giving a judgment concurring with the leading judgment of Lady Justice King, the President of the Family Division Sir Andrew McFarlane made a noteworthy point:

“Unfortunately, for the reasons that my Lady has so clearly explained, this case did not receive an adjudication which met with the requirements of the law relating to financial relief. In short terms, the Deputy District Judge made an order which was simply not open for the court to make. I hope that this decision is evidence of the value of creating a Financial Remedies Court – which is currently being piloted – so that only judges who are recognised for their knowledge of, and experience in, financial remedies cases following divorce will, in the future, sit on cases of this type.”

This may not seem entirely fair to the Deputy District Judge (after all, what judge never makes a mistake?), but the President does have a point. It is, of course, one of the primary aims of the new Financial Remedies Courts that they be manned by specialist judges, rather than the present position whereby financial remedy claims may be deal with by judges who have never practised family law. Hopefully, therefore, the incidence of judicial error will be considerably reduced, once the new courts go country-wide.

You can read the full report of the Court of Appeal’s judgment in Wodehouse here.

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Author: John Bolch

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Deal or no deal: The impact of Brexit on divorce & family law

Whilst the government continues to argue about the size of the Brexit ‘divorce bill’ the potential impact remains unclear. And with no workable plan to address the significant problems that will arise in the family law legal system, it is a time of uncertainty for all family lawyers and their clients.

Sarah Snow, Partner at our London Victoria office joins us on the blog to look at the potential impact of Brexit and divorce.

MPs are set to vote again tonight on Mrs May’s Brexit deal. Will the three new documents, which form part of the divorce, be enough to push her deal through parliament? With the EU making it clear there will be no more concessions, the stakes have never been higher.

As a family law practitioner, I am concerned about the potential impact on family law and my clients.

Our society today is a global one, with more and more families living internationally with different nationalities, dynamics and structures. This is reflected in the diverse cases we represent at the London Victoria office where we frequently work on matters of European cross-border disputes between parties concerning finances and children.

It is arguable that Britain’s decisions to leave the EU in 2016 was in part, brought about by the EU’s overreaching legislative aims with a global agenda.

However, it is wrong to suggest that no good has come from the UK’s membership within the EU, particularly in relation to family legislation. EU law has proved to provide greater certainty for separating families in the following areas:

  • Recognition of divorce within other EU countries
  • Recognition of children law within other EU countries
  • Expedited child abduction proceedings
  • Recognition and enforcement of maintenance orders within EU countries.

The Law Society guidance published on a no-deal Brexit on family law in October 2018 highlighted that EU treaties will cease to apply with immediate effect in the event of no deal Brexit and co-operation between the UK and EU will end.

The ceasing of EU treaties will directly impact on many families currently relying on EU legislation to enforce orders abroad, recognition of divorce proceedings which may either originate in the UK or another EU country, or at worst the return of abducted children.

No deal will also lead to a reliance on international law, such as The Hague Convention.

When advising my clients, I ask them to consider the impact of Brexit when considering where and when and to issue proceedings, recognition of foreign orders and applications for maintenance enforcement before March 29.

The true extent of Brexit’s impact on family law is not yet known.  Time will tell.

The post Deal or no deal: The impact of Brexit on divorce & family law appeared first on Stowe Family Law.


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Author: Sarah Snow