Category: Family Law

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What is sole custody?

Divorce is a difficult life event. However, it can mean more than just a failed marriage. It could mean the splitting of a family. When children are involved, it is important to think about what is best for the child. No two families are alike, and the needs of each parent and child are different. In matters where domestic violence was present or there are safety concerns, joint custody may not be the most suitable. In these situations, seeking sole custody may be in the best interests of the child.

While it is not as common, sole custody is often sought in matters that involve domestic violence, child abuse or substance abuse problems. Unlike joint custody where each parent has legal and physical custody of the child, sole custody awards both legal and physical custody to one parent while the non-custodial parent has neither legal nor physical custodial rights of the child.

Sole legal custody means that one parent has the rights and responsibility to make major decisions regarding the child’s welfare. This commonly includes decisions regarding education, medical care, religion and emotional and moral development. On the other hand, sole physical custody means that the child will reside and be under the supervision of just one parent. However, in these cases, the non-custodial parent may be able to obtain reasonable visitation with the child so long as it is in the best interests of the child.

Child custody matters can look very different from one family to the next. In some cases, parents can work together to reach a fair agreement. In other cases, disputes arise. No matter the situation or if you seek joint or sole custody, it is important to be aware of your rights and what steps you can take to protect them and the interests of your child.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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Not one in ten: Why family dispute numbers matter by Families need Fathers

Today we welcome Michael Lewkowicz. Director of Communications at Families need Fathers to the Stowe Family Law blog with the first in a series of exclusive articles.

“Over the few years, I have attended various Cafcass events – open board meetings, conferences, consultations. Occasionally their chief executive, Anthony Douglas, ‘clarified’ that whilst there were tens of thousands of court applications for Child Arrangements, they represent just 10% of family separations with 90% resolving things out-of-court. ‘Great’ one might have thought, ‘so it’s not such a big issue for most separating families’. The prevailing narrative was that many of those were then resolved adequately before full proceedings. Some came to mutual agreements in early proceedings and only a very small proportion, the story went, perhaps under 5% formed the ‘difficult’ cases that involved ‘high conflict’ – the cases that nobody could really “expect” to do anything about. The message was not quite ‘well that’s alright then’, but it seemed to be heading in that direction.

It was something of concern, but never became a priority and all those thousands of dads, mums and grandparents coming to Families Need Fathers and family lawyers for help were at best unlucky to be faced with confrontational ex-partners or perhaps mutually confrontational or, worse still, the ones made to feel responsible for the conflict.

The trouble was, that visits to our support meetings did not seem to reflect this. It was affecting too many people and, guess what, many of them were lovely people who would not say ‘boo to a goose’.

More troubling still was that the numbers, that the ‘small minority’ narrative was based on, simply did not ring true. I’m no mathematical genius, but if there are some 50,000 court applications each year, less 30% return cases leaves 35,000 new applications. If these represent 10% of separations, then the implication is that there are some 350,000 break-ups a year. Assuming an average of 2 children per case (Cafcass average figures) implies 700,000 children involved. Since the number of births in England and Wales in 2017 was 679,106 the figures suggested that every single family separated before their children left school. Spot a problem? We did.

Over subsequent months we raised this with Cafcass’ newly appointed Director of Strategy, Teresa Williams. The great news was that she too thought this was odd. Some months later I bumped into Ms Williams again and was very reassured when she said Cafcass were re-calculating this and were getting nearer the reality – which was over a third of cases! In fact, Cafcass later reported that the figures looked like being 38%, a nearly four-fold increase over the widely quoted previous value!

Now we had, in the absence of detailed data, made some estimates of our own using a range of disparate sources and came up with a figure of slightly over half. Since then Cafcass, at their most recent open board meeting, told us that about a third of cases were families returning to court.

We knew returns to be frequent, but this was higher than we imagined. We speculate that returns have grown in recent years since the guidance was issued exhorting judges to end proceedings within six months. This is good for court statistics showing that cases have been disposed of quickly but can lead to some cases being prematurely closed.

Taking all this into account, our original estimate seems not to have been that far off the mark. The new Cafcass figure certainly cuts right through what now seems to have been a surprisingly long run of what might these days be considered ‘fake news’. The President, no not Trump, but of The Family Division, Sir Andrew McFarlane, observed the shift in presumed wisdom in his speech last week to The Resolution Conference.

Sir Andrew told the conference that this is

“a far cry from the previous comfortable urban myth based on a figure of 10%. It indicates a major societal problem…”.

The importance of understanding that the true proportions of families going to court is almost four times greater than previously thought was also brought into sharp focus just a few weeks ago at the APPG on Legal Aid. We drew attention to the long-term opportunity to diminish the reliance of separating parents on family courts from a up to half of cases to around the level of 2% – that was being achieved in Sweden. The minister, Lucy Frazer MP, responded by ‘correcting’ us and reciting the 10% figure from the old narrative that the opportunity was not really that big nor worth the government prioritising it. My brief interjection to the minister received a frosty response from the chair – our apologies for this.

We have now written to the minister with an update and we hope Cafcass will have updated her too. The desperate need for reform of family justice is now even clearer. Unquestionably, for tens of thousands of needlessly damaged children and parents, that reform is very urgent.”

Families need Fathers (FNF)

FNF is a leading UK charity supporting dads, mums and grandparents to have personal contact and meaningful relationships with their children following separation. They offer information, advice and support services on how to provide the best possible blend of both parents in the lives of children.

You can find further information on the Families need Fathers website.

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Author: Stowe Family Law

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The significance of pensions in high net worth divorces

Pensions are often of great significance in divorces, more so than many divorcing couples realise. Even in cases involving quite modest assets, pensions can be one of the most valuable of those assets, usually only exceeded in value by the matrimonial home. However, pensions can be even more significant in high net worth divorce cases, as recent research has shown.

The research was carried out by the wealth planning company Succession Wealth. They analysed the Office for National Statistics’ Wealth and Assets Survey data and the number of divorces in England and Wales, to estimate the makeup of the assets of divorcing couples whose net financial wealth is £1 million or more.

They found that that 550 couples with net financial wealth of one million pounds or more each will divorce this year, and estimate that collectively these individuals have around £1.91 billion of net wealth, equating to an average of about £3.48 million per couple.

And so to the breakdown of that wealth. This was divided into four categories: financial wealth, property wealth, physical wealth and private pension wealth. I haven’t seen an explanation of the first three, but I assume ‘financial wealth’ means cash and savings-type assets, such as bonds, shares and so on, ‘property wealth’ means real property (i.e. land and buildings) and ‘physical wealth’ means other valuable physical assets, such as cars, jewellery and paintings.

The breakdown was as follows: financial wealth represented 20% of the assets, worth on average about £712,000, property wealth represented 31% of the assets, worth on average about £1,075,000, physical wealth represented 5% of the assets, worth on average about £186,000, and private pension wealth represented a whopping 43% of the assets, worth on average about one and a half million pounds. In other words, private pension wealth is by some margin the most significant asset of many couples whose net financial wealth is £1 million or more.

These figures may not come as a surprise to an experienced family lawyer used to dealing with high net worth cases, but I’m sure they would raise a few eyebrows elsewhere. How many ‘non pension owning’ spouses in high net worth cases will be aware of this? I suspect not many. That is why it is essential that they obtain full disclosure of the other spouse’s wealth. And that does not just mean accepting what the other spouse discloses. All too often a spouse with substantial financial assets will be less than forthcoming in disclosing them. That is when it may be necessary to employ the services of a forensic accountant (see below), who can help to uncover those assets.

Of course uncovering the true value of pension (and other) assets is only half of the story. The other half is working out how those assets should be divided between the parties.

Thus the question is: if you are the ‘non pension owning’ spouse, how do you receive your fair share of pension assets? Well, there are essentially three ways: offsetting against other assets, pension sharing orders and pension attachment orders. Offsetting, at its simplest, involves the spouse with the pension keeping it, but the other spouse being compensated by receiving a greater share of other assets. Pension sharing means transferring the pension ‘pot’, or part of it, from one spouse’s pension to a pension in the name of the other spouse. Pension attachment orders redirect all or part of the pension benefits to the other spouse, when the pension comes into payment. Which of these options is right for you can be a complex question. (For further information regarding pensions, see here.)

The moral of all of this, of course, is to get the best possible advice when you divorce, especially if the assets of the marriage are significant. And that does not just mean legal advice. It is also necessary to have the best financial advice. That is why Stowe Family Law have their own specialist in-house team of forensic accountants, which is one of the reasons why they are experts in high net worth divorce cases.

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Author: John Bolch

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A call for cohabitation reform

The problem with the current law on cohabitation is that there isn’t one. Despite popular belief, there is no such thing as a common law marriage (it has not existed since 1753) and separating couples have very minimal legal rights or protection.

This often leads to the more financially vulnerable party potentially facing hardship and difficulties. Coupled with the fact that cohabitation is the fastest growing family type in the UK, it is time this inequality is addressed.

So, we asked Sushma Kotecha, Managing Partner from our Nottingham office to join us on the blog to add her voice to the continuing calls for cohabitation reform.

“Almost half of us mistakenly believe that common law marriage exists. The findings from this year’s British Social Attitudes Survey carried out by The National Centre for Social Research revealed that 46% of people surveyed are under the false impression that cohabiting couples form a common law marriage. This figure remains largely unchanged over the last fourteen years (47% in 2005) despite a significant increase in the number of cohabiting couples.

Cohabitees cannot rely on UK family courts. As it currently stands, there is very little legal protection for cohabitees who separate and need to resolve disputes that may have arisen in respect of property, finances and/or children. The law in this area is very complex and can lead to unfair outcomes.

For this reason, more people are turning to Cohabitation/Living Together Agreements to record the financial arrangements that are to apply in respect of their cohabitation and what should happen if their relationship fails.

Cohabitation/Living Together Agreements are contracts that can include provisions dealing with income, property, children, wills and legacies and many other issues that may be relevant.

Anne Barlow, Professor of Family Law and Policy at the University of Exeter said:

“Our data clearly shows that almost half of us falsely believe that common law marriage exists in England and Wales when, in reality, cohabitation grants no general legal status to a couple. Cohabiting couples now account for the fastest growing type of household and the number of opposite sex cohabiting couple families with dependent children has more than doubled in the last decade. Yet whilst people’s attitudes towards marriage and cohabitation have shifted, the policy has failed to keep up with the times.

The result is often severe financial hardship for the more vulnerable party in the event of separation, such as women who have interrupted their career to raise children. Therefore, it’s crucial that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences in rights that come with each.”

Notwithstanding a call for reform from lead bodies and Judges, the government has resisted implementing proposed changes that would make the system fairer for separating cohabitees.

Lord Marks’ Cohabitation Rights Bill has had its second reading and Resolution (a body of specialist family lawyers and other professionals) will be liaising with Lord Marks about laying the bill again in the next parliamentary session.

When this was debated in Parliament in 2014, the number of people cohabiting in the UK had risen from less than 3 million in 1996 to 5.9 million. The figure is now 6.6 million, and this rate of increase is not abating.

The Office for National Statistics’ 2018 figures shows that cohabiting families are the fastest growing family form and a quarter of all children are growing up in cohabiting families. About 40% of cohabiting couples have children together while cohabiting. The Bill is aimed not just at those couples but at their children, who stand to suffer from their parents break up.

If you intend to cohabit or are currently cohabiting and wish to regulate your rights in the event of a relationship break up to avoid the pitfalls and injustice of the existing laws, please contact our Client Care Team here to arrange an initial no-obligation options call with one of our lawyers.

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Author: Sushma Kotecha

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Husband succeeds in recovering painting, despite wife’s lies

As I have said many times, both here and to my own clients when I was practising, getting a final order is often only half of the battle when it comes to sorting out financial arrangements following divorce. The other half comes in actually enforcing that order.

Despite the importance of enforcement, we don’t see an awful lot of cases about it reported. However, we did get at least a glimpse of it in the case ET v ST, which was decided by Mr Justice Mostyn in April last year, but which only recently appeared on the Bailii website. The case is also of interest because of the wife’s attempts to thwart the enforcement action.

The case revolved around the husband’s attempts to recover a painting by the artist Caziel. The painting was amongst the contents of a property that it had been agreed should be retained by the husband. That agreement was incorporated into a consent order in July 2011.

For the benefit of those, including myself, who are not art experts Caziel was, according to Wikipedia, “a Polish artist who lived and worked in Paris during the inter-war period and who worked alongside a number of important figures of the School of Paris, including Pablo Picasso”. Despite that illustrious connection, I don’t think his paintings are especially valuable – a quick internet search reveals them being sold for anything between a few hundred pounds and five thousand pounds. We are not told how much the painting in this case is worth, although obviously it could also have had sentimental value to the husband.

By October 2017 the painting had not been delivered up to the husband by the wife, and the husband therefore commenced enforcement proceedings.

On three occasions the wife had told the court that she had not seen the painting for some years, and implied that the husband had taken it. Two of those statements were made under oath from the witness box, and one in a written witness statement endorsed with a statement of truth. However, in another witness statement in January 2018 the wife admitted that her earlier statements had been untrue – she did know the whereabouts of the painting.

Following this, the painting was recovered by the husband, although not before the husband had issued an application for the wife to be committed to prison for breach of the order.

There still, however, remained the issue of the husband’s costs, both of the enforcement action and of the committal proceedings. In addition to this, the husband sought permission from the court to proceed with committal proceedings against the wife in respect of both her false witness statement and her lies under oath. These issues fell to Mr Justice Mostyn to determine.

Dealing with the committal application first, Mr Justice Mostyn refused permission for the husband to proceed. The reason for this is that he considered that the husband had a better avenue available to him: criminal proceedings against the wife for perjury, which carry with them a maximum prison sentence of seven years. We are not told whether or not the husband chose to take this course.

As to the issue of costs, Mr Justice Mostyn felt it unarguable that the husband should recover his costs relating to the enforcement action. As to the committal application, Mr Justice Mostyn felt that the husband had pursued this “in a very single-minded way”, despite the fact that he had achieved his primary aim, which was to recover the painting. Accordingly, Mr Justice Mostyn only ordered the wife to pay 50% of the husband’s costs in relation to the committal application.

An interesting little case, illustrating quite typical enforcement issues: one party having to go back to the court to recover an asset that should have been delivered to them, and the other party lying to the court in an attempt to thwart them. The case is also perhaps an illustration of the perils of being over-zealous when it comes to enforcement: one can fully understand the husband’s annoyance at the wife’s lies, and his determination that she should not ‘get away’ with them, but in the end his actions cost him money that he was not able to recover.

You can read the full judgment here.

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Author: John Bolch

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How to keep divorce out of court? (Part 2)

Sarah Snow, Partner at our London Victoria office is back on the blog to look at how arbitration and negotiation can help you keep your divorce out of court.

Arbitration

I pick this article back-up with a look at arbitration, the closest parties will come to the court process without having to go to court. It is a form of dispute resolution that takes place out of the courtroom. Both parties will appoint a suitability trained and qualified arbitrator, their decision is final and binding upon the parties.

The benefits of arbitration are that parties are able to resolve disputes in a less formal setting. The process is often quicker than court proceedings as parties are not dependant on the court listing and scheduling of hearings, which can often take several months if a court is particularly busy. Parties can also be ensured of continuity, instructing the same arbitrator throughout the process, opposed to court proceedings where you may see a different judge at each hearing. However, as with collaborative law, there is no power to compel disclosure and may not be suitable if one half of the couple is hiding assets although the arbitrator can draw adverse findings if satisfied that something has not been disclosed and can also award costs. Indeed, engaging in arbitration is something that both parties must be willing to do.

This is a viable alternative dispute to the court process for divorcing couples and can address wide ranging issues such as determining an entire financial award down to a narrow issue such as how to deal with a pension. There are also arbitrators who specialise in determining arrangements for children.

It may feel like you are “going private” as you do pay the costs of the arbitrator as well as the costs of your lawyer but you may feel this is worth it to get a final decision more quickly, in a more comfortable environment than the court and by an arbitrator who you can be confident is a specialist in family law rather than a Judge who may have been a lawyer who specialised in a different area of law. The other benefit to an arbitration process is that it is completely confidential so that there are no risks of the press attending your hearing as they sometimes can do if your case is in court.

The flexibility and the fact that you will get a final decision more quickly can make arbitration more cost-effective than court.

Negotiations via solicitors

This is probably the most common way in which most matters are resolved. Lawyers are both specialists in the law and will know what the likely outcomes might be, and they will also be experts in negotiation and how to present your case in the best possible way. The process essentially involves solicitors negotiating on divorcing parties’ behalf. If the matter concerns financial arrangements, then there needs to be an exchange of financial disclosure so that there is a full understanding of what resources are available. Negotiation can then take place over correspondence, by telephone discussion or sometimes via what is known as a roundtable meeting where both parties and their lawyers are present.

However, if negotiations break down then court or arbitration may be the only alternatives available. It is important therefore that negotiations do not continue for too long if it is evident that an agreement cannot be reached because if you commence either the court or arbitration options too late this will increase the costs beyond those originally anticipated. However, with arbitration it may be that the negotiations have narrowed down the issues to only a few points, which the arbitrator can be asked to decide upon therefore saving the costs of arguing about everything.  It is important to ensure that a timetable for disclosure and negotiations is set out by the parties’ solicitors from the start to ensure that matters are not allowed to drift over many months without moving forward.

Whichever way you go

Ultimately it is important to note that whichever chosen approach to resolving matters voluntarily and without court proceedings, both parties must be motivated by a shared desire to be open, transparent, pragmatic and compromising.

Without such an approach any method of Alternative Dispute Resolution is unlikely to be successful. In conclusion, I revert to the age-old adage delivered to many clients by their solicitors, “it is often better to have an agreement you can both live with, rather than an order imposed on you by the court which neither of you is happy with”.

Get in touch

For more advice on how to keep your divorce out of court you can contact our Client Care Team here or at the number below.

You can read part 1 here.

 

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Author: Sarah Snow

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Do we need a domestic abuse register?

A headline on BBC News before Easter read: “Mother calls for ‘domestic abuse register’”. The headline refers to the mother of Jayden Parkinson, the teenager who was brutally murdered by her former boyfriend, Ben Blakeley. Blakeley was found guilty of strangling 17 year old Jayden, who was expecting his child, and burying her body in his uncle’s grave. He is currently serving a life sentence, with a minimum term of twenty years.

Crucially, it came to light in the course of the murder trial that Blakeley had a history of violence towards previous partners. Three former girlfriends gave evidence against him, including one who said he had pushed her down the stairs when she was seven months pregnant.

Now Jayden’s mother is calling for a register to be kept “to keep track of the activities of perpetrators of domestic abuse, violence and stalking” (according to the BBC report). She is quoted as saying of Jayden: “She’d be here now, because for all the agencies at the point when Jayden went missing, to them she was a pain-in-the-butt teenager… and if that register had been here, and they’d all looked at it, they’d have seen how vulnerable she was.”

But what exactly would such a register contain, and do we need it? Or to put it another way, would such a register make a difference?

Now, this is a complex issue, and I could not possibly do justice to it in one short blog post. However, think it is worthwhile to set out a few initial thoughts.

The first question that comes to mind is: Who goes on the register? Is it just those who are convicted of a criminal offence related to domestic abuse? Or would those against whom a family court has made a domestic abuse injunction also be included? If the latter, then two further thoughts come to mind.

Firstly, that many allegations made in the family courts are of a quite ‘low-level’ nature – would all of these trigger inclusion on the register? Now, don’t get me wrong: I’m not trivialising domestic abuse. There is no excuse for any of it, but it seems rather extreme to put someone whose actions were not particularly serious on a register. Remember, being on such a register could seriously affect the liberty of that person.

The second, linked, point is that this could lead to an awful lot of people going on to the register. That could lead to one of two effects, both of which would ‘water down’ the idea: that it is impossible to gauge the risk posed by any particular person on the register, or that everyone on the register is considered to be ‘high risk’, even when many of them are not.

And can a perpetrator ever get their name off the register? As I said, being on the register would be a serious matter. Save in the most serious of cases it would surely be unfair to be on it automatically for life, but what must the perpetrator do to show that they are no longer a risk? Or would they simply come off it after a set period of time, as with rehabilitation of offenders? These are questions that would have to be answered.

But the biggest question is the one I’ve already asked: would such a register make a difference?

As suggested by Jayden’s mother, the register could be checked by any agencies involved in the welfare of a vulnerable person. I suppose those agencies could have procedures in place to ensure that the register is checked, when appropriate. However, such cases will surely be comparatively rare. Presumably, the register could be viewed by any member of the public who is concerned about a (potential) partner. However, realistically, how many people entering into a relationship will do this? If you have any concerns about a partner, you will act on those concerns (if you are able to), without needing to look at a register.

And lastly there are already two mechanisms in place which have a similar effect to such a register, both of which were mentioned in the BBC article. Firstly, convicted domestic abusers and stalkers are already captured on the Police National Computer (although that cannot of course be access by the general public), and secondly, we already have the Domestic Violence Disclosure Scheme, better known as ‘Clare’s Law’, which allows the police to disclose information on request about a person’s domestic abuse history. I’m not sure how much a domestic abuse register would add to this.

Nobody knows for certain whether Jayden would still have been alive today if there had been a register. Certainly, the possibility that she could be makes a powerful argument in favour. However, there are clearly some serious questions to be answered before a register is put in place.

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Author: John Bolch

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Divorce tips to help you avoid future complications

Divorce is a complex, emotionally charged process, and it is not always easy to make smart choices during this time. When both parties are amicable and resolved to work together on a reasonable, mutually beneficial agreement, it can make the process smoother and less stressful, but it is still necessary to work to protect your rights. Being prepared for what is ahead can make it easier to complete your divorce.

Most people spend several thousand dollars during the divorce process, even in non-litigious divorces. If you are concerned about finances, you can take steps that will reduce your costs and save time. In your effort to do this, you may find that you can reduce your divorce-related stress and anxiety as well.

Saving time and money

When you think about divorce, you may picture scenes from movies where two opposing parties are shouting at each other across a family courtroom. This typically is not reality, and it certainly does not have to be what your divorce looks like. Many divorces settle out of court, and this can be a way that both parties can save money. You may be able to negotiate a fair settlement through mediation, negotiations and other means without ever stepping foot inside a courtroom.

Avoiding litigation is one way to keep your divorce costs down, but you could take advantage of other options as well. Consider the following:

  • Seek counseling, or work with a therapist. When you can deal with your feelings in a healthy way, you will be less likely to find yourself involved in unnecessary, and costly, emotionally-motivated disputes.
  • Be honest and upfront about all financial matters. By disclosing everything now, you will be less likely to end up back in court battling over assets and money down the road.
  • Completing your divorce faster is not always better. Take your time to research and explore all options, which could lead to better resolutions and a reduced chance of future disputes.

These are just a few of the ways that you may be able to streamline your divorce and save money. Fear and sadness are normal emotions to have during this process, but they do not have to be the reason why or influence how you make important decisions that will impact your future. 

A worthwhile expense

You may be concerned about saving money during your divorce, but it is always worthwhile to seek the counsel of an experienced Texas divorce attorney. The terms of your settlement will affect you for years or even decades, and your future is worth protecting. Having knowledgeable guidance is invaluable, and it is worth it for the sake of securing a strong post-divorce future.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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What should I do if my husband/wife is having an affair?

Finding out that your spouse is having an affair can be devastating and place a severe strain on a relationship. Sometimes it spells the end of the marriage. Other times, couples repair the relationship, often making it stronger.

There is no right or wrong answer here. However, if you are married, there are some legal considerations for you if you partner has an affair. So, we asked Gabby Read-Thomas from our Altrincham office to take us through what you need to do if you find out your spouse has / is having an affair.

“Shocked, betrayed and confused are just some of the emotions that I see my clients dealing with when their relationship has broken down due to an affair.

In the beginning, I advise them to allow themselves some time to consider next steps rather than lashing out in an act of retaliation which they may later regret.

Once the initial dust has settled, communication is crucial, whether you want to try and save the relationship or have decided it is over and need to plan a way forward.

Staying together

Relationship counselling can be extremely helpful in supporting couples to open-up, explore the problems between them and get back on track.

There are many counselling services available, such as Relate, and a simple Google search should help you locate someone in your area or try the National Counselling Society, find a counsellor directory.

Separating

If there is no way back following an affair, then I would recommend taking early advice on the divorce process.

In English law there is only one ground to petition for divorce and that is that the marriage has irretrievably broken down. Although there has been a lot in the news about the new era of ‘no fault divorce’, it is likely to take some time for parliament to ratify the necessary legislation.  So for now, to prove this, you must currently rely on one of 5 facts and one of these is adultery.

Specifically, the law states that you can petition for a divorce based on adultery if your spouse has committed adultery and you find it intolerable to live with them.  Importantly however, same-sex spouses cannot use this fact to prove irretrievable breakdown (and would instead need to allege ‘unreasonable behaviour’).  Importantly, adultery can be committed and used for a reason to divorce, even after a married couple have separated.

Even if adultery is applicable, it isn’t necessarily that straight forward. What the court recognise as adultery and what you consider to be an affair are not always the same thing.

The law relating to adultery

The court considers adultery to be the voluntary sexual intercourse between a man and a woman. A close relationship which you may consider inappropriate, involving dates, messages, emails (but without actually having sex with that person) is not recognised legally as adultery.

However, whilst the court would not recognise it as adultery, such behaviour can be used as an example of unreasonable behaviour and a divorce petition can be presented on this basis instead, as it can with same-sex spouses who discover their spouse is conducting a relationship with a third party

It should also be pointed out that if you continue to live with your spouse for a period of 6 months or more after you found out about the adultery then you cannot use that adultery as the basis for a divorce petition, unless that adultery is continuing  If so,  the 6 month period begins to run from the last adulterous incident. If however it was a ‘one-off’ which took place more than 6 months before you found out, or your spouse denies having committed adultery, your safer option is to proceed on the basis of their behaviour.

Getting divorced

Citing adultery in a divorce petition requires the spouse to admit to the adultery in the paperwork. From a practical point of view, it is worthwhile asking their spouse  to sign a  statement confirming their agreement before proceedings are issued. In the long-run this will help reduce the risk of costly defended divorce proceedings. Again, if your spouse is unwilling to sign a statement, you should consider presenting your petition on the basis of unreasonable behaviour.

If you continue with the adultery petition and the divorce is defended it is the court that will decide whether there is evidence to show that the adultery has been committed, and let’s face it, short of hiring a private investigator (which can be done) it  is unlikely that you will have any direct evidence of the adultery.  However, if there is enough circumstantial evidence to show opportunity and an inclination to commit adultery, the court should be able to draw inferences that the adultery has been proved and the petition can proceed on that basis.

If you have concerns your spouse is having an affair and would like some initial legal advice, please contact our Client Care Team here or at the number below. All enquiries are strictly confidential.

 

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Author: Gabrielle Read Thomas

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Two weeks in family law: An anniversary, sobering statistics, and inefficient courts

It’s been a predictably quiet couple of weeks in family law, with the Easter break. However, there were one or two interesting stories that cropped up, of which the following are my picks.

To mark the 30th anniversary of the Children Act the Department for Education has announced that children in and on the edge of care will benefit from £84 million of new investment for projects designed to strengthen and support families, reaffirming the Act’s core principle that, where possible, children are best brought up with their parents. Up to 20 councils will receive funding to help improve their practice, supporting families to stay together wherever appropriate, so that fewer children need to be taken into care, and giving them the best chance to succeed in life. Three ‘early adopters’ have been unveiled to deliver one of three landmark projects originally run through the Department for Education’s Innovation Programme: Darlington, Cambridgeshire and Middlesbrough. The launch of the government’s Strengthening Families, Protecting Children programme will start work to roll out the three successful projects to other eligible councils, where there are persistently high numbers of children being taken into care. Commenting upon the announcement Education Secretary Damian Hinds said: “We must assist those parents facing difficulties and work with them to strengthen their family relationships so they can properly support their children. In the year that sees the 30th anniversary of the Children’s Act, we must stay true to its heart – that where possible and safe, children are best brought up, loved and supported by their parents.” Amen to that.

Next, as I reported here, the Department for Work and Pensions (‘DWP’) has published statistics about the separated family population. As I said, the statistics, which are for the period April 2014 to March 2017, show that at any point during that time there were around 2.5 million separated families in Great Britain, which included about 3.9 million children. Sobering stuff. The statistics were produced to provide information on child maintenance arrangements between parents in separated families, showing that in 2016/17 around 48% of those families had a child maintenance arrangement, whether voluntary or arranged through the Child Maintenance Service (‘CMS’). As for the other 52%, who knows?

Still on the subject of child maintenance, the DWP has also published statistics on cases processed under the current child maintenance scheme administered by the CMS, for the period August 2013 to December 2018. The ‘main stories’ revealed by the statistics were that: 671,300 children are covered by CMS arrangements, 432,500 through ‘Direct Pay’ arrangements (where the CMS calculates the amount of maintenance to be paid and the parents arrange the payments between themselves), and 238,800 through the ‘Collect & Pay Service’ (where the CMS collects the maintenance); and that an estimated £237.4 million child maintenance was due to be paid between October and December 2018, £45.8 million more than the same period in 2017. If you are so inclined, you can find the full statistics here.

And finally, you can’t keep a good man down: the former President of the Family Division Sir James Munby has been back in the news. Hearing applications by the Queen’s Proctor for the setting aside of divorce decrees in four different cases on the ground that the petitions had been presented before the expiration of the period of one year from the date of the marriage, Sir James took the opportunity to comment upon how well the regional divorce centres are working (or not, as the case may be). For the uninitiated, the eleven regional centres were established in 2015, taking over the work of dealing with divorce (but not matters ancillary to divorce, such as sorting out finances) from some 110 divorce county courts spread around England and Wales. When that happened, there were concerns expressed by many as to how the centres would deal with their huge workloads, and it seems that those concerns have been proved to be well founded. Sir James commented in the case (which you can read here) that: “It is, unhappily, notorious that some Regional Divorce Units have become bywords for delay and inefficiency, essentially because HM Courts and Tribunals Service has been unable or unwilling to furnish them with adequate numbers of staff and judges.” Ouch.

Have a good weekend.

The post Two weeks in family law: An anniversary, sobering statistics, and inefficient courts appeared first on Stowe Family Law.


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Author: John Bolch