Category: Family Law

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Not married and maintenance: what are you entitled to?

We have published a number of articles previously on the blog about the myths of cohabitation and the lack of legal rights for unmarried couples. (You can have a read here.)

One fact that is correct though is that there is some opportunity for financial provision for any children of the separating parents (although it does come with strict criteria).

To help explain, we invited James Scarborough from our St Alban’s office to join us on the blog to look at what financial provision, if any, is available for unmarried separating parents.

“I often find, when advising clients who are parents but not married, that they are unaware there is scope for receiving or paying maintenance for the children.

This is a complicated area of family law, but it is often to my client’s surprise when I explain there is legislation (Section 15 and schedule 1 of the Children Act 1989 if you need the details) that provides for the parent with day to day care of the child the potential to apply for:

Maintenance

Lump sum

Transfer or settlement of property

I have encountered confusion from my clients in relation to the first point on this list, as they rightly explain they thought that payments for the benefit of children are regulated by the Child Maintenance Service (CMS).

However, the court does have the power to consider a claim for maintenance in the following very specific circumstances:

The non-resident parent’s income is higher than the limit where the CMS deals with maintenance (currently £156k pa gross);

or

in respect of educational expenses;

or

for expenses connected with a child’s disability;

It is worth me reiterating that there is no automatic entitlement to additional maintenance through the courts, simply by meeting the above criteria. For example, if one parent earns £157k pa, it does not automatically mean that the other party should expect the court to award additional maintenance to that they would have to pay under the CMS.

In considering any claims for maintenance (if the above criteria are met), lump sums or transfer/settlement of property, the court will consider:

The income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future.

The financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;

The financial needs of the child;

The income, earning capacity (if any), property and other financial resources of the child;

Any physical or mental disability of the child;

The way the child was being, or was expected to be, educated.

It is important to remember that the sole intention of this legislation is to provide for any children. As a result, except in special circumstances, any order is only likely to provide until the youngest child is 18 or finishes secondary education.

Married or divorced parents can also make these applications although they are more likely to rely upon separate legislation. Therefore, I find that it is cohabiting / unmarried parents who benefit most from this advice.

Get in touch,

Our specialist family lawyers frequently advise unmarried couples who are separating to understand their rights. If you would like to speak to a member of client care team you can make an online enquiry here or call the number below.

You can contact James Scarborough here.

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Author: James Scarborough

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Violent father’s application to communicate with adult daughter refused

Sometimes one comes across cases that are quite different, or that have an element about them that is quite different, from most other cases one normally comes across. The recent High Court case P v O is one such case.

The remarkable feature of P v O was highlighted by Mr Justice Williams in the second paragraph of his judgment:

“This is a case which when it first entered my list and I looked at the case number (FD00P00001) I thought there must be some mistake because that case reference dates back to the year 2000, now some nineteen years ago. But, no, it was not. It related then to a girl called S, who was born on 18 April 1997 and so who is twenty-one now and will be twenty-two in April of this year. Litigation concerning her has been going on, on and off, in this country and in Australia for most of her life, I think, including her father being imprisoned in Australia for, I think, two charges of either making threats to kill or conspiracy to kill the mother.”

So we have a case which goes back nearly twenty years, and relates to a child who is now several years into her adulthood. What can there be left to argue about?

A clue to the answer lies in the last sentence of the above quote. In April 2015 the High Court made a non-molestation order which prohibited the father from communicating or making contact with the mother or S by letter, telephone, Skype, text message, e-mail, any means of electronic communication or through any social networking sites, including Facebook, save through the offices of the mother’s solicitors. Unusually, the order was not time limited, because of the highly exceptional circumstances of the case.

So to this judgment. In October last year the father applied to vary the terms of the order to allow him to communicate with S via the police force in Australia, with the intention of seeing whether S wished to communicate with or contact him.

The application was heard by Mr Justice Williams in the High Court. As he explained, the situation was further complicated by the fact that in May 2016 Bexley Magistrates’ Court made a ‘violent offender order’, which prevented the father or an agent acting on his behalf from contacting nine named individuals, including the mother and S. The violent offender order recorded that the father:

“is a qualifying offender because he has been convicted of the incitement to murder of the mother; and, whilst awaiting sentence, further conspired with others again to have her killed; and has acted in such a way that there is reasonable cause to believe it is necessary for the order to be made on the ground that the mother now lives in fear of her life and her family and friends have been subjected to threats; and she has now been placed under protective services to threats worldwide to protect her identity.”

Accordingly, as Mr Justice Williams pointed out to the father, an amendment to the non-molestation order would not help him, as he would still be bound by the violent offender order, which prevented him from having any contact at all with S. The father has apparently applied to have the violent offender order varied as well.

Unsurprisingly, both the mother and S opposed the father’s application, S making it clear that she wished to have nothing to do with her father at the present time. Mr Justice Williams accepted this.

Accordingly, Mr Justice Williams found that there was no basis upon which to vary the order. In any event, the order of course contained a clear mechanism by which the father could contact S, i.e. through the mother’s solicitors. The father’s application was therefore dismissed.

Now, there is nothing in the judgment to indicate that the father’s true motive for making the application was other than as he stated. However, in a case with such a serious history, it is not difficult to imagine that such an application would in reality be nothing more than another attempt to harass the daughter and/or the mother. In such circumstances I’m sure that the court would be very wary indeed about acceding to such an application, without the agreement of the person or persons that the order was designed to protect.

You can read the full judgment here.

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Author: John Bolch

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Father succeeds in appeal against findings after social worker found to be biased

As I have explained here recently, often in private law family proceedings relating to children the court is required to make findings regarding allegations that one parent makes against the other, and those findings can have a crucial bearing upon the outcome of the case. Obviously, therefore, a parent aggrieved at the court’s findings may wish to appeal against them. However, it can be very difficult for that parent to prove that the judge’s findings were wrong.

That, however, is what happened in the Court of Appeal case P-G (Children), and for rather worrying reasons. The case was heard in 2015, but the judgment has only recently been published on the Bailii website. The case also has something important to say about the usefulness of fact-finding hearings in these cases generally.

The case concerned cross-applications by both parents for orders that their two daughters, then aged 7 and 5, reside with them. The mother made various allegations against the father, which included sexually inappropriate conduct towards the mother; controlling behaviour such that the mother lost contact with her family and friends and which was also hostile and intimidating; verbal abuse; shouting and swearing at the mother, sometimes in front of children; throwing a “lump of cheese” at the mother, which hit a wall; swearing at and kicking the family dog; and swearing and shouting at the older child. The father did not deny all of the allegations, but argued that where incidents had taken place the mother was exaggerating, elaborating or taking the incident out of context.

A fact-finding hearing took place to determine the truth of the allegations. The judge found in favour of the mother. In doing so he took into account the contents of two reports from a social worker, which supported the mother’s allegations.

The father complained to the local authority that the social worker had been biased. The local authority upheld the complaint, finding that an injustice had been caused to the father for which financial compensation should be considered. The social worker had believed the mother, without checking or analysing the source material, or setting out the father’s contrary case or explanation.

The father appealed against the findings of fact, to the Court of Appeal. Giving the leading judgment Lord Justice Ryder found that the social worker’s reports were tainted evidence, which the judge had relied on when making his findings. There was a strong perception of unfairness, which meant that the findings had to be set aside. Accordingly, the father’s appeal was allowed.

However, Lord Justice Ryder had another observation to make. He said:

“It is not the case that all factual disputes between parents need to be resolved as a precondition to the issue of contact being determined by the Family Court. That simplistic formulation leads to unnecessary hearings and interminable delay for the children concerned. An acute scrutiny is necessary during case management of the disputes that the parties want to resolve. There may be an imperative of protection that needs to be considered or provided for a victim or a child, and Practice Directions 12B and 12J of the Family Procedure Rules 2010 are written with that imperative in mind. Nothing I say is intended to suggest otherwise. That said, there are many private law children cases where protection is not the critical issue. The findings of fact proposed will add little or nothing to the value judgment that the court has to undertake but will cause the child to lose the quality of a relationship with one of her parents that should exist.”

He went on:

“This is arguably one such case. The nature and extent of the findings of fact, even if made, would not, in my judgment, prevent direct contact between the children and their father”

Lord Justice McCombe agreed, saying:

“I have been concerned as to the likelihood of the fact-finding exercise conducted in this case providing any sensible information as to the desirability of contact between father and his children and/or the nature of that contact.”

And Lord Justice Elias also agreed:

“I too have found it difficult to understand why this expensive and time-consuming fact-finding exercise, raking over particular incidents in an acrimonious relationship between the parents, has any real bearing on the question of contact between the father and his children.”

Obviously, in any acrimonious parental separation allegations are likely to be made by one or both parties against the other. However, in many (most?) cases the allegations, even if true, are not of a nature that they should affect the outcome of the case. In other words, in such cases the court should ignore the animosity, and concentrate on the main issue: what is best for the welfare of the children.

You can find the full judgment here.

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Author: John Bolch

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Further detail on the divorce reform released

The government has now provided more details about its proposed reforms to the current divorce law in England and Wales.

At the moment, the only way to obtain a divorce is to prove that the marriage has broken down irretrievably and to do so by relying upon one or more reasons, or “facts.” These include the other person’s adultery or “unreasonable behaviour.” 60% of divorce petitions rely on one of these and blame the other party.

The three remaining reasons are two years separation and the other person’s consent or five year’s separation without consent and the barely used desertion.

Announcing the introduction of “no-fault” divorce, the government proposes to abolish all those reasons and replace them with just one ground, namely a statement from one, or both parties, that their marriage has broken down irretrievably.

It will be impossible to defend or resist a divorce in future.

There has been a considerable amount of research which suggests only too clearly the enormous damage which the current system of “blame” inflicts on families, the couple themselves as well as their children.

There has also been an enormous amount of pressure on successive governments to reform the divorce law in this country which has been in place for 50 years since the last time parliament was involved in 1969.

The proposals announced today represent radical social change, bring the law up-to-date and deserve widespread support both inside and outside the Houses of Parliament.

Similar reforms will be made in relation to the dissolution of civil partnerships.

There will still be a two-stage process which will have a minimum timeframe of six months. At the end of that period, the applicant for the divorce will need to affirm their decision to seek a divorce. The government explains that this will “provide a meaningful period of reflection and the opportunity to turn back.”

What is not known yet is, if and how that period might be extended. For example, will the divorce only be finalised once arrangements for any children have been made and financial matters resolved?

Our own internal research revealed last year that there was enormous support from practising family lawyers for reforms such as those announced today.

No timescale for legislation has been announced.

The hope must be that even in the present turbulent political climate that parliament will make sure it finds time to make sure that these proposals become law very soon.

GRAHAM COY
Tuesday, 9 April 2019

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Author: Graham Coy

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Husband not bound by terms of pre-nuptial agreement

In 2010 the Supreme Court held that, whilst pre-nuptial agreements are not binding in this country, the court should usually give effect to them, unless their terms are unfair. The effect of that ruling has been that many pre-nuptial agreements have since been upheld by our courts, and this has been reflected in the reported cases. However, the recent case Ipekçi v McConnell was an example of the court giving no weight to an agreement.

A look at this case must begin with the background of the parties.

The wife is the great-granddaughter of the founder of the Avon Products business empire. As Mr Justice Mostyn, who heard the case, explained, the vast amount of money generated by the business for the family means that, along with other relatives, the wife is the beneficiary of trusts in the USA with an overall value of at least $65 million. Now, as one might imagine, the trusts, and therefore the wife’s finances, were rather complicated. For the purpose of this post I will not go into those complications. Suffice to say that the wife is, by most measurements, comfortably well off.

The husband, in contrast, is the head concierge of the London Hilton Metropole hotel, earning about £35,000 gross. He has no net capital.

The parties met in New York in 2003, at which time the husband had no money beyond his earnings. The wife lived in London. They began cohabitation in January 2005. They agreed to marry, and a pre-nuptial agreement was suggested, and drafted by the wife’s lawyer. A lawyer was found to give the husband independent legal advice. Rather worryingly, this lawyer happened to be the solicitor who acted for the wife in her divorce from her first husband. The husband met the lawyer for the first time on the 3rd of November 2005, just three weeks before the marriage, which had been fixed to take place on the 26th of November.

The terms of the agreement were also slightly complicated. Again, I will not go into the details, but the effect of the agreement was that the husband would, in the circumstances that subsequently arose, not receive anything on divorce. Needless to say, the husband was advised that the agreement was slanted heavily in favour of the wife. Despite this, he signed it on the 11th of November.

The marriage eventually broke down, and the parties separated in November 2016. Divorce proceedings ensued, and the husband issued a financial remedies application. The application was heard by Mr Justice Mostyn in the High Court.

Mr Justice Mostyn had to decide, as a preliminary issue, what weight, if any, should be given to the pre-nuptial agreement. He had “no hesitation” in deciding that it would be wholly unfair to hold the husband to the agreement. His reasons for this included the following:

  1. The agreement specifically stated that it would be governed by New York law. However, there was a defect with the agreement under New York law, which meant that would carry little or no weight there.
  2. The husband could not be said to have had a full appreciation of the implications of the agreement, having had no legal advice at all about the impact of New York law. Further, Mr Justice Mostyn was unsurprisingly not satisfied that the solicitor who gave the advice was not compromised, by virtue of having acted previously for the wife in her first divorce. It was, he said, a clear situation of apparent bias.
  3. The agreement did not meet any needs of the husband.

Mr Justice Mostyn then went on to decide what the husband was entitled to. He awarded him a lump sum of £1,333,500, of which £375,000 was subject to a charge-back to the wife (or her estate), on the death of the husband.

The case is a reminder of just what the Supreme Court said in 2010: that the courts in this country are not bound by pre-nuptial agreements, and that if it is to be upheld any agreement must be freely entered into by each party, with a full appreciation of its implications, and be fair. And one of the elements of that fairness is that is that the agreement must address the needs of the parties.

You can read the full judgment here.

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Author: John Bolch

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Major divorce reform to be announced

As reported early this morning, Justice Secretary David Gauke has confirmed new legislation will be introduced which will scrap the ability of a partner to contest divorce and allow divorcing spouses to state that the marriage has broken down irretrievably without allocating blame.

Graham Coy, Partner at the Stowe Family Law London Chancery Lane office joins us to share his initial thoughts on this announcement this morning.

“50 years after the law was last changed, the Government is announcing today radical changes to the way in which couples can bring to an end their marriage.

Hopefully, this will also apply to civil partnerships.

The need to “blame” the other husband or wife will be abolished. 60% of all divorces are based upon blame at the moment.

Instead, one or both parties will be able to give one another and the court that their marriage has broken down irretrievably.

It will be impossible to resist or defend the divorce process.

The divorce will be finalised no earlier than 6 months later.

The details of the reform are not known as yet but this is a major step forward in making what is a very difficult period in the life of so many families  far less stressful.

The children involved will also benefit as a result of the decrease in anger, tension and acrimony between their parents.

A major and welcome social reform.”

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Author: Graham Coy

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President updates on family justice changes

Last Friday the President of the Family Division Sir Andrew McFarlane gave the ‘keynote address’ at the 2019 conference of Resolution, the association of family lawyers. (I tire of having to give that explanation of who Resolution are, particularly as they used to be more helpfully called the ‘Solicitors Family Law Association’, but the word ‘Resolution’ does not of course explain to the uninitiated who the organisation are. ‘Resolution’ was chosen as their name as it denotes that its members are devoted to trying to resolve family disputes amicably, although it could just as easily be taken in the entirely opposite sense of ‘resolute’, i.e. obstinately refusing to move from one’s negotiating position. Such are the hazards of nomenclature.)

Anyway, on to the speech.

The theme of the speech was the change presently occurring on all fronts in the family justice system. Changes referred to by the President included those caused by Brexit, changes in response to the increasing caseload in the family courts, changes consequent upon the court reform programme such as regional divorce centres and online divorce, and the introduction of specialist financial remedies courts. I see no point in repeating all that the President said here, and in any event much of what he said is not of course new, so I will mention just a couple of things that caught my eye.

The first thing was something quite small: the use of telephone hearings for (usually urgent) matters, where the other party is not notified. As the President pointed out, other courts have been doing this for some while, and he considered it sensible for them to become the norm in the family courts. This seems like an excellent idea.

The next thing relates to the establishment of a ‘database’ of financial remedy outcomes, which could provide practitioners (and presumably litigants in person) with guidance as to the ‘going rate’ in ‘ordinary’ (i.e. not big money) financial remedy cases, thus making it easier to advise on what the outcome of a case is likely to be The database would be created by a computerised process, whereby at the end of every single case, it will be provided with basic information as to the key financial components and facts, together with the outcome of the proceedings. Researchers could then “produce schedules or tables identifying the preponderant outcome in typical cases across a range of set variables.” Sounds like an interesting idea, although whether it would actually produce anything useful in practice, we will have to see.

The last thing I want to mention comes from what the President said about private law children cases (i.e. children cases not involving a local authority). He began by doubting the often-quoted figure (including by myself) that only one in ten couples have to apply to the court to sort out arrangements for their children, rather than sorting out those arrangements themselves. He believes that the figure is more like 40%. That seems rather high to me, based upon my experience practising as a family lawyer for about a quarter of a century – my memory was that most parents sorted things out themselves without needing a lawyer (remember this was back in the days before legal aid was abolished, and therefore lawyers were available to all), and most of the cases where lawyers were involved were sorted out without court proceedings.

Anyway, the argument of the President was that a large proportion of those cases that now go to court should not have to.

He said:

“…using the Family Court to resolve straightforward, non-abusive, relationship difficulties between parents who separate is unlikely to be an effective course to follow, costs a great deal of money and is not seen, by many of its users, to be working effectively.”

There has to be a better way, he said. This includes improving co-parenting between separated parents, although that is not a matter for the courts. What the courts can do, however, is to have “a much keener focus on a ‘solutions-based process’ engaging a ‘dispute resolution alliance’ of local services with court reserved only for those cases which absolutely have a justiciable problem.” It all sounds very good, but as all family lawyers will have witnessed, keeping parents who are determined to have their ‘day in court’ away from the court building can be easier said than done.

In his conclusion the President speaks of this cycle of change settling down “in a year or so”, after which “we will live with the resulting processes for some time to come thereafter.” I am not so sure. As I said here just recently, we have had virtually continual change in the family justice system for some years. Change these days is seemingly constant. In fact, it is a feature of the modern world that those in positions of power see it as their main function to institute change to resolve the problems around them. The thinking seems to be that change must always be a good thing. Of course that is not so: sometimes change can make no significant difference, sometimes it can make things worse, and sometimes it can introduce entirely new problems. There can actually be merit in leaving things the same, so that people are familiar with how they work. Whatever, I do not see things “settling down” any time soon, and possibly not any time at all. Change is with us, get used to it.

You can read the full speech here.

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Author: John Bolch

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Digital divorce could be as important as a physical divorce

If you are facing divorce, you probably know what is in store for you in the near future. One or both spouses will move out of the family home, children may move between parents and you will have to figure out what your financial life looks like during your separation. During this time of transition, you will also have to file paperwork and pursue a divorce order that allows you to have a strong and stable future. 

In the midst of all of this, it is easy to overlook a few things. However, one of the things you would be wise not to forget to do is a digital divorce as well. In today’s world, divorce involves much more than just a division of property, finances and time with the children. It also requires a deliberate extrication of intertwined digital lives and assets.

What you need to separate

Divorce is not easy, and it’s not easy to undo the life you and your spouse built together. Digitally and electronically speaking, there are several steps you would be wise to take to ensure that you do not face unnecessary complications and issues down the road. Some of these things include: 

  • One of the most prudent things you can do is to change your passwords and your access pins to your bank accounts, online profiles and more. This will help protect your private information and much more.
  • You will probably need to stop sharing a family plan for your cell phone. Maintaining shared accounts can lead to fights over payment and other things down the road.
  • During a time of separation and while your divorce is underway, you will want to think carefully about what you post on social media. There is nothing truly private posted online, and your spouse may try to use what you say against you in court later.
  • In some cases, it may be necessary to reset your computer and start fresh in order to reduce the chance your spouse could use that computer at some point to access your information or do something that could be harmful to you. 

You can take various steps to protect yourself physically, financially, emotionally and even digitally during divorce. As soon as possible, you would be wise to start taking steps to separate your online lives, and you may find it beneficial to speak with a Texas attorney about how you can protect your interests in other areas as well.


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

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Divorce reform must not get left behind

This morning I noted that the media had picked back up the calls for divorce reform.

Influenced I am sure by the announcement yesterday that Chair Margaret Heathcote was to outline her concerns in a speech at Resolution’s annual conference in Manchester today.

One of Ms Heathcote’s main concerns is the danger that reform will fall by the wayside because MPs are tied-up with debating Brexit. And I for one, agree with her completely.

Now, we all have differing views about Brexit but one very real consequences of the endless wrangles at Westminster is that many other important issues are just forgotten altogether.

One of those is divorce reform.

Eventually, last September, the Government gave in to pressure from many quarters and committed to introducing ‘no-fault’ divorce.

Judges, barrister, solicitors and countless others had been campaigning for years to see the abolition of ‘blame’ at the very start of the divorce process. As things stand, the overwhelming number of divorces are based upon the behaviour or the adultery of the other person.

This leads to more unhappiness, misery and acrimony for couples who are already going through one of the most stressful periods in their lives. Inevitably, this affects any children involved.

Today in Manchester, the Chair of Resolution, the body which represents the majority of specialist family solicitors, Margaret Heathcote, urged the Government to fulfil its commitment.

She said,

“If you’re separating, and you’re faced with having to make unnecessary and unhelpful accusations against your ex on the divorce petition, there is nothing more important than this reform in the law.”

She went on to add that

“otherwise, every day that passes sees thousands of couples at risk of needless acrimony and denied the right to a kinder divorce process.”

The role of Government and the purpose of the law is to protect its citizens and make their lives easier where it is possible to do so and not to inflict unnecessary harm and damage children’s lives, possibly forever.

Stowe Family Law is the largest specialist family law firm in the country and we are part of the campaign to see divorce law changed and will continue to press for this much needed and long-delayed reform.

Graham Coy, London Chancery Lane 

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Author: Graham Coy