Tulsa Family Lawyer and Mediator
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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.
The post Surviving Mother’s Day after divorce or separation appeared first on Stowe Family Law.
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Author: Stowe Family Law
You probably won’t thank me for mentioning it, but today was of course supposed to be ‘Brexit’ Day, when the UK was to leave the European Union. Some were expecting to celebrate, some to commiserate, and some no doubt just to breathe a huge sigh of relief. Alas, it was not to be. I shall therefore try to assuage your disappointment with a little family law news.
And I do mean ‘a little’. The news this week has been as scarce as an honest politician in Westminster. This is what I found:
Firstly, that effective co-parenting could be the answer to keeping children out of the courts. I can’t honestly say that this is the most profound insight (after all, if parents can agree matters between themselves, then there should be no need to go to court), but perhaps it had to be said. It was said by Cafcass, at a conference held by them and the Association of Family and Conciliation Courts. Cafcass suggested that agencies from across the sector need to place a greater emphasis on co-parenting and find ways to effectively support parents so that they can prioritise the interests of their child, despite the stress they may be suffering during and after separation. Cafcass also suggested that a public health approach to the problem of ‘toxic parenting’ would help to prevent cases from reaching crisis point, with health and social care professionals working together in a more integrated way, to refer families to” tailored evidence-based support”, in order to resolve difficulties at an earlier stage. Sounds like an interesting idea, but whether it will make much difference, I’m not so sure.
Secondly, the Stalking Protection Act 2019, which makes provision for protecting persons from risks associated with stalking, has come into force. The Act creates a new ‘stalking protection order’ (‘SPO’), which is available on application from the police to a magistrates’ court. An SPO enables the imposition of both prohibitions and requirements on the perpetrator. Any breach of the terms of the SPO would result in a criminal offence. The order is designed for use particularly in cases where existing interventions are not always applicable, namely when the stalking occurs outside of a domestic abuse context, or where the perpetrator is not a current or former intimate partner of the victim (so called ‘stranger stalking’); or the criminal threshold has not, or has not yet, been met (such as while a criminal case is being built), or the victim does not support a prosecution. Let us hope that the Act helps to reduce the scourge of stalking.
And lastly, as I reported here, Sir James Munby, the former President of the Family Division, has severely criticised the government over legal aid restrictions, which left a divorced couple who were labelled as bigamists through no fault of their own having to rely upon free help from lawyers. As I explained in my post, the husband had issued divorce proceedings on the basis that he and the wife had been separated for two years and the wife consented to the divorce, despite the fact that the parties had not been married for two years when the divorce was issued, and therefore had not been separated for two years. The court failed to spot the error, and the divorce went through. Both the husband and the wife subsequently remarried. The error then came to light, and the Queen’s Proctor applied to the court to have the divorce set aside as null and void, which would have meant that the parties were still married to one another, and had therefore committed bigamy. However, Sir James Munby ruled that the marriage was not void. I’m not sure that I agree with his decision, but I certainly do agree with what he said about the legal aid position: “What I was faced with here was the profoundly disturbing fact that [the wife] does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created to the goodwill, the charity, of the legal profession.”
Have a good, Brexit-free, weekend.
The post A week in family law – Non-Brexit Edition appeared first on Stowe Family Law.
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Author: John Bolch
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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:
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:
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.
The post Can you email divorce papers? appeared first on Stowe Family Law.
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Author: Maria Coster
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.
The post The cost of ‘initial skirmishes’ appeared first on Stowe Family Law.
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Author: John Bolch
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One of the very worst things a parent can do is to try to prevent the other parent from having a relationship with their child by falsely manufacturing allegations against that parent. Sadly, this is a scenario that happens all too frequently, as any family lawyer will testify.
The recent case Re ABCDEF (Fact Finding: Honour Based Violence) is a clear example, which tragically led to a child having no contact with his father for more than half of his life. Thankfully, the allegations made by the mother in the case have been proved to be false, and steps can now be taken to try to repair the damage caused to the child’s life.
The facts of the case, as I understand them, were that the father was a UK citizen and the mother was Pakistani. They married in Pakistan in April 2011, and the father returned to this country the next month. A year later the mother joined him in England. In August 2013 their son, ‘D’, was born.
The family went on holiday in Pakistan in February 2015. They returned to this country in April 2015, by which time the mother was expecting another child. The mother and father attended hospital in August, for the mother to have her first scan. It became clear from that scan and the dates of expected delivery, and therefore the date of conception, that the father knew he could not be the biological father of the child (the mother had had sexual intercourse with another man whilst in Pakistan).
After this, the mother remained living with the father in the family home for two months, before she left without telling the father, taking D with her. The father has had no contact with D since. The mother initially stayed with a friend, but had to leave after three weeks. She then contacted the police and made allegations of domestic abuse against the father, as a result of which she was placed in a refuge. She gave birth to her second child in the following month. She named her husband as the father, but subsequent DNA testing confirmed that he was not the father.
In February 2016 the father issued an application to spend time with his son. The mother responded to the application by making various allegations of honour-based violence against the father, including that her marriage to the father was a forced marriage, that she was treated like a prisoner in the family home, that the father and his family threatened to have her deported to Pakistan, and that the father and his family made threats to kill her.
The matter was eventually listed for a fact-finding hearing before Mr Justice Keehan. It did not go well for the mother. Mr Justice Keehan found her to be “a most unsatisfactory witness”, and found that she “lied serially”, including to the police and the court.
“In the course of her evidence,” he said, “it became abundantly clear that there was no truth whatsoever in her allegations.” It had not been a forced marriage, she was not a prisoner in her home, and any threats that had been made against her did not come from the father (her brother may have made ‘honour-based’ threats to kill her). And as for an allegation that the father gave her the ‘cold-shoulder’ and that he was not warm towards her, that was entirely understandable in the circumstances. He said:
“In the circumstances that I have described, I am entirely satisfied that the mother made a false case and false allegations against the father. There is no truth whatsoever in any of the allegations that the mother has made. The father does not pose any adverse risk of harm to the mother: still less is she at risk of honour-based violence from him. His approach to her actions has been measured. It follows that, in my judgment, there is absolutely no reason why the father and [D] should not, as soon as ever possible, have the opportunity to resume their relationship. It is, in my judgment, appalling that this little boy and this father have not seen each other for some three and a half years solely because of the malicious conduct, as I find it to be, of the mother.”
And he concluded in a similar vein:
“All the allegations made against the father by the mother are dismissed. None of them are true. This mother has wrongly and maliciously sought to exclude the father from Child D’s life. There is no reason why the child and the father should not now have the opportunity to re-establish their warm and loving relationship and that the father has and plays an important and full role in Child D’s life which will be to the inestimable benefit of Child D. It is to be regretted deeply that the mother’s actions have resulted in Child D and the father not having any contact whatsoever for three and a half years”
Obviously, it is now the job of the court to see that the father/child relationship is re-established as quickly as possible.
You can read the full judgment here.
The post Mother found to have maliciously fabricated allegations against father appeared first on Stowe Family Law.
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Author: John Bolch
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.
The post Divorce tips: Managing financial disclosure in divorce appeared first on Stowe Family Law.
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Author: Mark Chapman
“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.
The post Sir James Munby finds that irregularity in divorce did not make it invalid appeared first on Stowe Family Law.
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Author: John Bolch