Category: Family Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Author: Sarah Snow

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Mr Justice Mostyn explains the changing rationale behind spousal maintenance

Whilst you may not agree with everything that Mr Justice Mostyn says (and you will not be alone), it is always good to listen to him (or to read his words, as the case may be). The other day the Courts and Tribunals Judiciary website published the text of a speech given by him at the Devon and Somerset Law Society last October, and it does not disappoint.

The subject of the speech was spousal maintenance, and specifically: “Where did it come from, where is it now, and where is it going?” Mr Justice Mostyn answers these questions by tracing the history of spousal maintenance from 1857 (when secular divorce arrived) to the present day.

The pre-present day section of the speech is quite fascinating, but obviously the present day rationale behind spousal maintenance will be of more interest to readers of this blog. All I want to mention about the ‘old days’ is that, as Mr Justice Mostyn explains, the courts were then very much the ‘keepers of morals’ when it came to spousal maintenance, as demonstrated by a 1905 case in which the judge said that when considering whether to make a spousal maintenance order, and if so how much it should be for, “the Court should endeavour to promote virtue and morality and to discourage vice and immorality”. Thus, for example, an innocent wife would be granted maintenance, and a guilty wife (for example, because she had committed adultery) would not.

Thankfully, those days are now long behind us. Now, as Mr Justice Mostyn also explains, the most common rationale for imposing the obligation for one spouse to maintain the other into the future is to meet needs which the relationship has generated. For this reason, he says: “the factors of duration of marriage and the birth of children are so important. It is hard to see how a relationship has generated needs in the case of a short childless marriage, although this is not impossible.” The classic example of relationship-generated needs is where the wife gives up her career to bring up the family.

He goes on to address the topical point of why in our system, unlike others, spousal maintenance is not always for a limited period, and can last for the rest of the recipient’s life. The answer is that in some cases, such as where the wife has given up a lucrative career, the loss is irrecoverable. “For many women”, he says, “the marriage is the defining economic event of their whole lives and the decisions made in it may well reverberate for many years after its ending.”

Mr Justice Mostyn then goes on to set out his own summary of the relevant principles behind spousal maintenance, given by him in the 2014 case SS v NS (at paragraph 46). These principles, he says, seem to have withstood the test of time, and they should, I think, be compulsory reading for anyone with an interest in the subject.

But those principles do not go into detail regarding the assessment of the quantum of need. Mr Justice Mostyn points out that in three different recent cases the needs of the wife have been assessed at £25 million, £62 million, and the remarkable sum of £224 million. As he quite rightly says:

“Plainly “needs” does not mean needs. It is a term of art. Obviously, no-one actually needs £25m, or £62m, or £224m for accommodation and sustenance. The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise.”

OK, like Mr Justice Mostyn I will end by returning to that morality point. Incredibly, as he explains, that moral outlook in relation to family law matters still exists in some quarters, despite being thoroughly dealt with by Sir James Munby, former President of the Family Division, who said:

“Judges are no longer custos morum [‘keepers of morals’] of the people, and if they are they have to take the people’s customs as they find them, not as they or others might wish them to be. Once upon a time, as we have seen, the perceived function of the judges was to promote virtue and discourage vice and immorality. I doubt one would now hear that from the judicial Bench. Today, surely, the judicial task is to assess matters by the standards of reasonable men and, of course, women.”

If you want to read the full speech (and I recommend that you do), you can find a link to it here.

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Author: John Bolch

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Frankel and Hoppy are back to court over custody issues

It is well known that divorce can be messy. And even when divorcing spouse are able to navigate through hostilities and high conflict, this does not mean this is the last time the couple will be faced with divorce issues. Even after a divorce decree is reached, family law issues could open the door back open. Whether it is a year or a decade following this agreement, if a parent believes changes are necessary, divorced parents may have to return to court to resolve any new or outstanding issues. While this can be complex and emotional, it is often in the best interests of the child to reach a resolution if new issues have evolved.

According to recent reports, the Real Housewives of New York City, Bethenny Frankel and her ex, Jason Hoppy, are going back to court. The two are going to trial over custody of their 8-year-old daughter. The two settled their divorce back in July of 2016; however, Frankel seeks primary custody and full decision-making power of their daughter. Hoppy seeks to keep the arrangement as is, which is joint custody.

It is Frankel’s hope, according to statements, to obtain sole custody and sole decision-making in order to prevent further harm to their daughter. Hoppy was accused of various things, such as physically pulling their daughter away from Frankel, leaving out negative press about Frankel, locked up their dog in a storage closet for hours, sent cruel texts and emails to Frankel, sending a series of 500 emails to Frankel in one day, making negative comments about Frankel to their daughter and other similar acts.

Hoppy is in disagreement with these allegations, and this action seems suspect to him. He claims she is seeking publicity, especially after she filed for full custody following his arrest for her stalking allegations. Hoppy seeks to keep things civil and maintain the co-parenting of their daughter, as it has been working well. This matter still remains at issue.

Although it is not an easy step to take, going back to court to sort through family law matters can be necessary and beneficial. It is not only the parents that are looking out for the best interests of the child, but the court is also conscious of this. It is important to understand how to initiate or work through such an action and how best to protect your rights and interests in the matter.


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

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In re Marriage of Wong

(California Court of Appeal) – Held that a party had appealed nonappealable orders. Dismissed the appeal, in relevant part, in a dispute between the first and second wives of a deceased man regarding ownership of certain assets.


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Help, my ex has changed the locks. What can I do?

You have separated but are still living together when you arrive home and your key no longer fits… Your ex has changed the locks! So, what can you do?

Sarah Jane Lenihan from our London Victoria office joins us on the blog with advice on what you can do if you find yourself locked out.

The first step is to take legal advice to find out what your rights are however if you are just home from a long day at work or have been at the gym to avoid going home this may not be possible.

Below, I have provided a quick overview of the legal position and some practical advice to help you in this emergency.

Keep calm

The most important piece of advice is to keep calm. Easy for me to say, I hear you shout but getting angry/upset is only going to make the situation worse. If you can have a calm conversation and reach an agreement with your ex this is often the best solution.

Perhaps there is someone close to you both that you could speak to, to help mediate to find a temporary solution.

Is there a court order in place?

Have you been served with a court order preventing you from returning? If you have I advise asking a friend/family member or finding a B&B/hotel to stay the night so that you can obtain legal advice the following day.

If there is a court order instructing that you are forbidden from entering the property do not do this as you could get arrested. This applies even if you do not agree with what has been written about you in any court application or statement. If you have been served with such an order without any prior notice, then there will be a date for you to return to court to set out your position. You may have been given the opportunity to file a statement in advance and to apply to discharge the order before the next hearing, so take legal advice at your first opportunity. Ignoring the paperwork or court hearing may lead to an unfavourable order being made in your absence.

House in joint names

If there is no order in place, whether you can enter the property will depend on if you are a legal owner of the property i.e. the property is in your name/the joint names of you and your ex or the tenancy is in your name/both of your names.
If you are a legal owner or your name is on the tenancy you have the right to enter and a key should be provided. Legally you can use reasonable force to enter the property or obtain a locksmith of your own to assist you in entering the property.

However, be warned this may lead to a telephone call from your ex to the police. If you are unable to reach an agreement with your ex, I would advise contacting your local police station to see if they can assist you to avoid any disturbance of peace especially if this is out of business hours. Be wary that your ex may exaggerate or simply lie about what has been happening to get the police to intervene so behaving in an angry fashion will not help your cause.

House in a sole name

If the property is owned or rented in the sole name of your ex, then you may still have the right to occupy/enter the property despite the separation. However, this also means that if the property is in your name it may mean that you cannot exclude the person without their name on the property from entering.

If, however, the person who is not named as legal owner or tenant leaves the property you may be within your rights to then change the locks and they may need permission from you or the court to return.
As you can see there is no one answer fits all and it is important that you take professional legal advice whether you are planning to change the locks or find yourself locked out especially when children or a vulnerable person are involved. You could be heavily criticised, and it may have a negative impact on the overall outcome of your case.

Starting a separation in an aggressive manner can lead to protracted and costly proceedings that could have been avoided if your case was carefully considered from the start.
If you find yourself locked out or wish to change the locks, please do contact us for legal advice before you make any rash decisions at the details below.

 

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Author: Sarah Jane Lenihan

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Stowe guests: The things we don’t say

In this instalment of Stowe guests, we are joined by Natalie from Thrive & Flourish, a training and development company that helps people to transform the way they are perceived by others and give them new-found confidence in how they communicate.

Today, she joins us on the blog to look at how the way we communicate, both direct and indirect, can affect the relationships in our life, especially our partner.

When it comes to communicating it is often the things we don’t say that have the most impact. Our movements, expressions and the sound of our voice can sometimes put across a meaning that is entirely different from what was intended.
It has been suggested that body language may account for up to 70% of all communication and there is plenty written about how to read someones but how often do we reflect on our own body language and what it says to people.

Take a moment to think about how you speak, how you move, your facial expressions. What is that you are really communicating? How are you actually perceived? What vibe do you give off? Have you developed habitual patterns in your own communication?

Sitting slouched in a chair, not making eye contact when listening to others, speaking so fast it feels like, to others, that you want to get the conversation over with, fidgeting with your fingers, interrupting people as they speak, are all seen as negative communication techniques but for some people they may be just a habit. However, habits can be broken.

Good communication is the foundation of a strong and healthy relationship yet it is often the simplest bad habits that get couples into trouble. Problems escalate when people repeat their mistakes again and again.  

Three of the most common communication mistakes in a relationship I have encountered are:

Shouting at your partner – this may feel good in the short-term but can very easily form into a habit and become the only way you communicate strong emotions

Speaking before thinking – we are all guilty of saying things as a reaction without thinking it through. Stop, take your time and think before you speak.

Negative non-verbal communication – you may not have said anything negative but your expressions, gestures and body language say something very different.

So when you have a moment think about your own habits: What vocal patterns do you have? How do you sit or stand? Do you talk over people?

And think about how you communicate with your partner. Can you spot any negative habits? Why not honestly rate how you communicate? Without fixing communication issues, your relationship will always struggle.

Take time to think about the above and you might be surprised at the impact of what you don’t say.

Get in touch
At Thrive & Flourish we can help. We look at practical ways to enhance your understanding of your voice and physicality and make simple yet effective changes to transform how you communicate. Unlike traditional training, our programmes place emphasis on self-awareness, discovery and an understanding of how you are perceived by others. You can visit our website here. 

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Author: Stowe Family Law

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Mother wins appeal in ‘return to different country’ case

I don’t recall previously writing again about a case as soon as this one. In late January I wrote here about the High Court case S v D, in which a mother was, unusually, ordered to return her child to a different country from where he was removed. The mother’s appeal against that order has already been heard, and allowed.

For details of the case I refer to my previous post. However, I shall very briefly recap, and mention a couple of things in more detail, as they were particularly relevant to the appeal.

The case concerned a four year old boy whose parents were both Hungarian nationals. In early 2017 the family moved to Germany. The marriage broke down and the parents separated in March 2018. Shortly after that the mother brought the child to England, where the mother’s sister lives. The father then returned to Hungary, and applied under the Hague Convention for the child to be ‘returned’ to Hungary. As explained in my previous post, that application was allowed by Mr Justice Cobb.

The two matters that I wanted to mention in more detail were as follows.

Firstly, whilst Mr Justice Cobb was satisfied that the father had displayed violence towards the mother, there was a particular incident which the Court of Appeal clearly thought was of special importance. As Lord Justice Moylan explained, the father travelled to England in early April 2018. The mother told the father that she wanted to end their relationship and apparently in response to this news the father made an attempt on his own life. He was admitted to hospital, where the mother visited him with the child. During that visit, as Cobb J described in his judgment:

“…the father seriously assaulted the mother on the ward; he attempted to strangle her. The mother had been holding [the child] at the time of the assault and dropped him to the floor. Both the mother and [the child] were medically checked and were found not to have sustained any serious or long-lasting injuries, but both were plainly shaken and understandably distressed by the events.”

The father subsequently pleaded guilty to assaulting the mother and was given a suspended sentence of six months. A restraining order was also made prohibiting the father from contacting the mother.

Secondly, the father gave various undertakings to the court to satisfy Cobb J that, as the mother alleged, there would have been a grave risk that the return of the child would expose him to physical or psychological harm. I’ll set the undertakings out in a little more detail, as explained by Moylan LJ:

“The undertakings given by the father included: (a) not … to molest the mother or [the child]; (b) not to remove [the child] from the mother’s care and control and that, pending a decision of the Hungarian court, [the child] would remain in the mother’s care; (c) to submit to supervised contact with [the child] until welfare issues could be considered by the Hungarian court; (d) to provide and pay for an identified property for the mother and [the child’s] sole occupation until 1st March 2019 and an equivalent property thereafter pending the decision of the Hungarian court; (e) to pay the mother maintenance for herself and [the child] at a stipulated rate until the Hungarian court could be seised of the issue of financial support; (f) not to come within a specified distance of the property occupied by the mother and [the child]; (g) to submit to the jurisdiction of the Hungarian court and to “co-operate to bring this matter before the Hungarian court for the purposes of determining” care, contact and welfare issues.”

OK, having got those points out of the way, why did the Court of Appeal allow the mother’s appeal?

Well, it was essentially for two reasons, which I will attempt to explain in language that a lay person can understand.

The first reason relates to the decision to order the return to a different country. This actually amounted to a ‘relocation’ decision, rather than just a ‘summary return’ decision under the Convention. Summary return decisions are intended to be quick, simply returning the child to its ‘home’ country, where decisions as to the child’s welfare should be made. The court dealing with a Convention application does not therefore make a detailed investigation as to what is best for the child’s welfare. However, such an investigation is necessary on a relocation application. Cobb J had not made such an investigation.

The second reason was that, as Moylan LJ explained, Cobb J’s “reasoning as to the efficacy of the protective undertakings provided in this case was insufficient to support his conclusion that they were “effective””. In particular, Cobb J had not addressed the issue of whether the undertakings were enforceable in Hungary. In fact, it appeared that jurisdiction to deal with the case appeared to lay with the German courts, rather than the Hungarian courts.

Accordingly, the mother’s appeal was allowed, and the father’s application for the return of the child was dismissed.

You can read the full judgment here.

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Author: John Bolch

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Signs that the other parent may be alienating you

Nothing is more important to you than protecting the relationship you have with your child. Even after a divorce, you desire to have a strong relationship with him or her and maintain your role as an active, involved and loving parent. However, the other parent may still be harboring hard feelings toward you, and the result can be parental alienation. 

Parental alienation occurs when one parent does his or her best to negatively influence the other parent’s relationship with the children. Often, a contentious or difficult divorce gives rise to strong emotions and feelings of anger or jealously that can lead to this behavior. If you are experiencing this, you have the right to actively work to put a stop to it and seek necessary changes to your current arrangement.

Don’t miss these warning signs

There are various signs that could indicate you may have a problem with parental alienation on your hands. The other parent may be hostile, refuse to communicate with you or do other things that raise concerns. You may notice your child begins to act differently as well. Specific warning signs of parental alienation include the following:

  • Your child asks that you not attend his or her extracurricular activities.
  • Your child begins acting defiantly toward you and disrespectful when he or she is with you.
  • The other parent begins to exclude you from knowing about educational issues and school-related things.

These are just a few of the signs that the other parent could be doing damage to the relationship you have with your kids. This can be through behaviors such as speaking negatively about you to your children and other indirect means. Direct alienation attempts may include causing problems at drop-off or pick-up or keeping the child from talking to you. 

Damage caused by parental alienation

Parental alienation can cause significant damage to the relationship you have with your child. You may find it beneficial to seek legal guidance in order to understand the specific options you have. It may be appropriate to move forward with an attempt to secure court-ordered counsel, make-up parenting time or even a modification to your current child custody and visitation plan. 

Children benefit when allowed to maintain strong relationships and regular access to both parents after a divorce. If you believe that this is under threat, you do not have to fight for your rights as a parent alone.


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

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A week in family law: Domestic abuse, court modernisation, and more

As I explained here, the Ministry of Justice (‘MoJ’) has announced that it has awarded a grant of just under £900,000 to two organisations to provide in-court support to domestic abuse victims: the Personal Support Unit (‘PSU’) and the Citizens Advice Witness Service. As the MoJ explain, the PSU has been supporting litigants in person in family courts since 2001, and Citizens Advice has been supporting witnesses in criminal court proceedings since 2015. Both have “extensive front-line experience of helping victims and witnesses navigate court processes and feel safe at court.” We are told that Citizens Advice will be using the funding to extend their current Witness Service to selected family courts to provide information and practical and emotional support to victims before, during and after the day of the hearing, and that the PSU will be using the funding to invest in further training of their staff and volunteers and to share learnings on best practice with a range of family justice stakeholders. The funding runs from January 2019 through to 31 March 2020, and will allow Citizens Advice to provide these services in up to 12 family courts across England and the PSU in 24 courts across England and Wales.

An application by James Bulger’s father and uncle to vary the anonymity injunction in relation to the person formally known as Jon Venables has been refused by the High Court. Venables and Robert Thompson, who were both 10 at the time, killed James in 1993, and were subsequently convicted of his murder. The application was made after Venables was jailed in 2017 for possessing child abuse images. It sought the removal of certain categories of information that are subject to the injunction, including any names used by Venables, and information relating to his whereabouts and activities, prior to his being jailed. James’ father and uncle claimed, amongst other things, that the safety of the public dictated that people have a right to know that an individual such as Venables, who presents a risk to safety, has been living in a particular locality. However, President of the Family Division Sir Andrew McFarlane refused to change the terms of the injunction, which he said was designed to protect the “uniquely notorious” Venables from “being put to death”. He said: “There is a strong possibility, if not a probability, that if his identity were known he would be pursued resulting in grave and possibly fatal consequences.” You can read the President’s full judgment here.

The Home Office has published a ‘position statement’ on male victims of crimes considered in its ending violence against women and girls (‘VAWG’) strategy. The statement sets out twelve commitments to assist victims and survivors to receive support, encourage more people to come forward and seek help, and bring perpetrators to justice. The measures include giving £500,000 to specialist organisations that support male victims and survivors of domestic abuse, and awarding £500,000 to specialist LGBT domestic abuse organisations to improve inter-agency support for LGBT victims and survivors; raise awareness within LGBT communities to increase reporting; and improve monitoring and recording practices. Victoria Atkins, Parliamentary Under Secretary of State for Crime, Safeguarding and Vulnerability, said: “Men can, and do, suffer from crimes such as domestic and sexual abuse. It is a horrendous experience that often goes unrecognised and it is heart-breaking that some men feel they cannot report their experiences because of societal views around masculinity. As a government we are determined to bring these horrific crimes to light and support victims and survivors, regardless of gender.” You can read the position statement here.

And finally, in a piece of completely unsurprising news HM Courts and Tribunals Service (‘HMCTS’) has announced that it is extending its court modernisation programme by a year. The programme will not now be completed until 2023. The programme has been beset by difficulties and criticisms, and has already been extended once before, from four to six years. Last July the House of Commons Public Accounts Committee published a damning report on the programme. The Chair of the Committee, Meg Hillier MP, commented: “Government has cut corners in its rush to push through these reforms. The timetable was unrealistic, consultation has been inadequate and, even now, HMCTS has not clearly explained what the changes will mean in practice.” Sighs…

Have a good weekend.

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Author: John Bolch

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International Women’s Day: The rise of women in law

In honour of International Women’s Day, on the blog we look at the role of women in law and how the industry is changing to meet the needs of the modern lawyer, male or female.

Statistics released in June last year revealed that for the first time, the number of working solicitors in England and Wales has exceeded that of men – now 50.1% up from 43.4% in 2007. *

So, is the age of the male-dominated law industry over?

When Rachel Roberts, Managing Partner of the Stowe Family Law office in Leeds graduated she began her career with a strong, female mentor so believed that “anything seemed possible”. In fact, Rachel did not even consider her gender to “have an impact until I had children.”

Having children and finding balance is a struggle many women in law face and is reflected in the statistics when we look at seniority in the industry with women making up just 33% of partners in the UK (up from 31% in 2014). **

Times are changing 

But there are signs of change. A number of firms have signed up to The Law Society’s diversity and inclusion charter and the profession is becoming more flexible and fairer.

It’s a change that Stowe agrees with as we are committed to moving away from a traditional model to a model of flexibility and empowerment to help reduce pressure and strain.

“I am lucky to work for a firm that prioritises the well-being of its staff and I work flexible hours so that I can still do the school run 3 days a week and attend school events,” says Rachel. Currently, over 50% of the leadership team and Managing Partners work flexibly.

But it is not just about Managing Partners, “I am a great believer in trusting your team to manage their own diaries, workloads and work from home to allow them to meet their family commitments” she adds.

“For me, it is about putting boundaries in place, so I will work sometimes at home in the evening, but my weekends are precious, and my work phone is switched off or out of sight.”

Glass ceiling?

In 2017, Lady Justice Heather Hallett spoke of her hopes that there was no glass ceiling and that the law had changed considerably for the better for women. A sentiment that is reflected in the fact that 66% of all partners at Stowe and 70% of lawyers are female.

“Family law tends to attract more women, in fact, the team in Leeds is all-female and it’s really important that we find ways to work around family commitments so that we retain our talent,” continues Rachel.

“I have not encountered any obstacles to progressing up the career ladder because I am a woman, but I work at Stowe and we have a large number of women in senior roles. I am not sure how much flexibility there is in larger law firms.”

Her advice to women considering entering law now is simple “There is no limit to what you can achieve. The culture is changing, although in big firms it has a long way to go. So, get involved with organisations that care about retaining women in practice, and focus on well-being.”

“However, the whole sector now needs to change – men equally need to be able to have a healthy work-life balance and spend quality time with their friends and family.”

Rachel is Managing Partner of the Stowe Family Law Leeds office. She is also an ambassador for Women in the Law, a non-profit women’s networking organisation designed to encourage, inspire and support the next generation of lawyers and women in business.

*Law Society Annual Statistics Report 

**Solicitors Regulation Authority

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Author: Rachel Roberts