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A week in family law: Online divorces, support for families, and more

The government has reported that 455 people made an online divorce application in the period between Christmas Eve and New Year’s Day, with 13 applying on Christmas Day itself. The figures were picked up by the national media as part of its ‘Divorce Day’ narrative, suggesting that more people issue divorce proceedings at this time of year than at any other time. However, the government’s agenda was actually to sing the praises of its online divorce service, which it says has attracted more than 23,000 applications since it was launched last April. I agree that figure suggests the service has been a success, but the figure for the Christmas week was nothing special, and does not indicate that we are presently witnessing an epidemic of people seeking a divorce, as some sections of the media would have you believe.

Justin Tomlinson, the Minister for Family Support, Housing and Child Maintenance, has announced a £2.7 million fund to increase support for disadvantaged families at risk of parental conflict. As a press release from the Department for Work and Pensions and Mr Tomlinson said: “Parental conflict can range from a lack of warmth and emotional distance, right through to verbal abuse. If children are exposed to this sort of distress over longer periods of time, their emotional and social development can be significantly affected. It may stop children from doing as well at school or even impact their career chances in later life. Children most at risk are those with parents who are out of work, on low incomes, or struggling with physical and mental health conditions.” The fund will be made up of 2 separate strands: £1.1 million will be for projects to support families at a greater risk of parental conflict, and £1.6 million for digital support to help parents find help online. Mr Tomlinson said: “Conflict between parents can have a devastating and long-lasting impact on children, and it’s often caused by external stresses. We want families experiencing problems to have easier access to help. This innovative fund will develop solutions for parents to repair their relationships, resolve any conflict and provide a safer environment for their children to grow up.” Let us hope it is successful.

It has been reported that the rise in the number of children taken into care has pushed 88% of councils over budget in the last financial year. Analysis by the Guardian newspaper and the Local Government Association (‘LGA’) found that 133 out of 152 councils responsible for children’s services overspent in 2017-18. Local authorities went over budget on children’s social care by an estimated £807 million, by far the highest area of overspending in council budgets. As the Guardian explained:

“The number of children being taken into care stands at a 10-year high. Government data published in November found that there were 75,420 looked-after children in England at the end of March, up 4% on the previous year. The number has increased every year since 2008, when the total was about 60,000.”

So the overspend is hardly surprising. There has apparently been a rise in funding for children’s services over the last ten years, but obviously it has not been enough. Councillor Anntoinette Bramble, chair of the LGA’s Children and Young People Board, is quoted as saying that the figures should act as a wake-up call to “the country-wide crisis we are facing in funding services to protect vulnerable children and young people”, and that: “The fact that the overwhelming majority of councils are now being forced to spend more than they had planned to on children’s social care highlights the urgent need for the government to provide new and long-term significant funding for children’s services.” Indeed.

And finally, in a piece of news that has got the media in a frenzy, and has no doubt attracted the attention of divorce lawyers around the world, Amazon founder Jeff Bezos, reportedly the world’s richest person, has announced that he and his wife, MacKenzie, are set to divorce, after a 25-year marriage. Last year Mr Bezos came top of the annual list of the world’s billionaires compiled and by the American business magazine Forbes. He also became the first ‘centibillionaire’ (i.e. having a net worth in excess of $100 billion) included in the list. Of course, as Phoebe Turner, Managing Partner at Stowe’s London Victoria office suggested, his net worth may be somewhat lower after the divorce…

Have a good weekend.

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Author: John Bolch

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Father liable for cost of child conceived without his permission

Modern technology can throw up all sorts of new conundrums for the law to grapple with. IVF treatment, for example, has raised the possibility of a child being conceived without the permission of either one of its natural parents. We have seen cases of this before, such as where a widow has sought to use her dead husband’s frozen sperm to conceive a child, or even where a woman has wanted to use her late daughter’s frozen eggs to give birth to her own grandchild.

But what if the child is conceived as a result of a deception? What if a mother conceived a child via IVF after deceiving the IVF clinic into believing that the father consented, when she knew he did not? Would the father then be liable for the costs of the child’s upbringing?

This was the situation in the recent Court of Appeal case ARB v IVF Hammersmith & Another.

The facts of the case were as follows. In 2008 the parents, who were in a relationship, attended an IVF clinic for the purpose of investigating and subsequently undergoing fertility treatment. As part of that treatment a number of embryos were created using the mother’s eggs and the father’s sperm. One of those embryos was implanted into the mother, and she subsequently gave birth to a healthy boy, in the autumn of 2008. Five other embryos were frozen, with the parents’ consent, to await the possibility that they would decide to undergo further treatment.

However, following the birth of the son the parents’ relationship deteriorated, and they separated in July 2010.

Despite this, the mother attended the clinic again in 2010, with a view to using one of the frozen embryos to have another child. In the course of this process a consent form was required to be signed by both parents, confirming that they consented to the procedure. The form was completed by the mother in October 2010. However, the father did not consent – his signature on the form had been forged by the mother.

The procedure went ahead and the mother gave birth to another child, a daughter, in 2011. Family court proceedings took place in relation to the children, and an order was made “confirming parental responsibility and shared residence in respect of both children.”

The father issued proceedings against the clinic for breach of contract, seeking damages for the cost of the daughter’s upbringing. As neither breach of contract nor the law of tort, which was also referred to in the case, is a family law matter, I will not go into the details. Suffice to say that the High Court found that the clinic had committed a breach of contract by thawing and implanting the embryo. However, the judge held that the father could not recover damages for the cost of the daughter’s upbringing, for reasons of legal policy.

The father appealed, to the Court of Appeal.

The primary question for the Court of Appeal to answer was whether the legal policy objection to the father recovering damages for the cost of the child’s upbringing applied. The reasoning behind the policy is essentially twofold: firstly, that it is inherently impossible to quantify how much it costs to bring up a child, and secondly that it is morally unacceptable to regard a child as a financial liability.

Giving the leading judgment of the Court of Appeal, Lady Justice Nicola Davies DBE found that the legal policy did apply. Again, I will not go into the legal details, but those two essential reasons behind the policy were applicable here: that it was not possible to calculate the father’s loss for breach of contract, and that it was morally unacceptable to regard a child as a financial liability. In any event, as Lady Davies said, the father had accepted his share of responsibility for his daughter’s upbringing, and wished to treat her in the same way as his other children.

Having found that the policy did apply, Lady Davies dismissed the appeal. Lord Justice David Richards and Lady Justice King DBE gave concurring judgments.

If you wish you can read the full report of the case here.

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Author: John Bolch

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The world’s richest man to divorce

So, the media went into a frenzy yesterday as the richest man in the world announced he was getting a divorced on Twitter.

Jeff Bezos and his wife, MacKenzie, are set to divorce after a 25-year marriage and the initial reports indicate that it is amicable. Let’s hope it stays that way. Keeping things civil ensures that you can complete the divorce with less stress and less time. Not to mention this is better for their four children.

Divorce in America has very different rules. If the divorce took place in England, the starting point would be 50:50 division of all the assets. As Amazon was built up during the marriage, and any other assets such as their substantial property portfolio would very likely be split 50:50.

After such a split will Jeff Bezos still be the richest man in the world?  And will MacKenzie become one of the richest women in the world?

Of course, any division will depend on how the companies and assets are structured, and what assets are in whose names.

High-net-worth divorces can be very complicated: Trusts could have been set up for their children, money gifted to charities, and there may be offshore interests.  In which case a court may struggle to enforce an order against those offshore assets.

Perhaps they had a pre or postnuptial agreement setting out what would happen to their finances upon a divorce?

It is not uncommon for high-profile people to have a non-disclosure agreement in place, so we may never know.

One thing, however, is certain, it will be a very complicated divorce.

Phoebe Turner

Managing Partner at London Victoria

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Author: Phoebe Turner

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I shall name him Superman: An international comparison of baby naming law reform by Alex May

Late last year we worked with the University of Winchester’s brightest law students to submit articles for our blog. This was a chance for them to be published online and boost their online profiles. We received some strong submissions but, in the end, we narrowed the field down and this article, written by Alex May is the winning entry.

Naming a baby

What should we call our baby? The first question for every new set of parents when they discover the amazing news of being pregnant. However, many parents will not know the laws involved in naming their new baby. In most circumstances, the chosen name would not endure any legal consequences.

What is the law in England & Wales?

So, what is the law on baby names in the UK? The short answer… there is not any.

Superman… Gandhi… Arsenal… Bear… they have all been accepted as baby names in Britain.

Registrations of births in England and Wales are made under the Births and Deaths Registration Act 1953 and the Registration of Births and Deaths Regulations 1987, however, the legislation does not set out any guidance on what parents may name their child.

So, how do our relaxed and non-existent naming regulations compare against other countries on an international stage? In Britain, third parties can only become involved in the baby naming process in extreme cases, as long as a name is not offensive and fits in the box on the form it will be accepted. How can this be right when that name becomes a child’s label until they are of a riper age to make a change?

In the age of social media, bullying is now not only practice within schools, but cyber-bullying occurs far too often leaving children isolated and alone, it should then be questioned as to why Britain has little regulation on something that could define a child’s early life from the day they are born.

It must then be said that the judgement of Lady Justice King in Re C (Children) (Child in Care: Choice of Forename) should become an efficient and well use practice to regulate this area. She looked in relation to the child’s sense of identity and self-worth and to her day-to-day life as a child. The name, in this case, would potentially expose the child to treatment which goes far beyond acceptable teasing and therefore she ruled against it.

This judgement demonstrates exactly where the law should develop to, there should be more weight put on the child’s welfare over paternal rights, it should be the child’s future that should decide the acceptance of a name, not the parents right to call their child anything they want.

The law internationally

When compared with the international stage, Britain’s naming laws demonstrate a need for reform. In New Zealand the Births, Deaths and Marriages Registration Act of 1995 s.18 states that it is undesirable in the public interest for a person to bear a name or combination of names if it might cause offence to a reasonable person or it is unreasonably long; or it is without adequate justification.

In contrast, Sweden’s Naming Act 1982 s.34 a first name may not be accepted as being liable to offend or likely to cause discomfort to the person who is to bear it or name which, for some other reason, is obviously not suitable as a first name.

France, the most child friendly naming laws, states in their Civil Code of Persons Chapter 2, Section 1, Article 57 Where first names or one of them, alone or combined appears to be contrary to the welfare of the child the officer of civil status shall give notice thereof to the government procurator without delay [or…] refer the matter to the family causes judge. Where the judge considers that the first name is not consonant with the welfare of the child… he shall order its removal from the registers of civil status.

The need for reform

Subsequently, when looking at Britain on a global scale our stance on baby naming laws is weak and should be reformed. New Zealand is the closest to Britain in terms of its requirements, the welfare of the child is not mentioned at all, but they still have legislation. Sweden and France have the most child-friendly laws and Britain should follow suit, or at the very minimum pass legislation clarifying our exact stance on baby names.

A baby name is one of the most important things in the start of a child’s life as it will be their name for at least 16 years until they can choose to change it by deed poll, but during those first years a child will enter education and be exposed to playground teasing, and an obscure and unique name could lead a child to receive teasing far beyond what is acceptable.

Quintessentially, if something as simple as a stronger emphasis on the welfare of the child eradicates the celebrity-led culture of ‘I want my baby to be different and have a unique name’ then reform should occur. As a unique name may be welcomed by the parents, but in terms of the welfare of the child, some names could have a massive impact on their baby’s future.

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A word of caution for cohabitees without a will

Non-married couples get a raw deal under English law when their relationship ends, regardless of how long they lived together.

As a family lawyer specialising in cases involving claims against estates under the Inheritance Act, I am regularly consulted by clients whose partners have recently died and who feel that they have not received a fair share of their loved one’s estate if anything at all.

Sometimes this is because the partner did not leave them anything but often it is that the deceased did not prepare a will. Without one, intestacy rules apply meaning that an unmarried partner is not entitled to receive anything. The estate instead passes to the deceased’s children or other relatives.

Unfortunately, some people still believe that they are common law spouses because they have lived together for a long period of time.  But the concept of a common law spouse does not exist in English law, except in some very unusual circumstances.

The bottom line is that if you are not married, you have less legal protection if your relationship ends through the death of one partner.

However, a recent High Court case has thrown the spotlight on claims brought by cohabitees against a late partner’s estate.

In Thompson v Raggott, the High Court ruled in favour of Joan Thompson’s claim for reasonable financial provision out of the estate of her late partner, Wynford Hodge.

Mr Hodge, worth £1.5 million, left nothing for Mrs Thompson or her four children. He felt that three of her children had taken advantage of him during his lifetime and instead left the estate to his friends – who were also tenants at one of his properties.

Mrs Thompson claimed she had been financially dependent on her late partner and had lived with him for approximately 42 years.

Following evidence from her GP, Mrs Thompson made it clear that she was in fact well enough to live at home alone, with an appropriate care package. Her claim was also supported by the fact that one of Mr Hodge’s properties had been purchased for the couple to move into after retirement.

The court decided to provide an outright transfer of the property to Mrs Thompson, rather than holding it on trust with a lifetime interest.

It is worth bearing in mind that most of the estate passed to Mr Hodge’s friends as per his will.  However, it is highly likely that Mrs Thompson would have received significantly more financial provision if she had been Mr Hodge’s widow rather than his surviving cohabitee as the law states that a widow or widower should receive a higher level of financial provision from an estate than a surviving cohabitee.

Cohabitees claims under Inheritance (Provision for Family and Dependants) Act 1975 are a complex area of family law and it is important you seek specialist advice if you think you have a claim over a former partner’s estate.

You can get in touch with me below or email [email protected]

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Author: Theo Hoppen

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Father ordered to return child to Sudan despite wishes of child

I’ve said it
here before, but quite often a large part of the job of a judge is simply to
decide which party is telling the truth. And so it was in the child abduction
case AH v AMH F (Summary return of child
to Sudan), decided by Her Honour Judge Hillier in the High Court last
October, but only recently reported on the Bailii website. The case is also
interesting for other reasons, including the weight to be given to the wishes
of the child.

Before
proceeding, I should explain something for the benefit of those who are
familiar with the principles used to decide child abduction cases involving
countries that are signatories to the Hague Convention on Child Abduction. This
case was a ‘non Convention’ case, as Sudan is not a signatory to the Convention,
and when deciding whether or not to order the summary return of a child to a
non-Convention country, the court does not operate by the principles laid down
in the Convention. In particular, the court must follow the principle that the
welfare of the child is its ‘paramount consideration’ (Hague convention cases
are one of the few types of children cases in which this ‘paramountcy
principle’ does not apply).

The case
concerned ‘B’, a boy aged ten, who has both British and Sudanese Nationality.
His mother is a Sudanese National, and his father is a British National, of
Sudanese descent. They married in Sudan in 2007 and B is their only child. B
was born in Sudan, but he and the mother lived for a short period with the
father in the UK. The parents separated and the mother applied to the English court
for permission to relocate permanently with B to the Sudan. The application was
granted, and B and the mother returned to Sudan in September 2009.

It was
agreed that B would return to England to see his father during the summer
holidays once he had reached the age of six. He came to the UK in 2016, but was
retained by his father at the end of the agreed period, and as a result the
mother did not agree to him coming in 2017. She did, however, agree to him
coming to England in March last year (when the school holidays began in Sudan),
although the exact circumstances were disputed by the parents.

The father
maintained that he had no particular intention to keep B here, until he asked
him what he wanted to do. He gave B the option of staying here and getting a
better education and healthcare. B had told him that he wanted to stay here. He
suggested that the mother had indicated that she didn’t mind whether B was
educated in Sudan or England.

The mother’s
version of events was that she agreed for B to stay in England with his father,
but only until the school was due to start again in Sudan, in July. She had
never indicated that she agreed to B remaining in England. The father told her
in April that he did not intend to return B to Sudan, and enrolled B in an
English school, without asking her.

The mother
applied for the summary return of B to Sudan.

Judge
Hillier did not accept the father’s evidence. She found that he had lied about
several things, and had had no intention at all of returning B to Sudan when he
collected him at the end of March. On the other hand, the mother had been
truthful, and Judge Hillier accepted her version of events.

As to B’s
welfare, she found that this would be best served by his returning to Sudan. He
had a much stronger connection with that country, having lived there for the
vast majority of his life. B had indicated a preference to remain in this
country, but Judge Hillier, who had met him, found that he was clearly too
immature for her to give very significant weight to his views, and that he had
been significantly affected by his father, saying what his father wanted him to
say.

Judge
Hillier also expressed concern about the father’s behaviour, which she said demonstrated
his complete lack of insight into his son’s needs. In her assessment, she said, B will
have suffered emotional damage by his father’s unilateral actions, because it was
not a planned consensual move. She found that the mother was able to meet all
of B’s physical, emotional and health needs, whereas the father seemed “absolutely
unable to comprehend his son’s emotional needs”, and therefore could not meet
them.

Accordingly,
Judge Hillier ordered that B should immediately be returned to Sudan.

You can read
the full judgment here.

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Author: John Bolch

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At your own pace: The journey through the six emotional stages of divorce

A lot of
what is written about and discussed when looking at the emotional stages of
divorce and separation is based on the five stages of grief identified by the
psychiatrist Elisabeth Kubler-Ross back in 1969 in her book On Death and Dying.

And quite
rightly so. The end of a marriage or relationship is a bereavement: a loss of
the life you once had and of the future, you believed you would have.

There is
panic, denial, anger, bargaining, depression and acceptance. The first thing to
remember is that people do not move neatly from one stage to the next.
Sometimes you may experience all six in one day. You may find yourself stuck in
a certain stage or go back. There is no beginning, middle or end.

My advice, do not try to manage this process (it won’t work for a start) and instead move through at your own pace. There is no right or wrong way – just your way. And please do seek professional help if you are struggling with anxiety or depression from your GP.

Here are the
six stages:

Panic

Sheer panic
and fear. Your body and mind are in a state of shock, unable to comprehend that
your life as you know it has been changed forever. You may struggle to sleep,
eat and think straight. You may even have panic attacks as your mind becomes
flooded and you feel out of control.

Denial

In some
ways, denial is a useful coping mechanism. You can pretend everything is OK
rather than face the overwhelming emotions. However, don’t abuse the temporary safe
haven this gives you. You need to move to the next stage to face your fears.
You need to feel emotions to start to heal from them. Otherwise, they can
manifest in stress, anxiety and illness.

Anger

Anger is a
completely normal emotion in a stressful situation and this is the time to
release some of those emotions you suppressed in the denial phase.  My advice is let them out. Some people try to
bottle up their anger, but it will come out in other ways. Try to channel it
into something positive such as exercise, singing, yoga (anything you enjoy)
and do consider counselling for some professional advice.

However,
there are two simple rules: never in front of your children and not publicly on
social media (it will come back to haunt you). 

Bargaining

Your last
attempt to try and get the relationship back on track and you will search for
anything that you think may take you both back to where you were before.

Moving away,
having a baby, changing who you are (totally impossible) you will do anything
to get your life back and have some reassurance that the relationship can be
mended.

Depression

As the
realisation that the relationship is over starts to settle extreme feelings of
sadness and loneliness can quickly consume you. They can easily take away your
motivation and joy for everyday life, you may find yourself sat in front of the
television all day with no energy to move or eat.

But
withdrawing from the world does not work and will leave you more isolated. Call
upon friends and family for love and support to help you cope. Counselling is
also really helpful. Talk, talk, talk, cry and then cry some more. You need to
feel and release your emotions.

Acceptance

You finally
feel hope, there is light at the end of the tunnel and you realise you need to
move on with your own life.

There will
still be feelings of sadness and regret, but it is something you can live with.
You are not paralyzed by grief or fear or sadness anymore.  And whilst I cannot promise you a joyful skip
off into the sunset you are back, getting on with life and starting a new
beginning. You’ve got this.

Help & support

Finding the
right lawyer for you can make all the difference. Our divorce lawyers have
experience of advising clients throughout the divorce process. They understand
the emotional pressure that each stage brings and can support you by making the
legal side as simple as possible.

Going
through a divorce or separation can be extremely tough. If you find your
struggling with anxiety and / or depression, please do seek professional help
from your GP or visit: Relate
for practical advice and counselling options.

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Is 455 divorce petitions in a week a lot?

It was widely reported the other day that, according to the Ministry of Justice (‘MoJ’), 455 people made an online divorce application in the period between Christmas Eve and New Year’s Day, with 13 applying on Christmas Day itself. The figure of 455 sounds quite shocking (as I suspect the newspaper headline writers meant it to be), but is it actually a lot?

To answer the question we need to look at a few more figures from the MoJ.

According to the latest Family Court Statistics Quarterly, for July to September 2018, 115,392 divorce petitions were filed during the period October 2017 to September 2018, the most recent full year for which figures are available. If that figure is divided by 52 weeks, we find that during that year an average of some 2,220 divorce petitions were filed each week.

On that basis, the figure of 455 seems quite low, representing roughly a fifth of the number of petitions filed in an ‘average’ week.

Now, of course there is an obvious problem with this: many divorce petitions are still filed by post (solicitors do not yet have access to the online portal), and so we are not comparing like with like.

OK, so it would be better to look at the figures for online applications. The MoJ has stated that “more than 23,000 applications for divorce have been made online since the service was launched last April”. Now, my rough calculation is that that equates to an average of about 700 online divorce applications per week.

So even on that basis 455 is quite low, representing only about two-thirds of the number of online applications made in an average week.

I suppose it might be said that 455 is still high, considering that people are supposed to be doing other things during the Xmas/New Year holiday. On the other hand, it could be said that as many people were off work during that week, more would have had time to file a divorce application, and therefore one might expect more applications to be filed.

Whatever, I don’t think too much can be read into these figures. It was certainly not an exceptional week for people making online divorce applications, or even for people seeking a divorce at all.

And what of those thirteen people who decided to apply for a divorce on Christmas Day?

Well, I can see that it is quite sad to think of people filing for a divorce on a day when most of us are celebrating with our families. But then it is a sad fact that not everyone enjoys a happy Christmas. In fact, for those who don’t, Christmas can be the most depressing time of the year. Thirteen people applying for a divorce is actually a tiny figure when one considers, for example, how many people spend Christmas alone.

It is also a tiny figure by reference to that figure of 700 online divorce applications per week mentioned above, which obviously represents an average of 100 per day. If anything one would expect considerably more than thirteen divorce applications to have been made on Christmas Day.

Why does all of this matter? Well, it feeds into the narrative that more people seek a divorce at this time of year than at any other time – the ‘Divorce Day’ myth. Even The Guardian, a ‘serious’ newspaper, told us in its story about the figures that:

“The first full week of the new year is one of the busiest periods for initiating divorce proceedings, as unhappy couples, having failed to resolve their differences over Christmas, resort to specialist lawyers.”

Of course, the lawyers are not the ‘villains’ when it comes to people applying for a divorce without a lawyer and from the comfort of their own homes, but that is a point that is conveniently ignored. The fact, however, is that these figures do not demonstrate that we are presently witnessing an epidemic of people seeking a divorce. On the contrary, they are substantially less than usual and, I think, nothing out of the ordinary.

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Author: John Bolch

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Why you should consider a prenuptial agreement

The holidays are now behind us and the New Year is here. There is no better time than now to consider ways to protect yourself and your finances. When it comes to romantic conversations, nothing is less romantic than talking about including a prenuptial agreement in a marriage. However, the benefits of a prenup can be tremendous, making it a vital topic to discuss.

Whether it is due to the mentality of “millennials” or the looming rate of divorce floating around 50 percent, prenuptial agreements are growing in popularity. Despite them having a bad rep, prenups are sought by and entered into by couples of all walks of life. These marital agreements are not just for the rich and famous, but rather, they are for any couple seeking to protect their finances and property.

In addition to helping protecting assets, prenuptial agreements are also beneficial if a divorce were to occur. The dissolution process can be long and messy. However, a prenuptial agreement can help ease the process by outlining and detailing property division. By having this contentious divorce issue sorted out, divorcing couples can often avoid major disputes.

Even when a relationship is filled with trust and there is little property of concern, a prenuptial agreement can have its place in any marriage. Those considering this marital agreement should take the time to explore their options and understand what steps to take to best protect their rights and interests. No one gets married expecting the union to end in a divorce, but, when it does, a prenup can help address many divorce issues.


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