Queen’s speech promises to “improve lives of children & families”
by Gemma Hope, May 9th, 2012
Today’s Queen’s speech confirmed Parliament will consider creating a legal requirement for most children to have a relationship with both parents after a divorce. If this passes into law judges will have to ensure children have the opportunity to enjoy a “meaningful relationship” with both parents if at all possible.
While such measures are well intended, great care needs to be taken before adding presumptions in the law relating to children. A one size fits all approach to families never works. Far from a change in law, I would argue the best way forward is to improve education and information to help parents work together to look after children’s best interests.
The legal focus must be on the rights of the child.
An acceleration of the adoption process is also proposed under the Children and Families Bill. This aims to reform the family justice system so that cases involving children being placed into care must be completed within six months. It also proposes to stop local authorities from delaying adoptions simply because a couple wanting to adopt doesn’t offer a “perfect racial match” for the child.
Given the long delays with adoptions in the UK, illustrated by the fact that only 60 babies were adopted in 2010, improvements would be welcomed.
It comes as no surprise that the Queen’s speech made no reference to marriage for same sex couples. Earlier in the week the equalities minister, Lynne Featherstone, said that the Government’s proposals for equal marriage would not be included in the speech. This lends support to rumours that, in the wake of dramatic election losses, some Conservatives may revolt on marriage reforms for gay couples.
A Downing Street spokesperson has said No 10 never planned to bring equal marriage legislation forward to this year’s Queen’s Speech. Regardless of the political in-fighting the consultation on equal marriage is set to continue until the middle of June. Take part in this survey to have your say.
The treatment of inheritance on divorce
by Lisa Burton-Durham, March 31st, 2012
In England and Wales the law relating to financial property when a couple divorce is discretionary and wide ranging. The principles acknowledge that the circumstances surrounding separating couples and families are countlessly different and a ‘one size fits all’ approach would never work. However, for us lawyers it can make it very difficult to predict the likely outcome of a particular case.
This is particularly apparent when we are dealing with inheritance. Our divorce laws do not distinguish between ‘inherited property’ and ‘matrimonial property’ but simply requires the court to consider the property and other financial resources which each party has or is likely to have in the foreseeable future. It also looks at contributions which each party has made or is likely to make in the foreseeable future to the welfare of the family amongst a number of other factors.
When divorcing there is a duty on both parties for inheritances or potential inheritances in the foreseeable future to be disclosed. Inheritance will be treated as a contribution by one of the parties and the extent to which that contribution will be relevant will depend on all the circumstances of the case.
In the case of White v White (2000) Lord Nicholls said that inherited property should be taken into account but that it should be decided how important it is in a particular case. Does that make it any easier for us? Probably not, it simply reinforces the court’s discretionary approach. However, the Court’s first consideration on a divorce is to be given to the welfare of any child of the family. In the vast majority of cases that will mean that any inheritance already received or about to be received will need to be taken in account on the basis that all available money, wherever it may have come from, will be required to provide accommodation for the parties and their children. If using the inherited property is the only way of meeting the parties’ needs (and those of the children) then that is what will happen more often than not.
But what about cases where inherited assets are much more significant and the needs of the parties and their children can be easily met from other resources?
In circumstances such as these the court must consider the nature and value of the inherited property and how it came about. An asset passed down through generations may be treated differently. An example of such an asset would be a family farm where it would seem completely unfair to force its sale when one party’s family has lived and worked there for many generations. The parties’ standard of living is also very relevant – the longer the wealth has been enjoyed during the marriage the less likely that it will be ring fenced and excluded from the ‘pot’.
Certainly from my experience it seems that the longer the marriage and the longer the inheritance has been in existence the more probable it is that inherited assets will be included in the ‘pot’ and shared. Where an inheritance is received towards the end of a marriage or after the parties have separated it is more likely to be treated differently. However, this is certainly not always the case.
Whilst there is some clarity for cases where money and property is limited, in cases of medium to large wealth it continues to be extremely difficult to predict the outcome of a particular case.
Landmark case enshrines civil partnership as ‘identical’ to marriage if the relationship breaks down
by Gemma Hope, March 30th, 2012
Civil partners have “identical” rights to husbands and wives, three senior judges established yesterday as they settled the first multi-million pound civil partnership split to come before the courts.
The case acknowledges that the same principles should apply as to when a husband and wife divorce. The court have stated that the fact that the claim arises from the dissolution of a Civil Partnership rather than a marriage is of little importance.
Fundamentally, the case highlights that an outcome for civil partners can be just as uncertain and inconsistent as it can be for divorcing spouses. To try and minimise uncertainty, it is advisable for civil partners, as it is for spouses with pre-nuptial agreements, to consider a pre-registration agreement to try to determine how the assets should be divided if the relationship ends.
The Law Commission is currently reviewing legislation on how married couples and civil partners can claim financial support from one another after a divorce or dissolution. It is hoped that the outcome of this review will result in more certainty and clarity for marriage couples or civil partners whose relationships have come to an end. However there is no prospect of change for the foreseeable future so the best option in the meantime is for couples to seek advice about entering into a pre-nuptial or pre-registration agreement before getting married or entering into a civil partnership.
This case is particularly interesting in light of the government’s current consultation into same sex marriage. If civil partners rights are the same as married couples rights when the relationship ends it raises questions as to why there needs to be two separate systems for partnership recognition. Have your say on gay marriage by taking part in our survey:
By Gemma Hope
Are ‘no-fault’ divorces part of our future?
by Lisa Burton-Durham, March 28th, 2012
Sir Nicholas Wall, England and Wales’s most senior family law judge has recently stated that couples should be granted a quick legal separation without shame
In a speech at the annual conference of Resolution he went on to say that society no longer views divorce as shameful and that there are no good arguments against ‘no fault divorce’. He claimed that the current legal system in relation to divorce was in fact administrative which masquerades as judicial.
Currently in law there is only one ground for divorce – that the ‘marriage has broken down irretrievably’. To be granted a divorce one party has to rely on one of the following five facts to prove ‘irretrievable breakdown:-
- Adultery by the other party
- The other party’s unreasonable behaviour
- Desertion by the other party
- Two years separation with the consent of the other party
- Five years separation without the consent of the other party
If the grounds are agreed, and the court sees no reason why there cannot be a divorce, a decree nisi document is drawn up. A decree absolute is then issued, legally ending the marriage.
In effect the facts based on two or five years separation are in fact no-fault divorces and do not involve any element of blame by one party against the other. However it does mean that many couples have to wait until at least two years following their separation before they can legally divorce. This in itself is not ideal for many couples who often want to finalise matters much sooner.
The other facts of adultery and unreasonable behaviour are quite the opposite and require one party to make accusations against their former partner which more often than not make quite unpleasant reading in the divorce petition.
Certainly from my experience whether there is blame or not most couples prefer to separate with dignity and as amicably as possible. They don’t want to continue fighting to the bitter end. For most, the decision to separate and end a marriage has been an extremely difficult one to make and the sooner the parties are able to move forward with their lives the better.
But should it be that easy? Should our laws allow couples to move in and out of marriage as easily as that? Will it mean marriage is not taken so seriously? Will couples appreciate the commitment of marriage?
I believe that sadly there is already some degree of this in our society already. For some, divorcing their other half is as easy as ordering their shopping.
Thankfully the shame of divorce is no longer an issue and I strongly believe that there is room for no fault divorces within our system.
I believe such divorces will empower a man or woman in an abusive marriage, making it easier for them to leave; it will mean less conflict during divorce which will undoubtedly lessen any emotional harm to any children whose parents are divorcing and hopefully it will reduce the heavy caseloads in our family courts.
At the present time the government has no plans to change the grounds divorce but I anticipate this subject will have to be addressed at some point in the not too distant future.
Legal myths behind marriage & civil partnership
by Lisa Burton-Durham, March 21st, 2012
As gay marriage continues to make headlines the debate is still marred by misunderstandings about the legal differences between marriage and civil partnership.
Marriage and civil partnership exist as parallel legal systems
Contrary to some reports, they offer almost exactly the same legal rights.
Back in 2004 civil partnership legislation tackled the inequalities of legal rights relating to personal relationships which have always existed on the grounds of sexual orientation. For the first time gay couples had a way of achieving the same rights on everything from inheritance to property ownership.
Civil partners and married couples are entitled to the same social security and pension benefits. Both are also able to obtain parental responsibility for a partner’s child, receive maintenance, tenancy rights and next of kin rights.
However the legislation achieved this legal equality without embracing same sex relationships at a cultural level. By creating an entirely new system, especially one with the cold term “civil partnership”, a lesser status was conferred on LGBT relationships.
The only real legal distinctions relate to relationship break-down
Married couples have to apply for divorce, whereas civil partners dissolve their partnership. In practice this makes little difference to the process couples go through if they break up.
Adultery is not recognised as a reason to dissolve a civil partnership, due to the fact that in legal terms adultery is defined as sexual intercourse between a man and a woman outside the marriage.
With these two exceptions civil partnership confers the same legal rights as marriage.
So why the big debate?
Campaigners for gay marriage say that there should not be separate systems based on sexual oriantation. They argue opening marriage up to same sex couples would go a long way to recognising the validity of these relationships. It’s about putting people of all sexual orientations on an equal footing in public life.
Yet many faith leaders believe gay marriage would significantly marginalise traditional values in society. Same sex marriage was not mentioned in either the Conservative, or the Liberal Democrat manifesto so the Government’s mandate for making this change is also questionable.
The religious aspect to marriage
During a civil partnership ceremony there is no reference to religion. This is the same as civil marriages, where couples are not allowed to mention religion in their vows; even music with religious references is banned.
Yet of course straight couples have the choice between a religious or civil marriage whereas the formation of a civil partnership is entirely a civil process. Some faith groups, such as Unitarians wish to conduct religious ceremonies for gay couples and 100 Anglican ministers recently wrote a joint letter to the church asking permission to conduct civil partnership ceremonies at their own discretion.
The Home Office’s consultation paper proposes:
- To allow same sex couples to marry in a registry office or other civil ceremony
- To retain civil partnerships for same-sex couples and allow couples already in a civil partnership to convert it into a marriage
- To maintain the legal ban on same-sex couples marrying in a religious service
What do you think?
The Family Department at Mayo Wynne Baxter is interested in how people feel about these issues. You can express your views through this short survey. The results will be sent to MPs and the press.
Social media often the blame in divorce
by Lisa Burton-Durham, January 5th, 2012
According to a survey from Divorce-Online a third of all divorce petitions filed in the UK last year contained the word ‘Facebook’. This is in an increase from 20% in 2009.
The survey found that the most common reasons where ‘Facebook’ was named included:
- Inappropriate messages to members of the opposite sex
- Separated couples posting nasty comments about each other
- Facebook friends reporting spouse’s behaviour.
Twitter on the other hand only featured in 20 of the 5,000 petitions examined.
There is no doubt that social networking is now a huge factor in many people’s lives and is a common and useful tool for communication between friends and family. However, in my experience, it can have a negative impact on some relationships.
I have met with a number of clients who have used social media sites to ‘spy’ on their partners and gain evidence of affairs or other inappropriate behaviour which has then caused their relationship to break down. Flirty chats, photographs and comments are often not as private as many people assume and are therefore open to scrutiny by all and sundry.
It’s not just personal relationships that are affected. We have also seen the impact of posting comments on Facebook when employees have been sacked after ranting about their jobs.
People need to be extremely careful about what they post and refrain from commenting about other people. Such comments could later be used against them in divorce proceedings and other disputes.
When couples are separating I would certainly urge them to avoid social media sites until the ‘dust has settled’. People have a habit of making their feelings known and posting nasty comments about your former partner will not help an already difficult and highly emotional situation.
New year, new start?
by Gemma Hope, January 3rd, 2012
January is traditionally the time when people take stock of their lives and start to take the steps they need to make changes for the future. This is therefore often the time that people seek advice about separation and divorce/dissolution.
If you are thinking about separating from your partner, or your partner is wanting to separate, the best thing to do initially is to take some legal advice about your position and the various options available.
Seeing a lawyer doesn’t need to be intimidating or daunting experience for you. If you meet with a specialist family lawyer then they will have experience in dealing with matters in a sensitive and sympathic way.
Family lawyers who are members of Resolution [http://www.resolution.org.uk//] will have specialist training and be committed to the constructive resolution of family issues and will also follow a Code of Practice that promotes a non-confrontational approach and encourages solutions that consider the needs of the whole family, in particular the best interests of any children.
All the Family lawyers here at Mayo Wynne Baxter adhere to the code of practice set down by Resolution and provide specific, tailored advice to every individual client. They work closely with other professionals such as relationship counsellors, therapists, life coaches, financial advisers and tax specialists to ensure all your needs can be met.
It is not at all uncommon for people to see a family lawyer for the first time completely unprepared. However, to help put you at ease and to also ensure that you get the most out of any initial consultation with a family lawyer it may assist you prior to the meeting, only if you can and feel able, to:
- Make a list of your major areas of concern.
- Make a list of questions you want to ask.
- If you own any property try to get an informal valuation or a rough guide of the value. See if you can find out whether the house is owned by you and your partner jointly or in the sole name of one of you. It is always helpful to know whether there are any mortgages or secured loans and, if so, how much is outstanding, whether there are penalties etc.
- Ascertain the up-to-date value of any savings. Find out the balances of any accounts at your banks and building societies.
- Get details of any pension schemes.
- Make a note of your debts e.g. bank overdraft, credit cards, unsecured loans.
- Make a note of your current net income, including any child benefits or tax credits you may receive.
- Finally, make a note of the full names, ages, dates of birth of you, your partner and any children; the date you started to live together with your partner and (if applicable) the date of your marriage/civil partnership and the date of any separation.
By Gemma Hope
Tough times, divorce rise
by Gemma Hope, December 9th, 2011
The number of divorces in England and Wales increased by 4.9% last year according to official statistics.
We can only learn so much from how statistics are reported, as they say they are like a bikini: what they reveal is suggestive, but what they conceal is vital. However, amongst family lawyers an increase in relationship breakdown has been apparent over the last year.
The key findings of the report carried out by the Office of National Statistics are:
- The number of divorces in England and Wales in 2010 was 119,589, an increase of 4.9 per cent since 2009, when there were 113,949 divorces
- The divorce rate rose in 2010 to 11.1 divorcing people per thousand married population from 10.5 in 2009
- 22 per cent of marriages in 1970 had ended in divorce by the 15th wedding anniversary, whereas 33 per cent of marriages in 1995 had ended after the same period of time
- The number of divorces in 2010 was highest among men and women aged 40 to 44
Many have stated that during the current economic climate couples decide to stay together because of not being able to afford to separate and maintain two households. However, the statistics may suggest that financial difficulties are putting too much strain on relationships which in turn causes arguments as well as changes in employment and lifestyle resulting in spouses breaking up.
By Gemma Hope
The dangers of a DIY divorce
by Gemma Hope, November 7th, 2011
The Family Justice Review has recommended that couples who are separating should be encouraged to carry out more divorces using “do-it-yourself” websites and for the process to just be dealt with administratively by the courts.
Divorce is a major lifetime event and shouldn’t be taken lightly. I have recently been dealing with more and more cases where I am having to pick up the pieces after people have tried to “do it themselves”, all of them with hindsight wish they had sought some legal advice from the start.
For instance one client got divorced online and had thought that this finalised any financial issues between her and her former husband only to have found out years later that her former husband still has a claim on her home and that his creditors are now threatening repossession proceedings to recover the monies her former husband owes them. Another client got divorced and reached an agreement with his former wife as to how the matrimonial assets, including a business and properties, be divided up without seeking advice only to find out further down the line that the agreement reached has opened them up to significant tax liabilities.
Family lawyers have years of specialist training to ensure that when family relationships breakdown the short and long terms implications of this can be addressed and dealt with so families can move on with their lives with certainty, security and stability.
Some of the pitfalls of a DIY divorce include:
- Legal Jargon – despite the new Family Procedure Rules which were suppose to help simplify the divorce process there are still terms such as “Petition”, “Petitioner”, “Decree Nisi”, the “Prayer” that can be confusing.
- Form Filing / Paperwork – there can be a lot of form filling and paper work involved which can be time consuming and difficult for some people. If the forms aren’t filled out correctly it can cause delays and additional costs.
- Stress and upset – when a relationship breaks down it can be difficult to deal with day to day life let alone legal proceedings. It can be a huge relief to have someone there to guide you through the process and make sure your best interests are represented.
- Lack of sign posting – family lawyers will be able to help point you in the direction of other recommended specialists who can help you such as Counsellors, Therapists, Mediators, Financial Advisers.
- Lack of objectivity – if your marriage has broken down it can be a very emotional time, it maybe impossible to see through the emotions and think logically, rationally and objectivity. It can make the process much easier if you have a solicitor on board to keep the focus.
- Not seeing the bigger picture – the actual divorce itself is just one part of the process, in addition there are likely to be financial considerations and issues surrounding any children of the family that need to be dealt with. If you get divorced before sorting out the financial issues it can leave you in a very vulnerable position. People “doing it themselves” often forget or do not understand the considerations that need to be taken into account such as Wills, pension funds, tax liabilities or terms of property ownership.
In the event of a marriage breaking down the best thing to do is to see a specialist family lawyer as soon as possible, at least just for an initial consultation, to make sure that you can make an informed choice about the best way forward.
To Have and to Hold till 2013
by Lisa Burton-Durham, November 2nd, 2011
Politicians inMexico City continue to debate whether couples should choose the length of their marriage contract before exchanging vows. The move, which faces staunch opposition from the Catholic Church, is an attempt to stem rising divorce rates. If legislation goes ahead marriage contracts will be set at a minimum of two years, giving spouses a trial period before they decide on everlasting commitment. Budding brides and grooms will have to agree on dividing up assets and caring for children in the event of a future split.
Mexicans are debating this idea at a time when their country has the 31st highest divorce rate in the world. Despite the fact that the UK is up in 4th place, similar suggestions seem unlikely to gain much support in our romantic culture. British people today tend to design weddings that revolve around the permanence of love and emphasise what makes their partnership special. It’s hard to imagine aUK politician risking the proverbial sin of undermining family values by advocating try before you buy matrimony.
Yet the reality of high divorce rates remains. Mediation is an important tool to help divorcing couples compromise, but lengthy litigation is still common. Pre-nuptial agreements are one way of minimising battles over income and assets. Although sometimes dismissed as an American idea pre-nups have steadily gained popularity in theUKover the last five years. These documents took on greater weight in English law in 2010 when the Supreme Court ruled in the case of Radmacher v Granatino that pre-nuptial agreements can “in the right case” have decisive weight in a divorce settlement. This judgment has changed case law and other divorcing couples are likely to be held to their pre-nuptial agreement if they entered into it freely, were fully informed of all the relevant information and understood the implications of the agreement.
Agreeing what would happen if a marriage ends is inevitably unromantic, but unless fixed term marriage becomes a reality pre-nuptial agreements remain the best way of guarding against the worst consequences of divorce