Summer Holiday

p131940-(2)Lewis Hulatt, South East Consultant with Major Family Law, the best national Divorce and Family Law solicitors, comments:

It is not unknown for me to use the inspiration of popular music to reflect upon my work. It goes far beyond ‘Money Money Money’ or ‘Cuts like a knife’ and whilst I can go back to ‘Your feet’s too big’ (1936), songs of different eras express aspects of family work in different tones. Vibes, man.

“We’re all going on a summer holiday!” proclaimed the young Cliff Richard in a somewhat more innocent lyric than The Stranglers adopted in ‘Peaches’ a little over a decade later and way closer to Madonna’s upbeat pop anthem.  Lovin Spoonful expressed the urban delights of pavements ‘hotter than a match head’ when it was Summer, whereas Travis may have been equally ‘on the money’ asking why it always rained.  Never seen ‘Fog on the Tyne’ in August, but have seen Lindisfarne this time of year.

Summer, with its long school holiday which rarely matches the availability of parents, creates extra stress and as family lawyers, we have the confrontational problem of children’s time with separated parents either in advance or with the last-minute spanners thrown up, whether deliberate or not.

As well as trying to solve time-critical holiday arrangement problems, we later get the spouses for whom a week or two on holiday together is an uncomfortable experience. It does not take temptations beyond the time to reflect on the thought that greater happiness might be possible to get those seeds of discontent nurtured.   Discontent is like a rambler or bind-weed – emerging unexpectedly and usually difficult to completely eradicate.  After the schools have gone back or couples returned from their self-imposed mandatory breaks, we often experience an upturn in enquiries about separation and divorce.

Maybe your holiday partner is as Steve Harley described ‘A friend for life’ and you decide ‘Let’s stay together’ (or ‘work’ if you prefer Canned Heat) in which case you can enjoy the time.

Just spare me Agadoo and leave the pineapple on the tree.

 

Blame it on Rio

211px-2016_Summer_Olympics_logo_svgLewis Hulatt, Consultant Solicitor based in Surrey, of Major Family Law, the divorce and family law specialists, comments:

Four years ago, I was watching Olympic football at St James’s Park and saw the boys from Brazil in the men’s competition. We also saw women’s football back in 2012 and the standard had already risen tremendously from when the idea of a woman footballer was a novelty as it was in 1992 when ‘Born Kicking’ was made on that premise. As with other TV football dramas of that era, it involved Woking FC.  The goalkeeper, Laurence Batty is on IMDB as a result and Mandie Fletcher directed.   Arguably, Mandie’s greatest contribution to British TV must be her iconic ‘Blackadder’, the first series of which was filmed partly in Northumberland bringing North and South together as the writer, Ben Elton, was at Godalming College, Surrey.   I mention this about women’s competitive team sport because on Sunday, in the 2016 Olympics, we got enthused by women’s sevens rugby, watching Team GB set up a final clash the Kiwis.  Winning a cup final turns players into ‘legends’.   A long time ago, Lawrence Dallaglio and I both trained at Surrey University sports centre – his side were not performing well and despite his stature, he was ‘fair game’ for mickey taking in the changing room. That rather changed when he was a key member of the team that won the Rugby World Cup.

Trophy-winning goalkeeper Lawrence ‘Lol’ Batty, as well as finding himself name-checked on IMDB, had other claims to fame and having a father who scored a number hit singles, himself netted a winning goal against the Kuwait international side.  One of his dad’s hits was ‘Lost in France’ which must have inspired Roy Hodgson this summer.

Back then, Lol Batty asked me if I would become a football agent as there were playing contracts to sort out, but primarily a family lawyer, I passed the opportunity.   I wonder how life would have been different if I hadn’t – perhaps the glamour of negotiations with The Magpies (Dorchester Town) or doing deals at Scunthorpe (where Tinie Tempah hadn’t been) or gracing the San Siro? (Welling United).  From San Siro to Scunthorpe sounds like a Toon player’s career over four years…

The family lawyer team at Major Family Law have been through a few Olympiads and with hard work will help achieve a Personal Best…

…and not take four years.

Go Team GB!

International Child Maintenance and Divorce

linkedin shotMelanie Barnes, Consultant Solicitor based in Oxford, of Major Family Law, the divorce and family law specialists, comments:

It is not yet clear how family law will be affected when the UK exits the European community, but anticipated that we will continue with recognise maintenance orders made by courts in the other 27 member states under the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. The European Union ratified the Hague Convention on behalf of all member states, and likely that the UK will deal with maintenance claims under those rules if the debtor or creditor is resident in the jurisdiction.  With regards to a divorce, the old rules that require a petitioner to prove residence or domicile are likely to apply.

Reciprocal arrangements for maintenance within the EU are currently governed by the EU Maintenance Regulation 4/2009, which will no longer apply in the court of England and Wales when the UK leaves the European Union. Parents who live within the UK will no longer qualify for free legal assistance within the EU under those rules, and likewise, parents from abroad will not be entitled to legal aid in this country.  The benefit of the EU Maintenance Regulation is that foreign orders are automatically recognised without further procedure.  Future cases will need to be commenced through the Central Authority (known as REMO in the UK), and it is therefore likely that applications to apply for, or enforce, maintenance will once again be delayed by additional process.

Where a parent lives abroad, it is also possible for them to apply directly to the court of England and Wales for child support under Schedule 1, Children Act 1989. This Act grants the court power to make orders for periodical payments, secured periodical payments, lump sum and property transfer or settlement if they are ‘for the benefit of the child’.  In many cases, the court will order that funds are settled on trust to the mother so that she is adequately housed during until the child’s majority, ensuring that both parents have an adequate standard of living.  In making a decision under Schedule 1, Children Act 1989, the court will have regard to ‘all the circumstances of the case’ and take into account the income, earning capacity and financial resources of the parties, including any foreign assets and income that are disclosed.

If the court deals with child maintenance upon divorce, the court has power to order the payment of periodical payments, capital payments for the benefit of the child, special expenses and payment of school fees. There is no limit to the number of lump sum payments that can be ordered for a child, but capital payments are uncommon and there are few reported cases. Where parties are married, the court also has power to order an absolute property transfer to the spouse, which means that it will not return to the paying parent upon a child’s majority.

 

 

 

 

The Price is Right

p131940-(2)Lewis Hulatt, Surrey Consultant Solicitor, of Major Family Law, the divorce and family law specialist, comments:

A cynic is somebody who knows the cost of everything, yet the value of nothing.

Oscar Wilde’s pithy observation has endured because it applies so often when the bean-counters and bureaucrats can only see expense.  Often ‘value for money’ seems less important than cost, yet ‘VFM’ was recognised in Victorian times.  Wilde’s contemporary, John Ruskin himself waxed lyrical on the merits of obtaining quality, just as any craftsman would say about tools ‘buy cheap, buy twice’.   When I was a teenager, I learned about micro-economics and one of the core assumptions was that all products were of comparable quality, so the cheapest would provide more utility per £ of price paid.  Of course, in the real world, most products come in a wide variety of qualities and magazines and websites help purchasers identify what represents value through applying relevant criteria to each.  They recommend ‘best buys’.

Why do I sound somewhere between Stephen Fry and Anne Robinson this week?

Well, although WH Smiths do not stock ‘Which Solicitor?’ magazine, competition and comparison has come to the legal market.  Solicitors were not allowed to advertise until the 1980s and even recently firms have faced disciplinary action if their promotion was deemed undignified.

Against that background, Major Family Law have been brave enough to try participation with the Law Superstore which seeks to match people with suitable solicitors and for the public to get some idea of comparative fees.

At present, the service that the client really values from a solicitor is not that we sell knowledge of what the law is, but they want our experience in applying a legal process as part of addressing a problem. We sell reassurance that problems are soluble, which we get through years of experience.   I gained a client a week or so ago from a ‘cheaper’ firm – they answered the question she had put, but failed to understand what the client had wanted by asking that question and so she came to me because although I would be a little more expensive than them, I was able to achieve what she wanted and they had failed to show that they could.

Buy cheap, buy twice.

We are flexible and hope to be competitive, but we would rather be the best value than the cheapest.

 

Don’t Let the Sun Go Down

p131940-(2)Lewis Hulatt, Consultant Solicitor with Major Family Law, the divorce and family law specialists, comments:

I am not one for spilling things, but admittedly two laptops have been ruined through the application of generous amounts of liquid.   Considering how frequently we have had refreshment to hand when using table-top computers, two spillages in perhaps fifteen years is not bad going for a household.  By using a separate keyboard and wireless mouse, the chances of drenching the body of the machine have been greatly reduced, so I commend that idea to my readers together with a decent screen so that you are freed from having the crucial parts of the machine within splash range.

From all that, you may gather that I try to learn from my mistakes. Solicitors are not routinely taught management, but ‘risk analysis’ is something I get.   Years ago, ‘SWOT analysis’ was a vogue in the business community and it is a useful tool.  You look at Strengths – Weaknesses – Opportunities – Threats.

I wonder if people ever do that with their relationships:

Strengths – as a couple? Do you communicate well?   Are you forgiving to each other? Are you tolerant of the other person’s differences?  Have you been through misfortune and difficulty and survived it?  Do you realise how resilient you have already been?

Weaknesses – what really winds you up about each other? What repeated mistakes or behaviours cause problems?   What never goes right?   Household chores/money/criticism/lack of appreciation?

Opportunities – what can be done to strengthen what you have? Are there new things to try together or apart which might improve your lives?  Opportunities are wide and unpredictable!

Threats – As a long-time family lawyer, I see a lot of these after they have actualised.   What might cause serious damage?  Working away or long commutes.  Distractions and other relationships.   Continual use of smart-phones/email/social media.   Are either of you getting near a zero birthday – 30, 40, 50 or 60?  Are there pressures from family?  Is there a real prospect of a parent dying soon?   Add in job problems or moving house and there is greater risk.

Maybe reflection comes more readily to me through having been involved in both management and mediation, but perhaps we should give ourselves a relationship MOT from time to time?

If those stresses erupt – ‘don’t let the sun go down on your anger’ and find a way to make peace before sleeping.  It can be reasonable to be annoyed, but unreasonable to seethe overnight.

Guidance on financial needs on divorce

Lucinda Connell profileLucinda Connell, senior solicitor with Major Family Law, the divorce and family law specialists, comments:

In June 2016, the Family Justice Council published it’s long awaited “Guidance on Financial Needs on Divorce”. The guidance follows a low commissioned consultation on matrimonial property, needs and agreements which was published in February 2014.

The guidance focuses on financial needs of parties following a marital breakdown as opposed to the other factors which come into consideration when looking at terms of settlement, that of sharing and compensation. The guidance sets out how financial needs should be approached and goes on to deal with the issue of duration of the relationship and marriage.  There are a number of accompanying annexes which contain useful worked examples and tables of relevant cases with short summaries. Another annex contains a helpful commentary on the approach to be taken when considering pensions whilst a third provides practical examples of different types of need and details relevant legal authorities.

The guidance makes interesting and informative reading but it is important to note however that the guidance does not itself change the law; its purpose is simply to disseminate information about the ways in which the court exercises discretion when considering terms of financial settlement and particularly in relation to the assessment of a party’s needs and it is hoped that a more consistent approach will be encouraged.

Divorce settlements and stamp duty changes

Lucinda Connell silhouetteLucinda Connell, Senior Solicitor with family law specialists solicitors, Major Family Law, the best divorce and children law specialists, says:

According to a recent report in the Telegraph, thousands of divorce settlements may potentially be open to appeal as a result of the government’s new stamp duty surcharge which leaves estranged partners unable to buy their own home following a marital split.

The new rules mean that a husband or wife who was granted an interest in a property (for example, a buy to let property or a second home) following a divorce could potentially be liable for thousands of pounds in extra tax when they purchased their own home. The surcharge, which was introduced in April this year, means that anyone who buys an additional property has to pay extra stamp duty of 3% points on top of the existing tax liability for their property’s value.  The tax is particularly likely to affect women who lived with their husband but did not have a stake in the marital home, and who are granted other property following the marital split.  However, it will also affect wealthy couples where one partner moves out of the family home but retains a stake in it, to stop or delay the property being sold because, for example, the couple wished to provide stability for the children.

That individual would then be subject to the extra tax. A refund can only be claimed if the separation is “likely to be permanent” and the first home is sold within three years.  The law provides that anyone who sold their main home within the past three years – or, currently, before November 2015 – to buy a new one without paying the extra tax.  However, a quirk means that if there was not a previous main home to sell, liability for the extra tax will arise.  The Telegraph reported that a number of divorce lawyers were unaware of the new law meaning that the potential tax liability was not being factored in to settlements.   This could potentially leave a number of divorce settlements open to appeal, as a spouse could argue that they had been unfairly disadvantaged by the tax which can add thousands of pounds to the cost of purchasing a new home.  Further cases could also involve couples whose settlements had been decided prior to the stamp duty surcharge being announced in November 2015.  In these cases however there are likely to be fewer grounds for an appeal as the law was of course not known at the time settlement was reached.

In this day and age where buy to let properties are wide spread, it is common for a separating couple to agree to transfer ownership of some or all of those properties to the other spouse. It is therefore essential that specialist family law advice is sought at the time of separation and when considering the terms of financial settlement.

 

Divorce: What’s mine is mine and what’s yours is mine…

Anna Hunter profileAnna Hunter, Director and specialist children’s lawyer of Major Family Law, the top Divorce and Children Law specialists in Newcastle, states in this month’s North East Times:

In an ideal world, everyone contemplating moving in with their partner and/or getting married would seek legal advice before doing so and ensure that each party’s financial interests were protected and accounted for in the event that the relationship were to break down at a future date.

Despite the fact that pre-nuptial and post-nuptial agreements are more commonplace in modern conversation, and consistently relied upon by Courts in determining financial provision post break up, most people still shun the idea, not least because it seems antithetic to the process of forging a joint future life.

That being the case, when it comes to divorce, the process by which financial provision is determined relies very heavily on two terms: openness and fairness.

An unlikely couple perhaps and fairness in particular can often be a hotly contested subject within divorce finances. Fairness, nevertheless, is the key to determining what provision will be made. Generally, the accepted starting point is to consider whether an equal division (50:50) of the marital assets would provide a fair settlement.

In broad terms, “fair” to a Judge means ensuring that both parties’ needs (for housing, capital and income) are adequately met out of the available matrimonial assets, and although the starting point is an equal division, that does not necessarily mean that everything each party owns will be split down the middle: here, the Court makes a clear distinction between matrimonial assets, non-matrimonial assets, and post separation accruals.

Examples of non-matrimonial assets include: gifts (of value) to one party, inherited assets, business assets acquired before marriage and, in some cases, assets acquired post separation. Pre-marital assets are common in second marriages as well as in cases where one party’s family has significant financial interests in which that spouse is involved.

Whether an asset is deemed to be a non-matrimonial asset is a matter of fact according to the circumstances surrounding ownership and enjoyment of the asset. In many cases, the longer the marriage, the more likely the presumption that the asset will have become intermingled with other marital assets and therefore will become a matrimonial asset.  In other words, the Court will consider whether the wealth went into the matrimonial pot during the marriage or whether it was kept specifically outside of the parties’ other assets as a distinct and untouchable asset.

The party asserting the existence of pre-marital assets must prove they are such by clear documentary evidence, in other words. evidence of the existence of this asset prior to the marriage and also, evidence that this was not intermingled as an asset during the marriage. If the argument is sustained that a particular asset is a non-matrimonial asset, then in high net worth cases, it may well be excluded from any financial settlement.

The situation is similar when it involves assets accrued after the parties have separated: to be considered a non-matrimonial asset, the benefiting party needs to show that the assets were acquired entirely independently of existing matrimonial assets, for example when a new business venture is established using independent financing. Where an existing matrimonial asset gains value between separation and the determination of financial claims, the Court may well treat the increase in value as a non-matrimonial asset.

As with most legal arguments, there is no absolute. What one man sees as his and his alone may well be deemed by a Judge to fall within joint marital assets to be divided between the parties, and this can include business assets and interests too, so to be protected means taking proactive rather than reactive legal advice from an expert.

 

Marriage Going Down, Cohabitation Going Up

Lucinda Connell profileLucinda Connell, specialist children’s solicitor with Major Family Law, the best divorce and family law specialists, states: As a family lawyer, the statistics with regards to the number of peoples choosing to formalize their relationship by way of marriage is always on interest. The latest figures in this area have now been published by the Office of National Statistics and they show that just over half of the adult population are married.  In 2015 there were 23.8 million people (in England and Wales) who were married. This was 50.6% of the population aged 16 and over. In 2002, married people amounted to 54.8% of the population aged 16 and over. The number of marriages can be seen to have continued to decline.

The population aged 16 and over who were single increased from 29.6% in 2002 to 34.5% in 2015. There were 28.4 million people living in a couple in 2015. This was 60.5% of the population aged 16 and over. This coincides with an increase in people cohabiting who are never married or civil partnered (from 6.8% in 2002 to 9.5% in 2015), as cohabitation has become more common as an alternative to marriage, especially at younger ages. The rise in single population also reflects more people in middle age groups remaining unmarried.

The specialist family lawyers’ organization, Resolution, has campaigned for some time for reform to the (currently) unclear and outdated law which governs the position when a cohabiting couple’s relationship breaks down. A Resolution spokesman, Graeme Fraser, commented:

“These statistics should be regarded by policymakers as a wake-up call that cohabitation is a trend of modern society that is not going to go away. As family lawyers who see the damage caused by the lack of protection for cohabiting couples when they separate, Resolution calls for the urgent introduction of safety net legislation providing legal protection and fair outcomes at the time of a couple’s separation, particularly for children and mothers left vulnerable under the existing law.

In light of the latest ONS data, reform of the law for cohabiting couples should be one of the top priorities for the new Justice Secretary.”

May the Force be with her…

p131940-(2)Lewis Hulatt, South East Consultant with Major Family Law, the best divorce and children law specialists, comments:

Theresa May became our Prime Minister last week – a job that comes from her fellow Conservatives, rather than being the choice of the people.   It is a mandate that is different from that of the President of the United States, who publicly suffers a ‘beauty contest’ to be one of two options for the electorate and then needs to find a way to deal with a Government that may not support his (or her) personal policies.   At least for her the fighting is restricted to which shade of blue is applied to the policies.

What does this mean for family law in the UK?

Avoiding economic calamity, social unrest and harm from terrorists will all rank above establishing a coherent family law regime.  On the liberal side, she voted to permit same-sex marriage, but on the harder side, she favours the erosion of Human Rights.   She would argue that existing interpretation of human rights law endangers the ‘right to life’ of everybody, so easier deportation, more surveillance and a ‘toughening up’ are required.  Again on this she seems a complex person – somebody who correctly identified that the public perception of the Conservatives was as the ‘nasty party’ which needed to be addressed and in an un-Conservative manner got tough on the police for being less trustworthy than she thought right. That shows a sense of realism as well as determination to get change.

I am not much of a student of politics, despite having a tendency of ‘putting the world to rights’, but there is something somewhat Thatcher-like about our new Prime Minister. She has served a long time in Government and expected to be no push-over when discussing terms of Brexit – our looming legal separation from the EU.

However – and this is my final point – when you have a divorce settlement to negotiate – you want somebody who can examine the issues thoroughly, have some flexibility about options and then show determination to get a fair and mutually acceptable outcome.

May she do that?