We Want Prenup, We Want Prenup

Read what our North West based consultant family lawyer, Moji Sobowale, says re Pre-nups:

Let us be honest, “scepticism about marriage” is quite often scepticism about marital breakdown and the way in which a couple’s financial affairs will be handled in that event.

I am not one for mass classifications but, having grown up in North Yorkshire, it is true that people from Yorkshire are blunt of speech though warm of heart. It is for this reason that when I am constantly asked if being a family lawyer makes me sceptical about marriage I simply say, “no, I  can get a prenup”. That is not to say that I will or that everybody should. It is simply to say that since the landmark decision in Radmacher v. Granatino in 2010 a pre-nuptial agreement between my partner and I would be enforceable if:

  1. Each of us freely enters into it;
  2. We both agree the terms of the prenup with full appreciation of its implications;
  3. there are no prevailing circumstances that would make it unfair to hold us to the terms of the agreement.

I once read an article entitled “If you want a prenup, you don’t want marriage”. With respect, it is this misguided belief that may have contributed to (but by no means caused) the 8.6% decrease in the marriage rate.

Many would-be spouses may shudder when their other half utters the word “prenup” but what, really, is there to be scared about? Is having a document that defines the parameters of the division of financial assets on divorce not less scary than playing Russian roulette with the wide-ranging discretion of a judge? The point is that prenups can allow for greater certainty.

What about the predicament of real need? In Radmacher the court held that spouses are unlikely to have intended that one of them be left in a “predicament of real need” or destitution. Many of us, at least at the outset, would agree that our partners should not be. Those of us who don’t, don’t want marriage.

Both parties should seek independent legal advice before entering into a prenup. Indeed a post-Radmacher case confirmed that parties will need to have received at least enough legal advice to appreciate what they are giving up before they will be deemed to have full appreciation of the implications of a prenup.

Any prenup should be carefully drafted by a family specialist. Moji is a consultant family law solicitor who is able to advise on any issues you may have relating to pre and post-nuptial agreements.

 

Lasting Impact

Our North West based consultant family lawyer, Moji Sobowale, provides us with 6 top tips to minimise the effects of marital breakdown on our children.

Tributes were recently paid to the late Princess Diana on the 20th anniversary of her passing. I vividly remember the day that this tragedy shocked the nation. I had just turned eight-years-old and my mother was weeping uncontrollably. That was one of the very few times I have seen tears, in those proportions, pour out of my mother’s eyes.

The truth is that Diana and I shared something in common, we found watching our mothers cry earth shattering:

“I remember Mummy crying an awful lot and every Saturday when we went up for weekends, every Saturday night, standard procedure, she would start crying. On Saturday we would both see her crying. “What’s the matter, Mummy?” “Oh, I don’t want you to leave tomorrow,” which for a nine-year-old was devastating, you know.” Diana, Her True Story

We now know that Diana’s childhood was plastered with unhappy memories of her parents arguing. Those memories have a lasting impact on children.

So how should warring spouses behave as parents both pre and post-separation? 6 top tips:

  1. never bad mouth the spouse/ex-spouse in front of the children, they are perceptive. Embroiling children in a bitter war of attrition is likely to be detrimental to their psychological development;
  2. never make children take sides whether advertently or inadvertently, statistics show that children often say one thing to one parent and make a wholly contradictory statement to the other;
  3. once separated, establish a workable pattern of care for the children remembering what is in their best interests not what suits you;
  4. as tempting as it may be with very close relationships between parent and child, avoid using the children as shoulders to cry on. Children already feel the impact of a divorce. The role reversal of acting as a counsellor to their protectors is likely to cause children long-term emotional damage.
  5. when the children are spending time with you shower them with your time, love and affection, not meaningless gifts. Diana recalls each of her parents, “trying to make it up in their area with material things rather than the actual tactile stuff, which is what we both craved but never got …”
  6. Now, at first glance contrary to point 4, treat your children like adults in the sense that they will know something is going on. If possible, work out a joint non-inflammatory way to break the news to them gently.

It is always better to agree but we appreciate that sometimes the circumstances can make this difficult. When at cross-purposes over their children’s upbringing and welfare, parents must handle things delicately, not least for the sake of the children.

What I’m sure is pleasing to all, whether you are a royalist or not, is the fact that Prince William appears to be taking to his roles as husband and father in an exemplary fashion.

As a family law solicitor, Moji is able to advise on the law behind and intricacies involved in making child arrangements.

Arbitration – the privatisation of the Court system?

The hope for any divorcing couple is that the division of their marital estate can be dealt with by agreement, following a degree of negotiation between themselves or their respective lawyers. In the majority of cases, this is fortunately the reality and at Major Family Law we pride ourselves on using our expertise to negotiate rather than litigate.

Sadly, not all cases can be agreed in this way. The very nature of our family law legislation allows for a broad discretion to be applied when determining the division of a marital estate and this can inevitably lead to a difference of opinion in approach or principle.  In such cases parties often apply to the family courts to have their case determined by a Judge.

The process of litigation is not entirely straightforward and usually involves up to three Court hearings before an eventual decision is reached by a Judge at a Final Hearing. The process can be very frustrating for those involved in it, particularly in view of current Court delays.  For cases that must proceed to a contested Final Hearing the process can take over a year to reach a conclusion.  This also assumes that the hearings proceed as planned.  We have had experience of the Court cancelling hearings at the eleventh hour, due to lack of judicial availability.  By that stage, the cases were fully prepared and Counsel had been instructed to represent the clients, incurring costs which could not be reimbursed.

In view of these issues, some are losing confidence in the Court system as a means of resolving matrimonial disputes and are turning to arbitration as an alternative method of dispute resolution.

The process of arbitration is similar to the Court process in that a binding and enforceable final decision is ultimately placed in the hands of an independent third party – the “Arbitrator” – although there can be a number of advantages to arbitration as opposed to litigation.

Arbitration allows for a greater degree of flexibility. Court litigation is controlled by procedural rules, whereas arbitration can be tailored to suit the parties’ particular needs and allows for parties to set their own timetable and agenda.  As a result, the process is often much quicker than court proceedings, with a final decision usually being reached within 3 to 6 months.  The consequence of this quicker process is that arbitration is frequently less costly than litigation, primarily due to the compressed schedule, and the fact that once a hearing date is agreed it rarely does not proceed.  The privatisation of the process is a significant advantage as parties can have confidence that once a hearing date is fixed, their case will be determined on that date.

Another significant benefit to arbitration is that parties are able to choose the Arbitrator who determines their case. Arbitrators are selected from a pool of professionals, with experience in the field of family law, meaning parties can be assured they have the necessary expertise. By contrast, at Court, no individual judge is assigned to a case and therefore multiple judges may be involved throughout the process. Although all judges must complete training, some may have a background in civil law as opposed to a family law which some may find disconcerting.  Thus, arbitration affords the parties the ability to select the decider, whereas Court litigation does not.

For some cases, arbitration can be the solution to the problems faced by the Courts and a system which is being placed under increasing pressure with ever mounting case lists and a lack of judicial availability. Arbitration is effectively the privatisation of the Court process and offers significant benefits to those who wish to be afforded more control over the process governing the outcome of their legal dispute.

Please contact our office to speak to one of our team about whether your case is suitable for arbitration.

Virtually Unreal Progress

Read what our South East based Consultant, Lewis Hulatt, of Major Family Law, the best family and divorce lawyers, says in the Luxe magazine this month:

Online divorce and ‘Open All Hours’ Courts are coming our way as North East families in government experiment as explained by Lewis Hulatt, Consultant Solicitor with Ponteland-based Major Family Law.

Even if you are ‘happily married’ and do a good job of caring for your children, the chances are that somebody you care about will be affected by problems needing legal solutions.   People do their best to handle legal problems themselves in a system that can never be stripped of complexity, no matter how big the typeface forms are printed in.  Big fonts or small print, legal documents are complicated and change lives.

Add Online Divorce as complexity dressed up as simplicity.

Getting involved in court proceedings after a few clicks of the mouse might sound like ‘progress’ in a 24/7/365 digital culture, but so far algorithms cannot factor-in your emotional wellbeing.   All courts are moving over to online divorce after centralisation of family law work into regional hubs and the government clearly hopes that there will be further costs savings through technology and court closures.    Once they changed the local family courts to being one national mega-court merely ‘sitting at’ locations, I predicted that the agenda of court closures and property sell-offs was gaining momentum.

Newcastle has been selected as one of a handful of areas where ideas to ‘modernise’ the court system are being piloted at short notice.   There was no complaint that the people of the North East were unhappy with Courts only opening during the day, but it has struck the bean-counters that not using real estate for part of the day is inefficient.  With judges retiring at a rapid rate, court staff hiding from the public rather than face their understandable annoyance with how the system treats them and administrative backlogs that often stretch into weeks’ of communications, one might think that opening courts into the evening might not be the solution.

In the original pilot scheme for extending court opening hours into the evening, there were considerable negatives which those controlling the project seem unwilling to recognise.   Now they are imposing those negatives on the people served by the Newcastle courts.  Judges working split-shifts or over-long hours may come to echo the problem with hospital doctors – too few being asked to do too much.  We have seen how well successive governments have managed that problem.

In the programme of court closures, it was proposed that in future cases be heard in any venue they could hire ‘on the cheap’ for the day.   So much for taking justice seriously: the public and lawyers alike were not convinced that the seriousness of decision-making would be enhanced by hearings being held in an infant school hall or the function room of a Byker pub.

Around the country, closing court buildings was about as popular with as expecting Newcastle United and Sunderland to both go and ground-share with Middlesbrough or if there was a match already on, switching the venue to Gateshead Stadium or Wallsend Boys club.   When you are worried about your future being decided by a judge, introducing ‘flexibility’ of venues increases anxiety.

At Major Family Law, we look ahead to anticipate developments, as well as deal expertly with the law as it is and Newcastle being a pilot area for a scheme that was generally regarded as unpopular and ineffective elsewhere does not fill us with optimism.

When online divorce is rolled out, we expect to hear of people who went online ‘under the influence’ and started divorce proceedings, rather than simply bought 237 pairs of flip-flops on eBay.

As taking time is considered ‘delay’ rather than an opportunity for reflection, safeguards so that people do what is best will probably remain lacking. Having the experience and skills to help you decide what is right rather instead of what is easiest/quickest will remain something that good family lawyers will endeavour to maintain.

If you have a family matter you wish to discuss with Lewis you can email him direct lewishulatt@majorfamilylaw.co.uk

The Bare Truth: Dress codes in the digital age

Read what our South East based Consultant, Lewis Hulatt, of Major Family Law, the best family and divorce lawyers, says:

What is the purpose of a necktie?   Perhaps in days of yore it held together the collar of a shirt or was a shrunken ruff which whilst revealing the chicken skin or dewlaps, distracted the onlooker.  In the modern world it represents a sign of conformity – is there greater sign of being ‘the establishment’ than sporting the ‘old school tie’?   In a world where the poor feel increasingly disenfranchised and the gap between them and the rich is greater than ever before, is it appropriate that solicitors adopt a visual cue that they align themselves with the vested interests rather than seeking justice for all?   In a society where access to legal redress for private disputes has been treated as an ‘unaffordable’ expense and the court system seen as a service for those who can pay rather than an integral part of civil society, the role of solicitors may be somewhat supportive of the law, but that should not imply satisfaction with the status quo.

It is helpful for those who wish to exercise control to have a barometer of conformity that has little or no practical usefulness – so a necktie fits that profile.  A person can think themselves a ‘rebel’ by choosing a ‘loud’ tie or one they consider subversive, but by adorning themselves with a tie that has not innate usefulness, they are signing up to their place on the conformist register.

Lawyers are ‘conformist’ in that they uphold the law, but thinking back to schooldays, finding a way to wear their tie so as to obey the rules whilst challenging the spirit of those rules might be considered the early efforts of potential lawyers. If some clients like the appearance of a necktie, so be it and if that is particularly important, they are sure to find a lawyer who either likes neckties or feels obliged to conform.

However in a digital age where sometimes we do not ever physically meet our clients, I make no apology for my everyday workwear. I recognise that eschewing a necktie would be seen as disrespectful, so I wear a tie at court for that reason.  Although that part of our dress-code is externally imposed, dressing smartly shows respect for the position of the judge and can make the advocate feel that they are ‘in the zone’ to fulfil that role to the best of their ability.

On my ‘man-cave’/office door there is a sign which says ‘I am up and I am dressed: what more do you want?’

Living (Together) On a Prayer

Lewis Hulatt, South East Consultant with Major Family Law, the family and children specialist solicitors, comments as follows:-

Many of us punctuate our lives with songs.   I certainly do.

I was online last week when the Manchester disaster was unfolding and afterwards, felt angry at the senseless hurt caused to so many people. Somebody with great wisdom spotted the aptness of a song by perhaps the greatest Britpop band to come out of Manchester.

Oasis’s ‘Don’t Look Back in Anger’ was a near-perfect choice for Manchester, as local lad Noel Gallagher’s lyrics have so much to express about moving on positively.

Music deals with experience and another song that hit me last week was Bon Jovi’s ‘Living on a Prayer’ dealing with a relationship in adversity.

It struck me because it contained a truth about the precariousness of hope and recently, we have had a lot of unmarried family break-ups to resolve.   Despite many couples splitting, hardly anybody enters into a ‘Cohabitation (Living Together) Agreement’.

The general law divides the proceeds when a jointly-owned property is (eventually) sold, but judges lack the discretion to achieve overall ‘fairness’. Dealing with joint bank accounts, arrangements for triggering a sale, who should pay what and what should happen if one person leaves are all terms that can be more easily agreed when the couple are well-disposed towards each other.

Sadly although many of their sales are from couples splitting up, too few property lawyers encourage buyers to have Agreements.   However, even if the purchase has completed, a binding Agreement could be prepared while people are amicable.

A formal Agreement helps people articulate understandings, so ask us about some preventative medicine rather than seek our help when it has gone wrong.

Without an agreement, you are hoping that if you separate you will both be reasonable.   In our extensive experience, that really is ‘Living On A Prayer’…

Fifty Shades of Grey

IMG_6002Read what our South East Consultant, Lewis Hulatt, of Major Family Law, the best Divorce and family law solicitors, says:

My parents are due to reach 60 years of marriage later this year and my wife’s parents have already smashed through the 50 year mark. Together that is more than a century of marriage experience.

Neither side has ‘silver splitters’, but I can understand how it can happen. My wife may jokingly enquire what the journey was like from my upstairs man-cave (office) to the kitchen, but as a consultant working over the internet, I no longer spend an hour or two each day in traffic.  I work within the sound of the coffee machine which punctuates the day.

Like somebody at retirement, I would be ‘under my wife’s feet’ should she not be at work herself and when I initially stopped travelling to work, my wife was at home with a broken foot, so we spent a lot more time together than we were used to.  Amongst other things, we started to bake bread together – with me nimbly evading her protective boot.  We adjusted, but sometimes couples have lived fairly separate lives whilst working and cannot cope with spending so much time together at retirement, despite their shared memories.  Separation is like a bereavement in that there is a loss of the person who can fill in detail, correct or remind.  That can be particularly difficult for ‘silver splitters’.

I mentioned that to a lady over 60 who laughed when she told me that she didn’t have the time nor energy to train up another husband.

As well as sorting out sensible arrangements on separation, we can help with moving forward.   People cohabiting or re-marrying later in life often wish to avoid conflict with their children and a Cohabitation/Pre-Nuptial Agreement can reduce the suspicion of financial opportunism.

Parlour Games and Cash-Machines: Men in divorce

ProfileRead what Lewis Hulatt, South East Consultant with Major Family Law, the best divorce and family law solicitors, says:

At the weekend, I read a thought-provoking article in the Sunday Times written by Martin Daubney entitled “Divorced men doomed to life as a cash machine” which took a bleak view of ongoing support obligations. In support, he cited Ray Parlour’s wife getting an unprecedented ongoing settlement. That was in 2004 and rarely repeated since. As men tend to be the higher earners they are more often the payers of support. It was an odd point at which to come to his conclusion that men are ‘cash-machines’ in 2017.
Case law on spousal support is not like that – even going back to the 1980s and the beginning of my career in law. Particularly over the last few years, the trend that we have seen has been towards the expectation of independence.
Perhaps the problem lies in the manner in which such Orders are made. The norm has been to order support indefinitely and expect the situation to be brought back before the court for review. I recently advised about an order made over a decade before which was had no ‘expiry date’ and therein lies the problem – in circumstances where the ex-wife had cohabited with another man for years, had a subsequent child and had inherited considerable wealth and a business, it fell to the less affluent payer to get support terminated.
Judges rarely consider either the expense or the stress of court applications. Faced with expense and uncertainty, it is little wonder that men often endure the corrosive resentment of paying.
Payers should not be ‘cash-machines’ but it is a systemic problem not the fault of the spouses.
As a family law solicitor who also worked as a mediator, I discuss these issues of review both with the payer or the receiver.

Martin’s article:
http://www.thetimes.co.uk/edition/news-review/divorced-men-doomed-to-life-as-a-cash-machine-lw526hj3n

Considering divorce: are you tangled up in thoughts or thinking clearly?

graemeRead what Graeme Armstrong, Family Consultant, with Major Family Law, the leading divorce and children law specialist in the North East, says:

There are few marriages that run their course without one or both partners wondering if “I’d be better off alone,” yet it’s quite another thing to take that step into separation or divorce.

In nearly 20 years of counselling individual and couples I have never experienced a person going into divorce lightly; the depth of emotional investment created in couple relationships seem to exclude any superficial response to divorce.

To take a step back, we could say that there are 4 domains to divorce:

  • the legal
  • the financial
  • the parental
  • the emotional

It’s in the last two domains where I consider my area of work, helping individuals and couples untangle the often decades old spaghetti junction of their relationship with its dreams and disappointments in order to pursue a clearer drive through.

It’s in the fourth domain that often our troubles arise. Our emotional life, its wellbeing, psychology, hopes, dreams, sexual and spiritual longings become the very relationship dynamics that we get caught up in and drive us, often traumatically, in divorce. It’s true to say that often what brought us together, pulls us apart.

What occurs during the breaking of the relational bond is a sudden activation of our old brain, which becomes super-aroused. This is the part of us that is bound up in flight or fight, our amygdala gets hijacked and the couple who were once joined at the hip are now joined at the hippocampus in what seems to be a very primitive battle for survival.

Making clear, reflective decisions at this time, choices that will profoundly impact on a life for decades to come can be hugely difficult. “How do I know I’m doing the right thing?” is a question I hear time and time again.

Quite frankly, if you are asking yourself (and me) that question, you probably don’t know-yet-if you are doing the right thing.

So, don’t decide. Take time. Talk it through. Get help. Process. Get more help.

The end of your marriage is not the end of your life, it’s really a new beginning, but in the pain and trauma that might be leading up to making the move into divorce, in the tangled thoughts and emotions here are some questions you might like to ask yourself

  1. Do I believe I’ve outgrown this relationship?
  2. What would it feel like to be in this relationship for another 5 years?
  3. If I go forwards with this separation and/or divorce, what help do I need to stay on track for my family, for my work?
  4. Am I thinking clearly here or caught up in tangled emotions?

Take time. Talk it through. Get help. Your future deserves it.

Don’t let Christmas drive you Crackers

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

    It must be nearly Christmas for real – not the phoney Christmas created by supermarkets which these days is interrupted by Halloween.  Trick or Treat?  I have never been sure that criminal law is suspended on October 31st so demanding (sweets) with menaces, assault (causing fear of battery) or behaviour likely to cause a breach of the peace (annoying grumpy householders) are equally to be punished as administering noxious substances (covering Brussel sprouts in chocolate) or threatening behaviour (answering the door with a real axe in hand) [Query to self is that going too far?]

    Halloween is supposed to be ghoulish and celebrate the Dark Side, whereas Christmas falling close to the winter solstice is meant to bring us cheer and the celebration of hope and light as the length of night gradually recedes. You have got to give the established church credit for choosing a good date for a focus for hope.

    However, modern Halloween is probably more light-hearted than most people feel about Christmas.

    Christmas is a pressured time – there are the practical and family-political arrangements to make (who gets Great Aunt ‘Smelly’ Nelly this year?) and having the glory of carving the turkey should be earned not expected simply due to alpha-male virility.  Inviting home a group of golfing buddies or hangers-on from the rugby club without consulting the cook is not going to earn a husband any Christmas treats.  Equally, failing to disabuse the children that anything they ask for is up for discussion may not be diplomatic when unexpected bills have shrunk the funds available.  Pressure comes from many places – wanting to please families and friends, practicalities that involve time/effort and financial pressures.

    Pressure Cooker

    Where there is pressure, there is scope for conflict and failing to think about or discuss the allotment of finite resources such as money, time or emotional energy makes it more likely that a couple will look back with regret over the fouled-up turkey or dog’s dinner of a Christmas pud. The pressure to have ‘a good Christmas’ is not restricted to Santa’s elves, so when it fails to meet expectations, it is a source of dissatisfaction generally and the other person will often be blamed. “That’s the last Christmas I put up with him/her…”

    There is still time to discuss arrangements before the pressure builds up.