Amicable divorce?

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

Been together over 40 years, but it feels like you want different things these days. Not sure you even speak the same language – if you ever did.  One finds the other controlling and stifling. The other does not appear to listen and wants things their own way.  You tried to change things, but what they offered was too little too late.  Result = separation.

Obviously I was talking about Brexit – the decision of just enough voters to leave the EU, but the parallels are very clear and so is the most important lesson for now: people need to think things through to work out the practicalities to maximise benefit and minimise harm.

There are emotional issues involved – feelings of regret, anger and the loss of expectation and that will be as true for Britain as in domestic relationships. Already, we have ‘the children’ unhappy with the decision and finding it difficult.  In a democracy, when a decision is made, the social contract between people is that we try our best to put that decision into effect in the best way devisable and that should also be what families do.

There are no immediate legal impact of Brexit under family law – such is the opinion of Resolution, the multi-disciplinary body that includes many family solicitors and the experts they work with.   What we can be sure of is that family law will be a low priority for a Government faced with the heavy burden of sifting through the interaction of English and European laws so as to replace applicable EU laws and regulations with British ones.  Preserving a legal environment in which trade and commerce can continue will be a priority because without business, there is almost no tax revenue to pay for the things that the public demand, like the NHS.

So, whilst investments, long-term business prospects and general economic factors will be of concern, it seems unlikely that Brexit will have a major impact on family law in the near future.

What we must do is the same as sensible spouses should do and that is think about what needs to be sorted out and do so in ways that bring the greatest benefit and the least harm. That is best achieved using a problem-solving approach, rather than antagonism and reproach.

The solicitors at Major Family Law are experienced in that.

 

Call to Scrap Increased Divorce Petition Fee

Lucinda Connell profileRead what our specialist family lawyer, Lucinda Connell, of Major Family Law, the leading niche Family Law Firm, says:

Earlier this year, in a move which took many family lawyers by surprise, the Ministry of Justice increased the fee payable to commence divorce proceedings from the previous £410 to £550. The same fee applies to applications for a decree of nullity or, in the context of civil partnership, for a dissolution order or nullity order.  The Justice Select Committee has called for the increase in the fee to be rescinded. The MoJ had originally proposed that the fee should be raised to a whopping £750 but proceeded with the lower increase in response to a consultation on court fees.

The Committee’s recommendation was made in a newly published report on courts and tribunal fees. Of the divorce fee, the committee noted:

“[W]ith the average cost of proceedings standing at £270 in January 2015, the fee of £410 was already an enhanced fee.”

The committee concluded:

“A further increase to £550, which is approximately double the cost to the courts of providing the service, is unjustified. It cannot be right that a person bringing a divorce petition, in most cases a woman, is subject to what has been characterised in evidence to us as effectively a divorce tax. We recommend that the increase in the divorce petition fee to £550 be rescinded.”

The report also raises serious concerns about the quality of the Ministry’s research and shares the view expressed by the senior judiciary and some others who gave evidence that it does not provide a sufficient basis to justify the proposals.

The Committee also proposed that a pilot scheme should be set up of a system in which there is a graduated or sequential system of fee payments whenever there are substantial fees payable in total in respect of a case in the civil or family courts or tribunals, allied with the requirement for the respondent to pay a fee.

It was also recommended that the Ministry of Justice should take up the Law Society’s suggestion that it should introduce a system for regular rerating of remission thresholds to take account of inflation, and that it should conduct a further review of the affordability of civil court fees and the remission system, considering means of simplification, for example through automatic remission for all basic rate taxpayers.

The recommendation will be welcomed by many separating couples and family lawyers alike and Resolution has urged Ministers to listen to the Committee.

 

 

Leaving the EU and Family Law

Lucinda Connell silhouetteLucinda Connell, Senior Specialist family law solicitor, with Major Family Law, the best Divorce and Family Law specialists, comments:

As the nation comes to terms with the EU referendum result, family lawyers are wondering too what shall happen next. The truth is that it is simply too early to know the full implications for family law and lawyers although a period of great uncertainty seems inevitable. Like most areas of legislation in the UK, family law is currently intrinsically linked to that in other jurisdictions.

One of the first questions for most family lawyers will be what impact leaving the EU shall have on jurisdiction and child abduction cases which are governed largely by the EC Regulation best known as Brussels IIA.

Nigel Shepherd, the Chair of the specialist family lawyers organization, Resolution said:

“We won’t know yet what withdrawal from the EU will mean for measures like Brussels IIa, which provides for uniform jurisdictional rules for divorce proceedings; or maintenance arrangements, which are currently regulated throughout the European Union. It’s unlikely that the implications for family law will be a priority for the government, and it’s a distinct possibility that any currently planned or envisaged reforms to family law will be put on hold.

There are also wider issues not directly related to family law. Should a short-term impact on the financial markets turn into a longer-term economic issue then it will affect people’s personal finances – things like pensions, investments and house values. These will all need to be taken into consideration when dealing with financial matters upon divorce. Resolution will continue our work with government and others to both influence the future of family justice, and provide our members with the support, information and resources they need in order to deal with the post-referendum landscape.”

 

Single Parents with Surrogacy Children Should Have Same Rights as Couples

Lucinda Connell profileRead what our Children’s specialist Solicitor, Lucinda Connell, of Major Family Law, the top divorce and children’s leading specialist solicitors says: The President of the High Court Family Division, Sir James Munby, has made a formal declaration that UK law unfairly discriminates against single parents with children born through surrogacy and is incompatible with their human rights.

In the case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam) an application had been brought by the biological father of the child ‘Z’, a 21 month old boy born through a recognized US surrogacy arrangement and who lives with his British single father in the UK.    Last year, the court denied Z’s father a UK parental order (which would extinguish the responsibilities of the surrogate and lead to the issue of a birth certificate for Z in the father’s name) because only couples – and not single persons – are permitted to apply.  The court ruled that the surrogate who had carried Z (who lives in the USA, is not his biological mother and has no legal status there) had sole decision-making rights in the UK.  Z was made a ward of court, which means the court safeguards his welfare and makes decisions about his care.  The High Court has now said that that decision, although legally necessary, was incompatible with both the father’s and the child’s human rights, and that the law discriminates unfairly against both the father and Z.

In an unprecedented move, the Secretary of State for Health, having seen the father’s arguments, conceded that the law was incompatible with human rights legislation and did not oppose the father’s application.  The government has not yet said whether it plans to take action to change the law.  Although it is for Parliament to change the law, declarations of incompatibility from the High Court carry significant weight and to date all but one of the 20 final declarations made by the court under the Human Rights Act have prompted legal change.

Responding to the judgment, Z’s father said:

“I am delighted by today’s ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy. I have a son who I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court.”

Elizabeth Isaacs QC, leading counsel for Z’s father, said:

“Declarations of incompatibility are rarely made, so this is a very significant decision.  Having consented to the declaration, there is no reason why the government should not take swift action to change the law.  We hope that the law will be changed to enable a parental order to be granted for Z as soon as possible.”

The ruling comes amongst a growing body of voices calling for a more wide-ranging review of UK surrogacy law, which has not been updated since the 1980s, and which does not recognize surrogacy agreements and instead treats the surrogate and her husband as the legal parents.  In a Parliamentary debate in October 2014, Jessica Lee MP said UK surrogacy law was “outdated, limited and in places illogical”.  Last week Baroness Warnock, the architect of the UK’s surrogacy laws in the 1980s, told Radio 4 Woman’s Hour that she had ‘got surrogacy law wrong’ and that parents through surrogacy should be recognized as the legal parents of their children from birth.

Helen Prosser of Brilliant Beginnings, a leading non-profit UK surrogacy agency which helps parents through surrogacy both in the UK and the USA and is campaigning for legal reform, said:

“The discrimination against single parents is a pressing issue and we are delighted at the ruling, and the government’s sensible approach in supporting it.  However, there are also other significant problems with UK surrogacy law, which is failing children and driving increasing numbers of parents to enter into surrogacy arrangements overseas.  UK law on surrogacy is woefully outdated and out of step with modern reality, and we hope that this ruling will also highlight the need for a more thorough review of surrogacy law.” 

Final Settlement in Contentious Divorce Saga

Lucinda Connell silhouetteLucinda Connell, Senior Solicitor with Major Family Law, the best divorce and family law specialist, comments:

The case of Wyatt v Vince [2016] EWHC 1368 (Fam) hit the headlines as it involved an unusual application to the court for a financial order by a wife some 19 years after the pronouncement of Decree Absolute had terminated the parties’ marriage.

Mr Justice Cobb has this month approved a financial settlement reached by the parties which involves the payment of a lump sum to the wife, notwithstanding the fact the parties had separated and subsequently divorce more than twenty years ago.

The background to the dispute is highly unusual in that the wife, Kathleen Wyatt, issued a financial remedies claim against the husband, Dale Vince, 19 years after the final divorce Decree Absolute.  The other notably striking feature of this case was that in the intervening period, Mr Vince’s lifestyle and wealth had changed remarkably and he had become a hugely successful business man who owned a company with an estimated value of £57 million. The husband’s attempt to strike out the wife’s claim failed at first instance but then succeeded in the Court of Appeal. However, that judgment was then overturned by the Supreme Court who unanimously allowed the wife’s appeal against the strike out of her claim and directed that the wife’s application proceed in the Family Division of the High Court. In a judgment dated 10 June 2016, Mr Justice Cobb confirmed that the final order settling the proceedings should be made public.  The consent order provided:

  1. A lump sum of £300,000 to the wife in full and final settlement of her claims 2. That the wife should retain a payment on account of £200,000 paid to her by the Husband towards the costs of the Supreme Court appeal in addition to the award of £125,000 towards her costs made in December 2012.

The husband had argued that he should be at liberty to publish “the likely net benefit to the wife of the lump sum payment” once her costs liability had been taken into account.  However, the amount of the wife’s final bill was not yet known and His Lordship considered that it was not in the public interest “for potentially misleading information to be published about the outcome of this case, and its actual financial impact on the parties.”  In the circumstances, His Lordship prohibited any disclosure of the sum said to be the approximate outstanding costs bill.

Fathers’ Day

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

I should consider myself fortunate – my father is 82 and was around to get my Fathers’ Day Card last weekend and question my route home from the North – ‘man talk’ involving road numbers. (He is not allowed a sat-nav because he has my mother in the passenger seat.)

When I was a kid, he was pretty much a weekend-only dad because he had what was for that time a long-ish commute, but as that was ‘normal’, I did not feel cheated by it.   If my parents had split up, I might have seen more of him than I did with them being together – as it was, whatever time we spent as a family was ‘normal’ so far as I was concerned.   From a child’s perspective, it seems that the adaptiveness that we inherit from our humanity, pre-disposes us with coping – we are the children, they are the adults and them deciding schedules seemed the natural order of things. As children, it isn’t really that big a deal exactly how much time we spend with our parents: time playing with friends often matters more at that stage of life.

Very few of my school friends and family had been through a family divorce, so I did not have a ‘yard-stick’ to apply to expectations of time with a father, but it seemed to me that at least one friend from a ‘broken home’ had it good – he saw both parents, had good times with both and he got (what seemed to me) generous financial provision from them. He was not traumatised by it – he had the natural survival instincts and adaptiveness that saw him through – underpinned by knowing that both parents cared about him, even though they lived apart.

That seems the key to successful parenting after parting – letting the children know that the parents are there for them and care, even if they do not wish to live together.

There are some good information courses about ‘parenting after parting’ and Resolution provide some guidance on their website at http://www.resolution.org.uk/afterdivorce/

In my experience of over 30 years in law and more than that of life – I would like to reassure the Fathers out there that splitting up does not mean the end of fatherhood.

Together or apart, you are unlikely to dodge awful cards with cloying sentiment and pictures of cars, golf, football and beer. Get used to it.

A stitch in Time

It could happen to YOU!

A while back, the courts were asked to empty a millionaire’s wallet by a woman who had been divorced for two decades.   Back then, it seemed they had been something like New Age hippies, but his practical idealism had led to him working on renewable energy which had eventually led to a small fortune.   Time changes people and his ex-wife, acting like ‘a really heavy bread-head’ (as Neil from The Young Ones would have said) asked him to contribute to her more capitalist lifestyle.

The records of what happened and what had originally been agreed back when they separated had been lost or destroyed, but it was clear that the husband had a lot more than his ex and nothing to show that she could not ask for a share of the money he had worked hard for after their relationship ended.

Naturally, the husband was aggrieved – when they separated, they didn’t have any wealth and from the husband’s perspective, it had all been dealt with way back when, so he asked the court to send her away without going through the extremely complex exercise of analysing their needs and resources: he said 25 years should be too long to wait.  However, the judges decided that even though he may have many points in his favour, the family law courts cannot throw out a case without looking at the merits.  As a result, the wife obtained an order that her much wealthier husband stump up cash to fund her having legal representation.  It went through every available court before going back before a judge.

Last week, the settlement was decided by a judge and the way-back wife was awarded £300,000, which was a lot less than she had demanded, but still enough to cause financial distress when added to the legal expense.

I have been asked by a recent millionaire who had chosen not to sort out any kind of formal financial arrangement when she separated and I have sometimes sought divorces for people separated for decades when they want to re-marry.   People also fill pension pots for many years after divorcing.  The starting point for a court would what people have and need now.

Even if you are on amicable terms and have modest assets, it makes sense to have a formal settlement in place including an Order by Consent.

A stitch in time…

Bank of Mum and Dad

Trevor DoorRead Trevor Gay, Senior Solicitor with Major Family Law, the North and South East’s divorce and family law specialist, article in this month’s North East Times: There is a shortage of housing in this country.

Price increases mean deposits are too high for first-time buyers.

Demand in the rental market is leading to a rise in rents.

Landlords demand deposits more than the average savings. Inflation is rising faster than incomes.

On top of that, the rising cost of university means many young people are simply not able to afford to put away savings each month.

With pressure from all sides there is little wonder that first time buyers are struggling to take a step on the property ladder. In addition divorce and separation often lead to a division of assets where there are insufficient funds to rehouse both parties.

This leaves many young and not so young people unable to meet there housing needs. Many of those will be forced to look at friends and families to meet their needs. The first port of call is up one generation. The source of lending now referred to as “The Bank of Mum and Dad.”

Many parents are keen to help their children, or at least they are scared they might have no option but to move back home!

Lending from parents to help their children get on the UK property ladder will amount to £5bn in 2016, according to data from Legal & General. This means the so-called Bank of Mum and Dad will help to finance 25% of all UK mortgage transactions this year – at an average amount of £17,500. If this lending prowess was combined into a formal business, it would be a top 10 UK mortgage lender.

For many additional funds are considered to be little more than an advance on inheritance. Often some small sacrifices are needed but it is considered worth giving a child, no matter how old, the dream of home ownership.

We all know that your home is at risk if repayments are not maintained and in the worse-case scenario your money could be lost.

But what if your child is not to live alone? What if the new home is to be enjoyed by as a home for their new relationship, or for their new family?

If both parties are making equal contributions then it is little to worry about. In the unfortunate, but entirely possible, situation that a relationship comes to an end the proceeds can simply be split.

Advice is needed at the time of purchase to formalise the relationship between a financial contributor and property owners. If the property is simply put into joint names then on separation, even immediate separation, it could be that funds are simply lost into the joint pot.

It is important to ensure certainty. Recent case law suggests that it is possible for the Court to be required to step in and determine the ownership of a property. After extensive consideration of the contributions, at great delay and huge expense, the Court can reach a decision that is not what you originally intended.

In the event of marriage the Court will consider the financial needs of the parties. The Court would have as a first consideration the housing needs of any minor children. Repayments of parent’s contribution are a long way down the list, if they give it any consideration. A “Soft Loan” is almost considered to be non-repayable.

To protect any investment the same needs to be protected. A simple Cohabitation agreement defining the investment and ownership of a property or the registration of a charge will assist the Court in deciding whether the monies are repayable, or even prevent litigation.

A simple agreement now can save heartache and costs in the long run. In advance of any arrangement please contact us.

Trevor Gay is a Senior Solicitor at Major Family Law, the Divorce and Family Law Specialists, 12 West Road, Ponteland, Newcastle Upon Tyne.   T: 01661  82 45 82 www.majorfamilylaw.co.uk. Twitter: @majorfamilylaw

 

We do complicated

20160531_122912Lewis Hulatt, Consultant Solicitor based in Surrey, of Major Family Law, divorce and children law specialists, comments:

We have been giving our garden a bit of a re-vamp, so saving me going to the gym.   A rockery does not spontaneously appear and rocks, even chipped ones, do not carry themselves, so apparently it was ‘good for me’.   I also had to help dig a trench for a cable, so I furthered my apprenticeship in manliness, using a jack-hammer to dig concrete last week.

We also needed to re-organise the garage and part of that involved a filing cabinet which has not been unlocked for a decade and for which the key cannot be found.   Finally accepting defeat on key-location, I prised the lock, flicked the internal mechanism with a screwdriver and the cabinet was open.  ‘Geezer points’ in the bag marked ‘swag’.

Amongst my hoarding within were the Best Practice course run by the Law Society for newly admitted solicitors in the 1980s, paperwork from setting up a community mediation service back in the 90s, and memorabilia throughout my career.   What I was most pleased to discover was a lone copy of “The Litigator” from 1995 which contained my predictions as to the future of legal practice.  Re-reading my somewhat irreverent prognostication in the Nottingham Law School/Law Society Gazette ‘Litigation 2000’ legal writing competition, I found very little that had not come to pass in what is now 21 years.

Essentially, it predicted restricted access to justice, online legal advice generated by fallible knowledge programs, exploitation of part-qualified lawyers, complaints-handling resourcing prioritised over service delivery, open competitive tendering and Citizens’ Advice Bureaux losing funding. “Qualifieds giving free at point of delivery advice” was a shocking idea for the wannabe lawyer serving unpaid in a LawShop who operated the (pre-internet) faxed-advice machine.

I predicted those controlling availability of legal services would aim to replace people with systems because they ‘know the price of everything and the value of nothing’. Wilde got there before me.

Somebody wisely told me that a good solicitor does not know everything, but they know where to look. Now law is on-line, it is all about how we use it.   A senior lecturer at Surrey Business School confided that it was often difficult to get law students to understand that evaluating information was more important than finding it.

We know that law is ‘out there’ but we understand how to make it work for you.

As I recently told a client “We do complicated”.

 

Pensions and Divorce

Lucinda Connell silhouetteLeading Family Law Specialist, Lucinda Connell, of Major Family Law, the North and South East’s best leading family law specialists, comments:

We all know what a pension is. Many of us however, overlook the fact that pensions are assets which can be shared on divorce.  Indeed, pensions are often one of the most valuable assets in any marriage.  So what can be done with them if a marriage or civil partnership breaks down?

There are three main ways in which pensions can be dealt with on divorce, and these are (1) sharing or “splitting” a pension, (2) earmarking or “attachment” of a pension and (3) offsetting.

The first and most common option is pension sharing. This entails the splitting of a pension (or pensions) between the spouses in proportions agreed between them or as ordered by the court. A specified percentage is taken from one pension, and the recipient can then either form a new pension with it or add it to their existing pension fund, depending on the terms of the scheme.

Attachment is where there is an earmarking for the other spouse part of the lump sum and/or monthly payments the pension holder will receive on retirement. Pension attachment is less common than pension sharing, not least because it does not fully achieve a clean break between the parties and remarriage and death can bring payments to an end.

Offsetting is essentially where one party to the marriage keeps all or part of the pension provision whilst the other spouse has a larger share of other assets, often the family home.

In determining the appropriate size, or percentage, of the pension sharing order to be made, principles of family law apply just as they do to other assets: the proposed option of dealing with the pension pot needs to take into account fairness, sharing and checking against equality and meeting the needs of the parties.

Pensions are complex investments and particular factors special to them also must be addressed such as the contributions made to the pension pot by a party outside of the marriage and relationship (before and after). It is sometimes necessary for specialist pensions advice to be provided by an actuary within divorce proceedings but consulting a specialist family lawyer is the best place to start addressing any queries you may have in the event of a potential marital breakdown.