Friday, October 24, 2014

Bad ideas, and other things

No, I'm not referring to my post ideas this week on Marilyn Stowe’s Family Law & Divorce Blog, which included:

A couple of bad ideas - The parenting presumption and making recipients of child support account for how they spend the money.

There’s more than one way to settle a dispute - Mediation is far from the only way.

Momentous and difficult decisions - As made, for example, by Mr Justice Mostyn in D (A Child).

Imprisonment for a debt - Looking at the judgment summons decision in Prest v Prest.

Have a good weekend.

Tuesday, October 21, 2014

Family Lore Clinic: My ex has informed me she intends to stop contact - can I apply to the family court before this happens?

Just to be clear for anyone who doesn't understand it, the question here is: do I have to wait until my former partner stops me from having contact with my child before I apply to the family court for an order that I have contact?

The answer to the question is, quite simply, no you do not have to wait until the contact is stopped.

There is a rule that essentially says that a court should not make an order relating to a child unless it is required, so the court may not be prepared to make an order if satisfactory contact is taking place and there was no 'threat' to stop it. However, once such a threat has been made, the court is likely to take the view that an order is required (provided, of course, that the court considers that there should be contact, which it will in the vast majority of cases).

I should also mention that contact orders no longer exist. They and residence orders were recently replaced with 'child arrangements orders', which deal with arrangements both relating to with whom the child is to live and with whom they are to have contact.

I would strongly recommend that, before you make an application to a family court for an order, you seek the advice of an expert family lawyer.

Friday, October 17, 2014

An enjoyable week

I particularly enjoyed writing my posts for Marilyn Stowe’s Family Law & Divorce Blog this week. I hope you enjoy reading them:

A worrying trend in children cases - Looking a little more deeply at the latest private law demand figures from Cafcass.

A system based on a fallacy - The fallacy that underpins the government's family justice policy.

The future of family law - A look at the President's speech at the 2014 Legal Wales Conference, plus a few predictions of my own.

When is a judge biased? - A post that tries to answer that question.

Have a good weekend.

Wednesday, October 15, 2014

Family Lore Clinic: Can I refuse a clean break agreement?

A 'clean break' is a final financial/property settlement between husband and wife that brings to an end all on-going financial obligations between them. After a clean break order has been made neither party can make any further financial/property claims against the other.

In particular, after a clean break neither party can claim maintenance from the other. Accordingly, a settlement that includes a provision for one party to pay maintenance to the other is not a clean break.

An order containing a clean break provision may include other provisions - i.e. the order sets out various other terms of the settlement - or it may include no other provisions, essentially just saying that each party will keep what they have.

Obviously, if one party refuses to enter into an agreement then there is no agreement. However, I assume that the questioner was seeking a little more information than that. There are, I think, two possible issues that they had in mind:

Firstly, do they have to agree to the other party's terms for a clean break agreement (whether or not those terms include other provisions)? The answer to this is: definitely not! You cannot be forced to agree to the other party's terms, although obviously the court may later consider that they were reasonable and make an order in those terms.

Secondly, and this is the most likely point of the question, does a settlement have to include a clean break? Again, the answer is no. Whilst the majority of settlements do include a clean break, in some cases a maintenance order will be appropriate and therefore there should not be a clean break.

Whether or not a maintenance order is appropriate depends upon the facts of the case. For detailed advice as to whether it would be appropriate in your case, you should consult an expert family lawyer.

Friday, October 10, 2014

A bit of a Downer*

Mr Justice Mostyn
A very quick post about Bakir v Downe [2014] EWHC 3318 (Fam), which contains a warning for litigants in person. It concerned a husband, unrepresented by choice, who wrote to Mr Justice Mostyn's clerk on a number of occasions, including seeking an explanation of why an undertaking that he has given was included in an order, despite the fact that he had not signed the general form of undertaking.

Mr Justice Mostyn took a dim view of the husband's actions:
"The courts are now being visited with an increasing number of informal applications made by litigants in person ... I am taking the opportunity in this judgment ... to explain, both for the benefit of Mr. Downe and for any other litigants in person, that the court does not afford any indulgences or deviations to the litigants in person from the clear procedure that is prescribed for ... all applications that are made to the court. The court is not some kind of advice bureau for the benefit of litigants in person who do not understand how orders have been made. If a litigant in person wishes to make an application to the court, then he must do so in accordance with the procedure laid down by the law of the land."

Mr Justice Mostyn treated the husband's correspondence as an application, which he promptly dismissed, with costs.

*This pun is entirely the fault of @nickholmes - blame him.

The best and the worst

My writings this week on Marilyn Stowe’s Family Law & Divorce Blog have looked for (but not necessarily found) the best and the worst in family law. They include:

What exactly is a special guardianship order? - SGOs have been in the news lately, so I though a little explanation would be helpful.

The best family justice? - It's what Family Justice Minister Simon Hughes says he wants, but are we getting it?

A financial disaster - Looking at the disastrous facts of Mekarska v Ruiz & Another.

Important cases: Hildebrand and Imerman - Looking at the 'self-help' cases Hildebrand v Hildebrand and Tchenguiz & Others v Imerman.

Have a good weekend.