Wednesday, July 29, 2015

Actuaries - Buy One, Get One For Free

Expert pension sharing and offsetting reports are not inexpensive which makes choosing the expert an important part of the instruction process.

Lawyers, mediators and clients are sometimes surprised to learn that the provision of pension reports in divorce and dissolution matters is not in itself a regulated activity. Reports may be produced by individuals or firms who are regulated in respect of some or even all their activities, but in fact anyone can style themselves an expert and produce reports on matters such as pension sharing and offsetting.

Actuaries are the experts of choice when valuing pensions and complex pension sharing calculations are needed. They have a deep understanding of financial systems which along with their data analysis and mathematical skills they use to produce reliable professional reports. As a profession, actuaries are regulated in the UK by the Institute and Faculty of Actuaries. The IFoA maintains high professional standards in various ways, for example by setting mandatory CPD requirements. A robust disciplinary regime underpins the quality of actuarial work and promotes the integrity and competence of members.

Following a consultation process involving the actuarial profession and key stakeholders, the IFoA has introduced new professional guidance on the subject of Work Review. This now forms part of the professional standards that actuaries are required to meet. Although the guidance was published earlier this year it came into full effect from 1 July 2015.

While work review is not mandatory in all cases it is considered best practice where for example the outcome of an actuary’s work will be financially significant for the client. It would be difficult to argue that this does not apply to pension sharing and offsetting reports. As to timing, a work review must be carried out at a time when it is capable of influencing the conclusions and outputs of the work.

As a result of the IFoA guidance all actuarial expert witness reports should now be subject to scrutiny by another person, probably another actuary, before the resulting report is delivered to clients. At BDM, because our actuaries have followed this approach for a number of years nothing changes; neither our working practices nor our fee structure. Others are presumably reviewing their processes, or they should be.

Remember that these changes only relate to actuaries and particularly those who are members of the IFoA; reinforcing the confidence you can have in a pension sharing or offsetting report when it is signed by an actuary who is a Fellow of the Institute of Actuaries (F.I.A.) or Fellow of the Faculty of Actuaries (F.F.A .).

Friday, July 24, 2015

The future's bright?


My posts this week on Marilyn Stowe’s Family Law & Divorce Blog are mostly about the future, which may or may not be bright:

Taking advantage - Are some trying to take advantage of the profession's great tradition of doing pro bono work?

The end of local justice - As the MoJ proposes yet more court closures.

Almost unthinkable - The conclusion reached in the horrendous case A-S (Children).

Separating parents may or may not be going to court - Are parents giving up on courts post-LASPO? It all depends upon how you interpret the latest figures from Cafcass.

Have a good weekend.

Thursday, July 23, 2015

The norm, not the exception, for children to shape post-divorce futures

Jane Robey
Welcoming comments by Family Justice Minister Caroline Dinenage, about making the role of children more prominent in shaping post-divorce settlements, Jane Robey, CEO of National Family Mediation (NFM), the largest provider of family mediation in England & Wales, said:

“Children should be at the heart of decisions made in any family, and this shouldn’t change simply because parents decide they can no longer live with each other.

“The Minister is moving everyone closer to realising NFM’s long-standing vision that it becomes the norm, not the exception, for children to be able to participate in shaping their futures when the family separates.

“Our experience shows that involving children in mediation can help shift parents’ attention away from the bitterness they feel towards each other, to focus on the child’s future instead.
“We look forward to working with the Minister to ensure our child-inclusive Mediation practice standards are shared and adopted.”

The Minister was speaking to the Family Justice Young People’s Board ‘Voice of the Child’ conference in London on 23 July 2015.

Monday, July 20, 2015

An Easy Guide to Marriage and Relationship Breakdown

So you have decided to separate. What are the essential legal things you need to know? The following has been provided by Selachii LLP and is intended to be a brief guide.

Divorce: The Basics

If you are married then you may wish to take divorce proceedings, although there are other options, such as entering into a separation agreement with your spouse.

There is only one ground for divorce: that the marriage has irretrievably broken down. However, you must prove irretrievable breakdown by showing one of five things:

1. That your spouse has committed adultery (usually proved by them admitting it).
2. That your spouse has behaved unreasonably.
3. That your spouse has deserted you for a period of two years.
4. That you and your spouse have been separated for two years and your spouse consents to the divorce.
5. That you and your spouse have been separated for five years.

Briefly, the procedure for a divorce is that one party will file a divorce petition with the court. The court will then send a copy to the other party, along with an acknowledgement form for them to complete and return to the court stating whether or not they intend to defend the divorce (defended divorces are extremely rare). If they do not defend, then the petitioner can apply for the divorce to proceed. If there are no problems, the court will fix a date for the pronouncement of the decree nisi. Six weeks after the decree nisi the petitioner can apply for the decree absolute. Again, if there are no problems, the court will send a copy of the decree absolute to each party. It is normally possible for the divorce to go through without anyone having to attend the court.

Sorting out arrangements for children

When a couple separate they will need to sort out arrangements as to with whom any dependent children will live, and what contact the children will have with the other parent. There are no hard and fast rules as to arrangements for children – the important thing is what is best for those particular children. They may, for example, spend most of their time with one parent, or they may share their time with both parents.

If arrangements cannot be agreed, then an application can be made to the court for the court to sort out the arrangements by making a child arrangements order.

Child maintenance

When parents separate they should if possible try to sort out child maintenance arrangements between themselves by agreement. However, if they cannot reach an agreement then an application can be made to the Child Maintenance Service.

The Child Maintenance Service will calculate how much the non-resident parent should pay, by reference to a formula. It can then collect the maintenance from that parent and pay it to the parent with care of the child. The Service reviews the payment amount every year.

Generally, child maintenance payable through the Child Maintenance Service will last until the child reaches the age of 16, or while the child is aged under 20 and is in full-time secondary education. However, child maintenance can be arranged through the courts for older children in tertiary education.

Sorting out finances on divorce

When a married couple separate they will need to sort out a financial/property settlement, including what is to happen to the former matrimonial home, the division of any other money or property, whether one party should pay maintenance to the other and what should happen to any pensions.

If these things cannot be sorted out by agreement, either party may apply to the court for the court to sort them out. The court will then require both parties to disclose full details of their means, so that it can decide what type of orders would be appropriate.

Alternatives to court

It is not always necessary to go to court to resolve a family law dispute. The matter can be resolved by agreement, by a variety of means, including:

Negotiation between the parties – Usually with the assistance of solicitors.

Mediation – Whereby a trained mediator will help the parties to reach an agreed settlement.

Collaborative law – Whereby each party appoints a collaboratively trained lawyer and then the parties and their lawyers meet face to face to try to agree a settlement.

Note that if an agreement is reached sorting out finances and property following a divorce, it will be necessary to request the court to incorporate the agreement into a court order.

Domestic violence

No one should have to put up with domestic violence, which includes not just physical violence but also other forms of abuse, such as controlling behaviour.

If you are a victim of domestic violence, then you can apply to a court for an injunction order. The order can take one or both of two forms:

A non-molestation order – preventing the abuser from using or threatening violence against you. A breach of a non-molestation order is a criminal offence.

An occupation order – requiring the abuser to leave the house, or preventing them from returning there. Occupation orders usually have a ‘power of arrest’ attached to them, which means that the police may arrest anyone breaching the order.

Issues for unmarried couples

When they separate, the law treats unmarried couples differently from married couples. There are two things in particular to note:

Firstly, if he was not married to the mother a father of a child does not automatically acquire parental responsibility for the child. He can, however, acquire it in various ways, for example if his name is on the child’s birth certificate, if the mother agrees to him having it or if a court grants it to him.

Secondly, the rules relating to sorting out finances on divorce do not apply to unmarried couples. One party cannot claim maintenance for themselves from the other, and any property will generally remain with the person who owns it. It is possible in certain circumstances for one party to make a claim against the other’s property, but the rules relating to such claims are complex, and legal advice should definitely be sought before making a claim.

Glossary of common legal terms

Affidavit – A written statement, sworn by the writer to be true.

Child arrangements order – An order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact, and/or when a child is to live, spend time or otherwise have contact with any person.

Clean break – A financial/property order on divorce that ends all financial ties between the parties.

Consent order – An order made with the agreement of both parties. Usually refers to an order setting out an agreed financial/property settlement on divorce.

Contact – Refers to contact between a child and the parent with whom the child does not usually live. Includes visits, overnight stays and other types of contact such as via telephone, letters, texts and internet.

Decree absolute – The order finalising a divorce.

Decree Nisi – The order stating that the parties are entitled to a divorce.

MIAM – Abbreviation for ‘Mediation Information and Assessment Meeting’, used to see whether mediation could be used to resolve a dispute, rather than going to court. Anyone wishing to make an application to the court is required to attend a MIAM.

Parental responsibility – Defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.

Pension attachment – An order following divorce, stating that one party will receive part of the other party’s pension, when the other party receives it.

Pension sharing – An order following divorce, transferring a percentage of one party’s pension to a pension in the name of the other party.

Periodical payments – Another term for maintenance.

Petitioner – The party who issues the divorce proceedings.

Property adjustment order – An order following divorce, adjusting the ownership of matrimonial property.

Respondent – Refers to the party who did not issue the court proceedings.

Separation agreement – A document setting out an agreement between spouses, relating to finances and/or arrangements for their children. Used where they have decided to separate but do not yet intend to commence divorce proceedings.

Without prejudice – Words used in an offer of settlement to ensure that the court cannot be informed of the offer.

Useful organisations and websites

Citizens Advice – Provide advice online, by phone and in person.

Cafcass – The Children and Family Court Advisory and Support Service. Cafcass looks after the interests of children involved in family proceedings, including providing reports to help the courts decide what orders to make.

Child Maintenance Options – Provides information and support to help separated parents make decisions about their child maintenance arrangements.

Child Maintenance Service – Sorts out child maintenance when the parents can’t agree. Part of the GOV.UK website (see below).

Family Mediation Council – Provides information on mediation and details of local mediators.

Gingerbread – Charity providing expert advice and support for single parents.

GOV.UK – Government services and information website. Includes many useful resources related to family breakdown including, in particular, a section on marriage, civil partnership and divorce.

Relate – Provides counselling, support and information for all relationships.

Women’s Aid – Helps women and children who suffer domestic abuse.

Friday, July 17, 2015

A funny old week


It's been a funny old week for me on Marilyn Stowe’s Family Law & Divorce Blog, and hence I am only able to mention three posts that I have written there. Still, never mind the width, feel the quality. Or something.

Parental truce - Sometimes warring parents can put their differences aside, as in Y (A Child) (Private Law).

Finality of litigation - The principle, as demonstrated in the recently published judgment in Stocker v Stocker.

Perpetual parental conflict - Sometimes parents can't put their differences aside, as in the case T (A Child) (Suspension of Contact).

Have a good weekend.

Coram Voice response to National Audit Office report on care leavers


Linda Briheim-Crookall Senior Policy and Service Development Manager for Coram Voice, contributor to the report, said:

“Today’s report by the National Audit Office (NAO) Care leavers’ transition to adulthood highlights that the safety net in place for care leavers, whereby local authorities are legally required to offer support in education and accommodation, is failing to catch countless young people as they journey into independent living.

Through Coram Voice’s advocacy work with looked after children, we are acutely aware of the consequences of young people not receiving such critical support. Every day we encounter care leavers who do not have enough money to survive, a safe and suitable home or the help they need to access education and training to achieve their aspirations.

A significant number of the young people we support with advocacy have emotional difficulties which can be exacerbated by their precarious situation of leaving care unsupported. As NAO’s report highlights, government data currently collected on care leavers includes education, training and employment, and accommodation, yet no data collected includes important information on wellbeing. We believe this is serious omission and call on Government to include data on these outcomes as a matter of urgency.

As the report finds, the lack of a single repository for good practice in supporting care leavers is a further challenge which all those working with young care leavers face. Coram Voice’s response, our current Bright Spots project, aims to help local authorities improve the care journey for children. Included is a survey, ‘Your Life, Your Care’, which was informed by young people and which will measure the quality of their care experience and their sense of wellbeing.

We have run a successful pilot of the survey and now want to get more local authorities on board to be able to demonstrate its potential. Young people in care and leaving care rely on government to parent them as they are without the family support networks so many of us take for granted. We must do all we can to help ensure that they are not let down.”

Tuesday, July 14, 2015

Resolution ‘disappointed’ at unapologetic MOJ response on legal aid cuts


Family law organisation Resolution expressed disappointment at the “bullish and unapologetic” response from Government to the critical report from the Justice Select Committee on the legal aid cuts.

Resolution has consistently worked to raise awareness of the impact of the legal aid cuts on the people who use the family justice system, from increased numbers of litigants in person through to many domestic violence victims being unable to access legal support due to restrictive evidence requirements.

Resolution chair Jo Edwards comments:

“We’re disappointed to see the bullish and unapologetic response from Government to the criticism rightly levelled at the Ministry of Justice by the Justice Select Committee report on LASPO. The response fails to acknowledge at all the seriousness of the problems caused by the legal aid cuts and the very significant impact on families struggling with separation.”

“As practitioners, we see daily the problems caused by the legal aid cuts, and fully agree with the Justice Select Committee’s assessment that an urgent and comprehensive review needs to be undertaken. While there have been some welcome concessions recently, such as widening the domestic violence evidence requirements, much more needs to be done, quickly, to protect access to justice for the vulnerable.”

“Suggesting that the exceptional case funding scheme is operating as parliament intended ignores the many cases in which funding has been refused, despite judges’ strong protestations to the contrary. The government cannot continue to resist suggestions that there should be a full and immediate impact assessment of the reforms. We strongly advocate, at the very least, that the Government take heed of the Committee’s recommendation that legislation be drafted to protect vulnerable people from being cross-examined by the person who abused them, which is tantamount to a perpetuation of the abuse. That this situation, long legislated against in the criminal courts, should continue to exist in our family justice system is a travesty.”

Guerroudj v Rymarczyk: Order made under liberty to apply provision upheld

Lord Justice Underhill
A short note on the Court of Appeal decision Guerroudj v Rymarczyk [2015] EWCA Civ 743, handed down today.

This was a dispute between two former cohabitees over a secure tenancy. The outcome revolved around the circumstances of the parties. The man, Mr Guerroudj ('Mr G'), had a back condition which made him unable to work. The woman, Ms Rymarczyk ('Ms R'), was in work, but on a low income.

The tenancy was provided to the couple by the local authority because, or at least in part because, of Mr G's back condition - it was not adapted in any way, but was on the ground floor, which was important because he had difficulty climbing stairs.

The relationship broke down and both parties sought a transfer of the tenancy under Part IV of the Family Law Act 1996. The judge  made an order in Mr G's favour, partly because he found that Mr G's back condition was a very significant factor in the grant of the tenancy. He ordered Mr G to pay 'compensation' of £1,500 to Ms R. He included in the order a liberty to apply provision. The reason for doing so was that:
"He was evidently unhappy about whether he had been given enough information about the prospects of either party obtaining alternative accommodation if they had to quit, which was potentially a decisive consideration, and he wanted to leave open the possibility of considering it further."
Shortly after the order was made Ms R informed the court that she had been advised by Shelter that because Mr G was physically disabled he would be able to establish a priority need for housing and would be owed a duty under Part 7 of the Housing Act 1996 to be accommodated by the local authority. She, on the other hand, was not owed any such housing duty or assistance as she was not classed as having a priority need.

The matter went back before the court and the judge set aside his previous decision, ordering a transfer of the tenancy to Ms R, who he found could not afford a 1 bedroom flat within a reasonable distance of her place of work. Mr G appealed.

In the Court of Appeal the central issue was whether the judge should have undertaken a further hearing under the liberty to apply provision. Giving the leading judgment, Lord Justice Underhill  felt that on balance he was entitled to do so under the liberty to apply provision:
"...the whole point about the liberty to apply was that the Judge felt that at the first hearing insufficient attention had been paid to the parties' prospects of obtaining other accommodation. As to that, he did now have some further material."
On the basis of that further material, the judge was entitled to come to the decision that he did. Accordingly, the appeal was dismissed. Lord Justice Underhill did, however, have a suggestion as to how the judge should have proceeded at the original hearing:
"The one criticism that I would, with respect, make is that it would have been better – if, as he evidently did, he felt that justice required a fuller exploration of the possibilities of alternative accommodation – if he had simply adjourned the hearing and kept his counsel as to any provisional conclusion that he might have reached."
Mr Justice Hildyard and Lord Justice Munby gave concurring judgments.

Monday, July 13, 2015

Internet Newsletter for Lawyers July/August 2015


The latest issue of the Internet Newsletter for Lawyers is now published.

In this issue

  • Search engines – Susan Hallam of Hallam Internet reviews Google's recent mobile-friendly updates and explains what you can do
  • Social media – Bill Braithwaite QC of Exchange Chambers tells us about his new social media site for lawyers
  • Legislation – John Sheridan of The National Archives brings us up to date on developments at legislation.gov.uk
  • Resources – Delia Venables describes some of the most important free library resources available in the UK
  • Sharing economy – Nick Holmes looks at alternative perspectives on the sharing economy and how it affects lawyers
  • Drones – Alex Heshmaty of Legal Words introduces us to drones and the accompanying legal issues
  • Digital marketing – Catherine Bailey on 5 of the best free digital marketing tools
  • CPD – Nick Holmes on changes to CPD requirements for both professions

Access the Newsletter online