Thursday, August 28, 2014

Family Lore Clinic: Can you include debts on a consent order?


Due to Google encrypted search stripping out keyword search information I don't get to know many of the questions people ask that lead them to Family Lore these days, and hence I don't do many of these Family Lore Clinic posts. However, here's one search term that recently slipped through Google's net: Can you include debts on a consent order?

The answer to this one is quite simple: yes, you can include debts in a consent order (as usual, I am using the term 'consent order' to mean the order setting out an agreed financial/property settlement following divorce or dissolution of civil partnership).

Unfortunately, it is all too common for there to be outstanding debts when a couple split up. Those debts may be in joint names or in the name of just one of the parties. They may have been incurred for the benefit of one party, or for the benefit of both parties. Clearly, who is to be responsible for payment of any such debt is a matter that needs to be resolved when the settlement is agreed.

If the debt is in one name and is to be paid by that party then this does not necessarily need to be specified in the order, although the paying party might want it to be recorded, especially if the other party is to retain any benefit from the money that was originally borrowed.

If the debt is in one name and is to be paid by both parties or the other party, then this should definitely be specified in the order, so that the debtor party can force the other party to pay.

Where the debt is in joint names, this does not necessarily mean that the creditor will expect each party to pay half. If the debt is unpaid, the creditor can seek the full amount from whichever party they think they are more likely to recover the debt from. It is therefore important that the consent order states who will pay what. If one party does not then pay, the other party can once again seek to enforce the order against them.

In short, debts are often mentioned in consent orders, usually as a recital, stating what the parties have agreed.

If you are unsure whether a debt should be included in a consent order, then you should seek the advice of an expert family lawyer.

Friday, August 22, 2014

A little holiday reading...


Whilst I have been taking a bit of a break this week from blogging on Family Lore, I have still been writing for Marilyn Stowe's Family Law & Divorce Blog. My posts there include:

Who needs the law anyway? - What would happen without a family justice system.

A little more on the reform of divorce - As mentioned in the President's 13th View from his chambers.

Important cases: Stack v Dowden - A look at Stack v Dowden, obviously...

Important cases: Jones v Kernott - ...followed by a look at Jones v Kernott.

I hope you find something there of interest.

Have a good weekend and Summer bank holiday.

Friday, August 15, 2014

More Thoughts, from Abroad


OK, from Yorkshire, actually. Head over to Marilyn Stowe's Family Law & Divorce Blog for more of my rantings on family law, which this week include:


Have a good weekend.

Monday, August 11, 2014

Book Review: Family Law Arbitration


Family Law Arbitration

A Judicially Recognised Alternative to the Family Court

Dennis Sheridan

£79.95 - Law Society Publishing: June 2014

Arbitration is one of the buzzwords of the moment, as the service jumps on the ADR bandwagon alongside mediation and collaborative law. The adherents of all of which, of course, hope to capitalise on the abolition of legal aid and consequent log-jamming of our family courts by hapless litigants in person. However, whereas mediation is promoted as a universal panacea by which all and sundry can avoid that logjam, arbitration is strictly for those able and prepared to spend money in order to escape the seething court-bound masses.

Of course, as surely as night follows day a new legal buzzword is followed by a textbook on the subject, and here it is, cunningly entitled Family Law Arbitration.

The book is in A4 format and comprises 83 pages, divided primarily into two parts: the main text (14 pages) and the appendices (65 pages). The main text, entitled Family law arbitration in practice consists of just three chapters: an introduction, complete with a case study, a chapter on procedure and a chapter setting out guidance. The appendices comprise the Family Law Arbitration Scheme Rules, the Arbitration Act 1996 (part 1 and schedule 1), Form ARB1 (Application for family arbitration), a check-list of matters for discussion at the first meeting, Arbitrator's terms of engagement, a draft letter to HMCTS requesting that the arbitration award be made into a consent order, the judgment in S v S (more on which in a moment) and a page settling out a few further resources.

You can't mention arbitration without coming across the name Sir Peter Singer, and sure enough he has written the Foreword to Family Law Arbitration. Naturally, he doesn't miss the opportunity to extol the benefits of arbitration, exuberantly suggesting that it is not just for the very well off: "Arbitration flies and delivers results as well for those in steerage as for those who travel first class." The devotees of arbitration have, of course, been greatly encouraged by the President's recent judgment in S v S, which is gleefully referred to at several points throughout the book (including, of course, the book's tag-line) and Sir Peter happily calls it as a "tide-turning case".

The author, Dennis Sheridan, clearly shares Sir Peter's enthusiasm for the subject. The case study in the first chapter, which is based upon a real case in which he was involved, concludes: "I can honestly state that arbitration certainly reduced the anxiety and the misery for the clients, and disposing of their case so satisfactorily and swiftly leaves me better able to deal with the next matrimonial client who comes through my door." In the third chapter he sets out thirteen benefits of arbitration, ranging from informality to speed and confidentiality.

Never having been involved in a family arbitration myself (such exotic things didn't exist when I was practising) it is difficult to comment upon whether the book contains all that anyone considering arbitration needs to know. The only omission I can think of is that there is no mention of how much an arbitration actually costs. I have heard of a figure in the region of £1200, although obviously this depends upon such factors as the arbitrator instructed, the venue etc..

On the subject of money, Family Law Arbitration costs £79.95, which may be considered a little steep for such a slim volume, especially as many of the resources it contains are feely available online. Still, it is handy to have all of those resources in one place, particularly if you are out of the office.

Family Law Arbitration can be purchased from the Law Society Bookshop, here.

Friday, August 08, 2014

Meanwhile, on a blog not so far away...


Another week passed. Whilst I may not have been exactly prolific here on Family Lore, I have still had plenty to say over on Marilyn Stowe’s Family Law & Divorce Blog, where my efforts include:


Have a good weekend.

Thursday, August 07, 2014

How Are the Cuts to Legal Aid Affecting Family Law?


Everyone has a right to justice, but not everyone can afford it. With the cuts to legal aid, most people have lost the right to legal representation, which means losing the right to be treated fairly. When it comes to family law, this has serious rippling consequences. When it comes to deciding the arrangements for the child, not only is this a very emotional and difficult battle, but the children will be heavily impacted by the proceedings. Without fair legal consultation, the results can have tragic consequences for young people.

If you require any family law advice, consider this Telford based solicitor FBC Manby Bowdler

The Figures

56% of parents in the Midlands are classed as unrepresented when they attend court to discuss child contact. Between April and December 2013, 9,230 people in the region self-represented in court during child-related cases. Due to this massive influx of legally uneducated parties in court, there have been delays throughout the system. Another unfortunate side effect of this trend is that organising arrangements for the children is an exceptionally emotional process, and many parents end up poorly representing themselves because their feelings get the better of them.

Emotions aside, not everyone can construct a good defence. People with literacy problems are trying to traverse legal processes without help. According to figures from family court service, Cafcass, 42% of cases have no legal representation for both parents, when compared with the 18% before the cuts. Abused individuals are being cross-examined by partners who have allegedly abused them, and children are suffering, due to an absence of fair hearings.

The vulnerable and the poor are the ones who find themselves in a terrible position, as a result of these cuts. There are warnings of a generation of children from impoverished communities being emotionally damaged by a justice system that’s failing them. Domestic violence victims are ‘falling through the net’ as it becomes increasingly more challenging to prove abuse.

Mediation

Mediation is usually the go-to process for most families, but not everything can be settled this way. Parents are often so entrenched in fighting their own wars that the children are often thrown under the bus during mediation proceedings and court cases. Without the protective control of a legal representative or calm mediation, the emotional trauma of the proceedings can be staggering for children. Lawyers warn that it’s only a matter of time before more cases of murder or staggering abuse arise, as courts fail to notice the danger some parents pose.