Friday, August 28, 2015

I don't like to say I told you so, but...


What I have said before comes to pass in three of the posts I wrote for Marilyn Stowe’s Family Law & Divorce Blog this week, which include:

The Marriage Foundation’s figures disprove their case - The Foundation shoots itself in its dogmatic foot.

The dangers of unregulated McKenzie friends - As demonstrated by the recent story that a ‘professional’ McKenzie friend has been jailed for three years.

Domestic violence figures are sobering - A quick internet search gives pause for thought.

Headlines demonstrate futility of transparency effort - Recent headlines in certain national newspapers prove what I have said all along...

Have a good weekend.

Friday, August 21, 2015

Fickleness and folly


...were both in evidence in my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which included the following:

Further thoughts on enforcing family financial orders - With reference to The Law Society's response to the Law Commission's consultation.

A just and equitable child support variation - Upper Tribunal Judge Rowland gets back to basics in NT v Secretary of State for Work and Pensions (CSM) (Child support : variation/departure directions: other).

The fickleness of legal fashion - Of transparency, and other passing legal fashions.

The folly of the litigant in person - As demonstrated in the case H v Dent & Ors.

Have a good weekend.

Wednesday, August 19, 2015

Wills - What you should know infographic

Thinking about your own death can be a difficult thing to do, but it can be one less thing for your family or loved ones to worry about if you prepare for the inevitable in advance. This infographic from SunLife brings to light some interesting statistics on what kind of attention people across the UK give to creating a Will.

Living in the digital world that we now do, it’s also worthwhile learning how to de-activate social media accounts after some-one has passed away, so take a look at this image to find out how to do this and learn more about Will making.

Tuesday, August 18, 2015

Three mistakes to avoid if your marriage ends

The breakdown of a marriage is widely regarded to be one of the most stressful experiences that people can go through. As well as dealing with the emotional turmoil associated with these splits, separating spouses have a whole range of practical complications to work through. It’s hardly surprising then that people are prone to making mistakes as they attempt to navigate their way through these turbulent times. If your marriage is ending, it is important to try to learn from other people’s errors so that you can avoid them yourself. While this may not make your separation easy, it should at least lessen the trauma. Here are three common mistakes to watch out for.

1) Creating unnecessary conflict

We’ve all read about acrimonious and confrontational divorces, with high-profile cases often making the headlines. However, bear in mind that separations don’t have to follow the path of conflict and hostility; there are ways to avoid these long and drawn out legal battles. For example, you could separate informally. This simply involves making arrangements about money, housing, children and so on between yourselves. You also have the option of drawing up a separation agreement, which sets out these arrangements in writing. The advantage of this approach is that it can reduce the risk of any misunderstandings between you and your spouse.

Even if you decide to get a formal divorce, there are ways of making this process quicker, easier and less stressful. For example, by using mediation services before legal proceedings begin, you may be able to prevent any potential disputes from escalating. This approach encourages cooperation and it gives couples more of a say in any settlement terms. It can also help to keep costs down. In short, combative legal action should be seen as a last resort and you should only adopt this approach if you and your spouse can’t come to an arrangement in any other way.  Highlighting the difficulties associated with formal divorces, family law experts in Chiswick The Law House point out that in order to separate in this way, you must satisfy the court that your case meets one of five statutory criteria, such as unreasonable behaviour or adultery. If you’re not sure which route to take, it’s useful to seek advice from a solicitor.

2) Not putting your children first

In the heady mix of resentment, anger, sadness and grief that marital breakdown can bring about, it is easy to lose sight of the interests of children. All too often, youngsters find themselves at the centre of separation disputes and this can have a hugely damaging effect on their emotional wellbeing and general development. If you have kids with your partner, try to keep them at the forefront of your mind during your split. Putting your children’s interests ahead of your own and your partner’s can protect them and it can also help you and your spouse to see things from a more balanced perspective. Whatever you do, don’t resort to trying to score points against your partner through your kids. This could have negative consequences for all concerned.

3) Failing to provide accurate financial information

Make sure you provide accurate financial information when you’re parting ways with your partner too. Sometimes, people fall into the trap, either accidentally or deliberately, of misleading their spouses about the money and assets they have. This can backfire in the long-run. Any confusion over financial issues can cause legal proceedings to drag on and costs to mount up. Meanwhile, if you achieve a settlement and it is subsequently found to have been based on false premises, it could be overturned and you may find yourself back in court.

Tuesday, August 11, 2015

Adoption order revoked on application of child

Mrs Justice Pauffley
A very quick post about a very unusual case: in PK v Mr And Mrs K [2015] EWHC 2316 (Fam) (31 July 2015) a 14 year old girl applied to have her own adoption order revoked, 10 years after the order was made.

After the order was made the girl was taken to Ghana, where she was looked after by members of her adoptive family and subjected to significant abuse. In 2014 she came to England and was reunited with her biological mother and maternal grandmother. She then applied to have the adoption order revoked, and to have her surname changed to her mother’s surname. In the ‘highly exceptional and very particular’ circumstances of the case, Mrs Justice Pauffley allowed both applications.

Friday, August 07, 2015

Cohabitation: Should the law be changed to reflect modern life?

Family life has changed significantly over the last few decades and gone are the days of the majority of families conforming to the typical stereotypes of old. The law, though, has not caught up, and is seen by many as being unfit to deal with unmarried cohabiting couples. Numerous surveys have demonstrated that many believe there is such a thing as common law marriage (the same laws applying to non-married couples as married couples). This is not the case, however, prompting the question of whether it should be, or whether there should be alternative law to deal with issues around family law and cohabiting couples.

The main issue here is the law regarding relationships that end. The basic principle when a marriage or civil partnership ends is that both parties have a legal right to a share of their assets, which includes finances and property amongst other things. Contrary to the common perception, the same right does not apply to unmarried couples.

Some examples
Currently cohabiting couples have none of the automatic legal right to property that married couples do. It may be that Person A has purchased a home, which is in their name only, but Person B has been contributing towards the mortgage payments. It may surprise some, but if a couple was not married and separate then Person B has no right to the property, despite the fact that they had been contributing towards the mortgage.

Although child maintenance may have to be paid by one party after a non-married couple separate, the law is not the same as for married couples. If the children live with the other parent maintenance payments may include paying towards a mortgage or rent to provide the child with somewhere to live. However, this would cease once the child turns eighteen, meaning the other parent may be left with nowhere to live. Where couples don’t have children maintenance will not be awarded, potentially leaving one party with no income.

How can couples protect themselves?
There is one way that cohabiting couples can protect themselves: by drafting a cohabitation agreement. This is an agreement that sets out who owns what and how property and possessions will be split should they separate. A professionally drafted agreement is legally binding.

The majority of couples, however, do not have a cohabitation agreement. The first problem is that many are unaware of its necessity. It can also be expensive, with each party requiring their own solicitor. The lack of a cohabitation agreement means there is often one party who is likely to face financial difficulties should the couple separate.

2007 Law Commission report
In 2007 the Law Commission was asked to consider the area of family law related to unmarried cohabiting couples by the Ministry of Justice. The Commission examined the financial consequences of the termination of cohabiting relationships and made recommendations.

The report found that “the current law is unsatisfactory. It is complex, uncertain, expensive to rely on and, as it was not designed for family circumstances, often gives rise to outcomes that are unjust”. It suggested that the current law can lead to the hardship of those involved in the event of separation and could lead to a reliance on the state through benefits and social housing. The Commission did not find that unmarried couples should have identical rights to married couples, stating that “although some cohabitants have relationships that many would regard as being similar to those of spouses, there is a broad range of cohabiting relationships, exhibiting different degrees of commitment and interdependence. And cohabitants have not made the distinctive legal and public commitment that marriage entails.”

Clearly the Law Commission found that there should be changes but the law related to cohabiting couples shouldn’t mirror that of married couples. They proposed an opt-out scheme for cohabiting couples, that could be implemented should a cohabiting relationship that met certain criteria end. This would result in someone being able to apply for financial relief is the case of separation, whereupon they would have to demonstrate they had made a “qualifying contribution to the parties’ relationship which had given rise to certain enduring consequences at the point of separation”. There wouldn’t be the presumed entitlement, as there is with a marriage, but they would be entitled to financial relief where deemed appropriate.

Despite the recommendations of the Law Commission very little has changed in this area of law.

Should the law be changed?
Some deem the current law inadequate to deal with modern family life and a relic of the past. Many cohabiting couples live as though they are married – they may have children together and own property together – yet the law does not treat them as such. The law regarding cohabiting couples does not recognise financial and emotional contributions and, therefore, does not serve cohabiting couples well.

A clear problem is the lack of education around the subject of cohabitation. There appears to be an assumption that cohabiting couples have the same, or very similar, rights to married couples, but this is not the case. This means that couples may not be protecting themselves against the possibility of separation in the way they otherwise would.

One of the arguments against a change to the law is that couples can draft a cohabitation agreement if they like, but in most cases this doesn’t happen. The Law Commission’s recommendations appear to be a sensible way forward. It would prevent people being left with no financial support, a situation they might, under the currently rules, be in danger of. For example those who had contributed financially towards the relationship, or had given up work to look after children, would be protected in a way they are not currently.

There is clearly a serious problem with cohabitation law as it currently stands. Millions of people across the UK would not be protected if their relationship ended. It is important that either the law changes to reflect the way people live or that the current law is more effectively promoted so people are aware of how it impacts their circumstances. Even then, though, a change in legislation would seem sensible. The purpose of the law is to protect citizens, and currently this particular area of family law is failing to protect a large number of families across the country.


This guest post was written by Andrew Marshall on behalf of Stone King LLP.

The truth does not always fall halfway between two extremes


The truth, however, can of course be found in my posts this week on Marilyn Stowe’s Family Law & Divorce Blog. (Please note that the emboldening in the posts is not my doing.)

Court not prepared to vary undertaking in consent order - Not the most exciting title, but explanatory of the judgment in Birch v Birch.

When one cohabitee wants to buy from the other - The interesting outcome of Bagum v Hafiz & Anor.

Should there be such a thing as ‘gay adultery’? - My take on the 'gay adultery' debate, as discussed on the BBC the other day.

Child arrangements: The truth does not always fall halfway between two extremes - A sentence I came across with reference to the debate between science and religion rang bells for me in relation to arrangements for children following the separation of their parents.

Have a good weekend.

Thursday, August 06, 2015

Post-divorce links with your ex? It’s a business-type relationship

Jane Robey
It’s tough, but couples who separate must learn to adopt a ‘business-type’ relationship with each other after divorce; similar to the one they have with a dentist, plumber or GP, says a leading family charity.

August’s long school holiday signals rising family tensions, with many couples across the country finding summer the final straw for their strained relationships.

Staff at National Family Mediation say after deciding to divorce, the key to a positive future for everyone in the family is making an active choice to maintain a dialogue over things that matter, like your children, rather than entering ‘fight’ mode.

“Once the decision is taken to move on and separate, the hearts and flowers of the happy relationship have long withered and died, says Jane Robey, NFM’s Chief Executive.

“But maintaining a relationship with your ex –a very different kind of relationship – is in everyone’s interests, especially the children’s.

“The temptation is to raise hackles and wage war, but it’s those couples who stand back from the bitterness they feel, and instead focus on the future importance of co-parenting, whose families will flourish for years to come.

“Parenting arrangements need to change as children grow up, so staying in touch to adapt agreements is vital. Most people keep in touch with their dentist or GP and, when things go wrong at home, call in a plumber or builder. It’s not fun to have to call on them, but it’s important to maintain those links.

“The same applies to post-divorce parenting because at the heart of everything is the most important relationship of all: the one between your children and both parents.

“It’s a tough change of gear, but learning to re-engineer your relationship with your ex can be the key to a positive future for everyone in the family.”

National Family Mediation’s expert professionals help separating couples agree settlements on property, finance and parenting issues without the need for a courtroom battle. They achieve full agreement in over 80 per cent of cases.

People who want to find out more about how family mediation can help them after divorce or separation can call 0300 4000 636 or visit www.nfm.org.uk.