Here's the latest selection of search queries that have recently found their way to Family Lore, with my replies. As usual, my Disclaimer (see the sidebar) applies to what follows.

financial divorce consent order breach

The order may already have provisions covering this. If not, what to do depends upon the nature of the order that is breached. If it is an order for the payment of a lump sum of money, then it can be enforced in the same way as any other debt (warrant of execution, garnishee order, charging order etc.). If it is for payment of maintenance, the usual procedure is attachment of earnings. If it is for a transfer of property then you can, if necessary, obtain an order that the judge sign whatever documentation is required to give effect to the transfer.

do the english want sharia law?

I don’t think so, and I certainly hope not.

the beatles members with beards

Didn't they all have beards at one time or another?

recent cases beneficial interest after cohabitation after appeal 2008

Err… Fowler v Barron, for one.

adultery co-respondent rights uk

The Co-Respondent can deny the alleged adultery, and can also be heard on the question of costs.

family law since april in uk

Um, it is April. Which April do you mean?

family lawyer seeks work in ireland

There's a joke here...

english law relating to gifts

Not sure if this relates to family law, but disputes over gifts to the parties do often crop up, especially gifts from the parents of one party. That party or the giver of the gift then argues that it was a gift to them only or, in the case of monetary gifts, that it was actually a loan. The answer depends upon the nature of the ‘gift’ and the circumstances, but in the absence of an agreement to the contrary gifts are usually to both parties, and are not loans unless there is evidence of repayment.

claiming half of my ex husbands pension

Yes, you can, although it is arguable that you are only entitled to half of that proportion of the pension that was accumulated during the marriage. There are other factors involved, and you should seek legal advice.

examples of a character reference for a divorce

Why would you need one?

entitlements if my husbands leaves

All I can say here is that the starting-point is equal division of assets. If you want more than that, get some advice.

property price dispute in a consent order

Most orders provide a mechanism for resolving property price disputes, and if they do not then the price will be determined by the court.

money that's what i want tabs

Are you telling this to Tabs, or do you want tabs as well as money? If the latter, seek drug counselling.

family law not eligible for legal aid cant afford

You and many others. Most firms offer advice, for a fixed fee, and there are schemes for fee funding, such as this one.

new law relating to partners and houses

It’s been shelved for now – see this post.

number of school dropouts reported in the british army

What’s this got to do with me?


Update: I've since had a great search term, which I had to add to this post:

legal advise psyco ex wife

My advice: 1. Learn to spell. 2. Get a bodyguard. 3. Hire a good lawyer, and be prepared to give them a bit more detail. 4. In future, be more discerning in your choice of women.

Read More...

As is well known, the House of Lords in Stack v. Dowden made it quite clear that (in the absence of an express declaration of trust) it will not be easy for a joint owner to demonstrate a shared intention to own the property in unequal shares, where there is no express agreement to that effect. However, a seed of doubt was sown by their Lordships as they found that Ms Dowden had discharged that burden. Well, it is now becoming clearer just how heavy the burden really is.

In Fowler v Barron [2008] EWCA Civ 377 (hat-tip to Nearly Legal, who has already posted on this), Mr Barron put down nearly £30,000 towards the purchase price, paid the mortgage, the council tax and utility bills and yet the Court of Appeal found that he still hadn't rebutted the presumption of equal shares. The point was that, unlike in Stack, there was nothing exceptional about the facts here. Lady Justice Arden:

"The facts in this case are different in many respects. For instance, the evidence as to mutual wills [contradicting Mr Barron's assertion that the property was only conveyed into joint names so that it would pass to Miss Fowler by way of survivorship if he were to die before her] is not replicated in Stack. Moreover, unlike the parties in Stack, there is no evidence that Mr Barron and Miss Fowler had any substantial assets apart from their income and their interest if any in the property, and Miss Fowler made no direct contribution to paying for the property. I do not think that it is reasonable to infer that the parties intended that Miss Fowler should have no share of the house if the relationship broke down. That might leave Miss Fowler dependent on state benefits and housing for support. The way that she used her own income indicates that the parties largely treated their incomes and assets as one pool from which household expenses will be paid. There is also important evidence about their wills ... In those circumstances, I do not consider that the presumption of equal beneficial interests can be successfully rebutted."

It may be considered that this would leave Miss Fowler better off than a cohabitee who had contributed a fixed share of the purchase price, as there it might be inferred that there was a common intention to share ownership in the same proportions as the contributions. Lady Justice Arden also dealt with this:

"...the reason why the result in that case may be different is because that is what the court infers to be the parties' intention. It would have been open to them to agree to divide the ownership in any other way. The basis, on which Stack proceeds, is that the court's jurisdiction is based on the parties' common intention, expressed or inferred. The parties' autonomy to devise a solution suitable for their circumstances is preserved."

All of this may seem somewhat hard upon Mr Barron, but it is a question of intention, rather than fairness. To prove an intention that shares should be unequal there needs to be something particular and unusual about the facts of the case. As Lord Justice Toulson said, there was nothing at all unusual about the circumstances in this case.

Read More...

Thanks to Family Law NewsWatch for publishing a letter by Jane Craig, on behalf of the Family Justice Council, criticising the Government's decision to delay acting on the Law Commission’s proposals for the introduction of legal protection for cohabitees, a decision that has already been criticised by Craig on behalf of Resolution. Craig describes the decision as "timid", and points out that concerns over the cost of the reforms to the legal aid budget are largely unfounded, as much of the cost should be recouped by the statutory charge. She concludes:

the Ministry of Justice's refusal to act now will mean that the most vulnerable partner who is very often a woman, and mother of any children of the relationship is left to face injustice and financial hardship. In some situations she is left homeless without any claims at all over the property where she may have lived for many years. If this happens, the tax payer has to fund welfare benefits and public housing to support those who should not be left in this position. It is not at all clear how this fits in with the Government's commitment to equality and protecting the disadvantaged in our society.

I could say something cynical here about the reality of government 'commitments', but I won't.

Read More...

Resolution has issued a press release criticising the Government’s announcement yesterday that it will delay acting on the Law Commission’s proposals for the introduction of legal protection for cohabitees. They say that "the government is seriously out of step with public opinion", and that the decision will cause "continued distress and hardship". Jane Craig, a member of Resolution’s Cohabitation Committee, said: "The present law creates real injustice for many people. Our members frequently see people who face financial hardship and even homelessness as a result of the current law. Any further delay inevitably means further injustice for some people." It does seem to me that waiting until some unspecified time in the future to see how the similar Scottish system (which came into effect last year) is functioning, after two years of work by the Law Commission, is something of a cop-out.

Read More...

Inspired by this excellent recent post by Nearly Legal, and in the same spirit of philanthropy, I thought I would do something I don't usually do, and answer some of the questions that have led people to Family Lore over the last couple of days. Naturally, my Disclaimer (see the sidebar) applies to what follows.

does the guilty party pay the costs in a divorce

If the divorce is based upon adultery or unreasonable behaviour, then the court will usually order the 'guilty party' to pay the other party's costs, unless there is already an agreement as to who will pay the costs.

appeal a divorce consent order

It is very unlikely that a court will review a consent order, whether by appeal, or having the order set aside. The most common reasons for such a review are fraud, material non-disclosure, or a new event since the making of the order which invalidates the basis upon which the order was made.

ca legal advice to women marrying rich man

Don't sign a prenuptial agreement!

gays own house who deducts

Who deducts what? If we are talking about the division of property at the end of a relationship, then the rules that apply depend upon whether the parties have entered into a civil partnership. If they have, then the rules are similar to those on divorce: the court can make whatever order it sees fit in all the circumstances. If they have not, then basic property rules apply - i.e. start with what the deeds say.

grandparents rights of contact; and
do grandparents have any legal rights

Yes. See this post.

mother moving within united kingdom and fathers contact; and
a residence order for my child has been granted. can i move elsewhere in the uk

I discussed these issues with a commenter to this post. As I stated there, the general principle is that parents are free to move anywhere within the United Kingdom. If a mother wants to take the children to another part of the UK and the father objects, then he has two options: to apply for a prohibited steps order to stop her taking them there, which will only be granted in exceptional circumstances, or to apply for a residence order, in which case the court will decide whether it is best for the children to remain with him in the same area, or to go with the mother. If the mother does move, the father will still have a right to contact with the children, although obviously the terms of the contact will probably have to be re-negotiated, or varied by the court.

when i divorce how much of my husbands pension will i receive

The answer, as always, is 'it depends', but the starting-point is equal division, so in a long marriage where the wife has no pension and the husband's pension has accrued entirely during the marriage, then the wife can expect to receive half.

can a cohabitee claim maintenance fees free move

Not sure about the 'free move' part of this, but the current position is that cohabitees cannot claim maintenance for themselves.

civil law on breach of a financial settlement retaining an ex spouses personal property

If the settlement has been incorporated into a financial/property order, then you should apply to the court to enforce the order. If no order has yet been made, then make sure it deals with personal property.

I'll finish off with a couple of more abstract questions:

unanswered questions about divorce

Aren't there always?

what is the good recent about take the divorce

What indeed?

Read More...

Thankfully, I've not been tagged by the latest blawg meme-virus, unlike both authors at reductio ad absurdum and Nearly Legal. Nevertheless, on this first day of the New Year I would still like to set out some things that I hope will happen in the area of family law:

1. Reform of the divorce law, to bring in a proper no fault divorce system. My thoughts on this were set out in this post.

2. Reform of the system for resolving private law children disputes regarding residence and contact, with a starting-point of equality between the parents. Under such a system there would be a rebuttable presumption that children should share their time equally with both parents.

3. That the child support system will be reformed so that it is fair and it actually works. (I realise that this is pretty unlikely.)

4. That clear statutory guidance is provided to determine financial/property settlements on divorce, possibly including a formula. This would provide far more certainty, and therefore dramatically increase the number of cases that are settled without having to go to court.

5. That the new rules on cohabitee property rights (see this post) are fair, reasonable, clear and workable.

6. (Another forlorn hope.) That the legal aid system will be reformed so that everyone will have equal access to the law, and legal aid lawyers will all earn a decent living.

One can only hope...

Read More...

Family Law NewsWatch have listed what they consider to be the five most important family law cases of 2007, as follows:

1. Charman v Charman
This one needs no introduction. The size of Mrs Charman's award was what caught the headlines, but it must be remembered that she only received 36.6% of the assets, primarily due to Mr Charman's "special contribution".

2. Stack v Dowden
Another one that should by now be well known to all family lawyers, although only a couple of weeks ago a client of mine was forced to go to a final hearing due to her opponent's adviser's lack of understanding of what Stack v Dowden decided. The case collapsed and my client's opponent was forced to concede, in humiliating fashion.

3. Hill v Haines
Or Haines v Hill & Another. A recent Court of Appeal decision that came as a great relief to all family lawyers. See this post.

4. North v North
Another sensible decision by the Court of Appeal. See this post.

5. Ella v Ella
I'm not sure that this one would make my top five. Mrs Ella failed in her appeal against an order that stayed ancillary relief proceedings in England, to allow them to continue in Israel as required by a pre-nuptial agreement, despite the parties having been largely resident in the UK during their marriage. Lord Justice Thorpe rejected the appeal, partly on the grounds that the pre-nuptial agreement was "undoubtedly a contract which in the Israeli jurisdiction is of considerable effect", irrespective of its relevance to an ancillary relief award in this jurisdiction.

Read More...

The most striking statistic revealed by the Focus on Families report published by the Office for National Statistics yesterday is the huge increase (nearly 65%) in 'cohabiting couple families' over the last ten years. This is considered important, as statistics also reveal that 'married couple families' are healthier and their children are higher achievers.

So why are more couples choosing to cohabit rather than marry? Here are some of my ideas:

• The expense of getting married, especially when it costs so much more to buy a home.
• A perception that marriage is no longer 'forever', so why bother?
• A lack of respect for the 'institution' of marriage, especially as so many younger people witnessed the failure of their parents' marriage.
• A perception, especially amongst men, that they will lose out financially should the marriage fail.
• A perception that it makes little difference whether you get married, especially in the light of tax changes.

Read More...

To coincide with the publication of the Law Commission Report, Resolution yesterday issued a press release giving details of the results of a survey which indicated that more than 70% of family lawyers surveyed stated that, in their experience, the law badly fails to protect the interests of cohabiting couples when they separate. The primary reasons for this failure were cited as the lack of any legal remedy, costs and uncertainty of outcome. Resolution states that this clearly shows the need for reform, and that accordingly it fully supports the Law Commission’s proposals, and "will be pressing the government to move forward and introduce new legislation without delay".

Whilst I certainly agree with the need for reform (I took part in the survey), I'm not entirely convinced by the Law Commission’s proposals, and I certainly don't want any change to be 'railroaded through' without due consideration.

Take for example the 'opt-out' agreement. Lynne Bastow at DivorceSolicitor has already pointed out her concern: "No doubt it will become standard practice for the cohabitee with financial clout to insist that the cohabitee with financial disadvantage signs the opt-out before they move in". Opt-out agreements can be set aside, but only if their enforcement would give rise to "manifest unfairness", which is clearly intended to be a high hurdle to jump. Note also that the presence of children will not be a bar to entering into an agreement.

As to the grounds for financial relief, these introduce three concepts: "qualifying contributions" the applicant has made (including future contributions, for example to the care of the children after separation), the respondent having a "retained benefit" and the applicant having an "economic disadvantage". The "economic disadvantage" and the idea of non-financial contributions are new, and are to be applauded - they will provide financial relief, for example, to parties that give up work to look after the children. As for "retained benefit" however, I can see this giving rise to similar disputes to those we have at present whereby one party claims an interest in the property belonging to the other, as a result of financial contributions. The proposals do give the court some discretion (see paragraph 4.38), but if you're going to go down the discretionary route, why not go the whole hog and simply say that the court can make whatever order it deems fit, having regard to all of the circumstances? It seems sometimes that the Law Commission is struggling to ensure that it doesn't give cohabitants the same rights as married couples.

As indicated by Resolution's survey, most of us are agreed upon the need for reform, and would like this to happen quickly, but surely we want the best new system, rather than rushing ahead with any old system? I'm not saying the Law Commission's proposals are bad, but I'm not yet convinced that they are the best we can come up with.

Read More...

As anticipated, the Law Commission today published its report Cohabitation: The Financial Consequences of Relationship Breakdown. The Report rejects calls that cohabitants should be given the same rights as married couples and instead "recommends the introduction of a new scheme of financial remedies which would lead to fairer outcomes on separation for cohabitants and their families". Key features of the scheme are that those remedies should only be available where:

• the couple had had a child together or had lived together for a specified number of years (the Report does not make a specific recommendation as to what the minimum duration requirement should be, but suggests that a period of between two and five years would be appropriate);
  
• the couple had not agreed to disapply the scheme by entering into an 'opt-out' agreement; and
  
• the applicant had made qualifying contributions to the relationship "giving rise to certain enduring consequences at the point of separation" - so that, unlike the position on divorce, duration of the relationship or the needs of the parties would have no bearing on entitlement. Instead, "the applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship". The court would then have a discretion to "grant such financial relief as might be appropriate", having regard to these matters.
  

Comment to follow!

Read More...

Hot on the heels of John Charman's solicitor's advice to wealthy clients wishing to protect their assets not to get married, I bring you an American website dedicated to discouraging all divorced men from getting married again. With the catchy slogan: "Because no matter how good she may look now ... the screwing you get ain't worth the screwing you get", SilverBulletDivorce.com sells a neck chain with a silver-plated 9mm cartridge on it, explaining:

You have found your way to the site that will help you help yourself. A site that assists in keeping you from committing another cruelty upon yourself. Consider the experiences to date that have brought you to this point. Your quest: to be correct, satisfy a woman's demands, societal pressures, and keeping her in house and home, have now driven you from yours. The opportunity before you is to purchase a talisman that serves as both a deterrent and a solution to your momentary lapse in judgment.

All of this advice may become somewhat academic over here when (and if) cohabitees are given property rights (the government's proposals are to be published next month). Indeed, The Times suggests in this comment article that such rights may in fact encourage people to get married. The main argument of the article is actually that any new law should put the interests of the children first. I particularly liked this:

Too often divorce today is about property, lifestyle and spending money. Recent huge settlements have focused on the trivial and the dishonourable – who gets what, how lavish was the lifestyle, how greedy are the claimants. Such cases overlook the real damage of divorce: the hurt of the children, their loss of opportunity and the breakdown in parental relationships.

Food for thought.

Read More...

Last Thursday evening I attended an excellent seminar, arranged by my Local Law Society, upon the property rights of unmarried couples in the light of the House of Lords' decision in Stack v Dowden. The seminar was given by Pankaj Pathak and Alex Munro, both of 2 Paper Buildings.

It was explained that Stack v Dowden has cleared up some uncertainties, for example that where the deeds are silent and there is no express declaration of trust, a conveyance to joint cohabitees indicates both a legal and beneficial joint tenancy* unless and until the contrary is proved, and that to depart from this starting-point the facts would have to be very unusual. It was therefore something of an irony that their lordships went on to find that the facts of this very case were very unusual, despite their not appearing to be that unusual. We will therefore have to wait for further guidance upon what exactly constitutes 'very unusual'.

So it seems the conclusion is: some questions answered, but at least one new one asked.

[*For the non lawyers, this means that if you purchase a property with your partner and it is not stated otherwise in the documentation, you will own the property in equal shares such that if either party were to die, the whole property would pass to the survivor.]

Read More...

The number of people finding this blog by using the search string "Stack v Dowden" since I posted about the case a couple of days ago suggests to me a huge desire amongst family lawyers for some guidance upon resolving cohabitees' property disputes.

When so many people choose to cohabit rather than marry, is it satisfactory that we should have to rely upon a succession of (sometimes contradictory) court decisions to enable us to advise our clients? Surely the time has come for Parliament to properly codify the property rights of cohabitants upon relationship breakdown, in a similar way to the rights of spouses upon marriage breakdown?

As I have mentioned before, Resolution suggests that if a couple have been together for two years or more then they should take some responsibility for each other’s welfare when their relationship ends. Until that time, strict property rules could apply, although it would be helpful if, as Baroness Hale suggested in Stack v Dowden, the Land Registry made it mandatory for the Transfer document to contain a declaration setting out how the transferees are to hold the property. Of course, any major change in cohabitees' property rights should be accompanied by a publicity campaign to make the public aware of the new law.

There has been much discussion about changing the law. Let's hope that, when it's published in August, the Law Commission's final report will create the impetus for change to actually happen.

Read More...

The eagerly awaited decision in the case of Stack v Dowden has been published today, with the House of Lords unanimously dismissing Mr Stack's appeal. He had claimed that he was entitled to a half share of the proceeds of sale of the property that he owned jointly with his former cohabitee, Ms Dowden. The County Court found in his favour, but Ms Dowden appealed and the Court of Appeal granted her 65% of the net proceeds. Mr Stack appealed to the House of Lords, which found that Ms Dowden had proved that the common intention was that she and Mr Stack should hold the property in unequal shares, and therefore upheld the order of the Court of Appeal. One factor indicating this common intention was that Ms Dowden had clearly contributed far more to the acquisition of the property than Mr Stack. Another was that, unusually for a couple that had lived together for so long (twenty-seven years) and had had four children together, they kept their affairs "rigidly separate", which Baroness Hale considered to be "strongly indicative that they did not intend their shares, even in the property which was put into both their names, to be equal".

Hopefully, cohabitees will, at some point in the near future, be given properly defined property rights (I have posted about this before - see, e.g., here), in which case the importance of this decision may only be temporary.

Read More...

When 67 year-old Alfred McGuire's girlfriend ended their three year relationship, he took her to court for £1000 that he had spent on meals, weekend breaks and trips to the cinema during the 'romance'. Not surprisingly, his claim failed. I'm not sure why this story was deemed to be of sufficient importance to merit space on the BBC News website. Nevertheless, I suppose it serves as a useful warning to anyone else who may be aggrieved by such matters.

The story does not state whether Mr McGuire took legal advice before issuing his claim - if he did, I hope he was advised in the strongest terms not to pursue the matter.

Read More...

I recently recommended The Magistrate's Blog, run by 'Bystander', and added it to my 'blogroll'. The latest post on the blog relates a family law story with a simple moral: if you find yourself at a police station accused of a crime, never refuse legal representation. The subject of the story, Nick, was arrested after his girlfriend alleged that he had been violent towards her, and agreed to accept a caution for Common Assault - the concern now being the effect of the caution upon any future proceedings between Nick and his girlfriend, particularly regarding his contact with the children. Hopefully for all concerned no such proceedings will be necessary, and even if they are, the court will accept that the 'assault' will have no bearing, but it certainly doesn't help matters.

There is one point upon which I do not necessarily agree with Bystander. He/she says that the girlfriend "will of course get the house". If by this it is meant that the house will be transferred to the girlfriend simply because the children will live with her, that is of course not the case - unless she has or can prove an interest in the house, then the fact that the children are living with her will only give her at best the right to reside there with them until they reach 18 or cease full-time education.

Read More...

The law on cohabitation continues to make the news, with the Department for Constitutional Affairs publishing a report presenting "findings from an in-depth study of 29 former cohabitants exploring how couples make arrangements for parenting and financial division following separation from a cohabiting relationship". If you have time to read all 190 pages, the full report can be found here, but there is a more manageable 7 page 'executive summary' here. The conclusion to the summary states that "the fact that wider use of cohabitation law would not have addressed all the instances of disadvantage [in the study] supports the current review of the legal framework" but that "the study does not clearly indicate the superiority of any one option for reform", with the only real recommendation being "educating people about the legal implications of cohabitation and of different arrangements, and encouraging greater use of cohabitation agreements". Quite how we dispel the myth of the 'common law marriage' (see my previous post here), I don't know, but somehow I think it will take more than the suggestions in the report, which included reviewing entitlement to legal aid (unlikely), an information pack, an ‘idiot’s guide’ to cohabitation available via the Internet and a dedicated advice-line for cohabitants and former cohabitants.

Read More...

The Church of England has published it's response to the Law Commission's consultation on cohabitation. As one would expect, the Church recommends "that public policy should promote and encourage marriage, as it contributes to the common good" and accordingly it rejects both "the notion of an opt-in to a new legal status for cohabitees on the ground that this runs a serious risk of undermining marriage" and "the proposals for reform based on the length of cohabitation for couples who do not have children on the grounds that this is more likely to give substance to the myth of common-law marriage, rather than dispel it". However, citing "the example and teaching of Jesus, standing alongside those with no voice, especially children", it is "sympathetic to reform that addresses the effect of relationship breakdown on children and those who make sacrifices to care for them".

I'm sure the Law Commission will give considerable weight to the views of the C of E. However, what amuses me about the response is it's reference in paragraph 14 to addressing "situations that fall short of biblical ideals". Exactly what 'biblical ideals' are they referring to? Perhaps the ideal that homosexuality is a sin, or maybe even the ideal that a man should stone his wife to death if he discovers she is not a virgin? Of course, I'm certain that any member of the Church of England will say they do not agree with stoning wives (although no doubt many will still say homosexuality is a sin), but this is because of their own morality, not the teaching of the Bible. Why should the laws of this country be so influenced by the 'moral guidance' of religion?

Read More...

In what appears to be a press release, Chairman and Press Officer of the Coventry and Warwickshire group of Resolution Alan Markham says it’s vital that the law is changed and clearly communicated to clear up the public misconception that cohabiting couples have protection as “common law man and wife”. Resolution is not recommending that cohabiting couples should have the same rights as married couples but that they should take some responsibility for each other’s welfare when their relationship ends. As Markham says: “Heterosexual couples are free to marry and same sex couples can enter a civil partnership. If they choose not to, that’s fine, but the law must protect the vulnerable – especially where one person may have given up their earning capacity to look after the couple’s children".

In it's response to the Law Commission's consultation on cohabitation, Resolution suggests that if a couple have been together for two years or more, the protection should be automatic, unless they choose to opt-out of the system, but financial support should last for only three years at most, other than in exceptional circumstances. The consultation period is about to end, on the 30th September, so we must now await the Commission's Final Report, due in August 2007.

Read More...

As many may know, Resolution is campaigning for cohabiting couples to be given a 'safety-net' of basic property rights should they separate. Meanwhile, they have published some useful advice for cohabitees to protect themselves if their relationship breaks down, including such things as making a will and formalising shares in jointly owned property. The full advice can be found in the media section of their website, here.

Read More...