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A B C D E F G H I J K L M N O P R S T V W Y

Family

Is Family Law Failing Cohabitees?
Tuesday 8th November 2016

The Office for National Statistics has today published updated statistics in relation to the make-up of families in the UK.

There are currently 18.9 million families in the UK; 12.7 million of which are made up of couple who are married or in a civil partnership making them the most common family type.

However the number of cohabiting couple families rose from 1.5 million in 1996 to 3.3 million in 2006 making them the fastest growing family type.

The ONS suggest the reason for this may be “couples choosing cohabitation as an alternative or precursor to marriage”. Full details of the statistical release can be found here.

There is currently no such thing as common law marriage in UK law despite widespread belief.

This means that cohabiting couples do not have the same legal rights as married couples. When a cohabiting relationship breaks down, although there are some claims that can be brought by one party against the other in relation to children and property, the parties do not have the same rights and claims as they would have had were they married or in a civil partnership.

On the basis that cohabiting couples make up the UK’s fastest growing family type there are many who believe cohabitees should acquire the same rights as a married couple or a couple in a civil partnership.

In 2007 the Law Commission made recommendations that the rights of cohabiting couples upon separation be increased.

Subsequently, in their Manifesto for Family Law, Resolution (the national body for Family Lawyers) called for “a legal framework of rights and responsibilities when unmarried couples who live together split up, to provide some legal protection and secure fair outcomes at the time of a couple’s separation or on the death of one partner”.

This was followed by the Cohabitation Rights bill (seeking to address the rights of cohabiting couples) which had its first reading in the House of Lords on 4 June 2015. This is however a long way from becoming enshrined in law.

However there are some who do not advocate legal rights and protections for cohabiting couples fearing that it undermines the meaning of marriage and also citing the difficulties and practicalities of defining what constitutes cohabitation and whether there should be a minimum period of cohabitation before claims can be brought.

Whatever your view, there are steps that a cohabiting couple can take to protect their position in the event of a separation.

The most well know option is a Cohabitation Agreement. This is an agreement couples can enter into to document how they will divide property, contents, personal belongings, bank accounts, savings and other assets should the relationship break down. It can also go into detail about how the day to day finances will be managed and who will contribute what.

This should be supported by a declaration of trust in relation to property ownership where appropriate and a very clear details on the title of any property as to how it is owned and whether any contribution is to be ring-fenced.

Finally, it is essential that cohabiting couples have Wills so that it is very clear what each party wishes to happen to their assets on death.

For more information in relation to the rights of cohabiting couples or entering into a cohabitation agreement prior to cohabiting please contact Natalie Hargreaves or any other member of the Brabners Family Team.


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Regrets when splitting up - “rushing decisions”
Thursday 13th October 2016

I frequently find that people getting divorced regret making quick decisions over whether they should split up and, if so, how they should get divorced. However almost as many people regret allowing themselves to drift along in an unhappy relationship or not sorting out their divorce. Most couples find it hard to strike a happy medium on how quickly they should act.

What a good divorce lawyer will do is point a husband or wife in the right direction, whether that be to Relate, couple counselling or an individual therapist to try and avoid a husband or wife later regretting the speed of their decision to separate.

It is not just the decision on whether or not to split that separating couples sometimes feel is rushed. Often a husband or wife will feel, with the benefit of reflection that they made financial decisions too quickly or decided to start court proceedings without finding out more information about the alternatives.

Frequently separating couples say that decisions were taken because of friends’ input. It is sometimes sensible to get completely neutral help from a counsellor or therapist, who doesn’t have their own agenda, and who is there to make sure that decisions are not only right for you but made in your timeframe.

There are occasions when speed should be of the essence, for example, where there are concerns about money disappearing or property being sold.

Even if an individual is comfortable with the timeframe for their decision to separate it is equally important that they do not rush into making a decision about how to get divorced, or how to divide their money, or the arrangements for their children. All too often, with the benefit of hindsight, a husband or wife will regret an action, such as stopping contact with children, or emptying a joint bank account.Actions are often taken in the heat of moment and often without first taking advice. It is however those very early decisions that can result in the rush to start court proceedings becauseone parent is not seeing the children, fears about assets being depleted , because communication has broken down.

Even if counselling or therapy is not required there are a lot of alternatives to court proceedings such as arbitration, collaborative law, or mediation. These options can all be explored with a family lawyer before taking the decision to start court proceedings.

For more information on any aspect of family law please contact me on 0161 836 8927 or by email at joanne.radcliff@brabners.com.


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Regrets when splitting up - “I didn’t do a pre-nup agreement”
Wednesday 12th October 2016

There is normally a very long list of regrets when someone is coming out of a relationship but in this series of blogs I look at the financial regrets that are mentioned time and time again.

A frequent regret is the failure to sign up to a pre-nup agreement prior to the marriage. 

The majority of people assume that if they had asked a solicitor to prepare a pre-nup agreement for them prior to their marriage then, on separation, there would have been a straightforward split with their partner receiving what was agreed in the pre-nup document.

Sadly, that is not necessarily the case. Most people cannot understand why a pre-nup agreement will not necessarily do “what it says on the tin”. In England pre-nup agreements are not legally binding. However Courts are increasingly taking them into account when deciding how assets should be divided. With a carefully drafted pre-nup agreement the document can prevent or limit financial claims or the agreement can be upheld.

Whether a husband or wife should regret not entering into a pre-nup agreement is really down to individual circumstances. None of us know (although many friends will speculate) whether a marriage will be long and happy or not. There are however a number of key pointers for when a pre-nup agreement is a particularly good idea:

  • Second marriages
  • Older couples getting married who already own assets or property, or have inherited money before their relationship with their fiancée
  • One partner has a business or shareholding in a private company
  • One or both have children from previous relationships that the couple want to protect in the event of their separation
  • If one partner has been given assets by family members, as part of the older generations tax and estate planning, and the couple agree that those assets should be ring-fenced 

In time, as pre-nups gain in popularity, I anticipate that the regret of not entering into a pre-nup will gain in popularity and that over the next few years the face of family law will change with pre-nup agreements eventually being seen as part of the shopping list of essential pre-wedding items.

For advice on any aspect of family law please contact me on 0161 836 8927 or by email at joanne.radcliff@brabners.com.


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The Tide Has Turned: Limited Maintenance Post Divorce
Friday 5th August 2016

During the past year, family lawyers have seen a shift in the court’s approach to joint lives spousal maintenance.  These types of spousal maintenance orders, which are often also referred to as ‘a meal ticket for life’, divide public opinion. 

In the past there were many cases (often typically involving a wealthy husband and a wife who was a homemaker) in which joint lives spousal maintenance was almost commonplace.  The amount paid in maintenance would depend on the income available and the standard of living the couple enjoyed throughout the marriage but, for those who had become accustomed to a lavish lifestyle without working, it wasn’t uncommon for a wealthy ex-spouse to be expected to maintain that lifestyle after divorce. 

This meant that individuals who had never worked or who had given up careers to raise a family, could still have the standard of living they had throughout the marriage without being forced to find employment for the first time in years or generate an independent income after divorce. 

However, the case of Tracey Wright saw a shift in the approach to joint lives spousal maintenance, with Mr Justice Pitchford finding that divorcees should be expected to work for a living if they do not have children under the age of 7.  This has led to many people having to seriously consider the prospect of providing for themselves rather than relying on the wealth of their ex indefinitely. 

In the past year the courts have become more inclined to time limit maintenance, for example, until children are older and parents can reasonably expected to take on more work, or to allow sufficient time for divorcees to retrain before earning their own independent income. 

Each case is decided on its own facts, but what is clear for those with wealthy ex-spouses is that they should not assume that they will automatically receive high levels of maintenance for the rest of their lives and must now think about how they can independently maintain their lifestyle in the longer term.

This applies not only to cases being dealt with afresh; if you have an existing order consider reviewing this to take advantage of the shift in approach.

For additional information about any aspect of family law please contact Leanne Instrall, solicitor, on 0161 836 8916 or by email at Leanne.instrall@brabners.com


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Social media and family law - the common mistakes people make
Wednesday 13th July 2016

We live in an age where our view of privacy has changed significantly. The development of social media and the role it plays in our lives has transformed the way we communicate with the world around us.

However, social media can be problematic for those going through relationship breakdown or experiencing disputes with an ex-partner over their children. So what are the most common errors people make on social media?

  1.  Criticising their ex partner online:

Family lawyers regularly come across situations where clients will produce print-outs from sites such as facebook, showing unpleasant and derogatory comments made by their ex-partner about them. Such posts can sometimes be referred to within court proceedings and can be prejudicial to that person's case.

By way of an example, in one recent case I have dealt with a mother argued that she was supportive of their son having a relationship with the father (my client). However, serious damage was done when some ill-advised posts came to light, which appeared to show her suggesting she had no intention of letting the child spend time with the father and her being very negative about him. Social media posts can also be used to back up claims that one party is aggressive or abusive towards the other.

  1. Sharing information about their life which does not match what they have said to their ex partner/the court:

It is surprising how many times people who are pleading poverty whilst trying to reach a financial settlement on divorce will post on sites such as twitter, Instagram and facebook with details showing a very different story. This may be pictures of their new car, luxurious holiday, or expensive jewellery. We have even seen people who have claimed they are not living with a new partner post details of their new life living together or of their engagement. People seem to forget that much of the content of their social media accounts are public, and even those that are private can still be accessed by people who may be friends with their ex partner.

  1. Revealing confidential information from court proceedings:

Where family law proceedings are held in private you cannot disclose or publish information related to the case unless you have the permission of the court to do so. Failure to comply with this can be considered a contempt of court, which is a criminal offence. This means that there can be no disclosure of documents and private information about the case on social media.

If in doubt you should always seek the advice of a family lawyer who can provide guidance about your own social media, or that of an ex partner where that may be relevant.


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‘Former supermodel, Christina Estrada awarded UK’s biggest divorce settlement’
Friday 8th July 2016

There have been a number of multi-million pound divorce settlements to hit the headlines in recent years, such as Sir Paul McCartney’s £24.3million payment to Heather Mills, but this has set the record as the largest ‘needs’ based financial remedy settlement made by an English court. Former supermodel, Christina Estrada (aged 54) who married the billionaire Saudi oil baron, Walid Juffali (aged 61), in 2001 has just been awarded a £53million settlement in the High Court.

Ms Estrada filed for divorce in 2014 when she discovered that Mr Juffali had secretly married a 24 year old TV presenter. Ms Estrada, who has lived in the UK since 1988, obtained leave under Part III of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief in England because she could not bring a case in Saudi Arabia.

Estrada, who rejected an offer of £37million, claimed that her personal financial ‘needs’ amounted to a figure in the region of £250million telling the Judge that this is the life she is accustomed to. It is reported that this figure included a £1.02million annual clothing and jewellery budget and £2.1million annual travel budget, that includes a private jet. Mrs Justice Roberts at the pre-trial hearing told the court that the couple, who have one child together, had enjoyed “an extraordinary standard of living” provided for by Mr Juffali.  

When a marriage breaks down, the court can divide assets, regardless of how or when the assets were acquired. The court has broad judicial discretion when determining how the ‘matrimonial pot’ should be divided but starts from the premise that, in the case of a long marriage, the ‘pot’ should be divided equally. However, the court’s role is to achieve fairness between the parties and the court has regard to a number of factors when dealing with financial claims upon divorce, and the ‘needs’ of an ex-spouse in one of them.

 


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Family Arbitration Ruling – Judge encourages the use of family arbitration
Tuesday 28th June 2016

A number of family court judges have recently reiterated the advantages of using arbitration to resolve the division of assets on divorce. An arbitrator makes a decision on who gets what assets, a bit like a judge, but in arbitration the husband and wife get more say in the arbitration process. Using an arbitrator can be speedier, more bespoke and confidential than using the traditional family court process

When enquiring about arbitration spouses are often concerned that if they use arbitration the arbitrator’s decision may not be binding.  That is an understandable concern because most families want certainty, they do not want to use a process where there is a risk that the decision could be challenged.

Whether a couple use arbitration or ask the court to decide how their assets are divided the arbitrator or judge’s decision can be appealed against.  A recent decision, called DB v DLJ, has confirmed that decisions made in arbitration can only be challenged in similar limited circumstances to a judge’s decision made within family financial court proceedings.

In DB v DLJ an arbitrator awarded the husband 55% of the family assets and the wife 45%, to reflect the fact that the husband’s business was well established at the time that the husband and wife commenced their relationship.  The wife was also awarded spousal maintenance. 

After the arbitrator’s decision the wife discovered that she had not secured planning on a property, thus reducing the property value and accordingly the amount of the award to her.  She therefore refused to agree to the arbitration award being converted into an agreed formal court order. 

The husband made a court application to show cause why the arbitration award should not be made into a financial court order.  The wife argued that there was a mistake in the arbitration award or, alternatively, the fall in value of her property invalidated the arbitration award. 

The judge, hearing the dispute, praised the arbitrator’s decision on how he had split the assets and encouraged the use of arbitration.  The judge decided that the unexpected refusal of planning on the property was not a mistake or a supervening event.  The judge thought that the wife could have discovered the position on the planning application, with due diligence, before the arbitration hearing. 

So the lesson is that it is almost as difficult to set aside an award made in arbitration as it is to try and set aside a financial court order made by a family court judge.  Couples should only commit to an arbitration hearing if they are satisfied that all their ‘’ducks are in order” and have satisfied themselves about the impact of planning decisions on property valuations and are satisfied with all the paper work prior to either an arbitration or court hearing.

For additional information about any aspect of family law please contact Leanne Instrall, solicitor, on 0161 836 8916 or by email at Leanne.instrall@brabners.com


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Brexit – implications for family law
Monday 27th June 2016

Brexit – implications for family law

Given the financial and political turmoil the last thing on most people’s list of concerns is how Brexit will affect family law proceedings.  Most people’s concerns are more immediate; how will Brexit affect employment, the property market, pension incomes and the value of financial investments?

In time, people will learn that EU law has affected almost every area of our personal lives, including family law on divorce, child care arrangements and finances on separation. EU law determines where divorce court proceedings can be commenced and enforcement options.

Just as there will be political and financial uncertainties in the days and months to come, the implications of Brexit on family law are uncertain at present. 

The intricacies of EU law on UK divorces will in all probably not be a priority for most divorcing couples but rather their focus will be on the impact of financial and property market uncertainty on values of assets during their ongoing divorce and financial proceedings.

Brexit is likely to influence valuations placed upon properties, businesses, and pensions.  The rule in financial court proceedings is that assets are valued at the time of the court hearing to determine how the money and assets should be divided.  Accordingly some divorcing couples may regret settlements reached shortly prior to Brexit, leaving one spouse with cash and the other with property. Divorcing couples will ask if such orders can be appealed against as ‘unfair’. The general answer will be no as Brexit was a foreseeable event, in much the same way as the 2007 property crash was.

Couples in the midst of financial court proceedings may now be scrambling round for further valuations, depending upon the nature of their assets.  However, it is trite to say that only time will really tell with how valuations of properties, investments and pensions will pan out. Accordingly, from a courts perspective, the safest and most equitable option may be to share assets across classes so that both husband and wife take the rough with the smooth, if there is a smooth to be found following Brexit.

What is clear is that there is a need for separating couples to take professional independent financial and legal advice to ensure that they share the risks and any rewards flowing from Brexit.

 


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Sports Star’s ex-wife calls for a change in the definition of “adultery”
Tuesday 14th June 2016

Sports Star’s ex-wife calls for a change in the definition of “adultery”

Family lawyers are often asked ‘’exactly what is “adultery?” This is because adultery, as a reason for divorce, alongside unreasonable behaviour, is one of the most widely used grounds for divorce in England. 

Adultery is defined as a spouse having had sexual intercourse with a member of the opposite sex. In order to get divorced, a spouse also has to say that that they cannot continue to live with their husband or wife.

To most people’s surprise, there is no time limit on adultery. Many think you can only commit adultery while living with your  spouse and that if you split up and then meet a new partner that is not ‘’adultery’’. That is not correct because as long as you are legally married, in law, any new sexual relationship with a member of the opposite sex is classed as adultery.

The ex-wife of a sports personality is campaigning for a change in the law so that adultery is defined as simply as a spouse having had sexual intercourse with another person.  This is because her ex came out as being gay .The only basis upon which she could get divorced from him was his “unreasonable behaviour”.  It is reported that neither one of them felt comfortable in 2016 with defining his coming out and forming new relationships as “unreasonable behaviour”. Neither did the wife want to wait for a divorce, as if the couple had waited for 2 years after their split up, they could have got divorced on the basis that they had been separated for over 2 years as they both agreed to the divorce.

The point, validly made by the ex-wife, is that if same sex couples can enter into civil partnerships and can, with the recent change in the law, get married and divorced why can they not commit adultery?

Many may think that it really does not matter why or how a couple get divorced.  In many ways that is right .That is why Resolution, the national organisation for family solicitors, is trying to take steps to get away from the culture of having to allege adultery or unreasonable behaviour in divorce proceedings in order to get a quick divorce. Resolution is campaigning for a change in the law for no fault divorce, without the need to wait for 2 years in limbo before being able to get divorced. 

Until the Resolution campaign is successful divorcing couples will have to continue to work their way around the minefield of the divorce process.

For advice on an aspect of divorce process please contact Leanne Instrall on 0161 836 8916 or by email at Leanne.instrall@brabners.com


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After the Supreme Court pressed the green light for ex-wife’s financial claims, renewable energy entrepreneur Dale Vince calls for a time limit on divorce pay-outs
Monday 13th June 2016

The highly publicised financial claim brought by Dale Vince’s ex-wife, Kathleen Wyatt, has been resolved by agreement with the green energy tycoon paying Ms Wyatt a reported £300,000. 

Kathleen Wyatt had been seeking a £1.9M pay-out from Dale Vince, the former New Age traveller, who is now reportedly worth over £100M. All of that £100M had been created after the couple separated and Mr Dale founded Ecotricity. 

Mr Dale met and married Kathleen Wyatt in 1981.  They became New Age travellers together and had a son in 1983.  They separated some years later and Ms Wyatt raised the couple’s son alone.  They divorced in 1992.  Neither one of them had any money at the time of their divorce and they did not get a financial order.  A clean break financial order would have prevented either one of them from being able to make any financial demands on the other.  Not bothering with a financial clean break order is not unusual in the situation where a couple are young with few assets, and don’t envisage becoming an entrepreneur.

Financial court proceedings were started by Ms Wyatt, in 2011, nearly 20 years after the divorce.  Both had moved on with their lives and were in new relationships and had further children. In contrast to Mr Dale’s business success, Ms Wyatt had held down low paid jobs and had on occasion had to rely on state benefits.

Ms Wyatt’s financial claim was rejected by the Court of Appeal who thought it was too late to apply. However in March 2015 the Supreme Court set aside the decision, ruling that there was no time limit in law for claims for financial provision on divorce.   This gave Mrs Wyatt the green light to go ahead with her financial proceedings and pursue the £1.9M pay out that she was seeking.

Last week it was reported that Mr Vince and Ms Wyatt agreed to settle her financial claim.  A family High Court judge, Mr Justice Cobb, approved an agreed financial court order awarding Ms Wyatt what was described as a “modest” award of £300,000. The media report that it is not known how much Ms Wyatt will actually receive after payment of some outstanding legal fees.  Some have speculated that she may receive very little. 

It is suspected that Mr Vince took the economic decision to agree to pay Ms Wyatt the £300,000 as he could have spent more than that amount, in legal fees, battling over whether or not Ms Wyatt should receive anything. As a result of their agreement the court will not hear detailed argument on when, if ever, financial claims of an ex should fall away, if there is no clean break order.

In the press, Dale Vince has called for a statute of limitations for divorce cases and is described as being very disappointed that the Supreme Court decided not to throw out Ms Wyatt’s application, brought over 30 years after their relationship ended.

Legal costs of these complex court proceedings could have been avoided if the couple had entered into a financial clean break order at the time of their divorce in 1992.  At that time neither of them had much by way of assets.  They both probably thought that neither would ever amount to much. Many spouses have taken the same risk or been oblivious to the thought of their ex-spouses claiming against future business ventures, inheritances or windfall payments received many years after the split.

The moral of the tale is perhaps that spending a little sometimes saves a lot.

At Brabners we advise husbands and wives to get a financial court order at the time of a divorce. None of us have a crystal ball and it is better to hope that there may be a successful budding entrepreneur or lottery winner than take the risk.

When solicitors advise families on estate planning , many people do not know if they have a financial court order and, if so, if it is a clean break order or not. It is imperative to check whether there is a financial clean break order as this can be a trigger to decide to get a financial clean break order or can affect estate planning decisions. 

Many former spouses assume that they have a clean break just because they got divorced.  That has never been the case and all the Supreme Court decision has done is to confirm that, unless there is a change in the law, there is no statute of limitations for divorce cases and that the financial court   process on divorce can be a lottery with the potential for different judges to come to a range of views on whether there should be a pay out and, if so, the amount.

 


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