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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

What’s in a name? – Travelling abroad with a child with a different surname
Thursday 7th September 2017

As the holiday season draws to a close a lot of children will return to school with happy memories of family holidays.  However, for some, travelling abroad with their children can have unexpected complications when passing through border control if the children have a different surname to their own. 

The issue has recently been highlighted by Tulip Siddiq, MP for Hampstead and Kilburn.  On their return from France Mrs Siddiq and her 18 month old daughter, Azalea (who has her father’s surname), were stopped by UK border control officials who questioned why they did not have the same last name.  Mrs Siddiq is married to Azalea’s father but decided to keep her maiden name after marriage.  Officials asked to see documents including marriage certificates and birth certificates, which of course are not documents many people would think to take abroad with them in addition to their passport. 

Mrs Siddiq has described the incident as distressing, not only for her, but also for her daughter.  It was only when her husband joined them that officials allowed them to proceed with their journey.  Mrs Siddiq has called for reform of the regulations so that both parents are named on the child’s passport to prevent this in the future.  (For more information on Mrs Siddiq’s story please see https://www.theguardian.com/uk-news/2017/sep/06/mp-stopped-at-border-over-daughters-name-urges-passports-reform?CMP=fb_gu).  

It is of course important that border control officials check the identity of those travelling with children and their relationship to them, in order to protect children from trafficking, abduction and other crimes.  However, consideration should be given to the documents that parents who do not share their child’s surname may require when travelling. This will be an issue which doesn’t just affect mothers who are married but have chosen to keep their maiden names.  Problems may also arise where parents are unmarried, or where parents are divorced and have either reverted to using their maiden name or have taken a new name on remarriage. 

It is also of note that different border patrol agencies can have different requirements on what documentation should be provided and when.  For example, Mrs Siddiq was stopped by UK border control but not the French authorities.  Family lawyers are often asked to assist with the preparation of documents for travelling abroad, as affidavits and certified documents from the parent with the same surname are required by some countries if that parent is not travelling too. 

Similarly, when children travel abroad it must usually be with the consent of all individuals with parental responsibility.  This means that if a child is going on holiday with their mother alone, then their father’s consent to the travel may be required before they are permitted to travel.  As family lawyers, we are often instructed in relation to obtaining parental consent in writing, in the event that this is asked for when travelling abroad.  

Following separation and divorce it can be more difficult to obtain consent or copy documentation from a non-travelling parent and we would always recommend that this issue is dealt with at the earliest opportunity so that travel is not delayed or cancelled. 

For more information on parental responsibility, changes of name or requirements for travelling abroad with your children please contact Leanne Instrall on 0161 836 8916 or by e-mail to Leanne.Instrall@Brabners.com
 


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Common Divorce Myths
Monday 4th September 2017

“I want a divorce on the ground of irreconcilable differences”

This is a phrase we all see used in magazines, newspapers, and films – which may explain why 85% of the population think this is an available ground for divorce in the UK. It is in fact a ground for divorce in America.

In the UK there is just one ground for divorce - that the marriage has “broken down irretrievably”. This is established by proving one of five facts:

a) The other party’s Adultery
b) The other party’s Unreasonable Behaviour
c) Desertion
d) Two years separation (with the other party’s consent)
e) Five years separation (if the other party does not consent)

“My spouse had an affair so I am taking them to the cleaners” / “I had an affair so I’ll walk away with nothing”

People often find it hard to believe that behaviour within the marriage bears absolutely no relevance to ancillary relief proceedings. When it comes to dividing assets, it does not matter who had an affair or who behaved unreasonably. Financial proceedings can take a long time as it is, and if the court were to wade through accusations about adultery and behaviour then they would drag on endlessly -  the only conduct that is relevant to financial settlement is gross financial misconduct (which is very rare!)

“I deserve more from the divorce, since I was the one who earned it/paid for everything”

It does not matter who was the breadwinner in the relationship is – the court will normally view both parties as having made an equal contribution to the marriage and so the starting point will always be 50/50, irrespective of each parties actual financial contributions. Although there will be various arguments that may be used to justify a departure from an equal division, including the needs of the parties.

“I need a lawyer who is aggressive – not a pushover”

There is a huge misconception that your lawyer should be aggressive. An aggressive approach will not change the outcome of the proceedings; it will simply make things more unpleasant for the parties involved, and will more often than not increase costs unnecessarily.

Your lawyer should be firm and pro-active, but focused on reaching an amicable agreement. This is in your best interests, both emotionally and financially. It is also worthwhile to find a solicitor who is trained in other methods of resolving cases, such as arbitration, mediation or collaborative law.


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Sir James Munby: Provisions for care and support in UK are a “disgrace to any country with pretensions of civilisation”
Wednesday 9th August 2017

Sir James Munby, President of The Family Division in England and Wales, has heavily criticised the state of Mental Health provision in the UK in the case of Re X (A Child) (No 3).

The case involves a girl aged 17 who for the purposes of confidentiality is referred to as “X” and who is currently placed in a secure accommodation unit.

X has serious mental health issues and is described as being “on a suicide mission to a catastrophic level”, having made 102 significant attempts to take her own life during her time at the unit (less than six months). The staff are concerned that they are never more than 24 hours away from a phone call confirming that one of her attempts has been successful. The unit has been assessed as being unsuitable for X on the basis that the care and supervision that X requires is far above and beyond the level of supervision usually required by patients there.

The facilities at the unit are described as not meeting X’s needs – “despite the staffs best efforts they are managing little more than to contain her” - Mr Munby thus ordered on 15th June that there should be urgent enquiries in relation to X’s placement in to a clinical setting, in an adolescent secure unit.

Unfortunately when the matter was next before the court on 3rd August, there had been no replacement centre found for her. Sir James Munby noted that “I could hardly have been clearer in stressing the imperative to find an appropriate placement for her before her release…... for all that has actually been achieved in the last few weeks, I might as well have been talking to myself in the middle of the Sahara”

The only suitable placement that was identified had a six month waiting list for beds. Mr Munby stated that “this lack of proper provision for X – and one fears, too many like her – is an outrage”

X is nursed in her bedroom at the unit, although this bedroom has had to be stripped entirely to make it secure – it consists of simply a mattress on the floor. X has to wear anti-ligature clothing and is supervised at all times. She is totally isolated from all peers and receives no education. Mr Munby stated that X is simply existing as opposed to living. Whilst recognising that these conditions have been imposed in order to preserve her life, Mr Munby could not see that they were compatible with her humanity or dignity or indeed the European Convention of Human Rights.

Mr Munby heavily criticised the situation arguing that “what this case demonstrates, as if demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical and support services so desperately needed” and that it is “a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a Judge in 2017 should be faced with the problems thrown up by this case”

Mr Munby concluded that “One of the measures of a civilised society is how well it looks after its most vulnerable members of its society….if this is the best we can do for X, and others in similar crisis, what right do we have to call ourselves civilised?.... I feel shame and embarrassment that I can do no more for X…..if we are unable to provide X with the safe placement she so desperately needs, we will all have blood on our hands”

This is not the first occasion that Mr Munby has used his position to raise concerns with the British Care system. The Judgement has been sent to the Home Secretary, Health Secretary, Education Secretary and Justice Secretary although so far no minister has commented.

For more information on the topic, please contact Antonia Williamson or another member of our Family team


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Protection for "The Bank of Mum and Dad"
Wednesday 28th June 2017

There is never a shortage of press coverage on the growing difficulties of getting on to the property ladder – as house prices continue to sky rocket the average age for first time buyers continues to increase - currently standing at 30 years of age. What’s more, there is growing dependence on “The Bank of Mum and Dad” – roughly 34% of first time buyers have been financially assisted by their parents.

This isn’t particularly surprising – but what is surprising is the number of parents who generously assist their children in buying a home with their partner, and take no steps to protect that contribution in the event of a separation.

Suppose you gift your Son/Daughter £50,000 to enable them to purchase a home with their partner – only for the relationship to breakdown a year or so later. The home is sold, and the proceeds of sale are split 50/50 – the partner thus walking away with the benefit of £25,000 of your money. A far cry from what was in mind at the time of the gift!

You can initiate proceedings under Trust of Land and Appointment of Trustees Act 1996 to challenge the 50/50 split – but these cases are incredibly complex and extremely costly – it can often be the case that the litigation would cost too much to be worthwhile. It is therefore crucial to protect your position at the outset when providing funds to your child and their partner. The following steps can be taken to offer security to you in the event of a separation:

1. Preparing a cohabitation agreement – this document will confirm exactly how the couple intend to own their property, and can also cover what should happen to any other assets they may have in the event of a separation i.e. joint bank accounts or items they purchase for the property. It can provide everyone with certainty and prevent a dispute in the future.

2. Registering a legal charge against the property – this offers the highest level of security available; making your contribution a legally binding loan that must be repaid if/when the property is sold. If the property is mortgaged, some lenders may be reluctant to allow a second legal charge.

3. Entering in to a Declaration of Trust – this doesn’t affect legal ownership of the property, but clarifies the proportions in which the property should be owned.

It is understandable that parents want to assist their children when they have the money to do so – but it is important that they are mindful of themselves in the process.
 


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What is Parental Alienation?
Thursday 25th May 2017

Parental alienation is a form of emotional abuse that has recently gained considerable momentum both within the court system and in the press.  In recent years, forms of emotional abuse have become much more recognised and in some circumstances criminalised.  Parental alienation is the process whereby one parent successfully “brainwashes” or influences a child in to showing unwarranted fear or hostility toward the other parent; essentially rejecting one parent in order to please the other.  This is also a process that is almost exclusive to divorce/separation proceedings.

So what exactly does parental alienation look like?  Examples include the following:

  •       Constantly denigrating the other parent in the presence of the child;
  •       Limiting or preventing contact between the child and the other parent;
  •       Forbidding the child to discuss the other parent;
  •       Forging the impression to the child that the other parent does not love them, or cannot adequately care for them;
  •       Giving the child details of the divorce/separation and thus encouraging the child to “take sides”.

In cases where parental alienation is a concern, this can lead to real difficulties for parents who are seeking to spend more time with their children and have no choice but to pursue this through the Family Court.  In Children Act proceedings, the court will consider a number of factors with reference to the ‘welfare checklist’.  This includes consideration of a child’s wishes and feelings, but this must be in the context of that child’s age and understanding.  Where parental alienation is a factor, the courts must determine (with the assistance of CAFCASS) to what extent the child’s wishes and feelings have been influenced by a parent and, ultimately, what is in the child’s best interest. 

If the court finds that one parent is being so hostile towards the child spending time with the other parent, to the detriment of the child’s relationship with that parent, then this can be taken into consideration when deciding what the arrangements for the child should be.  For example, a judge could decide that the child should spend more time with the other parent to support that important relationship for the child.  However, the court is limited in options in terms of ‘sanctions’ for hostile parents who have behaved in this way and is reluctant to attribute any blame for past events/behaviour; as the court looks to the future and promotion of a good working parental relationship in years to come for the benefit of the child. 

Unfortunately parental alienation is incredibly common. Sarah Parsons, assistant director for CAFCASS, states that parental alienation “is responsible for around 80% of the most intransigent cases that come before the Family Courts”. It is not easy for a parent to shield a child from their emotions when they are running high and after a difficult separation countless otherwise loving and caring parents may find themselves unable to hold their tongue, perhaps unaware of the long term effects this could have on their children. Anthony Douglas, chief director for CAFCASS, argues that “it is undoubtedly a form of neglect or child abuse in terms of the impact it can have…. The way you treat your children after a relationship breakdown is just as powerful a public health issue as smoking or drinking”.

As a child of divorced parents, I speak from experience when I say that the aftermath of separation is tough enough for children without the feeling of guilt, the feeling of having to choose one parent over the other, or the feeling of being at the centre of a battleground. I have taken for granted the fact that I can spend time with one parent without being beside myself with guilt; or the simple fact that I can freely mention one parent in front of the other without them launching in to a tirade – this is not the case for everyone that I know.

Parental alienation is actually illegal in some jurisdictions – Italy, Brazil and Mexico to name a few (in Mexico it actually carries a potential 15 year prison sentence). It is also widely recognised in the USA and Canada, so it remains to be seen whether the court will start to take a tougher line in the future when it comes to parental alienation.

 


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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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