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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

Increase in parents going to court about their children
Monday 14th March 2016

If separated parents cannot agree the arrangements for their children in terms of who they should live with, or the time that they should spend with their other parent, they will need to look at the options available to help resolve their dispute.

Parents are expected to consider the option of mediation and are obliged to attend a Mediation Information and Assessment Meeting (MIAM) before they can make an application to the court. If they want to proceed with mediation after the MIAM a joint session with both parents will be arranged.  Mediation is a process which allows parents to meet in the presence of a mediator to discuss arrangements and attempt to agree them. The mediator will be neutral and will not take sides. They will help guide the discussions and ensure that the parents are considering all available options. They cannot however give legal advice and will not make a decision for the parents.

In certain circumstances mediation will not be appropriate. This may be because one parent is unwilling to attend, or the relationship between the parents makes it difficult for the mediation process to be successful (such as where there are allegations of intimidation or harassment). Alternatively, some parents will attend mediation but will find that they are still not able to reach an agreement.

The next stage after consideration of (or attendance at) mediation will usually be court proceedings. Either parent can apply for a Child Arrangements Order. As soon as an application is started at the Family Court a timetable will be put in place for the parents to attend an initial court hearing. An organisation called Cafcass will also undertake safeguarding checks for the court, to ascertain what involvement (if any) the police and local authority have ever had with the family, and to see if either of the parents have any welfare concerns about the child(ren). Cafcass stands for Children and Family Court Advisory and Support Service. They may also be involved at a later stage if the court requires a detailed report to help them consider what arrangements would be in the best interests of the child in question.

Cafcass keeps a record of the number of cases they get involved with each month. They have recently confirmed that in February 2016 there was a 10% increase on the amount of new cases, compared to February 2015. There has also been a 6% increase generally in the last six months from the previous year. This means more and more parents are finding themselves in the court system, despite the general push towards other alternative methods of resolving disputes.

Parents may often find the court process somewhat daunting and unfamiliar. The advice of a specialist family lawyer can help guide you through the process and ensure that you have the opportunity of putting forward all relevant information to the court before any decisions are made. They can also assist in ensuring that cases progress through the courts in an efficient way, thereby reducing the burden on the court and allowing the case to be dealt with more speedily.

 If you need any input in relation to a dispute about your child we would suggest getting advice at the earliest opportunity to help you assess how best to deal with it, and to see whether court can be avoided.


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When is marriage not enough?
Monday 1st February 2016

On Friday a heterosexual couple (Ms Steinfeld and Mr Keidan) were unsuccessful in their judicial review application, which sought to challenge the current legal position which prevents them entering into a civil partnership.

The Civil Partnership Act 2004 states that this option is only open to same-sex couples. The couple in question argued that the law currently discriminates against their right to protection of a family and private life under Article 8 of the European Convention on Human Rights, which was adopted in the UK via the Human Rights Act 1998. The couple state that they do not wish to get married (partly due to the history and social expectations surrounding marriage). They therefore believe that they should be able to benefit from the legal protections and benefits offered by a civil partnership instead.

Mrs Justice Andrews who dismissed their application considered that they are not prevented from achieving formal state recognition of their relationship (with all the rights, benefits and protections that flow from such recognition) as this can be done through marriage. She stated that there is no evidence that the couple are subjected to humiliation, derogatory treatment, or any other lack of respect for their private lives on the grounds of their heterosexual orientation because they are unable to be civil partners.

Mrs Justice Andrews has however given permission for the couple to appeal her decision in the Court of Appeal. It is therefore likely that this case will be reviewed further in due course. Until such time as the courts’ compel Parliament to change the law, or they do it of their own volition, the only option available to heterosexual couples who wish to legally formalise their relationship will be marriage.

 


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Relocating with children – a question of child welfare
Monday 21st December 2015

It is common when going through a separation to look carefully at your life and consider whether you want to make changes for the future. This can often include an assessment of whether you want to remain living in the same place. There may be factors such as being close to family and friends, or the possibility of a new job, which may encourage a ‘fresh start’ elsewhere. As time passes a new relationship may also become an influencing consideration.

However, what happens when you have children and either you want to move elsewhere in the UK, or your ex-partner does?

In a judgment published on Friday the Court of Appeal clarified the law in relation to this and cases which are referred to as ‘internal relocation’ i.e. those looking at a move from one part of the UK to another. This particular case, named Re C (Internal Relocation), concerned a mother who wanted to move with her 8 year old daughter from London to Cumbria, against the wishes of the Father.

The case clarified that there should be no difference in approach by a court when asked to consider a move within the UK, as there would be if that proposed move was abroad. The governing principle the court should be looking at is the welfare of the child i.e. what is in the child’s best interests. Previous case law which seemed to suggest that the parent left behind could only prevent a move in ‘exceptional’ circumstances was not the correct approach.

Considering the child’s welfare will involve weighing up a number of factors including the practical arrangements for the parent who is left behind to still see the child and the distance involved. A court will want to be satisfied that the child will still be able to have a meaningful and quality relationship with both of their parents and that the move will be one which benefits them.

In this case the court upheld the Judge’s initial decision to allow the move to take place as they felt the Judge had carefully weighed up the various pros and cons and had made the decision based on an assessment of the welfare principle.

If you are considering a move away with your child/children and the other parent does not agree, or you believe your ex-partner will make such a move, it is advisable to get legal advice at an early stage before arrangements are made.


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Major report calls for reform of UK surrogacy law
Thursday 3rd December 2015

A report published by Surrogacy UK has called for ‘out of date’ surrogacy laws in the UK to be overhauled.  The report says that reform is required to ensure that the welfare and interests of surrogate-born children are the prime concern of the law.

In the UK, the surrogate mother of a child is treated as the child’s legal mother – and will be named on the child’s birth certificate – until that is changed by a court order.  This may be an adoption order (if neither of the intended parents are genetically related to the child) or a parental order.  A parental order will make the intended parents the child’s legal parents with parental responsibility.  

Under the current law, intended parents can only apply for a parental order if they fulfil certain criteria.  This includes, for example, at least one of the intended parents being genetically related to the child and the child already living with them.  The application must be made within 6 months of the child’s birth and has to be made by two people as a single person cannot make an application for a parental order.

In addition, the surrogate mother must agree to the making of a parental order.  However, the court will only accept a surrogate mother’s consent if it was given at least 6 weeks after childbirth.

The Surrogacy UK report recommends changes to the law aimed at removing uncertainty over the parenthood of surrogate-born children.  In California, intended parents can seek an order before a child is born to become the child’s legal parents.  The report suggests that parental orders in the UK should likewise be pre-authorised by the court, so that the intended parents are the legal parents with parental responsibility from the minute the child is born.  This enables intended parents to register the child’s birth and be named on the birth certificate immediately.  It may also help to avoid situations where surrogate-born children are left ‘in legal limbo’ if a surrogate mother will not consent to the court application or there are other complexities.

The report also recommends that the 6 month time limit for applications should be removed and suggests that parental orders should be made available to single people who have used surrogacy.

In the UK there are strict rules surrounding surrogacy-related advertising and commercial agreements.  Intended parents can pay a surrogate mother’s expenses but problems can arise when a surrogate is paid expenses over and above what is considered reasonable.  Judges find themselves in the difficult position of deciding whether to make a decision of enforcing the law about payment of surrogates, against a decision that promotes the welfare of the child.  The Surrogacy UK report highlights this current difficulty and suggests that more should be done to guard the principle of altruistic surrogacy in the UK.  The report also suggests that surrogacy-related advertising should be reviewed for non-profit organisations. If the recommendations in the report are followed any new legislation could simplify the court procedure to enable parents of a surrogate child to formally recognise the parent-child relationship.  

For advice on any aspect of family law please contact Leanne Instrall on 0161 836 8916 or by e-mail at leanne.instrall@brabners.com.


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Are Expensive Weddings Linked to Divorce?
Wednesday 25th November 2015

A recent article published on Sky news highlights the apparent correlation found between big, lavish weddings and divorce. It appears that the bigger and more expensive the wedding, the more likely the marriage is to end rather soon thereafter. Whilst there are a number of potential reasons for this, the most common is that the more grandiose, over the top weddings represent partners’ unrealistic expectations of married life; that marriage will emulate the dream-like fairy tale wedding day which, of course is not the reality of how people live. Another reason may be that parents are living vicariously through their children and planning impressive weddings to showcase their lifestyles.

Wedding planner, Liesel Lamare advised couples to think carefully about their wedding budgets and not to enter married life in financial difficulty. However, Liesel opined that it is not how much you spend on your wedding that determines how happy your marriage is but the good foundation of the relationship.

In any event, the divorce figures from the Office of National Statistics released yesterday morning show that there were 126,616 divorces in 2013 in the UK, a fall of 29%. However, with the average wedding now costing more than £20,000 and almost half of all weddings ending in divorce, this means that around £2.8 billion is spent each year on weddings which will ultimately end in divorce.

The data released raised some further interesting statistics. The average duration of marriage for divorces granted in 2013 was 11.7 years, increasing slightly from 11.5 in 2012 with the average age of divorcees being 45.1 for men and 42.2 for women. Also, the number of marriages that reach the 15 year milestone have had fallen in 2013. The percentage of marriages ending in divorce by the 15th wedding anniversary was 32% in 1998 compared 20% in 1968.


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Footballer wins child maintenance appeal in the High Court
Wednesday 11th November 2015

Footballer wins child maintenance appeal in the High Court

A footballer has succeeded in his appeal to challenge the amount of child maintenance he pays for his two children.

The Family Court initially ordered that the footballer pay £60,000 a year in child support out of his £190,000 income, equivalent to about a third of his gross annual income and about half of his net income.

If a parent earns less than £156,000 per year then the Child Maintenance Service, rather than the court, assesses how much a parent should pay in child support.  In Child Maintenance Service assessments the rate of maintenance for two children is 16% on a gross income up to £41,600 and then 12% on the next £114,400 of gross income.  Accordingly the maximum assessment the CMS could have made against the footballer was about £20,000.  Even if the Child Maintenance Service could have awarded child support against all the player’s gross income the assessment would have come out at £24,500. So with the court set child support of £60,000 the player was paying an extra £35,000 a year and so he appealed.

The first judge was able to set child support at £60,000 a year as a court has the power to order ‘top-up maintenance’ for parents who earn more than £156,000 a year. The court is not restricted to the formula applied by the Child Maintenance Service when deciding on how much child support should be paid.

On appeal, the High Court said the method of calculation used by the Child Maintenance Service should be the starting point of any child support calculation and agreed that child support totalling a third of the player’s gross income was too high without a proper explanation of how it had been calculated.

The case does not end at the High Court as the appeal court did not decide how much the footballer should pay but instead referred the application back to the original Court for another hearing to decide on the level of child support.  In the meantime, the footballer was ordered to make payments of £30,000 a year in child support whilst the court proceedings are ongoing.

The footballer, who is age 32, was described as being in ‘the autumn of his career’ with the expectation that his income would rapidly and naturally tail off.  The report does not reveal how much has been spent in legal costs in appealing the court decision but when acting for professional sportsmen or their former partners it is always crucial to factor in the costs of court proceedings and the benefits to be gained by court litigation. In too many situations a player can win the case but score an ‘own goal’ if the legal costs exceed the amount that child support is reduced by over the footballer’s remaining years of high income.

For advice on any aspect of family law please contact Leanne Instrall on 0161 836 8916 or by e-mail at leanne.instrall@brabners.com.


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Never too old...........to divorce?
Tuesday 10th November 2015

The BBC news have today produced a piece on what has become known as “grey” or “silver” divorces, or as they have coined it, “the silver splitters”.

 As the BBC point out in their article divorce rates for the over 60’s have been rising since the 1990’s. This is despite the fact that divorce rates have been falling in other age groups (save for a slight rise in 2012). In 2011 nearly 9,500 men over 60 divorced, which was a rise of almost three quarters in 20 years, with a similar rate being seen amongst women.

 Whilst there has been much speculation over the reasons behind the statistics as family lawyers we observe that the key factors appear to be:

  •  The removal of the social stigma of separation and divorce: This has allowed people who in younger years could not have contemplated divorce to feel they can take steps to make a new life for themselves. There has also been an increase in the acceptability of re-marriage. The rise in re-marriage and the frequency of third marriages has affected the statistical age of marriage as the Office for National Statistic figures do not distinguish between first or subsequent marriages.
  • Longer life expectancy and improved health in retirement result in couples re-evaluating whether they want to spend their retirement in an unsatisfactory relationship. A generation ago there was no concept of “the right to be happy” which now pervades society.
  • The empty nest syndrome: with the end of caring responsibilities for children or parents many couples drift apart as there is no longer the caring demands or financial imperatives, such as paying for school or university fees, to cement the relationship.
  • The greater financial independence of women through careers resulting in women considering that they have the financial ability to separate.
  • The increased sophistication of couples who are aware of the inheritance tax advantages of later life re-marriage and a willingness to contemplate re-marriage with the security of a prenuptial agreement in place to preserve pre-marriage acquired assets. 

In the BBC article today we saw examples given which touch on a number of these factors.

It is worth noting that divorce later on in life can have significant financial consequences. If for example a couple separate in their early thirties they still have thirty or forty years to rebuild their pension pot and plan for self-sufficiency in retirement. Sadly that is unlikely to be a realistic option if a couple are separating in their late fifties or later still. With later life divorce often comes the economic consequence of needing to defer retirement plans as there is insufficient capital to re-house in two homes and provide adequate income in retirement. Careful consideration and advice from a family lawyer and financial advisor is therefore often vital.

 

 

 


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A Brabners star is born
Tuesday 3rd November 2015

The Brabners family law department is proud to announce that the newest addition to our team in the Manchester office, Joanne Radcliff, has been ranked as a ‘Star Associate’ in the North West by the Chambers & Partners 2016 guide to the leading lawyers in the UK. The guide notes that Joanne has a “good strategic brain” and praises her “very practical, realistic advice”.

The Brabners family law team is recognised and ranked by the Guide overall, as are the Partners in both our Liverpool and Manchester offices, Helen Marriott and Paula Milburn. Joanne’s individual addition to the guide continues the growth and development of the family law team in Manchester and reflects the high quality of advice and representation we provide.

Joanne can be contacted by telephone on 0161 836 8927 or by email at joanne.radcliff@brabners.com


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Why honesty does turn out to be the best policy...
Wednesday 14th October 2015

Today saw the long anticipated judgments of the Supreme Court in two family law cases, which will have significant implications in cases where spouses fail to reveal information and be open about their true financial position.

In the case of Sharland v Sharland the husband and wife had both given evidence at a final hearing relating to their finances. However, they were able to reach an agreement during the course of the hearing and as a result prepared a Consent Order (a document recording the agreement), which was approved by the Judge. Subsequently the wife discovered that the husband had failed to disclose that he had been holding discussions with various investment bankers in readiness for an initial public offering (IPO) of the company in which he had a two thirds interest. This went against the Husband’s evidence. It was argued that the IPO could increase the value placed on the company by potentially hundreds of millions of pounds.

As a result the wife’s solicitors made an urgent application to the court to ask that the Consent Order not be finalised by the court (which is done by the court placing a seal on the final and typed version).  The wife instead applied for the hearing of her claim to be resumed, on the basis that her agreement to the Consent Order had been obtained by fraudulent non-disclosure on the part of the husband. Her application was unsuccessful both with the Judge dealing with the matter and the Court of Appeal. She therefore appealed again to the Supreme Court who have now upheld that appeal. They took the view that the husband’s non-disclosure had undermined the basis of the valuations of the company which had been obtained. The wife had been deprived of a full and fair hearing of her claim. As a result the Consent Order will not be sealed and the case has been sent back to the High Court, where consideration of the parties’ finances will continue. 

The second case Gohil v Gohil related to a financial claim made by the wife in 2004 which was also concluded by way of a Consent Order. The wife applied to set aside the Consent Order in 2007, when she became aware that the husband had failed to disclose the true extent of his financial assets.  The husband was subsequently convicted of money laundering and after a lengthy investigation and trial was committed to prison in 2011. The Supreme Court have now concluded that there had been material non-disclosure by the husband in 2004 and the wife’s claim should therefore proceed at this stage.

In financial remedy proceedings the parties owe a duty to make full and frank disclosure of all material facts to the other party and the court. If there has been material non-disclosure the court can set aside an order (even if made by agreement). Where there has been fraudulent non-disclosure the burden is on the person who failed to disclose the information (in these cases the husbands) to satisfy the court that the non-disclosure did not lead to a different agreement or order being made than otherwise would have been the case. If the so-called ‘fraudulent’ party cannot satisfy the court of this they will find that the courts will not hold their spouse to the Orders they have.


Varsha Gohil (L) and Alison Sharland previously had their cases rejected in the Court of Appeal - (Image © BBC)

 


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Varying a trust on divorce – how far do judges’ powers reach?
Tuesday 25th August 2015

Section 25 of the Matrimonial Causes Act 1973 grants the court the power to have regard to a wide range of factors when making a financial provision on divorce with section 24 (1) granting specific powers to deal with settlements.  But how extensive is this power and what are its limitations?

The recent case of P v P (Family Division) [2015], where the trustees of a family settlement sought to appeal a decision which provided for the variation of that trust to provide financial relief for the wife, tested the boundaries of this power.  This case concerned a husband and wife who, during the marriage, lived in a farmhouse which was then owned by the husband’s family.  The farmhouse then became the subject of a trust in 2009, three years after the parties had moved into the property, with the husband’s parents being the trustees and their children, including the husband, and remoter descendants being beneficiaries.  The parties had one child together.

The parties separated in 2012 and a decree nisi pronounced the following year.  On applying section 25 of the Matrimonial Causes Act 1973, the Judge found that the trust was a nuptial settlement and made an order varying the trust to provide that i) a sum of £23,000 was to be paid to the wife absolutely; and ii) a sum of £134,000 was to be provided for the benefit of the wife for life, to be held by independent trustees, with the wife entitled to use the capital sum income to purchase a property for her occupation and having the benefit of the income during her lifetime.

The trustees of the farmhouse appealed against the judges’ order.  At the time of the hearing, the husband had a new partner and two further children.  The wife also had a new partner.  The trustees argued that it had not been open to the judge to exercise his discretion in the way that he had.  They submitted that the order had failed to take account of the needs of the husband’s other children, the interest of the other beneficiaries under the trust, the intention of the settlor that the property would not be sold, the husband’s needs and the ability of the wife to provide for herself.  The trustee’s submitted that the judge had been in error in making an order which, given the trust had no other means to raise the sums required, would necessitate the sale of the farmhouse which was to be a home for the husband and his children.

The appeal was dismissed finding that the objective was a result that was fair to both sides and which did not interfere with the settlement more than was necessary to do justice between the parties.  The breadth of the discretion to vary a nuptial settlement is therefore considerable and includes the power to exclude a beneficiary entirely from the settlement and to transfer an asset to a non-beneficiary free from all trusts.

This case serves to highlight that parties cannot rely entirely on the existence of a trust to protect their assets or beneficial interest and that parties ought to seek legal advice. 


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