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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

High Court exercises broad discretion over pre-marriage acquired shares
Thursday 5th May 2016

In financial proceedings on divorce, the first step is to establish what assets there are – or what is in the ‘matrimonial pot’.  A lot of people think that assets they had long before their relationship (such as inheritance, or a pre-owned property for example) should not be included as matrimonial property and therefore not be shared with their ex spouse. 

Whether something was owned before the marriage is of little relevance when all of the assets are required to meet needs (regardless of when or how they were obtained).  However, when there are ample assets to meet the needs of the parties, then the fact that something was acquired years before the marriage may be considered in relation to the overall division on divorce.  

In the recent case of Robertson v Robertson [2016] EWHC 613 (Fam), the court was asked to consider what proportion of the husband’s shareholding should be shared with the wife.  The husband owned the shares (in a company that would later to go on to be the hugely success online fashion retailer ASOS) for a few years before he and the wife met.  At the time of their separation the husband had sold part of the shareholding and invested it in property worth £20 million and retained shares worth £141 million.  The parties’ total assets were circa £219.5 million, so their needs and the needs of their two children would be met irrespective of the whether the shares were included.    

The husband argued that he had acquired all of the shares prior to the marriage and, as such, they should not be included as matrimonial property.  He said that the shares should be totally excluded, which would mean the wife received circa £30 million overall. 

The wife acknowledged that the husband had owned the shares before they met, but said that only the value of the shares at the time their relationship started (plus an amount which represented ‘passive-growth’) should be excluded – which the wife put at £4.84million.  The wife therefore wanted the total inclusion of the shares, save for the value she conceded should be carved out, which would mean she received circa £107 million overall. 

Rather than adopting a formulaic approach, Holman J exercised his broad judicial discretion and said that the only fair way to treat the remaining pre-existing shares (and the three investment properties) is to treat half as the personal non-matrimonial property of the husband, and half as the matrimonial property of the parties to be evenly shared. 

Holman J explained that he wanted to reflect the husband’s hard work before the marriage but, in fairness to the wife, thought that the pre-existing shares could not be excluded altogether.  This was because, although during the marriage, the husband had been the ‘money maker’ and the wife had been the ‘home maker’ – this was the way that the couple had chosen to run their lives, and it was only fair the wife received a share. 

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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Teenagers and the Welfare Checklist
Friday 15th April 2016

Teenagers and the Welfare Checklist

The recent dispute between Madonna and Guy Richie over the parenting arrangements for their son, Rocco (15), has thrown a celebrity spotlight on to how parenting disputes are considered in the Family Court.  The dispute arose when Rocco decided he wanted to stay in London with his Dad, rather than going to stay with his Mum in New York. 

Figures released by Cafcass (Children and Family Court Advisory and Support Service) in March 2016 reported a 9% rise in new private law children cases, in comparison to the previous financial year (see Joanne Radcliff’s blog on Cafcass statistics). With an increasing amount of cases coming before the courts, to what extent are a child’s wishes considered or listened to by the court? They are, of course, the subject of the court application and, in Rocco’s case, can be known to ‘vote with their feet’. 

When a court is considering making a Child Arrangements Order, it must have regard to what is known as the Welfare Checklist, as set out at Section 1 of the Children Act 1989.  One of the factors to be taken into consideration is the ascertainable wishes and feelings of the child concerned, but this must be considered in light of their age and understanding. 

Of course this is not an exact science and deciding what weight to give to a child’s wishes and feelings very much depends on the individual circumstances.  Younger children generally do not have as comprehensible understanding of what is in their best interests as older children may have.  I’m sure that if parents did exactly as 4 year olds wanted there would be no bedtimes and they could end up living on a diet of only sweets and fizzy drinks – which most adults would agree may not be in their best interest long term!  However, the older a child is the more likely it is that the court would be prepared to listen to and consider their point view. 

At 15 years old I certainly would have wanted a say in decisions about where I was going to live and think that I would have had a fairly good understanding of the situation, so it is understandable that a court in England would consider Rocco’s wishes and feelings when making their decision.  However, in all situations wishes and feelings must be considered in conjunction with the other elements of the welfare checklist to decide what is in their best interests overall.  Whilst wishes and feelings may be a key consideration, there may also be other compelling factors which the court must consider; such as educational or emotional needs, the likely effect of any change in circumstances or any harm they are at risk of suffering. 

Another story, which went viral on the internet last week, was that of Hilde Kate Lysiak.  Whilst Hilde is not the subject of a custody battle, the story highlighted the differing attitudes adults have towards listening to children and the weight that should be given to their point of view generally.  Hilde is a 9 year old girl and describes herself as a ‘serious reporter’ who set up her own news outlet and who some may feel seems to know her own mind.  However, she faced criticism last week when she reported on a local murder in her home town of Selinsgrove, Pennsylvania.  Hilde says she ‘wants to be taken seriously’ as a reporter, but it became clear that adults generally are far from being in agreement about whether her decisions (which include visiting crime scenes) are in her best interests!

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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Cohabitation agreements - why unmarried couples need to know about them
Tuesday 5th April 2016

There is a common misconception that unmarried couples automatically have certain rights after they have lived with each other for a period time, which are often referred to by the label of ‘common law husband and wife’. However, in England and Wales there are no specific laws financially protecting couples who live together.

Research undertaken back in 2008 suggested that 51% of people believed that the status of ‘common law husband and wife’ provided individuals with the same rights as married couples. It seems likely that the general public will not have become much better informed in the years since then. People are therefore unaware that unmarried couples are left reliant on the rules relating to financial claims for children, general property and contract laws only.

So what options are there available for couples who are not married but want to protect themselves financially?

A couple can choose to enter into a cohabitation agreement when living together. This will specify what should happen to the property and assets they own in the event that they separate. This can include what percentage share they should receive from any sale proceeds or what options there might be for one to ‘buy out’ the other.

This may be particularly beneficial where family money has been given to them to help them purchase property. If this issue is not addressed then one person in the couple can find themselves with no legal basis to be reimbursed for the sums provided by parents or other family members.

A cohabitation agreement can also address what would happen to personal possessions and household items purchased together if they were to separate. It can also define how a couple intend to regulate their finances e.g. divide bills or run joint accounts, and consequently can help prevent disputes about financial matters which can arise otherwise.

If you would like to know more about cohabitation agreements or about any other issue surrounding relationship breakdown please contact Joanne Radcliff on 0161 836 8927 or by email at joanne.radcliff@brabners.com


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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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