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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

Does my Decree Absolute protect me from financial claims from my ex?
Thursday 12th March 2015

One of the most widely believed family law myths is that a Decree Absolute in divorce proceedings protects a person from future financial claims their ex-spouse may bring.

This is not the case.

The Decree Absolute simply ends the marriage; it does not deal with the financial claims an ex-spouse can potentially bring.

These financial claims can include things like the transfer of property, lump sum orders, ongoing maintenance or pension sharing orders.

In order to protect yourself against future financial claims you must ensure that you enter into a Financial Consent Order with your ex setting out the agreement you have reached with regard to finances.

This can be as simple as you each retain your own assets and proceed on a clean break basis meaning that you have no future financial claims against the other.

Consent Orders can, of course, be much more complex and set out detailed agreements in relation to property, business assets, savings and investments, income, pensions and liabilities.

The case of Wyatt -v- Vince [2015] UKSC 15 which was heard in the Supreme Court yesterday hammers home the importance of tying up financial matters on divorce.

The case is important as it deals with a wife’s claim for £1.9m from her ex-husband 18 years after the parties were divorced based on the fact that the husband’s wealth has increased significantly since the parties divorced.

The ruling did not grant Ms Wyatt a financial award but rather it granted her permission to have her case heard as her ex-husband, Mr Vince was seeking to have it struck out.

Whether or not she succeeds in obtaining a lump sum award from her ex-husband is yet to be seen but the fact that the Supreme Court have effectively given her permission to try is an important legal development.

If you are divorced and you did not enter into a Financial Consent Order with your ex it is strongly advised that you seek legal advice to ensure that you are protected from any future claims.

For information and advice on any aspect of family law please contact Natalie Hargreaves at Brabners LLP on 0151 600 3093.


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Spousal Maintenance - a time to review?
Wednesday 25th February 2015

On the 24th February the press widely reported the case of a millionaire racehorse surgeon and his former wife of 11 years who was receiving £75,000 per annum from her former husband comprising maintenance for herself, child support and private school fees.  The ex-wife’s spousal maintenance amounted to over £33,000 per annum out of the £75,000 financial support package.

The husband, some 6 years after the original financial settlement, made an application to reduce his monthly payments to his ex-wife.  The basis of his application was that it was not fair for him to be expected to continue to support his ex-wife indefinitely, even after his retirement, when she was making no effort to find employment. The court of appeal concluded that the ex-wife should get a job and stop thinking that she had the right to be “supported for life” at the husband’s expense.  The court of appeal judge went on to say that divorcees with children aged over 7 should work for a living.

Many have reported this as a victory for separated husbands but this ruling will also be of benefit to the increasing number of women who are the main breadwinners in families and given the rise of “househusbands”.

The court of appeal decision is of interest not only to those who are going through separation and divorce but for those spouses who are continuing to provide ongoing financial support to former spouses.  The judgement gives an opportunity to review the continuation or the level of financial support paid to former partners.

For advice on reviewing the level of spousal maintenance or capitalisation of spousal maintenance please contact Helen Marriott.


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Catching up with the times – online humiliation is now considered a form of domestic abuse
Friday 16th January 2015

Paris Hilton, Tulisa Contostavlos and Jennifer Lawrence – what do these celebrities have in common?  All have had intimate photographs and videos of them shared with the world without their consent.  This is, of course, not a new problem and family solicitors can recall a time when, after a difficult separation, ex-partners would often threaten to or send explicit VHS recordings to their partner’s family or friends.  However, the rise of social media now means that distribution of revenge porn is now easier and more effective in humiliating separated partners than ever before.

Thousands of people have been embarrassed by explicit photographs and video clips uploaded to the internet by a former spouse or partner.  It has been difficult for police to take action with the existing laws and there have been very few prosecutions and convictions.

This year the Crown Prosecution Service is continuing in its efforts to manage how internet revenge incidents are dealt with.  The Criminal Justice and Courts Bill is expected early this year and will make so called “revenge porn” a criminal offence.

In addition to this, prosecutors are now required to consider whether the posting of explicit photographs or videos constitutes a form of domestic abuse.  The basis for this is, in distributing the material, the perpetrator is exerting control over their victim and coercing them with threats as they would in a ‘traditional’ domestic setting; only this is in the digital (and very public) world.

 


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Parent's Disputes - Who decides?
Wednesday 7th January 2015

Halle Berry recently applied to the court in the USA for an order that her former partner and the father of her 6 year old daughter could not straighten or die the child's hair.  The court granted the order.

This may be an extreme example of a parental dispute over what is in the best interests of a child , however in  the UK judges are frequently asked to determine what, to the parent, is an intensely important parenting issue. In a recent case of T v S the parents of a 6 year old boy could not decide on the preferred form of dental treatment.  An application was made to a judge to decide.  The judge had previously ordered  that the child's care should be shared equally between the  parents and that they should agree and consult one another on medical and dental treatment. The judge decided that it was not for the court to micro manage the day to day arrangements for their son and each parent was entitled to proceed with the treatment they thought appropriate.

This judgement emphasises the courts increasing reluctance to rule on specific issues which, whilst very important to the parents, may from an outsider's point of view not warrant court proceedings.The court decision highlights the importance of mediation in helping parents agree parenting plans for their children and to find a means of communicating without recourse to the court.

 


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Is Marriage a middle-class privilege?
Tuesday 6th January 2015

A recent news article published in the Sunday Times has highlighted the enduring and widespread public misconception in the existence of “common-law marriage”.

According to the article, ‘58% of the population is unaware that “common-law marriage” has no legal recognition’, whilst 47% of 18 to 34 year olds believe that cohabiting couples possess the same legal rights as those enjoyed by married couples.  The reality is that they do not.

Whilst marriage remains the most common form of partnership, statistics provided by the Office of National Statistics reveal that cohabitees are the fastest growing family type in the UK, there now being twice as many cohabitating couples as there were in 1996.   Within the article, Dr Samantha Callan, of the Centre for Social Justice, states that ‘statistically, you are more likely to marry, and stay married, if you are a university graduate’ and the middle classes are marrying as much as they ever have.  Dr Callan argues that the growing tendency of couples to prioritise buying a house and being financially settled before marrying, goals that are much harder to achieve for the poor, is resulting in marriage becoming a privilege of the middle class within the UK.

Opinion on whether the law governing cohabitation should be reformed remains divided.  These figures however, serve to demonstrate the reality that many couples are unaware of their legal rights, or lack of, and are unprepared for the obstacles they may face in the event of relationship breakdown.  Do you know your rights?

For more information on how to protect your assets or on cohabitation agreements and pre-nuptial agreements, see our useful downloads.  For advice on any aspect of family law matters, contact Helen Marriott on 0151 600 3050.


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The cost of divorce
Thursday 4th December 2014

Research carried out by Resolution , the national organisation of family lawyers , has emphasised the financial damage of divorce on  families as well as the consequent impact on businesses .

According to the Resolution survey British businesses are suffering as a result of separation and divorce with one in ten divorcing employees having to leave their job after a separation , whilst sixteen percent of those surveyed reported on the negative impact of sick leave arising as a result of the stresses of relationship breakdown. All this has an adverse impact on business productivity .

It is estimated that divorce costs the British economy up to £46 billion every year with the British Chamber of Commerce highlighting the cost to business. Can the costs be reduced ? If a couple enter into a relationship with a cohabitation agreement or a prenup agreement in place then in the event of a separation the split is likely to be less adversarial and costly so investing time at the outset of a relationship can pay dividends and give peace of mind

 


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How Do I Get Divorced... Properly?
Wednesday 1st October 2014

A news article in today’s press - http://www.theguardian.com/law/2014/sep/30/court-annuls-italian-divorces-maidenhead - has highlighted that it’s not quite as easy to get a divorce as many believe it is.

This news relates to 180 Italian couples who paid a facilitator to achieve a speedy divorce for them to circumvent the Italian legal system which requires couples to live separately and apart for 3 years before a divorce is possible.

As this is not the case in England and Wales the divorce petitions were lodged in England falsely claiming that at least one party from each couple had been living in the UK.

Divorce law in England and Wales is quite complex and most people who go through the process pronounce it to be more complicated than they first imagined.

There is only one ground for divorce which is the irretrievable breakdown of the marriage.  This is established by the petitioning party proving one of the following five facts:

  1. The other party’s adultery
  2. The other party’s unreasonable behaviour
  3. Two years separation plus consent
  4. Two years desertion
  5. Five years separation.

There are very specific rules in relation to the service of proceedings and many legal technicalities pertaining to defences and requirements.

Furthermore, and pertinent to this news report, there are strict rules that govern where you may get divorced.  You may only get divorced in England or Wales if:

  • when you begin divorce proceedings, both you and your partner are habitually resident in England or Wales
  • both you and your partner’s last habitual residence was England or Wales and one of you still lives there when divorce proceedings begin
  • at the time the divorce proceedings begin, the respondent to the divorce is habitually resident in Wales or England
  • for 12 months prior to the start of divorce proceedings, the petitioner applying for the divorce has been habitually resident in Wales or England
  • for six months prior to the start of divorce proceedings, the petitioner has been habitually resident in England or Wales, and is also domiciled there
  • you and your partner are domiciled in England or Wales when divorce proceedings begin, or
  • no other court of a “contracting state” to the European Convention known as Brussels IIA has jurisdiction, and either you or your partner is domiciled in England or Wales when divorce proceedings start.

The 180 Italian divorces were annulled on the basis of fraud as effectively they had misled the court as to this point of jurisdiction.  Using a commercial mailbox address in Maidenhead they claimed that each couple met the jurisdictional requirements and it was only when an eagle-eyed court clerk spotted that multiple couples were claiming to live at the same address!

Jurisdiction and the requirements of each of the five facts can be technically difficult legal concepts and it is always best to obtain legal advice if you are in doubt.


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The UK's biggest divorce settlement?
Thursday 3rd July 2014

This week the high court will host what could be the largest divorce settlement recorded in the UK.

There have been a number of multi-million-pound eye watering settlements awarded to former partners in recent years, such as Sir Paul McCartney’s £24.3m payment to Heather Mills.  However, hedge fund manager Christopher Hohn has the potential to set a new record for the UK’s largest divorce award as a result of his estimated personal wealth of $1.4bn (£817m).

The couple married nearly 30 years ago and have 4 children .They cannot reach agreement as to the value of their assets or how their wealth should be split between them.  Lawyers for the wife, Jamie Cooper-Hohn, argue that the family wealth should be split equally, but the husband’s legal team propose that the wife should get a quarter of the assets on the basis that the husband made a special contribution to their accumulated wealth.

When financial proceedings are contemplated the first step lawyers should take is to consider the cost benefit of litigation and whether the emotional and legal costs justify court proceedings.  In any dispute involving £204m the legal costs are likely to be justified but many financial planners would argue that in a case of such wealth does either the husband or the wife need more than a quarter of their wealth as they have ample resources, whatever their lifestyle choices?

When a marriage breaks down, the divorce court can divide assets, regardless of how or when the assets were acquired.  The court starts from the premise that the wealth, after a long marriage, should be divided equally although the court will take into account contributions to both the home and the family wealth.

This ‘big money’ case has generated debate about husbands and the ‘special’ skills that can result in stellar wealth and how ‘special’ the contribution should be to justify a departure from equality.  That debate will no doubt continue with entrepreneurs and their spouses.  The public nature of this divorce perhaps could have been limited through use of arbitration or the couple entering into pre or post nup agreements.  Brabners are increasingly being consulted by entrepreneurs and business owners about these issues when thinking about new enterprises, business ventures and shareholder agreements.  The recent Law Commission report emphasises the importance of couples being able to have autonomy over their affairs and being able to enter into binding arrangements in the UK; to reduce the likelihood of expensive litigation if couples split up and cannot decide on how their assets should be divided when emotions are running high.  Another eye watering settlement may encourage the government to implement the Law Commission recommendations.

 


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Right property, right agreement
Tuesday 17th June 2014

The news is all about property prices rising and the increased hoops house purchasers have to go through to secure their first mortgage, with detailed mortgage assessment questionnaires to get through in order to take the first step on the property ladder.  With mortgages getting even harder to obtain, many young couples are looking to parents to provide the deposit or at least to help fun it.  As family lawyers we are always surprised by the number of families who give money to help buy a house without first contemplating what might happen to the deposit if the couple split up and go their separate ways.  If there is nothing in writing, a partner living at the property can try to make a claim against the property and, more importantly say there is nothing in the paperwork to say that the deposit should not be split equally between them.  If house prices rise this could result in a real windfall payment whilst disadvantaging the owner whose family helped with the deposit.

These problems can be avoided by family members lending the deposit to their children and their partners or buying houses through trust arrangements or getting children and their partners to decide what would be a fair division of the equity if they were to split up in the future.  It is always sensible to think about these issues, however unromantic it might appear, before a house is purchased and the joint commitment of a mortgage is taken out.  There are a range of options to consider depending on the priorities of wealth protection or inheritance tax planning and estate succession.

 


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Parents encouraged to agree child maintenance by the introduction of service fees
Wednesday 21st May 2014

The Government has announced that if separated families can not agree on the level of child maintenance payments, the parents will have to pay to use the Government Child Maintenance Service (CMS).

Parents who use the CMS will be charged an upfront application fee of £20. If parents require the CMS to organise their maintenance payments then the paying parent will have to pay an additional 20 per cent on top of their child maintenance payment. The parent receiving the maintenance payment will receive 4 percent less than they would have done if they had not used the Child Maintenance Service and arranged payment on a voluntary basis using the formula provided by the Child Maintenance Service.

The Government maintains that the introduction of fees will lead to savings for the taxpayer and that voluntary agreements are a better option for families.

The Family Team at Brabners provide advice on child support and on applications for top up child support where the paying parent earns in excess of £156,000 gross per annum or on applications for school fee orders.

 


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