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Family

Radical Changes to Family Law
Tuesday 22nd April 2014

The greatest change to Family Law for a generation is happening on 22 April. The government's aim is to put children at the heart of the system and it will create a single Family Court which will replace the separate County Court and Magistrates Court system.

How will the new system affect you?

Single Family Court

A national Family Court is being created which will be split in geographic areas. Anyone wishing to issue an application for a children order or for a financial order in divorce must issue in the Designated Family Centre (DFC) and the DFC will allocate the case to the appropriate level of judge and location. For example, someone living in Chester will issue in Liverpool as this is the local DFC.

Children cases

From 22 April there will no longer be residence or contact orders. Instead there will be child arrangement orders. These orders will state "with whom a child shall live" and "with whom a child shall spend time with".

There is no presumption for a shared care arrangement but there will be a presumption of continued parental involvement.

Compulsory Mediation

Separating couples will be encouraged to settle their disputes outside of court. This means from 22 April, anyone wishing to apply to court for a children order or financial order in divorce must first attend a mediation awareness session, where a professional mediator will explain the mediation process - either together or individually. The person wishing to start court proceedings will have to produce evidence that they have attended mediation before their application will be accepted by the court.
 


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Fair is not a four letter word
Friday 14th February 2014

We are delighted to see Brabners’ new advertising campaign launched with Lancashire Life today.

Please check out our ad in the March edition. This is just the start of our exciting campaign to promote the Family Team.

It is the first of a new series of ads which seeks to develop and promote our expertise in:


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Plans are passed to charge fees for new child maintenance scheme
Wednesday 12th February 2014

The Commons has approved plans to make drastic changes to the child maintenance system. The Child Support Agency (CSA) will be abolished and replaced by the Child Maintenance Service (CMS).  The Government propose to close existing CSA cases within 3 years and then charge fees for parents wishing to use the new scheme. There will be a £20 application fee and an additional 4% charge if the CMS has to step in and collect payments.  If parents don’t pay they will be charged an extra collection fee of 20% on top of their maintenance payments.

The Government hope these fees will encourage parents to make their own arrangements but the Family Team at Brabners are concerned it will discourage vulnerable parents from using the new system.

When this matter was discussed in the Lords several peers expressed concern, including Lord Kirkwood who said that he did not believe it was realistic that the new charges would result in parents collaborating to come to a child maintenance agreement, saying: "This whole policy is built on sand."


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Pre Nups to be made binding
Wednesday 5th February 2014

It was reported on Monday that the Law Commission are to recommend the law be changed to make Pre Nuptial agreements legally binding.

A ‘Pre Nup’ is a private contract which is drawn up before a couple marry and sets out what they want to happen to their assets in the event of divorce.

At present such agreements are not legally binding upon a divorce court although they may be taken into consideration by the judge. This change follows a growing number of high profile divorces  involving multimillion pound payouts where some wealthy men have complained that the English divorce courts favour  wives.

It was reported in The Times on Monday that the Law Commission will propose that if certain safe guards are met, such as the requirement for each person to obtain independent legal advice, Pre Nups should be upheld by the court.

Brabners Family team have been asked by a growing number of their clients to prepare Pre Nups and, in fact, 83% of family lawyers have reported that they have been asked to prepare at least one Pre Nup in the last 12 months.  A change in the law is welcome as it will end the uncertainty which currently exists.

It is vital that anyone wishing to draw up such an agreement obtains specialist legal advice.


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Banker Bonuses - but don't forget spousal maintenance
Wednesday 15th January 2014

The BBC is today reporting that politicians are expressing outrage at the level of banker bonuses and highlighting the new European Rules that state that if banks want to pay bonuses greater than 100% of employee’s salary the bank has to get approval of shareholders. In the case of semi-nationalised banks that requires agreement from the Treasury.

Not only may bankers face a limit on their bonuses they may also face a further reduction in bonus pay through former spouses claiming a share of any bonus as part of their spousal maintenance package.

In December 2013 the court of appeal considered the treatment of the bonus payments on an appeal by a Russian banker against spousal maintenance decisions. The court concluded that the husband should pay 25% of his net bonus to his ex-wife as well as fairly generous monthly spousal maintenance payments. The husband appealed, and although he was unsuccessful in trying to argue that all of his bonus should be ring fenced and free from spousal maintenance claims he was successful in getting a cap on the bonus element of the spousal maintenance so his ex- wife could only get a maximum of £20,000 from his average bonus of about £200,000 per year.

Interestingly the husband in the case of H and W probably would not have met the EU cap criteria on bonuses as he worked for a Russian bank but his bonus actually equated to 100% of his basic salary.

 


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Top 10 Family Law Myths...
Monday 9th December 2013

  1. There is such a thing as a common law spouse?

This is a myth.  There is no such thing as a common law spouse, even if you have lived together for 50 years.  Certain cohabitation claims can be made in respect of children or property but these can be complicated and the law is vague and outdated.  To acquire legal rights in relation to your partners’ possessions or pension or to make financial claims or to receive maintenance you must marry or enter into a civil partnership.

  1. Pre-Nuptial Agreements aren’t worth the paper they are written on?

Although they are not strictly binding in England and Wales, they are a compelling factor for a court to consider on divorce as long as they are properly prepared.  They can save a lot of money in the long run, but don’t be tempted to download one from the internet.  They require expert advice and input if they are going to be given full weight by the court.  

  1. It’s not adultery because we are separated?

This is a myth.  The fact is you are still married. Sexual intercourse with a person of the opposite sex while you are married to someone else is adultery in the eyes of the law, regardless of whether or not you are separated.

Although the legal definition of adultery differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another. 

  1. I am divorced and so my Decree Absolute protects me from financial claims?

Your Decree Absolute will simply end your marriage.  It will not prevent a court from dealing subsequently with your former spouse’s financial claims.  Even if you entirely agree about what should happen and you have implemented that agreement, for example by selling the family home and dividing the proceeds between you, you should still have that agreement recorded in a final and binding court order, known as a Consent Order.  

  1. Mediation is all about saving the marriage?

Don’t confuse mediation with marriage counselling. The purpose of mediation is not to save your marriage; it’s to provide you with a means of finding a solution to your dispute. Most people who mediate their disputes have come to the conclusion (or soon will) that their marriage is over. The whole point of mediation is that it helps a couple resolve their differences with the minimum of discord, and one advantage of mediation is that it avoids damaging your relationship further; you may need to maintain the ability to work together for years to come if you have children. Couples sometimes do reconcile during the mediation process, but that is not its primary purpose.

  1. It costs a fortune to get divorced?

Most cases in local courts cost nothing like the headline cases that come out of London.  Most lawyers will encourage settlement out of court and you can represent yourself if you want to.  If you choose that option however, you may end up with an unfair settlement, or without the necessary legal paperwork to ensure that your agreement is final and enforceable.

  1. The wife always gets the lion’s share of everything?

Men often believe that women get everything on divorce.

It is fair to say that historically women often receive more of the assets than the man and that it is rare for a woman to be ordered to pay spousal maintenance to a husband. This is simply a reflection of the world in which we live.  

Even now, men tend to earn more than women and children tend to stay with their mothers when their parents divorce. As a result, women generally have a greater need for a larger share of the assets and for maintenance.

The court views a husband and wife’s role as equal regardless of who is the breadwinner, who is the homemaker or who cares for the children.

The starting point for the division of capital in any marriage is 50/50 and the court’s role is to achieve fairness between the parties.

The system is not discriminatory.  More and more we see cases whereby the wife is the higher earner or the children reside with the father in which case the division of assets may be skewed the other way.

Either way an unequal division of capital often only occurs when there isn’t enough to go around in which case this may lead to a deferral of one party’s claims by way of receipt of any capital or a share of house.

  1. I’m divorcing my spouse for adultery or unreasonable behaviour and so I will get more of the assets?

Many people believe that “blame” should feature in the financial settlement on divorce but in reality the reason why the marriage broke down is usually irrelevant to how much each side receives. The court is not interested in penalising the respondent in the divorce; it is concerned with finding a fair solution that meets people’s needs.

Furthermore, who is to say how and why a marriage has broken down?  Just because the divorce petition says adultery does not mean that is the reason why the marriage broken down; the adultery might have taken place after the marriage broke down and the parties separated.

Having said that the court do have powers to penalise people for bad conduct within financial proceedings such as trying to hide assets. 

  1. I am not married but I am on my child’s birth certificate and so I have parental responsibility?

This is only the case for children born after 1st December 2003.  If your child was born before then, and you never married the mother, you will not automatically have parental responsibility even if you were named on the birth certificate.  You can only acquire that legal status by making an application to the court or entering into a Parental Responsibility Agreement with the mother.  

  1. Lawyers always want to go to court?

Court is necessary in some cases if agreement cannot be reached or if one side is not prepared to co-operate. However, only a minority of cases lead to actual court applications, and only a tiny number of those cases go all the way to a contested trial as the court process encourages the parties to negotiate.

Most cases are sorted out either by negotiations between solicitors, most of whom are members of Resolution and abide by its Code of Practice which encourages them to adopt a non-confrontational approach. 

Mediation is increasingly common and provides an ideal method of dispute resolution for some people.

Less well known, but just as good, is collaborative law, where the lawyers conduct negotiations in a non-confrontational and non-positional manner “around the tables” with both parties present.

The newest addition to dispute resolution options on divorce is arbitration.  This is effectively the practice of commissioning a private judge who is a specially trained family law barrister or solicitor to decide on one or more points of disagreement between the parties.

These options are known collectively as dispute resolution.

For further information on any of these points or for help with any family law matter please do not hesitate to contact the Family Law Team at Brabners LLP


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Downton Abbey Divorce – A Study in 1920 divorce forum shopping
Sunday 22nd September 2013

The national obsession, Downton Abbey, has returned to the TV screens for its fourth series.

This series, set in 1922, highlights the legal issues that have been with us for longer than many modern family lawyers realise.

Lady Edith’s “beau” needs a divorce from his first wife to marry into the Downton family. He is unable to secure a divorce in England and after investigations ascertains that he could get divorced in Germany, subject to residence there. No doubt future episodes will highlight the difficulties of securing the divorce in post first world war Germany.

Nowadays divorce forum shopping is relatively common place given the international movement of families and the prevalence of marrying abroad, second and third holiday homes and retirement abroad. The choice of country to start divorce proceedings in can be complex and can have far reaching implications for how financial claims are determined.

The financial implications of choosing the wrong country to hear financial claims can result in a race to determine the “best” country in which to obtain a divorce and be the first to start divorce proceedings.

For the sake of the story line Lady Edith’s beau’s divorce is bound to prove an epic struggle. For any couple contemplating divorce where there may be a choice of jurisdictions the key is to obtain early specialist advice on the divorce options.

 


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Mi casa es su casa………..but maybe not if you are a cohabitee?
Wednesday 18th September 2013

In light of the support on Tuesday 17 September by Liberal Democrat MPs to approve plans to give six million unmarried couples greater rights, once again what the public perceives to be the rights of cohabiting couples and the myth of the ‘‘common law marriage’’ has been thrust into the limelight.

In a public survey carried out in 2008, 51% of those surveyed thought that ‘’common law’’ cohabitants had the same rights as a married couples or civil partners to property. In fact there are significant legal differences. This leaves a gaping hole in legal protection for cohabiting couples who are the fastest growing family group in the UK. According to the national statistics 5.9 million people are now cohabiting in the UK in 2012, double the 1996 figure.

If a marriage or a civil partnership breaks down, both parties have the legal right to make a variety of financial claims including spousal maintenance and business and property claims. The divorce courts will take into account all the circumstances of both spouse and divide assets on the facts based on what the court thinks is ‘fair’ so mi casa es su casa may well become the other spouse’s house. That is the case even if the house is in the husband or wife’s sole name and even if one of them owned the property prior to their marriage. This is in complete contradiction to cohabiting couples where the court will only transfer houses and other property such as shareholdings if there is a legal claim based on financial contributions or trust or company law. The status of the legal relationship can produce vastly different results on relationship breakdown.

 While the legal debate rumbles on amongst MPs for those contemplating marriage or who are in a cohabiting relationship advice should be sought on prenups, cohabitation agreements and Wills.

 


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‘Till death do us part…?’
Tuesday 13th August 2013

Divorce statistics produced by the Office for National Statistics show that although the general divorce rate is declining, it is increasing for the over-60s. This means that even with a small chance of divorce during each year of marriage, marriages are now more likely to end in divorce and less likely to end in the death of the other spouse.

The Office for National Statistics show that the number of people getting divorced each year has been falling steadily since the mid 1990’s. However, the number of people aged 60 and over divorcing has been rising during this period.

There has been a 73% increase in the number of men aged over 60 getting divorced between the late 1990s through to 2011. Similar tends have also been observed for woman aged 60 and over.

Academic research from the USA has cited several possible reasons for the increase in the divorce rate among older people. These include:

  • Increasing life expectancy
  • A loss of stigma in being divorced as the more common it becomes to be divorced, it is less socially unacceptable
  • With increasing number of working woman, woman have become more financial independent and are more able to support themselves outside of marriage than in the past.

It is particularly important for older people to obtain professional legal advice before they divorce as pensions can often by the largest asset within a marriage.


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Survey shows most children will be born out of wedlock by 2016
Monday 5th August 2013

According to the Office for National Statistics, the proportion of children born to unmarried mothers rose to a record 47.5% last year.

If the trend continues at the current rate, the majority of children will be born to parents who are not married by 2016.

This demonstrates the decline in the number of people choosing to marry. More than 11 million people in England and Wales are single, reflecting the growing number who have chosen not to marry, while more than 5 million unmarried people live with their partners.

According to the 2011 Census, the number of people who are married in England and Wales has fallen from just over half of the population a decade ago to 45%.

The government and other experts are concerned because they believe children growing up with married parents tend to have better life chances. As a result, the government have introduced plans to give tax breaks to married couples, worth £150 before the next election.

Whether a tax break will encourage couples to “tie the knot” is hard to say.

The government believe that couples are more likely to separate if they do not marry and therefore this has a negative impact on children. Yet Britain has the highest divorce rate in the European Union, with 2.8 marriage breakups per 1000 people.

With the number of family breakups so high it is important couples consider the impact that the breakdown of such relationships has upon children. Children will always be upset when parents separate but the way in which parents handle separation is crucial for their children’s welfare.

Family breakdown can be stressful and traumatic both for adults and their children. Family mediation can help couples reach commonsense and practical solutions which are best for their family. Family mediation is not relationship counselling but it is a process by which an impartial trained mediator can work with parents to help them reach a sensible and amicable solution for their family.


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