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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

After the Supreme Court pressed the green light for ex-wife’s financial claims, renewable energy entrepreneur Dale Vince calls for a time limit on divorce pay-outs
Monday 13th June 2016

The highly publicised financial claim brought by Dale Vince’s ex-wife, Kathleen Wyatt, has been resolved by agreement with the green energy tycoon paying Ms Wyatt a reported £300,000. 

Kathleen Wyatt had been seeking a £1.9M pay-out from Dale Vince, the former New Age traveller, who is now reportedly worth over £100M. All of that £100M had been created after the couple separated and Mr Dale founded Ecotricity. 

Mr Dale met and married Kathleen Wyatt in 1981.  They became New Age travellers together and had a son in 1983.  They separated some years later and Ms Wyatt raised the couple’s son alone.  They divorced in 1992.  Neither one of them had any money at the time of their divorce and they did not get a financial order.  A clean break financial order would have prevented either one of them from being able to make any financial demands on the other.  Not bothering with a financial clean break order is not unusual in the situation where a couple are young with few assets, and don’t envisage becoming an entrepreneur.

Financial court proceedings were started by Ms Wyatt, in 2011, nearly 20 years after the divorce.  Both had moved on with their lives and were in new relationships and had further children. In contrast to Mr Dale’s business success, Ms Wyatt had held down low paid jobs and had on occasion had to rely on state benefits.

Ms Wyatt’s financial claim was rejected by the Court of Appeal who thought it was too late to apply. However in March 2015 the Supreme Court set aside the decision, ruling that there was no time limit in law for claims for financial provision on divorce.   This gave Mrs Wyatt the green light to go ahead with her financial proceedings and pursue the £1.9M pay out that she was seeking.

Last week it was reported that Mr Vince and Ms Wyatt agreed to settle her financial claim.  A family High Court judge, Mr Justice Cobb, approved an agreed financial court order awarding Ms Wyatt what was described as a “modest” award of £300,000. The media report that it is not known how much Ms Wyatt will actually receive after payment of some outstanding legal fees.  Some have speculated that she may receive very little. 

It is suspected that Mr Vince took the economic decision to agree to pay Ms Wyatt the £300,000 as he could have spent more than that amount, in legal fees, battling over whether or not Ms Wyatt should receive anything. As a result of their agreement the court will not hear detailed argument on when, if ever, financial claims of an ex should fall away, if there is no clean break order.

In the press, Dale Vince has called for a statute of limitations for divorce cases and is described as being very disappointed that the Supreme Court decided not to throw out Ms Wyatt’s application, brought over 30 years after their relationship ended.

Legal costs of these complex court proceedings could have been avoided if the couple had entered into a financial clean break order at the time of their divorce in 1992.  At that time neither of them had much by way of assets.  They both probably thought that neither would ever amount to much. Many spouses have taken the same risk or been oblivious to the thought of their ex-spouses claiming against future business ventures, inheritances or windfall payments received many years after the split.

The moral of the tale is perhaps that spending a little sometimes saves a lot.

At Brabners we advise husbands and wives to get a financial court order at the time of a divorce. None of us have a crystal ball and it is better to hope that there may be a successful budding entrepreneur or lottery winner than take the risk.

When solicitors advise families on estate planning , many people do not know if they have a financial court order and, if so, if it is a clean break order or not. It is imperative to check whether there is a financial clean break order as this can be a trigger to decide to get a financial clean break order or can affect estate planning decisions. 

Many former spouses assume that they have a clean break just because they got divorced.  That has never been the case and all the Supreme Court decision has done is to confirm that, unless there is a change in the law, there is no statute of limitations for divorce cases and that the financial court   process on divorce can be a lottery with the potential for different judges to come to a range of views on whether there should be a pay out and, if so, the amount.

 


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Money for children - not always just a question of child maintenance
Wednesday 18th May 2016

Most people have heard of the Child Support Agency (CSA), which has subsequently been replaced by the Child Maintenance Service (CMS). They are also aware that the parent with whom a child lives for the majority of the time can seek child maintenance from the other. They may however not be aware of the other potential claims that can arise on behalf of a child.

If the CMS are asked to calculate child maintenance they will make an assessment based on a percentage of the other parent’s gross income, with certain deductions being made if the child spends time overnight with that parent, or if they are financially supporting other children.

In certain circumstances a parent can also make further financial claims over and above the usual child maintenance claim.  Unfortunately this is an area that parents tend to be much less knowledgeable about.

If a child lives with a parent and they are under the age of 18, that parent (whether married or unmarried) may be able to make a court application on their behalf for additional money and financial provision. This is particularly useful where parents were unmarried and therefore do not have the ability to make financial claims on separation in the way they would if they were getting divorced.

The lack of knowledge about these applications can lead to parents failing to make an application when they may be able to get additional financial support for their child. It can also come as quite a shock to the other parent when applications are made against them and they had wrongly believed that the limit of their financial responsibility to their child was child maintenance payments.

So what additional money or financial support can a parent claim for their child?

This can include:-

  • Monthly payments to top up the child maintenance if the other parent earns more than £156,000 gross per annum
  • Monthly payments to assist the other parent in their role as the ‘carer’ for the child
  • Payment of school fees
  • Payments of lump sum of cash e.g. for the other parent to have a car
  • The provision of a home (either outright, or for the parent and child to live in until the child reaches 18)

When deciding whether to make an order the court will take into account all the circumstances of the case. This will include the income, earning capacity, property and financial resources that a parent has, as well as that parent’s financial needs, obligations and responsibilities. The court will also consider the child’s needs, as well as any disability they may have, among other factors.

For parents who have a high income and/or significant financial resources an application for further money and support is a real risk for them. They would therefore benefit from ensuring they understand the potential scope of their vulnerability to such a claim. In contrast a financially less well-off parent who has the main care of a child and a wealthy ex-partner may be well placed to consider an application to improve the financial circumstances in which their child is brought up.

 

 

 


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Unmarried couple’s dispute over property shows the need for ‘before the event’ documentation
Friday 6th May 2016

This week the media have reported on the case of Mr Powell and Ms Thomas, which has been dealt with by the Central Family Court. It illustrates the disputes that can arise when unmarried couples separate.

In 2012 Ms Thomas funded the purchase of a property in London which she held in her name. However, Mr Powell claimed that it had been agreed that he would undertake the renovation work needed on the property on the understanding that they would ultimately share in the property equally. He argued that he had borrowed £14,000 from his parents to purchase the materials and had carried out the work himself, thereby relying on their unwritten agreement. This was not accepted by Ms Thomas.

The Court in deciding the matter have awarded Mr Powell the equivalent of one third of the equity in the property and a sum to pay his legal costs. Mr Powell claims that he made an offer to settle the case outside of court for a sum which was lower than the amount now awarded, which was declined by Ms Thomas.

This case highlights the very real danger of failing to have an agreement about your property in writing when you are unmarried, and therefore not subject to the legal protections offered to married couples. In such situations the outcome can be uncertain as the court has to use its discretionary powers and consider the intentions of the parties, which can be unclear in the absence of written evidence.

The case also raises the issue of whether there could be less stressful and costly ways of dealing with such a dispute. In an ideal world the couple would have prepared a written agreement, such as a cohabitation agreement, in advance to confirm what would happen to their property in the event that they were to separate.

However, in the absence of this agreement and a very real dispute taking place what other options are available outside of a contested court battle?  In such disputes a couple may want to consider mediation, collaborative law or arbitration. These are all alternative methods of resolving disputes outside of the court process which can allow an amicable resolution with less in the way of legal costs and which avoids the stress of contested court proceedings.

For advice on any aspect of family law please contact Joanne Radcliff on 0161 836 8927 or by e-mail at joanne.radcliff@brabners.com.


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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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