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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

Spouse ordered to hand over 100% of the family assets
Wednesday 15th July 2015

The Telegraph and other national publications have  reported  on the case of a hospital consultant ordered to hand over all the family wealth to his wife, a practisisng GP. At first glance the court decision  seems plainly wrong and manifestly unfair. Most family courts start from the premise that family wealth should be split equally on divorce unless there is a good reason to depart from the principle of equality. So why did the wife get 100% of all the assets?

Beyond the headlines the rationale for the court decision becomes clearer. The husband, Mr Aly, left his wife in 2011 and after seperation did not provide financial support to his wife, and more importantly their two children. In most cases the court would say that the wife's remedy should lie with the child maintenance service, the government agency set up to assess the level of child support payable and to enforce payment.

Mr Aly left the UK in 2011, putting himself beyond the jurisdiction of the child maintenance service. Whilst the wife could have applied to the UK family court for child support and spousal maintenance her lawyers probably advised her that it would be uneconomic to pursue court orders in the UK that would then have to be enforced against the husband who was living in Bahrain with his new wife and child.

The court of appeal upheld the decision to give the wife all the family wealth on the basis that Mr Aly had shown himself unwilling to provide support and was unlikely to do so. In effect, by awarding her more capital the court tried to redress the court's limitations in ordering and enforcing maintenance when one party is living abroad, outside the jurisdiction of the court. The court of appeal emphasised that the yardstick of equality is the starting principle when courts look at how to decide family assets - it does not have to be the end point.

Mr Aly is not the first spouse who has found that the court has teeth and he will not be the last. Over the years many spouses have questioned the advice to ''pay up''. Whether they agree with the laws and principles of maintenance or not family lawyers know that it is the decisions that spouses make at the time of seperation that can heavily influence how family wealth is split in future financial court proceedings as had Mr Aly paid support from the outset his wife's legal team would have had an uphill battle in arguing that she she get more than half the family capital.

For early pragmatic advice on divorce and financial claims contact Paula Milburn on 0161 836 8914 or by email at paula.milburn@brabners.com.


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Prenup agreements - you can't ''switch off '' from legal advice
Tuesday 14th July 2015

There has been a lot of recent case law over the status of prenup agreements and the latest case of WW v HW, gives futher guidance on the status of prenups on divorce.

The husband and the wife were divorcing after a 13 year relationship with 2 school age children. The wife wanted the court to limit the husband's claims based on their 2002 prenup agreement whilst the husband argued that he should not be bound by the prenup agreement, in part because he ''switched off '' as soon as his solicitor told him that prenups were not legally binding and he did not hear the rest of the advice.

it was clear that the wife was well advised to enter into a prenup as at the time of her marriage she was had already received a significant inheritance from her late father, and by the date of the divorce proceedings she was said to have about 27 million in investments and, trusts. The husband was found to have overstated his wealth at the time of signing the prenup but the court ignored this on the basis that the judge thought that the husband had deliberately over played his income and wealth so it did not appear that he was marrying for money.

The husband had taken legal advice on the prenup but argued that he did not fully understand the agreement because as soon as his solicitor told him that ''prenups are not legally binding'' he switched off and did not listen to the further advice. The judge concluded that switching off and not listening to a lawyer's advice did not absolve the husband from the consequences of the prenup as he had been offered written legal advice and had the oppurtunity to get further advice on the ramifications of signing the agreement.

Although the court provided the husband with a house (with the house equity to eventually revert to the wife)  and some financial support the judge made it clear that he was heavily infiuenced by the couple signing the prenup agreement and what, in his opinion, was the wife's understandable desire to protect inherited wealth. The size of the husband's award was reduced to what the court judged would meet the husband's ''needs'' rather than what the husband might have reasonably expected in divorce proceedings after a long marriage with 2 dependant children.

What lessons can be taken from the case other than listen to your solicitor and don't ''switch off ''? The main message is that prenups carry weight and increasingly even if the terms are not fully upheld they protect the financially stronger spouse. Prenups may not be legally binding but for anyone contemplating marriage they should be considered as the best means of protecting current wealth or future family life time gifts or inheritances.

 

 

 

 


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Is the future "married at first sight" by the scientists?
Tuesday 14th July 2015

The first episode Channel 4’s new show ‘Married at First Sight’ was broadcast to the nation last week.  Forget ‘Blind Date’ and ‘Take Me Out’, this show has upped the ante as participants put their faith in science to match them with their perfect spouse – who they meet for the first time on their televised wedding day!

The Channel 4 panel of scientific experts, matching participants to one another, includes a psychologist, an evolutionary anthropologist and a priest.  Of the 1,500 people who applied to be part of the social experiment, the panel selected 3 couples who they think stand the best chance of wedded bliss.  

So why would anyone sign up for the programme?  Volunteers explain how meeting people nowadays is much more about internet profiles and sitting in a bar with a phone, deciding to swipe left or right, rather than actually looking at who is in the bar. The Channel 4 experts argue that although most people tend to think that choice is a good thing, it can make decisions harder.  Technology is now having a huge impact on  personal relationships – not only is the internet bringing couples together it is also driving them apart as social media use is nowadays cited as unreasonable behaviour in divorce proceedings.

When I started watching the show, I did question whether entering into a legal marriage was necessary for the participants or just needed by the producers to promote the new programme.  Why could science not just introduce couples and leave nature to take its course?  During the show it became clear that marriage is still very important in our society and, because it signifies a long-term committed relationship, getting married is thought to give the show participants the best chance of long term married bliss.  Whether the couples make it down the aisle remains to be seen in the next episode.  If they do then after the wedding they will go on honeymoon and then live together for 5 weeks before deciding whether to stay together or separate and divorce.  I have to admit, I am curious to see whether it works out for them and, as a family lawyer, I am intrigued by whether the producers or participants have thought of the long term implications of marriage and the financial implications of a divorce, even after a very short marriage.

Anyone entering into a new relationship should be advised to think about a cohabitation agreement or, if marriage is contemplated, a prenup.  I wonder if the programme makers will reveal if prenups were entered into before vows were exchanged and commitments made or if the participants thought through the legal implications of marriage, such as their spouse’s inheritance claims.  Although if I am honest maybe my desire to watch the second programme is less about the legal implications and more about finding out if the scientists are proved right.

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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Michigan Judge Orders Children to Juvenile Detention Facility for Not Talking to Father
Monday 13th July 2015

Child Arrangements Orders and the UK Family Court’s powers to enforce has been a hot topic of late, following the recent media coverage of the Rebecca Minnock case (for more information of the case and what the court can do to enforce child arrangement orders, click here).  We are all aware therefore that the court has the power to enforce Child Arrangements Orders which includes, in instances of serious or persistent breaches, finding the non-compliant parent in contempt of court and imposing a prison sentence.  But what about non-compliant children?

A recent controversial case in the USA saw a Michigan Judge order three children to live in a juvenile detention facility for refusing to have lunch with their father.  This is a case involving a difficult and acrimonious divorce which had been in front of the court for 5 years.   There was a court order in place directing that the children speak with their father and have regular lunch and dinner contact with him and the decision came following a long history of non-compliance.  The Judge had said that the children had been brainwashed by the mother and as such the children were refusing to see or speak to their father. 

The children, who are aged 9, 10 and 15, were held to be in contempt of court and were removed from the care of their mother and placed into custody pending further notice until the children agree to have a relationship with their father.  The case is to come back before the court on 15 July, however, in the meantime the father has been granted full visitation rights whilst the mother and her relatives have been denied any access to the children. 

Such a case is highly controversial and raises a number of potential issues, both in terms of practicability and of morality.  Is it right to punish a child for the consequences of relationship breakdown?  Whilst it is widely accepted that in order for contact with a non-resident parent to be successful, children need the encouragement and support of the resident parent, can you really force a child to have a “healthy relationship”, with a parent, as ordered by Judge Gorcyca in the above case?  Would such an enforcement merely create further resentment and damage the relationship further?

No such decision has, or is likely to be seen in the UK in the foreseeable future.  In fact, the overriding emphasis in such cases in the UK continues to be on the parents, with the court frequently reminding parents of their obligations to encourage contact.  In the recent case of Re H-B (Contact) [2015] EWCA Civ 389, it was made clear that a child’s refusal cannot be a justification for parental failure and parents were called upon to “utilise their parental skills, techniques and stratagems…to get the child to do what it does not want to do”.  However, in giving his judgment, Sir James Munby, President of the Family Division, did warn parents and liken such parental failures in these cases to those whereby children, whose education or health is prejudiced by parental shortcomings may be taken from their parents and put into public care. 

For more information of the Michigan case, click here

If you would like some further information regarding Child Arrangements Orders and enforcement of the same, you can find more information by clicking here.


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What can the court do when a parent breaches a Child Arrangements Order?
Monday 6th July 2015

The public were given a detailed insight into the workings of the Family Court last month when the usual privacy restrictions that prevent the naming of individuals involved in court proceedings relating to a child were waived.  The media were permitted to report on the details of a case when the disappearance of Rebecca Minnock sparked a nationwide search for her and her 3 year old son, Ethan.

Ms Minnock’s disappearance followed a decision in the Family Court that Ethan should live with his Father, Mr Williams.  Earlier in the proceedings, we are told that a social worker reported that Ethan was not ‘emotionally safe’ with his Mother and that a district judge had also found that Ms Minnock had fabricated allegations against Ethan’s Father in an attempt to stop Ethan spending time with him.  The court can consider changing a child’s main home in circumstances where the hostility of one parent to another spending time with the children will have a detrimental impact on that child.

So what action can the Family Court take when a parent breaches a court order?

When there is a Child Arrangements Order in place, the court has the power to enforce the order. This action will generally be taken where there has been a serious or repeated breaches of the court order by a parent. The court have a number of options available to them when enforcing an order which include varying the arrangements in the original order, forcing a parent to undertake unpaid work or attend parenting courses or ordering them to pay a fine.  In serious cases the court can finding someone in contempt of court and impose a prison sentence.Contempt of court can also apply to third parties in circumstances where they are ordered to reveal the whereabouts of a parent who has taken a child in breach of a court order. In the case of Rebecca Minnock, her Mother (Ethen’s maternal Grandmother) was sentenced to 10 days in prison for lying in court about their disappearance.

As explained above Ms Minnock could also have faced time in prison as a result of her disappearance with Ethan, but reports indicate that Mr Williams has not pursued this.  Some people might question this decision on the basis they would assume that he would want to see Ms Minnock face the consequences of her actions.  However, a conciliatory approach in children proceedings is often preferred as, notwithstanding past behaviour, it is acknowledged that children should have a relationship with both parents and it is well known that court proceedings often lead to increased acrimony between parents which is not in the child’s best interests.

It is now up to the Family Court to decide how Ms Minnock shall spend time with Ethan in future.  In cases where there is an obvious concern about one parent undermining a court order, the court is likely to be particularly cautious about trusting that person to play by the rules in future.  In those circumstances, it could be ordered that a parent should only spend time with their child in a supervised environment (for example, in a contact centre) or set other time or location restrictions.

For advice on any aspect of children law please contact Leanne Instrall on 0161 836 8916 or leanne.instrall@brabners.com.


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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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