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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

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claims can be made in respect of children or property but these can be complicated and the law is vague and outdated.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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Winds of Change: New law governing the funding of family proceedings
Wednesday 31st July 2013

The new legal aid reforms which came into effect on 1 April 2013 made some fundamental changes to the way family law proceedings can be funded.

There has long been a problem whereby one spouse can suffer detriment in divorce proceedings if there is a financial imbalance between the parties.  The problem was summarised in the case of Sears Tooth v Payne Hicks Beach [1997] when the judge said there is “… a grave and widespread problem encountered increasingly in the Family Division: namely, how can a spouse, usually a wife, who is ineligible for legal aid but who has negligible capital, secure legal advice and representation in order to pursue her rights against her husband, particularly one who is rich, litigious or obstructive or whose financial circumstances are complex and unclear?”

To rectify this problem, which many feared would be made worse by widespread withdrawal of legal aid for most financial cases, two new sections have been inserted into the Matrimonial Causes Act 1973; sections 22ZA and 22ZB (mirror provisions will be made to Schedule 5 of the Civil Partnership Act 2004).

Section 22ZA allows the court to order one party to pay monies to the other to enable them to obtain legal advice and representation.  The Applicant must demonstrate that they would not reasonably be able to obtain appropriate legal services without an order being made and the court can specify whether this ought to be paid as a lump sum or by instalments.

Section 22ZB specified the considerations that the court must have regard to when deciding to make an order which include:

  • the income, earning capacity, property and other financial resources of the parties or what are are likely to have in the foreseeable future
  • the financial needs, obligations and responsibilities which each have or are likely to have in the foreseeable future
  • the subject matter of the proceedings, including the matters in issue
  • whether the paying party is legally represented in the proceedings
  • any steps taken by the applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise
  • the applicant’s conduct in relation to the proceedings
  • any amount owed by the applicant to the paying party in respect of costs in the proceedings
  • the effect of the order on the paying party.

It is therefore hoped that this will go some way to addressing the imbalance between parties when it comes to funding family proceedings.

For information on relationship breakdown or funding your case please contact Natalie Hargreaves, Paralegal, Brabners Family Team.


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Important New Changes to Child Maintenance
Tuesday 30th July 2013

The government introduced the Child Maintenance Service (CMS) to replace the Child Support Agency (CSA).

The CMS is designed to be a safety net for difficult cases where parents are unable to work things out between themselves.

Because of problems faced by the CSA in the past, particularly due to failings in their computer system, the new changes under the CMS have been introduced gradually.

Initially, only new applicants where the family had four children by the same father could apply. From 29 July 2013 new applicants with two or more children can now apply to the CMS.

The CMS has introduced major changes about how maintenance payments are to be calculated.

The key difference is that maintenance will be based on the non resident parent’s gross salary rather than the calculating it on their net salary.

The new formula means that the non resident parent will pay 12% of their gross salary for one child; 16% for two children and 19% for three or more children.

The government proposes the CMS will charge a £20 application fee once the service is up and running.

Separated families currently in the CSA will have their cases gradually closed over the next three years and will then be set up under the CMS.

Hopefully, the CMS computer system will be able to cope with these significant new changes.

Despite these changes, the CMS is still likely to find it hard to assess non resident parents who are self employed, particularly if they get a lot of their income “cash in hand”.

It is therefore always preferable if separated families can try and reach their own agreements. Mediation can help. This enables couples to sit down together, with the mediator, to try and find their own solutions.  If you have any queries regarding the changes or mediation in general, please contact the Brabners Family team.


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By George, what is in a name?
Monday 29th July 2013

The British public waited with baited breath for the birth and the announcement of the name. The name George seems to have the approval of a large percent of the population but what happens when a parent regrets the choice of a christian or surname? This can happen surprisingly often especially when couples are cohabiting and have different surnames or when a christian name is chosen not because both parents love the name but due to tradition and extended family. Naming the child after your mother in law or father in law can seem a good idea at the time but some parents do live to regret their decisions.

What can a parent do when they think that they have made the wrong choice of name? If  it is a case of wanting to change a child’s surname as you have split up with a partner or husband or wife then everyone who has parental responsibility for the child has to agree to the change and if they don’t the court has the power to make an order changing the surname .  If you are the parent wanting to change the surname or to add or delete part of a double barrelled surname you will have to persuade the court why it is in the child’s best interests that the status quo is changed so it is best to think carefully about the implications of choosing names before registering the birth.

What about the Christian name? Well most parents accept that once you name a child the decision is made for life whether or not you fall out with the mother or father in law so court applications for specific issue orders about what a child’s first name is are very rare. With families becoming more complex and diverse names can become more confusing with two children in the family from two different relationships both sharing the same christian name or one child struggling with why they are the only member of the family with a different surname

The best advice is to carefully consider names, especially choices of surname, and if you sadly split up with a partner to discuss name options from the child’s perspective.

 


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What goes on in the family court?
Sunday 28th July 2013

The president of the Family Division has just published a set of draft guidelines to promote transparency in the family courts by the publication of Judgments in certain cases.

The idea is that by publicising Judgments there will be a greater understanding by the public of the court process which in turn will lead to a greater confidence in the courts system.

Under the draft guidelines certain written Judgments will be made available to journalists and the identity of experts will be disclosed.

The guidance distinguishes between two classes of Judgment:

  • Those that the court must ordinarily allow to be published; and,
  • Those that may be published.

Those cases covered by part 1 include cases brought by local authorities under the Children Act 1989 and orders made under the Adoption and Children Act 2002. The starting point now is that the Judgment should be published unless there are compelling reasons not to.

Nor are the cases heard in the family court by Circuit Judges and High Court Judges restricted and the starting point from now on is that a Judgment may be published whenever a party or an accredited member of the media applies for an order permitting publication. A Judgment should in any event be published whenever the court considers it is in the public interest to do so.

This approach is to be welcomed. Maintaining the confidentiality of children is and will remain paramount. However, transparency is to be welcomed especially so if greater public awareness leads to greater confidence in the court system.

For any queries about the court process please contact Helen Marriott, Arbitrator & Head of Family Team


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Is Facebook Increasing Divorce Rates?
Wednesday 24th July 2013

A survey by the American Academy of Matrimonial Lawyers has found that Facebook is now cited in almost one in five divorce petitions.

The social networking site started by Harvard student, Mark Zuckerberg in 2004 which allows people to make contact with old friends and find new ones is being blamed for an increase in relationship breakdowns for various reasons.

Many people claim they have discovered inappropriate and flirty behaviour by their spouse towards another person via the site which is increasingly being quoted as examples of unreasonable behaviour in divorce petitions.

The “relationship status” tool allows users to select whether they are:

• Single
• In a relationship
• Engaged
• Married
• It’s complicated
• In an open relationship
• Widowed
• Separated
• Divorced
• In a civil union
• In a domestic partnership

Whilst 40% of Facebook’s 1.11 billion users worldwide opt out of publishing their relationship status, for those that do it can lead to difficulties within a relationship.  One woman reports that she discovered her marriage was over by discovering from her husband’s Facebook page that he had changed his relationship status from “married” to “single”.

Difficulties also arise from the use of the “tagging” tool.  This allows users to “tag” where they are and who they are with at any given time.  This is the feature that is often being cited as “evidence” when a spouse alleges that the other is having an affair.

The launch of the Friends Reunited website prior to Facebook was also blamed for a surge in divorces as bored husbands and wives used it to contact old flames and first loves.

If you would like to speak to someone regarding marital breakdown, please contact Natalie Hargreaves, Brabners Family Team.


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