Do we really need a Court Order when my ex and I have agreed our finances?

The short answer is, yes. If you do not have a Final Financial Order approved by the Court, there is always a risk that your ex can make a claim against you. Any claim made can even include assets that did not exist at the time.

In a recent Court decision (Briers v Briers (2017) EWCA Civ 15), the Court clearly states that it is not possible to reach any final agreement without approval of the Court.

Background to the Case

The parties married in 1984 and separated in 2002 (18 years). The Decree Absolute (divorce) was pronounced in 2005. There was no Court Order concluding the parties’ financial affairs. In 2013 (11 years after separation), the wife issued legal proceedings applying to the Court for a Final Financial Order. The husband relied on an agreement which was entered into by both he and his wife in 2005 following a joint meeting with her Solicitor which he thought finalized the financial matters.

The first decision of the Court in May 2015 found that there had not been a full and final settlement and that there was no 2005 agreement as alleged by the husband. The Court at that stage decided that the wife had made it clear that she would require full financial disclosure in advance of agreeing any final settlement and this disclosure had not taken place.

As a side note, it is a requirement that both parties provide full and frank disclosure of all their financial affairs in proceedings for a Financial Order in order to make any Final Order binding.

The Appeal

The husband appealed the initial decision which was principally based on two issues as follows:

  1. An alleged agreement in 2005 and the husband maintained that agreement was final.
  2. Delay – the husband argued that the Trial Judge had failed to have sufficient regard to the wife’s delay in bringing the claim and the lack of any cogent explanation for that delay.

In answer, the Court stated the following:

  1. Whether the agreement in 2005 was binding is a question of fact. The Court found that the wife’s acceptance of the proposed deal was conditional on the husband’s full, frank and clear financial disclosure. The Court made it clear that in the absence of this full disclosure, it would be enough to defeat the appeal.
  2. In respect of delay, this case demonstrates that significant delay in making any claim is one of the major factors in play for the Court to consider in any subsequent assessment and it is an additional factor that the Court must take into consideration but it is certainly not determinative of the issue. It may lead the Court to apply a discount to any award given to the wife but it certainly does not eliminate any claim. Further, none of the authorities in this area of law suggests that sharing non-matrimonial post separation accrual of assets is excluded from any award that may be made.
Conclusion

It seems clear from the facts of this case that Mr and Mrs Briers had agreed what was to happen with their financial affairs on their divorce and it was this “agreement” that was relied upon by Mr Briers. Neither of them felt that they needed to do anything more with regard to their financial affairs. This case demonstrates clearly that the Court will retain legal authority to make a Final Order in financial proceedings between husband and wife on divorce. Regardless of any agreement the husband and wife reached between themselves, the ultimate decision rests with the Court. In this case, no such Order was obtained. 11 years later, an Application was made by Mrs Briers for a financial award. In the intervening period, Mr Briers had accumulated many business assets. It is understood that his business assets were worth in the region of £10m. The husband (11 years later) was ordered to pay to the wife a lump sum of £1.6m and to transfer to her 25% of his pension.

The lesson to be learned is that even after divorce, any financial claim between husband and wife continues to exist until you receive and/or obtain a Final Order of the Court.

The only way Mrs Briers could not have made a claim following divorce is if she had remarried. This is often referred to by lawyers as the “remarriage trap”.

We recommend that you seek independent expert legal advice, even if you have already divorced. If you wish to make a financial claim Warren’s Family Law can assist you in doing so.

Paul Summerbell, 5 May 2017
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

“Trapped in a loveless marriage”

Divorce – Unreasonable Behaviour

This is how the Guardian Newspaper described the case of Owens v Owens ([2017] EWCA Civ 182). Essentially, the issue revolved around the legal interpretation of “unreasonable behaviour” as the basis for a divorce.

This was a decision of the Court of Appeal in March 2017 from a previous decision of the Central Family Court to refuse to grant Mrs Owens a Decree Nisi of divorce. The original decision was that even though the Court found the marriage had broken down and the prospects of reconciliation hopeless, the wife did not satisfy the legal requirements to allow the court to make a finding of unreasonable behaviour on behalf of Mr Owens.

The Facts of the Case

This is not an unusual case. Husband and Wife married in 1978 and had two adult children. They separated in February 2015. It was accepted that the wife was carrying on an on and off affair which began in November 2012 and ended in August 2013. The original divorce petition was filed on 6th May 2015 and made the following allegations:

  • That the Respondent prioritised work over home life including missing holidays and family events.
  • During the latter years the Respondent failed to provide love, attention or affection towards the Petitioner leading her to feel unappreciated.
  • The Husband’s mood swings caused frequent arguments which were distressful and hurtful to Mrs Owens
  • The Husband was unpleasant and disparaging towards the Petitioner leaving her feeling upset and embarrassed.
  • As a result of the Husband’s behaviour they lived separate lives under the same roof and had done for many years; not sharing a bedroom for several years.
  • In February 2015 Mrs Owens moved out into rented accommodation.

The above particulars are typical of many divorces based on unreasonable behaviour and are designed to achieve a divorce for Mrs Owens (the Petitioner) without antagonising Mr Owens (the Respondent). Instead of Mr Owens accepting the particulars he chose to defend the proceedings.

The Law

The Court starts with legislation and Section 1 of the Matrimonial Causes Act 1973. Mrs Owens must demonstrate that her marriage has broken down “irretrievably”. Proving that a marriage has broken down “irretrievably” depends upon establishing one of five facts namely:

  • Adultery
  • Unreasonable behaviour
  • Desertion for a period of at least two years
  • That the parties have lived apart for a continuous period of two years and both parties agree to the divorce proceeding
  • The parties have lived apart for a continuous period of five years regardless of consent.

This divorce concerned “unreasonable behaviour” (2 above).

The Court is therefore involved in an enquiry (so far as it reasonably can) into the facts alleged by Mrs Owens and Mr Owens. Obviously, in an uncontested divorce, which is the usual type, the Court does not have to engage in this exercise.

The approach that the Court must take is as follows:

  • To decide whether Mr Owens has so behaved that it is unreasonable to expect Mrs Owens to live with him
  • In order to decide that, it is necessary to make findings of fact as to what Mr Owens actually did, and findings of fact as to the impact of that conduct on Mrs Owens
  • The cumulative effect on Mrs Owens of that behaviour.

In carrying out this exercise the Court must ask itself what any right thinking person looking at the particular Husband and Wife might think and whether one could reasonably be expected to live with the other taking into account all of the circumstances. This includes the respective characters and personalities of the parties concerned.

Difficulties in this area of law arise, as pointed out by the Court, because of the objective and subjective nature of the tests. For example, if the marriage is unhappy a particular piece of “conduct” may have more impact and be less “reasonable” than exactly the same conduct if the marriage is happy. In other words, what may be regarded as a trivial disagreement in a happy marriage could be salt in the wound of an unhappy marriage.

This concept is further complicated by the passage of time. The statute is dated 1973 and many changes in society have taken place since that time. By way of an analogy the Court stated the following:

“The concept of a vehicle has the same meaning today as it did in 1800, even though it includes methods of conveyance which would not have been imagined by a legislator of those days. The same is true of social standards. The concept of cruelty is the same today as it was when the Bill of Rights 1688 forbade the infliction of “cruel and unusual punishment”. But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today.”

Thus, the words “cannot reasonably be expected” must be addressed by reference:

“To the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times”.

The Grounds of Appeal

In broad terms Mrs Owens grounds of appeal from the refusal to grant her divorce in the original decision were as follows:

  • The Court failed to make essential findings of fact as to the Husband’s behaviour and the impact upon the Wife
  • The Court failed to undertake any proper assessment of the Wife’s subjective characteristics
  • The Court failed to undertake any assessment of the cumulative impact on the Wife of the Husband’s behaviour
  • The Court failed to apply the law properly to the facts.
  • The Court failed to take into account the Wife’s rights under Articles 8 and 12 of the European Convention (Article 8- Right to a Private Family Life, Article 12- Right to Marry)

There then follows a description of the Court of Appeal’s role in hearing appeals and the reasons why the original decision to reject Mrs Owen’s claim that she should be divorced was made and gives a brief history of divorce law. The case concentrated on the selection of allegations that were brought to the Court of Appeal for examination and, in the writer’s view, places too much emphasis of the alternative remedies available to Mrs Owens under the present law. In other words, if she waits until February 2020 “assuming that she and her Husband are still alive” she will be able to petition for divorce on the basis that the parties have lived apart for a continuous period of five years regardless of consent.

In short, the Court of Appeal in assessing the original Judge’s decision confirmed that he was in the best position to consider the case having read all of the papers and heard evidence from the parties under cross-examination. The Appeal Court rejected the idea that the original Judge was “plainly wrong”. Finally, that the original Judge could not be criticised for the findings of fact that he made which essentially was critical of Mrs Owens.

The Current State of Divorce Law

Under current divorce law there are five facts which need to be proven in order to obtain a divorce. Two of them (adultery and unreasonable behaviour) involve “blame”. The remainder (no fault) rely on periods of separation and/or desertion of two and five years respectively. The issue in 2017 is whether it is appropriate for “blame” to be a part of divorce law.

The current state of divorce law exposes clients to the risk that following this decision those seeking a divorce will feel obliged to outline stronger and more challenging allegations (Particulars) in their divorce petitions. This leads to further acrimony which overspills into other areas of family law particularly children and financial matters. Many family lawyers, particularly those members of Resolution (formerly the Solicitors Family Law Association) recommend to petitioners not to put in the Petition every allegation of unreasonable behaviour and, in so doing, seek to produce more neutral particulars or allegations of unreasonable behaviour on the basis that to do so creates the acrimony that has already been referred to. It is a matter of common sense that the more contentious the allegations of unreasonable behaviour are, the more acrimonious the parties feel towards each other and the more damage is done to any ongoing relationship, particularly where children are involved.

As has already been mentioned, Mrs Owens does have remedy available to her in the sense that if she waits until 2020 she can get a divorce based upon five years separation regardless of consent. However, she will require her Husband’s consent to divorce after two years separation. This will require a presentation of a fresh petition and involve the parties in further expense. It is also worthy of comment that the Court of Appeal have forced these parties to remain married in circumstances where the worth of the marriage must be questioned.

Reform – Divorce Law

Resolution, an organisation for family lawyers, on 24th March 2017 stressed that this decision underlines the urgent need for no fault divorce to be revisited. The purpose behind this campaign for a reform of the law in this area is to reduce conflict and support separating couples to resolve matters amicably rather than the increase in acrimony that will inevitably result from the decision in the case of Owens.

On the other hand, there is the issue of marriage itself. What value does society place on marriage? Those who choose to marry separate themselves from those who do not and there are certain tax advantages and no doubt social benefits from the status of marriage. Perhaps we should make it more difficult to marry? Perhaps the elements of adultery and unreasonable behaviour should be removed from the statute book and the remainder of the five facts (desertion, two years separation and five years separation) be reduced. All these factors are, in my view, rightly open for modernisation and current debate with a view to creating no fault divorce.

From the writer’s perspective I would have hoped that the mere fact of defending this divorce for as long as Mr Owens did and necessitating the expense involved is such that the litigation itself could be seen from the Court’s perspective as unreasonable behaviour on behalf of Mr Owens in circumstances where Mrs Owens is perfectly clear she wishes this marriage to end. The purpose in keeping this couple married must be open to question in these circumstances and I submit that the mere fact of the litigation, its duration, its cost, is, in itself, unreasonable behaviour.

Paul Summerbell 27.03.17
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

A Fair Trial and DIY Law

Government statistics for the period from April to June 2016 show that more than a third of cases in the Family Court have no legal representative for either party. That proportion of unrepresented parties in the Family Court is the highest since the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013 which restricted Legal Aid for family cases. At the time of the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013, approximately 17% of Family Court cases had no representation for either party. That figure has grown to 34%. Cases where both parties are represented have fallen from 40% in 2013 to approximately 27% in the second quarter of this year.

Legal Aid is now only available for Private Family Law cases, such as, contact or divorce, if there is evidence of domestic violence or in child abduction cases. This situation has been compounded by an increase in the time it takes to resolve cases in the Family Courts. The average time for the disposal of a divorce case with financial remedy has steadily increased from 20.5 weeks at the start of 2015 to 24.9 weeks at the second quarter of 2016. Additionally, the workload for Family Courts appears to have increased significantly. Government figures show that 66,328 cases started in the Family Courts in England and Wales in April to June 2016, representing a 10% increase in the same period in 2015.

Against this background, on 30 September 2016, Mr Justice Peter Jackson gave Judgment in the case of Re B (Litigants in Person: Timely Service of Documents) (2016) EWHC 2365 (fam) in which Counsel was criticised and adjournment allowed, for the service of documentation on a litigant in person on the day of the hearing.

In short, this was a final hearing in a child abduction case in which legal documents – Counsel’s Position Statement (14 pages) and 4 Law Reports (100 pages) were given at the door of the Court to a non-English speaking litigant in person (LIP). Mr Justice Peter Jackson commented that “this is unfortunately not an unusual occurrence, and it calls for a remedy”.

In this case, the mother, who wrongly removed the teenager from a convention country to England in February 2016, was the subject of father’s application under the Hague Convention for the return of the child. The proceedings were defended by the mother on the basis that the child objected to the return. The proceedings continued through the Courts in a non-eventful manner and mother appeared as a litigant in person whilst father was represented by Counsel. No specific direction was given by the Court for the timely service of documents on the mother, who was acting without an interpreter.

Mr Justice Peter Jackson, in his Judgment, commented as follows:
“Where one party is represented and the other is a LIP, the Court should normally direct as a matter of course that the Practice Direction documents under PD 27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should be specified. Where time permits, the Court should consider directing that the key documents are served with the translation. In cases where late service on an LIP may cause genuine unfairness, the Court should consider whether an adjournment of the hearing should be allowed until the position has been corrected”.

PD 27A is concerned with the preparation of Court Bundles in the Family Division and the Family Court. It governs (in summary) the timetable for preparing and lodging the Court Bundle of papers and states:

“The party preparing the bundle shall provide a paginated index to all other parties not less than four working days before the hearing.

Where Counsel is to be instructed at any hearing, a paginated bundle shall be delivered to Counsel not less than three working days before the hearing.

“The bundle” shall be lodged with the Court not less than two working days before the hearing.

The preliminary documents (including a Position Statement) shall be lodged with the Court no later than 11.00 am on the day before the hearing.

As a practising Solicitor, I can say with some certainty that Solicitors already struggle with the workload and often unrealistic timetables imposed by Court Rules and the Courts themselves. Compliance with PD 27A is difficult.

This situation is further compounded by the amount of LIP’s that are currently attempting to represent themselves in the Family Court in situations where they are unable to afford or secure legal representation.

Conclusion

As a Solicitor, the message is clear. The drafting of a Position Statement prior to any hearing, although helpful to the Court in pointing out the practicalities of a particular case and its history may now not be drafted. If a Position Statement is drafted and is served late, the risks of an adjournment are very real given this recent Judgment. Adverse Costs Orders could follow for the legally represented party. Further, in the case of foreign speakers, who pays for any translation?

This Judgment discourages the preparation of Position Statements which are helpful to the Court.

This Judgment also has implications for timetables given by the Courts themselves. If the Court orders a tight Court deadline for the service and filing of documentation and documents are served or filed late for some other reason, does this in itself not represent unfairness?

What is the position where one party has Legal Aid and the other does not? Is that not unfairness?

I leave you with the case of Re NL (a Child) (Appeal: Interim Care Order: Facts and Reasons) (2014) EWHC 270 (fam) at paragraph 40 where Mr Justice Pauffley expressed the point as follows: “Justice must never be sacrificed upon the altar of speed”.

Paul Summerbell 13.11.16
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Frequently Asked Questions

June 2016

Divorce

How do I get Divorced?

You can get divorced if you have been married for at least a year, have a marriage that is legally recognised in the UK and have a permanent home in England and Wales. The three main steps to getting divorced are:

  • Filing a Divorce Petition – You have to apply to the Court for permission to Divorce. You have to show the Court the reasons your relationship has permanently broken down (i.e. adultery, unreasonable behaviour, 2 years’ separation) (please see our website for further information on the grounds for divorce);
  • Apply for Decree Nisi – The Court will consider the contents of your Petition and decide whether you are entitled to a Divorce;
  • Apply for Decree Absolute – this legally ends your marriage. You have to wait 6 weeks from Decree Nisi before you can apply for Decree Absolute.
How much will it cost?

The Court fee to issue a Divorce Petition is currently £550. You may be exempt from paying the Court fee if you are of low income or in receipt of benefits. When you send your Divorce Petition to the Court you can apply for exemption from paying the fee. The Court will assess your income. You will need to send the Court up to date evidence of your income, i.e wage slips or your benefit entitlement letter.

Please refer to our website for our fixed fees for representing clients in respect of their Divorce.

How long will it take?

The average straight forward divorce can take four to eight months, provided that both parties deal with the Court paperwork promptly.

We are already separated – can I use adultery?

Adultery does not have to be the cause of the breakdown of the marriage. If you are separated and one party has a sexual relationship with a member of the opposite sex, this is adultery and can be used as a reason for the breakdown of the marriage.

Does the cause of the breakdown of our relationship affect our financial settlement or the arrangements for the children?

Generally, no. Whatever the cause of the breakdown of your marriage, does not affect your ability as a parent or your financial needs.

Civil Partnership – We are separating – what can we do?

Dissolving a civil partnership is the same as obtaining a Divorce except that adultery relates to heterosexual couples only and so adultery cannot be cited as the reason for dissolving a civil partnership, although being unfaithful would instead be unreasonable behaviour.

Children

“Custody” and “Access”

The Children Act 1989 changed the arrangements relating to custody, care and control and access, as they used to be called, introducing new arrangements, namely Residence, Parental Responsibility and Contact.

The Children Act has now been changed by the Children and Families Act 2014 which introduces the new Child Arrangements Order. This is an Order determining where the child will live and with whom the child will have contact.

What happens if we cannot agree who our child/children should live with?

When it comes to arrangements for your children, reaching an agreement is best for all involved. The Court will only make a formal Child Arrangements Order if there is a dispute – otherwise no Order will be made. There is a presumption that the Court should not intervene unless it is in the best interests of the child. The Court’s paramount consideration is the welfare of the child.

The Court will also have regard to:

  • the ascertainable wishes and feeling of the child concerned (considered in the light of the child’s age and understanding);
  • the child’s physical, emotional and educational needs;
  • the likely effect on the child of any change in his/her circumstances;
  • the child’s age, sex, background, and any other characteristic which the court considers relevant;
  • any harm which the child has suffered or is at risk of suffering;
  • how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  • the range of powers available to the court under the Children Act in the proceedings in question.
What is Parental Responsibility?

Parental Responsibility encompasses all the rights, duties and responsibilities a parent has towards their child. In simplistic language this means that any person with Parental Responsibility has a duty and responsibility to take part in the major decisions affecting their children’s life, such as naming the child and agreeing to any change of name, looking after the child’s property, agreeing to child’s medical treatment and choosing and providing for the child’s education. If you have Parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them – but the other parent still needs to keep you updated about their well-being and progress.

How do you get Parental Responsibility?

Parental responsibility is shared jointly between all married parents, even after divorce, so long as the child is under 18. Unmarried fathers can acquire parental responsibility either by agreement with the mother of the children or by Order of the Court, and now, if the father’s name is on the birth certificate of the children.

Finances

Do we need to deal with our matrimonial finances when we get divorced?

No, but it is sensible to do so. If you reach an agreement about the division of your assets, this can be approved by the Court as part of the Divorce Proceedings and made into a “Financial Order” to make the agreement binding. No agreement can be considered final, unless it is approved by the Court.
If you do not deal with the matrimonial finances, either of you could have potential claims against the other in the future, even after divorce, including claims against the other’s estate after you die.

The Court takes various matters into account, giving first consideration to the welfare of any children of the family under the age of 18. What is also relevant is the parties’ income and earning capacity, as well as the ages of the parties, the standard of living enjoyed by the family prior to marriage breakdown and any physical or mental disability of each spouse.

Unmarried Couples

I don’t own the house – am I entitled to anything?

Contrary to popular belief “common law” husband and wife status does not exist in law. Cohabiting couples do not have the same rights as married couples.There is very little protection for the weaker party and cohabiting couples find themselves in real difficulty when they separate. Despite the arrangements in place throughout the relationship, one party could end up with nothing. Cohabiting couples have no right to maintenance or a share of the assets, including property and inheritance.

Where cohabiting couples jointly own their home, it is automatically divided 50:50 (unless a deed of trust was entered into at the time of purchase clearly setting out each party’s share). If one wishes to challenge the presumption of the 50:50 split in Court it will be costly and there is no guarantee they would win. If your name is not on the title deeds, you do not own the property. The only protection available would be a Cohabitation Agreement to regulate the parties’ property rights and arrangements for mutual financial support.

What is a cohabitation agreement?

A Cohabitation Agreement regulates the parties’ property rights and arrangements for mutual financial support.

A Cohabitation Agreement would deal with the following:

  • Who owns what and in what proportion;
  • How assets will be divided on separation;
  • The division of home contents and personal belongings;
  • What to do with any savings;
  • How the children will be supported;
  • How to deal with joint debts/accounts;
  • How the day to day finances will be managed, i.e. bills and mortgage payments
Is it binding?

Whilst it is not possible to guarantee the Court will abide by any agreement, if such an agreement is properly drafted and involves independent legal advice, it is likely to be agreed by the Court.

What happens to the children when we separate?

This would be the same as if you were married (see above). If you are unable to reach an agreement as to the arrangements, a Court Application may be your only option.

Mediation

What is Mediation?

Mediation is a forum whereby you and your ex partner/spouse attend with a trained independent mediator with a view to resolving any outstanding disputes in relation to the arrangements for your children or matrimonial finances. The Mediator would be there to listen to both parties wishes and views and give you assistance as opposed to advice. They would seek to help you reach an agreement.

If an agreement were to be reached at mediation, then it would not be legally binding upon either of you. You would both be entitled to seek your own independent legal advice thereafter.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Can I get Legal Aid?

May 2016

Legal Aid is a payment from public funds available to help meet the cost of legal advice and representation in Court.

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
 to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence. You would need to show that you cannot afford to pay for legal advice and representation. The Legal Aid Agency takes into account capital assets, all sources of income, housing costs, dependent children and child care costs. However, representation in care proceedings is non-means tested.

Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO)

In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Following LASPO, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. (Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation).

Legal Aid is now available for the following cases:-

  • Family law cases involving domestic violence or when the child is at risk of abuse from partner;
  • Forced marriage;
  • Child abduction;
  • Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
  • Mental Health and Asylum cases;
  • Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse. The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).

“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

Changes to Evidence Requirements

Last month (April 2016) the evidence requirements for domestic violence changed. The Court of Appeal upheld a challenge to the Government’s changes to legal aid for victims of domestic violence, namely that the evidence required had to be no more than 2 years old. The Ministry of Justice have now announced that they are more than doubling the original time limit for evidence, to 5 years. This will assist a much larger proportion of those victims of domestic violence requiring legal aid. The ministry is also introducing a provision for the assessment of evidence concerning financial abuse.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Wills, Divorce and Separation

May 2016

Divorce and Separation can be extremely distressing and can totally disrupt the assumptions upon which you have made your plans for the future. Your family circumstances, your home and your assets are all going to be affected and this in turn may affect the provisions in any Will you have made. If you are in this unhappy situation it is therefore important that you review your future planning by making a new Will.

However because of the nature of divorce, the fact that divorces sometimes can take a very long time to go through and the fact that the final Financial and Property Orders can substantially alter the balance of ownership of property and assets between the divorcing parties it is wise to make a holding Will at the beginning of divorce proceedings and then a more permanent Will once the divorce and its financial and property issues has finished.

In this connection it is important to bear in mind that until Decree Absolute (the final stage in a divorce) any spouse mentioned in a pre-existing Will still inherits under that Will or is likely to take the whole or the major part of the estate under the Intestacy rules if no Will has been made which is not what most divorcing people would want.

The only way to guard against this therefore is to make a holding Will at the inception of divorce proceedings and to then make a further more permanent Will once the final Financial and Property Orders have been made by the Divorce Court. The position with regard to separation from a spouse without divorce can be equally unsatisfactory.  Separation will have absolutely no effect on a pre-existing Will and the other spouse will still inherit under the Will even though the separation may have been of many years standing. Even if no Will has been made the surviving spouse will still inherit under the Intestacy rules. However even if the divorcing spouse safeguards the position by making a Will that spouse’s wishes can still be thwarted if that spouse has not altered the way in which the home or other real property is owned.

Houses and other real property are owned either as ‘Joint Tenants’ or as ‘Tenants in Common’.  If owned as ‘Joint Tenants’ this means that notwithstanding your Will it will pass automatically to the surviving spouse. The only way to address this is for the ‘Joint Tenancy’ to be turned into a ‘Tenancy in Common’ which will then mean that it can be left in accordance with the terms of the Will. Finally many divorcing couples go on to marry again or enter into a new civil partnership.

If they do, all of the safeguards made by making a Will during the divorce proceedings could be undone because Wills are revoked by marriage or civil partnerships (unless made in contemplation of same) and in these circumstances it would be necessary to make a new Will. A new Will would also be advisable if, couples commence a new relationship outside of remarriage or new civil partnership because such a partner will not inherit form a deceased partner, no matter how many years they have been together  other than through a Will.

John Mullaney
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Do it yourself

Statistics from the family court (31st March 2016) show that the number of cases with unrepresented parties (Litigants in person) is continuing to rise. Ministry of Justice figures covering the period October to December 2015 show that from the time of its introduction, in April 2013 of the Legal Aid Sentencing Punishment of Offenders Act (LASPO), which effectively removed Legal Aid from many family cases, there has been a significant increase in the number of cases where one or neither party is represented by a lawyer in proceedings. The number of private law cases (between parents and not involving the local authority) without legal representation currently stands at 36%.

The Justice Select Committee has concluded that the introduction of LASPO has led to many vulnerable people no longer accessing justice. A Citizens Advice Bureau publication found that 9 and 10 people who had no choice but to represent themselves as a result of Government changes to Legal Aid claimed that representing themselves adversely affected at least one other aspect of their life. The number of private law family cases started in October to December 2015 was up 8% from the equivalent quarter in 2014.

From April 2013, Legal Aid is only available for private family law cases (such as contact or divorce) if there is evidence of domestic violence or child abuse and child abduction cases (in limited circumstances). Legal Aid remains available for public family law cases (such as adoption).

In financial remedy proceedings the court can make a financial remedy order, formally known as an ancillary relief order. These orders include dealing with the arrangements for the sale and transfer of property, and other financial matters including pensions. The Ministry of Justice figures draw a distinction between an application for a financial remedy (made during the course of divorce proceedings) and orders for financial provision which are not dependent upon divorce proceedings and may be made for children. In October to December 2015, financial remedy disposals were down 10% on the equivalent quarter in 2014, continuing the recent downward trend. This is indicative of the public’s inability to access the court and simply making do.

Standing Alone; going to the family court without a lawyer

The Citizen Advice Bureau publication entitled “Standing Along; going to the family court without a lawyer,” found that 9 in 10 people were forced to represent themselves in court. The majority found self-representation difficult, time consuming and emotionally draining. It also means litigants in person achieve worse outcomes compared with their represented counterparts.

Some of the key recommendations from this report include:

  • Self-represented parties (litigants in person) need access to reliable advice and information to determine the validity of their case; investigate alternatives to court; progress their case through difference stages; represent themselves effectively and deal with outcomes.
  • Support for vulnerable people should be more easily accessed. Victims of domestic abuse should be able to access the legal advice and representation to which they are entitled.

In short, “do it yourself” is, for the majority, a negative experience which impacts on other aspects of their lives. It is time consuming and emotionally draining. It is also, for the majority, a bad experience for court users and results in less favourable outcomes.

The Law Society of England and Wales has also warned that civil legal aid cuts will result in an increase in cost to the tax payer, because a failure to get early expert legal advice can result in people’s problems escalating dramatically when they could have been nipped in the bud. Further, there is an imbalance of power and knowledge when legal advice is solely available to wealthy individuals, corporations and state bodies, and not to ordinary people.

The government has turned to mediation to resolve its problems. However, the latest statistics from the Ministry of Justice (31st March 2016) show that the number of Mediation Information and Assessment Meetings (compulsory now for family cases) continues to fall. The number of MIAMS post the introduction of LASPO in the period October to December 2015 was down 16% on a year ago. The conclusion is that MIAMS remain at around half of pre-LASPO levels.

Conclusion

Since its introduction, LASPO has had a negative impact on the justice system by the government’s own figures. Ministry of Justice figures (31st March 2016) show a marked increase in litigants in person. The CAB report demonstrates the negative impact that it has upon those seeking to access justice. Combined with a government push for mediation and the public’s reluctance to engage with mediation demonstrated by the number of MIAMS dropping dramatically.

In short, “do it yourself” is the only option for many and the majority will be negatively impacted by undertaking their own cases achieving a less favourable result. The Law Society warns of consequences for society generally and specifically for the more vulnerable and less wealthy in society who cannot access the courts and who are denied access to the courts by the introduction of LASPO. The Government promised a review of LASPO within three years of its introduction. In 2016 we have no evidence of any such review.

The legal profession has attempted to respond to these changes with the introduction of “unbundling” services and flexible means of payment. It is not unusual to be able to pay your solicitor on a month by month basis or for your solicitor to act in the background on a piece meal basis. A further attempt to meet this need has been the introduction of “fixed fees” for certain types of case. However, the attempts to seek to alleviate the problems introduced by LASPO have been further frustrated by the Governments increase in court fees. In April 2061 divorce costs have risen from £410 for the issue of a divorce petition to £550. This, despite the Court Service’s assertion that the actual cost of dealing with a divorce petition is in the region of £270.

It seems that the Government is determined to restrict access to the courts and, in the absence of any review of the effects of LASPO, demonstrate its contempt for those members of society whose access to justice and the courts is being denied.

Paul Summerbell
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Eastbourne divorce lawyer gives advice to X Factor judge Cheryl

article from Eastbourne Herald, Wednesday 27 January 2016

A divorce lawyer from Eastbourne has given X Factor judge Cheryl Fernandez-Versini some advice on her rumoured split – through the columns of a celebrity gossip magazine.

The former Girls Aloud star has reportedly “filed for divorce” from French husband Jean-Bernard citing irreconcilable differences and there has also been a rumour she may have to wait until 2017 to end her brief marriage because of where they tied the knot.

But Eastbourne family lawyer Paul Summerbell is this week quoted in celebrity online magazine OK saying the star is eligible to divorce in the UK regardless of marrying Jean-Bernard on the Caribbean island of Mustique. Speaking to OK! Online, Paul Summerbell, a leading family lawyer from Warren’s Law and Advocacy in Eastbourne’s Gildredge Road, said it doesn’t matter where the singer was married.

“They can get divorced in the UK regardless of where they were married,” said Paul. “It doesn’t matter.” He said Cheryl is eligible to file for divorce in the UK, as she’s a “habitual resident” of the country.

“She can present her position to the UK courts, if she’s got a domicile here or if she’s been habitually resident in the United Kingdom,” the lawyer said.

It comes after reports claimed that the singer would have to wait until July 2017 to separate from her husband because of laws on the island where they tied the knot. The report claimed that strict laws on the island meant amicable divorces were very unlikely to be considered. According to reports, the singer will be keeping her current surname of Fernandez-Versini following the split.

Read the full article here

Cheryl Fernandez-Versini ‘will not’ have to wait until 2017 to file for divorce

article from OK Magazine, Friday 22 Jan 2016

The X Factor judge is eligible to divorce in the UK regardless of marrying Jean-Bernard on Caribbean island

CHERYL Fernandez-Versini can get “divorced” in the UK, despite reports claiming she’ll have to wait until 2017. The X Factor judge, who married husband Jean-Bernard on the Caribbean island Mustique, is eligible to file for divorce in the UK.

Speaking exclusively to OK! Online, Paul Summerbell, a leading family lawyer from Warren’s Law and Advocacy, says it doesn’t matter where the singer was married. “They can get divorced in the UK regardless of where they were married. It doesn’t matter,” Paul said.

He adds that Cheryl is eligible to file for divorce in the UK, as she’s a “habitual resident” of the country. “She can present her position to the UK courts, if she’s got a domicile here or if she’s been habitually resident in the United Kingdom,” the lawyer says.

It comes after reports claimed that the singer would have to wait until July 2017 to separate from her husband because of laws on the island where they tied the knot. The report claimed that strict laws on the island meant amicable divorces were very unlikely to be considered.

The Fight For This Love singer reportedly “filed for divorce” from French husband Jean-Bernard citing irreconcilable differences. According to reports, the singer will be keeping her current surname of “Fernandez-Versini” following the split.

Read the full article here

How do I get a divorce?

A divorce or dissolution of a civil partnership is a worrying and difficult time that can be made much easier with professional advice. It is true to say that “hiring a professional may be expensive but wait until you hire an amateur”. It is important that you get advice from the beginning so that you can have trust and confidence about the things that matter to you most, which may include your finances, your home or your children.

Grounds for divorce/dissolution

There is only one ground for divorce/dissolution and that is that the marriage/civil partnership has broken down irretrievably. The person who starts the divorce proceedings is known as the “Petitioner” and their spouse/civil partner is called the “Respondent”. In order to establish to the Court’s satisfaction that the marriage has irretrievably broken down, it is necessary to establish one of five facts:

  • The Respondent has committed adultery.
  • The Respondent has behaved in an unreasonable manner.
  • The Respondent has deserted the Petitioner (for at least two years immediately before the start of the divorce).
  • The parties have lived apart for a continuous period of at least two years and both agree to the divorce proceeding.
  • That you have lived apart for a continuous period of at least five years.

Dissolving a civil partnership is the same as obtaining a divorce except that adultery relates to heterosexual couples only and so adultery cannot be cited as the reason for dissolving a civil partnership, although being unfaithful would instead be unreasonable behaviour.

Divorce/Dissolution Procedure

The divorce process is begun by the completion of the Petition. The contents of the Petition are as individual as the particular circumstances surrounding the divorce/dissolution. The Petition is sent to the Court together with the appropriate Court fee. The Petition is then sent to the Respondent together with the Acknowledgement of Service Form. The Respondent completes the Acknowledgement of Service Form and returns it to the Court. If the Respondent does not return the form, it may eventually be necessary to arrange for another set of documents to be served on the Respondent personally. Once the Acknowledgement of Service Form is filed, or it can be proved it has been received by the Respondent, an application for the conditional divorce order is made, the Decree Nisi/Conditional Order. At this point, the Court examines the papers in the case and decides whether the Petitioner is entitled to the divorce/dissolution. A date will then be fixed by the Court for the pronouncement of the Decree Nisi/Conditional Order which is usually a week to a month or so after the Court has looked at the paperwork. This is only the first Divorce Order and those involved remain married until the Final Order. The Final Order is the Decree Absolute/Final Dissolution Order. The Petitioner can apply for the Decree Absolute/Final Dissolution Order six weeks after the date of the pronouncement of the Decree Nisi/Conditional Order.

In all, the divorce/dissolution can take as little as 4 – 6 months from start to finish.

Children and Divorce

The law clearly states that the welfare of the children will be the Court’s “paramount concern”. They will be placed first in importance when reaching any decision. It is important that you have trust and confidence in your Solicitor and obtain advice on your particular circumstances in order for proper arrangements to be made, which will provide for the further arrangements for the children which would include holidays and schools.

Finances

When considering finances, the Court takes various matters into account when considering what Order should be made. The Court considers all the circumstances of the case, gives first consideration to the welfare of any children of the family under the age of 18 and, in particular, the Court has regard to a number of specific factors such as earning capacity, financial need, standard of living, ages of the parties, any physical or mental disability, the contributions each person to the marriage has made and several other factors.

The aim of the Court is to achieve fairness. The Court will consider an equal division of assets built up during the marriage however, often a key and decisive factor is the reasonable needs (especially housing needs) of you and your spouse/civil partner, which often overrides any possibility of an equal division of assets.

Again, it is important that you have trust and confidence in the advice you are given and it is important that any advice is tailored to your particular circumstances, which are often unique.

Should you need confidential advice, please do not hesitate to contact one of our family team who is able to offer a free initial consultation to assist you in making any final decision or arrangements.

Paul Summerbell
Warren’s Law and Advocacy

Disclaimer: Whilst we do all that is possible in terms of its accuracy, this blog contains general information only. Nothing in these papers constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Spousal Maintenance – Where are we now?

by Paul Summerbell, 

6th March 2015

Much has been said about a recent decision of Lord Justice Pitchford which was reported in the Telegraph newspaper under the heading of “Divorced wife told to get a job and stop living off her ex-husband”. The article in the Telegraph newspaper went on to comment that this signalled an end to leisurely living on behalf of ex-partners. It is said that Lord Justice Pitchford commented that divorcees with children aged over 7 should work.

Many commentators have referred to this case and some have even suggested that there was some misplaced excitement about this “landmark case”. It is true to say that this case is not a judgment rather it was a refusal for permission to appeal. For my part, I agree with this assertion. However, the comments made in this case, when combined with a decision in SS v NS (2014) in respect of spousal maintenance, lead to the general conclusion that there has been a change of attitude towards spousal maintenance. It could be argued that spousal maintenance should now only be applied to alleviate significant hardship with reference to need, except in exceptional circumstances with a view to the transition to financial independence with consideration (often overlooked) of the ability of the paying party to meet such payments. In so doing, a degree of hardship is acceptable in achieving independence with the termination of such payments.

In short, there are principles to be applied to any application for spousal maintenance and the decision in this case shows the following principles should be applied in any application for spousal maintenance.

1. Spousal maintenance is properly awarded where the evidence shows that choices made during the marriage have generated hard future needs on the part of the person claiming spousal maintenance (a person staying at home to look after children may lose a career).
2. An award of spousal maintenance should only be made by reference to the needs of the person claiming spousal maintenance (perhaps to retrain).
3. Any award of spousal maintenance should generally be aimed at alleviating hardship.
4. The Court must consider a termination of spousal maintenance with a transition to financial independence as soon as possible (perhaps maintenance for a fixed period only).
5. The choice between extendable term and a joint lives order of spousal maintenance is finally balanced but the Court should favour an extendable term (definitive period of time).
6. The standard of living enjoyed during the marriage is not decisive and should be weighed carefully against the objective of financial independence.
7. It is the Court’s task to examine the global request for a spousal maintenance application and ask itself if it represents a fair proportion of the paying party’s available income (ability to pay).
8. Where the person making any maintenance payments has their income made up of base salary and a discretionary bonus, any claim for spousal maintenance should also be divided between a percentage of basic salary and discretionary bonus.
9. In any application for spousal maintenance which involves a variation of the original Order (going back to Court), the Court should look at the original Order and the assumptions underpinning that Order especially where it was said in the original Order that it was difficult to predict the time of eventual financial independence.
10. If the choices are between an extendable term spousal maintenance order and a non-extendable term (fixed period) is finally balanced, the decision should normally be in favour of the financially weaker party.

Conclusion

It is clear from the decision in this case that there has been a general change of attitude and some may say a hardening of attitude towards spousal maintenance. This case demonstrates that spousal maintenance should now only be applied to alleviate significant hardship with specific reference to the need of the person making the application except in exceptional circumstances with a view to obtaining a transition to financial independence of the person applying for spousal maintenance combined with consideration being given to the ability of the person making the spousal maintenance payments to meet those payments. In so doing, the Court accepts that there is a degree of hardship that will be suffered in achieving financial independence with a view to termination of any spousal maintenance payment at a time when it is just and reasonable to do so.

Paul Summerbell
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Protecting Your Inheritance in Divorce

by Paul Summerbell, 11th December 2014

Protecting your Inheritance in Divorce

The Court can make a variety of Income Based Orders and Property Adjustment Orders which redistribute the parties’ financial assets on divorce, which can be combined, if necessary, to achieve what the Court considers to be a fair settlement between the parties.

In order to achieve fairness, the Court takes various matters into account when considering what Order should be made. The Court will consider all the circumstances of each case and give first consideration to the welfare of any children of the family under the age of 18 and, in particular, the Court has regard to the following factors:

a. The income and earning capacity, property and other financial resources of each spouse.
b. The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future.
c. The standard of living enjoyed by the family before the breakdown of the marriage.
d. The ages of each spouse and the duration of the marriage.
e. Any physical or mental disability of each spouse.
f. The contributions which each spouse has made or is likely to make to the family in the foreseeable future.
g. The conduct of each spouse, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard.
h. The value to each spouse, of a benefit which one spouse, because of the divorce, will lose the chance of acquiring (most usually pension provision).

In short, everything which belongs to each spouse will form part of the “pot” when the Court considers what decision it must make when dividing assets. In this way, any potential assets, including inherited assets can be divided between the parties on divorce. The purpose is to achieve fairness. However, when will it be appropriate to depart from equal sharing in order to achieve a fair outcome? In other words, how to ring fence your inheritance and persuade the Court to depart from the principle of equal division. It is possible to persuade the Court that an inherited asset was brought into the marriage or accumulated by the sole efforts of one person during the marriage. If it were not for that particular person, the inheritance would not have been received. The Courts have made it clear that none of the parties’ assets will be ring fenced or quarantined to make them unavailable for distribution. However, the source of finance is a relevant factor for the Court to consider when making its assessment and it may justify a departure from equal division. The Court needs to consider carefully the nature of the property and particularly whether it is matrimonial or non-matrimonial property.

If property is inherited and used as a family home, it will be difficult to argue that it is not a matrimonial asset. The same is true if finances are inherited and that finance is used for the benefit of the family. In circumstances where it is not used for the benefit of the family and is not used as a matrimonial asset, there will be more possibility of arguing that the inherited assets should be ring fenced.

Conclusion

In circumstances where you bring wealth, whether it is inherited or earned into the marriage or you are likely to inherit in the future and you wish to protect that inheritance, you should consider entering a Pre-Marital agreement (Prenuptial Agreement) or a Post Marital Agreement to protect those assets or inheritance. This is particularly true of the more mature person who intends to marry or where the prospects of inheritance become more realistic as time passes.

Four main principles come out of recently decided cases and these are:

1. Inherited wealth will form part of the property and financial resources that are to be taken into account when couples divorce.
2. The existence of an inherited asset can justify a departure from equality in situations where need can be met without drawing on the inherited asset.
3. The source of the wealth is relevant as well as the nature of the inheritance. The extent to which the inheritance is kept separate from the other assets owned by the parties or had recourse to by the parties are all relevant factors when considering what the Court should do with an inherited asset.
4. Need is the fundamental principle that will be applied. An inherited asset can be drawn upon to meet the needs of a party where there are no other assets available to do so but where those needs can be met without drawing on the inherited asset, it is possible to argue that the inherited asset should be ring fenced.

For further assistance on protecting your assets, whether it is wealth brought into the marriage or an inheritance received, please contact our family team.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Guide to Financial Orders After Divorce

by Paul Summerbell, 27th Nov 2014

A BRIEF PROCEDURAL GUIDE TO FINANCIAL ORDERS AFTER DIVORCE

Stage 1: Preliminary

The Court’s powers to distribute assets following divorce is sometimes referred to as “ancillary relief” or an “Application for a Financial Order”. It is common for lawyers to refer to the proceedings as ancillary relief when referring to all orders regarding matrimonial finances and property that a Court can make following divorce, judicial separation or nullity proceedings.

The Court has wide powers to make Orders for Periodical Payments (sometimes referred to as maintenance), Secure Periodical Payments, Lump Sum Orders, Property Adjustment Orders or Orders for Sale of Property and in addition, there are powers to deal with pensions.

The procedure for obtaining such Orders is Court controlled. The Court imposes a timetable within which it expects certain events or steps to be taken. The participants will be required to personally attend Court hearings, unless otherwise ordered by the Court. There may well be cost consequences for anyone who disobeys any of the Court’s directions or Orders.

Prior to making any Application for a Financial Order, the Court requires any potential Applicant for a Financial Order, to consider, with a mediator, whether the dispute may be capable of being resolved through mediation before commencing proceedings. The Court will also expect to see attempts at settlement, either by correspondence or otherwise, before an Application is made. This is sometimes referred to as the pre-application protocol. The protocol states that pre-application disclosure should be encouraged but only where both parties agree to it and disclosure is not likely to be an overly lengthy or expensive issue. In other words, it must be proportionate. The parties involved would be expected to reveal or disclose their financial position to each other and this could be done by completing a Court Form referred to as the “Financial Statement” (Form E).

An Application for a Financial Order is commenced by filing with the Court an Application in Form A. A Court fee is payable of £255.00 at the date of writing this article. The Court will subsequently issue the Application within a few days of receipt and send to each party a sealed copy of the Form A (endorsed with the Court stamp), accompanied by a Notice from the Court of the First Appointment date (Form C) and a Notice of Response to the First Appointment (Form G). The Notice of First Appointment contains the following information:

1. The date and time of the First Appointment.
2. A timetable for the case up to the initial hearing date (the First Appointment). This timetable contains specific dates on which the parties must take certain steps which include exchanging documents with each other as follows:

a. A Statement of Information about their financial circumstances (Form E) must be exchanged between the parties, usually no later than 35 days before the First Appointment.
b. A concise statement of issues between the parties.
c. Chronology.

d. Exchange Questionnaires setting out the further information and documents each party requires from the other or a statement that no information is required.
e. A completed Form G (see above) indicating whether the party is in a position to treat the First Appointment as a Financial Dispute Resolution Hearing.
f. An estimate of the legal costs incurred by each party filed with the Court and exchanged with each other (Form H).

Stage 2: The First Appointment

The Court will fix a date for the First Appointment when the Applicant for a Financial Order files their Form A (see above). A short timetable is set by the Court to monitor the Application and its progress from an early stage with a view to limiting the issues and saving costs. Both parties and legal representatives must attend the First Appointment, unless the Court directs otherwise. At this appointment, the District Judge will decide how the Application for a Financial Order will proceed and give further directions as to its progress which may include:

a. The extent to which Questionnaires need to be answered.
b. Further documents to be produced.
c. Valuations of assets such as the former matrimonial home or pensions.
d. Production of any other evidence such as schedule of assets or in some cases, further statements.

Particular care needs to be taken with regard to the following:

a. Valuation of the former matrimonial home. The Court will seek to find an agreed valuation between the parties.
b. Valuation of any family business which may require expert or accountant’s valuations.
c. Whether there are any new partners involved. For example, one party may claim that the other party has a new partner who is working, and who is therefore able to contribute to the outgoings, thus freeing more cash for the former family or reducing the new family’s needs.
d. The valuation of pensions. This usually involves the completion of a Pension Enquiry Form (Form P) to be forwarded to the Pension Company to obtain a valuation.

At this point, the District Judge dealing with the case has two choices to make.

The Judge can give a date for the next Court hearing which is the Financial Dispute Resolution Hearing. This usually takes place where further investigation is required into the assets of each party. Alternatively, the Judge may treat the First Appointment as a Financial Dispute Resolution Hearing where the parties are able to proceed immediately and full disclosure of the financial situation has been given.

Experience tells us that few First Appointments are treated as Financial Dispute Resolution Hearings primarily because there are usually outstanding issues regarding the valuation of each party’s assets, particularly the former matrimonial home. Additionally, Replies to each party’s respective Questionnaires and request for documentation are usually required and, finally, there is usually insufficient Court time allocated at the First Directions Appointment to convert that appointment into a Financial Dispute Resolution Hearing.

Between the First Directions Appointment and the Financial Dispute Resolution Hearing, both parties should comply with all directions made by the District Judge (the Court) at the First Appointment before the FDR. Neither party can insist on any further disclosure without the permission of the Court and the person in the position of the Applicant must inform the Court of all offers or proposals and responses made to settle the matter at least 7 days before the Financial Dispute Resolution Hearing. The Court will expect the persons involved to make offers and proposals and to give such proposals proper consideration and not to attempt to exclude their consideration from the Financial Dispute Resolution Hearing.

Prior to the Financial Dispute Resolution Hearing, both parties must produce a second written costs estimate (Form H).

Stage 3: Financial Dispute Resolution Hearing (FDRH)

The aim of the FDR is to produce a settlement. All parties must personally attend and the District Judge will attempt to help the parties towards settlement by exploring common ground. All discussions at the FDR are completely privileged and any documents referring to prior offers or proposals to settle the matter must be returned to the parties who filed them at the conclusion of the hearing and not kept on the Court file.

If a settlement is reached at the FDR, the Judge may make a Consent Order reflecting that agreement. The District Judge also has authority to adjourn the FDR to allow both parties to consider their position. Where no agreement is reached, the Judge must make further directions including, where appropriate, setting a hearing date for trial. In large money cases, it may be possible that the Judge will order statements to be prepared and mutually exchanged between the parties (often referred to as Section 25 statements). Such statements may cover issues such as contributions by the parties or the source of any current assets and standard of living etc.

The District Judge hearing the FDR appointment will have no further involvement in the case other than to conduct a further FDR appointment or to make a Consent Order if agreement is reached.

The Court would expect anyone attending the FDR appointment to use their best endeavours to reach agreement on the matters in issue between them.

The parties are free to continue to negotiate between the FDR and the final hearing or trial.

Stage 4: Final Hearing or Trial

This hearing is usually before a District Judge in Chambers and in private. These hearings only occur in a minority of cases which we would estimate at 10 – 15%.

Final hearings or trials of this nature are informal. Trial bundles must be filed with the Court prior to the final hearing as part of the directions given at the FDR and the Judge will have read these papers prior to the commencement of the final hearing and/or trial.

The format of the final hearing and/or trial can be as formal or informal as the District Judge wishes. Having read the papers, the District Judge may open by letting the parties know what he has in mind and inviting them to consider and negotiate around that indication for a while. Alternatively, if the Judge wishes to proceed on a more formal footing, he may invite the Applicant’s Solicitor (or Barrister) to open with some remarks. The Applicant’s Solicitor and/or Barrister will outline the case and then call his evidence. This will consist of witness evidence. Generally speaking, any statements that have been filed with the Court will stand as the evidence in chief of the witnesses, although the witness may amplify on that statement. Witnesses are then cross examined by the Respondent’s Solicitors. The Respondent will then present their own case and once all evidence has been given, the District Judge will give an Order (or may reserve his judgment until a later date).

Experience tells us that a minimum of two days is usually required for a final hearing. The general rule is that the Court will not make a Costs Order in financial proceedings unless such an Order is justified by the litigation conduct of one of the parties. Costs will normally be treated as a liability of the relevant party and be taken into account when making the substantive Order. In other words, each party will pay their own legal costs. Any conduct issues (litigation conduct) usually refer to a failure to comply with Court Rules, any Court Order that has been given, whether it was reasonable for a party to raise, pursue or contest a particular issue, combined with the manner in which the party has pursued or responded to the Application.

Warren’s Law & Advocacy has expert Solicitors who are very familiar with this process to achieve the best result possible for you, should you be unfortunate enough to find yourself involved in such proceedings. For a free initial no obligation 30 minute diagnostic interview, please telephone Warren’s Family Law on 01323 430430 or email us at enquiries@warrensfamilylaw.co.uk

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Are You Entitled to Legal Aid and What is Mediation ?

by Emma Macdonald 16th October 2014

Legal Aid
In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence.

Following LASPO however, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation.

Legal Aid is available for the following cases:-
– Family law cases involving domestic violence or when the child is at risk of abuse from partner;
– Forced marriage;
– Child abduction;
– Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
– Mental Health and Asylum cases;
– Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse.

The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).
“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

As legal aid availability is now extremely limited, what are the alternatives available?

– Family loans;
– Credit cards;
– Commercial loans/Litigation loans (Litigation financing is defined as the process in which a third-party company provides advanced capital to cover litigation costs in exchange for a return on any judgment or settlement);
– Paying privately for advice and assistance on an “as and when” basis, which is one step away from being a litigant in person;
– Legal Services Order in divorce/financial proceedings

LASPO introduced further Court powers, which allows the Court to grant a “Legal Services Order”, which is an Order for one party to make a payment to fund the other spouse’s legal costs. However, before the Court would make such an Order the Court must be satisfied that the person ordered to pay has sufficient money to pay and that you could not obtain any other form of financial support, i.e. by way of loan

What is Mediation ? – MIAMs

Regardless of funding, before an application can be made to the Court, it is now a requirement to attend a mediation information and assessment meeting (MIAM). The idea being to see if mediation can resolve your issues without the need to go to Court at all.

The Court wants to know whether mediation or any other non-court dispute resolution has been attempted before an application is issued. This means that before you go to Court you must at least have received information about mediation and how it works.

You will be required to provide evidence from the mediator that a MIAM has taken place, unless one of the exemption rules applies.

You are exempt from attending a MIAM in the following situations:-

– If there is evidence of domestic violence;
– If there are child protection concerns – the child would be the subject of the application and the subject of enquiries by the Local Authority;
– Urgency – if there is a risk to your life, liberty or physical safety or your family or any delay caused by attending a MIAM would cause risk of harm to a child, or there is a risk of unlawful removal of a child from the UK or retention of a child outside England and Wales, or you would suffer unreasonable hardship;
– Previous MIAM attendance – if you have attended mediation (or another type of non-court dispute resolution) in the last four months leading up to making your application relating to the same dispute;
– There is evidence that you are bankrupt and the Court application would be relating to finances;
– If you do not have contact details for your opponent;
– If the application is being made without notice to the other party;
– If either party suffers from a disability that would prevent attendance at a MIAM unless appropriate facilities can be provided by the mediator and all mediators within 15 miles of their home have been contacted;
– If you or the other party are in prison, or are subject to bail conditions not to contact the other person;
– If you or the other party are subject to a licence with prohibited contact requirement in relation to the other person;
– If neither you nor the other party are habitually resident in England and Wales;
– If a child is one of the prospective applicants

At your initial appointment, the Mediator will discuss with you whether you are eligible for legal aid for the mediation process.

Conclusion

Legal Aid is only now available in very limited circumstances unless there is written evidence of domestic violence.

The alternative to legal aid is to privately finance your case or do it yourself.

Unless you are exempt from the rules about Mediation, before you can go to Court you must at least attend a MIAMS meeting with a Mediator.

Contact our Family Team for further information.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Spousal Maintenance – how much and for how long?

by Paul Summerbell

There is a not so well kept secret in the legal profession. In most cases of spousal maintenance, no-one knows exactly how much spousal maintenance the Court is going to order or for how long. Case law provides no precedent for the duration of the Order and little assistance as to how much. Every case before the Court is decided on its own facts and the best any lawyer can offer is an experienced and educated guess.

As the title of this article suggests, there are two considerations. Firstly, how much? Secondly, for how long?
The reason why lawyers can only provide an educated guess is because much depends on the findings of fact by the Court. For example, how much does the particular person earn? Are they earning their full potential? How much can be paid out of a business without causing financial damage to the business? All of these are questions of fact and must be determined by the Court based on the evidence presented to the Court.

How Much?
In years gone by, the Courts would often turn to generalised principles such as the “reasonable requirements” of the person receiving maintenance or what used to be referred to as the “one third rule”. The law has developed beyond those principles. The lawyer can now draw from more recently decided cases in which the following principles can be derived:

1. The Court will consider how the other party’s needs should be met and these needs will be generously assessed by the Court.
2. The other party will be compensated for any disadvantage they have suffered as a result of the marriage and its subsequent breakdown.
3. In those fortunate cases where there is a surplus of income after needs and compensation have been met, the Court will consider whether there should be a sharing of the surplus.
4. In short, the Courts are interested in achieving “fairness” as the overall guideline.

What is fair in a particular case, will depend upon the facts of that case.

Subsequent decisions have indicated that “sharing” is not relevant to a decision concerning maintenance. It is true to say that the majority of cases will be concerned with “needs” as it is common place where assets are divided upon divorce, for finances to be a difficulty when both parties are seeking to live independently in circumstances where the existing finances were used to live together. It is a matter of common sense and the foundation of the old adage that “two can live as cheap as one” that the decision of the Court should boil down to “needs”. Therefore, the principle of “sharing” is only likely to be relevant in exceptional cases where large sums of money are involved.

The Courts have tried to reach a position where clarity can be achieved by the application of simple clear guidance. This has resulted in the indication, by the Courts, that maintenance should be decided by the principle of “need” alone. However, the concept of “need” is not a fixed idea and there is room for the exercise of discretion in the assessment of those “needs”. We can say with some certainty that in the majority of cases, the overriding principle to be applied is one of “needs”. It is in the assessment of those “needs” that opinions differ and will be dependent, as mentioned previously, on the findings of fact made by the Court, such as, the level of income, what is a particular persons earning capacity etc.

How these findings of fact are to be treated by the Court is not a straight forward question. For example, what does the Court do about income where it includes discretionary bonuses? If the Court decides to base an award of maintenance based on an average annual income level, this could put the person paying maintenance in some difficulty if the discretionary bonus payment is not received in a particular financial year. The Court could decide to award a percentage of any bonus, if received, but this would involve ongoing evidence of receipt by the person paying maintenance which, based on experience, can lead to further conflict.

A very contentious issue when dealing with maintenance is the thorny issue of co-habitation. Strictly speaking, the Courts take the view that cohabitation cannot be equated with marriage. This is a particularly unpalatable view from the paying party’s perspective when it is considered that when it comes to pre-marital co-habitation, the duration of the marriage includes cohabitation moving seamlessly into marriage. This in turn affects any financial remedy, on the basis that the longer the marriage, the more entitlement there is to finances. The law justifies this approach on the basis that the recipient has no legal entitlement to financial contribution or benefit, during the course of the relationship (cohabitation) or on the breakdown of co-habitation.

An understanding of these principles and the ability to set out the evidence in a clear manner for the Court is essential. Schedules of Income and Assets are required. Whilst no-one expects such schedules to be precise on the basis that they often involve some degree of assumption, it is, nevertheless, the case that such schedules must be based in reality and must be presented to the Court in a manner which emphasises the particular arguments to be presented on behalf of a particular party.

How Long?
It is the duty of the Court to consider a financial “clean break” between the parties, whenever someone makes an Application for a Financial Remedy. Therefore, the emphasis of a Court will be on making a capital adjustment and Lump Sum Orders as opposed to maintenance (periodical payments). However, this involves a balancing act, on the one hand of achieving a “clean break” and on the other, to allowing the parties to adjust to their lives apart, without undue hardship.

The Court must therefore consider the following factors:

1. Whether or not it is possible to achieve a clean break.
2. If a clean break cannot be achieved without undue hardship then the Court must consider what maintenance is to be paid.
3. The duration of any maintenance payment can only be for such term as in the opinion of the Court would be sufficient to enable the recipient to adjust without undue hardship to the ending of the financial dependence between the parties.

What is appropriate in each case will depend on all the circumstances of the case (findings of fact). The first consideration being the welfare of any minor child of the family.

The factors outlined above, require the Court to make “findings of fact”. Again, this will depend upon the particular facts of the case. It is essential that evidence is produced to the Court in a way that supports the arguments for each party. Maintenance can be ordered on a “joint lives” basis or on a fixed term with a prohibition on any extension of that term. The facts must be presented to the Court which either support the reasonable expectation that the recipient can and will become financially independent from the other party or, alternatively, presented in a way which suggests that this is not the case.

In short, how much maintenance is to be paid and for how long, is essentially a fact specific exercise and involves the Courts discretion in making those findings of fact. The preparation of Schedules of Income and Assets and the presentation of evidence to support each party’s contention in a clear manner is essential.

We therefore conclude with the reasoning that:

1. Each case will be decided on its own facts.
2. Maintenance is an area of law which involves an educated guess and good instinct.
3. Where capital and liquid assets can be divided to achieve a clean break which meets the needs of the parties, the Court is likely to order a clean break.
4. A balance needs to be achieved between needs on the one hand and achieving financial independence and self-sufficiency between the parties.
5. The ability of the paying party to meet the terms of any Order made by the Court cannot be ignored.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

So you think you don’t need a lawyer?

by Paul Summerbell

There is a legal obligation in proceedings for a Financial Order following divorce, for each person to give to the other, evidence of their financial circumstances. In many cases, this is in the hope of reaching a financial agreement that would avoid Court proceedings or an expensive and lengthy trial and thus reduce the legal costs associated with divorce generally. The most essential element in this financial disclosure is the negotiations that take place to reach any form of settlement. If a settlement is achieved then the terms of any agreement must be incorporated in a clear manner in a Consent Order which must be subsequently approved by the Court.

It all sounds very straight forward so far but recording the terms of settlement in a clear manner, in a Consent Order, is not as easy as you might first think. There are a number of factors that may need to be considered, which includes the input of an experienced Solicitor, pointing out issues to the client which they may not have considered. For example, what if someone loses their job? What about the joint debts? Who has agreed to pay what? Has everything been included? A lesson in how important it is to record everything in the agreement, is exemplified by the case of Hamilton v Hamilton (2013). In this case, on separation, there were two children of the marriage for whom the wife was the primary carer. The main assets were the matrimonial home and the wife’s business, valued at £1.5m. As part of the agreement between husband and wife, the wife agreed to pay to the husband “the following lump sums” consisting of five payments on five different dates amounting to £450,000.00. It was agreed on payment of the first lump sum that the husband would transfer his share of the matrimonial home to the wife and there would subsequently be a clean break between the parties.

The first lump sum was paid by the wife but she then only paid part of the second lump sum. The wife thereafter sought permission to appeal the terms of the Consent Order. The wife lost that appeal but despite this, no further payments were received by the husband. The husband issued enforcement proceedings against the wife. The wife issued proceedings for a variation of the Consent Order. The wife claimed that despite the wording of the Order, it amounted to a “lump sum payable by instalments” and is therefore capable of variation. The husband maintained that the Court had no power to vary a series of separate lump sum payments. In order words, was this situation “a series of separate lump sum payments” or a “lump sum payable by instalments”? The distinction might seem narrow but the fact remains that a Court has no power to vary a series of separate lump sum payments but it does have the power to vary “a lump sum payable by instalments”.

Despite the Consent Order having provided for the payment of a series of separate lump sums, the Judge nevertheless concluded that what led up to the making of the agreement, allowed him to take the view that this was a lump sum by instalments. As a result, the wife was given more time to pay and her application for variation was successful.

Do you still think you don’t need a lawyer?

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.