family law news - archive
June 2011
Civil Partnership Dissolutions Rise By 44%
That startling statistic actually only refers to the fact that there were 509 dissolutions in the UK in 2010 compared with 353 in 2009. The number of civil partnerships formed since December 2005 (to the end of December 2010) stands at 46,622 so the number of dissolutions is really only 0.01%. The number of civil partnerships formed in the UK increased in 2010 from 6,281 in 2009 to 6,385.
April 2011
Compulsory Mediation Prior to Commencing Litigation
From 6 April 2011 anyone wishing to apply for financial orders or orders in relation to children must first attend (subject to certain specific exceptions) a Mediation Information Assessment Meeting with a trained mediator. The mediator will assess whether or not the case is suitable for mediation and will invite the other party to also meet and to consent to the process. Whilst mediation can work in many situations and whilst many family lawyers already recommend mediation (or even the collaborative process) to clients where this is believed to be beneficial, enforced mediation will not necessarily (as is the hope) reduce the number of cases going to court. Conversely it may well serve to further polarise positions and may lead to increased costs and even delay in resolving matters if one party uses mediation to delay the other commencing court action by pretending to go along with the process. Clients should always discuss all the available options for resolving their disputes with their solicitors so that they are aware of the benefits of mediation, the collaborative process and the last resort of formally applying to the court for determination by a judge.
March 2011
New Mediation Protocol Introduced
With effect from the 6th April 2011, clients seeking to issue Family Court Proceedings including Applications for Residence or Contact for a financial settlement on divorce or separation will be expected to consult a mediator first to consider whether mediation is a more appropriate means of resolving the dispute. Parties will be expected to attend a ‘Mediation Information and Assessment Meeting.' This interview can take place individually or jointly with the other side.
Parties to family court proceedings will be expected to file evidence that they have met with a mediator and if they have not, the Court may refer parties to a mediation assessment before taking any further action. Evidence of this meeting is to be provided by the issuance of a standard form (Form FM1) which will explain the outcome of a mediation attempt, or explain why mediation is not a viable option. The FM1 form must be signed by the mediator and the relevant parties or their legal representatives. The court retains authority to order the parties to attend mediation even though proceedings are underway. The mediation process is not free, although legal aid may be available in some circumstances.
Mediation is impartial. The objective of the protocol is to ensure that people consider mediation and have enough information to make a considered decision. They cannot be forced to mediate. Mediation is confidential. Decisions are made by the parties to mediation, not by the mediator or by any other third party.
Mediators may advise the court that a particular case is unsuitable for mediation. The process may be deemed inappropriate in cases involving bankruptcy, domestic violence, cases involving emergency injunctions, or cases in which the respondent in the matter refuses to attend the information session. Other exceptions include cases in which a child is party to a case or where social services are already involved with child protection concerns. The mediation requirement may also be waived by the court where an applicant contacts three mediators within 15 miles of the applicant’s home and none is available to conduct a Mediation Information and Assessment Meeting with fifteen working days of the date of contact. The mediation protocol does not apply to proceedings for enforcement, to protect a child, or to protect financial assets.
Josiah-Lake Gardiner LLP will be able to assist clients in arranging mediation.
November 2010
Extension of current Legal Aid contracts
Contracts extended to 30 November 2011
The Legal Services Commission has extended the present family and combined family/housing contracts until midnight on 30 November 2011 “so as to give certainty to providers and clients alike”. These particular contracts were previously extended until 14 December 2010, following the successful judicial review of the LSC’s contract tendering process.
The LSC will also allocate new matter starts to cover the period from 15 December 2010 to 30 November 2011. That allocation will be set out in the new contract schedule which will be sent to providers before 15 December 2010.
The LSC further promised that an announcement on the harmonisation of family fees will be made by Ministers as soon as it possible to do so.
21 October 2010
Pre-nuptial agreements are now binding (well, almost!)
Yesterday (Wednesday 20 October 2010), the long awaited Supreme Court decision in the case of Radmacher v. Granatino was delivered. If the media are to be believed, pre-nuptial agreements are now binding in the courts in England and Wales and henceforth there will be a rush for millionaires to insist on such agreements before tying the knot. The reality is that although the position on such agreements has moved on, it is not to say that such agreements are now binding. Eight of the nine Supreme Court judges were in favour of dismissing the appeal by Mr Granatino that the agreement should not have such a determinative affect on the amount of the award to him. The Supreme Court ruled that “the courts should give effect to a nuptial agreement that is freely entered into by each party with the full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
Therefore, it would appear that the Supreme Court is saying that such agreements should be binding only if to implement or enforce the agreement would be fair. It would be for the “losing” party to establish that the outcome of the division of assets, if the agreement were implemented, would be manifestly unfair or broadly unfair to them or any children of the family.
October 2010
Male Victims of Domestic Abuse
This summer, Parity, the Equal Rights Campaign Group, published its findings on male victims of domestic violence/domestic abuse. It found that 40% of all victims of domestic violence are male. It is a popular misconception that in only a small number of cases are the perpetrators of domestic violence female. The figure of 40% though covers both female on male and male on male domestic violence/domestic abuse. Many men are reluctant to report their partners and some have faced disbelief and even ridicule from those in authority when they have made reports. Confidential advice and support can be obtained from Mankind (www.mankind.org.uk) and Broken Rainbow (www.broken-rainbow.org.uk) the latter of which focuses on support for lesbian, gay, bisexual and transgender people experiencing domestic violence.
October 2010
Compulsory Mediation in Non-Legal Aid Cases
Earlier this month, Resolution (formerly the Solicitors Family Law Association) reported that there is now a very strong indication from the current coalition government that it wishes to impose on privately paying clients the need to be assessed for mediation in the same way that legally aided clients have been for a number of years. What this means is that it may soon be compulsory for all clients wishing to issue proceedings for private children and finance issues to attend a mediation assessment meeting (subject to exemptions). Then, if their case is deemed suitable for mediation, they will be obliged to try mediation before being able to proceed to court. This could lead to unacceptable delays in the progress of cases and may well not achieve the potential aim of enabling parties to reach agreement amicably and to keep costs under control.
October 2010
“Gay marriage” and “Gay divorce” Trends
Statistics recently published by the Office for National Statistics show that the number of civil partnership dissolutions granted in the UK has almost doubled between 2008 and 2009, from 180 to 351. During the same period the number of registered civil partnerships declined from 7,169 to 6,281, being a reduction of 12%. It has been calculated that if these two trends continue then by 2013 there would be more couples dissolving a civil partnership than entering into one. About a quarter of all civil partnerships in the UK were registered in London during 2009, continuing previous trends.
However, it is still early days for civil partnerships and this area of law in general, and so it remains to be seen what story longer term statistics will tell. For example, it is interesting to reflect that delegates at the Annual Liberal Democrat Conference in September 2010 urged ministers to remove all barriers to equal marriage rights, which would allow same sex couples to marry in the same way as heterosexual couples. However, their coalition partners, the Tories, may well have other views, so don’t expect further changes any time soon.
September 2010
MEPs Call for Equal Rights for Same Sex Couples
According to a report by the European Union Agency for Fundamental Rights an overwhelming majority of member states fail to recognise gay marriages or civil partnerships legally contracted by EU citizens.
In a debate in the EU Parliament at the beginning of September MEPs highlighted the discrimination that same sex couples suffer and called for more rights and mutual recognition across Europe.
As members of the EU, UK citizens have freedom of movement across Europe, which means they can move to another member state to live and work. As long as the civil partners are both members of EU states they will both be able to work in the new country in which they have chosen to live, but difficulty then arises if civil partnerships are not recognised in that country. Whilst they can live and work there they do not acquire any rights of a married couple, for example, tax breaks that apply to married people. Another difficulty would be where only one partner is a citizen of a member state and the other is not. In such cases there may be issues about the non-EU partner accompanying his or her civil partner across Europe as they may have no right of residence and no right to work. They may be granted temporary residence as a dependent of the EU partner but may be unable to work or support themselves which may mean being financially dependent on their partner.
In the UK we recognise gay marriages and civil partnerships entered into worldwide and this should be the same across Europe. This can probably be achieved easily by a treaty or convention approved by all member states under which such marriages or civil partnerships which are valid in the country in which they were celebrated are fully recognised. The difficulty with this though is that some member states steadfastly refuse to extend basic human rights (equal rights) to gays and lesbians and would resist any such convention.
Pre-Nups on the Rise ... in the US
Almost three quarters of the family lawyers surveyed in the US reported an increase in pre-nuptial agreements over the last five years. In addition over one half also reported an increase in women initiating the process. It remains the case that pre-nups are preferred by those marrying late in life or re-marrying or those who have amassed or acquired substantial wealth and are keen to keep hold of such in the event of divorce.
August 2010
You Can't Touch This!
Applications for orders of a financial nature within divorce proceedings are referred to rather confusingly as ancillary relief. There is sometimes a temptation on the part of the spouse with the money to conceal assets in the hope of paying less to the other spouse. A spouse who is seeking an order often believes that the other party has concealed assets, whether or not this is true.
These tensions often result in one spouse removing and/or copying confidential documents belonging to the other party in the hope of producing a trump card leading to a pot of gold. The attitude of family judges in relation to such contact has been very relaxed up to now. As a result of the decision in the case of Hildebrand, parties believed that had effectively been given carte blanche to remove and copy documents for use in ancillary relief proceedings, provided that the originals were returned within a reasonable period.
However that thinking is about to change as a result of a landmark judgement of the Court of Appeal in a case known as Imerman and Imerman (Tchenguiz). In that case Lord Neuberger stated: “It follows that nothing in the so called Hildebrand rules can be relied upon in justification of, or as providing a defence to, conduct which would otherwise be criminal or actionable”.
In the future therefore parties to ancillary relief proceedings and indeed their lawyers will need to be much more circumspect about removing bank statements and other financial records and copying information contained on personal computers or other electronic records.
July 2010
Ireland Signs Civil Partnership Bill
On 9 July 2010 the Civil Partnership & Certain Rights and Obligations of Cohabitants Act 2010 was approved and signed on Monday 19 July 2010 into law by President Mary McAleese. Under the terms of this new legislation, the first civil partnership registrations will take place in January 2011. The Bill received cross-party support. The Minister for Justice Dermot Ahern said that it was “one of the most important pieces of civil rights legislation to be enacted since independence”.
July 2010
Parliament will next year debate a Bill on shared parenting presented by Brian Binley, the Conservative MP for Northampton south. The aim of the Bill is to provide for both parents to continue to play a full and active part in a child’s life and upbringing following separation or divorce. There would of course need to be safeguards in place where it was deemed that shared parenting was not in the best interests of the child. Winning the support and approval of Families Need Fathers, Brian Binley has said of his Bill that “Shared parenting legislation is vitally important for all involved, especially the children. Very often court orders are made without the knowledge of the importance of the father’s involvement and my Bill will make sure that neither parent is shut out from the child’s life when sadly any relationship breaks down. I don't need to underline the importance of both parents in a child’s life. A significant proportion of the social problems in today’s society are a result of when a child doesn't have the love and support of both parents. I hope that this Bill will go some way to help this, which will only be good for society.”
July 2010
Latest statistics reveal that one in four women and one in six men will at some point in their lives be subjected to domestic abuse whether threats of or actual violence or other forms of psychological sexual or emotional abuse. Victims should not suffer in silence. There are a number of agencies and charities able to offer support and assistance. There are also support groups to help the perpetrators of such abuse. For a list of the relevant agencies and charities log on to to www.resolution.org.uk
April 2010
The Law Society Gazette on 9 April 2010 reported that Bryan Reed a consultant at Josiah-Lake Gardiner LLP has launched a fully online service for uncontested divorces (and dissolutions). The website address is www.justdivorce.co.uk
Recently the papers have been full of the story of Philippa Vaughn the ex-wife of barrister David Vaughn who claimed a divorce settlement from him 25 years after they split. They married in 1967 and were divorced 18 years later. Mr Vaughn subsequently remarried. In 2009 he applied to the court to stop the maintenance payments for his first wife (in the sum of £27,000). His application was successful and Mrs Vaughn appealed to the Court of Appeal claiming essentially a capitalised maintenance payment and was awarded £215,000. The reason why Mrs Vaughn was able to apply for a capitalised maintenance sum was because Mr Vaughn had the capital available to buy out her maintenance and also because she recovered in the divorce in 1985 a joint lives order meaning that the maintenance provision would continue during her lifetime (until Mr Vaughn’s death) or until her earlier remarriage. The decision was clearly the right one but it does bring into sharp focus the effect of such joint lives orders and the potential as here that maintenance will continue long after separation and for far longer than the parties were married.
Solicitors Josiah-Lake Gardiner for Applicant Wife
Mishcon de Reya for Respondent Husband
Court
Family Division
Summary
The court divided assets between a husband and wife having regard to their respective needs taking account of resources which the husband was likely to receive in the future by way of a substantial, deferred bonus.
Facts
The applicant wife (W) sought an order for ancillary relief against the respondent husband (H). H and W had married in 1996. There were three children of the relationship. The parties separated in 2007 and decree nisi was pronounced in 2008. W and the children remained living in the matrimonial home. H's income fluctuated annually, and consisted of a relatively modest basic salary and a discretionary performance linked bonus paid in part in cash in the following year with the balance deferred and paid in instalments over three years. He had earned considerable sums post 2007 and was entitled to a deferred bonus payment for 2009. The parties agreed that W was entitled to receive part of the wealth that H had accrued post separation, but disagreed on the amount. The court was required to determine how much W should receive as part of a clean break award. W submitted that she should receive half of the parties' wealth, including bonuses earned by H as at the date of the final hearing. H contended that W's award should reflect the fact that a significant part of his resources had accrued after the parties had separated.
Held
HELD: (1) As a matter of policy, W was not entitled to half of the wealth as at the date of trial. It was not a case where such an award would either be appropriate or justified, Charman v Charman (2007) EWCA Civ 503, (2007) 1 FLR 1246 and Miller v Miller (2006) UKHL 24, (2006) 2 AC 618 considered. To so award would give insufficient weight to the fact that a substantial part of the wealth pool had accrued as a result of H's endeavours post-separation, nor would it be justified by reference to W's needs. The available resources totalled £15m, which included the deferred instalments that H would receive for bonuses awarded for 2006 to 2008 inclusive. Broadly assessed, W required total resources of £7 million, consisting of just over £1 million in respect of her capital needs and approximately £6 million in respect of her income needs. That met W's needs but also provided her with a fair share of the available resources. W was also entitled to 15 per cent of all sums received by H in respect of his deferred bonus instalments for 2009. It followed that if H was to receive the full bonus due for 2009, being £3.5 million, W would have total resources of £7.5 million and H would have £11 million. (2) Since the capital had been divided unequally in H's favour, H was obliged to pay the children's maintenance.
December 2009
Lord Justice Munby Calls for Reform of Legal Rights of Unmarried Couples
Lord Justice Munby, in his capacity as Chairman of the Law Commission, has said that unmarried couples need new legal rights to protect them on separation. The government is currently awaiting the results of research carried out in Scotland, where unmarried couples do have statutory rights on separation.
The judge also suggested that the division of finances on divorce is also in need of review. On this issue he commented that it was unsatisfactory that there should be a single set of criteria for dividing the wealth of all couples, however large the sum involved. “It might be an advantage having an approach for each”, he said.
NHS to Offer Counselling to Divorcing Couples
Divorcing couples are to be offered free counselling on the NHS in a bid to combat depression and help partners stay together, according to a report in the Observer.
Court of Appeal Upholds Decision to Remove Son from Uncooperative Mother in Contact Dispute
The Telegraph has reported on a decision to refuse a mother permission to appeal an order that her son should go and live with his father, despite the child’s objections.
The Telegraph reports that Lord Justice Wall refused permission to appeal the order of HHJ Bond of Bournemouth County Court, although he acknowledged that it would have an “almost cataclysmic” effect on the child. The child had lived with his mother most of his life, and is settled at school, but the court heard that the mother’s hostile attitude towards father and the issue of contact was emotionally harming the child. Lord Justice Wall therefore refused permission to appeal as the Circuit Judge had not been plainly wrong.
