News & Articles

Josiah-Lake Gardiner are pleased to announce that the firm once again features in The Legal 500 UK as a leading Family Law firm.

The Legal 500 is ‘widely acknowledged as the world’s largest legal referral guide (in which) firms and individuals are recommended purely on merit’.

In this year’s edition, we are described as ‘a niche family law practice that has experienced practitioners who advise on the full range of family law issues. Clients include business owners, high-net-worth individuals and those in the media and the arts sectors. The people who instruct the firm are mostly based in London and the Home Counties, but it also receives instructions from further afield and from some international clients. Rebecca Gardiner and David Josiah-Lake head the ‘small but determined’ team’.

Testimonials offered in support of our continued inclusion in the Legal 500 refer to our ‘phenomenal lawyers (who) are intellectual and brave. They are results focused and always do the best job possible for their clients’.

Rebecca Gardiner has deservedly been recognised in the elite ‘Leading Individuals’ list – a guide to ‘outstanding lawyers nationwide’ for her expertise and outstanding work on groundbreaking nationally reported cases, while David Josiah-Lake continues to be ‘highly regarded’ and ‘recommended’.

Lewis Powers, who continues to assist Rebecca Gardiner and David Josiah-Lake on their cases, is featured in the 2020 edition’s list of “Rising Stars”

A link to the results of The Legal 500 UK 2020 (for family law, London) can be found here:

https://www.legal500.com/c/london/private-client/family

There is no strict definition of Parental Alienation in English law, but it is generally taken to describe a situation where a child has been deliberately manipulated, coerced or otherwise pressured to align themselves to one parent by the other parent. Usually, the consequence of Parental Alienation is that contact between the alienated parent and the child is frustrated, which can be damaging to the child in both the short and long term.

Some of the identifying markers of Parental Alienation are:

• An unjustified campaign of denigration against a parent (e.g. the alienating parent speaking ill of the other parent or stopping contact for no reason);

• Weak, frivolous and absurd rationalisations for the refusal to actively encourage or to enable the continuation of a relationship between the child and the other parent (e.g. making false allegations of abuse or harm);

• Indoctrination of the child’s thinking by the alienating parent to create a loyalty conflict (e.g. making the child feel guilty for wanting to spend time with their other parent);

• Use of words and scenarios which would not generally be in the child’s knowledge, vocabulary or understanding (e.g. where a child speaks of their other parent using language that is not age appropriate or where they repeat stories about their other parent which they should not or would not have known if it weren’t for the alienating parent); and

• Spreading of animosity to the extended family and friends of the alienated parent (e.g. where a child refuses to see or spend time with their other parent and anyone associated with that parent for no reason).

There is a presumption in English law that it is in a child’s best interests to know and have a relationship with both of their parents, so the courts are taking an increasingly robust approach to cases where Parental Alienation is alleged. In Brazil and Mexico, Parental Alienation is now recognised as a criminal offence, and in the US and Canada, the courts are very alive to the detrimental effects that Alienation can have on a child. It will be interesting to see whether English Law follows suit to either criminalise Parental Alienation or officially recognise it as a form of child abuse.

If you are concerned that you are at risk of being alienated from your child, it is important to seek specialist advice quickly so please do contact us on 020 3709 8975 today.

Part II of the 2018 edition of this book published on 18 May 2018 deals with the impact of relationship breakdown.

Developments in the law relating to domestic abuse are discussed in Chapter 7, together with reforms to the homelessness legislation affording better protection for victims of such abuse. Domestic Violence Protection Notices (DVPNs) and Orders (DVPOs) – an alternative to requiring the victim to apply for an injunction – were brought into effect by the Crime and Security Act 2010, ss 24–27 and implemented across England and Wales from 8 March 2014.

Chapter 8 explores the effect on and the arrangements for children following their parents’ break up. Residence and Contact orders are no longer made, the courts instead making child arrangements (‘lives with’ or ‘spends time with’) orders.

The Child Maintenance Service (taking over the responsibility of child maintenance issues from the Child Support Agency) is discussed at Chapter 9, as well as the fact that access to justice/to legal assistance is of real concern as legal aid has been removed from such family matters (save in respect of mediation) unless the applicant for legal aid has been a victim of domestic abuse.

Some attempt has been made to resolve the practical difficulties highlighted in Chapter 10 of the last edition in respect of the transfer of tenancies of the family home under Pt IV of the Family Law Act 1996.

Whilst the recent decisions in the cases flowing from Stack v Dowden [2007] and Jones v Kernott [2011] have sought to give clarity with regard to the position of express, resulting and constructive trusts as discussed in Chapter 11, the fact remains that only Parliament can properly afford rights to cohabitants in respect of a home in which they have no clear, express, settled interest, the Cohabitation Rights Bill 2017–19 if enacted would enable a cohabitant to apply for a financial settlement order including the transfer, sale or settlement of property.

To discuss the impact and legal consequences of relationship breakdown in the cohabitation context, do contact me at david@j-lg.com

In Part I (Chapters 1–6) of the book, I examine the law which affects cohabitants/the ‘unmarried family’ when living together as a unit.

One significant development since the last edition published in 2001 (discussed at Chapter 2) is that on the birth of a child the joint registration by the parents of that child will confer on the unmarried father parental responsibility. There has also been legal recognition of the fact that the desire to be a parent is not specific to gender or sexual orientation, such that the Human Fertilisation and Embryology Act 2008 now enables a child born to a same sex couple (whether through assisted reproduction or surrogacy) to be treated as the child of both parents.

In Chapter 3 I highlight that local housing authorities are now under a duty to provide the statutory homeless with permanent accommodation (s 193(3) HA 1996 as amended by the Homelessness Act 2002, s 6, which abolished the minimum period (of two years) for which a local authority was subject to a duty to rehouse).

The changes to the benefits system and the introduction of Universal Credit are examined in Chapter 4.

Chapter 5 looks at the developments in the law where a cohabitant dies, noting that same sex cohabitants were only included as a separate category of applicant entitled to apply for provision under the Inheritance (Provision for Family and Dependants) Act 1975 with effect from 5 December 2005.

Chapter 6 continues the discussion of the position of and impact on a cohabitant or his or her partner involved in divorce or dissolution proceedings.

If you or a client of yours is potentially affected by any of these issues, do contact me at david@j-lg.com.

Pre-nuptial Agreements (pre-nups) have, once again, found themselves under the legal spotlight at the Court of Appeal. In a Judgment, delivered in December 2018, during the case of Brack v Brack, the Court of Appeal considered, amongst other things, the correct approach to be taken by Judges when dealing with an effective pre-nup – albeit one that does not provide for the financially weaker party’s needs.

Whilst parties cannot, with certainty, oust the jurisdiction of the Family Court to make financial orders upon divorce – post-Radmacher v Granatino (a Supreme Court case heard in 2010) the court 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 present circumstances it would not be ‘fair’ to hold the parties to their agreement.

As a result of Radmacher v Granatino, assuming that the pre-nup has been entered into without undue influence/pressure; both parties have obtained independent legal advice and intend for the pre-nup to be binding; and there has been financial disclosure, a court would usually be unwilling to interfere with the terms of the pre-nup so long as the pre-nup was ‘fair’ i.e. it met the needs of the parties and did not, for example, prejudice the reasonable requirements of any children of the family (the court’s first consideration).

So, what happens if a pre-nup is held to be unfair i.e. because it does not meet the financially weaker party’s needs? The court in Brack v Brack faced this question. At first instance, the Judge found the pre-nup to be a valid agreement entered into between the parties with no vitiating factors (i.e. duress; undue influence etc.) However, as the pre-nup did not provide for the wife’s needs (fairness), the court had to decide what financial order to make in favour of the wife as opposed to following the pre-nup. The Judge’s interpretation of the law was that, having found there to be a valid pre-nup, he would be limited to approaching the case on what the wife needs as by entering into the pre-nup the wife had contracted out of her sharing claim (the principle that whatever has been built up during the marriage should, on the face of it, be divided 50/50).

In our view, the Judge’s interpretation seemed to follow the approach since adopted by the profession following on from Radmacher. Indeed the Court of Appeal noted that since Radmacher and up to an including the High Court case of KA v MA (in April 2018) ‘the courts at first instance have resolved cases where there is a valid prenuptial agreement which does not meet the needs of the wife by interfering with the agreement only to the extent necessary to ensure that those needs are satisfied.’

In KA v MA, although the Judge awarded the wife more than she would have received under the pre-nup, the Judge found that a fair assessment of the wife’s needs (i.e. her housing and income needs) must reflect the fact that the wife agreed to restrict her financial claims in the event of divorce by entering into the pre-nup in the first place. The court had respect for the parties’ personal autonomy and in this case the parties were held to the terms of the pre-nup save for an adjustment to achieve a fair outcome to meet the wife’s needs (awarding her 12% of the overall assets). In our view, this case highlighted that a party’s ‘needs’ continued to be a trump card but when a party has agreed to restrict their claims i.e. by entering into a pre-nup – the ‘needs’ become a less and less generously interpreted trump card.

In Brack v Brack the Court of Appeal concluded that, whilst an outcome that is limited to providing for the party’s needs may be considered to be ‘more likely than not, that does not prescribe the outcome in every case’ and the High Court Judge was wrong to limit himself to approaching the case on a needs basis only. The Court of Appeal highlighted that ‘Even when there is an effective prenuptial agreement, the court remains under an obligation to take into account all the factors found in s.25(2) MCA 1973, together with a proper consideration of all the circumstances, the first consideration being the welfare of any children.’ The implication being that if a pre-nup is found to be unfair, potentially, everything is up for grabs. The Court of Appeal have sent the case back to the High Court Judge for him to further consider the wife’s claims for financial remedy in light of their Judgment.

This latest case highlights the importance in getting your pre-nup right. It is important that your pre-nup is fair to avoid the situation where a court is obliged to consider the s.25 factors (i.e. length of the marriage; ages; contributions; standard of living; earning capacities; financial resources etc.) and award a settlement far greater than that intended. Clearly it was never going to be fair that, as in Brack v Brack, a wife end up with just 5-6% of assets of £11million.

Here at Josiah-Lake Gardiner it remains our strong advice to enter into a pre-nup, particularly where you have pre-acquired wealth (a legitimate reason for entering into the pre-nup) whether from inheritance, a former marriage or the fruits of employment and savvy investing.

However, as Brack v Brack shows, it is important that your pre-nup is well thought through and provides for the needs of the other party so there is fairness and therefore a greater chance that you and your spouse will be bound by it.

Following on from our article on 27 June 2018 regarding the Supreme Court’s ruling that Civil Partnerships should be open to heterosexual couples, the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill, which formally extends Civil Partnerships to opposite sex couples, is due to have its second reading in the House of Lords on 18 Jan 2019.

Once the second reading is complete, the Bill will need to pass through the committee stage; report stage; and third reading in the House of Lords before both Houses consider the amendments. Only once this is complete will the Bill receive Royal Assent, thereby becoming law.

The opening up of civil marriage to same sex couples resulted in a steep decline in the number of civil partnerships entered into (such that in 2015 there were 6,493 same sex marriages conducted as opposed to 861 civil partnerships), so it will be interesting to see what effect the opening up of civil partnerships to opposite sex couples has on the number of couples opting to marry now that they will have an alternative.

Latest figures from the Ministry of Justice (MOJ) have revealed that 455 online applications for divorce were lodged in England & Wales during the period between Christmas Eve and New Year’s Day.

Surprisingly, 13 of these divorce applications were filed on Christmas Day!.

In April 2018 the MOJ launched its online divorce service which allows those without the services of a lawyer to file for divorce and go through the entire divorce process online. The MOJ suggests that the service has dramatically reduced errors in divorce petitions – thereby freeing precious court resources.

The media often report on the first full week of the New Year being one of the busiest times for family solicitors – owing to an influx of those wishing to issue divorce proceedings. The Independent for example recently reported on 8 January being dubbed ‘Divorce Day’ – but why is this? Is it because it’s the start of the first full week after the Christmas and New Year break and when most children are back at school?

In our experience, January is a busy time for family lawyers owing to the pressure that surrounds Christmas. Many face the mounting pressure of having a ‘prefect’ Christmas. For a couple who are already facing issues / testing times it can often be the final straw when Christmas doesn’t live up to expectations

It is telling that, despite numerous attempts to curb this practice, in 2018 tabloids and many of their readers still continue to refer to unmarried cohabiting couples as ‘common law spouses’, which phrase implies rights that do not exist in law.

Indeed, a poll conducted by Resolution (the association of family solicitors) during the Cohabitation Awareness Week (27 November to 1 December) in 2017 found that two thirds of cohabitants were unaware that there is no such thing as ‘common law marriage’.

As is often the case, popular expectation and the true legal position of cohabitants may not coincide.  The trend has been for legislation to extend rights of cohabitants whilst continuing to privilege marriage and civil partnership by giving lesser rights to cohabitants. This state of affairs means that cohabiting couples are in much greater need than their married (or civil partner) counterparts of legal advice on the consequences of joint enterprises undertaken or proposed by them.

It should be noted though that whilst in an increasing number of situations, legal rights or restrictions similar to those applicable to married couples (or civil partners) have been extended to cohabiting couples, including the right to succeed to an assured tenancy under s 17 Housing Act 1988, the right to claim financial provision against a deceased partner’s estate (s 1(1)(ba) and 1(1A) Inheritance (Provision for Family and Dependants) Act 1975) and the right to apply for the transfer of the family home on relationship breakdown (Sch 7 FLA 1996), in other situations, the law totally ignores the cohabitation relationship.

For advice on or discussion of the law affecting the cohabitation relationship, do contact David Josiah-Lake at david@j-lg.com

Josiah-Lake Gardiner are pleased to announce that David Josiah-Lake’s latest book “Barlow’s Cohabitants and the Law, 4th edition” has received another fantastic review.

In the November 2018 Newsletter issued by the Association of Lawyers for Children, Poonam Bhari of 3PB writes“This 4th edition is a clearly written and invaluable resource for dealing with the issues and difficulties that face cohabitants.”

October has certainly been conference month for Margaret Kelly.

Here, she offers her reporting:

Second Stop Nottingham England

The annual dispute resolution conference took place on 11 and 12 October.  As an enthusiastic proponent of non-court based resolution of issues following the break down of relationships wherever possible, I was proud to be a member of the organising committee for the conference this year.

First thing on Friday we were treated to a talk by Dr. Amita Sehgal, a couples’ psychoanalytic psychotherapist, who is committed to resolving family disputes outside the court process.  She is also interested in the wellbeing of the profession and acknowledged that we work in a highly pressured environment and wondered why the legal profession does not offer/require people to receive supervision in the same way as her profession.  Some professionals independently avail themselves of supervision and others may take this up in the future.

It will come as no surprise to some that in order to solve problems and to achieve lasting solutions, talking and empathising and reaching agreement is a much better way than to have a decision imposed upon you by a stranger (a judge).

The second talk of the day was given by Jo Berry and Patrick Magee on what was the 34^th anniversary of the Brighton Bombing. Patrick Magee on behalf of the IRA planted a bomb at the hotel where many members of the Conservative party, including then prime minister Margaret Thatcher, were staying.  Five people were killed, including the Conservative MP Sir Andrew Berry, whose daughter Jo Berry was then aged just 27. Jo realised almost immediately that she had to find something positive from this tragedy and even to understand those who had killed her father.

Jo and Pat recounted the lead up to and their first meeting, after Patrick’s release from prison, in November 2000.  Although this was 18 years ago it could have been yesterday; the emotion of each of them was palpable and a hush fell over the audience as they spoke about their shared journey culminating in their co-founding of the charity Building Bridges for Peace http://www.buildingbridgesforpeace.org/.  It was inspiring and uplifting to gain some insight into how these two people managed what seems almost impossible, namely genuinely communicating and empathising with each other in order to bring a very powerful message to other situations of conflict.

If these two people could not only communicate but bring their powerful, sometimes painful, message to the world, why can’t separating couples with the help of trained professionals reach agreement.  We know that sometimes they can’t, but in the main with the right guidance and advice I am pleased to say this possible.

The rest of the day was spent in workshops, the first of which looked at mediation for modern families – a fascinating and relevant subject – including same sex families and families in which children were conceived through IVF and surrogacy. The next workshop explored mediation in international cases and being sensitive to cultural and religious issues in a mediation setting.

My conference month has made me a more informed person.  All that knowledge will be used by me in my every day practice.  As always, I am very happy to discuss family law issues without obligation.

In the meantime, I will get back to the day job!

Josiah-Lake Gardiner are pleased to announce that the firm has once again been recommended in The Legal 500 UK.

The Legal 500 UK independently surveys law firms across the UK and ranks them in accordance to practice area. The Legal 500 UK 2018 edition recommends Josiah-Lake Gardiner for services in relation to Family Law and has increased the firm’s ranking to Band 5.

Here is what The Legal 500 UK 2018 had to say in full about Josiah-Lake Gardiner:

“Josiah-Lake Gardiner Solicitors is an ‘innovative and exciting practice with a personal touch’. The ‘attentive’ David Josiah-Lake is praised for his ‘sensible negotiating skills’ and Rebecca Gardiner for her ‘tenacious ability to argue her clients’ corner’. Consultant Margaret Kelly is ‘thoughtful and knowledgeable always listening to find a way through the difficulties and mindful of the children’s best interests’. This firm is a ‘hidden gem’ that advises on the full range of family law matters.”

Josiah-Lake Gardiner was previously recommended in The Legal 500 UK’s 2015, 2016 and 2017 editions and we look forward to building on our reputation as an innovative practice that puts our clients’ interests first by offering high quality and tailored advice with a ‘personal touch’.

A link to the results of The Legal 500 UK 2018 (for family law) can be found here:

https://www.legal500.com/c/london/private-client/family

October has certainly been conference month for Margaret Kelly, Consultant Solicitor at Josiah-Lake Gardiner.

Here, she offers her reporting:

First Stop Brisbane Australia

As a solicitor qualified in both the UK and Australia I belong to a group of dual qualified solicitors based in the UK and Australia called the Anglo Australian Family Law Association.  The contingent based in London meet monthly. Members from outside London and Australia will join our meetings when they are in town.

I was delighted when we were invited to make a presentation at the 18^th National Family Law Conference in Brisbane in October 2018.

As outcomes for parties can be markedly different depending on whether a case takes place in the UK or in Australia, we decided to call our talk “We speak the same language but say different things”

A great deal of work and discussion (across time zones) resulted in a group of 9, 5 based in the UK and 4 in Australia speaking at the conference to an audience of about 80 lawyers.  There was an enormous amount to cover in one hour, but we managed it – just!

We opened with a quick whistle stop tour through the differences in each jurisdiction in respect of the disclosure of information and documentation in financial remedy proceedings.  Whilst both Australia and the UK have robust ways of ensuring full disclosure, in the UK we tend to require the party to do this with the threat of being sent to prison if they do not, but in Australia the approach is to contact third parties such as banks with an order requiring them to produce documents.

Members of the panel then looked at the differences between the approach in the UK and Australia in the following three key areas:

• the sale of the family home – even where there are children it is likely that in Australia an order for sale will be made immediately and not deferred as it would in the UK.

• spousal maintenance after divorce – in Australia, the spouse with the lower income is only likely to receive modest payments for a very limited period.  In the UK, maintenance is likely to be more generous and for a longer period (although the courts in the UK are moving towards the Australian approach and limiting the period of time that maintenance will be paid for).

• Time limits on issuing financial proceedings after a divorce – the general rule in Australia is that if you don’t make an application within 12 months of the divorce being finalised you need the court’s permission to issue. In contrast, in the UK you will only be debarred from making an application if you have remarried (the Supreme Court in the UK recently deciding that a period of 31 years between the divorce being finalised and an application was not too long!).

To conclude, if you have ties to both the UK and Australia and think that you may have a choice as to which jurisdiction to pursue your case in, please feel free to contact Margaret (margaret@j-lg.com / 020 3709 8975) for an informal no obligation chat.

Josiah-Lake Gardiner are pleased to report that David Josiah-Lake’s latest book “Barlow’s Cohabitants and the Law, 4th edition” has received a fantastic review by Graeme Fraser in the New Law Journal (19 October 2018).

The review notes that David’s book provides “a clear and easily accessible summary of rights and remedies for cohabitants living together and on their relationship breakdown” and that “While most recommended books on cohabitation law centre on property claims, this is one of the best general guides around for all aspects of cohabitation law.”

The review can be read in full at the following link:

https://www.newlawjournal.co.uk/content/book-review-barlow-s-cohabitants-and-law-fourth-edition

Somewhat reluctantly the Supreme Court last week ruled in the case of Owens v Owens [2018] UKSC 41 to uphold the decision made by the judge at first instance which was endorsed by the Court of Appeal to dismiss the wife’s divorce petition alleging that her marriage had broken down irretrievably because her husband had behaved in such a way that she could not reasonably be expected to live with him. Mrs Owens must now remain married to Mr Owens and wait until 2020, when she will be 70 years of age, to petition for divorce on the basis that she and her husband have lived apart continuously for five years.

There is only one ground for divorce, that is that the marriage has broken down irretrievably. Section 1(2) of the Matrimonial Causes Act 1973 provides the five facts which can be relied upon to evidence the irretrievable breakdown of a marriage. One of these facts, found at s.1(2)(b) of the 1973 Act, is “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” When divorce petitions rely on this fact, they are commonly referred to as “unreasonable behaviour” petitions.

In his judgment, Lord Wilson reminds us that such language is incorrect and that “the subsection requires not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable.” In so doing, Lord Wilson reinforces the objective element of the test of reasonableness.

At trial, Judge Tolson QC stated “that the marriage [between Mr and Mrs Owens] had broken down; that Mrs Owens could not continue to live with Mr Owens; and that, in so far as he believed otherwise, Mr Owens was deluding himself.” Notwithstanding, Judge Tolson QC found that Mrs Owens’ divorce petition “lacked beef” and that her 27 pleaded examples of Mr Owens’ behaviour were “flimsy”. He concluded that there was no behaviour such that the wife could not reasonably be expected to live with the husband and therefore dismissed Mrs Owens’ divorce petition. The Court of Appeal found that Judge Tolson QC had applied the correct test to the allegations in Mrs Owens’ divorce petition and the Supreme Court has supported their finding.

This judgment raises questions about the purpose a divorce petition serves and the role that solicitors play in the divorce process. The language of the Supreme Court judgment, and Law Society guidelines, suggests that we have been on the right path all along with our “appropriately anodyne” petitions, and yet the conclusion appears to be that we must change this so that an objective person could conclude that one party to a marriage has behaved in such a way that the other cannot reasonably be expected to live with them anymore.

As the vast majority of so called unreasonable behaviour petitions rely on ‘agreed’ particulars and the respondents do not choose to defend such, the reality is that this case will only have a bearing on those cases where one party either does not want to divorce or has been denied the opportunity to agree particulars and who may then choose to defend.

The Supreme Court has invited Parliament to consider whether it would be appropriate to replace the laws so that they are more in line with social norms which uphold marriage as a partnership of equals. We must now wait to see what Parliament makes of what Lady Hale describes as “a very troubling case.”

The Supreme Court has this week delivered a unanimous judgment in the case of Mills v Mills [2018] UKSC 38  setting aside a 2017 Court of Appeal decision to increase a wife’s spousal maintenance to cover her rental payments, 16 years after a financial settlement was agreed in 2002. A timely reminder that despite the making of a spousal maintenance order, the receiving spouse is still under a duty to do all that can reasonably be done to achieve financial independence or indeed to be responsible for bad financial decisions.

In 2002 the wife received a lump sum of £230,000 and periodical payments of £13,200 per annum. It was anticipated at the time that the wife would use this lump sum to rehouse mortgage free. Instead, she took out a mortgage and began buying and selling properties, each time taking out a larger mortgage and failing to reinvest the sale proceeds, until eventually she found herself in a position where she had to sell her home and begin renting. In 2015 she applied to increase her periodical payments to cover her rental costs and the husband cross-applied to downward vary or discharge the periodical payments.

The judge at first instance dismissed both applications, effectively meaning that the order of 2002 would continue. The Court of Appeal overturned this judgment on the basis that insufficient reason had been given for the judge’s decision and ordered the husband to increase his periodical payments to the wife to meet the shortfall in her income needs.

It is important to recognise that the Supreme Court’s decision this week to restore the order of the first instance judge was arrived at on the very narrow point of whether the judge at first instance was entitled to decline the wife’s original application to increase her periodical payments to cover her rental costs even though provision had already been made for her housing needs in the 2002 financial settlement. The Supreme Court held that sufficient reason had been given and the judge was entitled to decline the wife’s application.

Notwithstanding the narrowness of this point, the Supreme Court’s decision reminds us that in a world where gender norms are changing and life expectancy is on the rise, orders which require one individual to cover another’s needs for life can no longer be the default position and provision for a former spouse’s needs will not be “duplicated” through the backdoor of variation.

In what was an expected defeat for the government, the Supreme Court has ruled that Civil Partnerships (CPs) should be open to heterosexual couples. It was never clear to pretty much anyone why the government would, after introducing same sex marriage in 2014, choose to keep CPs in place. After all, CPs were introduced in order to enable homosexual couples to enter into legal relationships akin to marriage while appeasing those on the (religious) right who were vehemently opposed to extending matrimonial rights to gay couples.

By allowing CPs to remain, giving two options for gay couples to formalise their relationships, the government was always setting itself up for litigation on the basis of discrimination.

Just as the push for same sex marriage continued even after CPs, so too would the push for full equality for heterosexual couples after the introduction of same sex marriage put them, for the first time in history, in the position of potentially being discriminated against.

CPs should have been withdrawn when same sex marriage became a reality, so the decision today is right and welcome.

Will the government now try to take CPs away for everyone? Possibly. If the argument against extending marriage to same sex couples was for some based on the erosion of the institution of marriage, this decision will have many reaching for their phones to lobby their MPs to get a Bill before Parliament to do so.

https://www.huffingtonpost.co.uk/entry/civil-partnership-battle-supreme-court_uk_5b334ccce4b0b5e692f2a16e?76b

The word ‘cohabitation’ has come to denote the situation where two people live together as husband and wife or as civil partners in a family framework analogous to marriage or civil partnership, without actually having gone through a ceremony of marriage or entering into a civil partnership.

There is no formal definition of ‘cohabitants’ but, as offered by Section 62(1) Family Law Act 1996, cohabitants are: ‘two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners’.

The Adoption and Children Act 2002 definition of ‘a couple’ includes ‘two people (whether of different sexes or of the same sex) living as partners in an enduring family relationship’ (section 144 (4)).

Some couples cohabit rather than marry (or enter into a civil partnership) because one of them remains married to (or in a civil partnership with) another person, some because they have fundamental concerns about what marriage represents, some (opposite sex couples) because they are not able to enter into civil partnership which arguably does not carry with it the historical baggage of church and patriarchy.

It doesn’t really matter why couples choose not to marry or to become civil partners of each other; what matters is that they understand what rights and protections they have as regards the other during the subsistence of their relationship and on its possible breakdown.

To discuss any aspect of cohabitation law, do contact David at david@j-lg.com

As David says in the introduction to the book, with Brexit sucking all the air out of the room (well, out of the legislative chamber in Parliament), it is unlikely that there will be any significant developments with regard to the law affecting cohabitants/unmarried families and no ‘divorce law equivalent’ affording rights to cohabitants for some time.  The latest incarnation of the Cohabitation Rights Bill 2017-19 had its first reading in the House of Lords on 5 July 2017 but has been stalled ever since.  It has been 18 years since the last edition of Barlow’s Cohabitants and the Law and the profession as well as the many 3.3 million unmarried families/cohabiting couples desperately need Parliament to step up and address the continuing lack of clarity and certainty in many areas of the law affecting such family relationships.

To discuss any aspect of the law as it relates to cohabitants, do contact David at david@j-lg.com.

As one would expect, there have been enormous (and hugely progressive) advances in the area of family law since the last edition of Barlow’s Cohabitants and the Law which was published in 2001.  Ever growing acceptance of and legal recognition for same sex relationships has seen the passing of both the Civil Partnership Act 2004 enabling same sex couples to register as civil partners (with rights akin to marriage) which came into effect on 5 December 2005 and the Marriage (Same Sex Couples) Act 2013 which came into force on 13 March 2014.

As civil partners and same sex spouses have been accorded the same rights as opposite sex spouses, the focus on the lack of such rights afforded to all cohabitants (whether heterosexual or homosexual) is more acute.

The purpose of Barlow’s Cohabitants and the Law 4^th edition is to draw together the disparate areas of law affecting cohabitants and to highlight the progress made and the progress yet to be made in this increasingly important area.

In Part I (chapters 1 to 6) David examines the law which affects cohabitants/the “unmarried family” when living together as a unit and in Part II (chapters 7 to 11) David deals with the impact of relationship breakdown.

To discuss any aspect of the law as it relates to cohabitants do contact David Josiah-Lake  at david@j-lg.com

The Sunday Times on 13 May 2018 reported that the Conservative government could scrap gay people’s rights to civil partnerships rather than extending them to heterosexuals. It was a surprising move by the then Tory led coalition government to leave civil partnerships as an option for gay couples when extending marriage to same sex couples (with effect from 29 March 2014) and foreseeable that heterosexual couples would argue (on clear discrimination grounds) that the option of entering into civil partnerships should be equally available.

The government has intervened in the Supreme Court case involving Rebecca Steinfeld and Charles Keidan’s fight for the right to enter a civil partnership rather than having to get married. Penny Mordaunt, the women and equalities minister, has commissioned research to find out if demand for civil partnerships is so low that the “government should consider abolishing or phasing out civil partnerships entirely”. Why such research is necessary is baffling when the government’s own statistics show that the demand for civil partnerships is waning. The number of civil partnerships formed in England and Wales decreased in 2014 by 70% from 5,646 in 2013 to just 1,683 and again in 2015 by 49% to just 861, but saw a slight uptick (an increase of 3.4%) in 2016 to 890. The numbers are clearly on the decline now that (same-sex) marriage is available. Between 29 March 2014 and 31 December 2014, there were 4,850 same-sex marriages conducted in England and Wales. In 2015, there were 6,493.

Whatever ultimately happens, this is an issue of equality – either civil partnerships are extended to heterosexual couples or they are scrapped.

Josiah-Lake Gardiner is pleased to announce the publication of David Josiah-Lake’s latest book ‘Barlow’s Cohabitants and the Law, 4^th edition’.

The book was published by Bloomsbury Professional today and provides a detailed analysis of the latest legislative, procedural and case law developments in this evolving area of law.

The book is available for download/purchase here: https://www.bloomsburyprofessional.com/uk/barlows-cohabitants-and-the-law-9781526503046/

Mediation is not for everybody, but it is a good option for many.  It is important that both parties feel safe and supported during mediation. Therefore, before a mediation starts the mediator will assess whether there are any safety concerns and whether the couple and their issues are suitable for mediation.

Both parties need to be willing to attend mediation as it is a completely voluntary process.  This means that anyone who attends mediation is there under their own steam and that is a great positive for the success of the process. (Find out more about the mediation process).

The schedule for meetings is set at the parties’ convenience and an agenda is prepared before each meeting to ensure, in so far as is possible, matters important to both parties, and issues that are immediate as well as long term are looked at.

All discussions in the mediation are private and can only be referred to outside the mediation if both parties agree.  Financial disclosure is treated differently and it is always possible to refer to financial matters outside the mediation room.  When both parties know discussions are private this lends itself to a full and frank sharing of ideas, aspirations and concerns.  This can pave the way for an agreement to be reached.

The mediator is neutral. (S)he most certainly does not give legal advice, so neither party is left feeling that the mediator is on the other party’s side. Parties are encouraged to seek legal advice during the course of the mediation.

The mediator will explore with the parties what is important to them.  Decision making is in the hands of the couple.  The range of solutions is more far reaching and flexible than what is on offer in court.

At the end of a successful mediation the mediator will draw up a memorandum of understanding recording where the couple have got to.  The parties are then invited to seek legal advice on the memorandum.  The next step is that the lawyers prepare a consent order and send this to the court.

Many couples successfully resolve issues through mediation and find that this stands them in good stead for future communication especially where there are children.

If you would like more information on mediation, do contact Margaret Kelly at margaret@j-lg.com or on 020 3709 8983

A prenuptial/pre-civil partnership agreement (pre-nup) is entered into by the couple before entering into their marriage/civil partnership and sets out what will happen in the unhappy event that the relationship breaks down and ends in divorce/dissolution.

Whilst a pre-nup is not legally binding, if properly prepared and signed it will carry a great deal of weight “if it was freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement” (Radmacher v Granatino).

However, such agreement would not be allowed to prejudice the reasonable requirements of any children or to leave one spouse in a predicament of real need.   The court can therefore still effectively act as a safety net intervening and increasing the sums to be paid to avoid real hardship to the financially weaker party and any children.

Where there is no pre-nup, the courts in the UK have a wide discretion when dealing with finances and it is likely will be more generous to the financially weaker partner than the provision contained in a pre-nup.   This is why, where there is financial disparity between the parties, more and more people, are opting for such an agreement.

Some might say that this is not very romantic; however, with divorce rates as high as they are and whilst those entering into marriage or a civil partnership do so in good faith on the basis that it will be a lifelong commitment, they realise that there is at the very least a chance that the relationship will falter and be brought to an end by divorce or dissolution.  One or both of the parties may have heard horror stories from friends or relatives or read about cases in the news and want to avoid acrimonious legal proceedings.  They may also feel more comfortable knowing that if things do go wrong they have an agreement setting out how finances will be dealt with (which they agreed to and which they at that time considered to be both fair and reasonable) rather than trying to negotiate when they are also trying to recover and cope with the breakdown of their relationship.

To make a pre-nup as water tight as possible it is best for both parties to have legal advice.   The same lawyer cannot advise both parties.  Usually the lawyer instructed by the financially stronger person drafts the agreement which is often a very detailed document.  This is then sent to the other party asking them to obtain legal advice.  Even if the couple have spoken about the agreement receiving a letter from a solicitor with the agreement can feel very daunting, it can raise tensions between the couple at a time when they are also concentrating on preparing for their happy day.

The mediation process could avoid this scenario.

The couple can meet together with a mediator either before or after they seek legal advice to discuss what it is they would like and what they would like the pre-nup to achieve in a safe, supportive and confidential environment. During the mediation they will make a full disclosure of their respective financial positions.  They can discuss any concerns they might have about entering into the agreement and could be asked to consider what might be different if the relationship broke down with and without the pre-nup in place.

Whilst the mediator is neutral and will not provide any advice to the couple (s)he can give information in response to questions.  Following a successful mediation, the mediator will send a document called a memorandum of understanding to each party for them to take to their lawyers so that they can each obtain legal advice before the pre-nup is drawn up.

Any of our senior solicitors would be happy to answer questions on or advise you about pre-nups, but if you would like further information or an informal chat about mediation in the context of pre-nups do contact Margaret Kelly on margaret@j-lg.com or 020 3709 8983

The Metro newspaper recently reported that there are 2.4million 20-34-year-olds still living with their parents in the UK. Given the current state of the housing crisis, these figures come as no surprise. What happens then, when the parents of these adult children decide to split up? Will their housing needs be considered? Will child maintenance need to be paid by the non-resident parent? Telling the adult child to ‘Get off the sofa and get a job’ may not be enough!

Traditionally, family law courts consider a child to be a person under the age of 18. In financial remedy proceedings, the welfare of these children will be the court’s first consideration when deciding how the financial capital of their parents should be divided. This means the courts will always try to ensure that the needs, specifically accommodation needs, of any child of the family are met, and in practice, this housing provision will usually last until the completion of a child’s secondary education.

The needs of children over the age of 18 who are not in secondary education, will therefore not be the court’s first priority and any arrangements to house these over 18’s may need to be agreed between the parents themselves. Where there is sufficient wealth to cater for the needs of adult children, or where a “child” over the age of 18 has a disability which prevents them from living independently, it is certainly more than arguable that the court should take into account the needs of such children.

Maintenance beyond the age of 20 must be agreed between parents, or the resident parent may apply to the courts for periodical payments to cover the expenses of a child who is still in education or training or for a child with a disability.

A wealthy heiress has succeeded in her appeal to overturn a financial remedy order that banked on her inheriting from her wealthy father in the future.

The case of Alireza -v- Radwan and others was before the Court of Appeal earlier this month.

The parties married in 1999 and had 3 children – the youngest child was 4 years old at the time of trial. The husband (H) had a successful career in international banking and had an earning capacity of £350,000 plus per annum. The wife (W) on the other hand had been the homemaker and it was accepted by H that W herself had no earning capacity of her own.

In terms of the assets available for redistribution the High Court found H to have a 1/3 interest in a ‘family arrangement’ worth between £12.42m – £15.7m. The ‘family arrangement’ was essentially wealth H had inherited from his father in 1991/1992 along with his mother and sister who owned the remaining 2/3 interest. The ‘family arrangement’ owned assets which included the former matrimonial home and an additional property the parties shared for domestic staff & guests.

The High Court found that of H’s £12.42m – £15.7m share in the ‘family arrangement’, c.£4.3m was available in liquid funds. The Judge found that H also had separate personal liquid assets (outside of ‘the family arrangement’) of £1.64m giving H a total of c.£6m in realisable liquid assets.

W had no assets of her own. W’s father was an extremely wealthy. Both H and W accepted that W’s father’s estate would be subject to the ‘forced heirship’ laws of Saudi Arabia and that as such W’s inheritance rights were both ‘unassailable and indefeasible.’ H argued W could expect to receive a 1/5 share of her father’s wealth (approx. £100m). At the time of the hearing W’s father was 71 years old.

The High Court found that W would likely be a multi-millionaire in her own right upon the death of her father and would, unlike H who had the constraints of the ‘family arrangement’, have unrestricted access to her share of inherited wealth and accordingly awarded W (on a needs basis):

• A lump sum of £2m by way of capitalised maintenance. It was intended that this sum would provide W with income over 14 years;
• £15,000 per year for child maintenance and school fees for the children;
• £25,000 for a replacement car; and
• A time-limited occupational interest in the FMH and the property for domestic staff. W’s right to occupy the FMH would terminate upon either W’s remarriage or the death of W’s father (whichever the sooner). W’s right to occupy the staff flat would terminate in 3 years’ time. W would be permitted to seek permission from H and his family to sell the FMH and move to a similar value property.

The Court of Appeal found that because H had assets between £14m – £17m together with an earning capacity of £350,000 per annum it was wrong for the High Court to deny W a capital settlement to purchase a property outright. This was a marriage of 14 years whereby W has the ongoing care of the children and no earning capacity of her own. As a result, the Court of Appeal remitted the case back to the Family Court to determine the appropriate level of lump sum to be paid to W in addition to her capitalised maintenance of £2m, despite the matrimonial assets largely consisting of wealth inherited by H prior to the marriage. The Court of Appeal accepted that this was a ‘needs’ case but nonetheless considered that W had an immediate need for a mortgage free property for herself and the children and the certainty that that would provide for her future.

The Office for National Statistics (ONS) reported earlier in October 2017 that in 2016 there were 106,959 divorces of opposite-sex couples in England and Wales. (Read their divorce update).

This figure represents an increase of 5.8% in just 1 year. Whilst the figure of 106,959 seems high, the ONS notes that this figure is actually 30% lower than the most recent peak in divorce numbers seen back in 2003. In 2003 the number of divorces of opposite-sex couples was a huge 153,065.

Although 2016 saw a rise in divorce rates of 5.8% there has been a general downward trend in divorces from the peak numbers of 2003. This trend is likely to be attributed to the rising numbers of those choosing to cohabit as opposed to marrying.

2016 represented the second year that divorces between same-sex couples have been possible. The ONS notes that there were 112 divorces among same-sex couples in England and Wales compared to 22 in 2015. 78% of these divorces were among female couples.

One particularly interesting fact offered by ONS in respect of opposite-sex marriages is that 42% of all such marriages are estimated to end in divorce of which half of these are expected to occur within the first 10 years of marriage!

Josiah-Lake Gardiner are pleased to announce that the firm has once again been recommended in The Legal 500 UK.

The Legal 500 UK independently surveys law firms across the UK and ranks them in accordance to practice area. The Legal 500 UK 2017 edition recommends Josiah-Lake Gardiner for services in relation to Family Law and highlights that the firm is ‘committed to its clients’.

Further, The Legal 500 UK 2017 notes that David Josiah-Lake is ‘an intelligent lawyer with a good grasp of children’s issues’ and that Margaret Kelly is ‘knowledgeable and fights well for her clients’.

Josiah-Lake Gardiner was previously recommended in The Legal 500 UK’s 2015 and 2016 editions.

We here at Josiah-Lake Gardiner are pleased that the firm continues to be recognised and recommended for our services in Family Law and look forward to building on our reputation as a firm that puts our clients’ interests first.

David acted for a very successful female executive (W) in financial remedy proceedings at the Central Family Court whose husband (H) had chosen to give up work as he ‘wanted to take a career break’.

Facts/Issues.

W who was aged 45 was a senior partner in a successful business earning a large six figure salary. H who was also aged 45 had, by the time W instructed David, been unemployed since giving up work without agreement from or consultation with W some 3 years previously. He was a bit of a ‘bully’. No prizes for guessing the reason for the tension in the marriage and the subsequent decision by W to divorce H.

Theirs was a 20 year relationship (17 of which as a married couple).

Both parties continued to live at the family home, a London property worth in excess of £1.35m.

Their three children were aged 12, 10 and 6. H claimed to be their primary carer by virtue of his decision to give up work. In reality W remained their primary carer, despite an exhausting work schedule.

H sought a child arrangements order providing for the children to spend equal time with each of the parents.

He sought a larger than one half share of the sale proceeds of the family home, half of W’s pensions and substantial maintenance.

Unsurprisingly, this was not agreed.

Outcome/Judge’s order

After a hearing before a High Court Judge, it was decided that the children would continue to live with W and to have limited contact with H (one overnight per fortnight).

H was awarded ZERO maintenance and NO share of W’s pension assets.

H was though given £500k in return for the transfer of his interest in the family home to W.

Do contact David at david@j-lg.com to find out how he can help you

This particular case study may be of interest to you if you are a city trader or the spouse of a city trader.

Facts/Issues.

The husband (H) in this case is an Oil Broker aged 48 years; his wife (W) is aged 50 and is currently not working but training to be a therapist. There are four children of the family, 2 at university and twins aged 10.

The parties had been married for over 15 years.  H’s net income, including bonuses, amounted to £286k (£138k net excluding bonuses) in the latest financial year; past years over £500k net. The assets schedule was agreed at £1.95m plus pensions of c.£500k.

W proposed a 71% split in her favour, on a deferred basis, even though this would deprive H of his capital for many years, leaving him needing a substantial mortgage. She also sought maintenance of £138k per annum fixed, being the equivalent of all of H’s basic net income, for life. i.e. a guaranteed minimum payment in respect of H’s non-guaranteed bonuses.

Rebecca managed to negotiate for H that W would receive just over 50% of the capital, divided now and maintenance including child support of £68k net per annum plus 20% of H’s bonus capped at £24k until the youngest child reached 21 as opposed to a life time maintenance order for W.

The treatment of bonuses will be of interest to those working in the city or wives of city traders, Rebecca’s argument that to the extent that the maintenance order cannot fairly be met from the husband’s basic income, the structure of the order must reflect the structure of the husband’s income, and that part that is referable to bonus will be subject to a cap.

Contact us now to see if we can help you.

Ryan Giggs is just one of the latest high profile footballers presently embroiled in divorce proceedings following the breakdown of his 10-year marriage to wife Stacey. As has been reported in the press, Giggs is seeking to argue in the High Court that his “special contribution” to the family’s reported £40m+ fortune justifies him leaving the marriage with a larger than one-half share of the assets.

The law surrounding “special contribution” arguments is complex and in recent years the courts have largely not been either receptive of or sympathetic to these arguments.

So, when can it be argued that a party has made an un-matched contribution (and so should receive a larger proportion of the family wealth) and when is an un-matched contribution “special” or “stellar”?

The notion of a “stellar contribution” was first developed in the case of Cowan –v- Cowan [2001] EWCA Civ 679. This case involved assets of circa £12m which were largely amassed by the husband’s ‘genius’ (introduction of bin-liners to the UK). The court recognised that ‘fairness certainly permits and in some cases requires recognition of the product of the genius with which only one of the spouses may be endowed.’

The Court of Appeal in Lambert –v- Lambert [2002] EWCA Civ 1685 were quick to limit “special contribution” or “stellar contribution” arguments to truly exceptional cases. The Court stated that the contribution must be ‘of a wholly exceptional nature, such that it would be very obviously inconsistent with the objective of achieving fairness (ie it would create an unfair outcome) for them to be ignored’.

In Gray –v- Work [2015] All ER (D) 302 (Mar) there were assets, at trial, of approx. £144m. The husband in his career had amassed a fortune of between $300m and $450m in 8 years. The Court grappled with earlier references to the word “genius” and re-confirmed that for a claim of “special contribution” to succeed, ‘some “exceptional and individual quality which deserves special treatment’’’ is required. The Judge went further and said ‘the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.’ The judge also confirmed that a special contribution would need to be more than a windfall and that ‘being in the right place at the right time, or benefitting from a period of boom is not enough.’ The husband, on this occasion, was found not to have made an unmatched special contribution and his wife was awarded £72m.

The Judge even stated, perhaps predicting a future Ryan Giggs, that ‘It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.’ [sic]

One case in which the ‘genius’ argument succeeded is Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam) in which the husband had, throughout the marriage, generated wealth of US$6billion. The judge in finding that the husband had made a “special contribution” and labelling him a ‘financial genius in his particular field’ asked herself the following questions (to which her answer to each of these questions was “yes”):

“1. Can it properly be said that he is the generating force behind the fortune rather than the product itself?

2.  Does the scale of the wealth depend upon his innovative vision as well as on his ability to develop those visions?

3.  Has he generated truly vast wealth such that his business success can properly be viewed as exceptional?

4.  Does he have a special skill and effort which is special to him and which survives as a material consideration despite the partnership or pooling aspect of the marriage?

5.  Would it, in all the circumstances, be inequitable for me to disregard that contribution?”

Giggs, his obvious footballing talents aside, is likely to face a (albeit not impossible) struggle to convince the court of his ‘genius’ – thereby allowing him to walk-away with a greater share of the family’s wealth.

Rebecca acts for the wife (W) of a city trader, residing in Essex , in divorce proceedings.

Facts/Issues

W is aged 37. H is aged 38, There are two children aged 5 and 2. The marriage was of 7 years duration but there was a period of pre-marriage cohabitation.

H is a city banker and his average monthly earnings are £13,500. H offered to pay Rebecca’s client just £2,000 per month in maintenance for three years at which point the monthly sum would drop to £1,000 for a further 2 years and then just child maintenance. H’s solicitors also proposed that W would a receive percentage of H’s bonuses until 2019 and he would pay £1,200 per month for the children until they are 18.

Rebecca Gardiner advised that this offer was not acceptable to W because she is the primary carer to the children, is unable to return to full-time work and the parties enjoyed a high standard of living prior to the relationship breakdown.

H’s solicitors proposed from the sale of the former matrimonial home that W would receive £690,000 to rehouse herself on a capital clean break basis. This amounted to 49% of the total liquid assets.

The H’s solicitors asserted that this should be treated as a short marriage and consequently W should not receive spousal maintenance for very long. With the cohabitation period in mind, Rebecca Gardiner argued that this should be considered a long marriage of 11 rather than 7 years and that there should be at least an equal division of capital as well as a generous maintenance provision to W in light of the constraints to her earning capacity and the children’s welfare needs.

With Rebecca’s negotiation skills the parties reached an agreement whereby W received 53% of the liquid assets, 50% of H’s pension plus retention of her own modest pension fund.

Rebecca also secured maintenance of £36,000 per annum for W until the youngest child turned 18; plus child maintenance at £9,000 per annum per child plus that H paid the children’s school fees for their primary education.

Do contact Rebecca at rebecca@j-lg.com to find out how she can help you.

 David acted for a young (39) male City Trader (H) in financial remedy proceedings.

Facts/Issues

The wife (W) was aged 40. Theirs was a 10-year marriage and they had two young children.  Before their first child was born, both H and W were employed in the City and W hadn’t yet   returned to work. The family lived in a large house in Essex. David was recommended to H by a former client.

H had a good income and substantial pension assets of over £1.5m, whilst W had very modest pension assets and was financially reliant on him.

W did not want to return to work or indeed even to look for work until the youngest child of the family started secondary school which was some years away. She sought all of the equity from the family home, half of all pensions and substantial maintenance for life.

H wanted a clean break (to bring an end to his financial obligations as regards to W as soon as possible) and so was willing to give away the majority of the immediately realisable assets to achieve this.

The combined assets totalled over £3m

Outcome

W was awarded 85% of the equity in/sale proceeds of the family home, but NO share of H’s quite considerable pensions.

H agreed to pay maintenance to W for herself until their youngest reached the age of 12 with no prospect of W applying to extend that term.

W took away the bulk of the liquid capital, but H largely retained his earnings and the entirety of his pensions.

Do contact David at david@j-lg.com to find out how he can help you.

We’re well aware that sometimes our clients are a little bemused by some of the terms that lawyers like to use. Indeed, it can often seem as though the numerous clauses and sub-clauses that are inserted into legal documents are primarily designed to obscure the real meaning of what’s being said.

As lawyers, of course, we understand the need for this type of writing. But as people, we also understand how difficult it can be for non-lawyers to get to grips with some of the jargon that gets used.

So here’s an overview of some of the more common terms you’ll come across when dealing with issues related to family law.

Divorce

The “biggie” when it comes to family law terms. People often say they’ve “had a divorce” or “are divorced”. In legal terms, though, divorce is actually the process you go through when you want to end your marriage contract. Fundamentally, from a legal perspective, marriage is a contract between 2 people. And divorce is simply the means of terminating that contract.

Dissolution

The equivalent of the divorce process for people who are registered as civil partners.

Decree Nisi

An order made by a court when it is satisfied a marriage has irretrievably broken down. A decree nisi does not mean the marriage is over.

Decree Absolute

An order made by a court which signifies the termination of the marriage.

You can read more on our site about the legal definitions of divorce and dissolution.

Separation

A Separation Agreement is a legal document outlining various arrangements that have been made between a couple who have agreed to separate, yet remain married (at least for the time being). There are several reasons you may wish to separate instead of going through the process of divorce or dissolution. (More info at https://www.gov.uk/legal-separation).

Mediation

Not a process attempting to result in reconciliation, mediation is a specific method of helping a separated couple to resolve arrangements regarding eg finances and children. Mediators operate in a manner that enables the couple to sort things out without having to go to court. (Find out more about mediation).

Collaborative Law

This is a process where all parties concerned agree to attempt to resolve their issues in a friendly and conciliatory manner. Collaborative lawyers work with the separating couple to come to suitable arrangements, without the necessity for going to court. (Read more about the collaborative law process).

Pre-nuptial Agreements

An agreement made before marriage, primarily aimed at setting out the terms of any later separation or divorce. Prenups don’t currently have a clear legally binding nature in England and Wales – find our more at our Prenuptial Agreements page.

Marriage

While it’s not exactly romantic, in law a marriage is a legal contract between 2 people. Marriage comes with new legal rights and obligations for each party. Traditionally only available to opposite sex couples, since the introduction of the 2013 Marriage (Same Sex Couples) Act, same sex partners are also able to get married.

Civil Partnership

Before same sex marriage was permitted by Law, civil partnerships were available solely to same sex couples giving practically the same legal rights and obligations of a married couple. (Read more about civil partnership law here).

Cohabitation Contract

Also known as a “living together agreement” or “cohabitation agreement”, this is a contract made between 2 non-married people who live together in the same home. The agreement is aimed at between couples who have decided not to marry or enter into a civil partnership – ie it is designed to be a contract between partners in a relationship, rather than being a simple contract between friends. (Read more about cohabitation agreements).

Child

Might seem fairly obvious, but for family law purposes, a child is defined as a person under the age of 18.

Child Maintenance Service

People still refer to this as the Child Support Agency. The aim of the service is to ensure that a parent who is not the primary carer (or with whom a child primarily lives) continues to contribute to the financial maintenance of their child. The CMS should really only be used in circumstances where the parents can’t reach agreement by themselves.

{UPDATED January 2018 – Our client has recently been in the news again regarding our successful challenge to the ‘out of date’ divorce legislation featured in the story below, including this article in The Mail – http://www.dailymail.co.uk/news/article-5243913/Wealthy-trader-says-husband-won-lottery-cheating.html}.

The eagerly awaited Judgment in our Court of Appeal case of Sharp v Sharp was handed down this morning (13 June 2017). We are pleased to report that our client, Julie Sharp, was successful in her appeal of the lower court’s order.

Their Lordships unanimously agreed that a blanket approach to the equal sharing principle of 50/50 division of all assets acquired during a marriage ‘can only be an impermissible judicial gloss on the statute, which expressly requires the court to consider all the circumstances of the case.’ [86]

The Court stated that ‘if…the equal sharing principle of 50/50 allocation is now applied by courts and practitioners, in cases which are not pre-determined by ‘needs’, to all relevant assets in every marriage, without exception, from the moment the couple leave the church or the Register Office, this would seem to be a very significant and wholly unjustified development…’ [86].

Our case on appeal was that the duration of a marriage is still, by statute (and as such expressly identified by Parliament), a factor the courts should specifically consider when making a final order. As a consequence therefore fairness is likely to dictate a different approach to that of equal sharing of all matrimonial assets depending on the length of the marriage.

This was not only a short and childless marriage but both parties had their own careers and maintained separate finances throughout the marriage. It was argued that these individual factors could justify an argument for a departure from equality but when combined as in this case, created a ‘perfect storm’ which certainly justified a departure from equal-sharing. It was therefore wrong for the High Court, at first instance, to award Mr. Sharp capital totalling £2.725 million which represented exactly 50% of the total matrimonial assets of £5.45 million (after deductions and concessions).

The Court of Appeal has reduced the husband’s award from £2.725 million to £2 million, their Lordships considering that the husband should receive 50% of the value of the parties’ 2 properties (circa £1.3m) and an additional award to reflect the combination of 3 factors:

(a) standard of living enjoyed during marriage;

(b) the need for a modest capital fund in order to live in the property that he is to retain; and

(c) some share in the assets held unilaterally by the wife.

Their Lordships assessed this additional award at £700,000.  In the facts of this case, that amounted to a share of less than 16% of the unilateral assets held in our client’s sole name.

Many of our fellow professionals say this approach is a retrograde step; that it is established and settled law that all property acquired by either party during the marriage, other than by external donation stands to be divided equally no matter how short the marriage, the fact that there are no children, that finances were kept entirely separate and that each party has their own career.

We, at Josiah Lake Gardiner, have never followed suit in advising our clients that such a blanket approach was the right one and are pleased that the Court of Appeal has confirmed that if the contrary has been the approach of many Family Law professionals and the courts it is the wrong approach.

What the papers say:

” UK court cuts breadwinner trader’s divorce payments to husband “ – Financial Times – https://www.ft.com/content/a042a946-5035-11e7-a1f2-db19572361bb

” Couples divorcing after a short marriage ‘may no longer have their assets split equally’ ” – The Telegraph – http://www.telegraph.co.uk/news/2017/06/13/couples-divorcing-short-marriage-may-no-longer-have-assets-split/

” Court of Appeal determines that application of ‘sharing principle’ is unfair in short marriage “ – Family Law Week – http://www.familylawweek.co.uk/site.aspx?i=ed178195

” Cheating husband whose City trader wife made an ‘eye-watering’ £10.5m in bonuses in five years has his divorce payout slashed by £725,000 after he admits affair “ – Daily Mail – http://www.dailymail.co.uk/news/article-4599672/Cheating-husband-divorce-payout-slashed-725-000.html

The desire to be a parent is not specific to gender or sexual orientation. In the past, for many gay men the decision to come out as gay was often coupled with an acceptance that they would never be a parent. Societal norms (and the facts of biology) taught them that <!–more–>having children and being a family was not something that was available for them.

Many gay men would marry in order to avoid society’s potentially negative reaction if they were to “come out”, and some would only discover their homosexuality after marriage and for some after having children. Despite the fact that their homosexuality in no way affected their capacity to love and care for their children traditional attitudes were very different to what they are now. Many judges refused to accept the notion that a good parent could also be homosexual and frequently made the prejudiced, unsubstantiated and speculative assumption that a good parent could not possibly be gay. For such judges, a parent’s homosexuality would always have a negative effect on the children, so the day to day care of the child or children was awarded to the heterosexual parent (even against the children’s wishes in some cases), the argument being that this was obviously in the best interests of the children.

The hearing (or trial) would tend to focus almost exclusively on the issue of homosexuality with the gay parent trying (and in most cases failing) to convince the judge that there would be no detrimental effect on the child; and with the other parent arguing that the child would surely be stigmatised, traumatised, molested, perverted and sexually confused if allowed to live in an homosexual environment. The House of Lords’ case of Re D [1977] 2 WLR 79 is a startling example of the ignorance and/or blatant homophobia of many of the judiciary at that time. It was conceded that the father did not constitute any danger to his son but nevertheless should be separated from him and the child adopted, the House of Lords ruling that the fact that the father was gay “destroys at once the main argument which is strong in normal cases that the maintenance of the (parental) tie with the possibility of parental influence is valuable to a child and should not be cut off.”

Thankfully, attitudes have moved on and there is growing acceptance that the sexual orientation of a parent has nothing to do with good parenting and that same sex parents are as able as heterosexual parents to meet the needs whether physical, emotional or financial of the children in their care.

That is not to say that gay parents themselves should not be insensitive to the effect on their children of homophobic abuse, unpleasant and derogatory remarks from their peers and bigoted attitudes from adults in the community (or even in church). Whilst the children of same sex parents may well suffer prejudice and intolerance the quality of the parenting they receive can far outweigh the negative impact of bigotry.

Adoption and surrogacy have in recent years become the routes taken by gay men (whether on their own or as a couple) in order to become parents.

<strong>Adoption</strong>

Under the Adoption &amp; Children Act 2002 a single gay man or a same sex male couple are able to adopt. Whilst there were 69,540 ‘looked after’ children (ie in the care of local authorities) in England as at 31 March 2015, the number of children adopted in the year to 31 March 2015 was 5,330. Of that sum, 450 (or less than 8.5%) were adopted by same sex families, up from 330 and 240 respectively in the previous two years. There are no available statistics on the number of adoptions by gay men however, but, as an illustration of the (relatively) small numbers, of the 10,915 approved adopters (many of whom would of course be part of a couple adopting together) as at 31 March 2014 just 560 (made up of single men and couples adopting together) identified as gay.

<strong>Surrogacy</strong>

Surrogacy is the practice whereby a woman agrees to carry to term and give birth to a child for someone else. She may be the biological mother but not necessarily so. Usually, at birth, the baby is handed over to and is and is cared for by the intended parent or parents.

It is a criminal offence (punishable by up to three months’ imprisonment or a fine) to negotiate surrogacy arrangements or to compile information with a view to negotiating surrogacy arrangements on a commercial basis. This effectively prevents fertility clinics and professional agencies from providing matching services between surrogates and intended parents.

However, no offence is committed by the surrogate and the intended parent(s) where they negotiate a surrogacy agreement by themselves. Many gay men using this route to become parents have sought out and entered into agreements directly with women overseas.

Surrogacy arrangements are unenforceable in this jurisdiction. If the surrogate changes her mind or refuses to hand over the baby the intended parents cannot compel her to do so by threatening (or taking) court action for breach of contract.

Further, if the surrogate is married then the surrogate’s husband is treated as the legal father of the child, even when DNA tests clearly establish that not to be the case; but if she is not married or in a civil partnership then the biological father will normally be treated as the child’s legal father at birth. If the birth is registered in the UK the intended father can be named on the birth certificate.

A same sex gay couple can jointly apply for a parental order to give effect to their parental rights if certain conditions are satisfied, but a single man is unable to do so. Same sex partners are also permitted to have both names on their child’s birth certificate

There are no reliable statistics on the number of gay men who have become parents with the support of surrogates but anecdotally the numbers seem to be rising year on year.

There are however many same sex families where the parents are not married or civil partners and where one parent has not yet acquired parental responsibility for any child born to or adopted by the other (whether during or prior to the commencement of the relationship and/or a previous relationship) and where that child is now treated as a child of the family. Thus a parent may have no legal status or rights whatsoever in respect of their children which can lead to practical difficulties.

First the parent without parental responsibility may not be able to deal with schools and doctors if the other parent is unavailable to make decisions affecting the child as they will have no recognised status in the child’s life in the eyes of authorities.

Secondly if the relationship breaks down the parent without parental responsibility would need to apply to the court for a child arrangements order to acquire rights in the absence of agreement to spend time with the child.

What would seem to be clear is that although the law in relation to same sex parenting has progressed society’s attitudes towards same sex parents and their family relationships have improved at a much slower rate. We have not yet got to the point where all family relationships are accorded the same value and respect and gay parents are not treated as different and somehow not as good. Will society in time come to accept and recognise a gay partnership with children as a family? Those opposed ask – what do you call each parent? Would two fathers both be called daddy or one daddy and one papa for example? But does the name really matter? It is the parent/child relationship that is important.

Whilst is seems that the Fox TV Network in America is willing to depict and portray somewhat positively same sex parenting there is still wide spread animosity and anger towards gay men wanting to have children. With more and more gay teens in the US committing suicide as a result of homophobic bullying (whether from their peers, parents, the community or the pulpit), there has never been a more important time to look at the whole notion of what a family is and what a parent is.