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Archive for the ‘Family Law’ Category

Cheats Charter Diminished?

The Old Senate Chamber during the US Supreme C...

This week Lawyers working within the family law sector have waited with bated breath  for the outcome of the Supreme Court’s decision on the land mark case Prest v Petrodel Resources Ltd and Others [2013] UKSC 34.

This relates to an extraordinary case about an oil tycoon, Mr Prest worth about £48 million who attempted to evade his responsibilities to his wife upon Divorce by using legal arguments in relation to commercial law and corporate structures. This is known  by family Solicitors as the ‘cheats charter’.

Effectively, where one spouse has set up a Limited Company, this has a legal entity in its own right unless there is evidence of impropriety by the Director(s) , the Company cannot be Ordered to take any steps or action by the Court.

Whilst the Supreme Court voted unanimously for the Divorce Courts to be at liberty to redistribute assets that were held upon trust for the sole beneficial interest of Mr Prest by the Company (consisting of a multi million pound property portfolio); the Court made it clear that this was not a case whereby the ‘corporate veil‘ could be lifted.The Company was directed to transfer the property portfolio worth £17.5 million to the wife.

So in effect, the decision upon strict interpretation of the case, can be said to have strengthened the cheats charter, allowing those in business to consult further with their advisors to tighten up their corporate structures to make sure that there is no evidence of a link between the owner and the Company to avoid the outcome in this case.

That said, there is no doubt that the decision of the Supreme Court will be of huge benefit to spouses  where there are business structures (whether substantial or modest) that have been set up with the intention of defeating (usually the wife’s ) claims for financial remedies under the Matrimonial Causes Act 1973. The Supreme Court Judges have sent a warning shot to scheming, underhand spouses that where ever possible, Justice will be done within the ambit of the  UK law.

Regardless of the extent of your assets and respective financial positions; if you are contemplating Divorce  or separation from your partner or you have already separated, I would recommend that you consider in the first instance, the services of a family mediator to reach your own informed agreements about property, finance and/or children.

Family Mediation (in suitable cases) will prove to be less  stressful and will allow for on going communication between you and your ex partner. It will also limit both the financial and emotional costs of your break up. Please visit my website for more information.

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Unbundling of Family Law Services

As a result of the legal aid cut backs, family solicitors are now ‘unbundling’ their legal services to meet the demands of the emerging client base that cannot afford to instruct Solicitors on a traditional retainer basis. Please read the update on the Law Society Website here.

For those of you who are going through the traumatic time of a family break up or are contemplating separation/divorce from your partner, the above news will be of help to you if you are worried about securing legal services that is affordable.

Effectively, unbundling allows you to obtain legal services on a pay as you go basis on areas of your case that you feel it is absolutely necessary for you get  legal advice and /or representation without having to instruct your solicitor to have full conduct of your matter on a formal full retainer basis.

There will have to be a clear understanding about what steps your solicitor is instructed to undertake on your behalf e.g. providing initial advice on law and procedure, ad hoc advice to help you represent yourself in Court proceedings or checking and drafting documents.  The case will  be ‘client-led’ as opposed to ‘solicitor-led’. This allows you to stay in control of your case and limits your legal costs moving forwards. So, your solicitor will offer legal services on what is known as a ‘partial retainer’. If you would like to find out more information about how this works in practice please see the Practice Note issued by the Law Society for Solicitors here.

This kind of service will only be suitable for those of you feel confident and competent to take control and charge of your case with bespoke services and support from your Solicitor.

If you are contemplating separation or divorce from your partner or you have already separated, I would suggest that you consider in the first instance, the services of a family mediator to reach your own informed decisions about property, finance and/or children.

Family mediation will prove to be a less  stressful  and a more dignified option to resolving your differences. It will limit both the financial and emotional costs of your break up. For more information visit the Family Mediation pages on my website.

The Children & Families Bill – What Separating Parents Need To Know

H.M. King George VI and Queen Elizabeth in the...

There are a lot of Bills that do not become law but the Children & Families Bill is one that is very likely to be given Royal Assent soon, no doubt with a number of recommended amendments after it has been scrutinised by both the House of Commons and House of Lords. To have a better understanding of how Bills become law, please visit the Parliament Website.

The Bill sets out to make provision for vulnerable children and support for strong families. It will reform the current systems for Adoption, Family Justice, children with special educational needs (SEN) and looked after children.

Of particular importance to separating parents is the reforms proposed to the Family Justice System to help deliver better outcomes for families and children facing family break up or where children may have to be taken in to the care of the local authority.

The proposals are made as a direct result of the Family Justice Review to improve our Family Justice System. The key areas that will concern you if you are contemplating separation or you have already separated and you have dependant children are:

  1. The Bill proposes to replace the current ‘residence and contact orders’ with a new ‘child arrangements order’. This means that the Court will be asked to regulate arrangements for the child/ren and make decisions on whom the child should live, spend time or have other types of contact with if you cannot reach your own agreements either directly, via family mediation or other forms of dispute resolution. This should encourage both separating parents and the Court to focus on the content of any agreements/Orders, rather than the title/labels given to the arrangements.
  2. There will be a presumption of joint parental involvement (shared parenting) unless such involvement will put the child/ren at risk of suffering harm. It is hoped that this proposed amendment will reinforce the principle that both parents should play a key role in their child’s life/upbringing after separation subject to it being safe and consistent with the child’s welfare.
  3. Making it a mandatory requirement to attend a mediation information and assessment meeting (MIAM) with a regulated family mediator to find out about family mediation and other out of Court options to resolve disagreements about the child/ren’s arrangements before going to Court. Research studies have shown that family disputes resolved via mediation are less acrimonious than those that are settled through the Court system. Also, decisions made by agreement are more likely to be kept as opposed to Court imposed Orders.
  4. Introduction of a 26 week limit for cases to be concluded when an application has been made by a local authority to take a child/ren into its care. This to avoid the current unacceptable delays in such cases.

Please read the fact sheet provided on the Department of Education website for more information on the proposed changes. It is intended that this Bill will become law by April 2014.

Unmarried Couples & Unfair Property Laws

Marriage Day

Breaking up is never easy…but there is a better way…

 

There has been much debate about the unfair property laws that affect separating unmarried couples in the UK.

Not withstanding a call for reform from lead bodies and Judges that work within the family law sector, the Government has resisted implementing proposed changes that would make the system fairer for separating cohabitees.

Cohabitation or Living Together Agreements are becoming increasingly popular in the UK as a result of the injustice  that the current laws are causing. 

It is a well known fact that marriage rates are falling and people are choosing to live together instead. However, as the law stands now, there is very little legal protection for cohabitees who suffer a relationship breakup and need to resolve disputes that may have arisen in respect of property and/or children.

You will often hear the term “common law husband and wife.” It is a mistake to think that if you live with someone for a period of time you acquire the same rights as a husband and wife. This is not true. Cohabitees cannot rely on the Family Court to determine an appropriate financial settlement for them as Divorcees can. The law relating to unmarried couples and property rights is very complex and can lead to harsh outcomes because the Judge’s hands are tied by the existing laws. Please read related article below.

For this reason, more people are turning to Cohabitation Agreements to record the financial arrangements that are to apply in respect of their cohabitation and what should happen in the event that the relationship fails. Living Together Agreements are contracts that can include provisions dealing with income, property, children, wills and legacies, ownership of chattels and many other matters that may be relevant to you and your partner.

It is in your best interest to take legal advice on having a Cohabitation Agreement drawn up.  With out a doubt, this will save you and your partner a lot of heart ache and costs of litigation in the event that your relationship comes to an end.

Also, if you are buying a property together than consider having a declaration of trust drawn up or making it clear on your purchase documents how you both intend to hold the beneficial interest (capital) in the property. The Land Registry has devised a new Form JO to make it simpler for cohabiting couples to declare their intentions. For more information, see the Land Registry’s public guide to joint ownership here.

If you are contemplating separation from your partner or you have already separated, I would suggest that you consider in the first instance, the services of a family mediator to reach your own informed agreements about property, finance and/or children.

Family Mediation (in suitable cases) will prove to be a less  stressful option to resolving your disputes and will limit both the financial and emotional costs of your break up.

Child Maintenance – More Changes!

The Government has introduced a new scheme for the calculation and enforcement  of child maintenance that will be managed by a new organisation, called the ‘Child maintenance Service’ (CMS). This service will in time replace the current or old system that we have all become familiar with, the Child Support Agency (CSA).

The scheme will be phased in over the next few years with the aim of converting all cases into a single system by 2015.

The calculation under the new scheme will based on the non-resident parent’s gross income as opposed to net income (as per the CSA scheme) to make the calculation simpler. There is in turn, changes to the percentages to be applied.

For a gross annual income of up to £41,600 (or £800 per week) the percentages applied will be:

  • 12% for one child;
  • 16% for two children; and
  • 19% for three or more children.

However, any excess of income over £41,600 per annum will be subject to the following extra rates:

  • 9% for one child;
  • 12% for two children; and
  • 15% for three or more children.

Gross income above £3,000 per week (£156,000 per annum) will be outside of the jurisdiction of the CMS and in these high income cases you will  need to seek Court intervention in the event that you cannot reach your own agreements.

If you are unable to agree terms of voluntary child maintenance then you may have to invoke the services of the CMS. The Government plans to introduce fees for using this service for calculating the assessment and requesting payment through the service/enforcement. For more information please click here.

The idea behind the new scheme is to encourage separating parents to agree their own arrangements outside of the statutory system by entering in to ‘Family Based Arrangements’ (FBA’s).  Most parents who are able to communicate and agree arrangements think this is a better option as it allows for flexibility, remains private and no one else gets involved. FBA’s are quicker and easier to set up, with no other costs. For for more information please click here.

Parents are encouraged to use family mediation services to reach agreement on all issues relating to the breakdown of their relationship/marriage and often mediators can help separating couples reach  agreements on child maintenance issues avoiding the bureaucracy of statutory systems, delays and costs.

New FM1 Form For MIAM’s

The Ministry of Justice (MoJ) has issued the following press release regarding the new FM1 form for MIAM’s.

The MoJ anticipates that the press release will highlight the wider plans to reform the family justice system, which encourages more people to consider mediation and other types of out of court resolution.

Having considered the new form, whist it has the benefit of giving additional information about mediation, for completing the form and on sources of help (on pages 4 & 5), the wording in some parts of the form could have been written better for people to understand.

Press Release

On 1 December 2012 the Ministry of Justice is launching a new version of the Family Mediation Information and Assessment Form (FM1).  The form should be completed by anyone applying to the Courts for assistance in resolving a dispute about parenting or finances following relationship breakdown.

This requirement forms part of the Pre-Application Protocol for Private Law Proceedings, issued by the President of the Family Division in April 2011. This asks that parties involved in disputes of this nature attend a Mediation Information Assessment Meeting (MIAM) to learn about mediation before making an application to the Courts.

A Self-Represented Litigant, their legal representative, or an accredited family mediator trained to carry out a MIAM, must sign the relevant section(s) of the form confirming that either an exemption applies, mediation is not suitable or mediation was attempted but failed. The form should be filed at court on application.

Legal and mediation practitioners are reminded of the need to advise their clients – potential applicants and respondents – of the current requirements.

The new version of form FM1 will be available on the HMCTS Form Finder from 1 December 2012.

To support the launch of the revised form, Guidance for HMCTS has been provided to assist court officers in processing private law applications and to provide advice on what to do if an applicant has not completed form FM1. While there is at present no legal requirement to file form FM1 on application we anticipate a more robust approach across the Courts in implementing the requirements of the Pre-Application Protocol. 

Changes to form FM1

Changes to the form include highlighting the requirement for Part 2 of the form to be signed off by an accredited mediator, one who is affiliated to one of the Member Organisations of the Family Mediation Council and trained to carry out MIAMs. This will, we believe, help to direct potential clients to quality mediation services.

The Form also now includes notes and information about mediation, for the benefit of Self-Representing Parties. Links are included to the Family Mediation Service Finder, legal aid information and the recently launched Sorting Out Separation web app.

Background

Changes to the form have been brought about following collaboration between the Ministry and the Family Mediation Steering Group, HMCTS and the Family Procedure Rule Committee.

The primary aim of the changes is to encourage more people to consider mediation and other types of out of court resolution. This comes as part of wider plans to reform the family justice system, following the Family Justice Review which concluded in November 2011.

Shared Parenting

There has been much debate about the Government’s plans to introduce a new clause to the Children Act 1989 to provide a presumption in statute for shared parenting. The explanatory notes to the proposed change in the law states that the amendment is intended to reinforce the importance of children having an ongoing relationship with both parents after their separation subject to

  1. it being safe and
  2. in the child’s best interests. 

Those groups supporting the change believe that it is long over due and that a change in the law will secure equal rights for both parents when the Court considers applications under the Children Act .

However there is grave concern from other groups that the change in law will lead to more litigation with separating parents becoming concerned about their own rights under the proposed  new terms as opposed to what arrangements will best serve their children’s needs.

Currently, the main focus is on the welfare of the child. The key concern with the proposed amendment is that separating couples will have competing claims under the Children Act about their right to shared parenting verses the welfare of the child, which should be paramount.

Having practiced as a family solicitor for over 20 years, my experience has been that the starting point for most professionals involved in family break down, including the Judiciary,  is to strive for arrangements that will allow the children to spend quality time with both parents and to allow for an ongoing, meaningful relationship with them. This has always been subject to the two proviso’s as set out above.

Usually the parents agree to this unwritten principle except they do not always agree on how to share the time with their child/children, which  has then lead to Court applications for Contact and Residence Orders under the Children Act .

It seems to me that by adding the wording proposed to the existing statute that is already implicit, is not going to reinforce equal parenting rights but will unwittingly lead to more conflict and confusion, thus more cases in Court as opposed to settling out of Court, which was supposed to be the Government’s main aim with the pre action protocol on family mediation issued in April 2011.

I hope that those of you  facing family breakdown do not get caught up in the drama of competing rights to shared parenting and that instead, you focus on agreeing arrangements for your children  with your ex partner that will best serve the children’s needs and in turn, will allow for ongoing communication between you and your ex partner and a better working  parenting relationship.

If you are unable to agree arrangements directly and you and your ex partner need help with communication, with the support of a family mediator, you may be pleasantly surprised at what you can achieve and agree on moving forwards. Why not give family mediation a go?  For more information visit the Family Mediation pages on my website.

Top Tips For A Hassle Free Divorce!

  1. Do as much of your own research on the law that affects your rights and responsibilities upon separation/divorce – with the World Wide Web at most people’s fingers tips – this should be relatively easy!
  2. Where access to the internet is limited or not available – you can get a lot free information from Law Centres, Citizens’ Advice Centres, or from other similar not for profit organisations in your locality, make sure you are clued up!!
  3. Typically, for married couples/civil partners, you will need to know  how to dissolve your marriage/civil partnership and the main factors that the Court will take into account when considering the terms of a financial settlement under the Matrimonial Causes Act 1973.
  4. For unmarried couples the law is more complex and will be governed by trust law principles and  the Trusts of Land and Appointment of Trustee Act.
  5. When looking at children’s arrangements you will need to be familiar with Children Act 1989  and the factors that the Court will take into account when considering what arrangements will be in the best interests of your child. You can find useful guides on the cafcass website here.
  6. Know that all solicitors/legal advisors work from the same hymn sheet and are governed by same law, and so in the usual run of cases where there are simply not enough capital and/or income resources to sustain the same level of living standards that you had when you were a couple, there will be little scope for creative legal arguments as ‘needs will trump all’  in every such case.
  7. Take stock of your personal circumstances – create your own schedule of assets/liabilities/incomes/budgets to compare your  financial positions and make sure this is undertaken on an open and transparent basis with both of you having had the benefit of either considering supporting documents so that there is no doubt about the information on the schedule or you may waive the right to exchange financial information if you both have had full first-hand knowledge/access to the information and there is no doubt or concern about the same.
  8. Make sure you look after your health and emotional /psychological well-being. Going through a separation/Divorce will probably be one of your most difficult life challenges. Some separating couples have described it as ‘a living bereavement’ and have stated that it was harder to cope with than an actual bereavement of a close family member/friend. Take all the help and support that you can. Not only from family members and friends but most importantly, from other professionals who are qualified and trained to help you at this time of emotional crisis. For example, your GP maybe able to prescribe short-term medication to help with any feelings of low-esteem and he/she may refer you to a specialist Counsellor/Therapist to give you more support. Visit Relate website for more information.

Visit the legal Information Hub on my website to get started and please give serious consideration to family mediation in the even that you cannot reach your own direct agreements. This will serve you, your ex-partner and most importantly, your children well. It is the least self-destructive way of resolving family disputes and reaching resolutions, allowing you the freedom to move on to a brighter, happier and stress free future.

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