The Family Law World is still awaiting the Supreme Court’s decision in what would be the biggest case of the year so far. This is the Petrodel v. Prest case where the Supreme Court has got to decide whether unscrupulous spouses can hide all their assets behind complex corporate structures so that they cannot be attacked by the less well-off spouse in a divorce case. The Court of Appeal followed the standard company law principles that only in very rare cases can one pierce “the corporate veil” and the wife therefore could not have an order from the divorce Court Judge giving her assets legally held by one of these corporate structures even though the Judge found that the underlying reality was that the husband controlled those companies and, in effect, the company assets really belonged to him.
The Supreme Court finished hearing the case some months ago but clearly are having difficulty in reaching a decision as there is no sign yet when they are going to let us know what they have decided. Will company law rule the day or will the historic “broad-brush” approach of the divorce Judges, looking at the underlying realities, hold sway? Watch this space!
Interesting family law tit bits to be mulled over in the meantime are as follows:
Where's the sex in same-sex marriage?
Same sex marriage and the prospects of same sex marriage becoming law is still a very hot topic. Whilst the Government has a majority trying to push through the necessary legislation in the House of Commons, there is growing opposition from all quarters.The House of Lords is yet to debate and vote and the result is by no means certain.
What is certain and is bound to cause quite a storm if the law is passed, is that there could be an unusual attack on any new law using the Human Rights Act and European convention. As presently drafted, gay partners who have an affair with someone of the same sex will not be able to use “adultery” as a grounds for divorce because as everybody knows, the legal definition of adultery involves intercourse between a man and a woman. Similarly same sex couples will be unable to annul their marriages on the basis of non consummation (a standard ground for a Decree of Nullity) for similar reasons.
But heterosexual married couples naturally will continue to be able to use adultery and non-consummation as grounds for divorce and a Decree of Nullity with the result that there are various lawyers who have already gone on record to say that this amounts to “clear discrimination” and if the new law is passed, they will mount a challenge to the new law based on human rights. What a strange world we live in!
A survey has just announced that if you marry today for the first time there is more chance your marriage will end in divorce than if you were marrying for a second time today.The latest statistics show that approaching one in two marriages for first timers today are likely to end in divorce whereas second timers only have approximately a one in three chance of the marriage ending in divorce. Not sure what the moral is here but sadly divorce lawyers are still going to be in demand for years to come.
Maintenance in the City
Another very recent survey has found that there is a big discrepancy between the divorce Courts in the main city centres such as Leeds, Manchester, Birmingham and London and other provincial divorce Courts when it comes to a spouse’s right (normally a wife) to long term or lifelong maintenance. It would seem that in the big city centres a wife still has a good chance of getting lengthy, or lifetime, maintenance in an appropriate case whereas, in the regions, the divorce Judges take a more modernistic view that wives should not be reliant on lifelong maintenance and ought to get back to work and self-sufficiency as soon as practicable after a marriage is broken down.
In fact, there is a growing trend in some of the more recent cases about on-going maintenance, as confirmed at various family law conferences in the last 6 months, that all divorce Judges are beginning to think more along the lines of wives having to make more effort to become self-sufficient and not automatically thinking that on marital breakdown they have a right to life long maintenance. Another case of watch this space for this developing trend and perhaps a leading new authority from one of the higher Courts.
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In 2012, the child maintenance service (CMS) was taken over by the Department for Work and Pensions, which sought to introduce a new regime that encourages parents to settle their disputes without having to rely on the legal framework. Parents are now urged to seek ‘Family Based Arrangements’, which would avoid increasing animosity between parents, and would benefit the child as they, among other things, avoid lengthy court and administrative processes.
The big difference is that in working out the actual child maintenance figure, the parents have to use a formula based on the paying parent's gross weekly income, instead of the previous net income.
It is hoped that by the end of 2013, the new regime will apply to parents who have two children with the same father, and by the end of the following year, will apply to every parent.
A number of features exist in order to facilitate trust between parents, and to discourage them from using the old-fashioned legal framework. These include introducing costs of up to £45 when applying to the child maintenance service and penalty charges on the paying parent if payments are not made on time. A 20% fee will also be added to the paying parent’s liability, as well as 7% being deducted by the parent receiving the payment.
On top of the processes used to dissuade parents from relying on CMS, there are retained a number of benefits in the new system. If a child stays with the non-resident parent for at least 52 nights in a year, the amount that parent would have to pay would be reduced by a seventh. In addition to this, if the paying parent has other children living with them, they will be entitled to a reduction of their weekly payments by up to 19%.
It should be noted that pending the start of the new regime, the old CSA basis of calculation will remain the same.
For further details on changes to the scheme, please click here.
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I know that if I take the route of surrogacy, I have to be careful to ensure that I can get my child back in to the UK. Before I instruct lawyers, is there useful guidance anywhere?
International surrogacy can be fraught with difficulties, not least as a result of differing laws in different countries in relation to issues as fundamental as who is deemed to be the parents of a child born via surrogacy.
However, the UK Border Agency has published some helpful information on its website, including guidance known as "Inter-Country Surrogacy and the Immigration Rules." This provides a useful introduction to the legal complexities that will confront anyone embarking upon international surrogacy.
It is strongly recommended that legal advice be taken prior to taking any steps down the path of international surrogacy, both in relation to the immigration problems that you will inevitably confront, and the legal requirements that will need to be satisfied in this country when your child is granted leave to reside here.
Is it possible to enter into a Parental Responsibility agreement before the child is conceived?
All parties can enter into a pre-conception agreement setting out whether the donor will have parental responsibility or any rights and obligations in relation to the child. This will not be enforceable or binding, however it can be used as good evidence in the future, should a dispute arise at a later date between you and the donor. If you have already conceived a child, but you have not yet given birth, the parties can enter into a pre-birth agreement. Again, this will only be good evidence if there are proceedings or arguments in the future. Those entering into such agreements should obtain legal advice before doing so.
Caroline Kelly writes a monthly legal Q&A column in Pink Parenting Magazine, and the questions featured on this blog were first published in that column.
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We are a gay couple who have just adopted a girl. We really want to choose someone to be her guardian just in case something happens to us, what do you suggest?
Anyone with parental responsibility for a child can set out their wishes as to who they would like to look after their child after their death. This is commonly dealt with in a will, but can be done in other ways, provided it is recorded in writing and is signed and dated. Subject to limited exceptions, this appointment will then take effect on the death of the parent who has appointed the guardian, and will confer parental responsibility on the person appointed as guardian.
It may sound odd, but someone with parental responsibility can appoint a guardian and that appointment can take effect on the death of the appointer, even if there is a parent still alive, if that parent never acquired parental responsibility, or if there was a residence order in place in favour of the person making the appointment. If this is not the case, the appointment can only take effect when there is no longer anyone else with parental responsibility alive.
Most parents agonise over the decision of who to appoint as guardian to their child – should they appoint friends (who understand their lifestyle and aspirations for the children) or family (who may have a closer relationship with the children)? The point is that parents are best-placed to make this kind of decision – the future of a child left with no parents will be decided by the Courts, albeit with input from interested parties such as family members.
Watch out and make sure that if you are in a civil partnership, you and your civil partner appoint the same guardians and specify that the appointment of the guardian is to take effect only upon the death of both of you. Be very careful also that you do not individually appoint different guardians accidentally – if you each have parental responsibility and both nominate a guardian, although the appointments will not take effect until you have both died, once that happens, both guardians will be appointed, a situation that could easily lead to conflict and the involvement of the Courts.
A note of warning should be sounded in terms of the interrelation between surrogacy and the appointment of guardians – as above, only a person with parental responsibility for a child can appoint a guardian to care for that child after their death. However, until a parental order is obtained by the commissioning parents in a surrogacy, the commissioning parents do not have parental responsibility for that child with attendant problems on the appointment of guardians. Although you might think that a scenario would never arise in which this would be a concern, there was a recent case before the High Court in England to determine whether a parental order could be granted to commissioning parents where the commissioning father had died between the application for the order being made, and the application being decided by the Court.
A final caution - appointing a guardian for your children is not fool-proof comfort that that person will be looking after your child if you die – the appointment can be brought to an end by the guardian themselves, or by an order of the Court, although this is only likely to happen if there is some sort of problem.
Caroline Kelly writes a monthly legal Q&A column in Pink Parenting Magazine, and the questions featured on this blog were first published in that column.
Gay Marriage – perhaps next year?
At the Tory Party Annual Conference, the Prime Minister has reaffirmed his determination to bring in as soon as possible (meaning next year) legislation permitting gay marriage. This is in the face of heavy opposition from his own back benchers and other groups across the country. He confirms when Parliament votes it will be a free vote but is convinced that a significant majority of MPs will vote in favour and that a significant majority in the country at large are in favour.
I still have my doubts. This really is a very hot potato and there are so many other pressing issues and problems the Prime Minister and the Government have to deal with that I just wonder if time will be made available for the big debate and vote in the Parliamentary calendar next year.
Nuptial Agreements to become legally binding?
A big surprise from The Law Commission which is continuing its consideration of and consultations about Nuptial Agreements. It has produced a supplementary consultation paper running to no less than 123 pages. It states that it is now considering changing tack somewhat. Rather than simply proposing that “qualifying” Nuptial Agreements should be legally binding, the Commission is concerned with what this might do to the weaker financial party and has said that “needs” of that weaker party must not be overridden. There is detailed discussion as to what is meant by “needs” which has not really been clarified by the Courts to date and the whole issue of whether needs should come into the picture about binding Pre-Nuptial Agreements and how that term is going to be defined really opens a new can of worms which may eventually prevent any new law being passed by Parliament.
The consultation process continues and as directed by the Government, it is now extended to possible fundamental changes to financial provision on divorce (irrespective of Nuptial Agreements) in relation to how wealth acquired before marriage and gifts and inheritances at any time should be dealt with.
This never ending saga from The Law Commission simply continues to gather more and more stacks of paper and this will continue as the Commission has stated that it expects to produce its final report - wait for it - as early as Autumn 2013! Even if clear, concise and broadly acceptable proposals are made by The Law Commission (and there must be some doubt about this), we still have the same problem as regards gay marriage, namely will the Government/Parliament find enough time to debate and then pass any new law on this subject with everything else it has to do.
Judge acts as “judicial reasonable parent”
A fascinating and most important case has just been decided by the Court of Appeal (Re: G) this week in relation to a divorced mother and father being in disagreement as to the proper education for their 5 children. It was therefore left to the first instance Judge, whose decision was endorsed by the Court of Appeal, to decide the issue on the basis of what the Judges thought was in the best interests of the children.
This particular case concerned 2 members of the Ultra-Orthodox Jewish Community (the Charedi). The father wanted the children to be educated within the schools of the Ultra-Orthodox community because he said it was a “way of life” issue and it was what was agreed between the parties during the marriage. The mother after divorce decided she wanted the children to have what she considered was a better education and be open to more advantages and opportunities as they grow up. So she wanted them educated in the normal Orthodox community schools where, for example, children did A-levels and went on to university – which they do not in the Charedi community.
Leaving aside the distinctly religious aspects of the case, the Court of Appeal’s decision caused it for the first time to review and state in a new way how Judges should deal with the question of what was the right education in any particular case for children where there was a legal battle between the parents as regards different methods of schooling.
In essence, the Court laid out very modern principles which should be followed by a Court when acting as a “judicial reasonable parent”. They were:
- That equality of opportunity is a fundamental value of society – equality as between different communities, social groupings, and equality between men and women, and boys and girls.
- That society fosters, encourages and facilitates aspiration, aspiration both as a virtue in itself, but also a child’s own aspirations.
- That society’s objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead and to give effect to their aspirations. That is, to maximise the child’s opportunities in every sphere of life as they enter adulthood. And linked to this, a Court must be careful about approving a regime for a child that would limit the child’s ability to make decisions in the future.
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Cruise divorce ends quickly, perhaps because of pre-nuptial agreement?
In the face of what looked like becoming a massive media celebrity divorce scrum, thankfully and with great respect to the two of them, the Cruises reached a very quick settlement on divorce, money and their child arrangements. Millions of dollars of fees have been saved (shame for the lawyers involved!) but wonderful news for the two stars and Suri their daughter. No mean feat to reach a negotiated settlement so relatively quickly and rarely happens today, be it celebrities or the more humble Jim and Janet on the street. Quite possibly, the existence of a Pre-Nuptial Agreement (whatever it contained) helped the parties settle speedily.
High Court Judge under the cosh again
Eminent High Court Divorce Judge, Mr Justice Nicholas Mostyn, is in the news and under the cosh again. Allegations have been made that he made unflattering remarks about his wife’s Q.C. and legal team (the Judge is involved in his own bitter divorce case with his wife) and this prejudiced another of the Q.C’s clients when he was appearing before Mr Justice Mostyn in this other case. Whatever the facts about this one, the sooner the learned Judge’s own divorce case can be resolved the sooner his formidable intellect can be put to use on the most important and most difficult divorce cases without anybody thinking he is wearing more than one hat when he is sitting in Judgment.
Gay marriage allowed in Scotland
Scotland is going to be the first country in the United Kingdom to permit gay marriages. The Scottish government has just announced it is going to introduce measures enabling full gay marriages and not just civil partnerships to take place in Scotland despite heavy opposition from various religious and other groups. In England and Wales, the government is involved in a long consultation process with the aim of bringing in new legislation, if all goes well, in 3 years’ time, 2015. But will this government still be in power then and will any new government have the same appetite to push through such new controversial legislation?
Government plans to revamp child support system
The government has also just announced that it is definitely going to bring in new measures later this year to change the whole child support system currently dealt with by the Child Support Agency. There will be a whole new procedural wrangle to deal with and the basis of calculation for child support is going to change dramatically. In what looks like a short sighted cost cutting exercise the thrust of the changes will mean parents are encouraged to sort out child support themselves and if they want to use the new government agency they will have to pay for the privilege, which they don’t now. Howls of protest have begun and some say that this will put off 100,000 mothers who will thereby suffer having no maintenance from absent fathers. A 45 page consultation paper has been produced by the government so the final form of any changes are not clear cut as yet. Therefore please watch this space.
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Cruising towards divorce
Another day, another celebrity divorce in the media. Tom Cruise and his latest are splitting and surprise surprise, the media report Mrs Cruise/Holmes is starting a jurisdiction battle to try and have child custody/child support heard in New York where she thinks she has a better chance of retaining sole custody of Suri and of having a greater amount of child support paid to her. In relation to the money side of things for herself, thankfully, unlike other well-known celebrities, Tom Cruise was sensible enough to have had a Pre-Nup prior to marrying Ms Holmes and therefore her financial claims are limited to what is in the Pre-Nup – though reports differ as to whether La Holmes gets zero or a certain amount for each year of marriage! The position in the States could be similar to here in the UK where Pre-Nups can never really be effective to cover what happens to children and child support which will always be left to the parties to agree (if they are sensible) or for the Court to decide if they are not. It looks like this one will run and run and will give plenty of newspaper gossip inches for us all to chuckle over – particularly if the long rumoured real private life of Tom Cruise spills out of the Court!
Call for divorce law reform
A news item not covered that widely but which is very important is the statement by the Chair of the Family Law Bar for reform in the divorce laws to make the financial and property consequences of divorce more certain. Whilst there is a plethora of case law to help lawyers and divorcing parties work out an appropriate settlement on divorce, the basic law is that there is a complete discretion to the divorce Judges to make what they consider to be a fair settlement. Nicholas Cusworth Q.C. (the aforementioned Chair) is now saying that there is still too much uncertainty which leads to lengthy cases, substantial costs and on-going acrimony between the parties. Far better Parliament tries to set out in a statute clear rules as to who gets what on divorce. I wrote a long open letter to The Times many years ago saying exactly the same thing. That fell on deaf ears and I fear Mr Cusworth’s plea may do so as well with the Government having so many other pressing and priority issues to deal with.
Privacy -v- Press freedom in divorce
Hot off the presses – newspapers report today that a divorce Judge has ruled in favour of the unnamed father of the unnamed husband to prevent publication of sensitive financial/business information disclosed in Court during the husband’s divorce case. Certain members of the press were allowed to be present but were ordered not to disclose names or the details. The Judge said that this was a case where the right of “privacy” trumped “freedom of information” and was an exception to the recent Rule change allowing press publication of financial divorce cases and “what lies beneath”. Must have been some pretty sensational information in this case. Nonetheless divorcing parties must never forget if they don’t settle and go to Court, there’s now every chance any salacious personal or financial information will hit the press.
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Main item of news is the Government’s recently produced consultation paper suggesting another new statute to encourage "shared parenting" and more involvement of fathers in looking after children on relationship break up. There have been lots of mixed comments about this proposal. Whilst organisations such as Fathers for Justice naturally support a change emphatically inscribing in statute law the rights of fathers and the obligations of the Court to make sure those rights are put into practice. Others, especially a lot of family lawyers, are not so sure.
We firmly believe any such new statute is not necessary, as what is already there works. The law is clear at the moment and in recent years the Family Court judges are increasingly making sure the law works. Firstly, it is and has always been the case that statute and case law says that the children’s welfare and best interests always come first. Second, the Courts have undoubtedly recognised and held in recent times that a father must be involved in the bringing up of his child and therefore have regular contact, including staying contact, or even be the primary carer and have the residence of the child where appropriate.
As others have commented, the big problem is that of enforcing Orders against mothers who have residence to implement Court ordered contact to the father. There are numerous cases where for whatever reason a mother does not accept and will therefore not do what a Court has ordered. Often this has more to do with history and emotion and not what is best for a child.
To some extent, that has been recognised by sweeping new powers given to the Judges in recent legislation (the Children and Adoption Act 2006) which enable the Court to make draconian orders against a mother who will not follow a Court’s order in favour of the father. For example, after certain procedures, the Court has the power to imprison the mother, she can suffer a heavy financial compensation Order, she can be ordered to do community service and even, if the Court has to, it can change the residence so that it is ordered that the children live with the father who becomes the principal carer and not the mother.
What really needs to be done, and we do not think this has yet been attempted anywhere, is an immediate and extensive countrywide survey of what the various Family Courts are doing by way of using these new enforcement powers and how successful they are. We would suggest only after the results of such a survey should any question of a change of the law be considered and only if such a survey shows that these new enforcement powers are not being used by the Courts or are still not having the desired result.
On the vexed and continuing subject of a change in the law to allow "Gay Marriage" it might be worth noting that we took a straw poll at a recent breakfast workshop we ran among a broad range of financial professionals (brokers, bankers, accountants, financial advisers) and 70% of the assembly were in favour of gay marriage being allowed in law. If that was representative of the public at large, then undoubtedly Parliament should make that change when the free vote is undertaken by MPs.
Hold the presses – The Government now just announced they want to spend £14m to introduce a "Divorce App" or "widget" to encourage amicable agreements when spouses/partners separate! It will give help and advice on lot of practical issues such as to prevent fighting in front of children, organising child support payments, and how to deal with stepchildren and lots more. What next you might ask!
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How the family law world has changed in recent times. The following three items weren’t even on the radar 10-20 years ago.
1. The leading High Court family Judge, Mr Justice Coleridge, recently announced the creation of his “Marriage Foundation” to reduce family and marital breakdown. We said previously how rare it is for a sitting Judge to go public with such a new venture which some might think inhibits or could be perceived to affect his independence and impartiality in dealing with divorce cases. Well now he is in real hot water because a formal complaint has been made against him to the Office for Judicial Complaints. It is not clear who has made the complaint or what is the precise nature of the complaint but the OJC is certainly treating it seriously and has started a full investigation in to Coleridge J’s activities with his new Foundation.
2. Whilst we await to hear after the current consultation process whether the Government is going to bring in legislation very soon (to be subject to a free vote in the House of Commons) on introducing gay marriage, the newspapers are full day by day of top politicians, including the Prime Minister (and indeed the President of the United States), coming off the fence and supporting this fundamental change to our family and divorce laws.
We have of course had the right here for same sex couples to enter into a civil partnership with effectively the same financial rights on a breakdown of that partnership as heterosexuals have on the breakdown of marriage. Therefore all we are really talking about, if it happens, is a name change albeit a pretty important one as far as the public is concerned.
If the law does change, there could be some interesting drafting to be done in the new legislation. For example, what happens to existing civil partnerships. Will the new statute simply convert them to a “gay marriage” or will current civil partners have to go through a whole new ceremony to have a gay marriage and if they want to celebrate that in the usual fashion, will they have to fork out on another wedding bash? We can see opportunities for new Pre-Nups or Post-Nups or a review of existing Pre-Nups if there is going to be a renewal of vows in a new marriage ceremony.
3. One of the new leading players in the divorce funding market, Novitas, has just announced that it is looking for investors from the public to participate in a new Divorce Fund which will provide monies to parties divorcing who do not have the wherewithal to fund their divorce case. Their aim is to provide an 8% return to investors. So, for the first time, members of the public are being asked to invest and make money out of the misery of other people’s divorces and family breakdowns.
What is the world coming to?
Question - My partner and I are planning to adopt our first child legally. What should be our number one priority?
The priority of the Courts and any adoption agency will be a child's welfare and their needs. You and your partner will therefore want to show that you can provide a loving, caring home for the child you would like to adopt. Courts, and adoption agencies, will consider a welfare "checklist" of factors when decided what is in the best interests of the child. This checklist includes the child’s wishes and feelings (with reference to their age and understanding, their needs, what the likely effect is upon the child of being adopted, their sex, and their background and particular characteristics. It also takes in to account any harm the child has suffered or is likely to suffer, as well as the child's religious and racial background. It would be very advisable for you and your partner to consider these factors, and to demonstrate against each how you can provide a stable home for a newly adopted child.
A successful adoption order will give parental responsibility to you and to your partner, a very important legal concept, and the child you adopt will then be seen as if he or she had been born to you both. Unmarried couples, married couples, gay and lesbian couples and individuals are all eligible to adopt a child, and there are no set timescales as to the length of time adopting should take. There has been much in the press recently about how long the process takes, as there is concern that children are in fact suffering harm by virtue of the length of time it can take. The adoption agency will have to be satisfied that the child you adopt was under eighteen at the time of the adoption application and that the child is or has not been married. Furthermore, both you and your partner will need to be over 21, and as a general rule, agencies will usually not place a child with adopters where the age gap is more than 45 years, unless the child has special needs.
Agencies may ask that you and your partner attend information and preparation groups before the formal application process begins. The length of your relationship with your partner will be considered – a relationship that has lasted for over two years is generally seen as a good basis for a stable partnership. Other factors adoption agencies take in to account include whether you have recently had fertility treatment, the size of your property, and whether you have just or are just about to move. Your health, both physical and mental, will be considered, as will any criminal convictions that you or your partner have. It stands to reason that prospective adopters cannot have been convicted under the Sexual Offences Act 2003. Should you and your partner be considering adopting sibling groups, special needs children or older children, you may be given a priority.
Good luck with your adoption application!
This article first appeared in Pink Parenting magazine.
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