Family Law Cafe | Theresa May announces domestic violence plans

When a court is considering what orders to make in a dispute between parents over arrangements for their children it must have regard in particular to a number of matters, one of which is the ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding.

This means that in most cases there will come a point when the child has reached such an age that, if they express a strong view, their wishes will be determinative of the outcome, as it would simply not be reasonable to attempt to impose upon them an arrangement with which they strongly disagree.

This was clearly illustrated in a recent case that took place in the Family Court at Oxford.

The case concerned two children, aged 16 and 15. Their parents finally separated in 2021, but an incident that occurred in 2013 was of considerable significance to the case.

The incident, which was not disputed by either party, concerned serious domestic abuse. The parents had been arguing, and in the course of the argument the father hit the mother in the face, causing her to have visible injuries.

The children, who were obviously very young at the time of the incident, were both present in the house when it happened. It is not clear how much of the incident the children remember but, as the judge noted, research shows that an incident of this type would have been harmful for them.

In addition, the mother accepted that she had subsequently told the children some things about their father’s behaviour, and had inappropriately shown the children photographs of her injuries sustained during the incident.

The children were also aware of other incidents of abusive behaviour by the father.

Following the final separation there were various proceedings issued by the parents regarding arrangements for the children. In the course of the proceedings the children made it clear that they did not wish to spend time with their father.

In the light of this, and in the light of the children’s age and understanding, the judge left it to the children to decide when they live with their father.

However, she did make an order stating that the children should live with each of their parents, to show both the parents and the children that the parents shared parental responsibility for the children, and should both be involved in their lives.

The order, said the judge, would send a “powerful message” to all of them that neither the mother nor the father had priority in making decisions about the children, and that a court had decided that the children would be harmed by simply cutting the father out of their lives, and really did need to be supported by both of their parents to have a relationship with the other parent.

The judge concluded:

“This is a sad case with many of the same issues that Family courts grapple with daily. What is unusual is the serious injury that [the mother] suffered, the strength of views expressed by the children, the fact that both parents’ actions have led to those views … both [the mother and the father] need to change what they do in relation to each other and [the children] if they are to have any hope of [the children] becoming adults who understand healthy relationships … I appreciate that [the mother] actively supporting and encouraging [the children] to want to spend time with [the father] may not be popular with [the children], but a good enough parent doesn’t do things to remain popular with their children, they do what is in the welfare interests of the children.”

You can read the full report of the case here.

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Domestic abuse can obviously have terrible consequences for the victim, and the perpetrator may also suffer severe consequences due to their actions, as a recent case has demonstrated.

And here, the consequences related to a father’s relationship with his daughter, who was born in 2020.

The background to the case was that the parents were married in 2019 and separated in 2022. In May 2023 the mother applied to the court for a child arrangements order in relation to the child, and in August 2023 the court ordered that the child should live with the mother.

Within the proceedings the mother made various allegations of domestic abuse against the father. The father, in turn, alleged that the mother had prevented him from having a relationship with the child.

The court fixed a fact-finding hearing, to determine the truth of each party’s allegations. The hearing took place in March this year.

The judge found the mother’s allegations to be proved. The father had subjected the mother to physical abuse, emotional abuse, psychological abuse, and coercive control. He had also subjected the child to emotional abuse, and had exposed the child to his abuse of the mother.

The father’s allegation, on the other hand, was not proved. The mother had not done anything to prevent the child from having a relationship with him.

The case then proceeded to a final hearing in August this year, when the court would decide what orders to make, in the light of the findings it had made against the father.

The father wanted the court to order that the child live with him for half of the time. However, not only was the court not prepared to agree to this, ordering that the child should remain living with the mother, the court was also not prepared to allow the father to have any direct contact with the child. The only contact that he could have was indirect, by way of emails, letters, cards, photographs or presents.

But the consequences for the father did not end there.

In addition, the court made a specific issue order permitting the mother to make all decisions about the child’s education and healthcare without the need for input and consent from the father, save for any experimental medical treatment in respect of a life-threatening condition. The judge stated that this order was necessary to prevent the father from subjecting the mother and the child to coercive and controlling behaviour in relation to the exercise of parental responsibility.

And further to that, the court made an order barring the father from making any application to the court in relation to the child, without first obtaining the permission of the court. And if the father did wish to make any such application he would have to show that he had completed a Domestic Abuse Perpetrator Programme, a course aimed at reducing the incidence of domestic violence by changing the attitudes, behaviours and beliefs of perpetrators.

The fact-finding judgment in the case can be found here, and the final judgment is here.

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A financial settlement on divorce obviously involves the division of the matrimonial assets.

But what if a third party claims to own a share of a matrimonial asset? How does the court deal with that?

The situation is not uncommon, and occurred recently in a financial remedies case taking place before Mr Justice Francis in the Family Court in London.

In the case the husband’s parents made the following claims:

1. That the husband owed them the sum of £826,392 for a one third share of a company called ‘X Ltd’;

2. That another company, ‘Y Ltd’, owned by the husband, was actually held by him on trust for himself and his parents, in equal shares;

3. That the husband owed them £37,866 for a one third share in Y Ltd; and

4. That the husband owed them £989,076 for a one third share in the former matrimonial home.

The wife opposed the claims, asserting that they were a sham, intended to defeat her claims against the husband.

The court fixed a preliminary hearing to determine the claims.

Before deciding the claims Mr Justice Francis explained in his judgment that his findings would be based primarily upon the documentary evidence (if there was any) and known or probable facts, rather than upon the recollections of witnesses, which could be unreliable due to the passage of time. (It should be pointed out that the husband’s parents claimed that the sums owed to them had been due since 2004, long before the husband and wife were married, although seemingly not demanded by them until after the husband and wife separated.)

The value of witness testimony, Mr Justice Francis said, lay largely in the opportunity that cross-examination provided to gauge the personality and motivations of the witnesses.

It is not necessary for the purposes of this post to go into the details of each of the parents’ claims, or of the evidence considered by Mr Justice Francis. Suffice to say that he found that there was real resentment on the part of the husband’s father that the wife was seeking capital that he considered to be “family money”, and that the parents had “closed ranks” with their son to defeat, or certainly substantially curtail, the wife’s claims.

Further, the parents’ claims were not supported by the documentary evidence.

Accordingly, Mr Justice Francis firmly concluded that the parents had failed to prove their claims, and the claims were therefore dismissed.

The financial remedy application will now proceed to a final hearing, obviously on the basis that the husband does not owe the alleged sums to his parents, and that Y Ltd is owned solely by him.

You can read the full report of the case here.

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We wrote here back in 2022 about new ‘Pathfinder’ courts that were testing a new approach to dealing with cases involving disputes between parents over arrangements for their children.

The courts were initially being piloted in courts in North Wales and Dorset, and in April/May this year the pilot was extended to courts in Birmingham and Cardiff.

Sir Andrew McFarlane, the President of the Family Division, is now talking about rolling out Pathfinder to other court areas.

Sir Andrew describes Pathfinder as a ‘problem-solving court’, which replaces the current litigant-led approach of the family court with an approach that is much more child-led.

As Sir Andrew explained, under the current approach the court knows very little about the case at the first hearing, and the judge or magistrate has little option but to sit back and ask the parties what they say that the issues are, before making directions for the court process to go to the next stage.

The Pathfinder approach is quite different. Before the first hearing the Children and Family Court Advisory and Support Service (‘CAFCASS’) will have spoken to the parents and to the children before compiling a substantial report describing the dispute and the children’s wishes and feelings.

Significantly, the report is called a ‘Child Impact Report’, being designed to encourage the parents to look at the impact of what they are doing upon their child, and consider what needs to be done to resolve that.

As Sir Andrew reports, the Pathfinder pilots have been very successful, with most cases being resolved at the first hearing. And where a further hearing is required, this will normally be a short one and, because there are fewer backlogs in Pathfinder courts, it will take place much sooner than under the old system.

Further to that, the experience in North Wales and Dorset is that fewer cases return to court for enforcement or other reasons, because both parents have been engaged, by the court, in resolving their dispute.

In short, Sir Andrew says that Pathfinder “is an altogether much more satisfactory method of resolving parental disputes within court proceedings; that is so from the perspective of parents, children, CAFCASS, domestic abuse professionals and the courts.”

In view of the success of Pathfinder, Sir Andrew is hoping to expand it to other court areas. He does, however, acknowledge that this will require an initial injection of funding in order to give CAFCASS resources to work up-front on new cases, whilst undertaking its ordinary role on those cases which are already in the system. Sir Andrew says he hopes to hold early discussions with ministers on the future of Pathfinder, and the potential for it to be rolled out to other court areas.

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In a very unusual case a High Court judge has found evidence of a child that the mother denied existed. (Note that for the sake of simplicity we will refer to the parties by the terms ‘father’ and ‘mother’.)

The case concerned a father’s application for contact with what he claimed were his twin sons, who he said were born in February 2021.

The mother denied that she was ever pregnant, and said that no twins were ever born. She maintained that the father knew that the twins were not born and that he had pursued her as a continuing act of controlling and coercive behaviour.

It fell to Mrs Justice Arbuthnot to decide whether the children, or at least one of them, did indeed exist.

The background to the case was that the parties met on the internet in 2015, and started a relationship. They had an Islamic marriage in 2019. They moved in with the father’s parents, but the relationship broke down shortly afterwards.

The parties got back together again for some months in 2020, before the mother left the father again. The father said that on a day in February 2021 the mother gave birth to twin boys.

Searches of the birth register found no traces of the children.

However, the father produced a considerable amount of evidence in support of his case, including recordings of conversations where the mother and various witnesses had spoken to him about the children, WhatsApp messages and photographs from his telephone of one child and sometimes two which he said the mother had sent him, and pregnancy ultrasound scans and other documents relating to the babies.

The mother accepted that she had told the father she was pregnant and sent him scans of the babies, but said that she had lied, and that the scans were forged.

There was also evidence from a hospital that the mother had been contacting the hospital, trying to find out if her records at the hospital would be safe from disclosure.

But perhaps the most compelling piece of evidence came from a psychotherapist and counsellor, who told the court that she saw that the mother was pregnant on 1st December 2020, that she saw a child with the mother in the car in July 2021 and that the mother and a child came to see her at home on 11th February 2024.

In all of the circumstances Mrs Justice Arbuthnot found that there was strong evidence there was a pregnancy and there was some evidence that at least one child was born.

The case is to be listed for further directions, in due course.

You can read the full report of the judgment here.

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“What should the court do where one party deliberately flouts orders, refuses to provide disclosure and breaches a series of penal notices whereby, as a result of that default, the court does not have the full picture?”

So began the judgment of Recorder Chandler KC in a recent financial remedies case at the Royal Courts of Justice in London.

The case is both an object lesson in how not to respond to a financial remedies application, and an indication of what the court can do if one party fails to cooperate.

If a party fails to comply with court orders requiring them to provide the court with details of their means then the court has two problems: how to proceed without a full picture of the parties’ finances (the court still has to evaluate the parties’ resources and provide a reasoned explanation of its award), and how to penalise the uncooperative party, in this case the wife.

As to the first problem, where a party has failed to give full and frank disclosure, the court may draw inferences as to their means, provided the inferences are properly drawn and reasonable, as Recorder Chandler pointed out.

Thankfully, however, it was not necessary to draw inferences in this case, as the value of two properties, the parties’ main assets, was known, and the husband was able to provide the court with other information.

Recorder Chandler was therefore able to conclude that the net value of the parties’ assets was £131,180.

As to the second problem, Recorder Chandler was satisfied that the wife had engaged in serious litigation misconduct, including filing an incomplete statement of her finances six months late, failing to provide the required disclosure of her means, breaching court orders, and failing to attend various hearings including this, final, hearing. As a result, the case had taken considerably longer, and the husband had incurred increased legal costs.

And Recorder Chandler decided that that litigation misconduct was a factor that he should take into account when deciding how to divide the assets.

There was also one other factor: that one of the two properties had been acquired by the husband prior to the marriage, and was therefore to some extent not a marital asset.

In the light of these two factors Recorder Chandler decided not to divide the assets equally, as he would otherwise have done, and instead divided them as to £87,305 to the husband and £43,875 to the wife.

You can read the full judgment here.

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The names of parents involved in court proceedings concerning arrangements for their children will not normally be published, in order to protect the privacy of the children concerned.

However, in a recent case, the Family Court took the unusual step of permitting the publication of the name of the father, following findings of serious abuse.

The case concerned the father’s application for contact with his daughter.

Responding to the application, the mother raised serious allegations of domestic abuse against the father.

The court arranged a ‘fact-finding’ hearing, to consider the mother’s allegations. The judge made a number of significant findings against the father, including coercive and controlling behaviour, three occasions of having sex with the mother without her consent and a further occasion of attempting to have sex with the mother without her consent.

Despite these findings, the court ordered that the father should have unsupervised contact with the child, although that order was overturned on appeal.

After the appeal, two journalists applied to the court for permission to name the father, arguing that their right to freedom of expression outweighed the father’s right to respect for private and family life. The applications were supported by the mother, but opposed by the father.

Hearing the applications, His Honour Judge Moradifar said that the child’s interest was the court’s primary consideration. Obviously, the child may suffer harm as a result of her father being named in this way. However, Judge Moradifar felt that the risk could not simply be assumed, and that the mother was best placed to manage the child’s understanding of her father’s behaviour.

Judge Moradifar also felt that the facts of the case demonstrated a “compelling public interest argument that prevented the abuser shielding behind his/her rights or those of a child which prevent him/her from being publicly identified.”

In the circumstances, Judge Moradifar was satisfied that public interest demanded that the father was fully identified by his full names. Accordingly, he granted the applications, whilst making clear that neither the mother nor the child should be publicly identified.

You can read the full report of the case here.

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It is now more than two years since the new system of no-fault divorce was introduced. The primary idea behind the new system was to reduce unnecessary conflict between divorcing couples, by removing the need for one spouse to make allegations about the conduct of the other, in order to get a divorce.

But that was not the only feature of the new system aimed at reducing conflict. The system also introduced for the first time the possibility of a couple jointly applying for the divorce.

And the latest quarterly statistics for the Family Court, for the period January to March this year, suggest that more couples are deciding to take the route of applying for the divorce together.

The statistics show that out of the 27,908 divorce applications made between January and March 2024, 7,139 were made jointly. That equates to 26 per cent of all applications.

These figures continue an upward trend for the percentage of divorce applications made jointly. In quarter two of 2022 the figure was 21 per cent, it increased to 22 per cent in the next two quarters, then up to 24 per cent in the following four quarters, and now up to 26 per cent for the latest quarter.

Quite why there has been this increase in joint divorce applications can only be speculated. It may simply be that more divorcing couples are becoming aware of the possibility of making a joint application, and are liking the idea.

Whatever the reason, the increase in the number of joint applications is a welcome development, as joint applications must surely reduce the possibility of conflict between the parties, and may even signal more ‘amicable’ divorces.

Of course, we do not know whether these figures indicate a sustained upward trend in the number of joint divorce applications, or whether they are just an insignificant temporary aberration. Only time will tell whether joint divorce is the way of the future, but if the increase is sustained it may not be long before a full third of all divorce applications are made jointly.

Whatever, the possibility of reducing conflict and all the problems that it can cause, including increased litigation and associated costs, certainly makes it advisable for anyone contemplating divorce to at least consider the possibility of making the divorce application jointly with their spouse.

You can read the latest quarterly Family Court statistics here.

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Financing legal representation can often be a major issue for a party involved in financial remedy proceedings in connection with a divorce settlement.

One way to do so is via a litigation lender, who will lend the party the money to pay for their representation, on the basis that they recover the loan plus interest from the settlement monies that the party receives.

But obtaining a litigation loan may have just got harder, following the latest, and perhaps last, judgment in a long-running case.

The case began back in 2016 when the wife issued her financial remedies application.

In the course of the proceedings the wife entered into an agreement with a litigation lender, under which she received a total of £630,000.

In 2021 the parties agreed a settlement whereby the wife was to receive a life interest in a residential property to be purchased for a figure of £1 million by the husband’s trust, which would thereafter own the property absolutely. The wife was to receive no free capital or income in settlement of her claim, and given that she had no capital of her own, it followed that a consequence of the agreement was that she would have no funds with which to repay any part of the loan. The agreement was subsequently incorporated into a consent order.

The litigation lender applied to have the consent order set aside. It was set aside, and the proceedings went back before the court in June this year, at a hearing conducted by Mr Justice Peel.

However, neither the wife nor the husband sought any orders from the court. In these circumstances Mr Justice Peel made no order, on the basis that the wife would withdraw her application. Thus the wife has still not received a financial settlement from which the litigation lender can recover their loan.

As Mr Justice Peel pointed out at the end of his judgment, the litigation lender does have a civil claim against the wife, which now stands at some £1.2 million including interest, but whether it will succeed in recovering that sum, or any significant part of it, must be in doubt.

Whatever the ultimate outcome, the actions of the husband and the wife in this case may well mean that in the future, litigation lenders will be more cautious about lending money for financial remedy proceedings.

You can read the full report of the latest judgment in the case here.

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Bankruptcy is unfortunately an issue that crops up quite frequently in connection with financial settlements on divorce.

And just how bankruptcy can affect a divorce settlement, in particular in relation to the former matrimonial home, was demonstrated by a recent case that took place in the High Court in London.

The case concerned an appeal by a husband against a financial remedies order providing for him to transfer to the wife his half share in the former matrimonial home. The property had an agreed value of £1.5 million, so the husband’s half share was worth £750,000, as the property was mortgage-free.

The order was made on the 4^th of March 2020. Its effect was to leave the wife with roughly 80 per cent of the parties’ capital. The husband appealed, claiming that this division was unfair.

But the real issue was that the husband had been made bankrupt by a bankruptcy order made on the 26^th of February 2020, just six days before the financial remedies order was made. The effect of the order was to pass the husband’s assets to his Trustee in bankruptcy, who would use them to pay the husband’s debts.

The husband had in fact concealed from the wife and the court that bankruptcy proceedings had been commenced against him some five months earlier (he only revealed the existence of the bankruptcy order on the day that the financial remedies order was made). As Mr Justice Peel, hearing the appeal, said, had the husband revealed the bankruptcy proceedings earlier, it is likely that the judge would have endeavoured to hand down judgment earlier, and make an order earlier, such that the wife would have received 100% of the former matrimonial home prior to the bankruptcy order.

Mr Justice Peel also commented: “It is hard to resist the conclusion that [the husband] acted in this way deliberately to leave [the wife] and the court no opportunity to prevent the bankruptcy taking its course.”

But the bankruptcy order had been made prior to the financial remedies order. Accordingly, the order for the husband to transfer his share of the former matrimonial home to the wife was wrong, because there was no share to transfer, as by the date of the order it has passed to the husband’s Trustee in bankruptcy.

In the circumstances Mr Justice Peel discharged the order for the husband to transfer his share of the former matrimonial home to the wife. He did, however, order that the wife should receive any surplus from the husband’s half share in the property, after payment of the Trustee’s costs and all sums paid to creditors under the bankruptcy.

There are two things to be taken from this case:

Firstly, that if a spouse is made bankrupt before the final financial remedies order then the other spouse may lose their claim to the bankrupt spouse’s assets, as those assets will be passed to the Trustee in bankruptcy and used to pay the bankrupt spouse’s debts.

Secondly, that if your marriage has broken down and you have reason to believe that your spouse may be made bankrupt (or simply that they are unable to pay their debts), then you should inform your lawyer immediately.

You can read the full report of the case here.

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We recently wrote here about a case in which a husband was prevented from applying to vary a maintenance order until he paid the arrears under the order.

Now, a similar case has been reported, this time in relation to children proceedings.

Both cases related to the court making a ‘Hadkinson’ order, which is an order preventing a party from making or taking further steps in a case until they comply with a previous court order.

As we mentioned in the earlier post, restricting a party’s access to justice in this way is a drastic step for a court to take, and the court will only therefore make a Hadkinson order as a last resort, where that party is in wilful contempt of court, and that contempt has impeded the course of justice.

As seen in this later case, making a Hadkinson order in proceedings relating to children is likely to be even rarer than in other types of proceedings.

The case concerned long-running litigation between the parents in relation to their children. (Note that we have slightly simplified the facts of the case, for the sake of clarity.)

During the proceedings the father was ordered to pay various sums to the mother, including for child maintenance and a legal services payment order, to enable the mother to pay her legal fees. The father failed to make all the payments he was required to make.

In March of last year the father applied for a child arrangements order, seeking to have the children move to live with him.

In January 2024 the mother applied for a Hadkinson order, prohibiting the father from pursuing his application for a child arrangements order until he paid the sums due. At that time her solicitor stated that the father owed her £285,842, and that his firm could not act for her without payment.

In February the court made a Hadkinson order requiring the father to pay £235,357 before he could proceed with his children application.

The father appealed.

Hearing the appeal, Mr Justice Moor found that in cases relating to children there should be an additional matter for the court to consider before making a Hadkinson order: the welfare of the children.

And in the circumstances of the case, where the father was seeking to have the children moved from the mother’s care to his, he found that a limited Hadkinson order would be in the interests of the children. This would protect the mother from the unfairness of not being able to afford representation, whilst giving the father a realistic opportunity of bringing the matter before the court.

Accordingly, he stayed the father’s application for a child arrangements order until such time as he pays the sum of £30,000 to the mother, to enable the mother to pay for representation at the hearing of the father’s application.

It is also worth noting that Mr Justice Moor commented that he considered that, in general, Hadkinson orders would be extremely rare in children proceedings.

The full report of the case can be found here.

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It is now well known that the courts of England and Wales will give effect to a prenuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances it would be unfair to hold the parties to the agreement.

And a recent case provides an excellent example of this approach.

The case concerned a wife’s financial remedies application, following a short, childless, marriage.

On the day that the parties married, they signed a prenuptial agreement which provided that each party should retain their own separate property, that any jointly owned property would be split between them, and that neither party would bring a claim against the other.

On the hearing of her application the wife disclosed assets of approximately £61.5 million. The husband, meanwhile, disclosed assets of approximately £850,000.

The wife claimed that, in view of the prenuptial agreement, she should pay the husband nothing.

The husband, on the other hand, argued that he should not be held to the terms of the prenuptial agreement claiming (amongst other things) that the wife assured him that he would always be provided for. He therefore sought a settlement of about £2.4 million.

Hearing the application, Mr Justice Francis did not agree that the husband should not be held to the terms of the prenuptial agreement. He said:

“It is ridiculous, I am afraid, to say on the one hand, “I am signing this and I am recording on the face of it that I know what I am doing, I know what the consequences of it are, I know I get nothing”, and yet, on the other hand, like a child with his fingers crossed behind his back, say “It will be all right really.” That is not the way that prenuptial agreements, documents of this kind, work.”

In short, he said, he was “not going to tear up the prenuptial agreement”.

Instead, he merely looked at what provision, if any, should be made by the wife for the husband’s reasonable needs, and assessed this in the sum of £455,000, which is what he awarded the husband.

But that was not the end of the matter. Mr Justice Francis also ordered the husband to pay £75,000 towards the wife’s legal costs, such sum to be deducted from the £455,000 award.

All in all, a demonstration of the approach of the court to prenuptial agreements, and the perils of challenging an agreement.

You can read the main judgment in the case here, and the costs judgment here.

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Access to justice is of course a basic right. Anyone in need of a remedy to a legal problem may apply to the court to seek that remedy.

And if the court makes an order in response to such an application then that order should of course be obeyed.

But what if someone who seeks a remedy has also failed to comply with a previous court order? Obviously, they will want any order made on their application obeyed, but if they are not themselves obeying an order then they are effectively ‘picking and choosing’ which orders should be obeyed.

So is there a way to stop someone acting with such impunity?

The answer is that there is. It is called a Hadkinson order, after a case of that name reported way back in 1952.

A Hadkinson order is an order preventing a party from making or taking further steps in a case until they comply with a previous court order.

Obviously, restricting a party’s access to justice in this way this is a drastic step for a court to take, and the court will only therefore make a Hadkinson order as a last resort, where that party is in wilful contempt of court, and that contempt impeded the course of justice.

A recent example of a Hadkinson order being made occurred in a case that took place in the Central Family Court in London in February.

The case concerned an order made in November 2017 requiring the husband to pay maintenance to the wife in the sum of £3,500 per month.

The husband failed to pay the maintenance and in April 2023 the wife issued enforcement proceedings.

In July 2023 the husband issued his own application to vary the maintenance order. Crucially, this was not made on the basis that the husband could not afford to pay the maintenance, but on the basis that the wife should by then have been earning more, and that she was cohabiting.

The wife then issued an application for a Hadkinson order, preventing the husband from proceeding with his application to vary unless he cleared the arrears on the maintenance order.

Hearing the application, the District Judge had no difficulty in finding that the husband was in contempt, and that that contempt was deliberate.

The other question for the District Judge was: Was there then an impediment to the course of justice? The District Judge found that there was, as without the maintenance payments the wife would be unable to afford legal representation to continue with the case.

Now, obviously anyone seeking to vary a maintenance order because they can’t afford it would obviously be put in a very difficult position by a Hadkinson order, as the District Judge pointed out. They wouldn’t be able to pay the arrears, and therefore would be prevented from pursuing the variation application.

However, as mentioned above, that was not the case here. The husband had not indicated that he could not afford to pay the maintenance.

Accordingly, the District Judge made the Hadkinson order.

You can read the full report of the case here.

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As explained here in our post, the rules governing the family courts have recently been changed, encouraging couples to resolve their disputes out of court. We have now seen the first reported case of these new rules in action.

The case concerned a wife’s financial remedies application.

The application went before Mr Nicholas Allen KC, sitting as a Deputy High Court Judge, on the 23^rd May. He explained that the facts of the case did not appear to be unusual, and that whilst it was seemingly a “big money” case, it did not appear to be unduly legally complex.

In the circumstances, he considered that this was a “paradigm case” for the court to exercise its new powers to encourage the parties to engage in non-court dispute resolution (‘NCDR’), such as mediation or arbitration. He said: “I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.”

The judgment indicates that there was some opposition to this from the wife’s counsel, who argued that the court should first order the parties to make full disclosure. But the judge pointed out that the court could exercise its powers under the new rules of its own initiative, and that in any event there was no need for financial disclosure to be given prior to parties engaging in NCDR, as NCDR will almost invariably provide for such disclosure to be given as part of the process.

The judge therefore gave the following directions:

1. That the wife’s financial remedies application be stayed (i.e. paused) with immediate effect;

2. That no further hearing was to be listed at the present time;

3. That the parties must tell the court by 4 pm on the 4th of July: (i) what engagement (if any) there has been with NCDR; (ii) whether any of the issues in the proceedings have been resolved; and (iii) in light of the foregoing their respective proposals for the way forward; and

4. That upon receipt of this letter the judge would decide the appropriate way forward.

Quite clearly, we can expect many more cases to be dealt with in this way in future.

You can read the full report of the case here.

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When the court decides upon a financial settlement upon divorce it will often do so by reference to the ‘sharing principle’.

The sharing principle states that, as a general guide, an equal division of the matrimonial assets between the husband and the wife should be departed from only if, and to the extent that, there is good reason for doing so.

But this raises the question: what are the matrimonial assets?

The answer, in simple terms, is that the matrimonial assets are the assets that were acquired during the marriage, through the joint efforts of the parties to the marriage. Accordingly, assets acquired before the marriage or after the parties separated are non-matrimonial, as are assets that were not acquired through the joint efforts of the parties, such as gifts and inheritances.

The importance of distinguishing between matrimonial and non-matrimonial assets was highlighted by a recent Court of Appeal case.

The case concerned an appeal by the wife and a cross-appeal by the husband from a financial remedy order.

As Lord Justice Moylan, giving the leading judgment of the Court of Appeal, explained, the appeals concerned the proper application of the sharing principle and, in particular, the manner in which the court identifies assets to which it applies.

In broad terms, the parties agreed that it applies to matrimonial property and does not apply to non-matrimonial property. However, they disagreed as to what makes an asset matrimonial or non-matrimonial property, and also as to the manner in which an asset which was initially non-matrimonial can be ‘matrimonialised’ – in other words, become an asset to which the sharing principle applies.

The facts of the case, and the arguments raised on behalf of both the husband and the wife, were quite complicated, and the judgment of Lord Justice Moylan runs to 183 paragraphs. We will therefore concentrate on just one aspect of the husband’s appeal here, and simplify it, for the sake of clarity. Any reader wishing to read the full judgment may do so, at the link below.

The judge who made the original financial remedy order found that the total assets in the case were £132 million, of which £112 million was matrimonial property.

Within the sum of £112 million were investment funds totalling £80 million, which the husband had transferred from his sole name into the wife’s sole name in 2017 (“the 2017 Assets”), as part of a tax planning scheme.

The 2017 Assets had, in fact, been acquired by the husband prior to the marriage, and were therefore originally non-matrimonial. However, the judge took the view that the assets had been ‘matrimonialised’ by the 2017 transfer, and were therefore subject to the sharing principle.

The judge did, however, acknowledge that the 2017 Assets had only been ‘matrimonialised’ towards the end of the marriage. Accordingly, he divided them 60% to the husband and 40% to the wife.

The husband appealed, claiming that the judge had been wrong to find that the 2017 Assets had been ‘matrimonialised’. The 2017 Assets should not, therefore, have been subject to the sharing principle.

Lord Justice Moylan agreed with the husband. The source of the 2017 Assets had not changed as a result of their transfer to the wife and, in the application of the sharing principle, this remained the critical factor.

Accordingly, the husband’s appeal was allowed.

You can read the full report of the case here.

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Gender dysphoria, as defined by the NHS, is a term that describes a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity.

Crucially, the NHS state that: “This sense of unease or dissatisfaction may be so intense it can lead to depression and anxiety and have a harmful impact on daily life.”

The issue has a relevance to family law, as it can often arise in children, as demonstrated by recent High Court case.

The case concerned a young person who has just attained the age of 16, referred to in the judgment as ‘Q’. Q was born female but identifies as male.

Q’s parents separated over ten years ago, since when their relationship has been acrimonious. We are told that: “At first Q shared his time between his parents. In 2020 he informed them that he was transgender. His father quickly accepted this but his mother did not. As a result Q’s relationship with his mother deteriorated and he has been living full time with his father since about 2021.”

In August 2022 the mother made an application for a prohibited steps order preventing the father from arranging for Q to access treatment for gender dysphoria.

In November 2022 the local authority conducted a single assessment which noted that Q had suffered disruption and trauma because of parental acrimony and gender dysphoria.

In December 2022 Q was seen by his GP who provided a letter for the court saying that Q had gender dysphoria but no clinical evidence of any mental health problems.

The mother agreed that Q should join the waiting list for NHS treatment, but she did not agree to his accessing it privately. At that time there was no private clinic in England and Wales which provided assessment and treatment for gender dysphoria but Gender GP, an organisation based offshore was a possibility which Q and the father on his behalf, wished to pursue.

In the event the parties agreed on an interim basis that the court should make a prohibited steps order with respect to private treatment.

In January 2024 the first private clinic in the UK for those seeking gender-related treatment, known as Gender Plus and Gender Plus Endocrinology services, gained Care Quality Commission registration, which is required for the hormone clinic

The case proceeded to a hearing in April, before Mrs Justice Judd.

By that time the mother had agreed that Q may be referred to Gender Plus for assessment only. She invited the court to adjourn the proceedings until the assessment was complete, and for the case to be restored to court for further consideration thereafter.

However, the reality of the mother’s position was described by Mrs Justice Judd thus: “Ultimately the mother objects to Q undergoing any gender related medical treatment before he is 18 on the basis that she believes that it is still not well understood and that it could cause him harm.”

The father and Q invited the court to dismiss the proceedings, on the basis that Q should be assessed and then left to make decisions as to any treatment offered on his own, with the assistance of treating clinicians.

Mrs Justice Judd agreed with the father and Q. She pointed out that a child or young person who has attained the age of 16 and has capacity is legally able to give consent to medical treatment, and those who treat Q could be liable in negligence if they did not provide a proper standard of care, or failed to abide by guidelines without good reason.

In the circumstances Mrs Justice Judd did not think that there was any realistic basis upon which she would override Q’s consent to treatment by a regulated provider or clinician in this country.

There was therefore no legitimate purpose in adjourning the case, and in any event Mrs Justice Judd found that it was in Q’s best interests to bring the proceedings to an end.

Accordingly, the interim orders were discharged, although Mrs Justice Judd did request an undertaking from the father that he would not fund or facilitate a referral to an unregulated offshore body such as Gender GP whilst Q is a minor.

You can read the full judgment here.

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Whenever a court makes a decision in relation to arrangements for a child it will of course be guided by what it considers to be best for the welfare of the child.

And in considering what is best for the welfare of the child the court will take into account various matters, including any harm which the child has suffered, or is at risk of suffering.

And this will usually mean that if the court considers that the child may suffer harm if a particular course of action is taken then the court will not take that course.

However, there are occasions when there is simply no course of action available in which the child may not suffer harm. In such situations all the court can do is balance the harm caused by each course of action, and choose the one it thinks will cause the least harm.

This was the situation in a recent case that took place in the High Court in London.

The case concerned a 10 year-old child whose parents had been in litigation concerning him since 2017.

The conflict between the parents had been so extensive that the local authority had issued care proceedings in 2021, on the basis that the conflict had caused the child significant harm.

Earlier that year the father had retained the child in his care, after making allegations that the mother had hit him. The court found that the child was at risk of significant emotional harm in his father’s care, and ordered that he return to live with his mother.

The latest application to the court was made by the father last year, seeking shared care of the child on a 50/50 basis, rather than just the contact that he was having, and after another incident when he had retained the child in August 2023.

Hearing the application, Mrs Justice Lieven said that central to the case was the father’s obsessive behaviour (the father said he was diagnosed with Asperger’s), including being absolutely certain of his own rightness, which led to him making numerous complaints against every professional involved in the case, including social workers, a psychologist, the child’s Guardian, and the judge.

The father had also made numerous complaints about the child’s school, and was convinced that they were not properly handling his education. The child’s behaviour at school was deteriorating.

Whilst Mrs Justice Lieven had no doubt that the child loved his father and wanted to spend time with him, such that stopping contact would cause him emotional harm and distress, she was equally confident that the father was undermining both the mother’s care of the child and the role of the school.

The father could not deal with views that differed from his own, so if anyone disagreed with him, or did something he did not agree with, he would lodge a complaint, and view them as acting contrary to the child’s best interests. He also could not prevent himself from then seeking to encourage the child in sharing his view of the situation.

The father could not see that his actions were harming the child, and his behaviour was not going to change.

Mrs Justice Lieven felt that it was not sustainable and in the child’s best interests for the current situation to continue. She concluded:

“There are no good options in this case, and I wholly accept that stopping contact between the father and [the child] will be very upsetting for [the child] and will cause him harm. However, in the balance of harm, it will give [the child] and his mother a break, which I hope will allow them to stabilise and strengthen their relationship, without the father’s undermining influence. It will also, I hope, allow [the child] to feel more confident in the school and for his behaviour to improve.”

Accordingly, she made an order for no direct contact between the father and the child. She also made an order barring the father from making any further applications for two years, without the permission of the court.

You can read the full report of the case here.

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It is of course common that a separated parent will form a new relationship and their new partner will become the step-parent of their children.

And in such circumstances the step-parent may wish to form a legal relationship with the children.

The most common way in which they may do this is to seek to adopt the children.

But there is another option, albeit quite rarely used: they can apply to the court for parental responsibility for the children.

A recent case demonstrated how the court might approach such an application.

The case concerned two children, aged 14 and 11. Their parents separated some years ago, and in 2017 they agreed upon a shared care arrangement whereby the children would spend half of their time with each parent.

Meanwhile, the father remarried, having lived with his new wife, the children’s stepmother, since 2014.

In May last year the stepmother, supported by the father, applied to the court for parental responsibility for the children.

We are told that the application was made because she felt that the time had come for her status within the family to be properly recognised and, more importantly, her position in the children’s lives to be noted for their understanding and benefit.

In particular, the stepmother contended that it would be in the children’s welfare interests to know formally that she is a permanent and respected figure in their lives, accepted as part of the wider family framework which exists.

She was also concerned that if an emergency were to develop, she needed to be able to deal with that in an efficient and effective way if she was the person “on the spot”, and having parental responsibility would enable her to make the necessary decisions in such circumstances.

The mother opposed the application, contending that it was unreasonable and unnecessary.

The judge decided in favour of the stepmother. Everything he had heard, he said, reflected the very essence of the relationship of parent and child between the stepmother and the children. The stepmother was not a transient individual in the lives of the children – she had been there for many years and remained invested for the long haul.

Accordingly, he granted the stepmother parental responsibility.

You can read the full judgment in the case here.

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The law makes it clear that it is generally in a child’s best interests to have a relationship with both parents. This is known as the “presumption of parental involvement”.

But what if one parent has been found to have seriously abused the other? Is it then still in the child’s best interests to have a relationship with the abusive parent?

As we will see in a moment, under the law as it stands at present the answer is: “it may be”.

In other words, a finding of domestic abuse against a parent does not automatically bar that parent from seeing their child.

But an MP is trying to change that, at least for most cases.

The MP is Kate Kniveton. For the last five years Ms Kniveton has been involved in a high-profile dispute with her former husband Andrew Griffiths, who was himself an MP, over arrangements for their child, who is now some five and a half years old.

In the course of the dispute the court made some very serious findings of domestic abuse against Mr Griffiths, including that he had physically and verbally assaulted her, and even that he had raped her. The court also found that he had been abusive towards the child.

Despite these findings Mr Griffiths still pursued his application for contact with his child, and the court initially decided that Mr Griffiths should continue to have contact, at a contact centre.

The final hearing of the application took place before Mrs Justice Lieven in the High Court in January.

As Mrs Justice Lieven pointed out in her judgment, the law does provide guidance for the court in child arrangements cases where there are findings of domestic abuse. This states that the court should only make an order for contact if it is satisfied that the safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

Having regard to this guidance Mrs Justice Lieven ordered that there should presently be no direct contact between Mr Griffiths and his child.

Ms Kniveton is now calling upon the government to change the law to bring about a presumption of no contact between an abusive parent and their children.

Justice Minister Mike Freer has confirmed that a review into the presumption of parental involvement will be published by “late spring or early summer”.

You can read the report of the final judgment in Ms Kniveton’s case here.

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When a family court is considering making any sort of financial order it will of course require the parties to disclose full details of their means, so that the court can make an informed decision.

But what if one party fails to make full disclosure? What can the court do then?

One answer is to make adverse inferences about the non-disclosing party’s means.

The drawing of adverse inferences was seen in action in a recently published judgment of the High Court in London.

The judgment concerned financial remedy proceedings arising out of the parties’ divorce. Within the proceedings the wife was applying for maintenance pending a final hearing and a legal services payment order for the husband to contribute towards her legal costs.

But on the basis of the details of his means that the husband had disclosed it appeared that he could not afford to pay anything.

However, His Honour Judge Hess, hearing the case, was not satisfied by the disclosure that the husband had made. He found that it was obviously deficient, and this entitled him to make some “robust inferences” about the husband’s ability to pay.

There were a number of factors that led him to this conclusion, including:

1. The family had lived at a very high level for a long period of time, commensurate with a family which has a high level of financial resources. They lived in a very expensive house with a swimming pool, had expensive holidays, and at one time were even thinking of buying a £2.5 million yacht. The husband’s presentation of his finances did not begin to explain how this was afforded over a number of years. That fact alone, said Judge Hess, “causes the judicial eyebrow to be raised.”

2. The husband appeared to be deliberately blocking the disclosure process in relation to a trust whose assets, estimated to be worth at least £45 million, may actually belong to the husband (or at least he may have access to them). This, said Judge Hess, was “a classic reason for a court to draw adverse inferences.”

3. There was an indication in the evidence that for many years the husband had taken large amounts of money from the trust to support the family. Judge Hess said that his “broad impression” was that the husband had been able to take what he wished at any stage at will, and had regularly done so.

In the light of these matters Judge Hess concluded that the husband was not a man of relative impecuniosity as he claimed, but was actually a man with access to substantial assets, quite possibly the whole of the £45 million worth of assets in the trust.

Judge Hess therefore ordered the husband to make various payments, including the £19,000 per month mortgage payments on the former matrimonial home (in which the parties were still living), the household outgoings of £5,782 per month, £7,500 per month maintenance for the wife and a legal services payment order in the total sum of £367,557.

You can read the full judgment here.

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“You won’t see a penny of my money!”

It’s sadly a common occurrence in family proceedings concerning money. One party is so aggrieved by the breakdown of the relationship that they vow to ensure that the other party never receives any of their money, whether by way of maintenance, lump sum payment or property settlement.

And they then proceed to ensure that they make good their vow by disposing of their assets, so that they are out of the reach of the other party.

So what can the other party do to prevent this?

One answer is the freezing order. As the name suggests, the order freezes that party’s assets, preventing them from disposing of them. The order may, for example, be served upon their bank, to prevent the bank from releasing money to them. The assets will remain frozen until the conclusion of the case.

An example of the use of a freezing order occurred in a recent case that took place before Mr Justice Cobb in the Family Court in London.

The case concerned a mother’s application for financial relief for her daughter from the child’s father, who resides in the USA.

In March 2023 Mr Justice Cobb made an award requiring the father to make various payments, including providing the sum of £3.65 million for a property to be settled on the child until she attains the age of eighteen or ceases tertiary education; paying a lump sum to cover various expenditure for the benefit of the child; and making substantial periodical payments to cover the child’s maintenance, school fees and other expenses.

The father has failed to comply with the order.

The mother reported that when she met the father after the award was made he informed her that he intended not to honour the order, that she would “not see a penny” of the award, and that he had been “arranging and managing his finances for years to limit/restrict [the mother’s] ability to enforce”.

In light of this the mother applied for a worldwide freezing order against the father.

The application went before the court in November 2023, without notice to the father. Mr Justice Cobb made a freezing order in the sum of about £8.6 million. The order was subsequently served on the father’s bank in the USA.

The matter went back before the court in February this year, when the mother asked the court to continue the freezing order.

Mr Justice Cobb found that it was clear that the father was ignoring the original order, was determined not to comply with the award, and would dispose of his assets unless he is restrained by the court from disposing of them. Accordingly, he continued the freezing order.

You can read the full report of the case here.

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Feelings can run high when separated parents try to sort out arrangements for their children.

But sometimes a parent might resort to extreme measures to get their way by inventing false allegations. And if they think things are going against them, they may stop cooperating with the court.

Such actions are unlikely to end well. An extreme example of what can happen in such circumstances occurred in a recent case that took place in the Central Family Court in London.

The case concerned a dispute between parents over arrangements for their daughter, who was born in 2019. The case was described as “very sad” by the father’s barrister, a description with which the judge agreed.

The proceedings began in 2020 when the father sought contact with his daughter, who was then living with the mother.

The mother responded by making various allegations of abuse against the father, including that he had sexually abused her eldest daughter (by a different father). Most of those allegations were found to be untrue by the court and grossly exaggerated by the mother. The allegation of sexual abuse was found to have been falsely and maliciously made with no justification at all.

Shortly before the final hearing the mother made an allegation to the police that the father had sexually abused his own daughter. This was investigated by the court and once again it was found that the mother had wrongly accused the father.

Following that finding the mother made it clear that she would, regardless of whatever order the court made, refuse to allow the child to have any contact face-to-face with her father until she was an adult.

Having been given ample opportunity to reflect on that position, the mother maintained her stance. The court therefore made an Interim Care Order with the support of the Local Authority, with an interim plan for the child to move from her mother’s care to her father’s. That happened shortly afterwards.

The mother then stopped cooperating with the court entirely, including failing to file a witness statement, as directed by the court. She told the court that this was a deliberate choice, as she decided there was no point in complying.

At the final hearing the court decided that the child should remain with her father, as living with her mother would expose her to an extremely high risk of significant emotional harm.

The court also decided that, until there was some shift in the mother’s thinking, she should only have supervised contact with the child at a contact centre.

However, the mother made clear to the judge that she would not attend the contact centre, and would not communicate with the father in any way for any purpose. The judge therefore reluctantly decided to make no order for contact.

In addition, in the light of the mother’s “utter fixation” on the deliberately false narrative that she had pursued against the father, combined with her repeated non-compliance with court orders, the judge made a prohibited steps order preventing the mother from removing the child from the father’s care or from any organisation, education provider or individual into whose care she is entrusted by the father, without written agreement.

Lastly, the court made an order that the mother should pay the father’s costs, in the sum of £26,000.

You can read the full report of the case here.

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Wives are likely to see their annual household income fall by an estimated 41%, compared to just 21% for husbands, in the year following divorce, according to new research carried out on behalf of financial services business Legal & General Retail.

The research also found that 24% of wives financially struggle post-divorce, compared to 18% of husbands, and have greater concerns about meeting essential costs (21% wives compared to 13% husbands).

And wives are significantly more likely to waive their rights to their husband’s pension as part of a divorce settlement (30% wives against 17% husbands).

Legal & General say that: “The disparity between men and women is caused by a number of factors, one being that men are more likely to be the main breadwinner in families (70% vs. 21% of women), and commonly earn more.”

So what does a wife do to prevent herself being worse off after divorce?

The simple answer is: seek expert legal advice. An expert family lawyer will ensure that they receive their full entitlement in the divorce settlement, and are not worse off than they should be.

Whilst it is certainly still true that men are more likely to be the main breadwinner in families, there is often no reason why wives should be worse off.

They can, for example, seek maintenance for themselves for a period after the divorce, for long enough to enable them to achieve financial independence.

Or they may be entitled to the lion’s share of the assets, to ‘compensate’ for the fact that their income (or earning capacity) is considerably less than their husband’s income.

And there is rarely a good reason why wives should waive their right to a share of their husband’s pension. A pension accumulated during the marriage is as much a matrimonial asset as anything else, and the wife is entitled to a share. In many case pensions accumulated during the marriage should be equalised between the parties.

Family Law Cafe can find you an expert family lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

You can read the full Legal & General press release here.

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Last week we looked at how separating parents can sort out maintenance arrangements for their children.

Often, however, the maintenance is not paid. The Department for Work and Pensions state that around 10,000 parents a year wilfully refuse to pay child maintenance. In such cases enforcement action has to be taken against the paying parent.

But enforcement can take a long time, leaving the receiving parent struggling for money.

A new system is now to be introduced that should make the enforcement process considerably quicker.

When child maintenance is not paid the Child Maintenance Service (‘CMS’) will try to recover the arrears by a Deduction from Earnings Order, which will take an amount towards the arrears from the paying parent’s earnings, or by making deductions from the paying parent’s bank account.

However, these methods of enforcement are not always successful, or even possible, such as where the paying parent is self-employed.

In such a case the CMS can use other methods of enforcement, such as asking a bailiff to seize goods from the paying parent to cover the arrears, taking away the paying parent’s driving licence, or even having them sent to prison.

But these other methods can only be used after a liability order has been made against the paying parent.

Until now a liability order had to be made by a Magistrates’ Court, a process that could take nearly six months.

To reduce that time the government is introducing a new system of ‘administrative liability orders’, which can be made by the CMS itself, rather than the court.

It is expected that administrative liability orders will be made in as little as six to eight weeks.

The paying parent will be given 7 days’ notice of the CMS’s intention to make an administrative liability order. Where the paying parent pays the whole amount of the arrears within the 7 day period, the administrative liability order will not come into force.

The administrative liability order will be discharged where the maintenance calculation on which the order is based (the amount of arrears) has changed since the order was made.

The paying parent will be able to appeal to a court against the decision to make the administrative liability order, within 21 days from the date that the order is made.

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When parents separate they will obviously have to sort out maintenance arrangements for their children. But how do they go about this?

The simple answer is that they should agree arrangements between themselves. But that raises further questions: How do they agree arrangements? And what if they can’t agree?

How to agree child maintenance

The parents can agree arrangements (who should pay child maintenance and how much they should pay) between themselves, or with the help of lawyers.

As to who should pay, the simple answer is that the parent with whom the children will spend less time (often referred to as the ‘non-resident parent’) will pay child maintenance to the other parent (often referred to as the ‘parent with care’).

As to how much they should pay, they can agree any figure they wish, but will often be guided by the amount that the Child Maintenance Service (‘CMS’) would require the non-resident parent to pay. This is calculated by reference to a formula, and you can find an online calculator here.

If the parents are getting divorced then then can include the maintenance agreement in the final court order setting out the financial settlement. It should be noted, however, that after one year has elapsed from the date of the order either party can then apply to the CMS for a maintenance assessment, which may obviously be for a different amount to the sum that was agreed.

If maintenance can’t be agreed

If the parents are unable to agree child maintenance arrangements then they may make an application to the CMS.

The CMS offers two levels of service: ‘Direct Pay’ and ‘Collect and Pay’.

‘Direct Pay’ is where the CMS calculates the amount of maintenance, but the payments are made directly between the parents, who will agree how and when the payments are made. There are no collection fees (see below) to be paid, but if a payment is missed, the parent with care can request the CMS to chase the non-resident parent.

‘Collect and Pay’ is where the CMS calculates the maintenance, collects it, and passes on the payments to the parent with care. The CMS charges a collection fee for using this service. The fee is 20% (which is added to the payment) for the non-resident parent, and 4% (which is taken off the payment) for the parent with care.

The above is only a brief introduction to the subject of child maintenance. For further details, seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Government has published its response to a consultation that it ran last year on resolving private family disputes earlier through family mediation.

The main proposal in the consultation was that mediation should be compulsory for most family disputes, with the hope that most disputes would then be resolved by agreement, rather than going to court.

But the Government has decided not to make mediation compulsory, following concerns that this could result in victims of domestic abuse having to attend mediation when it was not suitable or safe for them.

The Government has, however, indicated that it may still introduce compulsory mediation at a later time.

Meanwhile, the Government says it will bolster mediation, for example by improving training for mediators and continuing to support the Mediation Voucher Scheme, under which it provides £500 towards the costs of mediation, in eligible cases.

And whilst mediation may not be made compulsory, judges are being given more powers to encourage parties to mediate. The Law Society Gazette has reported that new court rules to be introduced in April will allow judges who believe a party has not taken mediation seriously enough to pause the proceedings and compel them to attend a mediation assessment meeting.

Returning to the consultation response, the Government has made two further significant announcements.

Firstly, it has said that it will pilot offering early legal advice to parents in disputes over arrangements for their children. The Government plans to launch the pilot this summer, in specific regions in England and Wales.

The Government plans to use the pilot to evaluate the impact of government-funded early legal advice, and assess the potential benefits, both in facilitating the earlier resolution of disputes and expediting court-based resolution where required.

The second announcement is the expansion of the ‘Pathfinder’ courts pilot. Pathfinder courts use a more investigative and less adversarial approach to dealing with disputes between parents over child arrangements, strengthening the voice of the child in proceedings, and increasing support to parties who need it.

Pathfinder courts are currently being piloted in Dorset and North Wales. The Government has announced that the pilot will be extended to South-East Wales and Birmingham in April and June 2024 respectively and then, subject to the findings of an evaluation and decisions at the next Spending Review, rolled out to all courts in England and Wales.

You can read the full consultation response here.

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A financial settlement on divorce essentially involves the division of the ‘matrimonial assets’, i.e. those assets that were acquired during the marriage, through the joint efforts of the parties to the marriage.

Accordingly, assets that were acquired before the marriage or after it ended (the latter often referred to as ‘post-marital acquest’) will usually remain the property of the party who acquired them.

But that can raise the question: when did the marriage end?

The law will generally recognise that the marriage ended on the date that the parties separated, but there is a problem here in that there will often be no record of the date of separation, and the parties will often not be able to agree when it occurred.

How this can play out in court was demonstrated in a recent case, which involved a rather extreme discrepancy between the parties as to when the separation took place.

The case concerned a couple who were married in 1983 and had two children, now aged 33 and 30.

From about 2003 the husband spent his working week away from home, mostly doing lucrative work in Germany.

In 2010 the husband began a relationship with another woman in Germany. It appeared that he lived with her for approximately two years in the accommodation he had in Germany, until that relationship broke down.

During the relationship the husband rarely visited the wife or the children in this country, but after the relationship ended the life of the husband and wife resumed as it was before.

The wife knew about the relationship, but said that she had forgiven the husband and “took him back”.

In 2017 the husband commenced a second relationship with another woman. The relationship of the husband and wife, however, continued as it had done since 2012.

However, in 2021 the husband began a third relationship with another woman. On this occasion, he chose to exercise no discretion, introducing this woman to his children. As far as the wife was concerned, that was the final straw – in her words: “Three strikes and out”. She consulted solicitors, with a view to divorce proceedings.

In the subsequent financial remedy proceedings the husband sought to argue that the parties had separated in 2010 and that, accordingly, everything he earned after that date was ‘non-matrimonial’.

The judge did not agree. He found that the parties did not separate in 2010. The marriage continued thereafter, and did not end until 2021. Accordingly, everything that the husband earned between 2010 and 2021 was matrimonial, and therefore should be divided between the parties.

The moral of the story is, perhaps, that if you think the date of separation may be important then you should take steps to have it recorded and agreed if possible, for example in a separation deed.

You can read the full report of the case here.

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It is not unusual that one party to financial remedy proceedings on divorce will believe that the other party possesses assets that they have failed to disclose.

But a recent case was a rather extreme example of this situation: the husband alleged that the wife had concealed the ownership of a diamond ring, with an estimated value of £2 million.

The case concerned an application by the husband to set aside a consent order made in 2021, setting out a financial settlement that the parties had then agreed.

The primary reason why the husband maintained that the consent order should be set aside was that he alleged that the wife had failed to disclose that she owned a diamond ring worth £2 million.

The husband claimed that he had received a tip-off that the wife was selling the ring at auction, having purchased it some years previously at a car boot sale, when it was sold as costume jewellery.

The wife denied that she had possessed the ring.

To support his case the husband applied for a witness summons against the auctioneer.

The auctioneer duly attended court, but unfortunately his evidence did not support the husband’s case. As the District Judge, hearing the case, explained:

“The story of the diamond being found at a car boot sale, being valued by his auction house, and then being given a value of £2 million, was just that, a story, completely fabricated by him, to stir up interest in his failing auction business in a post pandemic era. The car boot story, read by the husband, given to the press and the world in general was a lie, to generate some media interest for this diamond and the commission a sale would bring to his business.”

Unsurprisingly, the husband’s case then fell apart. He had failed to prove that the wife had had the ring.

Accordingly, the District Judge found that there had not been material non-disclosure by the wife. The husband’s application was therefore dismissed.

The case is obviously an example of the importance of ensuring that you have the evidence that you need to support your case, before taking the case to the court.

You can read the full report of the case here.

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It is quite common that one party to a financial remedies application on divorce will claim that the bad conduct of the other party should reduce the amount that that party receives.

But such claims rarely succeed, as the conduct has to be of a particularly serious nature to have a bearing upon the outcome of the application.

In a recently decided case, however, the court found both parties ‘guilty’ of bad conduct, and penalised them accordingly. The case stands as a warning to parties of the possible consequences of bad conduct.

The case had a long and complicated history, the original application having been made back in 2011.

But we need not go into the details of the history of the case, or its various complexities. What concerns us here is the conduct of the parties.

We will begin with the wife.

The wife was found to have committed two separate frauds.

The first fraud was that she, or someone acting on her behalf, had forged the husband’s signature to various documents, including a consent order made in 2011 stating that the matrimonial home would be transferred to the wife, and the document transferring the property to her. The consent order was subsequently set aside.

The second fraud was that the wife, who was an accountant at the time, tampered with one of her bank statements that was produced to the court, to suggest that her mother had loaned her a sum of money.

Turning to the husband, he was found to have sent a copy of the court’s judgment in respect of the wife’s first fraud to the professional body that regulates accountants, with the result that the wife lost her job, and suffered financial hardship accordingly. The court had specifically directed that the judgment should not be disclosed to third parties.

So how were the parties penalised for their conduct?

As to the wife, the court found that the husband was the joint owner of the former matrimonial home, and ordered the wife to pay the husband a lump sum of £150,354 in respect of his interest, that sum calculated by reference to the current value of the property (the wife had argued that an earlier value should be used), and disregarding the payments the wife had made in relation to the mortgage and improvements to the property since 2011.

As to the husband, the judge estimated that the wife had lost £10,000 as a result of his conduct. Accordingly, the lump sum payable to him by the wife was reduced by that amount (i.e. the husband would have received £160,354, but for his conduct).

You can read the full judgment in the case here.

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Over the Christmas/New Year break a story emerged in the media warning that domestic abuse survivors are being targeted by scammers charging for help and advice.

The story told of how opportunists are targeting victims of domestic abuse by lying about their professional experience and charging them for legal and emotional help.

Taking advantage of the vulnerability of victims, they pretend to be qualified counsellors, domestic abuse “consultants” or specialist lawyers, while advertising fees that they claim are lower than standard rates.

The story is (amongst other things) a reminder of the importance of choosing a regulated lawyer.

But who is a regulated lawyer, and how do you know if a lawyer is regulated?

The answer is actually quite simple, and is a matter of nomenclature, or the name used by the legal expert.

The first thing to understand is that the term ‘lawyer’ is not protected. Anyone can call themselves a ‘lawyer’, without any legal training or regulation. Beware, therefore, anyone describing themselves solely by that term.

On the other hand, the terms ‘solicitor’ and ‘barrister’ are protected. No one who is not either a solicitor or a barrister can describe themselves as such.

And to become a solicitor or a barrister requires in both cases the successful completion of a rigorous process of academic and vocational training, ensuring that the solicitor or barrister meets the required standard of legal expertise.

Further to that, all solicitors and barristers who are allowed to practise must have a practising certificate. The practising certificate will be from the Solicitors Regulation Authority for solicitors or from the Bar Standards Board for barristers, the regulatory bodies for the two professions.

So if a ‘lawyer’ that you wish to instruct calls themselves a ‘solicitor’ or a ‘barrister’ but you require proof of that, you can ask to see their practising certificate. You can also check to see if a solicitor is allowed to practise by checking the Solicitors Register, or if a barrister is allowed to practise by checking the Barrister’s Register.

So why is it important that your lawyer is regulated? Well, firstly it means that they will have the required legal expertise, secondly it means that they must conduct themselves in accordance with the rules set out by the regulator, and thirdly if you have any concerns about them you may raise those concerns with the appropriate regulator. You will have none of these protections if you instruct an unregulated lawyer.

It should be noted that many solicitor’s firms employ lawyers who are not solicitors, such as legal executives. But the regulations governing the solicitor will also cover the work done by such lawyers, so you will still be protected if a lawyer employed by a solicitor works for you.

Needless to say, all lawyers used by Family Law Cafe are fully regulated, so you can be safe in the knowledge that you will be fully protected if you use our service.

And if you are a victim of domestic abuse we can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It is that time again when we are supposed to resolve to take steps to make our lives better in the year ahead.

And if you are in the middle of, or about to start, divorce proceedings then there are certainly some steps that you can take to make things better, or at least less difficult.

1. Always put the children first

The first, and most important, of these resolutions.

If you have dependent children then it is essential that you put their welfare first in everything you do in connection with the divorce. The divorce will be traumatic enough for them, without you making things worse.

Obviously, the welfare of the children must be foremost in sorting out arrangements about where they will live and, if with one parent, what contact the other parent will have (always think about what is best for them, not what you want).

But it also applies to sorting out finances and property on divorce, where arrangements must be tailored to the needs of the children.

And remember that whatever has to be sorted out, bitter arguments between their parents will have serious adverse effects upon the children.

2. Look to the future, not the past

Divorce obviously often follows distressing events within the marriage, and it can be all too easy to get bogged down with efforts to make your spouse pay for what they have done in the past.

But there is nothing that can be done to change the past, and in most cases the court is unlikely to be interested in the reasons for the breakdown of the marriage.

Sorting out a divorce is not about seeking redress for past events, but about making arrangements for the future. You should therefore concentrate on the future, not on the past.

3. Don’t try to hide assets

Often, one party to the marriage will have significantly more financial assets than the other. They may be tempted to try to hide those assets, to prevent the other party receiving any of them in the divorce settlement.

But such action is likely to fail, and needless to say the court will take a very dim view of it.

The party hiding assets could end up with a worse settlement, and could even be penalised by being ordered to contribute towards the other party’s legal costs.

4. Make every reasonable effort to agree matters

This should go without saying.

If you can’t agree matters, including arrangements for children and finances, then you will have to ask the court to sort them out for you.

But court proceedings take a lot of time, are expensive, and can be extremely stressful. They should be avoided at all costs.

You should therefore make every reasonable effort to agree matters, if necessary using out of court dispute resolution, such as mediation.

5. Do what the court says

If you do find yourself in contested court proceedings, the court will require you to do certain things, for example make full disclosure of your means in financial remedy proceedings.

You may not want to comply with the court’s orders, but it is essential that you do so. Failure to comply will very likely result in you being ordered to pay the other party’s costs.

6. Take legal advice

We all know that legal advice costs money, but trying to save money by not taking advice is likely to be a false economy.

Without taking advice you could end up missing out on your entitlement, for example in relation to pensions.

You could also ensure that any proposed settlement is reasonable.

And good advice can save time and stress by ensuring that you do not pursue unreasonable expectations.

7. Follow your lawyer’s advice!

A lawyer will not always give their client the advice that the client wants to hear. Obviously there are times when a case will not go as the client wants, and a good lawyer must advise the client accordingly.

And a client receiving unwanted advice may be tempted to ignore it.

By all means seek a second opinion, but ignoring advice is likely to end in disaster. You must understand that a lawyer’s advice is given in the best interests of the client, whether the client wishes to hear it or not.

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When you come to Family Law Cafe we work for you to get you the best outcome, giving you choices and keeping you informed and in control 24/7 using our secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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When considering whether to make an order in relation to a child the court must have regard in particular to a number of factors, one of which is the ascertainable wishes and feelings of the child concerned, considered in the light of their age and understanding.

The effect of this is that, in general, the wishes of the child will have a bearing upon the court’s decision, and the weight to be given to their wishes will increase as they get older.

The importance of the wishes of children was demonstrated in a recent case in the High Court.

The case concerned a father’s application for the summary return of his two children from England and Wales to Qatar. At the time of the hearing of the application in November the older child, a girl, was 15 years old and will be 16 next summer, and the younger child, a boy, was a month short of his 13^th birthday.

The family, of Egyptian origin, had lived in Qatar since about 2008. Their marriage broke down and they were divorced in 2017, since when the children have been living with the mother.

From around 2021 the older child began expressing a wish to study in England or the USA. The mother sought to raise this idea with the father, but he rejected it.

Notwithstanding this, the mother pursued the idea of relocation, and in July 2023 she brought the children to this country, intending it to be a permanent move.

In August the father issued an application in the High Court in London, seeking the return of the children.

The judge hearing the application found that the wishes of the children were the factor of magnetic importance. Both of them spoke negatively about both Qatar and their father, and expressed the firm view that they did not wish to return.

The judge was also concerned that that the voices of the children would not be fully heard under Qatari law if they were returned.

He concluded: “The reality in this case is that I am looking at the welfare of two intelligent and articulate children, one of whom is approaching her 16^th birthday, who are expressing strong, clear and consistent views that they do not wish to return to Qatar. Those views … must be given great weight in the balance that I have to strike. To order a summary return of these children to Qatar in the face of such views would in my judgment be wholly contrary to the children’s welfare.”

Accordingly, the father’s application was dismissed.

You can read the report of the case here.

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On the 20^th of November the Ministry of Justice, HM Courts & Tribunals Service, and the Lord Chancellor Alex Chalk KC published a news story telling of their “Vision for the future of civil and family courts and tribunals”.

Unfortunately, the story gave little information as to what exactly this “vision” was, or how it would be achieved.

The story did explain that the government intended to “make it easier for people experiencing legal problems to access high quality information and support at the right time and in the right way”, and “to enable people to resolve their problems earlier and at less cost, for example through mediation or online dispute resolution … safe in the knowledge that if this is not successful, it will be straightforward to take the next step of seeking judicial determination through the courts or tribunals”.

All of this sounds very significant, but what will it mean in practice?

Thankfully, we have since been provided with a little more information.

A speech by the Lord Chancellor given on the day of the news story has since been published by the Ministry of Justice. In it we are given just a few more detail of what the ‘Vision’ actually means.

The Vision, it seems, is really to do with the early stages of dispute resolution: making sure that anyone needing the help of the law has access to proper advice, including regarding their options to resolve the dispute, such as mediation, thereby possibly avoiding what the Lord Chancellor described as “the acrimony and heartache that all too often accompanies contested litigation.”

And where mediation isn’t successful the new system will make it straightforward to take the next step of taking a case through the courts “by encouraging and building online and offline connections between different parts of the system”.

This new digital justice system will be underpinned and governed by an Online Procedure Rules Committee, which will provide governance and develop data standards for the system (obviously the new system will have to ensure that user’s data is kept safe).

The Lord Chancellor gave no indication as to when this new system will become a reality.

The Lord Chancellor is of course quite correct that it is essential that anyone with a family dispute should seek expert legal advice at an early stage. Whether this new system will succeed in providing bespoke advice for all as a real alternative to consulting an expert lawyer, we will have to wait and see.

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The latest figures from the Office for National Statistics (‘ONS’), show no decrease in the prevalence of domestic abuse in England and Wales, compared to the previous year.

The statistics are based on findings from the Crime Survey for England and Wales for the year ending March 2023, and police recorded crime.

The Crime Survey estimated that 4.4% of people aged 16 years and over (2.1 million) experienced domestic abuse in the year.

An estimated 1.4 million women and 751,000 men aged 16 years and over experienced domestic abuse in the year; a prevalence rate of approximately 5.7% of women and 3.2% of men.

The figures also give an indication of how many people experience domestic abuse in their adult life. The crime survey showed that an estimated 9.8 million people aged 16 years and over had experienced domestic abuse since the age of 16 years. This equates to a shocking prevalence rate of approximately one in five people aged 16 years and over.

The police recorded 1,453,867 domestic abuse-related incidents and crimes in England and Wales (excluding Devon and Cornwall) in the year ending March 2023; 889,918 of these were recorded as domestic abuse-related crimes. The number of domestic abuse-related crimes recorded by police remained similar compared with the previous year.

Most of the offences related to incidents of violence, but as we know domestic abuse also includes non-violent controlling and coercive behaviour.

There were 43,774 offences of coercive control recorded by the police in England and Wales (excluding Devon and Cornwall) in the year ending March 2023. This is compared with 41,039 in the year ending March 2022. The ONS say that the rise in coercive control offences over recent years may be attributed to improvements made by the police in recognising incidents of coercive control.

The statistics also give an indication of the age characteristics of victims of domestic abuse. The Crime Survey showed that a significantly higher proportion of people aged 16 to 19 years were victims of any domestic abuse (8.0%) compared with those aged 45 to 54 years (4.2%), and those aged 60 years and over (3.2% for 60 to 74 years). For those aged 75 years and over, the percentage of victims was significantly lower than all other age groups (1.4%).

Whilst factors such as age mean that the likelihood of being a victim of domestic abuse may differ, overall the statistics confirm what we already knew: that anyone can be a victim of domestic abuse.

If you are a victim it is essential that you seek expert legal advice, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

You can find the latest ONS statistical bulletin here.

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Unfortunately, parental separation can sometimes result in the breakdown of the relationship between a child and one of their parents.

And in a recent sad case a father took the breakdown of his relationship with his daughter to the logical conclusion, by applying to the court to terminate his parental responsibility for the child.

But whilst the judge granted the application, he did warn the father of the possible consequences of doing so.

The circumstances behind the father’s application were as follows. The child was born in 2012. We are not told when the parents separated, but we are told that the child was made subject to a care order in 2015.

At some point the father’s contact with the child stopped. The father did recently apply to the court for contact with the child, but the application went nowhere, in particular because the child indicated that she did not wish to see her father at the moment.

The father then applied to terminate his parental responsibility, essentially to reflect that he has no present relationship with his daughter.

The judge hearing the application discussed with the father how the application would look from his daughter’s point of view, including the position after she reaches the age of 18, for example, and how the granting of the application may affect her thoughts as far as the father was concerned in the future.

Despite these matters, the father advised the judge that he wished to proceed with the application.

As with any application relating to a child the judge had to consider what was best for her welfare.

He concluded that it could not be in accordance with the welfare of a child for a father to hold parental responsibility if he does not wish to, and intends not to exercise any future responsibility or part in her life.

Accordingly, he was satisfied that the child’s welfare was met by terminating the father’s parental responsibility, and he made an order to that effect.

Whilst one can have great sympathy for a parent whose child tells them they don’t want to see them, terminating parental responsibility is obviously a very serious step, that shouldn’t be taken lightly.

Any parent in such a position should clearly seek expert legal advice as to their options, before taking any action. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

You can read the full judgment in the case here.

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The primary issue in many financial remedy cases following divorce is the needs of the parties. And foremost amongst those are their housing needs.

But how does the court go about assessing a party’s housing needs?

Well, there is no strict formula, but an example of the court’s approach occurred in a recent case in the West London Family Court.

The case concerned a wife’s financial remedies application. The parties were married in Turin in 2006, and have one child, born in 2010. The wife, who has lived and worked in England since 2004, has dual Italian and British nationality, as does the child. The husband is an Italian national.

The parties separated in 2016, since when the wife and child have lived in rented accommodation in Brentford, London.

Following the separation there were various court proceedings, in both England and Italy, the details of which need not be repeated here. Suffice to say that divorce proceedings were issued in this country and the wife issued her financial remedies application within those proceedings.

The primary issue for the court to decide was the wife’s housing needs.

The wife argued that she required a fund of £1.25m to meet her housing needs, which would enable her to purchase a 3-bedroom terraced house in the Chiswick area of London. She claimed that she needed 3 bedrooms on the basis that her parents would visit on an occasional basis, and that the property should be in Chiswick, as that was where the child went to school.

The husband, on the other hand, argued that the wife would live in Italy, where she would only require around £350,000 for housing. In the alternative he argued that appropriate housing could be obtained in this country for about £450 – 500,000. He argued that the wife and child could live in a two-bedroomed flat similar to the property in which they were living, that there was no need for a three-bedroomed property, and that there was no need to move to the more expensive area of Chiswick, as it was not far from Brentford and in any event it had been the wife’s choice to send the child to school in Chiswick.

The judge decided:

1. That the wife’s future lay in London, not Italy, as the husband argued.

2. That the wife did not need anything more than a two-bedroomed property – it would not be appropriate to dip into other resources merely to house family members on occasional visits.

3. That it was appropriate for the wife and child to remain in Brentford, where they had lived for the previous seven years. The child’s school had been selected whilst living in Brentford, its maintenance had been entirely possible from Brentford, and the distance travelled is short.

But that did not necessarily mean that the judge agreed with the husband’s assessment that the wife needed £450 – 500,000 to meet her housing needs. As he pointed out, the search is for a fair outcome, not a coin toss between the options identified by the parties.

And the judge assessed that the wife needed £650,000 to rehouse herself, plus another £50,000 to cover the costs of purchase and furnishings. He therefore awarded the wife a lump sum of £700,000.

You can read the full judgment in the case here.

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Most children are lucky enough to have a close relationship with their grandparents, but what if the grandparents are unable to see their grandchildren? What rights do the grandparents have in such a situation?

Difficulties in grandparents seeing their grandchildren can occur as a result of the breakdown of their relationship with the parents or, more commonly, the breakdown of the parents’ relationship, where the grandchildren then live with the parent who is not their child.

Whatever the situation, there are certainly steps that the grandparents can take to (re-)establish contact with their grandchildren.

The first step, of course, is to try to agree contact with the parents if they are still together, or if they are separated, with the parent with whom the children live.

Such an agreement can be reached directly, through lawyers, or via mediation, if both parties agree to mediation.

But if agreement is not possible then the grandparents can apply to the Family Court for a child arrangements order allowing them to have contact with the grandchildren.

Such an application is essentially the same as a child arrangements application made by a parent, save for one important factor: Before the grandparents can proceed with the application they must first obtain the leave (or permission) of the court to make the application.

When considering whether to grant leave, the court will have particular regard to the nature of the application, the grandparents’ connection with the child, and any risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.

This means that a parent can oppose the grandparents having leave and slow down the process or even end the application without a full hearing. This is different to the position in other jurisdictions including Scotland and the government has discussed reform but this has not proceeded as yet.

If leave is granted the main application will continue, and the court will decide what, if any, contact the grandparents should have with the grandchildren. As in applications by a parent, there are a range of orders the court can make including indirect, direct and for overnights and holidays.

The court will make the decision in accordance with what it considers best for the welfare of the grandchildren. Specifically, the court will consider such matters as the ascertainable wishes of the children (considered in the light of their age and understanding), the children’s needs and the capability of the grandparents of meeting those needs, and any harm that the children are at risk of suffering.

In most instances the court will consider that contact with their grandparents is likely to be good for the children’s welfare. It is therefore likely that a contact order will be made, although the amount of contact will again depend upon what the court considers best for the grandchildren.

If you are a grandparent seeking contact with your grandchildren then you should seek expert legal assistance. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A new report sheds light upon how couples sort out financial and property arrangements when they divorce.

The report, led by the University of Bristol and funded by the Nuffield Foundation, follows a survey of the experiences of over 2,400 people who had divorced in the past five years.

And the survey paints a worrying picture of couples often going through the process without proper legal advice, with the result that many clearly do not receive their true entitlement in the divorce settlement.

The survey found that only a third of divorcees made use of lawyers in relation to their financial arrangements, with many who did not do so deterred by fear of the cost.

But those who did seek legal advice reported that the amounts they spent on legal advice were relatively low. A quarter had had spent less than £1,000, with a further 18 per cent having costs between £1,000 and £2,999. Only nine per cent had costs of £10,000 or more, with those higher costs associated with greater wealth.

As to outcomes, the survey found that only 28 per cent of divorcees divided their wealth, including the matrimonial home, roughly equally, with some simply dividing assets according to who owned what.

Half of divorcees who had reached arrangements across all of their assets received less than £50,000, 21 per cent received less than £25,000, and 23 per cent ended up with nothing or only debts. Only nine per cent came out of the marriage with £500,000 or more.

But perhaps the most worrying finding was in relation to pensions. The survey found that more than a third of divorcees did not know the value of their own pension pot, let alone their spouse’s.

Unsurprisingly given that, the survey found that only 11 per cent of divorcees shared a pension pot. Reasons for not sharing included a general lack of interest in the pension, and a strong sense that it ‘belonged’ to the spouse who had been contributing to it.

Needless to say, failure to properly share pensions on divorce is likely to leave the party with less pension provision, most often the wife, suffering severe financial hardship in retirement.

Commenting upon the report Lead author Emma Hitchings, Professor of Family Law at the University of Bristol, said: “Overall, the report exposes the considerable financial vulnerability of women post-divorce. Although legal processes are largely fair, these are not being used, especially by those with least means but most need.”

You can find the full report here.

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There are various situations where someone adopts a family member’s child, but perhaps the most common is the step-parent adoption, where the child’s parent has remarried or entered into a new relationship and their new spouse or partner wishes to adopt the child.

So what is involved in adopting your partner’s child?

The first thing to consider is the eligibility of the child. To be adopted, the child must be under the age of 18 when the adoption application is made, and must not be (or have ever been) married or in a civil partnership.

The second thing is that the child’s other birth parent normally has to consent to the adoption, unless they cannot be found (which is not unusual in step-parent adoptions), they are incapable of giving consent (e.g. due to a mental disability), or the welfare of the child requires that their consent be dispensed with by the court.

If the other parent does not consent then it is strongly recommended that you seek expert legal advice before proceeding, including upon the possible alternatives to adoption, such as obtaining parental responsibility for the child, or a child arrangements order stating that the child should live with you.

In order to adopt the child you must be over 21, married to your partner or in an enduring relationship with them, and the child must have lived with both of you for at least six months prior to the application.

As to the procedure, before you can apply to the court for an adoption order you must first notify the local authority in writing of your intention to apply, at least three months before the application is made.

The local authority will carry out an assessment and provide the court with a report to help the court decide whether an adoption order should be made.

As to the adoption application itself this is made by completing an adoption application form and sending it to the court with supporting documents and the court fee.

The court will then then fix a first directions hearing, at which it will give directions as to what should happen next, including when the local authority should report, what steps should be taken to find the other birth parent if their whereabouts are not known, and when the final hearing should take place.

If the court decides that an adoption order should be made it will make the order at the final hearing.

If you wish to adopt your partner’s child we can find you a legal expert to assist you, working with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A financial settlement on divorce obviously involves the division of the assets between the parties.

But what if one of the parties has transferred assets away, or is about to transfer assets away, with the intention of reducing the amount that the other party will receive? Is there anything that the other party can do?

The answer is yes, there is. They can apply to the court for an order stopping the other party from transferring the assets or, if they have already been transferred, setting aside the transfer.

It is important note that the party applying for such an order must show that the other party intended to defeat their financial claim, either by reducing the amount that they will receive, or by frustrating the claim entirely.

Where the transfer took place less than three years previously and had the effect of defeating the applicant’s claim then the court will presume that the other party intended to defeat the claim.

But if the transfer took place more than three years previously then the intent to defeat the claim must be proved, although it can be inferred from the circumstances.

If, for example, the transfer was made for no payment then it will be set aside.

And a transfer for less than the full value of the asset is also likely to be set aside.

Even a transfer for full value may be set aside if the person to whom the asset was transferred was aware that the purpose of the transfer was to defeat a financial claim.

An example of an application to set aside a transfer occurred in a recent case that took place in the Family Court at Oxford.

In the case the parties separated in 2017. The wife petitioned for divorce in 2018 and issued a financial remedies application shortly thereafter.

In 2021 the husband discovered that the wife had entered into two transactions selling shareholdings in one of the parties’ businesses to two people. Believing that she had done so with the intention of depleting the matrimonial assets, he applied to the court to set aside the transactions.

Hearing the application the judge found that the transactions took place less than three years before the date of the application, and had the consequence of defeating the husband’s claim for financial relief.

This gave rise to the presumption that the wife disposed of the shares with the intention of defeating the husband’s claim for financial relief, a presumption that the judge found the wife was unable to rebut.

Further to this, the judge found that the amount paid for the shares was considerably below their true value, and that the people buying the shares knew full well that the wife was selling the shares with the intention of defeating the husband’s financial claim.

In the circumstances the court set aside both transactions.

You can read the full report of the case here.

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Surrogacy arrangements, when a woman carries and gives birth to a baby for another person or couple, are becoming increasingly common, and are recognised by the Government as a legitimate way to build a family.

However, the law on surrogacy remains rooted in the 1980s.

Recognising that there may be a need to modernise the law, the Law Commission of England and Wales and the Scottish Law Commission undertook a review of the law. Their report, published in March this year, proposed reforms to improve the law

The present law

Under the present law the surrogate mother is the child’s legal parent at birth, even if she is not genetically related to the child.

In order to become legal parents the intended parents have to apply to a court for a parental order, within six months of the child’s birth.

The surrogate mother must give consent to the making of a parental order, no earlier than six weeks after the birth of the child.

The process of obtaining a parental order can typically take six months to a year to complete, during which time the surrogate is the child’s legal parent. Obviously, this doesn’t reflect the reality of the fact that the child is living with the intended parents, and can affect their ability to make decisions about the child.

The proposed reforms

The Law Commission recommends an entirely new pathway to legal parenthood, which it believes will work better for children, surrogates and intended parents.

The new pathway will allow intended parents to be legal parents from the birth of the child, provided that certain eligibility conditions are met, instead of having to wait months to obtain a parental order.

The pathway would allow the surrogate to withdraw her consent, from the point of conception until six weeks after the birth of the child, although if she withdraws consent after the birth the intended parents will be the legal parents at birth, and she would need to apply for a parental order herself if she wished to gain legal parental status instead of the intended parents.

Surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations, which will in turn be regulated by the Human Fertilisation and Embryology Authority.

Clearly, these reforms would make substantial changes to the law, and would completely alter the route to legal parenthood for anyone seeking to have a child via surrogacy. Whether the proposals will be implemented is a matter for the Government, and we are currently awaiting their response to the report with great interest.

The Law Commission’s report can be found here.

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Same-sex divorce is on the rise, and it is likely to continue rising.

This is not unexpected. Same-sex divorce has only been possible since 2015, and the number of same-sex divorces is therefore unlikely to reach a settled peak for some time.

To give an idea, there were some 1,500 same-sex divorces in 2021, the most recent year for which figures are available. But if the divorce rate amongst same-sex couples is going to match that amongst opposite-sex couples (about 40%), then we can expect the number of same-sex divorces to increase significantly (there are about 7,000 same-sex marriages each year).

OK, so an increasing number of people are going to be going through a same-sex divorce. What do they need to know about how to go about it, and how things may differ compared to an opposite-sex divorce?

The simple answer is that things should be very similar for same-sex and opposite-sex divorces. But there are a couple of issues that could arise for same-sex divorces.

The procedure to obtain a same-sex divorce is exactly the same as for an opposite-sex divorce. One or both parties will need to file with the court a statement that the marriage has irretrievably broken down, and after 20 weeks have elapsed they can apply for the conditional divorce order. Six weeks after that, they can apply for the final divorce order.

But a divorce is not usually just about dissolving the marriage. Arrangements for children and finances may also have to be sorted out.

Again, the way these things are sorted out should be similar for same-sex and opposite-sex divorces.

However, there could be two particular issues.

Firstly, the same-sex couple may have had a child via a surrogacy arrangement, so that only one of them is a biological parent of the child, and this could lead to complications when the other party to the marriage seeks to have contact with the child after the separation.

This should not be an issue if the other party has obtained a parental order giving them full legal parenthood and parental responsibility, but there could be complications if the marriage breaks down before they have obtained a parental order.

The second issue relates to finances.

Same-sex marriage has only been possible in England and Wales since 2014 (12 months must have elapsed since the marriage before a divorce can take place, hence same-sex divorce has only been possible since 2015), and a lot of same-sex relationships were therefore in existence long before the parties married.

But the length of the marriage is a factor that can have a bearing upon a divorce settlement, so that a party may expect a less favourable settlement if it has been a shorter marriage.

This will not normally be a problem, as the court will usually count pre-marriage cohabitation towards the length of the marriage. However, it can be difficult to prove when cohabitation began, and this can lead to arguments in court.

If either of these issues apply to you then you should seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Ministry of Justice has published its latest statistics for the family court, for the quarter April to June 2023.

The statistics include some news that is good, some that is not so good, and some that is neither good nor bad, but is certainly interesting.

Reduced court workload

Under the ‘good’ category, the statistics indicate a welcome reduction in the workload of the family courts, with fewer cases being started in most case types and more cases being dealt with by the courts in most case types.

For example, there were 13,080 new private law applications (i.e. cases involving disputes between parents over arrangements for their children) made in April to June 2023, which was down 4% on the equivalent quarter in 2022.

And there were 9,546 financial remedy cases disposed of by the courts, which was up 15% on the same quarter last year.

Cases taking longer

But the news was not all good.

For example, the statistics indicated that private children cases have been taking quite a lot longer.

In April to June 2023, it took on average 47 weeks for private law cases to reach a final order, i.e. case closure, which is up almost 3 weeks from the same period in 2022.

This continues an upward trend seen since the middle of 2016, when the number of new cases overtook the number of disposals.

Divorce under the new law

Lastly, in the ‘neither good nor bad, but interesting’ category we have the latest statistics in relation to divorce under the new ‘no-fault’ system introduced in April last year.

The statistics perhaps show how the new law will affect divorce long-term, now that things have ‘settled down’ following the law change.

The statistics show that in April to June 2023 there were 24,624 applications made for divorce and dissolution of civil partnerships. This is down 30% from the same period last year, when cases rose due to people waiting for the new law before issuing proceedings.

The figure is interesting because some feared that the new law, making divorce simpler, would lead to an increase in the number of divorces long-term. However, this appears not to be happening, as the new figure is similar, or even lower, than those under the old law.

Also of interest is the statistic that 25% of all divorce applications in the quarter were made jointly by the husband and the wife. The new law made joint divorce applications possible for the first time, and they are obviously likely to help reduce animosity on divorce.

The full statistics can be found here.

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If you expect a court to find in your favour then it should be obvious that you will first have to obey the directions of the court, and conduct your case in a reasonable fashion.

Anyone who fails to do this should not be surprised that the judge will not be well disposed towards them.

This simple truth was clearly demonstrated in a recent case that took place in the High Court in London.

The case concerned an appeal by a husband against a financial remedies order which divided the assets as to 62% to the wife and 38% to the husband.

The husband put forward a number of grounds of appeal, essentially challenging the findings of the judge in the court below as to his means, and the finding that the wife needed more of the assets to rehouse herself (the judge found that the husband’s earning potential would enable him to rebuild his resources so as to buy a property).

Hearing the appeal, Mr Justice Peel noted that the judge in the court below had made a number of “trenchant findings” about the husband’s “litigation misconduct, non-disclosure and general dishonesty”, pointing out that when a party fails to make full disclosure of their means the court is entitled to draw adverse conclusions where appropriate.

Specifically, the judge had recorded that after the parties separated the husband withdrew some £530,000 from his business ventures, and that the lack of disclosure the husband had provided prevented clear identification of where that sum had gone.

Mr Justice Peel commented that it seemed that, even on the husband’s own case, he had extracted getting on for £400,000, which was used for his own purposes. That sum, he said, easily matched or exceeded the difference between the sum award to the wife and the sum awarded to the husband.

Mr Justice Peel concluded:

“In looking at the case in the round, I take the view that [the husband] has only himself to blame for the findings made against him. His deficient disclosure, and manipulative litigation conduct, inevitably exposed him to the sort of findings and evaluation undertaken by the judge.”

In the circumstances the husband’s appeal was dismissed.

The full judgment can be found here.

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New research has shed light upon the experiences of parents and other adults who go to court to sort out arrangements for their children.

The research, carried out by the Nuffield Family Justice Observatory (‘NFJO’), focused on the adults involved in these cases, how their characteristics may affect their needs when they go through court, and the type of information and support that could improve their experiences.

The research came up with seven key findings:

1. That court is a last resort for separating families. The research found that only a small percentage of separating parents go to court to sort out arrangements for their children, most families preferring to avoid court due to costs, stress and concern for their children’s well-being. This is important. Court proceedings should always be seen as a last resort, with the parents making every effort to resolve their differences by agreement, whether directly, through lawyers, or via mediation.

2. That families in these cases are often facing deprivation. Research shows that the majority of families involved are from the most deprived areas, with limited access to resources affecting the level of support available to adults and their court experience.

3. That while most people in these proceedings are white, there is an over-representation of people from some other ethnicities. The NFJO says that evidence suggests that women from ethnic minorities often have worse experiences in court due to the impact of cultural stereotypes.

4. That not all people involved in these proceedings are parents. Ten per cent of applications are made by grandparents and other non-parents. We have previously discussed this, here.

5. That many families going through court have experienced health issues. The NFJO say that adults involved in these cases have a higher likelihood of experiencing mental health issues before they go to court, including depression, anxiety and self-harm. They are also more likely to have substance misuse problems.

6. That a growing number of adults in these proceedings are representing themselves in court. This is due to legal aid being removed back in 2013. Unsurprisingly, the research found that the court experience of these people is often negative, although it can be improved if legal professionals take time to support them, and if they have an understanding about court processes.

7. Lastly, that domestic abuse is an issue for many families involved in these cases. Sadly, not an unexpected finding. The NFJO says that victims of domestic abuse often have negative experiences in court, including concerns about being believed, as well as worries for their physical safety and mental well-being. However, research shows that legal professionals can improve victims’ experiences through actions such as understanding domestic abuse, actively listening to victims, and involving court independent domestic violence advisors, who provide support for abuse victims. Legal aid is available to victims of abuse, who can therefore seek expert legal advice.

It is hoped that these findings will be used to help improve the experiences of parents involved in these proceedings.

The research paper can be found here.

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Allegations of parental alienation are commonly raised in disputes between parents over arrangements for their children, and the issue is regularly discussed, by academics and others.

This has led to parental alienation being referred to in some quarters as a ‘syndrome’, as if it requires some sort of quasi-medical diagnosis.

And this in turn has led to parents alleging alienation seeking that diagnosis from experts appointed by the courts.

But whilst it may be appropriate in certain cases to seek the views of an expert, for example to undertake a psychological assessment of the parents, it is for the court rather than the expert to determine whether parental alienation has occurred, as a recent case has confirmed.

In the case the father was alleging that the mother had sought to alienate the children against him, and the Children’s Guardian sought the permission of the court to appoint a psychologist to undertake a psychological assessment of both the parents and the children.

The court granted the application.

The mother appealed, in part on the grounds that the instructions to the expert made it clear that they were being asked to provide an opinion about parental alienation, and that this was contrary to recent guidance given by the President of the Family Division.

The President had recently made clear that parental alienation was not a syndrome capable of being diagnosed, but was rather a question of fact for the court to determine.

The appeal court agreed with the mother. The judge stated:

“The decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. It is the Court’s function to make factual determinations necessary to inform welfare decisions for the child, not to delegate that role to an expert. The identification of alienating behaviours should be the Court’s focus, where it is necessary and demanded by the individual circumstances of the case for the Court to make such factual determinations leading to final welfare decisions for the child.”

Accordingly, the mother’s appeal was allowed, and the order permitting expert evidence was set aside.

You can read the full judgment here.

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After parents separate one of them may wish to relocate with their children to another country, for example because they have close connections with the other country, or because they have obtained employment in that country.

In such a situation the parent wishing to relocate will either have to obtain the agreement of the other parent, or the permission of the court.

Obviously, relocation can have serious implications for the children, and their relationship with the parent ‘left behind’.

In deciding whether to grant permission the court will be guided primarily by the welfare of the children. In other words, the court will decide whether the children’s welfare will be best served by them remaining in this country, or by them moving to live in the other country.

When making this decision the court will take into account such factors as the ascertainable wishes of the children, the children’s needs, the likely effect upon them of the move, and any harm that they are at risk of suffering, either by remaining here or by moving.

There are also other factors that the court should bear in mind, such as whether the plans of the parent making the application are genuine and realistic, and the effect upon that parent of refusing the application. However, such factors will always be secondary to the welfare of the children.

The way that all of this works was demonstrated by a recent case in the Family Court at West London.

In the case the mother wished to relocate with the children to another country. The country was not identified in the judgment of the case, only referred to as ‘country X’.

The father is British and the mother is a national of country X.

The mother wished to relocate because of the unsustainability of her living arrangements in this country, and the benefit of the children being able to relocate with her to country X, such as having free tertiary education there.

The children were bilingual and were familiar with country X, having spent significant time there.

Since separating the mother had been dependent on the support of friends, and could not afford to rehouse herself and the children in private accommodation. She and the children would live with her mother in country X.

She also felt that her employment prospects here were not good, but was optimistic that she could obtain employment in country X.

In any event the mother also claimed that the family had been planning to relocate to country X by about 2024.

The father opposed the application.

After considering the matters referred to above the judge decided that the welfare of the children would be best served by them relocating with the mother to country X.

The judge found that meeting the children’s needs would suffer if permission was refused and the mother compelled to continue to raise the children in this country. Refusing permission would likely negatively impact on the children and on the separated parental relationship.

In contrast the judge found it much easier to visualise the welfare needs of the children being met in a consistent and predictable manner whilst in X, whilst at the same time enjoying extensive and valuable time with their father.

Accordingly, the judge granted the mother permission to relocate. He also made orders with regard to the children’s contact with their father following the relocation.

You can read the full judgment here.

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It may be thought that the possibility of imprisonment for failure to pay a debt was consigned to history long ago. But that is not quite true.

While relatively rare, it is possible for the court to imprison a person for failure to pay a sum ordered by the court.

The procedure involved is known as a ‘judgment summons’. It enables the court to “commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.”

The court can only commit the debtor to prison if it is satisfied beyond reasonable doubt that they either have or have had since the date of the order or judgment the means to pay the sum due, and has refused or neglected, or refuses or neglects, to pay it.

The procedure was demonstrated in a recent case in the Central Family Court.

The case concerned a financial remedy application within divorce proceedings.

In connection with the application the court had made various orders for the husband to make payments to the wife in relation to her costs, the payments to be made by the 29^th of November 2021.

The husband failed to make the payments by that date and the wife therefore issued a judgment summons application, claiming the sum of £40,000.

The court heard the application in September last year.

As mentioned above, the court had to be satisfied that the husband had the means to make the payments on the 29^th of November 2021.

Having seen bank statements that indicated that on that date the husband had some £430,000 in his bank account, the court was satisfied that the husband had the means to make the payments.

And because the husband had that money available to him the court was also satisfied beyond reasonable doubt that he had refused or neglected to pay the sums due.

The court would therefore have been in a position to commit the husband to prison for failure to make the payments. However, committal to prison is obviously a very serious step, and the court will only do it if the correct procedure has been followed, including informing the debtor of their right to independent legal advice.

Here, the court did not have evidence confirming that the husband had been informed of this right, and it therefore adjourned the question of what the sentence should be to give him a further opportunity to obtain independent legal advice.

The matter eventually went back before the court in July this year, when the court found that the husband had still failed to pay some £36,000. That failure was deliberate, and no reasonable excuse was provided.

Accordingly, the court sentenced the husband to 21 days in prison, suspended on terms that he paid the £36,000 to the wife by 4.00pm on the 30^th of September 2023.

You can read the full judgment in the case here.

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Abducting a child to another country is obviously one of the worst things that a parent can do, causing not only extreme stress for the other parent but also potentially serious harm to the child’s welfare.

And so it is that the 1980 Hague Convention on Child Abduction, recognising the harmful effects of abduction, establishes procedures to ensure the prompt return of abducted children to the state of their habitual residence.

Almost half of all countries of the world are signatories to the Convention, including the UK, the EU, North America, most of South America, and much of the Far East.

If a child is abducted to one of those countries then an application can be made under the Convention to the courts of that country for the summary return of the child to the country of their residence.

And only in limited circumstances will such an application be refused, for example where there is a grave risk that his or her return would expose the child to physical or psychological harm.

Note that an order that a child should be returned to their home country does not decide the long-term arrangements for that child, only that the child should be returned – such decisions should be made by the courts of the home country.

The workings of the Convention were clearly demonstrated by a recent case that took place in the High Court in London.

The case concerned a father’s application to the court here for the summary return of two children aged 12 and 10 to the Republic of Ireland. The mother had brought the children from Ireland to England in December last year, without the knowledge or consent of their father.

The mother accepted that the father did not consent to the children living in England, but opposed the application on two bases: firstly that the children objected to being returned to Ireland, and secondly that being returned would expose the children to grave risk of harm, or an otherwise intolerable situation.

But the High Court did not accept the mother’s arguments.

The court was completely satisfied that returning each child to the jurisdiction of the Republic of Ireland would not expose either of them to a great risk of physical or psychological harm, and would not otherwise expose them to an intolerable situation.

The children did object to returning to Ireland, but their objections were significantly outweighed by the factors in favour of return, such as their family and other connections in Ireland.

Accordingly, the court ordered that the children be returned to the Republic of Ireland.

But the mother was not prepared to leave the matter there. She then applied to have the return order set aside.

The court, however, saw no reason to set the order aside.

The judge found that the mother had inexcusably plotted to abduct the children to England by deception, and said this:

“The Hague Convention 1980 is one of the greatest and most effective conventions in international law. It was devised by a community of nations to counter and correct precisely the kind of behaviour [the mother] has so flagrantly demonstrated.”

The mother’s set aside application was therefore dismissed.

The judgment on the father’s application can be read here, and the judgment on the mother’s set aside application is here.

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The term ‘domestic abuse’ is still understood by many to refer only to acts or threats of violence. Indeed, until relatively recently we referred to it as ‘domestic violence’, rather than ‘domestic abuse’.

But domestic abuse encompasses much more than just acts or threats of violence. In particular, it also includes coercive and controlling behaviour, whereby the abuser seeks to manipulate their victims, and restrict their freedom.

And abusers now have an additional weapon that they can use to harass and control their victims: smart technology.

The issue of smart technology being used by domestic abusers has attracted the attention of the House of Commons Culture, Media and Sport (‘CMS’) Committee, which has recently published a report on the subject.

As the Committee state, smart technology is everywhere, and influences every part of our lives, with an average of nine such devices in every UK household.

Smart technology takes many forms, from mobile phones and wearable technologies such as smartwatches and fitness trackers, to voice assistants, such as Alexa and Siri, security systems, and all sorts of smart appliances, controlling such things as lights, doorbells and central heating systems.

A common feature of smart technology is that these devices are often connected wirelessly via the internet, making them usable remotely, often without the knowledge of abuse victims.

Abusers can use the technology in various ways, for example to spy on their victims and monitor their movement, to take illicit videos and recordings of their victims, and even to manipulate the environment of their victims, for example by switching off lights and changing room temperatures.

As the CMS Committee pointed out, smart technology can even follow abuse victims who seek the sanctuary of a refuge, for example via a smartwatch, enabling abusers to find out where they are.

To tackle these issue the Committee make a number of recommendations, including raising awareness and training police to respond better to tech abuse.

Dame Caroline Dinenage MP, Chair of the CMS Committee, said:

“While the rising popularity of connected technology has brought undoubted benefits to everyday life, the flip side is the real risk some of these gadgets pose to privacy and personal safety online. In particular, the surge in use of devices such as smart home security systems, baby monitors, cameras and smart speakers to monitor, harass, coerce and control victims of domestic abuse is truly chilling.

“The Government must make it a priority to work with manufacturers to tackle this technology-facilitated abuse, which is only going to get worse in the future. The police and criminal justice system must be better equipped to deal with it, while victims should be properly supported.”

You can read the full report here.

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Generally speaking, any money acquired in the course of a long marriage will, all other things being equal (in particular the needs of the parties), fall to be divided 50:50 between the parties on divorce, irrespective of where that money came from.

But sometimes the provenance of the money will have a bearing upon its division on divorce, as was seen in a recent case in the Family Court at Torquay.

The case was also notable for being one of the few ‘small money’ cases that are reported. Most reported financial remedies cases involve the division of substantial assets, and whilst all cases involve the same law, those big money cases are often of little relevance to couples with modest assets.

The case involved a couple whose only available assets were two flats. One of the flats, the former matrimonial home, had an equity of just £2,500, and the other, purchased as an investment property, had an equity of about £17,500.

Against this, the couple had debts of over £30,000 and legal costs of £60,000.

The couple separated when the wife and the children left the matrimonial home in 2019 and moved into rental accommodation. The husband remained in the matrimonial home.

Divorce proceedings ensued, and financial remedy claims were made.

The wife sought the sale of both properties, with her receiving the proceeds.

But the judge did not agree.

So far as the former matrimonial home was concerned, the judge felt that it was best that the husband keep the property, in view of the small level of the equity, the costs of sale and early redemption which would go with a sale, plus the precariousness of the level of the equity, with the risk it may go into negative equity.

As to the other flat, this was purchased wholly or primarily from compensation monies received by the husband for injuries he received in a road traffic accident.

Whilst the judge accepted that the wife had an interest in the flat, he felt that the court should not entirely ignore the question of provenance. The money for the flat came from the accident suffered by the husband, and it would be harsh and unfair simply to ignore that, for some sort of sharing equality of equal needs.

Accordingly, the judge ordered that the flat should be sold and that the wife should receiver£4,000 from the net proceeds, with the husband receiving the balance.

The full judgment in the case can be read here.

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It goes without saying that divorce can be prohibitively expensive. It is therefore no surprise that most people going through divorce will be looking for ways to minimise that expense.

And that has given rise to a growing market of unregulated cut-price online providers of ‘quickie’ divorce services.

Unfortunately, consumer experiences of these services are not always what they should be.

It is therefore welcome that the Competition and Markets Authority (‘CMA’), the UK competition regulator, has launched a new investigation into online divorce services, as well as unregulated will-writing and pre-paid probate services.

The investigation follows complaints to the CMA about the services, including misleading claims about both the simplicity of cases and prices, and inadequate quality of service. Some complaints involved reports of vulnerable customers being subjected to pressure selling and coercion.

The CMA says that it “is keen to hear about people’s experiences with firms offering these services, over concerns that not all are complying with consumer protection law.”

The CMA is also concerned that, if a company ceases to operate, there is a risk that customers’ money or important documents may be lost.

Sarah Cardell, Chief Executive of the CMA, said:

“These services are essential to people, often at the most challenging times in their lives. The CMA is aware that rising living costs mean people are watching their spending, so shopping around for a more affordable option is attractive and sometimes a necessity.

“These may not be frequent purchases, but they are life-changing. That’s why it’s so important that we investigate so that people can select the right legal service for them – for divorce or probate or will-writing – with confidence. It’s essential that firms get the basics right, including complying with general consumer law which applies to all traders. Customers must get a fair deal.”

Another point to be made about these cheap online services is that they often try to ‘cream off’ the easy pickings of straightforward cases, where matters are agreed between the parties. But not all divorces are straightforward, and often a case that initially appears to be straightforward turns out to be anything but.

Obviously, some services may be perfectly reputable, but without proper regulation consumers have no way of knowing in advance the expertise of those offering the services, and can have difficulty seeking redress if things go wrong.

Hopefully the CMA investigation will address these issues, and ensure that consumers are properly protected.

[Family Law Cafe is a digital platform and uses regulated lawyers.]

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It’s trite to say it, but a financial remedies court order is worthless if it can’t be enforced.

Just how you go about enforcing an order depends upon the circumstances, in particular the type of order. A lump sum order, for example, can be enforced just like any other debt, and a maintenance order will often be enforced by an attachment of earnings order, taking the amount owed out of the payer’s wages.

But a financial remedies order may contain other provisions apart from lump sum and maintenance orders. What if the other party tries to obstruct the implementation of those provisions?

The situation arose in not one but two recently published Family Court judgments.

The first case concerned a final financial remedy order made in May 2021. The order provided for three rental properties to be transferred from the wife to the husband, and for the wife to retain the former matrimonial home.

The order was not fully implemented. The husband claimed that the wife had deliberately sought to frustrate the order and delay its implementation.

We need not go into the details of the claim, but the husband said that these attempts had caused him significant financial loss, by reducing the value of the properties he was due to receive.

The husband therefore applied to the court for a further lump sum payment, to compensate him for the losses he said he had suffered.

The judge agreed that the wife had prevented the implementation of the order, and that the husband had thereby suffered loss. She therefore awarded the husband a further sum of £100,000, so as to achieve a fair outcome that preserved, so far as is reasonably possible, the intention behind the original order.

The second case concerned a common problem arising from financial remedy orders. In January this year the court made an order providing that the former matrimonial home, which was occupied by the husband, should be sold.

But the wife claimed that the husband was refusing to cooperate in the sale by (amongst other things) failing to provide copies of the keys to the property to the wife’s solicitor, who was to have conduct of the sale, and ignoring attempts by the appointed estate agent to contact him in order to gain access to the property for the purpose of preparing marketing information and arranging viewings.

The wife therefore asked the court to bring forward the date by which the husband had to vacate the property, so that he could no longer obstruct the sale (the order only envisaged that the husband vacate for viewings).

The judge agreed that the husband had not complied with the order and therefore ordered him to vacate the property within six weeks, failing which the wife would be able to apply to the court for a warrant to physically remove him from the premises.

You can read the judgments in the cases here and here.

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Many separating parents are strongly of the belief that their children should spend equal time with each parent.

And quite often it is the case that such an arrangement is best for the children.

But sometimes a parent is so certain that they should enjoy equal time with their children that they will pursue such an outcome at all costs, even when others, including the court, do not consider it best for the children’s welfare.

Such actions will of course prolong the dispute between the parents, which in itself will be likely to cause harm to the children.

And an unreasonable pursuit of equal shared time can have even worse consequences for that parent, as a recent family court case demonstrated.

The case concerned arrangements for a child born in 2009.

Unfortunately, her parents had been in dispute over arrangements for her for 10 years which was most of her life.

An order made in 2012 divided her time over a fortnight with eight nights spent with the mother and six nights with the father.

In 2016 an order was made splitting her time nine nights to the mother and five to the father.

And in October 2020 the court made an order that the child live with her mother and spend three nights a fortnight with the father.

Then, following non-compliance with that order by the father, the mother issued further proceedings in 2021. The court suspended the 2020 order and replaced it with an order for the father to have supervised, indirect contact only.

The father made it clear that he would not take up any form of supervised contact, and that he intended to publish information from the proceedings. The father was also breaching the court’s order by meeting the child, by waylaying her on the way to or from school.

Another hearing took place in June 2022, when the court rejected the father’s argument that the child should share her time equally with each parent. Instead, it made an order in similar terms to the October 2020 order.

Matters then took a turn for the worse. The father continued to see the child outside the times set out in the order, told the court that he would not keep to the terms of the order, and in July he assaulted the mother, in the presence of the child.

The court suspended the June order and ordered that the father have indirect contact only. The father did not take up this indirect contact.

The child, meanwhile, unsurprisingly indicated that she wanted the litigation to stop.

The case went back before the court in January this year. By this time the court was also considering the father’s imprisonment for contempt of court.

The judge at the hearing stated: “What is surprising and concerning is that father was not able to work with the order from October 2020 which was an order which gave a substantial amount of time for [the child] to spend with both parents, a very normal order in these sorts of proceedings. Father was focused instead on his conviction that the right order was for [the child] to have half her time with each parent, and he was not prepared to accept less.”

Taking everything into account, the judge decided the right decision for the child was that there be no direct contact and the father to have ‘letterbox contact’ only with the child, enabling him to write to her, or send a card or a present, once a fortnight. The father remained under threat of imprisonment if he breached the order.

The judge also made an order barring any further applications relating to the child without the permission of the court, until she reaches the age of 16.

You can read the full report of the case here.

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Image: Darren Baker / Shutterstock.com

Marital agreements can take two forms: agreements entered into prior to the marriage, often referred to as ‘prenuptial’ agreements, and agreements entered into after the marriage, known as ‘post-marital’ agreements.

Such agreements are often entered into in circumstances where one of the parties has substantially more non-marital assets than the other, usually assets that they acquired prior to the marriage.

And that was the situation in a recent case in the family court in London.

The case concerned a couple who were married in 2015.

Prior to the marriage the couple entered into a prenuptial agreement. At the time of the agreement the couple provided each other with financial disclosure.

The information provided by the Wife was that her net assets were valued in the region of £50 million, and that she was likely to inherit at least several hundred millions of pounds. The information provided by the Husband was that his net assets were valued at about £225,000.

The agreement provided, amongst other things, that in the event of the marriage breaking down the husband would make no claim against the wife’s assets, save that the wife would provide for the husband’s housing needs while the parties’ son was in education, so that he had somewhere suitable to live when staying with his father.

The agreement was confirmed after the marriage, when the parties entered into a post-marital agreement, in similar terms.

The marriage broke down in 2021 and divorce proceedings ensued, in which the wife made a financial remedies application.

When the application was heard by the court the wife had assets of £250 million, and the husband’s assets were found to be £2 million.

The wife essentially sought an order that the parties be held to the terms of the agreements.

The husband, on the other hand, sought further financial provision from the wife, including a half share of one of the wife’s properties, equating to some £42.5 million.

But the judge did not agree that the husband should have more. He found that the agreements must carry full weight – the parties could have done no more to make clear their intentions as to what should happen in the event of separation in terms of their assets.

Accordingly, the husband’s claim for a share of the wife’s assets failed.

The full judgment in the case can be found here.

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Image: Burdun Iliya / Shutterstock.com

Taking a family case to court is obviously a very serious step, which should only be taken after the most careful consideration.

But what exactly are the factors that influence a court user’s decision to take a case to court?

A recent study commissioned by the Ministry of Justice sought to find the answers.

The study was carried out by the market research organisation Ipsos UK. It comprised interviews with a small group of civil and family court users whose cases had concluded since 2019.

The research objectives included exploring how emotional and financial factors influenced decisions to go to court, how awareness of and ability to manage the court process influenced decisions, and how financial considerations influenced decisions.

The study also looked at court user’s perceptions and experience of the court process.

The research found that emotional motivations played an important role in influencing decisions to take a case to court. These motivations were typically characterised by the desire for justice, the desire for recognition about the validity of the case, desire to share their personal experience, and the desire for emotional closure on a complex issue or traumatic experience.

Many of these things will surely ring true for family court users, even if they are not necessarily good reasons to go to court.

Obviously, financial motivations in family cases would be limited to those cases involving financial claims, such as financial remedy applications on divorce, although the research found that financial motivations were often interwoven with emotional motivations, particularly where participants expressed feeling entitled to financial compensation for the mistreatment they had experienced.

Another important factor was court users’ confidence and belief in their ability to navigate court processes, with those having legal representation obviously having greater confidence.

And the cost of going to court is of course a very important factor. Clearly, advice should be sought about potential costs before commencing court proceedings, despite the research finding that many participants believed that the issue they were seeking to resolve was so important that they would have found a means by which to pay the cost regardless.

As to court user’s perceptions and experience of the court process, researchers found that experiences were mixed, although unsurprisingly participants who received legal advice or legal representation tended to have a better awareness about the court process and their perceived capability to manage it, by virtue of being represented.

However, regardless of representation status, many reported underestimating how emotionally demanding the court case would be. This can, of course be especially true of family cases.

As stated above, taking a family case to court is a very serious step. It should only be taken as a last resort, and after taking expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

You can read the full report here.

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If one party to a marriage has an affair with someone else then they are obviously likely to feel very guilty for doing so. And they may try to make amends by making a gift to their spouse.

But what if, as is obviously likely, the marriage then fails? What is then the status of that gift?

The question arose in a recent Family Court case in London

The case concerned a couple who were married in 1998 and separated in 2020.

Perhaps the defining moment of the marriage took place in 2017.

The husband had an affair with another woman. It was only short-lived, and ended after about six weeks.

The husband told the wife about the affair.

There followed what the judge described as “a period of acute stress for the family”, with the husband’s former girlfriend embarking upon a campaign of public and private harassment, and stalking of both the husband and the wife.

The effect of this, said the judge, was difficult for the husband, but was acutely traumatic for the wife, being deeply unpleasant in its character and even leaving a residue of deep distress to this day.

And it got worse. The woman told the husband that she was pregnant by him.

Having taken advice as to what sum he would be likely to have to pay should the woman seek financial provision for the child, the husband transferred the same sum, £1m, to the wife.

In fact, the woman was not pregnant.

Perhaps unsurprisingly, the marriage subsequently broke down. Divorce proceedings were commenced and the wife made a financial remedies application.

The husband and wife did not agree as to how the court should treat the £1m gift.

The wife contended that it was a gift to her expressly to use as she wished, and made by way of partial amends for the husband’s misbehaviour. It would therefore be inequitable if she should be required now to share it with the husband.

The husband, on the other hand, argued that the court should treat it as one of the resources available to the wife, and that it should be shared along with the other matrimonial assets.

The judge agreed with the wife. He said that it was a payment made by the husband to the wife “to make amends” for his behaviour and its appalling aftermath. He accepted that the money was a matrimonial asset that was available for sharing, but the circumstances of its giving were highly relevant. There was no need for the husband to share in it, and it was fair to both parties that the wife should be entitled to keep it in its entirety, as was intended when it was given to her.

The full judgment in the case can be read here.

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There is a commonly held belief that the Family Court favours mothers when deciding upon arrangements for children.

But this is simply not true. The court’s decision will be based upon what is best for the welfare of the children, not upon any bias in favour of one particular parent.

And that may well mean that the court will decide in favour of a father rather than a mother, as was demonstrated in a recent case that took place in the Family Court at Oxford.

The case concerned two boys, aged 12 and 9. The father (as we will describe him) was not actually the biological father of the younger boy, but had treated the boy as his own.

The parents (as we will call them) separated in 2016, and initially the boys lived with their mother, spending regular time with the father.

However, social services became involved with the family in 2019, following concerns about the level of conflict between the parents about arrangements for contact, and about the boys in their mother’s care – the mother was finding it difficult to put in place positive parenting strategies, in part due to her own mental and physical health needs.

Early in 2022 the mother was having a difficult time emotionally, and asked the father to look after the boys. They therefore moved to live with him, although the mother later sought to have them returned to her.

The local authority and the father had become very concerned about the boys’ welfare in their mother’s care at this time and in June the father, with the support of the local authority, applied to the court for an order that they remain with him.

The court decided the matter by reference to the ‘welfare checklist’ of factors that it should take into account when considering what is best for the welfare of children.

Amongst those factors the court found that:

1. The boys had said very clearly and consistently over a long time that they would like to stay living with their father, and the court was satisfied that they were expressing their true wishes and feelings, and had not been influenced by the father, or anyone else.

2. The mother had not shown that she was able to meet the boys’ needs.

3. If the boys were to go back and live with their mother they would be at risk of suffering significant harm.

4. The boys were happy living with their father, his partner and her children, and had made excellent progress whilst living with them. A move back to their mother’s would be disruptive, and would undo a lot of that progress.

In the circumstances, the court decided that it should make an order that the boys should live with their father and his partner.

You can read the full judgment in the case here.

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Court proceedings regarding arrangements for your children can obviously be extremely stressful. But as a recent case demonstrates, it is absolutely essential that you keep your feelings to yourself, as the father in the case found to his cost.

The father was applying to the court for a child arrangements order allowing him to have contact with his one year-old son.

But for reasons we don’t know, the father chose to be extremely abusive to everyone else involved in the case, including the mother, the mother’s lawyers, the Cafcass officer, social workers, and even the judge’s clerk.

He also put abusive and untrue posts about the mother’s solicitors on social media, leading the firm to institute civil proceedings against him.

In addition, the father failed to file any of the evidence which he had been ordered to file by the court.

Needless to say, things did not go well for the father.

The judge found the father’s behaviour to be so extreme that she considered that the child would be at risk from the behaviour.

She was also of the view that continuation of the proceedings would allow the father another way of subjecting the mother and her family to further abuse.

The judge said that she also had to take into account that it would not be reasonable to expect any professional to play any part in the father’s contact, because of the abuse that they would likely receive.

In the circumstances the judge decided to dismiss the father’s application, without allowing it to proceed to a full hearing.

In addition, the judge made an order barring the father from making any further application for a period of one year, without first obtaining the permission of the court.

The case is a demonstration not just of how not to conduct yourself in court proceedings, but also of what the court can do in response to such behaviour.

Before finishing this post it should be stated that, as mentioned, we don’t know what was behind the father’s behaviour. Was it just his nature? Or was he perhaps frustrated by the workings of the family justice system? Or was there some other reason?

We will never know, although of course whatever the reason it could not justify or excuse the behaviour.

If you want to read the full judgment you can find it here (warning: strong language).

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Image: Shutterstock.AI / Shutterstock.com

When you go to court to sort out a financial remedies settlement on divorce your private financial affairs will be discussed. Indeed, the court will expect nothing less – both parties will be required to make full disclosure of their finances.

And it may not be limited to your financial affairs. For example, if you are in business with others then their financial affairs will also be disclosed.

Now, if this disclosure is limited to those involved in the court proceedings, then little or no harm will be done.

But what if the judgment of the court is published? Then your private financial affairs will be made known to the world.

And these days the family courts are expected to be more transparent about what they do, which means more judgments being published.

This has led to a debate between family lawyers about whether parties involved in financial remedy proceedings should be entitled to anonymity.

In modern times it has generally been the rule that financial remedy judgments should be anonymised.

But this has recently come under question, with High Court judge Mr Justice Mostyn suggesting that the default position should be that judgments be published in full without anonymization (save that any children would continue to be granted anonymity), unless there was a good specific reason to depart from this ‘rule’.

However, a recent report has cast doubt upon Mr Justice Mostyn’s position.

The report, prepared by a group of mainly lawyers looking at the issue of transparency in the financial remedies court, considered the competing arguments for and against anonymization.

Arguments for anonymization include the right to privacy of the parties, the fact that non-anonymization could discourage parties from making full disclosure, and the fact that an individual’s name is not essential for the understanding of how the family court works.

Arguments against anonymization include the principle of that justice should be open, the infringement of the rights of the media caused by anonymization, and the fact that other non-family civil cases are not anonymized.

The group undertook a survey to ascertain what lawyers felt on the subject. The survey found that 77.5% of respondents favoured anonymization, with only 16.5% against (the other 6% were undecided).

The group concluded that there should be a starting-point that reporting, whether by the media or in judgments, should be anonymised. They said that this would not place a veil of secrecy over financial remedy cases – the only secrecy would be in respect of the actual name of the parties, which would lend little or nothing to the greater understanding of the case, or the public interest in scrutiny of the family justice system.

You can read the full report here (section 12 deals with the issue of anonymity).

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It is obviously common that one party to financial remedy proceedings owns, or has an interest in, a business.

Clearly, the court will want to know the value of that party’s business interest, but how does it go about valuing it?

A recent, and instructive, High Court case provides the answer.

The case concerned a couple who married in 1990 and separated in October 2020. The wife did not work outside the home during the marriage, and the husband had a long and largely successful career in financial services.

Divorce proceedings were issued, followed by a financial remedies application.

One of the issues to be determined in the application was the value of the husband’s interest in a business.

The court directed that a single joint expert be instructed to provide a valuation of the business.

But neither party was happy with this joint valuation. The court therefore allowed each party to instruct their own expert valuer.

Accordingly, by the time the case reached a final hearing there were no fewer than three valuations of the husband’s business interest, and the figures arrived at by the experts differed remarkably.

The joint expert valued the husband’s interest at nearly £9 million, the wife’s expert valued it at nearly £19 million, and the husband’s expert valued it at just £133,000.

So why did two experts value the business in the millions and one at just £133,000?

This was explained by the husband’s expert.

Essentially, it was because the husband was the business. He brought in 90% of the fees earned by the business. Without him, the business had no significant market value to a third-party investor.

And the judge agreed. He therefore include the sum of £133,000 as the value of the husband’s business interest in the schedule of matrimonial assets to be divided between the parties.

Including that figure, the total value of the matrimonial assets came to some £33 million.

The judge considered that a fair outcome would be to divide that sum as to 51% to the wife and 49% to the husband.

Obviously, the valuation of the husband’s business interest was critical to the outcome of this case. Had the wife’s valuation or the joint valuation been accepted by the court then the outcome would have been quite different, with the wife likely receiving considerably more than she did.

You can read the whole judgment in the case here.

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It goes without saying that anyone involved in court proceedings should comply with the orders of the court.

And a recently-published Family Court judgment demonstrates what might happen if a party chooses not to comply.

The judgment concerned the final hearing of a wife’s financial remedies application on divorce.

It should have been a reasonably straightforward case.

But there was a problem, as the judge explained at the beginning of his judgment. As he said, the husband had been dishonest throughout, failing to comply with court orders, failing to provide relevant financial information and documentation, and flagrantly breaching undertakings given to the court.

And since the parties separated in 2010 the husband had been taking steps to put assets beyond the reach of the wife.

It was, said the judge, one of the most flagrant breaches of the duty of full and frank disclosure that has come before the courts.

The failure by the husband to disclose details of his assets left the judge with no alternative but to make inferences as to what assets the husband possessed, from the limited information available.

The wife claimed that the husband had assets worth at least £5.5 million, which had disappeared. She sought an order that she receive half.

The husband, on the other hand, claimed that he had no assets, only debts. He asked the court to simply make a clean break order, with no provision for the wife.

So did the husband have assets that he had failed to disclose?

The judge found that he did. There was evidence that the husband had removed assets, he had failed to comply with orders requiring him to provide information regarding his assets, and he was currently living in Spain, with no visible means of support, which indicated he had undisclosed assets.

As to the value of the husband’s assets, the judge unsurprisingly preferred the wife’s version of events, given the husband’s dishonesty. In other words, the judge accepted that the husband had assets worth at least £5.5 million.

In the circumstances, the judge decided that the wife was entitled to everything that she had asked for.

The full report of the judgment can be found here.

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As a general rule, on a divorce the assets of the parties will be divided equally unless there is a good reason why one party should receive more.

In a recent Family Court case the husband sought to argue that there were indeed good reasons why he should receive more.

The case concerned a couple who began living together in about the year 2000 (the wife said it was 1999, and the husband said it was in 2001). Whenever it was, at that time neither of them had any material financial resources.

They were married in 2004 and had three children. The marriage broke down in 2019 and divorce proceedings took place. The wife issued a financial remedies application, and this was heard by Mr Justice Moor.

As Mr Justice Moor explained, the wife is a home-maker and child-carer. The husband, on the other hand, has had a very successful career in the pharmaceutical industry, amassing a substantial fortune. By the time of the divorce the couple’s assets totalled some £284 million.

The husband put forward two arguments why he should receive more than half of the assets: that he had made a ‘special contribution’, and that he had generated a significant proportion of the family wealth after the parties separated.

Mr Justice Moor did not find either of the arguments to be made out.

As to special contribution, we need not go into detail, either of the law or of the husband’s business achievements. Suffice to say that Mr Justice Moor did not consider that the husband’s contribution was so special as to justify him receiving more than half.

As to the ‘post-separation endeavour’ issue, the husband’s argument was that at the time of the separation his interest in the business was worth some £33 million, whereas when it was sold in 2022, it was worth over £250 million, an increase due to his setting up a new business after the parties separated.

Again, the details of the husband’s argument need not be set out here. Essentially, Mr Justice Moor found that the husband had not set up a new business after the separation – the business was the same one that was created during the marriage.

In the circumstances, there were no reasons to depart from an equal division of the assets between the husband and the wife, and accordingly that is what Mr Justice Moor ordered.

You can read the full judgment here.

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It is sadly not unusual for the police to be involved when a family separates, particularly when there are allegations of domestic abuse.

But what if there are ongoing court proceedings relating to a child of the family? What court papers can be shown to the police?

The question arose in a recent High Court case.

The case concerned a father’s application for contact with his child. The mother made a number of allegations of domestic abuse against the father.

The court held a fact-finding hearing, at which ten of the allegations were found to be proved.

Notwithstanding this, the court ordered that the father should have contact with his child.

Sometime after this the mother made a complaint to the police that the father was harassing her. The police visited her and she showed certain documents from the court proceedings to the police, including a Cafcass report.

Finding out about this, the father sought to bring proceedings against the mother for contempt of court, by breaching the rules as to what documents she could disclose to the police.

As the judge himself complained, the rules covering what parties can lawfully disclose to the police are extremely complicated, and we will not attempt to set them out in full here.

In simple terms, the rules say that unless the court has permitted wider disclosure only the judgments and orders of the court may be shown to the police. Other court documents, such as Cafcass reports, may not be shown to police officers, unless they are specialist child protection officers (which they were not in this case).

After carefully weighing all of the relevant factors, the judge refused the father permission to bring contempt proceedings against the mother, for a number of reasons that need not be listed here.

However, the judge did admonish the mother for her conduct, explaining that it was absolutely forbidden for her to show the (non-specialist) police officers any documents from the contact proceedings, other than judgments or orders. If she wanted to do so then she needed to obtain an order from the court allowing it. That is what the law says, and that is the law that must be obeyed.

Contempt of court is a serious matter, which could result in a prison sentence. Obviously things could have ended much worse for the mother in this case.

The lesson is clear: if in doubt as to what court documents you may show to the police, take legal advice.

You can read the full judgment here.

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Where the local authority are not involved, most applications to the family court for orders concerning children are obviously made by one of the parents of the child or children concerned.

But new research shows that a tenth of applications are made by people who aren’t parents.

The research explored the types of orders being applied for, and the characteristics of the people involved. It was published by the Nuffield Family Justice Observatory, which undertakes research aimed at improving the family justice system, and carried out by the Family Justice Data Partnership, a collaboration between Lancaster University and Swansea University.

The research highlighted that this minority of cases is actually a very sizeable group, with around 5,500 such applications made each year in England, and 300 in Wales.

Most of those applications were made by grandparents, who accounted for 58% of all non-parents involved in England, and 63% in Wales. Other people involved included step-parents, foster carers, special guardians and intended parents (in surrogacy cases).

As to the types of orders being applied for, these were mostly for child arrangements orders, i.e. orders that the child live with, or have contact with, the applicant(s). These accounted for 56% of applications in England and 59% of applications in Wales.

A special guardianship order was applied for in 7.9% of applications in England and 6.0% in Wales.

5.7% of applications in England and 2.3% in Wales were for a parental order (surrogacy), and 5.2% of applications in England and 2.2% in Wales were for a parental responsibility order.

16% of applications in Wales were for adoption, primarily made by step-parents.

The research clearly demonstrates not just the number of non-parents making these applications, but also the importance they place upon obtaining these orders.

And it should be borne in mind that non-parents may have other hurdles to overcome, compared to parents. For example, whilst parents can apply for child arrangements orders at any time, grandparents and others must first obtain permission to apply from the court.

In the circumstances, it is strongly advised that anyone wishing to make one of these applications should first seek expert legal advice. We can find an expert who can assist you via our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Commenting upon the research, the lead author Dr Linda Cusworth of Lancaster University said: “While non-parent cases represent just 10 per cent of private law cases, they involve thousands of people and potentially high levels of need and complexity. Yet, to date, the private law reform agenda has focused on separating parents, overlooking the needs of this wider group of families.

“This is the first population-based study to explore these types of private law applications in England and Wales. We have examined the diversity of applications and the individuals involved, enabling a better understanding of their circumstances to increase the evidence base. We hope this report will promote useful discussions, and help practitioners and policymakers to focus on how best to meet the needs of families.”

You can find the full report of the research here.

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A recent Family Court judgment provides warring parents with a warning about the possible effect of their actions upon their children, and what the court might do to protect the children’s welfare.

The case concerned three children, one aged 8 and the other two aged 6. As the judge explained at the beginning of his judgment, their parents had been locked in litigation about their welfare for more than two-and-a-half years – a very substantial share of each of their young lives.

The judge continued:

“Their parents find common ground on almost nothing about the history of their relationship or anything about the children’s welfare. They present to the court a voluminous list of issues, touching on almost every part of the children’s lives. The sad reality of this situation, the court will find, is that each of the parents has compromised their children’s best interests and there is a very real risk each will continue to do so.”

It is not necessary here to go into the details of the case, or the issues that the court was (on this occasion) being asked to determine. Suffice to say that the court decided that it had to take steps to protect the children from the harmful effects of their parent’s litigious behaviour.

And the way to do that was to make orders barring the parents from making any further applications to the court in relation to the arrangements for their children, without first obtaining the permission of the court to make the application.

When considering whether to make barring orders the judge looked at the behaviour of the father and the mother.

As to the father, the judge said that he had engaged in what he called ‘lawfare’. He said that the father’s behaviour was oppressive. He considered that he was superior in his parenting to the mother, and would very likely issue applications to vary the court’s orders in very short order when the point arrived where he believed the mother had fallen short of his standards.

As to the mother, the judge found that she did not fully accept the importance of the father in the children’s lives, and she was also likely to issue further applications to reduce the children’s time with the father when they communicated even trivial levels of unhappiness, or she believed the orders had run their course.

The children had been subject to a high level of emotional harm through the proceedings, the objects of the parents’ conflict. Any further proceedings would likely be significantly harmful to their emotional wellbeing, going beyond the usual acrimony in cases of this kind.

In the circumstances the judge found that the children’s welfare required that he make barring orders against both parents, restricting their abilities to make further applications to the court in relation to the arrangements for the children. The orders would last for long enough for the children to complete two full academic years of school, that being the least amount of time they would need to move on from the conflict they had faced.

The lesson from this judgment is quite clear: when sorting out arrangements for your children you should make every reasonable effort to avoid conflict. You may hold strong views about what is best for your children, but that does not necessarily mean that your way is the only way. Parental conflict is likely to do more harm to your children than anything.

And do not make repeated applications to the court unless absolutely necessary. If you do, then the court may take steps to prevent your children suffering further harm.

The full judgment in the case can be read here.

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Obviously, financial arrangements on divorce should be agreed if possible, but what if one party subsequently realises that the terms of an agreement are unfair, before the court makes the agreement into an order?

The answer was demonstrated in a recent case that took place in the High Court in London.

As the judge in the case explained, an agreement between spouses is a contract, and the law insists on contracts being generally upheld.

Accordingly, the starting point is that the court should give effect to an agreement that is 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.

And the most common reason put forward for an agreement being unfair is that it does not meet the needs of the party wishing to challenge the agreement.

That was the wife’s argument in this case (although she did also argue that the agreement should be set aside because the husband had failed to make full disclosure of his finances).

In the case the parties reached an agreement on the 10^th of February 2022, which was then recorded in a signed draft court order, and sent to the court to be made into an order. (It is not necessary here to set out the terms of the agreement.)

On the 22^nd of February the wife repudiated the agreement, writing to the court asking for a hearing to determine whether the agreement was fair, as she claimed it did not meet her needs.

The court did not immediately make the agreement into a court order, but instead made an order that the agreement was not negated by the husband’s non-disclosure; that it was fair; and that it should be made an order of the court.

The wife appealed to the High Court, claiming (amongst other things) that the court failed to properly assess how her financial needs could be met through the agreement, and failed to take into account her liabilities.

The High Court judge found that the judge in the court below had indeed failed to make findings as to the wife’s financial needs and liabilities, and that without making such findings she could not make a decision as to the fairness of the agreement.

Accordingly, the High Court set aside the order of the court below, and made an order that the wife’s financial remedies claims should be retried.

You can find the full judgment in the case here.

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The recent case of NO v PQ is a salutary lesson for anyone contemplating investing their share of the matrimonial assets in a business venture.

In simple terms, the lesson is: if the venture fails, you may not get a second bite at the ‘divorce cake’.

In the case the husband had been a successful restaurateur for many years. In 2017 he sold his restaurant, which realised the net sum of £1.3 million. By 2017 that sum had depleted to about £600,000.

The parties discussed what they wished to do with this money, and in 2018 it was agreed that they would develop a new, high-end, restaurant and bar.

The marriage broke down and in September 2018 the husband handed back his wedding ring. Shortly after that he moved out of the family home.

In 2019 the wife expressed the view that she did not want to be in business with the husband anymore.

An agreement was therefore reached between them. The parties were in dispute about exactly what was agreed, but the judge accepted the wife’s explanation that the husband’s investment in the new business would “come out of his side” of the divorce settlement.

Unfortunately, and for reasons we need not go into here, the new business failed.

Divorce proceedings took place, and the wife issued an application for financial remedies. At this point the only really significant asset was the former matrimonial home, which had an equity of about £625,000.

The wife’s position was that she considered that she was entitled to the former matrimonial home, in the light of the 2019 agreement.

The husband, on the other hand, claimed that there was no such agreement, and sought an order that the former matrimonial home be sold, with the net proceeds divided equally.

The question for the judge was: was the husband entitled to a share of the equity? Clearly, he was in a predicament of real need.

As indicated above, the judge found that there had been an agreement between the parties in 2019. He therefore found that found that, notwithstanding his needs, the husband was not entitled to more than he had already received as a result of the agreement.

As the judge stated, making no provision for a party in real need was an unusual outcome. However, he felt that it was justified as the only fair outcome on the facts.

You can read the full judgment here.

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The Government is at last going ahead with the long-anticipated review of the law dealing with how finances are divided among couples after divorce.

The review has been launched by the Law Commission of England and Wales, and will consider the use of financial remedy orders, making financial provision between couples at the end of their marriage or civil partnership.

The current law covering the making of financial remedy orders has essentially remained the same for the last fifty years, and inevitably there have been increasing calls for it to be reformed, by those who believe it is no longer fit for purpose.

The Government has therefore asked the Law Commission to review whether the current law is working effectively, and delivering fair and consistent outcomes for divorcing couples.

The Commission will carry out a detailed analysis of the current law, to determine whether there are problems with the framework which require law reform, and what the options for reform might look like.

Specifically, the Law Commission will consider whether there is potential for reform areas such as: whether there is a need for a clear set of principles, enshrined in law, to give more certainty to divorcing couples; what consideration the courts should give to the behaviour of separating parties when making financial remedy orders; whether pension orders are overlooked when dividing the divorcing parties’ assets; and the factors judges must consider when deciding which, if any, financial remedy orders to make.

The review will conclude by publishing a preliminary report in September 2024, which could provide the basis for a full review and future financial remedies reform. This timetable means that a government consultation on proposed reforms is unlikely to appear until at least 2025, and obviously any reform of the law will not take place until after the consultation has been completed.

Commenting upon the review Professor Nicholas Hopkins, Law Commissioner for Property, Family and Trust Law, said:

“The laws governing financial provision on divorce or the ending of a civil partnership should be as fair and simple as possible, minimising the risk of conflict, uncertainty or financial strain.

“Fifty years since the current law was put in place, it’s essential that we look at whether it is working effectively for all parties. This is a hugely important area, affecting separating couples and their children at an incredibly stressful time of their lives. It is essential that any reform in this area is very carefully considered.

“I am therefore pleased that the Law Commission will be undertaking this review, to consider how any reform of this significant area of law could be shaped.”

You can find the project’s terms of reference here.

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The government has announced its long-expected plan to make mediation compulsory in all suitable family court cases.

Launching a consultation on the plan the Ministry of Justice said that the proposals “will see mediation become mandatory in all suitable low-level family court cases excluding those which include allegations or a history of domestic violence.”

The idea behind the plan is twofold: to protect couples and children from the “damaging impact of bitter courtroom battles”, and to ease pressures on the family courts, ensuring that the justice system can “focus on the families it most needs to protect.”

Announcing the plans Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice Dominic Raab MP said:

“When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life.

“Our plans will divert thousands of time-consuming family disputes away from the courts – to protect children and ensure the most urgent cases involving domestic abuse survivors are heard by a court as quickly as possible.”

The plans will include both children disputes and disputes over financial arrangements on divorce.

And if couples do not make a reasonable attempt to mediate and the case goes to court the court could impose financial penalties.

The proposals have not met with universal approval.

The Law Society, the professional body for solicitors in England and Wales, has said that early legal advice is the best solution for separating couples, not mediation. It therefore urges the government to provide funding for such advice, for those who cannot afford a lawyer.

And Resolution, the association of family lawyers, has pointed out that mediation is not right for everyone. Resolution’s Chair, Juliet Harvey, said that mediation “works best when it is done voluntarily – forcing parents to choose a route that may not be suitable for them is not the answer.”

Lastly, the domestic abuse charity Women’s Aid, warned of the dangers of pushing women who have experienced abuse down the mediation route, and said that they “urgently need clarity on how the Ministry of Justice will ensure that all domestic abuse survivors will be kept safe”.

The consultation seeks views on the plan, particularly from organisations representing separating families, family justice professionals, mediation service providers, other dispute resolution service providers and individuals who have lived experience of the family courts or mediation.

The consultation closes on the 15^th of June, and can be found here.

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Most applications for child arrangements orders (i.e. orders setting out with whom the child should live, and if with only one parent, what contact the child should have with the other parent) are, of course, made by one of the parents of the child.

But what if the child themselves wished to apply for an order regulating with which parent they should live, or what contact they should have with the other parent? Is that possible?

The answer is that it is indeed possible, although the child will first need to obtain the leave, or permission, of the court to make the application.

The court may only grant leave if it is satisfied that the child has sufficient understanding to make the proposed application.

A rare example of this in action was reported in a recently published judgment of the High Court in London.

The case concerned a 15 year old girl who wished to apply for a child arrangements order permitting her to live with her mother for the majority of the time.

She had essentially been living with her father since 2016, but her parents had since then been in conflict over where she should live, and she had actually wanted to live with her mother for some years.

She therefore applied in early 2020 for leave to make a child arrangements application. Initially the court refused leave, but she appealed against that decision.

Her father recognised that as every day passed she was becoming more mature, and he therefore accepted that the appeal should be allowed, which it was.

The girl proceeded with her child arrangements application.

Hearing the application in July 2021, Mrs Justice Judd felt it was right that she should accede to the girl’s wishes and feelings given her age, intelligence, and how long they had endured.

Accordingly, Mrs Justice Judd made an order providing for the girl to spend the majority of her time living with her mother.

She did however point out that when the girl reaches the age of 16 she will, from the perspective of the court, be able to choose her own living arrangements. It was therefore agreed that the order should not go beyond the end of the school year in 2022.

The full report of the judgment can be found here.

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As is well known, there is a general rule in civil court proceedings that the unsuccessful party will be ordered to pay the successful party’s legal costs.

Because of this rule many people will enter into family court proceedings under the impression that if they win their case the court will order the other party to pay their costs.

But this is not necessarily true.

By their nature family court proceedings differ considerably from other types of civil proceedings. Often it is not even appropriate to talk in terms of ‘winners’ and ‘losers’, especially where children are involved.

In the light of this difference the rules relating to costs in family proceedings are not the same as the rules that apply to other types of civil proceedings. In fact, for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply.

The basic rule in family proceedings is simply that the court may make such costs orders as it thinks just.

And the court will rarely, for example, think it just for a costs order to be made in a children case, unless one party’s conduct of the case was so unreasonable as to merit the making of a costs order against them.

As to financial remedy proceedings, the rule is slightly different. It states that the court will not make an order requiring one party to pay the costs of another party, but may do so where it considers it appropriate, because of the conduct of a party in relation to the proceedings (whether before or during them).

In deciding whether to make a costs order in financial remedy proceedings the court will have regard to a number of matters, including any failure by a party to comply with court rules or orders, any open settlement offers made (not any offers made ‘without prejudice’), and whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.

Not all financial remedy proceedings are covered by this rule, for example applications for maintenance pending suit, applications to enforce financial orders, and applications for financial provision for a child.

Finally, we mentioned above that for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply. There are two types of family proceedings to which it does apply: inheritance claims against the estate of a deceased person, and trusts of land cases, mostly commonly used to resolve property disputes between cohabiting couples, to request the court to determine shares in the property, and whether or not the property should be sold.

Whether you are likely to recover your legal costs from the other party is obviously a matter that should be considered before commencing court proceedings. You should therefore seek expert legal advice before going to court.

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We are living in times of high inflation. The cost of everything is going up, and many are finding it increasingly difficult to pay for essential outgoings.

An obvious answer to the problem is to increase your income. But what if your income comes from a spousal maintenance order? Can you go back to the court and ask for more?

The answer is that you can – technically, it’s called a ‘variation’ application.

You can also ask the court to extend the duration of the maintenance order, so long as the order did not prohibit any extension, and you apply within the term of the original order.

If you apply to vary a maintenance order the court will look at all of the circumstances of the case, including the means of the parties, when deciding whether to vary the order, just as it would have done when it made the original order (although if the application is made shortly after the original order, then the court may consider that a full rehearing is not needed).

But the court will be particularly required to look at any change in those circumstances since the original order was made, as if there has been no change, or little change, then a variation will not be justified. The change may affect the income of the paying spouse, or the financial needs of the recipient spouse.

And sometimes when a maintenance order is made it is expected that the recipient spouse will take steps to increase their earnings – if this was the case, then it will be taken into account by the court on a variation application.

There is also another alternative available to the court on a variation application, apart from simply altering the amount of the maintenance: the court can ‘capitalise’ the maintenance, for example by replacing it with an order that the other party pay you a lump sum.

It should be noted that this post is about spousal maintenance orders, as (save in high income cases) child maintenance will be dealt with under the child support scheme, which does not involve the court. However, the court will quite often seek to retain some ‘control’, even where a full spousal maintenance order is not justified, by making a nominal maintenance order in favour of the parent looking after the child(ren). The court could, in theory at least, increase the nominal order at a later date, should the circumstances require it.

Before applying to vary a spousal maintenance order you should seek expert legal advice upon the likelihood of the court increasing the maintenance. We can find you an expert who can assist you via our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Allegations of ‘parental alienation’ arise quite frequently as an issue in disputes between parents over arrangements for their children.

The most common scenario is when one parent is seeking contact with a child, who lives with the other parent. The parent seeking contact will allege that the other parent has alienated the child against them, in order to thwart a contact application.

The ascertainable wishes of the child is one of the factors to which the court must specifically have regard when deciding any question relating to them. So if the child expresses a clear wish not to see one parent that can have a significant bearing upon the outcome of the case.

But there can be some confusion as to what exactly is meant by the term ‘parental alienation’. Some, for example, consider it to be a diagnosable syndrome (‘Parental Alienation Syndrome’, or ‘PAS’), akin to a medical condition, rather than just a question of the behaviour of one of the parents, and the effect of that behaviour upon the relationship between the child and the other parent.

There is, in fact, no ‘official’ definition of parental alienation. However, Cafcass use the term ‘alienating behaviours’, which it defines as: “circumstances where there is an ongoing pattern of negative attitudes, beliefs and behaviours of one parent (or carer) that have the potential or expressed intent to undermine or obstruct the child’s relationship with the other parent.”

And comments by the President of the Family Division in the course of a recent judgment have further clarified the matter.

The case related to the use of an unregulated psychologist as an expert on parental alienation. The Association of Clinical Psychologists (‘ACP-UK’) were a party, and in their skeleton argument they stated:

“Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.”

The President stated that this paragraph deserves to be widely understood and, he strongly urged, accepted. He said:

“What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”

Obviously, if the Court does find that a parent has alienated a child then this will have a significant bearing upon the outcome of the case, and could even result in a finding that the child’s welfare would be best served by them moving to live with the ‘alienated’ parent.

You can read the President’s full judgment here.

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On the 20^th of February the government announced a raft of new measures to protect victims of domestic abuse.

The measures include:

● Tougher management of the most dangerous offenders: anyone jailed for 12 months or more for coercive control, including suspended sentences, will be placed on the violent and sex offender register, and also face being electronically tagged.

● Piloting new domestic abuse protection notices and orders in Gwent, Greater Manchester, and three London boroughs (Croydon, Bromley and Sutton). The court will be able to impose requirements such as attendance on perpetrator behaviour change programmes, alongside electronic monitoring and making it mandatory for offenders to notify the police of name and address changes.

● Requiring the police to treat violence against women and girls as a “national threat”, meaning that it should be given the same priority as serious organised crime, terrorism and child abuse.

● Developing a new digital tool which will use police data to identify individuals who are high risk and likely to commit domestic abuse offences, even those without convictions.

Describing the measures the government said: “The new proposals go further than ever before in protecting women and girls from harassment, aggression and violence, and focus on stopping domestic abuse before it takes place.”

Prime Minister Rishi Sunak commented: “No woman or girl should ever have to feel unsafe in her home or community and I am determined to stamp out these appalling crimes.”

And Home Secretary, Suella Braverman, said: “…police forces in England and Wales will now have to treat violence against women and girls as a national threat and more victims will be protected from harm.”

Whilst these measures may be welcome, an important point appears to have been missed: men can be victims of domestic abuse too.

And that includes not just men in same-sex relationships, but also men in opposite-sex relationships.

Surprising as it may be to many, it has been estimated that one third of domestic abuse victims are men. In 2020, for example, the Office for National Statistics estimated that 1.6 million women and 757,000 men reported abuse.

Despite these figures, male victims are often reluctant to seek help, concerned about the social stigma, and that they will not be taken seriously.

But domestic abuse, whether involving violence, threats of violence, controlling or coercive behaviour is a serious matter, irrespective of the sex of the victim. All victims are entitled to the protection of the law.

Whether male or female, if you are a victim of domestic abuse it is essential that you seek expert legal advice, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It is quite common that one spouse believes that they should get a more favourable divorce settlement because of the other spouse’s bad conduct during the course of the marriage.

But can the conduct of one party be taken into account on a financial settlement? And if so, how likely is it to affect the outcome?

The answer to the first question is: yes, conduct can be taken into account, if it is such that it would in the opinion of the court be inequitable to disregard it.

However, the answer to the second question is: “not very likely”. To have an effect the conduct must be “both obvious and gross”, in other words of a quite serious nature – far more serious than would be encountered in most marriage breakdowns.

The result of this is that it is actually quite unusual for a ‘conduct’ argument to succeed.

However, a relatively rare example of conduct being taken into account by the court was recently reported.

In the case the husband, who was a doctor, obtained a post in a hospital in 2011. In 2012 he was suspended from work, and in 2018 he was convicted of fraud in relation to the representations he made to obtain the post, and sentenced to 6 years imprisonment. He also had a confiscation order made against him in the sum of £337,000.

In February 2021 the husband was released from prison, but the parties separated in the following month. The wife then commenced divorce proceedings, and made a financial remedies application.

By the time the application was heard late last year there was about £412,000 owing under the confiscation order, including interest.

In considering the wife’s application the judge held that this was clearly a case in which the husband’s conduct would be inequitable to disregard. As the wife put it in her statement, the husband’s suspension, conviction, imprisonment and being struck off had been catastrophic for herself, and the children – she felt “completely duped and defrauded by him”.

Taking this and other matters into account, the judge awarded the wife 55% of the non-pension assets, plus 66% of the husband’s pension (the husband had essentially sought an equal division of the assets, and for the wife to receive about a quarter of his pension).

Notwithstanding the outcome of this case, raising a conduct argument should only be done after first taking expert legal advice. We can find you an expert who can assist you via our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

The judgment in the case can be found here.

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It is of course not unusual that one party brings far more money into a marriage than the other. In such a case they may feel that they should be entitled to more on divorce.

But are they likely to be awarded more?

To answer the question we must begin with one of the basic principles guiding the division of assets on divorce: that the court must avoid discriminating between the husband and the wife, and their respective roles within the marriage.

Thus, for example, the court will in general consider the financial contribution of a ‘bread-winner’ party to be equal to the contribution of a ‘home-maker’ party. In other words, it is not just about the money each party brought into the marriage.

But what if a financial contribution of one party was really special? Would that be enough to justify them receiving more?

The simple answer is that it could be, but it is unlikely.

This can be illustrated by a case that reached the Court of Appeal in 2017.

In the case the husband was appealing against a decision that he and the wife were each entitled to half of the assets on divorce, as he felt that his special financial contribution entitled him to more than half (he claimed 61%).

The Court of Appeal agreed that a ‘special contribution’ argument could succeed. However, to do so the circumstances had to be wholly exceptional, such that it would not be fair to disregard the special contribution. The amount of the wealth alone may be so extraordinary as to make it easy for the party who generated it to claim an exceptional and individual quality which deserves special treatment. Often, however, he or she would need independently to establish such a quality, whether by genius in business or some other field – a windfall is not enough.

In this case the husband’s contribution was $225 million, the entirety of the marital wealth. However, the Court of Appeal did not find that sum to be sufficient to entitle the husband to more than half – his contribution was not sufficiently exceptional, such that it would be unfair to ignore.

Putting it another way, the judge who made the original decision considered that there was not such a disparity between the contributions of the husband and the wife (including her moving to Japan when the husband’s work took him there) that it would be unfair to disregard the husband’s contribution. This was a decision to which the judge was entitled to come.

In short, as the Court of Appeal indicated, the concept of special contribution is potentially relevant in only a very small number of very exceptional cases. This may of course come as a disappointment to some, but hopefully the knowledge will deter them from wasting considerable legal costs upon a fruitless line of argument.

You can read the full judgment of the Court of Appeal here.

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It is sadly not at all unusual for both parents involved in a dispute over arrangements for their children to make adverse allegations about the behaviour of the other parent.

And sometimes the allegations may be invented or exaggerated, either to support that party’s case, or to undermine the allegations made by the other party.

Of course, the court will have to determine the truth of the allegations, if they are relevant to the issues. How it does this was illustrated in a recent Family Court case.

The case concerned an application by a father for the court to decide how much time his three children should spend with him. He alleged that the mother had pursued a campaign of parental alienation, to turn the children against him. He therefore asked the court to order the mother to cease the campaign, and to take steps to remedy the effects of the parental alienation, so that his relationship with his children could be healthier and more normal.

In response, the mother alleged that the father had inappropriately chastised the children, that he exercised coercive and controlling behaviour to the mother in and surrounding contact, that he displayed emotionally dysregulated behaviour in the presence of or towards the children, and that he abused or intimidated the children.

In order to determine the truth of these allegations the court fixed a ‘fact-finding’ hearing, to hear the evidence of both parties, and decide where the truth lay (there were in fact two such hearings, the findings made on the first one having been set aside on appeal).

As the judge explained at the hearing, each parent had to prove the allegations they made, on a balance of probabilities.

She said that the evidence might come from a number of sources, but the parents’ evidence was of course of the upmost importance. It is therefore essential that the court forms a clear assessment of their credibility and reliability. Each parent considers that the other parent is not telling the truth about some of the events. However, witnesses can lie for many reasons, and their recollections of events may vary. Further, just because they are found to have lied about one thing does not mean that they have lied about everything.

She found that the mother’s allegations were true and the father’s allegations about parental alienation were not true.

Obviously, these findings would be taken into account at the final hearing, when the court decides how much time the children should spend with the father.

You can read the full judgment here.

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A financial settlement on divorce will obviously usually involve the division between the parties of what assets exist at the time of the divorce.

But what if one of the parties believes that, during the marriage, the other party was siphoning off assets, with the result that the assets are significantly less than they would otherwise have been?

That was what the husband alleged in a recent case in the Central Family Court.

The case concerned a couple who were married in 1994 and separated in 2018. The wife is 49 and is a property consultant. The husband is 59 and is a builder.

A significant feature of the case was that the husband is, or has been until quite recently, functionally illiterate. For the majority of his adult life, therefore, he has had to rely on others to support him with many aspects of day to day life which most people take for granted. It was not disputed that for the duration of the parties’ cohabiting relationship it was the wife who undertook that role.

Divorce proceedings were issued in 2019 and the wife applied for a financial remedy order.

The husband claimed that throughout the relationship the wife was leading what he describes as a “double life”. He believed that she conceived a plan to defraud him and ultimately to leave him, having enriched herself at his expense. He said that throughout the marriage the wife was siphoning off joint funds, and using them to accrue assets that he knew nothing about.

The husband maintained that his illiteracy permitted the wife to act in this way, and that she exploited his vulnerability in this regard.

In order to determine the husband’s claims the judge had to examine the allegations of financial misconduct made by the husband against the wife.

In doing so she made a number of findings against the wife, which she said demonstrated a pattern of behaviour on the wife’s part. She said that on repeated occasions, and over a period of several years, the wife sought to remove assets from the family “pot”, and to place them where the husband would not be able to access them.

In short, the sum of the parties’ assets was less than it would have been if the wife had not acted in the way she did.

So what was to be done?

To ‘compensate’ the husband the judge did two things:

Firstly, having found that the wife had siphoned off some of £160,000 from the assets, she included that sum as part of the wife’s assets.

Secondly, to ‘penalise’ the wife for her conduct, the assets were divided as to 53%:47% in the husband’s favour.

The result of this was that the wife received 47% of the assets, which included the £160,000, some of which was no longer available.

And that was not the end of it. The judge also ordered the wife to make a substantial contribution towards the husband’s legal costs, which could amount to as much as £40,000.

You can read the full report of the judgment here.

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The answer to this question may be found in many places. However, a recent Family Court judgment contains an excellent summary, which should act as a useful starting-point for anyone wanting to know how the law decides financial settlements on divorce.

The summary sets out the following legal principles that the court will follow:

1. The first is simple: The objective of the court is to achieve an outcome which is “as fair as possible in all the circumstances”.

2. Importantly, fairness means that there is no place for discrimination between husband and wife and their respective roles. Accordingly, for example, the primary ‘breadwinner’ in the relationship will not be entitled to any more than the primary ‘homemaker’, just because they brought more money into the marriage.

3. In evaluating what is ‘fair’, the court has a broad discretion, but is required to have regard to the statutory criteria laid down by parliament, the first consideration being given to any minor child of the family. The statutory criteria include: the parties’ financial resources, their needs, their ages, the duration of the marriage, their contributions to the welfare of the family, and their conduct.

4. The court should seek a ‘clean break’ between the parties (i.e. so that they have no further financial responsibilities towards one another), if possible.

5. For reasons that will become clear in a moment, the court must decide which assets are ‘matrimonial assets’ and which assets, if any, are ‘non-matrimonial assets’. The difference is that matrimonial assets are assets acquired during the marriage, through the joint efforts of the parties to the marriage. Usually, non-matrimonial assets have one or more of 3 origins, namely: property brought into the marriage by one or other party, property generated by one or other party after separation, and inheritances or gifts received by one or other party.

6. Lastly, the court must take into account three particular principles, set out in the case law:

(i) Needs – The needs of the parties, in particular their financial needs, taking into account the standard of living during the marriage. In the vast majority of cases the court’s enquiry will begin and end with quantifying and meeting the parties’ needs. It is only in those cases where there is a surplus of assets over needs that the sharing principle (see below) is engaged, and where the outcome suggested by applying the needs principle is an award greater than the result suggested by the sharing principle, the needs principle will prevail.

(ii) Compensation – i.e. compensation for ‘relationship-generated disadvantage’, for example where a wife gives up a lucrative career to bring up the family. In practice, successful compensation arguments are very rare.

(iii) Sharing – The principle that, as a starting point, the parties are ordinarily entitled to an equal division of the matrimonial assets, whereas non-matrimonial assets are usually retained by the party to whom they belong, unless there is a good reason to the contrary. In practice, ‘needs’ is usually the only justification for a former spouse sharing in non-matrimonial assets.

If you wish to read the full judgment you can find it here.

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When the court considers what order to make on a financial remedies application it will take into account not just the assets of the parties, but also their liabilities, and that includes their liability in respect of outstanding legal costs.

In addition, legal costs may have already been incurred, and paid from the marital assets.

Either way, the costs will have the effect of reducing the assets available for division between the parties.

And this can obviously have a bearing upon the outcome, especially in a case where the court considers it appropriate for the assets to be shared equally between the parties.

Now, if both parties have incurred a similar amount of legal costs then there would be no unfairness if the remaining assets are divided equally.

But what if one party has incurred far greater costs than the other?

Does this mean that the party who incurred less costs will get a smaller settlement than if the costs of each party had been similar?

Or can they argue that their share should be based upon what the assets would have been had each party’s costs been similar?

The answer can be found in a recent judgment of the Central Family Court in London.

The judgment concerned the final hearing of a financial remedies application. In the course of the application the wife had incurred legal costs of £463,331 and the husband had incurred legal costs of £159,044, a difference of £304,287.

The judge commented that, on the face of it, the wife’s costs seemed to be “grossly disproportionate” for what was not a particularly complex case, where the money really being argued about (i.e. the difference between the parties’ real cases) was in all probability less than that sum.

The judge held that where one party has incurred legal costs at a sensible and moderate level and the other has incurred legal costs at a grossly disproportionate level, the simple inclusion of both debts in the court’s schedule of assets and liabilities (whether already paid or yet to be paid) is likely to be unfair to the sensible and moderate spender.

Accordingly, the judge decided to add back the sum of £200,000 on to the wife’s side of the court’s asset schedule, recognising that some of her additional costs may have been reasonably incurred.

The net result of this adjustment, of course, was that the wife received less of the available assets than she would have done had her costs been reasonable, and the husband was not penalised for the wife’s disproportionate costs.

You can read the full judgment here.

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When parents separate it is of course not unusual that one of them may wish to relocate with the children to another part of the country.

It is clear that a parent may not move a child to another country without the consent of the other parent (provided they have parental responsibility), or the permission of the court. But what is the position regarding an internal relocation?

The answer depends upon whether there is a child arrangements order in place, and whether you are the parent with whom the child lives.

If there is no order in place, you may relocate to another part of the country without the consent of the other parent, or the permission of the court. However, it is strongly recommended that you do seek the other parent’s consent or, failing that, the permission of the court.

Similarly, if there is an order and the child lives with you then you may relocate to another part of the country without the other parent’s consent, unless the terms of the order specifically prohibit it. However, you are still obliged to provide the other parent with contact as required by the order, and once again it is strongly recommended that you do seek the other parent’s consent or the permission of the court.

Lastly, if there is an order and the child does not live with you then you would require the consent of the other parent if you wished to relocate to another part of the country. If consent is not forthcoming then you would need to ask the court to vary the child arrangements order.

So the next question is: if you need its permission to relocate, how does the court decide the matter?

The answer was illustrated in a recent family court case, in which the mother wished to relocate with the children, whose care was shared between both parents, from London to Somerset.

The judge explained that the court must decide whether to grant permission on the basis of what is best for the welfare of the children. This involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options is best for the welfare of the children.

In this particular case the judge found that the children’s welfare was best met by them remaining in London. He made this decision, notwithstanding the wishes of the children to move to Somerset, as he considered that they would suffer emotional harm by permitting their relationship with their father to be damaged by relocation to Somerset.

You can read the full report of the case here.

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Cases relating to pre-nuptial agreements crop up quite frequently, and the way that they are dealt with by the courts is well known.

But what of post-nuptial agreements, i.e. agreements entered into after the marriage? How do the courts deal with them?

The answer is that the courts deal with all matrimonial agreements in the same way, irrespective of whether they were entered into before or after the marriage.

A recent Family Court case provides a useful demonstration of the court’s approach to post-nuptial agreements, albeit that the facts of the case were somewhat unusual.

The facts were that the parties were married in 2004 and separated in 2008, when the wife left the former matrimonial home. The wife issued judicial separation proceedings and in about November 2008 the parties agreed a financial settlement.

There is some confusion about the terms of the agreement, but essentially it provided for the equity in the former matrimonial home, the only asset, to be divided equally, in full and final settlement.

The former matrimonial home was owned by the husband. It was then worth about £280,000, and the equity was some £60,000.

The agreement gave the wife the opportunity to raise a mortgage to buy out the husband, failing which the husband would pay the wife £30,000 for her ‘share’.

The agreement was made into a consent court order, but the order did not take effect, because the judicial separation proceedings were never concluded. The agreement was never implemented.

The judicial separation proceedings were eventually dismissed, in 2019. This, as the judge said, had the effect of ‘morphing’ the 2008 agreement into a simple post-nuptial marital agreement.

Divorce proceedings were subsequently issued by the husband, and the court had to decide what to do with the agreement.

Both parties indicated that they were content with the terms of the 2008 agreement, but they differed as to how it should be implemented.

The husband wanted the court to order that he should pay the wife £30,000, although he was prepared to add another £10,000 to that, to take inflation into account.

The wife, on the other hand, invited the court to implement the 2008 agreement in such a way as to give her the opportunity to have the former matrimonial home transferred to her or, in the alternative, sold and the proceeds divided equally. This would amount to an order in the region of about £250,000 – £300,000.

The judge explained that the court should give effect to a nuptial agreement that is 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 the agreement.

The only reason why the judge did not consider that the parties should be held to the agreement was due to the passage of time and the change in the value of money.

He considered that the husband’s offer of £10,000 to uprate the £30,000 was not enough in the circumstances.

He preferred to look at what the £30,000 was as a percentage of the gross value in 2008 (say 30/280 = 10.71%), and then apply that to the gross value of the property in 2022, which is in the order of £525,000, making the 2022 figure £56,227.

He then rounded that figure up to £60,000, in full and final settlement.

So the answer to the question is yes, the court can certainly hold you to a post-nuptial agreement, unless it considers that it would be unfair to do so, as would have been the case here if the wife only received the original sum of £30,000.

The full report of the case can be found here.

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Obviously a financial settlement on divorce can require one party to pay maintenance for the other. Such spousal maintenance orders will, unless stated otherwise, last until the death of either party, or the remarriage of the recipient spouse.

But what if the receiving spouse cohabits with another person without remarrying? What happens then?

A recent case demonstrates the answer.

The case concerned a couple who were married in 2010 and had two daughters, now aged twelve and ten.

The couple separated in 2012. Divorce proceedings then took place and a financial remedies order was made by agreement in 2014.

The order provided, amongst other things, for the husband to pay child maintenance of £20,000 a year and spousal maintenance of £52,000 a year for five years, thereafter dropping down to £40,000 a year, that sum payable until the youngest child reached the age of eighteen or finished school.

The wife entered into a new relationship in early 2020, and by the time the Covid lockdown came in March 2020, she and her new partner were spending most of their time living in the same household. The wife and her new partner did eventually get married, in August 2022.

Meanwhile, in January 2021 the wife applied to vary the financial order, initially seeking a capitalisation of the spousal maintenance and an increase in the child maintenance.

The wife subsequently accepted that she no longer had a claim against the husband for spousal maintenance, but she continued to seek an increase in the child maintenance.

The husband in turn claimed a repayment of the spousal maintenance in relation to the period during which the wife was cohabiting. It is how this claim was dealt with by the judge that is interesting as far as this post is concerned.

The judge made the following points:

1. The obligation of an ex-spouse to pay maintenance does not necessarily stop immediately when a cohabitation starts.

2. There must be a period of time before a cohabiting relationship has become settled and permanent, where it remains justified for spousal maintenance to continue.

3. It was open to the parties to decide for themselves what period of time of cohabitation would trigger the end of spousal maintenance, but here they did not provide for that in their order.

In all of the circumstances the judge decided not to award a back-payment of maintenance.

Clearly, the moral of this story is that if you are to pay spouse maintenance and are concerned about your former spouse cohabiting you should insist upon a time limit (say, six months) on how long cohabitation should last before it triggers the end of the maintenance.

You should also of course seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

The full report of the case can be found here.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

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In recent posts we have looked at two ways in which one spouse can try to defeat, or at least reduce, the other spouse’s financial claim against them: by dissipating assets and by declaring themselves bankrupt.

Now we look at a third way, and one that is probably more common: by simply failing to disclose assets.

Obviously, a financial settlement involves the court dividing the matrimonial assets between the parties. But in order to do this the court must of course know what the assets are, and this requires that the parties disclose all of their assets.

So it can be tempting for one party to simply not disclose all of their assets. After all, surely the court can’t divide assets that it doesn’t know about?

Well, that is not entirely true.

The court does not of course have to accept what the parties say about their assets. In fact, it is duty bound to consider whether assets have been hidden.

The court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the true facts are.

And if the court finds that assets have indeed been hidden then it may add them back to the disclosed assets, and take them into account when dividing the assets.

To do this the court will obviously have to quantify the undisclosed assets. It should attempt a realistic and reasonable quantification of the assets, looking at all of the evidence, including the lifestyle of the non-disclosing party.

In doing this the Court must ensure that a non-discloser should not be able to obtain an outcome from their non-disclosure better than that which would be ordered if the truth had told. However, if the result is an order that is unfair to the non-discloser, it is better that than that the court should make an order that is unfair to the other party.

How this works was demonstrated in a recent case in which the court found that the husband had failed to disclose assets.

The judge in the case assessed that the value of the undisclosed assets was £241,000. He therefore added that sum back into the ‘asset pot’, before dividing it between the parties.

If you have reason to believe that your spouse is failing to disclose assets then you should seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Obviously, one spouse may use every ploy at their disposal to defeat the other spouse’s financial claim against them. One such ploy is to make themselves bankrupt, in order to put their assets out of the reach of the other spouse.

But is there anything you can do if your spouse uses bankruptcy to defeat your claim?

Before answering that question we need to look briefly at how bankruptcy can affect a divorce settlement.

When a divorcing spouse is made bankrupt a trustee in bankruptcy will be appointed and all of the spouse’s assets will pass to the trustee, whose job is then to pay the spouse’s creditors.

Accordingly, the spouse will have no assets available for the divorce settlement, at least for the time being, and the court will not be able to make an order transferring the bankrupt spouse’s assets to the other spouse.

So can you do anything about it if your spouse makes themselves bankrupt?

The answer depends upon whether your spouse was genuinely bankrupt. If they were not then the court can annul the bankruptcy.

Therefore, if you believe your spouse was not genuinely bankrupt and only made themselves bankrupt to try to defeat your claim you can apply to the court to have the bankruptcy annulled.

To have the court annul the bankruptcy you will have to prove that at the time the bankruptcy order was made it ought not to have been made, or that the bankruptcy debts and the expenses of the bankruptcy have all, since the making of the order, been either paid or secured for to the satisfaction of the court.

Note that your spouse’s suspect reasons for making themselves bankrupt will not justify an annulment if they really were insolvent at the time of the bankruptcy.

It should also be noted that if you make an application to annul a bankruptcy and it fails then you could be liable to pay the costs of the trustee in bankruptcy. An annulment application should only therefore be made after taking expert legal advice.

We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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This week (28 November – 2 December) is ‘Good Divorce Week 2022’, an annual campaign by Resolution, the community of family justice professionals who work with families to resolve issues in a constructive fashion.

The purpose of the campaign is to encourage couples to deal with their divorce in a way that reduces conflict to a minimum.

Each year the campaign has a particular focus. This year the campaign highlights the crisis in the family courts, and raises awareness of all the different ways families can resolve their disputes away from court, where it is safe and appropriate to do so.

The family courts are certainly in crisis. Just recently HM Courts & Tribunals Service published figures showing that the backlog of cases in the family court now exceeds 110,000 cases.

The figures also showed that the number of open private law cases (i.e. cases not involving social services) stood at 85,706 in August, and that the average time for these cases to be dealt with was 43 weeks.

Clearly, these shocking figures make it even more important that divorcing couples avoid going to court, if at all possible.

And this is where the second part of this year’s campaign comes in: how to resolve disputes away from court.

Obviously, the best way to avoid court is to agree matters through negotiation.

But of course that is not always possible, in which case there are other options.

One such option is mediation, whereby the couple agree to refer their dispute (whether about arrangements for children or finances) to a trained mediator, who will help them try to resolve the dispute by agreement.

Another option is arbitration, whereby the couple agree to refer their dispute to a qualified arbitrator who will decide the dispute for them, and to be bound by the arbitrator’s decision. Arbitration is therefore similar to court proceedings, but much quicker.

Whatever route you choose to avoid court, Family Law Cafe can help. Working with you on our digital platform, we can assist you in reaching an agreed settlement, or we can advise and guide you through mediation or arbitration.

For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A financial settlement on divorce obviously involves the division of the matrimonial assets between the parties.

Unfortunately it is not that unusual for one party to dissipate the assets in their possession, in an attempt to reduce the amount that they have to pay to the other party.

So what can you do if you have reason to believe that your spouse is about to dissipate assets?

The answer is that you can apply to the court for a freezing injunction, restraining your spouse from disposing of assets.

The court will make a freezing injunction if it is satisfied that your spouse is about to dispose of assets with the intention of defeating your financial claim against them.

A ‘guilty intention’ may be proved if the effect of the disposal would be to defeat your claim.

If it is satisfied, the court will make whatever order it thinks fit for restraining your spouse from disposing of the assets, or otherwise for protecting your claim.

If the court considers an injunction is not required, it could, for example, simply order your spouse to give notice of any intention to dispose of assets, so that you can then seek an injunction, if necessary. Or it could protect your claim by requiring your spouse to deposit money into court, or into a solicitor’s joint account.

Obviously, you may fear that your spouse may dissipate assets as soon as they hear of your application for a freezing injunction. In such a case you can ask the court to make an urgent injunction, without notice to your spouse.

But a word of warning. Freezing a party’s assets is a serious matter, which could obviously have a significant effect upon their ability to conduct their financial affairs. The court will not therefore make a freezing injunction unless it considers it to be absolutely necessary.

An example of what can happen if an injunction is applied for without good reason occurred in a recent case in which a husband applied for an injunction to freeze the wife’s assets, simply because he feared that she might dispose of assets.

But the husband had no evidence that the wife actually intended to dispose of assets. Accordingly, the court refused to make the injunction, and ordered the husband to pay the wife’s costs of the application, in the sum of £27,000.

Obviously, freezing injunctions should not be applied for without first taking expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

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As we explained here back in August, the House of Commons Women and Equalities Committee, which holds Government to account on equality law and policy, published a report recommending that cohabiting couples be given the right to apply for financial relief upon relationship breakdown.

The Government has now responded to the report.

The report recommended that a scheme of scheme of rights for cohabitants that was recommended by the Law Commission in 2007 be implemented.

The Government has rejected this recommendation.

The Government says that the scheme should be looked at afresh, and that in any event the Government is intending to review the law on marriage and financial provision upon divorce, and any changes to the law relating to cohabitation should wait until the outcome of that review.

The report also recommended that the Government should conduct a national public awareness campaign to highlight the legal distinctions between getting married, forming a civil partnership, or choosing to live together as cohabiting partners, as the Committee was concerned that many cohabitants believe that they have the same rights as married couples.

The Government agrees that it is important that people are aware of the legal distinctions between getting married, forming a civil partnership and living together as cohabitants.

However, it said that the Department for Education’s statutory guidance on relationships education includes the need for schools to ensure that pupils should be aware of what marriage is, including its legal status. In view of this, the Government does not consider a national campaign necessary, but says it will review the information currently available to the public in this sphere.

The Women and Equalities Committee Chair Caroline Nokes MP has criticised the Government’s response, saying:

“It is deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future.

“In doing so it relies on flawed logic. Weddings law and financial provision on divorce are wholly separate areas of family law. There is no reason the Government should not prioritise law reform for cohabiting partners alongside this.

“Moreover, changes to weddings and divorce law could take many years. This response effectively kicks the issue into the long grass and risks leaving a growing number of cohabitants financially vulnerable.

“The Committee welcomes the Government’s recognition that there must be better guidance on cohabitants’ rights. We have agreed to follow up on the committed actions in the coming months.”

As we explained in our previous post, if you have been in a cohabiting relationship your rights will be very limited. If you do wish to make a claim in respect of property or on behalf of a child then you should seek the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It is of course not at all unusual for families to move between countries, which can obviously have the effect that on marriage breakdown the courts of more than one country may be able to deal with the divorce.

Usually this will mean that the courts of one of those countries will deal with both the divorce itself and the financial settlement.

However sometimes one party will be living in this country but will find themselves divorced in another. Can they apply to the courts here for a financial settlement?

The answer is that they can, provided that certain conditions are met.

But first a little history, to explain why the law is as it is.

Until 1985 the courts in this country had no power to grant financial relief following a foreign divorce.

This was recognised as a problem, which could cause considerable hardship. A hypothetical example of the problem was given in 1982 by the Law Commission, which suggested the following scenario:

“Suppose an English woman marries a wealthy Ruritanian, and they establish the matrimonial home here in a house owned by the husband. In due course, the husband divorces her in Ruritania … No financial order is made in Ruritania. The Ruritanian divorce is recognized in this country as effective to terminate the parties’ marriage. The wife then has no right to apply to the court here for financial provision … Such a woman may thus face destitution…”

To address the problem of someone getting no, or no adequate, financial provision from the foreign court, the Commission recommended that the law be amended to allow the courts here to grant financial relief following a foreign divorce. The new law was enacted in 1984, and came into force in the following year.

So how does the law operate?

Firstly, the divorce must be recognised as a valid divorce in this country, and the party applying for relief must not have remarried.

Secondly, the court here must have jurisdiction to deal with the application. Essentially, this means that one of the parties must have a strong connection with this country, for example because they are habitually resident here, or that the matrimonial home was in this country.

Thirdly, the application may only be made after the court has given its permission. The court will only give permission if it considers that there is substantial ground for the making of the application. Note that permission can still be granted if the foreign court has made a financial order.

Once the application has been made the court must consider whether it would be appropriate for an order to be made, having regard to all the circumstances of the case, including in particular the connection which the parties have to this country and what rights the applicant has to apply for financial relief from the other party to the marriage under the law of any other country.

Finally, if the court has decided that it would be appropriate to make an order then it will decide what the order should be, using similar criteria to that used in a financial remedies application after a divorce in this country.

Obviously, applications for financial relief after a foreign divorce can be quite complicated. It is therefore highly recommended that, before an application is made, expert legal advice be sought. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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How the matrimonial assets are to be divided is likely to be at the forefront of the mind of anyone going through divorce.

But surely the answer is simple: isn’t everything just divided equally?

Well, it may be. But the assets are not always divided equally, and there is certainly no rule that says they will be.

The commonly held belief that each party automatically gets half stems from a misconception about what the law says.

What the law actually says, as was explained by the House of Lords back in 2000, is that: “As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so.”

In other words, equality is the ‘norm’, but not the rule. If, as is often the case, there is a good reason why equal division is not appropriate then the assets will be divided in some different proportions.

So the question is: what kind of reasons make equal division inappropriate?

There is no definitive list of possible reasons for unequal division, but the following three reasons are perhaps the most common.

The first reason, and the most common of all, is the needs of the parties. Where one party’s financial needs are significantly greater than the other party’s, then it may be appropriate to give the party with greater needs more than half of the assets.

A common example of this is where one party will be looking after the children – their needs, particularly in relation to housing, may be greater than the needs of the other party.

A less common reason is that one party’s financial contribution towards the marriage is significantly greater than the other party’s contribution. But care needs to be taken here: the contribution must be so special that an equal division of the assets would be inappropriate – it is actually quite unusual for the court to make such a finding.

And it should also be remembered that not all contributions towards a marriage are financial. The law recognises that the contribution of a ‘homemaking’ spouse, who looks after the home and the children, will usually be considered to equal that of a breadwinning spouse.

A third reason for an unequal division of assets is that not all assets are ‘matrimonial’, in the sense that they were acquired during the marriage, through the joint efforts of the parties to the marriage. Some assets are ‘non-matrimonial’, in particular assets acquired before the marriage, inheritances and gifts to one party, and assets acquired after the parties separate.

Generally speaking, only matrimonial assets go into the ‘pot’ for division between the parties. The party who owns the non-matrimonial assets will therefore normally retain them after the divorce, and obviously this may lead to an unequal division of assets.

There is, however, an exception to this rule. Where the matrimonial assets are insufficient to meet the needs of the other party, the non-matrimonial assets may be used to cover those needs.

Division of assets on divorce can be a complex subject, upon which expert legal advice should be sought. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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In an important new report the charity JUSTICE has recommended 43 ‘ambitious but realistic’ improvements to access to justice by separating parents who are unable to agree arrangements for their children.

With regard to the wider family justice system outside of court the recommendations include:

Information and early legal advice: JUSTICE recommends the creation of a single authoritative information website for separating families, and piloting of publicly funded early legal advice for child arrangements problems.

Coordination of legal and non-legal services: JUSTICE recommends the creation of ‘hubs, alliances and networks’ to coordinate services for separating families in the community, including contact centres; courses and workshops; domestic abuse support; legal support; mediation; mental health support; mentoring support; support for children; and other support groups.

A child participation presumption: Throughout the justice system, JUSTICE recommends a new presumption that all children will be offered the opportunity to participate in processes which assist in the resolution of a dispute which concerns them, both in and out of court, in an age-appropriate way. The presumption could be rebutted, for example if the child is too young, or if more harm would be done by involving the child than not.

Non-court dispute resolution: JUSTICE says that in addition to mediation, other non-court dispute resolution processes should be financially supported, including “packages” of support which combine legal help with non-legal help (like counselling). Non-court processes, they say, “need to be better supported to be child inclusive, through parental education, professional practice, and funding incentives.”

As for when cases go to court, the recommendations include:

The introduction of a “case progression officer”: In every case there should be a neutral, legally-trained court employee, who will: provide the family with information at the outset and throughout; manage preparation for hearings if one or both sides are unrepresented; answer queries about the outcome of any hearing; and help a litigant in person with the next steps required of them.

An initial investigation conducted by a “Court Team”: A multidisciplinary Court Team, consisting of the case progression officer, a Cafcass officer, and possibly others, should screen the whole family for risk, provide the family with information, talk to the adults and relevant third parties such as the child’s school, and also consult the child. The investigation could make referrals for support while the family try another process, such as mediation, or it could better prepare the case for the judge/magistrates.

Child participation in court: Following on from the child participation presumption, JUSTICE recommends that the court should have an explicit duty to offer children the opportunity to participate in proceedings, including letting the child meet the decision-maker more often, and giving the child feedback about the outcome and how their voice was taken into account.

Cases should be reviewed as standard: Lastly, JUSTICE recommends that a reviewing officer, normally from Cafcass, should follow up with the family, including the child, after a certain period of time to ask if the final order is working in the best interests of the child. If it isn’t, the same judge could hold a review hearing to consider any changes necessary.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

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It’s a simple question, and one often asked by those contemplating divorce proceedings: how long will it take?

The question is entirely understandable: for someone whose marriage has broken down the priority is to get the formalities of divorce out of the way as soon as possible, so that they can get on with their lives.

And divorce can obviously be a stressful process, so the quicker it is over, the better for all concerned.

But the question isn’t necessarily easy to answer.

In a literal sense, the question does have a simple answer: the divorce process takes a minimum of six months.

However, as we will see in a moment, the actual answer in most cases is rather more complicated.

Before we look at that, an explanation as to where the six month time period comes from.

Divorce is a two-stage process.

The process is begun by one or both of the parties issuing a divorce application, together with a statement that they consider that the marriage has broken down irretrievably.

There is then a twenty week ‘period for reflection’, intended to give the parties an opportunity to reconsider. This is the first stage of the process.

At the end of the twenty week period the applicant or applicants may confirm to the court that they wish the application to continue.

The court will then make a conditional divorce order, which ends the first stage of the process.

The second stage of the process is that there must be a six week period after the conditional order is made, before the party or parties in whose favour the conditional order was made may give notice to the court that they wish the conditional order to be made final.

When the court receives a notice it will make the conditional order final, bringing the divorce to a conclusion.

So a divorce consists of a twenty week period, followed by a six week period, a total of twenty-six weeks, or six months.

Thus the minimum time for a divorce to take is six months, although it will actually take slightly longer, as there will be a gap between the court receiving the application for the divorce to continue and making the conditional order, and between the court receiving the notice to make the conditional order final and making the final order.

But that is not the end of the story, at least in most cases.

In most cases there will be financial matters to be sorted out in connection with the divorce, and it is usually not advisable to finalise the divorce until all financial matters have been resolved, and a financial remedies order made.

The reason for this that the divorce could have financial implications.

For example, it could mean that a party loses a potential benefit under their spouse’s pension, as a pension scheme will often provide that if the pension holder dies then their spouse should benefit from the pension, but that benefit will obviously be lost if they are no longer the pension holder’s spouse. The way to prevent this is to sort out pensions before the divorce is finalised.

Of course, financial arrangements may be finalised within the six month period, but very often they take longer, meaning that the divorce will take longer – quite how long will vary from one case to another, and may very well be impossible to predict at the outset of the case.

In summary, if there are no financial matters to sort out, or if they have already been sorted out, the divorce should take a little more than six months, otherwise, it may take considerably longer.

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A Guest Post by Sebastien Nicolleau, MD & Founder of Galleon Property Search

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Whilst going through your divorce finances case you may need to show evidence to support your housing needs case. As property sourcing experts, we can provide a specialist Property Particulars Report based on evidence and property market data. This can strengthen your position or challenge the other party’s case meaning the matter may settle without court proceedings or, if the case has reached court, make all the difference to the court’s decision.

Finding and securing your new home post separation

A separation or divorce is an emotionally charged time for all involved and often a period of high stress. Once you have got through your separation and dealt with all the challenges, you may have the further challenge of finding a new home.

Finding your new home, a nest where we feel safe, is essential to turn the page and rebuild our life. Searching for properties is very time and energy consuming. It is also important to remember that estate agents work for and represent the interests of the seller who is their client and not you.

However, you have the option to work with a buying agent who will represent your interests only, advise you, guide you and manage the whole process on your behalf. We have been selected by Family Law Cafe as their trusted buying agent to support you on your journey to a new life.

If you choose to work with us, the first step of the process is to put together a detailed brief for your new home. This can take into consideration the location you want to live in, including proximity to where your children are educated, travel to your place of work, and where your family members and friends are located. We will also look at the specification for the new home and work out what matters to you. A separation is the perfect opportunity to re-consider your lifestyle and how you want to live the rest of your life. With the brief in place, we will then be ready to scan the entire market and identify the homes best suited to your new needs as you move into the next stage of your life.

As buying agents we will engage with every single estate agent in your pre-determined search area to identify all properties matching your requirements. We will also uncover any off-market homes that are not for sale on the open market. From the search results, you will decide on a shortlist of your top properties to view, we will organise a viewing schedule to suit your commitments and accompany you.

Our role is to fully appraise each property with you, identify potential issues and give you all the information needed to make an educated decision. Once you’ve chosen your favourite property, your buying agent will use their expertise of the property market to negotiate the best terms on your behalf. Our mission is not just to find your dream home, but to secure it at the best possible price, saving you money and time.

We help you with a joined up approach. Finding the right home at the right price is only one aspect of the process. You’ll also need a conveyancing lawyer, a surveyor, removals, and potentially an interior designer and contractors. Just like Family Law Cafe, we have a network of experts and between Family Law Cafe and ourselves we will make sure you have the best trusted experts for you to choose from. This ensures a coordinated approach, so the purchase moves safely through to completion and you moving into the house of your dreams. You can rest assured that all aspects of the process are covered professionally, relieving you of the stress and hassle, and empowering you to focus on planning your new post-divorce life.

As leading buying agents in the UK, with years of experience helping clients who are going through a separation or divorce, we appreciate how emotionally draining the situation can be. Finding a new home is only one aspect of this life change and it shouldn’t be a source of additional stress and anxiety. Our role is to make this journey and transition as enjoyable as possible and support you throughout.

Galleon Property Search are buying agents and part of the Family Law Cafe Network.

Call us for further Information on how they can work for you in your family matter.

The Ministry of Justice has published its latest statistics for the work of the Family Court, for the quarter April to June 2022.

The statistics indicate that the court is disposing of fewer private law children cases (i.e. children disputes between parents) and fewer financial remedy cases.

And these figures could have serious implications for the length of time it takes to have these cases dealt with by the court.

As to private law children cases, the number of disposals in April to June 2022 was 26,924, which was down 16 per cent on the equivalent quarter in 2021.

And whilst it is true that the number of applications was down (by 7 per cent) on the equivalent quarter in 2021, the statistics also tell us that these cases are taking much longer to be dealt with.

In April to June 2022, it took on average 46 weeks for private law cases to reach a final order, i.e. case closure. This is up 6 weeks from the same period in 2021, and the highest value since the quarterly statistics were first published in 2014.

This continues an upward trend seen since the middle of 2016, where the number of new cases overtook the number of disposals.

Moving on to financial remedy cases the statistics tell us that there were 9,239 financial remedy applications made in April to June 2022, 71 per cent of which were uncontested, and 29 per cent contested.

The total is down 31 per cent from the same period in 2021, which probably reflects the number of applications returning to pre-pandemic levels, there being a ‘spike’ last year, following the dramatic drop in applications when the pandemic first hit.

But whilst the drop in applications may be welcome, the statistics also tell us that in the quarter there were 8,253 financial remedy disposals events, which is down 26 per cent from the same period in 2021.

Unfortunately, the statistics say nothing about how long the court is taking to deal with contested financial remedy applications, but they do tell us that whilst there were 2,673 contested applications in the quarter, only 2,183 contested applications were disposed of, whether because they became uncontested or were dealt with by the court.

Obviously, having more new cases than disposals is a worrying trend, which could well result in cases taking longer.

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Capital Gains Tax (‘CGT’) has long been a trap for the unwary on separation and divorce, but new rules should make the problem a thing of the past.

CGT is a tax on the profit when you sell (or ‘dispose of’) an asset that has increased in value since you acquired it, the tax being payable on the amount of the increase.

Obviously, it is often the case that on separation or divorce assets may be disposed of, by being transferred to the other party. Such disposals are potentially chargeable to CGT.

But transfers between spouses are subject to a special rule, which is designed to ensure that the transfers do not attract CGT.

The special rule provides that such transfers are made on a “no gain/no loss” basis in any tax year in which they are living together.

The effect of this is that any gain from the transfer is deferred until the asset is disposed of by the receiving spouse, who will be treated as having acquired the asset at the same original cost as the transferring spouse.

But the problem for separating spouses is that the special rule only applies if the transfer is made in the tax year in which they separate. After that, normal CGT rules will apply to the transfer.

This gives the couple very little time to sort out their financial settlement, and can mean that the settlement is dictated by CGT considerations, rather than considerations relating to the separation or divorce.

Thankfully, this issue is soon to be a thing of the past, thanks to changes being made to the CGT rules by the Government.

The changes will include two particular provisions to help separating spouses.

Firstly, they will be given up to three years after the year they cease to live together in which to make no gain/no loss transfers.

Secondly, the no gain/no loss treatment will also apply to assets that they transfer between themselves as part of a formal divorce agreement, in which case there will be an unlimited time to make the transfer.

The new rules will apply to transfers that take place on or after the 6th of April 2023.

The new rules are very welcome, although it should be understood that CGT may still be payable when the receiving spouse eventually disposes of the asset – something that should be taken into account in the settlement.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

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As the reader will no doubt be aware, a new system of no-fault divorce came into force on the 6^th of April last.

A primary aim of the system was to remove much of the animosity from the divorce process, by doing away with the need to blame the other party for the marriage breakdown.

As part of this aim the system introduced for the first time the possibility of both parties applying jointly for the divorce, to reflect the fact that sometimes the decision to divorce is a mutual one.

And new figures from HM Courts and Tribunals Service indicate how many couples are taking advantage of this possibility.

The figures relate to the new online divorce service, which was updated to meet the requirements of the new divorce system.

The figures show that in the first month of its operation the new service received a total of 12,978 divorce applications, of which 2,771 were made jointly. That means that 21 per cent, or about one fifth, of all applications in that month were made jointly.

As indicated above, joint divorce applications were not possible under the old divorce law. The change to allow them has generally been welcomed, even by some who do not like the idea of a party who has not been found to be at fault being unable to defend a divorce.

For example, in a debate about the new law in the House of Lords, Baroness Meyer, who expressed concern about the idea of no-fault divorce, said: “I welcome the new concept of divorce by mutual decision through a joint application. Anything that reduces the stress, cost and emotional aggravation of a broken-down relationship must be for the good.”

So the question is: is one-fifth of divorces being issued jointly a good level of uptake for the new law?

Obviously, the fact that a couple whose marriage has broken down decide to apply jointly for the divorce may be viewed as a good thing, and therefore the more couples that take that route the better.

On that basis, just one-fifth of divorces being issued jointly may be thought by some to be rather disappointing.

It should, however, be remembered that the possibility of joint divorce applications is something new, and it may take some time before all divorcing couples become aware of it. It may be that in a year’s time the uptake will be rather higher.

Perhaps we will just have to wait before we reach any conclusion about the uptake of joint applications.

However, a more important question about joint applications is whether there is a correlation between them and agreed divorce settlements – i.e. a joint application makes an agreed settlement more likely.

One would certainly expect there to be such a correlation (although only time will tell), and if there is then that would certainly be a good outcome for the new law.

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Spousal maintenance orders are normally expressed to be payable until the death of either party, or until the remarriage of the recipient of the maintenance.

But what if the recipient moves in with someone else? Is the maintenance still payable in such circumstances?

The initial answer is yes, the maintenance is still payable, unless the court orders otherwise.

In other words, if you think you should stop paying maintenance because your ex has moved in with someone else, you will have to ask the court to discharge (i.e. cancel) the maintenance order.

The first problem you may have with such an application is that your ex may deny that they are cohabiting. You will then need to prove to the court that they are.

The court will decide the issue taking into account all of the circumstances, including whether your ex and their new partner are members of the same household, whether they share a daily life, whether the relationship is stable, whether there is financial support from the new partner, and so on.

But even if you are able to prove that your ex is cohabiting that does not automatically mean that the court will discharge the maintenance order. The law does not treat cohabitation in the same way that it does remarriage.

Cohabitation is a relevant factor for the court to take into account when considering the level of maintenance, but nothing more.

Quite how the court will take it into account, if at all, will vary from one case to another.

And one of the main questions for the court to ask is: what should your ex’s new partner be contributing towards your ex’s budget? Note that it is not what they are contributing, but what they should be contributing – often, in such situations income may not be pooled, in order to try to avoid the maintenance being discharged.

And the apparent permanence of the new relationship will also be a relevant factor – the court is not going to discharge the maintenance order if it is not sure that the new relationship is going to last.

If the court finds that your ex is being supported by their new partner, but is unsure whether the relationship will be permanent, then it may reduce the maintenance order to a nominal amount, rather than discharging it entirely. In that way, the maintenance can later be reinstated, if the relationship should fail.

In short, in some cases the cohabitation may have a considerable bearing upon the maintenance, and in other cases it may not.

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Financial remedy proceedings, if conducted in the wrong way, can lead to enormous wasted expense, as a family court judge warned in a recent case.

The judge said that the case should have been simple, involving just two properties, with a net value of about £730,000.

But it was not simple, primarily because the wife made ‘meritless and misconceived’ claims that the husband had interests in two other properties, and a controlling influence in a restaurant.

And the husband was also at fault, having been found to have been dishonest regarding his role within the restaurant business.

As a result of these things the couple ran up legal costs in excess of £200,000, which was obviously out of all proportion the value of the property in dispute, and seriously reduced the amount available for division between them.

Describing them as “feral, unprincipled and unnecessarily expensive financial remedy proceedings”, the judge said that it had taken him days to read the papers and even more days to write his 200-paragraph judgment.

He concluded the judgment by saying that the proceedings were “a disgraceful example of how financial remedy proceedings should not be conducted.”

Sadly, this case is just the latest in a very long line of similar examples of couples conducting financial remedy proceedings in the wrong way, and thereby running up exorbitant costs.

The lessons to be learned from the case are quite simple: don’t make hopeless claims, and be honest in your evidence. Failing to heed these lessons will simply make the case unnecessarily complex, and therefore much more expensive.

Those extra costs will have to be paid, either out of the pot available for division between the parties, or if just one party is at fault, the court can order them to pay the costs that they have caused the other party to waste.

In short, if you conduct financial remedy proceedings in the right way you are likely to find yourself better off at the end of the case, to say nothing of the time and stress involved.

Of course, an even better solution is to avoid contested court proceedings at all, by agreeing the financial settlement with your (former) spouse.

To ensure that you properly conduct financial remedy proceeding you should follow the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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In the course of financial remedy proceedings it will be necessary to produce to the court and the other party documentary evidence, as proof of your means.

And it is largely upon the basis of this evidence that the case will be settled, or the court will decide what the financial settlement should be.

But sometimes the documents are not all that they seem to be, as a judge in a recent case has warned.

Sometimes, a document will have been forged by the producing party, to give a false impression of their means.

And creating false documentation is all too easy, in these days of digitisation. All that can be needed is to download a real document, put it into an editing program, and make the required changes.

The result can easily fool an unsuspecting recipient.

And that is exactly what happened in the recent case. The judge found that the husband had dishonestly and falsely manufactured a bank statement, to mislead to wife into giving up her job abroad and moving to London, as a result of which the wife had “significantly suffered”.

The judge said that one reason why he wanted to have his judgment in the case published was to draw wider attention to the ability of dishonest parties to manufacture bank statements and other documents which, for all practical purposes, look genuine, but which are in reality are not.

So what is to be done about forged documents?

The answer is that if you are in any doubt as to the authenticity of a document you should raise the matter with your lawyer. They can then take steps to check to see whether the document is genuine.

In the particular case in question a genuine statement was obtained from the bank for the same period, and a number of transactions which were on the forged statement simply did not appear on the genuine one.

There are also other ways of checking to see whether a digital document is genuine. For example, all digital documents will have ‘metadata’ attached to them, giving details relating to the document such as the author, the document’s file size, and the date that the document was created.

Obviously, the original document’s metadata will change if it has been altered.

And if all else fails then a forensic expert can be instructed to examine the document, and give an opinion as to whether or not it is genuine.

In summary, be alert to the possibility that a digital document may not be genuine, and if in any doubt take steps to check whether it is. Failure to do so could result in an inferior settlement, or other adverse consequences.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

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A case involving the former owner of the Ritz hotel demonstrates what can happen to anyone who fails to comply with a financial remedies order.

In March 2021 Sir Frederick Barclay who, with his deceased twin brother Sir David, built a business empire that included the Ritz hotel, was ordered by Mr Justice Cohen to pay his ex-wife, Lady Hiroko Barclay, lump sums totalling £100 million, to be paid as to £50 million in 3 months and the remainder in a little over one year.

It was one of the biggest divorce settlements ever in this country.

But it has not been paid.

And now Sir Frederick, who is aged 87, is facing the possibility of being committed to prison, after Lady Barclay issued contempt proceedings for non-payment.

However, before Sir Frederick is committed to prison Lady Barclay will have to show that Sir Frederick has the means to pay the lump sum, and that he had wilfully refused or neglected to pay it.

Sir Frederick argues that he does not have the means to pay, as his fortune is all held in trust for his daughter and nephews, and his nephews had blocked his attempts to access his funds.

And at a hearing in July Mr Justice Cohen ruled that Lady Barclay had failed to prove that Sir Frederick has the means to pay. He did, however, make clear that this ruling did not in any way reduce Sir Frederick’s liability.

But Sir Frederick may yet face prison for his failures to comply with court orders. Mr Justice Cohen did find him in contempt for failure to pay a sum of £245,000 in legal fees and delayed maintenance, and gave him six weeks to pay that sum.

At a further hearing this month it transpired that Sir Frederick had paid that sum, with the help of a loan from his daughter. His nephews had also been helping him with his legal fees. Accordingly, he avoided being sent to prison.

But the original lump sum and legal fees now amounting to more than £1 million, as well as further maintenance payments for Lady Barclay, are still outstanding.

Mr Justice Cohen gave Sir Frederick a further three months to pay, saying that he wanted to hear of real progress in the payment of the lump sum.

And Mr Justice Cohen also rebuked Sir Frederick and his nephews for failing to pay a penny of the divorce settlement. He said: “It should be a matter of shame for Sir Frederick and his nephews that Lady Barclay is left with next to nothing by way of financial resources for the future … It seems to me extraordinary that every member of the family is prepared to put their hands into their pockets to help Sir Frederick avoid prison but will do nothing to help assist the greatest victim in this, namely Lady Barclay.”

The case is a demonstration that everyone, no matter who they are, must comply with court orders. As counsel for Lady Barclay said: “There is a real public interest that men in Sir Frederick Barclay’s position, captains of industry, media moguls, knights of the realm, like anyone else in this country, ignore court orders at their peril.”

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The House of Commons Women and Equalities Committee, which holds Government to account on equality law and policy, has published an important report calling for reform of the law relating to cohabitation.

The report points out that since 1996 the number of couples in the UK living together as cohabitants has more than doubled to 3.6 million, and now represents around one in five couples living together.

Despite these numbers, says the report, a lack of legal protections means that, upon relationship breakdown, the financially weaker partner has no automatic rights to the family home, or indeed to any form of financial support from their former partner.

The MPs also expressed concern at the problems that can occur on the death of a partner in a cohabiting relationship, including difficulties accessing a survivor’s pension and even keeping the family home.

And one of the biggest issues that the report found was the common misconception that cohabiting couples automatically gain rights equal to a marriage or civil partnership – the so-called ‘common law marriage myth’.

The report points out that a 2019 British Social Attitudes Survey showed that almost half of the total population of England and Wales wrongly assumed that cohabitants living together form a ‘common law marriage’.

This erroneous belief, says the report, can have ‘significant consequences’, with many falsely believing they have legal protections which turn out to be non-existent.

The report makes three key recommendations to address these issues:

1. That the Government should implement an opt-out cohabitation scheme, as was proposed by the Law Commission in 2007. The scheme would give basic legal rights to cohabitants upon relationship breakdown, where they had had a child together or had lived together for a specified number of years. The couple would be able, if they wished, to opt out of the scheme.

2. That the Government urgently launch a public information campaign to highlight the legal distinctions between marriage, civil partnership, and choosing to live as cohabiting partners.

3. That cohabitants be given similar rights to married couples and civil partners upon the death of a partner.

Commenting upon the report the Chair of the Women and Equalities Committee, the Rt Hon Caroline Nokes MP, said:

“The reality of modern relationships is that many of us choose – for a vast number of reasons – not to get married, even when in a committed, long-term relationship. This number is ever growing, and it is high time that the Government recognised this shift in social norms, which has been taking place for well over 30 years.

“The law has been left decades behind, as far as cohabitation is concerned, and this is leaving financially vulnerable individuals in precarious situations upon relationship breakdown or the death of a partner. It is completely unfair that these individuals have inferior protections to their married or civilly partnered peers. Deciding not to marry is a valid choice, and not one which should be penalised in law.”

It is indeed high time that these important reforms were implemented. Let us hope that the Government gives the report the attention it deserves.

Meanwhile, if you have been in a cohabiting relationship your rights will be very limited. If you do wish to make a claim in respect of property or on behalf of a child then you should seek the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It is rare for the President of the Family Division, the head of the family courts in England and Wales, to express their views in the mainstream media.

So when the current President Sir Andrew McFarlane spoke recently to the BBC, his words were worth noting, particularly for anyone who is, or may be, involved in proceedings in the courts.

Speaking to BBC Radio 4’s Broadcasting House programme, Sir Andrew said that some of the separating couples going to court, particularly to discuss the future of their children, would be better off not going to court.

At the moment, he said, for many couples court is the first port of call, when it should be the last resort, at least where there aren’t issues of domestic abuse or child safeguarding.

Sir Andrew said that his feeling was that about 20% of families who go to court to have a dispute about their children resolved would be better served by at least first of all trying to sort out the dispute in other ways.

He agreed that many parents see such disputes as a legal issue, when it is not. It is a relationship problem that they have, and the law merely provides the structure that, if needed, will resolve the dispute, and impose a resolution upon them.

And parental battles in court inevitably have an impact upon the children involved.

Sir Andrew said that research shows consistently that if you’re the child of parents who are at odds with each other that is unhealthy, and to have a dispute that runs on in the courts is highly likely to harm the child.

And Sir Andrew said that parents are fooling themselves if they say they are not involving the children, or that the children don’t know.

So what is to be done? Sir Andrew explained that the family courts are already piloting new ways of working, and part of that is that early on a social worker will file with the court a ‘child impact assessment’, with the idea of providing a wake-up call to the parents as to the impact of what they are doing on their child.

And of course the parents themselves can do more to try to resolve their disputes out of court, whether by negotiation, through mediation, or by some other means.

Family Law Cafe will help you choose the right option to resolve your family dispute. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Many victims of domestic abuse have had their trauma compounded by finding themselves cross-examined in court by their alleged abusers.

But new measures have now been brought in to put a stop to alleged abusers cross-examining their victims.

Cross-examination of an abuse victim will normally be undertaken by the other party’s lawyer. However, often the other party will not have a lawyer, particularly as legal aid is not available to them. They therefore have to carry out the cross-examination themselves.

Needless to say, this could be extremely traumatic for the victim.

There are also concerns that perpetrators were using the process as a means of extending their abuse.

To deal with these issues the Government has brought in new measures to stop alleged abusers from cross-examining their victims.

The ban on cross-examining victims will be applied in cases where there is specified evidence of domestic abuse between those involved, or there is a criminal conviction or protective injunction in place between the parties.

In such cases the court may appoint a lawyer to carry out the cross-examination, to ensure that justice continues to be done fairly for both sides.

The lawyer’s fees will be paid by the state, and the Ministry of Justice say that hundreds of lawyers have already signed up to fulfil this role.

Commenting upon the new measures, Justice Minister, Tom Pursglove MP said:

“Going to court about family issues can be a traumatic experience, so victims of domestic abuse shouldn’t face the extra torment of being cross-examined by their abuser.

“This is already banned in criminal trials and from today it will be banned in family and civil courts too – to protect victims, ease the stress and make sure they get a fair hearing.”

The new measures form part of government efforts to reduce the trauma of appearing in court and ensure that victims are better supported. This includes introducing special measures in family and civil courts, such as screens and separate entrances, to minimise stress and help witnesses to give their best evidence.

These new measures to further protect victims of domestic abuse are certainly to be welcomed, and will hopefully ensure that victims are not put off from raising allegations of abuse in court.

Once again, if you are a victim of domestic abuse it is essential that you seek expert legal advice, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

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Last year the Government passed the landmark Domestic Abuse Act, as we reported here.

The purpose of the Act is to raise awareness and understanding of domestic abuse and its impact on victims, to further improve the effectiveness of the justice system in providing protection for victims of domestic abuse and bringing perpetrators to justice, and to strengthen the support for victims of abuse and their children provided by other statutory agencies.

Amongst other provisions, the Act introduced the first statutory definition of domestic abuse; created the office of Domestic Abuse Commissioner, with powers to raise public awareness and hold both agencies and government to account in tackling domestic abuse; and introduced new protections for victims of abuse.

The Home Office has now published Statutory Guidance to go with the Act. The guidance supports the implementation of the Act’s wide-ranging statutory definition of domestic abuse, and provides advice to those working with victims, including the police and local authorities.

Specifically, the guidance sets out that domestic abuse can take many forms, not just physical violence, and can include a range of other behaviours, including controlling or coercive behaviour, emotional, and economic abuse.

The Act also recognises children who see, hear or experience domestic abuse as victims in their own right.

The Home Office says that the guidance will ensure victims are supported to access frontline support that meets the complexity of their needs, by ensuring that the police, healthcare practitioners and local authorities have the necessary tools and information to offer tailored support to victims and survivors.

The guidance will also

Commenting upon the guidance Nicole Jacobs, the new Domestic Abuse Commissioner, said:

“Domestic abuse has a horrific impact on victims, children and society more broadly. I welcome the publication of the statutory guidance which gives us a detailed blueprint for how we understand domestic abuse and how we improve our response to it.

“It’s essential that we all work together to tackle domestic abuse and take a holistic approach to this issue which the guidance helps sets out.”

This is important: victims of domestic abuse may seek help from a number of different services. It is vital that all of those services understand what is domestic abuse, recognise when it occurs, and know how best to respond.

If you are a victim of domestic abuse it is essential that you seek expert legal advice, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Ministry of Justice has published its latest quarterly statistics for the work of the family court, for January to March 2022.

And as so often the statistics paint a mixed picture.

The good news is that there was a decrease in the number of new cases started in the quarter, hopefully reducing the pressure on an already over-worked system.

In January to March 2022, 68,134 new cases were started in the family courts. This is down 6% on the equivalent quarter in 2021.

The drop was due to decreases in most case types, including an 18 per cent decrease in financial remedy cases, a 9 per cent decrease in cases concerning disputes between parents over arrangements for their children and a 2 per cent decrease in divorce cases. However, there was a 2 per cent increase in domestic violence case starts.

And the decrease in divorce cases may have been due to people waiting for the introduction of the new no-fault divorce system in April.

In not such good news there were 57,094 case disposals in January to March 2022, which is down 12 per cent on the equivalent quarter of 2021. This was due to decreases in most case types, including divorce (21 per cent), financial remedy cases (7 per cent) and children cases (2 per cent). However, there was a 9 per cent increase in domestic violence case disposals.

Perhaps the most worrying news though relates to the time that the courts are taking to deal with disputes between parents over arrangements for their children.

In January to March 2022, it took on average 46 weeks for these cases to reach a final order, i.e. case closure, which is up 7 weeks from the same period in 2021, and the highest value since the present records began in 2011.

This increase continues the upward trend seen since the middle of 2016, when the number of new cases overtook the number of cases disposed of.

Hopefully the decrease in new cases might reverse the trend in future, but meanwhile the message for parents involved in disputes relating to their children must surely be: do everything you reasonably can to resolve the dispute before going to court.

The best way to avoid court is of course to agree matters with the other parent. And if you can’t reach agreement through negotiation, then give serious consideration to mediation.

And if that fails then a quicker alternative to court proceedings would be to refer the case to arbitration, whereby a trained arbitrator will decide the case, and the parties agree to be bound by the arbitrator’s decision.

At Family Law Cafe we do all we can to help you resolve your matter without going to court. For more details about the service we provide and how we can help you, call us on 020 3904 0506, or click here, and fill in the form.

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It is sadly not uncommon that a party to family proceedings, especially proceedings involving children, believes that the judge dealing with their case is biased against them.

When this occurs the aggrieved party can ask the judge to step down, and take no further part in the proceedings. This is known as a ‘recusal application’.

Justice must of course both be fair, and be seen to be fair. A judge should therefore recuse themselves from a case not only when there is actual bias, but also when there is the appearance of bias.

But what if the judge refuses to step down? The answer then is for the party who requested them to step down to appeal against the refusal.

The court hearing the appeal will look at all of the circumstances of the case which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased.

An example of this process in action took place in a recent long-running case about arrangements for a four year-old boy.

The boy’s mother felt that the judge was biased against her, and requested him to recuse himself from sitting on the final hearing in the proceedings. The judge refused to do so and the mother appealed, to the Court of Appeal.

In support of the appeal the mother raised a number of instances during the course of the previous proceedings, which she claimed showed that the judge was biased.

The instances fell into two categories: those in which the judge showed apparent bias against the mother, including treating the father differently, and those in which he criticised the conduct of the barrister who was representing the mother, including threatening to report him to the Bar Standards Board, which is responsible for regulating barristers.

But the Court of Appeal concluded that in relation to both categories of instances they would not lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother.

It was true that the judge had been critical of the mother, but those criticisms had been based upon findings that he had made against her, which the mother had not appealed against. Bias means a prejudice against a party for reasons unconnected with the merits of the case – here the judge’s criticisms of the mother were plainly based on the merits of the case.

As to the mother’s barrister, the judge had criticised the barrister’s conduct, but those criticisms were no more than was to be expected from a professionally trained judge, and had had no effect on his decision-making.

Accordingly, the Court of Appeal concluded that there was no basis on which the judge should have recused himself, and that the mother’s appeal should therefore be dismissed.

As indicated above, it is not uncommon for a party to family proceedings to feel that the judge is biased against them. But that does not mean that there is bias, real or apparent. Anyone contemplating applying to the judge dealing with their case to recuse themselves should therefore first seek expert legal advice.

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Image: Public Domain, via Piqsels

It is a sad fact that many parents become involved in a seemingly never-ending series of court applications regarding arrangements for their children.

A typical scenario might go like this:

The parents are at loggerheads over who the children should live with. Unable to agree, they take the matter to court. The court finds in favour of one of the parents.

Unhappy at this, the other parent takes the matter back to the court, in an apparent attempt to get the court to change its mind. The court does not change its mind, so after a brief interval that parent tries again. And again.

This sort of situation can literally go on for years, with an aggrieved parent taking the case back to the court multiple times. Needless to say, such repeated applications can take an enormous toll on both the parents and the children, to say nothing of the effect upon court resources.

But the court has a way to put a stop to such a scenario: the barring order.

Normally, anyone is free to make whatever application to the court that they wish. However, a barring order restricts that freedom, by saying that a parent cannot make any further applications in relation to their children for a certain period of time, without first obtaining the court’s permission.

The court is unlikely to give permission unless there has been a change in circumstances since the last application.

Barring orders may be made upon the application of one party, or of the court’s own motion.

Until now, barring orders have usually been made in order to protect the children from the effects of repeated applications, by giving them a period of respite.

But new guidance for the courts is giving a different emphasis to barring orders.

The guidance recognises that sometimes the parent making repeated applications is only, or partly, doing so as a means of harassing or controlling the other parent. Unfortunately, all experienced family lawyers will have witnessed this behaviour.

The guidance therefore makes it clear that barring orders may be made not only to protect the child but also to protect the other parent from conduct amounting to harassment, or coercive/controlling behaviour.

The guidance also states that in proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a barring order at the conclusion of the case, even if an application for such an order has not been made.

To emphasise this the guidance states that children applications “should not be used as a means of harassment or coercive control, or further abuse against a victim of domestic abuse or other person, and the court should therefore give due consideration to whether a future application would have such an impact.”

It is to be hoped that this new guidance will help protect parents from the stress of repeated meritless applications, made with the intention of harassing or controlling them.

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In a recent judgment Mr Justice Mostyn, the lead judge of the Financial Remedies Court, which deals with financial disputes on divorce, warned that divorce litigation is becoming unaffordable for all but the rich.

The warning came in the course of a financial remedies divorce case that Mr Justice Mostyn described as “very straightforward”. Despite this, the parties incurred costs in the extraordinary amount of £1,670,380, or 5% of the total assets.

This situation led Mr Justice Mostyn to say that: “A … litigant does not have true access to justice if it is unaffordable; if it is … only open to all like the Ritz Hotel. Financial remedy litigation seems to be fast heading for Ritz Hotel status – so expensive that it is only accessible by the very rich.”

But it doesn’t have to be this way.

There are ways of keeping your legal costs down, even if you do have to go to court.

One of the most important things to do is to keep track of your spending. At Family Law Cafe we agree a flat monthly fee, once we have worked out how complex your case is. If you want to, you can pay at a discount for a 6 month block of our work.

And if at any stage you need extra experts we source them for you, give you choices and prices and ensure they only do what is absolutely necessary for you.

There are no hidden costs.

Alternatively, you can keep your legal costs to a minimum by doing some of the work yourself, as much or as you feel comfortable with. In this case we will oversee the case and make sure you know how to do the work effectively.

Of course the best way to keep costs down is to avoid going to court at all.

And there are two main ways in which you can avoid going to court: agreeing the matter, or going to arbitration.

The matter can be agreed directly with the other party, through lawyers, or via mediation, whereby a trained mediator will help you try to reach an agreement. Mediation is purely voluntary.

Arbitration is a process whereby the parties agree to refer the case to a trained arbitrator, who will decide the case, and be bound by the arbitrator’s decision.

Note that any agreed or arbitrated settlement will have to be made into a court order, to ensure that it is legally binding. It is normally possible, however, to obtain such an order without having to attend court.

In short, going to court to sort out finances on divorce can be extremely expensive, but it doesn’t have to be that way, and we can help you to keep the costs to a minimum.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

It goes without saying that anyone seeking a financial settlement on divorce should try to resolve the matter by negotiation, rather than wait for the court to decide the matter for them.

But obviously there is no point in negotiating if the proposals that you put forward are unreasonable, and never likely to be agreed by the other party.

The cost of negotiating unreasonably was demonstrated by a recent Family Court case.

The case concerned the division of assets totalling some £12.47 million. The wife was ultimately awarded a total of £7.45 million by the court, which was about 60% of the total assets.

In the course of the proceedings the wife ran up legal costs of £917,000, and the husband ran up costs of £709,000.

At the end of the proceedings the husband asked the court to order the wife to pay £310,000 of his costs, in view of her unreasonable negotiating position.

The rule as to costs in most types of court proceedings is that the winner pays the loser’s costs. However, that rule does not apply in financial remedy proceedings, where the starting-point is that each party should bear their own costs.

The court may, however, make an order requiring one party to pay the costs of the other party where it considers it appropriate to do so because of the conduct of the other party in relation to the proceedings.

And the court will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which it will consider making an order for costs.

In the case the wife consistently sought £10 million or more and, far from moderating her position, increased her claims, so that by the time of the trial she was seeking not less than £10.6 million, which was about 85% of the assets. The husband, on the other hand, offered £7.15 million by the time of the trial.

The court found that the wife’s negotiating stance was so far wide of the mark (some £3 million), and so unreasonable that she should bear some of the husband’s costs. On the other hand, the husband’s proposal was close to the amount awarded by the court.

The court therefore ordered the wife to pay £150,000 towards the husband’s costs, to be set off against the sum awarded to her.

The moral of the case is clear: yes, try to settle the case by negotiating, but you must negotiate reasonably, and you may be penalised if you do not.

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More and more people are doing their own divorce online these days, so why not choose an online legal provider too?

It has never been easier to do your own divorce. With divorce now being dealt with online and with the simplicity of no-fault divorce, almost anyone can do their own divorce from the comfort of their home.

But online divorce is just that: it deals with the divorce itself, but nothing else. It does not deal with any dispute over arrangements for children, and in particular it does not sort out arrangements for finances.

Even if you can do your divorce yourself, you will still need legal help to sort out these matters. Attempting to sort out a financial settlement on divorce without proper legal advice is a recipe for disaster, which could result in you failing to receive your full entitlement.

And even in an apparently straightforward case you should still seek advice, not just upon the settlement, but also how to implement it (even where matters are agreed, the agreement will have to be put into a court order, which should be prepared by an expert lawyer).

Of course, obtaining legal help will normally mean finding a solicitor, going to their office to instruct them, and then dealing with them mostly at “arm’s length”, having to contact them whenever you want to know what is happening on your file, and often having to wait for a response.

But there is another way. Family Law Cafe provide an online-based service, whereby you can access your file at any time, via a secure online portal. It is the perfect companion to online divorce.

These days it is possible to conduct many aspects of our lives online, as the experience of the pandemic showed us. Why not deal with every aspect of your divorce online?

With Family Law Cafe you can do just that.

For more details about the service we provide and how we can help you, call us on 020 3904 0506, or click here, and fill in the form.

If you wish to instruct us, do so as soon as possible. Don’t wait for the divorce to be finalised – the financial settlement should be dealt with before then.

And if you don’t want to deal with the divorce yourself, we can arrange to do that for you as well!

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For the last month people everywhere have been engrossed in the Johnny Depp/Amber Heard defamation trial, as the two Hollywood stars have played out their private lives in front of the world’s media.

But whilst the trial may have fed the public’s hunger for salacious details of the lives of the rich and famous, there are serious lessons to be learned.

One such lesson comes from the allegations against Amber Heard. The issue between Depp and Heard began with the suggestion that Heard had been the victim of abuse at the hands of Depp. However, in the course of the trial allegations have been made suggesting that Heard may have herself been an abuser in the relationship.

Now, we do not wish to make any comment upon the truth of the allegations by either party – that is of course for the court to decide – but the fact that Heard may or may not have been the ‘innocent’ victim of abuse does illustrate that not all abuse victims are ‘perfect’.

When abuse occurs in a household it is of course quite possible that both parties may behave in an abusive manner, to a greater or lesser extent. A victim may, for example, respond by themselves being abusive towards their abuser, whether orally or physically. But that does not necessarily mean that they are no longer a victim.

However, the knowledge that their abuser may make counter-allegations against them in court, some of which may be true, could of course deter a victim of abuse from seeking the protection of the law, because they believe that the court will not help them if allegations against them are found to be true.

But a victim should not be deterred. If they need protection, they should seek it – no one should suffer abuse, whatever the situation. The court will understand that not all abuse victims are themselves entirely ‘innocent’, and will still offer its protection to an ‘imperfect victim’.

A victim of domestic abuse can ask a family court for whatever protection they need, including a ‘non-molestation’ order prohibiting their abuser from molesting or harassing them, and an ‘occupation’ order, which could, for example, require the abuser to leave the family home.

If you are a victim of domestic abuse it is essential that you are not put off from seeking the protection of the court. You should seek expert legal advice, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Image: Gage Skidmore via flickr, licensed under CC BY-SA 2.0.

In most cases a parent with whom a dependent child is living can seek maintenance for the child from the other parent, either by agreement or through the Child Maintenance Service (‘CMS’).

But sometimes the CMS isn’t available (for example where the other parent lives abroad), and in any event, proper financial provision for a child can involve much more than just maintenance. In particular, the child will need to be provided with a suitable home, until they grow up.

If you have children to look after and were married to the other parent then you can obtain such financial provision for them from that parent within any divorce proceedings. But what if you weren’t married to the other parent? Can you still get financial provision from them?

The answer is that you can.

Irrespective of whether or not you were married to the parent from whom you are seeking it, you can apply to a court for an order for financial provision for a child. Such applications may be made by a parent, a guardian of a child, or by any person in whose favour a residence order is in force with respect to a child.

There are essentially three types of financial provision orders that the court can make:

1. A maintenance order – As mentioned above, such orders can be made where the CMS isn’t available. They can also be made in other circumstances, such as to ‘top-up’ a CMS payment, where the other parent is earning more than the upper limit dealt with by the CMS (currently £3,000 per week), to cover expenses related to any disability the child may have, or to cover school fees.

2. A lump sum order – Where a lump sum of money is required for the benefit of the child.

3. A property settlement order – Whereby the other parent must provide a home for the child (the property will normally revert to the ownership of the other parent, once the child has grown up).

In considering whether to make a financial provision order the court will take into account: the income, property and financial resources of both parties; the financial needs of the parties and the child; the income, earning capacity (if any), property and other financial resources of the child; any physical or mental disability of the child; and the manner in which the child was being, or was expected to be, educated or trained.

If you would like to apply for financial provision for a child you should seek the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

If the parties to a divorce cannot agree a financial settlement, then they will usually of course ask the court to decide the matter for them, by applying for a financial remedies order.

Obviously the court will require full details of the parties’ circumstances and financial affairs, before it can make a decision. This will include the disclosure of the most personal and sensitive information, material that most people would not want to end up in the public domain.

However, court judgments in financial remedy cases on divorce may be published, especially if the cases are heard in the higher courts, for example where they are more complex, or where there is an appeal.

Until recently, this was more often than not not a problem for those wishing to keep their affairs private, as most judgments were anonymised at the request of the parties, removing their names before they were published.

All that may have now changed.

Last November High Court judge Mr Justice Mostyn, who hears many financial remedy cases, announced that in future his ‘default position’ would be to publish financial remedy judgments in full without anonymisation, save that any children would continue to be granted anonymity. He made it clear that there would have to be a good specific reason to depart from this ‘rule’.

And Mr Justice Mostyn’s approach has recently been approved by Sir James Munby, the former President of the Family Division.

Sir James has said that there is no convincing objection to Mr Justice Mostyn’s default position. He explained that many types of litigation involve private and sensitive matters but were not anonymised – the right to privacy in a financial remedy case was not qualitatively different from that of the parties in, say, a family dispute about the ownership of a company or the distribution of an estate.

Mr Justice Mostyn’s position is not yet a firm rule that must be followed by all judges, and it is not universally supported amongst family lawyers, but it does now seem possible that it may become the norm.

So how do you ensure that your financial remedies case is kept private? The answer is to avoid going to court in the first place. The best way to do this of course is to agree matters with your (former) spouse.

And if you can’t agree matters then you could consider going to arbitration, whereby a trained arbitrator will decide the case for you, completely in private. Note, however, that not all cases are suitable for arbitration – your lawyer will be able to advise you as to whether your case is suitable.

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Back in January we reported here about a survey carried out by the consumer magazine Which?, that found that only 15% of divorcing couples include pensions in their financial settlement, and that 58% of the people they surveyed said pensions weren’t even discussed within their divorce proceedings.

Now another survey has made similar worrying findings, suggesting that many people are missing out on their pension entitlement when they get divorced.

The survey, carried out on behalf of the insurance company Aviva, found that one in six divorced people said they did not realise their pension could be affected by splitting up, and that more than a third said they made no claim on their former partner’s pension.

The survey, of more than 1,000 divorced people, also found that 8% of divorcees do not have their own pension savings, having been relying on their partner to finance their retirement. As a result of divorce, 19% say they will be, or are, significantly worse off in retirement.

Commenting upon the survey, the head of savings and retirement at Aviva said:

“It’s critical that, as part of the separation process, couples take time to think about and discuss one of their single most valuable assets – their pension.

“It’s common that one party will have significant pension provision, and the other party may have little or none. Clearly, this could be a relevant factor in any divorce.”

Invisible asset

So why are people missing out on their pension entitlement?

Perhaps the single biggest reason is that a pension is an ‘invisible asset’. Unlike the former matrimonial home, the existence and value of which is obvious, pensions cannot be seen. They exist only ‘on paper’, and often one spouse will have little, or even no, knowledge of the other spouse’s pension.

Another problem with pensions is that people often have no idea of their true value, often underestimating their worth by a huge amount. But pensions can be very valuable, and can easily be worth hundreds of thousands of pounds, making them usually the second most valuable asset on divorce, after the matrimonial home.

So as we stated in our previous post, it is absolutely essential that you take proper expert legal and financial advice upon your possible entitlement to a share of your spouse’s pension. We can find you an expert lawyer that works with you on our digital platform, and can also find you a financial expert to advise you. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As readers may be aware, a new system of no-fault divorce was introduced in England and Wales on the 6^th of April.

The system does away with the need to prove that the marriage has irretrievably broken down. This means that it will no longer be necessary to blame the other party for the breakdown, by showing that they had committed adultery or behaved unreasonably.

The Courts Service has revealed that in the week following the change it received 3,000 divorce applications, which is about a 50% rise on the weekly average.

The rise in the number of divorce applications was in fact expected, especially as there was a huge drop in the number of divorces being issued in the months leading up to the change, as we reported here recently.

The general consensus amongst experts is that this surge is not part of a permanent increase in the divorce rate. There had been fears in some quarters that, in making divorce easier, the new law would lead to a long-term increase in the number of divorces, but most experts believe that this will not happen.

Indeed, the surge can be interpreted as suggesting that there may be enthusiasm for the new law, with many people waiting for it to come in so that they could divorce without the need to blame their spouse for the breakdown of the marriage.

If so, then this is a hopeful sign that people really do want to divorce without creating unnecessary animosity. This, in turn, will hopefully mean that more couples will be able to sort out arrangements for children and finances by agreement, rather than having to go to court.

The other thing that potential users of the new system will want to know is how well it is working, particularly given the number of people currently using it. After all, the new system, which is entirely online, involves quite different processes from the old one, and any completely new system is likely to suffer from teething problems.

However, the Courts Service report that things are going well. A spokesperson is quoted as saying: “Our new digital system is designed to be robust and create a better experience for users. It has been running smoothly since it launched on 6 April.”

All of which seems to be good news. It should however be pointed out that the new system only deals with the divorce itself. The law in relation to sorting out arrangements for children and finances has not changed.

So if you are going through a divorce it is still strongly recommended that you seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A quite extraordinary judgment has once again highlighted the folly of parties to family court proceedings pursuing their case with such ferocity that they run up vast sums in legal costs.

The case concerned a couple who have incurred the incredible sum of £5,401,503 in legal costs, in just 18 months of litigation concerning their children and their divorce.

And that is not the end of the story. The case is continuing and it has been estimated that the total costs may be as much as £8 million by the time it is finished.

The judge dealing with the case said that to run up such costs was “apocalyptic”.

Needless to say, such costs can seriously deplete, or even extinguish, the assets available for the parties in the future.

Now, obviously most people do not have such sums available to them to spend on legal costs. However, the case does still act as yet another reminder that anyone involved in family litigation should do all they can to keep their costs to a minimum.

But how can this be done?

Perhaps the first and most important point is to try to keep any animosity out of the proceedings.

Obviously, when a marriage breaks down feelings can run very high, with each party seeking to take out those feelings on the other party, within the court proceedings.

But such behaviour is inevitably destructive. There is nothing to be gained by it, and much to lose. The court simply isn’t interested in ‘points scoring’ – it is only interested in finding the best possible outcome to the case.

Difficult as it may well be, every effort should be made to keep animosity at the door of the court.

The second thing is to be realistic about what you are seeking from the proceedings. Many may, for example, want to prevent the other party from having contact with their children, when it is quite obvious that the court will expect contact to take place. And in the realm of financial proceedings, taking the other party ‘for every penny’ is simply not going to happen.

The answer is to take expert legal advice as to what the best outcome of the proceedings is likely to be, and to follow that advice. An expert family lawyer will not advise you to seek an outcome that is simply never going to happen.

The last thing is the most obvious: do everything you can to avoid going to court at all!

The very best way to avoid running up large sums in legal costs is of course to agree matters, rather than go through contested court proceedings.

This first of all requires the parties to adopt a constructive approach to the case, rather than an adversarial one, avoiding conflict wherever possible. Such an approach will help to put in place the conditions under which an amicable resolution of the matter is far more likely.

As to exactly how matters may be agreed out of court, there are several options. The most common way is for agreement to be reached via negotiation between the parties’ lawyers. Another possibility is to go to mediation, whereby a trained mediator will try to help the parties resolve their dispute by agreement.

In short, it should be possible in all cases to avoid running up exorbitant legal costs. Most cases are, in fact, agreed out of court. And even where contested court proceedings simply can’t be avoided, it is still possible to keep the costs to a minimum.

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Family Law Cafe helps you get to the best outcome in your family law matter. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

The new no-fault divorce system means that for many people getting divorced will now be easier, as it will no longer be necessary for the applicant to prove that their spouse is responsible for the breakdown of the marriage.

But this has led to warnings in some quarters that easier divorce can mean that respondents may be rushed into agreeing an unfavourable divorce settlement. Is this really the case?

It is true that under the old system the respondent could seek to slow down the divorce by defending it, and that this option is no longer available, as a divorce under the new system cannot be defended.

But this does not mean that respondents will be rushed into settlements.

For a start the new system has an in-built twenty-week ‘period of reflection’ between the start of the proceedings and the application for the conditional divorce order (the equivalent of the decree nisi under the old system). This means that, with the six-week period between the conditional order and the final order, divorces now will take a minimum of six months, which is actually longer than many divorces took under the old system.

And in addition there is actually a way in which respondents can seek to delay the divorce until the financial settlement has been dealt with.

Before we explain this we should explain that it is not a requirement that a financial settlement must be reached before a divorce is finalised. It is quite possible for the settlement to be dealt with after the divorce.

However, this is not generally recommended, because it is possible that getting divorced can adversely affect a person’s financial position. For example, it could mean them losing a potential benefit under their spouse’s pension.

A pension scheme will often provide that if the pension holder dies then their spouse should benefit from the pension, but that benefit will obviously be lost if they are no longer the pension holder’s spouse.

The way that the respondent can seek to delay the divorce is by applying to the court for it not to allow the divorce to be made final until it has considered their financial position as it will be after the divorce.

The court will then not make the divorce order final unless it is satisfied either that the applicant should not be required to make any financial provision for the respondent, or that the financial provision made by the applicant for the respondent is reasonable and fair, or the best that can be made in the circumstances.

In short, the new divorce system should not mean that respondents are rushed into unfavourable settlements. In most cases they should have time to sort out financial arrangements, and if there is a risk that they may be seriously disadvantaged, they can ask the court to delay the divorce until finances have been resolved.

Time may not be of the essence when it comes to financial settlements, but if you have received a divorce application issued by your spouse, you should still seek the advice of an expert family lawyer, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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If you receive a divorce application you can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

We now at last have a no-fault divorce system in England and Wales. It has been a long road to get here, with campaigners calling for the change for at least the last thirty years.

But not everyone has been in favour.

One of the biggest objections to no-fault divorce is that it makes divorce too easy, thereby undermining the institution of marriage. The objectors say that the introduction of no-fault divorce will therefore lead to a surge in the number of divorces. After all, they argue, the last time that divorce was made easier, back in 1971, there was a huge increase in the number of divorces, that continues to this day

It is true that no-fault divorce can make divorce easier. No longer will it be necessary to prove to the court that the marriage has irretrievably broken down, for example by showing that the other party has committed adultery or behaved unreasonably. And if you want a divorce without having to attribute blame, no longer will it be necessary to have been separated from your spouse for at least two years.

And the latest divorce figures from the Ministry of Justice do suggest that there may now be a spike in the number of divorces. In the last quarter of 2021, the latest quarter for which figures are available, there was a huge 26% drop in the number of divorce petitions issued, compared to the same quarter in 2020. The Ministry suggest that this drop may be driven by people waiting for the new divorce law to come into effect, before commencing divorce proceedings.

So it does seem quite possible that there will now be a surge in the number of divorce applications (as they are now called) being issued. But will this surge be permanent, driven by divorces being easier to attain?

Only time will tell, but the general consensus seems to be that any surge in divorces will only be temporary.

The reason people have been waiting for the new law is not because it makes divorce easier, but because it makes it more amicable. Many people who start divorce proceedings simply don’t want to have to blame their spouse for the breakdown of the marriage.

And many separating couples are actually on sufficiently good terms that they want to apply for the divorce jointly – something that was not possible under the old law.

And the new law does in fact have a mechanism built into it to dissuade people from divorcing ‘on a whim’, just because divorce is easy, or easier. Under the new system a twenty week period must elapse from the start of the divorce, before the applicant can apply for the divorce to proceed.

This ‘period for reflection’, something that was not present in the old divorce system, is intended to give applicants the opportunity to consider whether they do in fact want to proceed with the divorce. Only when they confirm to the court that they do will the divorce go ahead.

In short, whilst it does seem likely that there will be a temporary surge in the number of divorces, we are unlikely to see the same sort of sustained increase that we saw in the early 1970s.

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It is not unusual for couples, especially those with substantial means, to enter into a ‘marital agreement’, setting out what should happen to their finances in the event that they should divorce. Such agreements may be ‘pre-nuptial’, i.e. entered into before the marriage, or ‘post-nuptial’, i.e. entered into after the marriage.

But such agreements do not bind the courts of England and Wales. When a divorce occurs the court may order whatever financial settlement it considers appropriate, and this may not be the same as the settlement set out in the agreement.

So what is the legal status of such agreements, and what effect, if any, do they have on the outcome of a financial remedies application on divorce?

Last week a High Court judge considered these questions, and also the associated question of how the court should view an agreement that was reached, but not signed by the wife. His judgment, which set out the law, is instructive for anyone having, or considering entering into, a marital agreement.

So what is the law?

The first thing to say is that the court essentially treats pre- and post- nuptial agreements the same. The only difference relates to the circumstances surrounding the making of the agreement.

In both cases the parties must make full disclosure of their means and take legal advice before entering into the agreement. However, in the case of pre-nuptial agreements there is an extra requirement: that the agreement is entered into a reasonable time before the marriage (say, 28 days), to reduce the possibility of one party being pressured into signing the agreement.

If an agreement has been made then the court hearing any subsequent financial remedies application will take the agreement into account when deciding the application, and will give effect to it provided that:

1. It was been freely entered into by both parties, without any undue pressure being put on them;

2. Each party fully understood the implications of the agreement; and

3. It would not be unfair to the parties to hold them to the agreement, in the light of the circumstances prevailing when the court makes its decision.

The effect of this is that the court is likely to give effect to the agreement in most cases.

As mentioned, the agreement must be in the form of a written document, signed by both parties. But what if one party does not sign it? Should the court still give effect to it?

This was the particular situation with which the judge was faced. The parties had agreed a post-nuptial settlement, after taking legal advice. The settlement was set out in a written agreement, but in the event the wife did not sign it. Should the judge hearing the financial remedies claim give effect to it?

The agreement specifically stated that it would only come into effect when both parties had signed it, and its preamble contained the usual notice warning the parties not to sign it unless they intended to be bound by its terms.

In these circumstances the judge held that the wife should not be bound by the agreement. However, the fact that she had agreed to its terms was a matter that he should take into account. Accordingly, he made an order that was similar to, although not the same as, the terms of the agreement.

If you are considering entering into a pre- or post- nuptial agreement then, as indicated above, you will need the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As readers may well be aware, we are about to get a new, no-fault, divorce system in England and Wales. And the details of the changeover from the old system to the new one are becoming clear.

Firstly, the Courts Service has confirmed that it will be effectively closing down the current divorce system on Thursday 31^st of March. After that date it will not accept any new divorce petitions (whether online or on paper), save in urgent cases where the issue of the divorce petition is time critical, such as when a freezing injunction is needed to prevent the other party from disposing of assets.

Meanwhile, the Government has passed regulations confirming that the new divorce system will come into force on Wednesday 6^th of April (whilst we had previously been told that the new system would come into operation on that date, up until now there had been no official confirmation).

But why the delay between closing the old system and bringing in the new? After all, there will be three working days when, save in urgent situations, it will not be possible to apply for a divorce – an exceptional situation.

The Courts Service has explained the delay by saying that it needs the time to prepare the new system, in particular the online portal via which divorces are issued and processed. Exactly why an online portal cannot be switched from one system to another overnight, or at least over a weekend, has not been explained.

Whatever, hopefully all of this will mean that there will be a smooth transition from the old system to the new.

And what about ‘old system’ divorces that have not been finalised by the 31^st of March? Here, the Courts Service have reassured customers that Decree Nisi and Decree Absolute applications that have been issued will be saved, and will remain available on the service.

Lastly, it is important to note that these changes only apply to the divorce itself. The law and procedure in relation to financial remedies on divorce will remain the same under the new divorce system, as will the law and procedure used to resolve disputes between separating parents over arrangements for their children.

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A pilot scheme has been launched at family courts in North Wales and Dorset to test a new approach to dealing with cases involving disputes between parents over arrangements for their children.

The two ‘Pathfinder’ court centres, as they have been dubbed by the President of the Family Division, will trial some of the ideas he set out in a speech he gave last October.

The purpose of the pilots is to assess the use of new practices and procedures to allow for applications by parents in relation to their children to follow a revised court process.

The revised process has a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children.

The pilots will work by allowing judges to review gathered information and request more documentation before a case gets to court. This is intended to avoid the circumstances of the case being debated in the courtroom, which can often exacerbate conflict between parents.

The pilots will also encourage proceedings to be less adversarial, so that more emphasis can be put into investigating and addressing allegations of domestic abuse and other harmful behaviours, rather than allowing confrontation in the courtroom to take place.

In addition the pilots will boost the voice of children at every stage of the process, ensuring they are listened to and their views are taken into account when decisions are made about their futures. It will see children given more opportunity to explain how they feel and, following a court order, to say whether it is working for them.

A more holistic, multi-agency approach is also planned, with the court engaging and developing positive working relationships with key local partners, such as mediators and local authorities.

Lastly, between three months and a year after a ruling is made, in most cases the courts and the agencies involved will carry out a review to ensure decisions made are working well, including assessing whether court orders are being followed and whether additional support is needed.

Commenting upon the pilots Justice Minister Lord Wolfson QC said:

“This government is doing everything we can to protect victims, make them feel safer, and give them greater confidence in the justice system.

“These pilots will help ensure victims of domestic abuse aren’t further traumatised by the court process and that better decisions are made about their and their children’s lives.”

The pilots are due to run until February 2024. If successful, they could well be rolled out across England and Wales, revolutionising the way in which the courts deal with disputes between parents over arrangements for their children.

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On the 6^th of April we will see the biggest change to divorce law for at least fifty years, with the introduction of a ‘no-fault’ system.

But what exactly will this mean for anyone wishing to take divorce proceedings? How will things be different from the old system?

No blame, no waiting

The first and obvious change is that it will no longer be necessary to blame your spouse for the breakdown of the marriage, by showing that they had committed adultery or behaved unreasonably.

All that will be needed is to file a statement with the court saying that the marriage has irretrievably broken down. The court must accept the statement as proof that the marriage has broken down irretrievably.

And hopefully this will mean that without the unnecessary animosity caused by attributing blame there will be a better chance of the parties sorting out arrangements for children and finances by agreement.

It will also of course not be necessary to wait until you have been separated for at least two years, before you can divorce without the need to attribute blame.

Joint applications

It is often the case that both parties want a divorce, but under the present system only one party can issue divorce proceedings.

This will also change. Under the new system a divorce application can be made jointly by both parties, who will also file a joint statement that the marriage has broken down irretrievably.

Again, this will hopefully mean more amicable divorces.

The end of defended divorce

Until now it has always been possible for the party in receipt of divorce proceedings to defend the divorce. Defending divorce proceedings will inevitably increase the costs, and mean that the divorce will take longer. It is even possible that the court could refuse to allow the divorce.

Thankfully, all of this will also change. Under the new system it will simply be impossible to defend divorce proceedings.

Period for reflection

But the new system will include a mechanism to ensure that a divorce will only be granted if the party or parties applying for it are sure that they want the divorce to go through.

Under the new system they can only apply for a conditional divorce order (the equivalent of the decree nisi under the present system), confirming that they want the divorce to continue, after a twenty week ‘period for reflection’ has elapsed since the date that the divorce was started.

And a further six weeks must elapse after the conditional order, before the final divorce order (the equivalent of the present decree absolute) can be made.

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Very often when a marriage breaks down one spouse will cut off financial support from the other, leaving the less well-off spouse in a perilous financial position.

Obviously, a financial settlement will be obtained in the subsequent divorce proceedings, but this could take many months. How does the less well-off spouse manage in the meantime?

The answer is that they can apply to the court for maintenance pending suit.

As the name suggests, a maintenance pending suit order requires one spouse to pay maintenance to the other for the duration of the divorce proceedings, i.e. until a final financial settlement is ordered.

A maintenance pending suit order can be made at any time after divorce proceedings have been issued.

By its nature a maintenance pending suit application is urgent, and therefore the court considering the application will not go into great detail regarding the means of the parties. Instead, it will adopt a broad-brush approach, concentrating upon the applicant’s immediate needs and the respondent’s readily available income and resources.

The applicant’s needs do not include their legal costs for the proceedings, but the applicant can make a separate application for an order that the respondent contribute towards their costs.

The court will try to make an order that it considers to be fair, and a very important factor in determining fairness will be the standard of living enjoyed by the parties during the marriage.

Both parties will be required to make full disclosure of their means, and if the respondent fails to do so then the court is entitled to make ‘robust assumptions’ about their ability to pay.

If it later becomes clear that the maintenance pending suit order was too high or too low, then an appropriate adjustment can be made in any final financial remedy order.

As indicated above, a maintenance pending suit order comes to an end when the divorce is finalised. However, if the court considers that the maintenance should continue after the divorce, then it can convert the order into an interim maintenance order, which will last until such time as the court makes a final financial remedies order.

If you need to apply for a maintenance pending suit order you should seek the advice of an expert family lawyer, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A global study of intimate partner violence by men against women has found that more than a quarter of all women and girls under 50 who have been in a partnership with a man have experienced domestic abuse.

The study, published yesterday in the medical journal The Lancet, analysed a database of 366 studies on the subject conducted between 2000 and 2018, capturing the responses of 2 million women from 161 countries and areas, covering 90% of the global population of women and girls.

The study found that of all women and girls aged between 15 and 49 who have had a partnership with a man, 27% have experienced physical or sexual intimate partner violence in their lifetime, with 13% experiencing it in the past year before they were surveyed.

The study also found that violence starts early, affecting adolescent girls and young women, with 24% of women aged 15–19 years and 26% of women aged 19–24 years having already experienced this violence at least once since the age of 15 years.

And researchers pointed out that all estimates in the study are based on women’s self-reported experiences of being subjected to intimate partner violence. They say that given the sensitive nature of the issue, the true prevalence of physical or sexual, or both, intimate partner violence is likely to be higher.

The study did say that regional variations exist, with low-income countries reporting higher lifetime and, even more pronouncedly, higher past year prevalence, compared with high-income countries.

The study states: “These findings show that intimate partner violence against women was already highly prevalent across the globe before the COVID-19 pandemic. Governments are not on track to meet … targets on the elimination of violence against women and girls, despite robust evidence that intimate partner violence can be prevented. There is an urgent need to invest in effective multisectoral interventions, strengthen the public health response to intimate partner violence, and ensure it is addressed in post-COVID-19 reconstruction efforts.”

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The Office for National Statistics (‘ONS’) has published its latest figures for divorces in England and Wales, for the year 2020, and one headline stands out.

The headline is that the number of divorces granted fell by 4.5%, compared to the previous year. The decrease was amongst opposite-sex couples, with the number of opposite-sex divorces reducing from 107,599 in 2019 to 102,438 in 2020, a fall of 4.8%.

The reasons behind the decrease are not yet clear, but it is believed that the pandemic has been the main factor. The ONS point out that the Ministry of Justice has previously reported that family court activities were affected by the pandemic during 2020, including the temporary suspension of operations by some courts for a period of time. They say that this may have impacted the number and timeliness of completed divorces in 2020, but admit that it is difficult to know the extent of the impact.

Another theory is that the pandemic simply caused fewer couples to issue divorce proceedings, deciding to ‘stick together’, at least until the pandemic is over. If this is the case, then obviously we may see a post-pandemic surge in divorces.

As to same-sex divorces, the figures show a different story. In 2020, there were 1,154 divorces among same-sex couples, increasing by 40.4% from 2019. Of course, this increase is simply due to the fact that same-sex divorce has only been possible since 2015, and it is therefore to be expected that the numbers will be going up, before they eventually stabilise.

The statistics also include other information, apart from just the number of divorces.

They tell us, for example, that unreasonable behaviour was the most common reason for wives petitioning for divorce among opposite-sex couples, and two years’ separation the most common reason for husbands. Of course, when no-fault divorce is introduced in April it will no longer be necessary to give a reason for the breakdown of the marriage.

They also tell us that once again amongst opposite-sex couples wives were responsible for the vast majority of divorces (64,076, against 38,362 granted to husbands).

Lastly, the statistics include figures for the average duration of marriage at the time of divorce. For opposite-sex couples this was 11.9 years, a decrease from 12.4 years in 2019. For same-sex couples it was 4.7 years for female couples and 5.4 years for male couples, although again this is affected by the short time it has been possible for same-sex couples to get divorced.

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When parents separate they will of course understand that they must sort out arrangements for their children, and very often those arrangements will entail the children spending most of their time living with one parent, and then having contact with the other parent.

But what many parents will not be aware of is that sometimes there will be costs associated with that contact, and if the costs are not paid, the contact will not take place. The costs can take various forms, but perhaps the most common is where the contact takes place at a contact centre. The contact centre will charge a fee for this service.

But who pays the costs? A recent case in the High Court has provided some answers.

The case is actually the same one we reported upon here back in December, although then dealing with a different point. As we mentioned in that previous post, the court found that the father had subjected the mother to serious domestic abuse, including rape and coercive control.

The father was having supervised contact with the parties’ child at a contact centre. This contact had been ordered by the court, which also ordered that the contact costs should be shared equally between the father and mother.

The mother appealed against this order, arguing that it was wrong for her, a victim of serious abuse, to have to pay for her abuser to have contact with their child.

In considering the appeal the High Court had to decide firstly whether the court had power to order a party to pay the costs of contact and secondly whether a victim of domestic abuse should be required to share the costs of contact with the perpetrator of that abuse.

The High Court held that there was power for the court to order a party to pay the costs of contact, to ensure that the contact it has ordered should take place.

As to the second question, the High Court held that there should be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser. An order for them to do so should only be made in wholly exceptional circumstances, taking into account all relevant factors, including whether the contact is in the child’s best interests, and whether it would take place without a sharing of the costs.

In this particular case the High Court set aside the order that the mother pay a proportion of the costs of contact.

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The rapid approach of no-fault divorce in April was emphasised last week when new rules were published by the government setting out the process that the new divorce system will follow.

The rules are a reminder of some of the interesting ways in which the new system will differ from the present system, so we thought we would take a quick look.

The rules include the following matters relating to the new divorce system:

1. Firstly, they provide a definition of “disputed proceedings”, to reflect the limited grounds on which it will be possible to dispute divorce proceedings. In particular, it will no longer be possible to defend divorce proceedings, on the basis that the marriage has not irretrievably broken down. An answer to a divorce application may still be filed by the party who receives the application, but only disputing the validity of the marriage, or the jurisdiction of the court to entertain the proceedings.

2. Secondly, the rules introduce a new ‘minimum period’ of 20 weeks for divorce, from the date on which the court issues the application before a party can apply for the conditional divorce order (the equivalent of the present decree nisi). The purpose of this period “is to allow sufficient time to ensure certainty around the intention of divorce, and greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible, and divorce is inevitable.”

3. Thirdly, the rules set out the procedure to be followed on joint applications – the new system allows for the first time both parties to jointly make the divorce application.

4. Lastly, the rules reflect the new terminology that will be used under the new system. For example, ‘Petition’ will become ‘Application’, ‘Petitioner’ will become ‘Applicant’, ‘Decree Nisi’ will become ‘Conditional Order’, and ‘Decree Absolute’ will become ‘Final Order’.

These new rules will obviously come into force on the same day as the new divorce law, which is currently fixed for the 6^th of April. Hopefully, they will ensure that the new system operates smoothly.

For a discussion upon whether you should wait for the new system before issuing divorce proceedings, see this post.

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Last week the consumer magazine Which? reported the result of a survey its members carried out, that found that only 15% of divorcing couples include pensions in their financial settlement, and that 58% of the people they surveyed said pensions weren’t even discussed within their divorce proceedings.

The findings have been met with some surprise within the family law community. Certainly, family lawyers should always advise their clients of the importance of including pensions in divorce settlements. Pensions are one of the most valuable assets in many divorces, and anyone entering into a settlement that doesn’t take them into account could be missing out very significantly.

Whether or not the findings indicate the true picture nationwide, they do seem to show that more needs to be done to ensure that those going through a divorce are aware of the importance of pensions, and of their possible entitlement in relation to them.

In particular they should ensure that before they enter into any divorce settlement they first require their spouse to make full disclosure of the value of all of their financial assets, including pensions.

Pensions are usually valued by reference to their ‘cash equivalent transfer value’, being the amount that could be transferred from the pension into another pension fund. To give an idea of the possible value of pensions, it is not at all unusual for a pension to have a transfer value running into several hundred thousand pounds.

Pensions can be dealt with on divorce in one of three ways: by an ‘offsetting’ arrangement, whereby the party holding the pension keeps it, but the other party receives more of the other assets to compensate them; by a pension attachment order, which states that one party will receive part of the other party’s pension, when the other party receives it; or, most commonly, by a pension sharing order, which transfers all or part of one party’s pension into a pension belonging to the other party.

It is absolutely essential that you take proper expert legal and financial advice upon which of these arrangements is best for you, and how exactly to implement it. We can find you an expert lawyer that works with you on our digital platform, and can also find you a financial expert to advise you. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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If you have acquired assets completely independently of your spouse, for example assets owned by you prior to the marriage, then it may seem unfair to you that your spouse should share in those assets when it comes to divorce.

In such a case you should be aware of the principle of ‘matrimonial property’.

Essentially, the principle says that, subject to the exception we will mention in a moment, only ‘matrimonial property’ should go into the pot for division between yourself and your spouse on divorce.

So what is ‘matrimonial property’? The term refers to assets acquired during the marriage, through the joint efforts of the parties to the marriage. Accordingly, anything that was acquired by one of the parties before the marriage is not ‘matrimonial property’. (Similarly inheritances, gifts to one party and assets acquired after the separation are considered to be ‘non-matrimonial’).

The exception to the rule that only matrimonial property is divided between the parties is that where the matrimonial property is not sufficient to meet the financial needs of the parties then non-matrimonial property may be used to meet those needs.

The principle of matrimonial property arises quite frequently. A recent example demonstrates it being argued by a husband, in a Family Court case last October.

In the case the husband acquired an interest in a family business prior to the marriage. He therefore argued that the value of his interest in the business at the time of the marriage was not ‘matrimonial property’, and therefore should remain his property (the exception to the rule above did not apply, as the ‘matrimonial property’ in the case was more than sufficient to meet the parties’ needs).

The wife, however, claimed that the business had been ‘matrimonialised’ over the course of the marriage, and should therefore be divided equally, along with the other assets.

The judge agreed with the wife. A particular reason for this was that in 2016 the husband restructured the business, leaving him and the wife with equal shareholdings in part of the business, with the balance belonging to the children. This effectively meant that the husband acknowledged that his interest in the business was not worth more than the wife’s.

Accordingly, the judge ordered that the parties should share all property equally.

If you wish to argue that certain property is or is not ‘matrimonial’ you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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So-called ‘Divorce Day’, the first working Monday of the New Year, is with us again next week.

Divorce Day is supposed to be busiest day of the year for divorce lawyers, when more people commence divorce proceedings than on any other day. The theory behind it, if one can call it that, is that that a fractious family Christmas was the last straw for their marriages. Or perhaps they have just decided that the New Year is the time to make a new start.

There is much debate as to whether Divorce Day is a real phenomenon, or just something created by the popular media.

But if you are one of the people who has decided that you want a divorce that debate is, of course, academic.

What may be more important on this particular Divorce Day is whether you proceed now, or wait until the new no-fault divorce system comes into force in April, as we mentioned in a post here last week.

As we explained in that post, no-fault divorce is likely in many cases to be much more ‘amicable’ than a divorce under the present system, unless you have already been separated for at least two years. If you haven’t, then under the present system you will only be able to get a divorce by proving that your spouse is responsible for the marriage breakdown, because of their adultery or ‘unreasonable behaviour’.

Attributing blame in this way and making allegations against your spouse may obviously make them less amenable to agreeing other important matters, such as arrangements for children and finances.

It is generally believed that no-fault divorce is a better way. So would it be better to wait?

There are a number of factors to consider, including the following.

Firstly, there is no point in waiting if you have been separated for two years and your spouse consents to a divorce under the present system – the divorce should already be reasonably amicable.

Secondly, you may need to get the divorce under way quickly so that you can make a financial remedies application – in this case it may be best not to wait.

However, if you fear that your spouse may defend the divorce then it would almost certainly be best to wait, as it will not be possible to defend a divorce under the no-fault system.

Lastly, you may want to consider the time that the divorce will take. Under the present system it is possible to get a divorce in as little as three months, whereas under the no-fault system the divorce will take a minimum of six months.

If you are unsure whether to divorce now or wait you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As the old year draws to a close we look forward to the new one, which will usher in arguably the biggest change ever in divorce law in England and Wales.

The civil courts in England and Wales have been handing down divorces for some 160 years. Throughout that time the law that they have applied has been based upon the concept of fault for the breakdown of the marriage. If one party wanted a divorce they usually had to prove that the other party was in some way to blame for the breakdown.

Over the years fault took various forms: adultery, cruelty and other “matrimonial offences”, as they were called. Only in 1969 did the law first allow divorces without fault, but only if the parties had been separated for two years and the respondent to the divorce consented, or five years if they did not.

All that history is going to be swept away next year. Fault will finally become a thing of the past, bringing our divorce laws into the modern age.

From the 6th of April 2022 all that will be required to get a divorce is a statement from one or both of the parties that the marriage has irretrievably broken down. There will be no need to prove irretrievable breakdown – the court will accept the statement as proof that the marriage has broken down irretrievably. And if the statement is by one party only the other party will not have an opportunity to challenge it – defended divorces will also become a thing of the past.

This new system of no-fault divorce has been virtually universally welcomed. It has been understood for many years that attributing blame for the breakdown of a marriage has been an artificial and, in most cases, futile exercise. The need to attribute blame has also brought the law into disrepute, with many people exaggerating, or even inventing, allegations against the other party.

But it is hoped that doing away with this ‘blame game’, as it has been called, will do something more.

Many respondents to divorce proceedings are unsurprisingly aggrieved to be told that the breakdown of the marriage was all their fault, and are unhappy about the allegations that have been made against them. This can naturally make them less amenable when it comes to trying to agree arrangements for children and finances.

The hope is that no-fault divorce will make it more likely that couples will be able to resolve these important matters amicably, rather than having to argue them through the courts.

Whether this will actually happen we will have to wait and see. But one thing is certain: divorce will never be the same again.

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Last week the Ministry of Justice published its latest statistics on the work of the Family Court, for the quarter July to September 2021.

The statistics throw up a number of matters that should be of interest to anyone using the Family Court, including the following:

1. A decrease in the number of cases started in the Family Courts. We are told that in the quarter 63,084 new cases were started, down 11% on the equivalent quarter in 2020. This was due to decreases in all case types: matrimonial/divorce (15%), public law children (14%), adoption (12%), private law children (10%), domestic abuse (8%) and financial remedy (5%) cases.

2. Conflicting figures on the average time taken for divorce proceedings during the quarter. The statistics tell us that the mean average time from petition to decree nisi was 26 weeks, and to decree absolute was 55 weeks – down 3 weeks and up 4 weeks respectively when compared to the equivalent quarter in 2020.

3. Private law children cases (i.e. cases not involving social services) taking longer. In an alarming development we are told that in the quarter it took 42 weeks on average for private law cases to reach a final order, i.e. case closure, which is up 9 weeks from the same period in 2020, reaching record levels in since the Ministry began publishing these quarterly statistics in 2014.

4. Fewer people having legal representation. As the Ministry explained, legal aid was removed for many private law cases in April 2013, and this resulted in a change in the pattern of legal representation over time. In July to September 2021, the proportion of case disposals where neither the applicant nor respondent had legal representation was 37%, increasing by 23 percentage points since January to March 2013, and up 1 percentage point from July to September 2020. Correspondingly, the proportion of cases where both parties had legal representation went from 41% in January to March 2013 to 19% in July to September 2021, down 4 percentage points compared to the same period in 2020

Commenting upon the figures a statistician said: “Volumes of new cases starting across all Family Justice areas have decreased this quarter, possibly stabilising following the recovery from the impact of Covid-19 in the end of 2020 and early 2021. As seen last quarter, the latest figures are more in line with longer term trends seen pre-Covid 19.”

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In an important judgment the Court of Appeal has authorised the identification of a father, a former Tory MP and Minister in Theresa May’s government, who was found to have subjected the mother to domestic abuse, including rape and coercive control.

The findings had been made by the Family Court at Derby in November 2020. The father had applied to the court for an order that he spend time with his child, who was born in 2018. The mother, who is now herself an MP, made various allegations of abuse against the father.

The judge made the findings at a fact-finding hearing, but decided that they should not be made public, in order to protect the child. The father did not seek to appeal against the findings.

Two journalists applied for the publication of the fact-finding judgment, including the names of the parties. Their application was supported by, amongst others, the mother and the child’s Guardian. The father accepted that the judgment could be published, but argued that the interests of the child made it necessary that he, the mother, and the child should all be anonymised.

The High Court found that the child was unlikely to be affected by the publication, in view of its young age, and the father’s behaviour itself would have a greater impact upon the child’s relationship with the father than the publication. Accordingly, the High Court ordered that the publication could go ahead.

The father appealed, to the Court of Appeal. The Court of Appeal held that the High Court was correct and dismissed the appeal, thereby authorising the publication of the judgment, including the names of the parties.

The decision has been generally welcomed, as very few such judgments are published, and it is hoped that the publication of this judgment will help to show the public how the Family Court deals with domestic abuse allegations, and thereby improve confidence in the system, which in turn might encourage victims of domestic abuse to come forward to the courts.

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The new Lord Chancellor and Justice Secretary Dominic Raab has told the House of Commons Justice Committee that he wants more family cases to be kept out of court.

In a committee meeting on the 30^th of November Mr Raab was asked what his plan was to deal with the increasing number of private family law cases (that is, cases not involving social services) going through the courts.

Mr Raab said that broadly between 50% and 60% of these cases involve safeguarding (i.e. issues relating to the safety or welfare of the children concerned) or domestic abuse, and therefore need to be heard before a judge because of the issues at stake.

However, he said that the vast majority of the remainder of cases should not really go to court. He commented: “It should not be so easy just to say, “We’ll go to court.””

He went on to say that we ought to be much better at using alternative out-of-court methods of resolving family disputes, such as mediation and arbitration, and that we need to reconcile the incentives for using such methods and going to court. He said that he would “be in the market for something quite drastic and bold in that area.”

He also disclosed that he has “started to talk to the senior judiciary about this and work up a well thought-through approach.”

Mr Raab gave no indication quite what these incentives for resolving disputes out of court may be. They may, for example, involve financial assistance for out of court dispute resolution, such as the mediation voucher scheme that the government briefly ran earlier this year, offering a financial contribution of up to £500 towards the cost of mediation, in eligible cases.

It should be said, however, that there are already considerable incentives to resolve family disputes out of court. Contested court proceedings are stressful, time-consuming and expensive. Everyone involved in a family dispute should, if possible, make every reasonable effort to resolve the dispute out of court.

Family Law Café makes sure you choose the right options to get the outcome you want – very often that means avoiding the court route. Call us for a no obligation call and see what we can offer.

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Earlier this month we wrote about when the Form C1A was needed, and how it should be completed.

To recap, anyone applying to the court for a child arrangements order, a prohibited steps order or a specific issue order must, if they are alleging that the child/children concerned may have suffered, or are at risk of suffering, domestic abuse, complete a form C1A, setting out details of the alleged abuse.

The point is that when allegations of abuse are made the court is under an obligation to determine the truth of the allegations, and consider whether they should have a bearing upon whatever order the court makes.

Findings of abuse against a parent can result in that parent’s contact with their child/children being significantly limited, for example by the court only allowing them to have supervised contact, or even no direct contact at all.

It is therefore essential that false allegations of abuse are properly defended by the accused parent. Sadly, false allegations are often made by a parent, particularly as they may enable that parent to obtain legal aid.

So how do you defend false allegations of abuse?

Well, the first thing to do is to complete the ‘Response to allegations of harm’ section in the form C1A, and send it to the court, along with your response to the application (form C7). This gives you an opportunity to briefly comment upon the allegations made against you by the other parent.

But it is important to note that, as the form states, you will be given an opportunity to make a more detailed statement later in the proceedings. You do not therefore need to go into detail on the form C1A of why you deny the allegations or, indeed, of any allegations that you wish to make against the other parent (if you wish to make allegations of abuse yourself and the other parent has not, you can complete a form C1A yourself).

In most cases the court will fix a ‘fact-finding’ hearing, when you will be able to give evidence to the court. The court will then decide upon the truth of the allegations.

If you have had false allegations of abuse made against you then you should really seek the assistance of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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If you are involved in family court proceedings of any sort the chances are that at some point in the proceedings you will be required to prepare a written statement in support of your case.

Obviously, a statement is an important document. It sets out the evidence that you intend to rely on and, as such, will have a huge bearing upon the outcome of the case.

But there are right and wrong ways to prepare a statement, and it is essential that your statement is prepared the right way.

Last week the President of the Family Division published a memorandum setting out how such statements should be prepared. The memorandum was aimed at lawyers preparing statements for their clients, but much of what it contains could equally apply to the person actually making the statement.

The President began by explaining what a statement should and should not contain.

Amongst the things that a statement should not do is seek to argue the case, and set out opinions of the person making the statement. These are common errors in many statements.

The only things that a statement should contain are matters of fact, and matters of information and belief.

Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen).

However, and this is another issue with many statements, a statement may state only those matters of fact of which the person making the statement has personal knowledge, and which are relevant to the case. All too often statements contain facts of which the person does not have knowledge, and facts that are simply irrelevant

Further, the statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about the financial needs of a party, will be matters of information and belief. Accordingly, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

The other big lesson that everyone making a statement should take from the President’s memorandum is that a statement must be as concise as possible, whilst not omitting anything of significance.

It is easy to think that the longer the statement, the better it is for your case. This is not true – the judge will not want to read through a long statement, much of which is likely to be irrelevant. As a general standard, said the President, a witness statement should not exceed 15 pages in length (and very often it does not need to be nearly as long as that).

A statement is an important part of preparing a case. It therefore needs to be done properly, preferably with the help of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As we explained here recently, if you wish to apply to the court for a child arrangements order, a prohibited steps order or a specific issue order then you will need to complete an application form known as ‘Form C100’.

But there is another form that you may also need to complete: the Form C1A.

So when do you need a Form C1A, and how do you complete it?

Sadly, domestic abuse is often a factor in applications for children orders, and when allegations of abuse are made the court is under an obligation to determine the truth of the allegations, and consider whether they should have a bearing upon whatever order the court makes.

Obviously, the court needs to be told about the abuse at an early stage in the proceedings, and this is where the Form C1A comes in. If the children have suffered from, or are at risk of suffering from, harm as a result of domestic abuse you should complete a Form C1A, setting out brief details of the abuse.

And it is important to note that the abuse does not have to have been directed at the child. Abuse of a parent can also be relevant, especially if it is witnessed by a child.

Turning to the form, one of the first things it requests from you is a contact telephone number. However, if you have suffered abuse from the other parent you may have changed your phone number and kept it secret from them, in order to protect yourself. In such a situation you should not give a number on the form, but rather complete a separate Form C8, which gives your contact details to the court, but keeps them private from the other party.

Perhaps the most important part of the form is section 2, in which you give details of the domestic abuse that you and the children have suffered. The form does not give you much space to do this, but don’t worry – you will be given an opportunity later in the proceedings to file a detailed statement and, if the case goes to a contested hearing, to give oral evidence in court.

So you should keep the details quite brief. But you should also keep them relevant. Minor incidents, or things that are unlikely to have a bearing upon the final order that the court makes should be omitted (although you can always refer to them later, if necessary).

A good rule of thumb when considering what incidents to mention is ‘first, last, and worst’. The court will want to know when the abuse began, whether it is continuing, and how bad it is. ‘First, last and worst’ will ensure that the court has this information, although it does not of course mean that other serious incidents should not also be mentioned.

Moving on, the other really important part of the form is section 5, in which you set out what you want the court to do about the abuse, and how you think it should affect any final order that the court makes.

So far as the latter is concerned, the most common effect of a finding of domestic abuse by the court is to restrict the amount of contact that the abusive parent has with the children. This can mean that the contact is supervised (for example at a contact centre), that it is restricted to indirect contact only (for example by telephone or email only), or that there is no contact at all – although this is quite unusual.

Lastly, if you are in fear of meeting the other party at court then you can request the court to take certain protective measures, in section 7 of the form. These include providing you with a separate entrance to the court, providing a protective screen for you in the courtroom so that the other party can’t see you, and even allowing you to give evidence via a video link.

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As the reader may be aware (as this story made the national media in the last few days), the President of the Family Division Sir Andrew McFarlane, the head of family justice in England and Wales, has indicated his intention to open up the family courts.

The family courts have attracted a great deal of adverse publicity in recent years, being accused of operating a system of secret and unaccountable justice.

And it is true that much of what the family court does happens behind closed doors. The primary reason for this is to protect both the children involved and the privacy of those who go before the court. After all, by its very nature family law concerns some of the most private and personal things in people’s lives.

But despite these things the President still believes that there is room to do more to show the public exactly what the family court does, and hopefully thereby reassure the public.

The President is proposing a number of measures, including allowing journalists into more family court hearings, allowing parents to give some details of their cases to journalists, publishing more family court judgments, making reporting of cases more accurate, collecting data at the end of each case, and providing the public with more online information about the work of the court.

So what will all of this mean, particularly for those using the family courts?

The idea of having a journalist sitting in on their case would probably horrify many people involved in family court proceedings. However, Sir Andrew confirms that judges will still be able to decide whether journalists will be able to attend in a particular case. And in any event, the vast majority of family court cases will be of no interest to journalists.

And importantly Sir Andrew has made clear that the anonymity of children will be maintained.

Similarly as to the publication of judgments, these in most cases will still be anonymised, including removing the risk of ‘jigsaw’ identification, through details such as the names of schools, professionals or localities.

In the longer term, one of the most important proposals may be the collection of data at the end of each case. As Sir Andrew says, “data collection could be transformational in terms of understanding the decisions that are being made, seeing patterns and problems, and ultimately achieving better outcomes.”

Hopefully therefore these proposals will lead to a system that is not just better understood, but better generally.

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If you wish to apply to the court for a child arrangements order, a prohibited steps order or a specific issue order then you will need to complete an application form known as ‘Form C100’.

The form can be a little daunting for non-lawyers, so here are some tips to help you complete it.

The first thing you need to tell the court is what order or orders you want the court to make. There are three options:

A Child Arrangements Order – An order setting out with whom the child should live, and if with only one parent, what contact the child should have with the other parent. This is the most common type of order.

A Prohibited Steps Order – An order that no step which could be taken by a parent in meeting their parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. This may be used, for example, to prevent a parent changing the child’s name.

A Specific Issue Order – An order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child, such as which school the child should attend.

You need to tell the court whether you need its permission to make the application. Parents do not need permission but others, including grandparents, do.

Perhaps the most important section of the form is where you tell the court your reasons for making the application.

There may be many things that you would like to say about the other parent of your child, but before you say anything you should ask yourself: is this actually relevant to the issue between yourself and the other parent? The court will not want its precious time wasted on matters that are not relevant.

So what is relevant? Well to give you an idea, there is a list of factors that the court must take into account when deciding whether to make an order relating to a child. These include the ascertainable wishes of the child, the child’s needs, the effect on the child of any change in their circumstances, any harm that they have suffered or are at risk of suffering, and how capable the parents are of meeting the child’s needs.

If you have previously prepared a parenting plan (a written plan worked out between the parents after they separate, covering the practical issues of parenting), this should be sent to the court with the form.

Lastly, you need to tell the court whether the application is urgent, and if so, why. Urgent applications can be heard by the court at short notice and even without informing the other party, although any order made by the court will usually only be temporary.

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In a speech to the Jersey International Family Law Conference last week the President of the Family Division Sir Andrew McFarlane set out his plans for a new approach to the resolution of disputes between parents over arrangements for their children.

The President said that he is concerned in particular that parental disputes are mostly now dealt with by the court, and the current system can often only make the conflict between the parents worse.

The President therefore set out his plans for an improved system, which would aim to resolve parental disputes away from court wherever possible, and where that was not possible to have the courts adopt a less adversarial approach.

These ideas, he said, are to be piloted early next year, in courts in North Wales and Dorset.

Specifically, the pilots aim to develop a new, more investigative, approach which will (among other things) promote all forms of non-court dispute resolution (in particular mediation); test out different ‘pathways’ for cases to take depending upon their type and complexity; develop a ‘Child impact’ statement, so that parents can see from the child what impact or effect the proceedings are having upon them; and facilitate more court reviews after final orders, to reduce the number of returning cases.

Alongside this, the pilot areas will develop the concept of a ‘Family Hub’ which will operate separately from the court, and to which families will be directed as the first port of call, rather than issuing a court application. The Hub will in turn refer parents to local agencies that may be able to help with their problems, to mediation, to a parenting programme, to CAFCASS or, where appropriate, to the court.

The President said that these and other plans were aimed at helping to keep parents out of court when possible, and when not possible to improve the way in which the courts deal with cases.

The President expressed the hope that these and other improvements to the system will be in place across the country before he retires in three years’ time.

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‘Financial remedy’ is a term used to describe various types of family law court applications concerning money or property. The most common type of financial remedy application is made in connection with divorce proceedings, but they are made in other situations as well.

Whatever the situation, the court will require both parties to provide relevant details of their means, so that it can decide the case. This is achieved by the parties completing a financial statement, known as a ‘Form E’, and sending copies to the court and the other party.

But there are different types of Form E, depending upon the type of application. These are designated Form E, Form E1 and Form E2.

So which one should you use?

As mentioned, the most common type of financial remedy application is in connection with divorce proceedings. For this, you should use the ‘original’ Form E, which is the most comprehensive of the three forms.

This Form E is also used in financial remedy applications on civil partnership dissolution, judicial separation, annulment and applications for financial relief after an overseas divorce.

But in some financial remedy situations the court does not need to have all of the information required by the original Form E.

This is where Form E1 comes in. Form E1 is used for all other types of financial remedy application, for example an application for financial provision for a child, usually made by a parent who was not married to the other parent.

Which leaves us with Form E2. Form E2 is used on an application to vary a financial remedy order. The most common situation here is where there is a spousal maintenance order, and one spouse wishes to increase or decrease the amount of the maintenance. Form E2 is the shortest of the three forms, as the court only requires limited information to decide the application.

You can find some tips on completing a Form E in this post, although as stated there you should really seek the assistance of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Like so many other aspects of society, the Family Court was seriously adversely affected by the Covid-19 pandemic.

Social distancing meant courtrooms could not be used, requiring the introduction of remote hearings on a scale never before seen. This in turn meant that case backlogs increased, as fewer cases could be dealt with.

Meanwhile the number of most types of new cases started in the Family Court dropped dramatically, as people stayed away from the family justice system.

But the Family Court has been recovering from the impact of the pandemic, and the latest statistics released by the Ministry of Justice (‘MoJ’) indicate that the recovery is continuing.

The statistics are for the quarter April to June 2021.

They show that in that quarter 66,357 new cases were started in the Family Courts, which is 14% more than the same quarter in 2020. This was due to increases in most case types including divorce cases (up 7%), financial remedy claims on divorce (up 76%), and private law children applications (i.e. case concerning disputes between parents over arrangements for their children), which were up 11%.

Meanwhile cases dealt with by the Family Court (known as ‘disposals’) were also up. There were 66,252 case disposals in April to June 2021, up 40% on the equivalent quarter of 2020. This was due to increases in most case types, including divorce cases (up 23%), financial remedy claims (up 61%), and private law children applications (up 100%, from a record low at the start of the UK lockdown period).

A statistician commented:

“The recovery from the impact of Covid-19 continues to be seen across family court activity data this quarter, with increases seen in the number of new cases started across most case types as well as increases in the number of disposed cases across all areas compared to the same time last year, at the start of the pandemic in the UK. When comparing to the same quarter in 2019 (as a pre-Covid 19 baseline), most of these changes appear to be reverting to the longer-term trends (i.e. increases seen when comparing to both April-June 2019 and 2020, albeit to a lesser degree).”

It is not all good news, however. The statistics show that many types of cases are now taking longer.

With regard to divorce, the mean average time from the issuing of a divorce petition to the pronouncement of the decree nisi was 25 weeks, and to the making of the decree absolute was 50 weeks. These numbers were up 2 weeks and 4 weeks respectively, when compared to the equivalent quarter in 2020.

And as for private law children cases, in April to June 2021, it took on average 41 weeks to reach a final order, i.e. case closure, which was up 13 weeks from the same period in 2020. This, says the MoJ, continues the upward trend seen since the middle of 2016, where the number of new cases overtook the number of disposals.

The MoJ state that measures are being taken to address the issue of timeliness, although it may be some time until improvements are seen.

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When a husband and wife cannot agree a financial settlement on divorce one of them will make a financial remedies application to the court, asking the court to decide the matter.

Obviously, the court cannot decide what would be an appropriate settlement without full details of both parties’ means. The parties are therefore required to complete a financial statement, setting out details of their income, outgoings and assets. The statement is known as a ‘Form E’.

The parties must exchange copies of the Form E and file it with the court on a date set by the court, which will be not less than 35 days before the First Directions Appointment.

The Form E can be quite a daunting document, so here are six tips to help you complete it.

1. Read through the whole form before you begin completing it, paying particular attention to the notes on the form, especially the warning on the front page that you have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances.

2. Once you have been through the form you will know what information you will need to complete it. Gather together all of the required information before completing the form. Adding information later may require amending the form in more than one place.

3. Similarly, the form requires you to produce various documents, as set out in the schedule at the end of form. Gather those documents together before completing the form (you may need to request certain documents, such as pension valuations). If you are not able to obtain any documents in time for filing the form with the court, tick the ‘To follow’ box on the schedule.

4. When completing the form don’t be tempted to miss items out, or to undervalue items – doing so could lead to you incurring further costs down the line, and could even lead to any final order that the court makes being set aside.

5. Perhaps the most important part of the form is section 5, in which you tell the court what order you are seeking, if you are able to do so (you may not be able to do so, as you may not be sufficiently aware of other party’s means). Whatever you say here will obviously have a bearing upon any final order that the court may make, so you should really seek advice before completing this section. Which leads us to…

6. Lastly, take legal advice! Form E is perhaps the most important document in a financial remedies application. It may, in theory at least, be designed for completion by a layperson, but it really needs the input of an expert lawyer, in all but the simplest of cases. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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When parents are unable to resolve a dispute over arrangements for their children then one of them may apply to the Family Court for the court to decide the matter.

The Family Court proceedings will follow a procedure laid down by the rules. The first step in the procedure, once the application has been issued, is called the First Hearing Dispute Resolution Appointment, or ‘FHDRA’ for short.

Both parents must attend the FHDRA, and a Cafcass (court welfare) officer will also attend.

So what exactly is a FHDRA?

As the name suggests, the aim of the FHDRA is to provide an opportunity for the parents to be helped to an understanding of the issues that divide them, and to reach agreement.

At the FHDRA the judge, working with the Cafcass Officer, will seek to assist the parents in conciliation, and in resolution of all or any of the issues between them. Any issues that cannot be resolved will be identified, and the Cafcass Officer will advise the court of any recommended means of resolving these issues.

If the parents are able to reach a full agreement then the court may make an order reflecting the terms of the agreement.

If the parents are not able to reach a full agreement then the court will give directions as to how the case should proceed.

Typically, the court will direct that Cafcass investigate the case and prepare a report for the court, usually containing a recommendation as to what final order the court should make.

The court may also direct that a ‘fact-finding’ hearing take place, for the court to decide the truth of any allegations made by either party, for example allegations of domestic abuse.

Lastly, the court will fix a date for the next hearing, assuming there is no fact-finding hearing. This will usually be a ‘Dispute Resolution Appointment’, the purpose of which is to see if the case can be settled by agreement, before a final hearing takes place.

The FHDRA plays a very important role in any children application. In fact, it is arguable that it is the most important hearing in the application – when the future progress of the application, and even its outcome, can be decided.

It is therefore essential that you take expert legal advice before attending a FHDRA. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week we began looking at the procedure that the court follows on an application for a financial remedies order. Specifically, we looked at the First Directions Appointment, or ‘FDA’.

We now turn to the next stage in the procedure: the Financial Dispute Resolution appointment, or ‘FDR’, at which both parties (and their lawyers, if they are legally represented) must attend.

The basic idea of the FDR is to see if the case (or even just part of it) can be settled by agreement without having to be decided by the court, thereby saving time and costs.

The FDR is before a district judge, but they will not decide the case, or force a party to agree to a settlement – their task is to try to help the parties reach an agreement.

One way the judge may try to encourage settlement is by giving an indication of how the court is likely to decide the case if no agreement is reached. Making the parties aware of which way the case is likely to go should prompt reasonable negotiation.

The parties themselves have an obligation to “use their best endeavours to reach agreement on matters in issue between them.” They will do this by putting forward, and responding to, settlement offers.

Note that any settlement offer made at an FDR cannot subsequently be relied upon by the other party, unless they are re-stated in open correspondence after the FDR.

If a full agreement can be reached at the FDR (and most cases are agreed at or before the FDR) then the district judge will ask the parties to draw up a consent court order, setting out the terms of the agreement, for approval.

If no full agreement can be reached at the FDR then the district judge will give directions as to how the case should continue, for example by fixing a date for a final hearing, at which the court will hear all the evidence, and make a final decision on the case.

It should be noted that if the case does proceed beyond the FDR the district judge who conducted the FDR will take no further part in proceedings. This avoids any suggestion later in the proceedings that he or she has ‘pre-judged’ the case, and enables the parties to make proposals freely at the FDR, knowing that the judge who decides the case will not have heard them.

The FDR is a crucial step in the process of a financial remedies application, at which the outcome of the case can be decided. It is therefore essential that anyone required to attend an FDR first seeks expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Unless a divorce settlement is quickly agreed between the parties then one of them is likely to apply to the court for a ‘financial remedies’ order, whereby the court will decide upon the settlement.

Financial remedies applications follow a procedure set down by the rules, and it is important to understand how the procedure works. What follows assumes that the parties are not able to reach an agreement along the way – if they do, then obviously the case comes to an end.

The first thing to understand is that the procedure does not involve just one court hearing, at which the court will make its final decision. In fact, there may be several hearings before the final one, depending upon the complexity of the case.

The first hearing, which will be fixed by the court when it receives the financial remedies application, is the ‘First Directions Appointment’, or ‘FDA’ for short. Both parties will have to attend the FDA.

Before we explain what an FDA is, we need to look at what must be done between the issuing of the application and the FDA.

Perhaps the most important thing that each party must do is prepare a detailed statement of their finances (known as a ‘Form E’), and send copies of the statement to the court and the other party. The point is that no settlement can be ordered or agreed unless the financial circumstances of both parties are fully disclosed.

Of course, you don’t have to accept the contents of the other party’s Form E at face value. They may, for example, have omitted certain assets. Accordingly, the rules allow each party to prepare a questionnaire for the other party to answer, requesting further information relating to the other party’s finances.

So we come to the FDA.

The rules state that the FDA “must be conducted with the objective of defining the issues and saving costs.” In other words, the court will want to know what matters are in dispute between the parties, and therefore have to be decided by the court – reducing the job of the court in this way will hopefully shorten the case, and therefore reduce the costs of the parties.

To this end, the court will give directions as to what should happen next in the case. Exactly what directions it gives will vary from one case to another, but the following directions are made in most cases:

1. A direction setting out which questions in the questionnaires must be answered.

2. Directions regarding the valuation of assets, for example that the parties should agree who should value the former matrimonial home.

3. Directions as to what evidence each party may produce (you can’t simply produce any evidence without the court’s permission).

4. In a case where a pension order is requested, a direction that the party with the pension provide details of the pension.

5. Lastly, directions as to what should happen next in the proceedings. For example, unless the court considers it will not be appropriate, it will usually fix a ‘Financial Dispute Resolution’ (‘FDR’) appointment, at which the parties will be expected to try to negotiate a settlement, with the help of the judge. If an FDR is not appropriate then the court may fix a date for a final hearing.

The FDA is an important step in the process of a financial remedies application, and it is thus essential that anyone required to attend one first seeks expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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When the court decides what financial settlement is appropriate on divorce it will take into account a number of factors, including not just the financial assets of the parties, but also their debts.

This means that if a party has significant debts then they may be granted a larger settlement, so that they have the means to pay the debts.

But what if, as is often the case, the debts, or at least a large part of them, comprise the legal costs incurred by the party in the financial remedy proceedings? Are these still taken into account by the court?

Before looking at the answer we must consider the rule as to payment of legal costs in financial remedy proceedings.

The rule is essentially quite simple: each party must normally pay their own legal costs. The court can order one party to pay the other’s costs, but only where this is justified by that party’s conduct in the proceedings, for example failing to comply with court rules, or failing to negotiate reasonably.

Now, the reader may have spotted a problem with taking a party’s legal costs into account when deciding how much that party should receive in the financial settlement. Surely, if that party receives a larger settlement, doesn’t this effectively mean that the other party is paying their legal costs, contrary to the costs rule?

Not necessarily so, as a recent family court appeal case demonstrated.

When deciding a financial remedies case on divorce the court must take into account the financial needs of the parties, and this includes their need to pay debts, which may include their legal costs.

In the case the judge accepted that giving a party a larger lump sum to cover their legal costs has the effect of relieving that party of their obligation to pay their lawyers, in the same way as a costs order would. However, the purpose of the larger award is quite different to a costs order: to ensure a fair settlement, rather than to ‘punish’ the other party for their misconduct.

Here, the failure of the court to include the wife’s legal costs in the lump sum awarded to her meant that she would have to pay those costs out of the sum the court allowed her in respect of her housing needs, thereby not leaving her with enough to obtain suitable rehousing. The wife appealed against this decision, and the appeal court allowed the appeal.

This case makes it clear that legal costs can be taken into account as a debt for the purpose of a divorce settlement.

It should be mentioned, however, that the appeal judge pointed out that each case is fact-specific. Costs will not always result in a larger settlement – it depends upon the circumstances of the case, including the available assets and the needs of the parties.

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It has recently been reported in the national media that there was a dramatic drop in the number of pension sharing orders made by the courts last year: 10,500, down from 15,000 in 2019, and the lowest number in ten years.

There may be a number of reasons why the figure was so low last year.

Some of these reasons may be of no great concern, such as the temporary effect of the pandemic reducing the number of cases dealt with by the courts, more wives having their own pensions and not needing a share of their spouse’s pension, and increased house prices resulting in more people taking a greater share of the matrimonial home, rather than of their spouse’s pension (although there have also been significant recent increases in the values of pensions).

But there could be a more worrying reason: that more people are doing their own divorce without a lawyer to advise them upon their entitlement to a share of their spouse’s pension, thereby missing out upon an extremely valuable and important asset.

Just to recap for the benefit of those who don’t know, a pension sharing order is an order transferring all or part of one spouse’s pension into a pension belonging to the other spouse. A common arrangement is for pensions to be ‘equalised’ between the spouses, so that each spouse ends up with a similar pension entitlement.

The importance of pension sharing on divorce comes into focus when one realises that pensions are often the second most valuable asset on divorce, with only the former matrimonial home being worth more. And it is still often the case that one spouse, usually the husband, has far greater pension provision than the other, leaving the other spouse at risk of having to manage with far less income in retirement.

It is therefore essential that anyone going through divorce is advised as to their entitlement regarding pensions. Obviously, such advice comes at a cost, but that cost could easily be outweighed by the value of a pension share.

We can find you an expert family lawyer to provide you with the advice you need, working with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Access to a court of law is a basic right of all citizens. However, the courts do have the power to restrict that access if the legal system is abused.

Obviously, this is a power that the courts will only use in exceptional cases.

Contempt of court

One such situation is where a party seeks an order from the court, whilst simultaneously ignoring another order that the court made previously.

Clearly, you should not expect the help of the court if you are in contempt of court for failing to obey an earlier order. Or, to put it another way, you can’t pick and choose which court orders to obey.

This was demonstrated in a recent case involving complex proceedings between parents concerning arrangements for their children.

The father had previously been ordered by the court to pay the mother’s costs of earlier proceedings, amounting to some £97,000. The father had failed to pay that sum and as a result, the mother was in debt to her solicitors for a considerable amount, significantly restricting her ability to contest the case, and enforce previous court orders.

Meanwhile, the father sought to appeal against two orders made by the court in those earlier proceedings.

Impediment to justice

Obviously aggrieved by this situation, the mother applied to the court for an order that the father’s appeals be dismissed unless he paid the outstanding costs.

Hearing the mother’s application, the judge found that the father was clearly in contempt of court by not paying the costs. He had the means to make payment, but had chosen not to.

The judge therefore directed that the father pay the sum of £97,000 to the mother’s solicitors by 4pm on the 30^th of April, failing which the father’s appeals would be dismissed. This, said the judge, was “necessary to remove the impediment to justice that non-payment in contempt causes the … mother.”

The case is a good illustration of the importance of obeying court orders: not only will you face sanctions for the failure to obey an order, you may also find that your access to the court is restricted.

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When money is tight, a divorce settlement will usually be decided by reference to the financial needs of the parties. But sometimes a party’s legal costs can leave them without enough money to cover their needs.

In such circumstances the court will do what it can to ensure that needs are met, as a recent case demonstrates.

Housing needs

The case concerned what was described as “a straightforward financial remedy case”. Unfortunately, it also involved a high degree of animosity between the parties, as a result of which they ran up disproportionately high legal costs.

The wife owned all of the assets, including the former matrimonial home. The central issue in the case was that the husband would have to rehouse himself.

The judge determined that the husband should purchase a home for himself, and that he needed £400,000 for this, plus £25,000 to cover the costs of purchase, and the purchase of a small car.

However, the husband had debts of £257,000, including legal costs of £186,000. Clearly, the husband could not pay all of his debts out of the sum of £425,000, whilst still rehousing himself. Accordingly, the judge awarded him an extra £200,000 towards payment of his debts, making the total award £625,000.

The wife appealed against the debts part of the award, which she said was tantamount to ordering her to pay the husband’s legal costs. The appeal was ultimately dismissed, as the Court of Appeal held that the award was an order that the judge was entitled to make.

In short, if the court did not provide for the husband’s debts, then his needs would not be met.

Conduct not relevant

There is another aspect of the case that merits comment.

In earlier proceedings between the parties over arrangements for their child the court found that the husband had been violent towards the wife on two occasions, and at one stage in the financial proceedings the judge had suggested that it would be wrong to allow the husband his costs where such a finding had been made.

However, the Court of Appeal said that such violence could only be taken into account with regard to the financial settlement if it amounted to conduct that was so serious that it could not be disregarded.

Clearly, the husband’s conduct was not that serious. Indeed, as the Court of Appeal said, conduct is only rarely relevant to the issue of a financial settlement on divorce.

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Parents involved in court proceedings regarding their children have expressed concerns over the use of remote hearings, via video or telephone, which have become commonplace during the pandemic.

Responding to a consultation on remote hearings commissioned by the President of the Family Division, 73% of parents indicated that they did not feel supported during their hearing(s).

Just under half (46%) did not have legal representation, and others raised concerns about not being able to be with their legal representative during the hearing, and the difficulties communicating with them as a result.

Two in five reported that they had wanted to attend court but had been prevented from doing so.

More than 3,200 professionals (lawyers, magistrates, judges, social workers and others in the family justice system), parents and other family members from across England and Wales responded to the consultation, which was carried out by Nuffield Family Justice Observatory, an organisation which aims to improve the use of data and research evidence in the family justice system.

The majority of professionals responding to the consultation saw a continuing role for certain types of remote hearing, though raised concerns that hearings were often remote ‘by default’ and that considerations such as the vulnerability of lay parties and their wishes and views, the complexity of the case, and whether there was access to suitable technology for all those taking part should be taken into account.

However, nearly two-thirds of professionals felt that more needs to be done to ensure that remote hearings were fair and worked smoothly.

Suggestions to improve how remote hearings were run included making sure lay parties and their representatives were better prepared for the hearing, checking access to technology/links before the start of the hearing, providing better written guidance to parents and professionals and improving the technology.

Lisa Harker, director of Nuffield Family Justice Observatory, commented:

“There is a clear disconnect between the measures professionals can see would help remote hearings run more smoothly – particularly for parents and family members – and what is still happening in some family courts. Many of the suggestions for improvements are neither complicated nor new, so it is vital to understand why they are not being put into practice. Families must feel that they have had fair access to justice in what are some of the most life-changing cases heard in courts – and that must apply to remote hearings too.”

It now seems clear that remote technology will continue to be used after the pandemic, at least for some types of court hearings. However, the benefits that they bring should not come at the cost of fairness to the parties involved.

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The long-running divorce between Russian oligarch Farkhad Akhmedov and his former wife Tatiana Akhmedova has settled at last.

In 2016 the High Court ordered that Ms Akhmedova should receive the sum of £453 million, believed to be the biggest divorce award in this country. Since then, Ms Akhmedova has been attempting to enforce the award.

The latest round of this battle took place in the High Court in London recently, when Mrs Justice Knowles found that Mr Akhmedov had transferred money to various trusts, a company and the parties’ son Temur, with the intention of putting his assets beyond the reach of Ms Akhmedova. Accordingly, she ordered the trusts and company to make payment to Ms Akhmedova, and Temur was ordered to pay her some £75 million.

In the course of her judgment Mrs Justice Knowles described the Akhmedov family as “one of the unhappiest ever to have appeared in my courtroom.”

It has now been reported that the case has settled, with Ms Akhmedova agreeing to receive the sum of £150 million. Representatives for Mr Akhmedov said that he had agreed to pay her £100 million in cash and about £50 million in artworks. (The family assets include a modern art collection, which includes pieces by Andy Warhol, Mark Rothko and Damien Hirst, and which has been valued at £112 million.)

A spokesman for Mr Akhmedov claimed that Ms Akhmedova had ended up with “not a penny more” than she had been offered by Mr Akmedov six years ago.

It has also been reported that Ms Akhmedova has spent some £75 million on litigation funding and legal fees.

As far as we are aware Ms Akhmedova has not commented, either upon the settlement or the issue of her costs.

All of the above suggests, however, that Mr Akmedov may have got his way (although the settlement will still have to be approved by the court), and that Ms Akhmedova has lost out considerably, as a result of Mr Akhmedov’s failure to comply with the 2016 order.

That would certainly an unhappy message to take from this case, on top of the comments made by Mrs Justice Knowles.

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It may be thought that the idea of being imprisoned for failure to pay a debt belongs in the dark past of our legal history.

But anyone who believes that a debtor cannot now be sent to prison would be quite wrong.

Someone who is owed money under a court order, including a financial order made on divorce, can apply to the court for the debtor to be committed to prison for a term not exceeding six weeks, or until payment of the sum due. This procedure is known as a ‘judgment summons’.

And a recently published case is an example of this occurring in practice.

The case concerned a lump sum order made in February 2020. Under the order the husband was to pay to the wife the sum of £5,878,732. That sum was to be paid by instalments, the first instalment of £50,000 to be paid the day after the order was made, a further instalment of £647,732 to be paid by the 2^nd of March 2020, and the remaining sum of £5,181,000 to be paid by the 2^nd of March 2022.

The husband did not pay the first two instalments, and the wife applied for a judgment summons.

Before committing the husband to prison the court had to be satisfied that the husband had the means to pay the instalments, and refused or neglected to pay them.

The judge was not satisfied that the husband had the means to pay the second instalment, but was satisfied he had the means to pay the first instalment, and had refused or neglected to pay it. Accordingly, he sentenced the husband to the maximum prison term of six weeks.

However, the judge said that he did not want the husband to go to prison – he wanted the wife to be paid the money she was due. He therefore gave the husband 14 days to pay the sum of £50,000. If he did not pay that sum in full by then, he would go to prison for six weeks.

If you are owed money under a financial remedies order made on divorce then you should take legal advice as to how you may enforce payment. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Law Society, the professional body for solicitors in England and Wales, has warned that the inappropriate use of remote court hearings may impede justice and the rule of law in the family courts.

The warning comes in the Society’s response to a consultation by the Nuffield Family Justice Observatory (‘NFJO’) evaluating the role of remote hearings in the family justice system.

Remote hearings, via video conferencing or telephone, have of course been widely used during the Covid-19 pandemic, as social distancing measures have made the use of courtrooms problematic. The consultation is intended to inform how the family courts and should operate during the court ‘recovery’ period following the pandemic.

Law Society president I. Stephanie Boyce said: “Remote hearings have generally found a suitable place in the family justice system … In some instances, they have removed family tensions, made emergency hearings simpler to attend and been more convenient and efficient for advocates, parties and judges.

“However, the biggest factor in deciding whether a hearing should be remote or in person must be any potential impediment to access to justice. If parties feel they can’t fully participate and understand what’s happening, in-person hearings should be the default format.”

She went on: “Parties who lack the appropriate technology (such as good WiFi or relevant hardware), aren’t technologically literate or who need an intermediary or translator may struggle to feel fully involved in remote hearings … Some litigants in person – parties without legal representation – are also struggling with remote hearings, especially when they are complex. This causes difficulties in accessing justice and being able to fully participate, which also causes delays to hearings.”

She suggested that ‘hybrid’ hearings, in which some participants take part in court and others remotely, may be a compromise. However, Law Society members have said that these can be much longer, and the technology isn’t always adequate. The Society says that if they are used in future, ways of improving their effectiveness should be analysed and implemented.

The NFJO consultation ended on the 27^th of June. The NFJO will report upon the results of the consultation, and its report is likely to have a substantial bearing upon decisions as to what aspects of remote working should be retained after the pandemic.

The NFJO supports better outcomes for children in the family justice system in England and Wales by improving the use of data and research evidence in decision-making.

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A recent Family Court case says at least two important things about sorting out finances on divorce. It also says a number of other things, but we will concentrate on two here: the perennial issue of depleting the available assets by running up excessive costs, and the age-old settlement method of ‘splitting the difference’.

The two things are, of course, closely connected: the best way to keep your legal costs to a minimum is to resolve the matter by agreement, and this may obviously entail each party settling for less than they were originally seeking.

The case concerned the division of assets of some £2.6 million, most of which had been inherited by the husband. Very sadly, in 2018 the wife had been diagnosed with Young Onset Alzheimer’s, which will have a significant effect on her life expectancy and medical needs during her remaining years.

We are told that at the start of the case the wife was seeking £1.2 million of the assets, and the husband proposed that she should receive £750,000, a difference of £450,000.

We are also told that the combined legal costs of the parties came to about £483,000, slightly more than the difference the difference between the two proposals. As the judge said:

“This is not a “big money” case by any stretch; the costs represent about 18% of the wealth, which is clearly disproportionate. To that should be aggregated the emotional toll which usually accompanies litigation of this nature.”

This is such an important message. So often parties to financial disputes drain the very assets they are arguing over, by running up excessive legal costs.

And in the end the judge ordered that the wife should have £953,000, which represented some 37 per cent of the assets. We will not go into the details of how he calculated this sum, but it is notable that, as in so many cases, the award ‘splits the difference’ between the parties’ proposals.

The lesson is clear: very often the answer to how a case should be settled lies quite simply between how much each party is proposing. This can surely not be unexpected, given that each party should set out openly what their proposals are. The court therefore knows the proposals before deciding the case, effectively setting an ‘upper limit’ upon what each party should receive.

Of course, this is not to say that the court will always ‘split the difference’. Sometimes, it may decide that it is fair to award a party all that they are seeking.

The ultimate lesson is to take expert legal advice, and to pitch any proposal accordingly.

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Almost every unresolved dispute between parents over arrangements for children is referred to the Children and Family Court Advisory and Support Service (‘Cafcass’), which looks after the interests of children involved in family proceedings. Cafcass will investigate the case and report back to the court, usually with a recommendation as to what orders the court should make.

And sadly in many of those cases there are issues regarding alleged domestic abuse. For example, where a father is seeking contact with his children the mother may allege that the father has been abusive towards her. Such cases must, of course, be very carefully handled by all involved, including Cafcass.

Last year the Ministry of Justice set up an expert panel to look into how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. The panel made a number of serious findings in relation to both the processes and the outcomes for parties and children involved in such proceedings.

In response to those findings Cafcass has published an improvement plan which provides key priorities to strengthen its practice with children and families who have experienced domestic abuse, being clearer about how they explain their decisions to them, and improving the effectiveness of their management oversight.

Cafcass Chief Executive Jacky Tiotto said:

“We are committed, alongside other agencies in the family justice system, to improving all of our work with children and families who have experienced domestic abuse. It’s been so important to build on what we heard from the Ministry of Justice’s Expert Panel on Harm, and our own subsequent work to review and understand the quality of our practice and improvements that we need and want to make. We hope that the learning from our listening over the last year is explicit in our improvement plan and our wider learning and development programme. Children and families who experience our support and help deserve the very best from us and we want to offer advice to the family court that promotes the best interests of children and secures their safety.”

Hopefully, the plan will mean will mean a better service for all children and families who have experienced the scourge of domestic abuse.

Obviously, domestic abuse is a very serious issue in cases concerning children, and can have a significant bearing upon the outcome. Whether you are the victim or the alleged abuser you should therefore seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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In an important development for anyone contemplating divorce the Government has announced that the new system of no-fault divorce will not now be introduced this autumn, but will instead be delayed until next spring.

In an answer to a parliamentary question upon the implementation of the reform Chris Philp MP explained on behalf of the Government that the original implementation timetable had been ambitious and that the necessary changes to the Courts Service’s online divorce system would not be completed before the end of the year. Accordingly, the reform will not come into force until the 6^th of April 2022.

Whilst it is welcome that the reform now has a fixed start-date, the delay obviously has serious implications for those considering commencing divorce proceedings.

To recap, the new system will do away with the need to prove that the marriage has irretrievably broken down, for example due to the other party committing adultery or behaving unreasonably. This removal of blame from the divorce process has been widely welcomed.

Instead, all that will be needed is for one or both of the parties to file a document with the court simply stating that the marriage has broken down irretrievably – the court will accept this as proof of irretrievable breakdown.

A minimum period of 20 weeks will then have to elapse before the court can make a conditional divorce order, and a further six weeks must pass before the court can make a final divorce order. No-fault divorces will therefore take a minimum of 26 weeks, longer than a quick divorce can take at present.

Obviously, those wanting to divorce without having to blame the other party for the breakdown of the marriage may now have to wait longer to get divorced, if they have not been separated for two years (under the present system you can divorce after two years separation, if the other party consents).

On the other hand, those who are content to use the present system will obviously have more time to do so, perhaps enabling them to get a divorce more quickly than under the new system.

If you are contemplating divorce you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Divorce of course arises from past events that led to the breakdown of the marriage. But that does not mean that the divorce itself must be all about what has happened in the past.

All too often divorcing couples become mired in arguments about the past, but all that achieves is more animosity, more delay and more legal costs.

Of course, it can be difficult to put the past behind you, especially when those events had such a significant effect upon your life. The temptation to raise past events in divorce proceedings can be overwhelming.

And it doesn’t help when one sees divorcing celebrities dragging up the lurid history of their marriage in the popular media every day. The idea that this is ‘normal’ behaviour by divorcing couples is a trap that is all too easy to fall into.

And many people going through divorce think that the past behaviour of their spouse will be of crucial interest to the court in determining what orders it should make.

But, save where there has been domestic abuse, the court is largely not concerned with past behaviour. The real concern of the court is what should happen in the future.

Let us look at the three main things involved in divorce proceedings: dissolving the marriage, sorting out arrangements for children, and sorting out finances.

It is true that at present if a person wants to get divorced before they have been separated for two years they will need to prove that their spouse has committed adultery or behaved unreasonably. But the court isn’t really concerned about these things, only that the marriage has irretrievably broken down. And findings of adultery or unreasonable behaviour will usually have no bearing whatsoever upon other matters, such as children and finances.

And when no-fault divorce comes into force, now expected to be next year, then it will not be necessary at all to show why the marriage broke down.

Arrangements for children are all about the future: deciding how best the children should spend the rest of their childhood. Of course, past events may be relevant to that decision, but in the vast majority of cases they do not change the simple position that children should continue to have as full a relationship as possible with both parents.

Lastly, sorting out finances on divorce is in most cases driven by the future financial needs of each party, not about what has happened in the past. In particular, bad past behaviour by one party will be of no relevance to the financial settlement, save in the most extreme of cases.

You can’t change the past, but you can change the future. Divorce is not about what has gone before, but about making a new start, and ensuring you have the best arrangements in place for that future, for yourself, and especially for your children.

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Resolution, the association of family lawyers, has reported that the majority of its members expect to continue working from home when the Covid-19 pandemic is over.

The association has been carrying out a survey of its members on future working arrangements during its annual conference. Early findings indicate that at least fifty per cent do not expect to return to office working.

Many members have indicated a preference for spending half of their time working in an office and the other half working from home.

All of this raises two questions: will this be what we actually see when the lockdown restrictions end, and will it affect their clients?

As to whether it will actually happen, obviously only time will tell. It may be that whilst there is no initial rush to return to the office, gradually more people will return, attracted by the camaraderie and support that working in an office provides.

Of course it is not just the decision of individual lawyers. Their firms may be attracted by home working as a way of reducing the amount of expensive office space that they require. And once that space is gone, it is unlikely to be replaced.

Whatever, it does still seem likely that many clients will have to get used to the idea of their lawyers not being in the office five days a week.

Which brings us to the second question: how will those clients be affected?

The big difference will surely be in access to their lawyer. Whereas the historic model has been for lawyers to take instructions from, and give advice to, their clients primarily in the course of face-to-face meetings in the office, that will have to change. Obviously, clients will not be able to meet with their lawyers at home, and even where the lawyer does work partly in the office the opportunities for meetings will be fewer.

Clients rightly demand both advice and information about the progress of their case, and both could be adversely affected by lawyers working from home. Whilst many clients will have been prepared to accept problems with the service they receive during the pandemic, most will not expect such problems to continue after the pandemic is over.

Of course, none of this is a problem if the lawyers use an online platform which enables their clients to access their case file and ask questions whenever they want, 24/7. Which is where Family Law Café comes in…

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Maintenance for a spouse, usually the wife, is a relatively rare thing nowadays. But spousal maintenance orders are made, and sometimes they are for a purely nominal sum, such as five pence per annum.

But what is the point of such an order? The point is that, like any maintenance order, it can be varied (i.e. increased) at a later date. A nominal maintenance order of itself is meaningless, but it does give the court the opportunity to increase the maintenance at a later date, if circumstances require.

So what kind of circumstances may give rise to a nominal spousal maintenance order being increased? A recent family court case has shed some light upon this.

Before we look at the case we should say that the law essentially states that a maintenance order may be varied (i.e. increased or decreased) if there has been any change in the circumstances (in particular the financial circumstances) of either party.

But, as we will see, to trigger the variation of a nominal order, the change in circumstances has to be something significant, rather than just an increase or decrease in the income or outgoings of either party.

In the case the wife had a nominal maintenance order made in her favour in 2012. She worked as an airline pilot and, when the pandemic struck, she lost her job. She therefore applied to the court to have the nominal maintenance order increased, to cover the shortfall in her income.

The family court was not prepared to increase the order. The judge said that there was no causal connection between the marriage and the wife’s loss of employment, in these circumstances nearly a decade later. Further to that, it was probably the case that the wife would find new employment once the pandemic was over.

Putting it another way, the judge said that if the wife had, relatively soon after the end of the relationship, suffered a significant work-related disadvantage as a result of the marriage, then the court might be prepared to increase the nominal order. That is not, however, what happened here.

Accordingly, the wife’s application was dismissed.

If you or your former spouse are considering applying to vary a maintenance order, then you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Family Court has refused to publish in full the judgment in a financial remedies case involving the billionaire part-owner of The Daily Telegraph Sir Frederick Barclay. However, the judge did make part of the judgment public, to let the public know about Barclay’s ‘reprehensible’ behaviour.

The case concerned an application for financial remedies made by Barclay’s wife, in connection with their divorce. The case generated considerable media interest, and Barclay argued that no part of the proceedings should be published.

The media, on the other hand, argued that as Barclay is a public and political figure there was a public interest in the judgment being published in full, particularly as the judge, Mr Justice Cohen, had criticised Barclay for his conduct during the course of the proceedings.

Mr Justice Cohen said that Barclay had repeatedly ignored orders to produce documents and answer questions. He had also ignored an order to sell a yacht and produce the proceeds, instead applying the proceeds for his own use. Mr Justice Cohen described this behaviour as ‘reprehensible’.

Mr Justice Cohen held that the judgment should not be published in full. The starting-point was that proceedings such as this were highly personal and should therefore be private. Whilst it was the case that Barclay had behaved badly, that behaviour was not sufficiently bad to warrant the publication of the entire judgment.

However, Mr Justice Cohen found that the public did have an interest in knowing about Barclay’s behaviour, and therefore he did set out details of that behaviour, in his judgment dealing with the issue of publication of the full judgment.

Lady Barclay was awarded lump sums totalling £100 million, payable in two instalments of £50 million. Barclay was also ordered to pay all of her legal costs, to the tune of some £1.8 million.

The moral of all of this is clear: you can ask the court to keep your financial affairs private, but do not expect full protection if you do not behave yourself in the proceedings!

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The landmark Domestic Abuse Bill, which we have mentioned here previously, has at last passed through both Houses of Parliament and been signed into law as an Act of Parliament.

The Act includes a raft of provisions designed to raise awareness of domestic abuse, and better protect victims.

To recap, the Act’s provisions include:

1. The first statutory definition of domestic abuse, incorporating a range of abuses beyond physical violence, including emotional, coercive or controlling behaviour, and economic abuse.  

2. New protections for victims of abuse, including Domestic Abuse Protection Notices, which can be given by the police to provide victims with immediate protection from abusers, and Domestic Abuse Protection Orders, which courts can make to help prevent offending by forcing perpetrators to take steps to change their behaviour, including seeking mental health support or drug and alcohol rehabilitation.

3. The establishment of the office of Domestic Abuse Commissioner, who will oversee the provision of domestic abuse services in England and Wales.

4. New protections and support for victims ensuring that abusers will no longer be allowed to directly cross-examine their victims in the family and civil courts, and giving victims better access to special measures in the courtroom to help prevent intimidation – such as protective screens and giving evidence via video link.

5. A provision placing a duty on local authorities in England to provide support to victims of domestic abuse and their children in refuges and other safe accommodation.

Commenting upon the passing of the Act   Safeguarding Minister Victoria Atkins said: 

“This law will fundamentally transform our response to tackling domestic abuse by providing much greater protections from all forms of abuse.”

And Claire Throssell MBE, Survivor Ambassador for the domestic abuse charity Women’s Aid, said:

“As a survivor and domestic abuse campaigner, the new act is a chance to make sure survivors are safe, protected and loved. The vital changes to the family court are long overdue and everyone accessing them deserves better. It is high time the family courts are safe and supportive, protecting victims and survivors instead of shielding perpetrators.”

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If you are a victim of domestic abuse you should seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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We have written here previously about the efforts of Tatiana Akhmedova to recover the divorce settlement she was awarded from her ex-husband Russian oligarch Farkhad Akhmedov – see, for example, this post.

To recap, in 2016 the High Court ordered Mr Akhmedov to pay to Ms Akhmedova the sum of £453 million, believed to be the biggest divorce award in this country. Since then, Ms Akhmedova has been attempting to enforce the award.

The latest round of this battle took place in the High Court in London in November and December last year, and the judgment of Mrs Justice Knowles has just been published.

Ms Akhmedova was alleging that Mr Akhmedov had done everything he could to put his money out of her reach, with the assistance of the parties’ son, Temur.

And Mrs Justice Knowles agreed. She said that Ms Akhmedova had “been the victim of a series of schemes designed to put every penny of the Husband’s wealth beyond her reach.” That strategy, she said, “was designed to render the Wife powerless by ensuring that, if she did not settle her claim for financial relief following their divorce on the Husband’s terms, there would be no assets left for her to enforce against.”

Temur had confirmed in his oral evidence that the Husband would rather have seen the money burnt than for her to receive a penny of it.

Temur, said Mrs Justice Knowles, learned well from his father’s past conduct and had done and said all he could to prevent his mother receiving a penny of the matrimonial assets. She found that he was “a dishonest individual who will do anything to assist his father, no doubt because he is utterly dependent on his father for financial support.”

Mrs Justice Knowles found that Mr Akhmedov had transferred money to various trusts, a company and Temur, with the intention of putting his assets beyond the reach of Ms Akhmedova. Accordingly, she ordered the trusts and company to make payment to Ms Akhmedova, and Temur was ordered to pay her some £75 million.

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It is sadly a feature of financial remedy disputes on divorce that couples expend disproportionate amounts of their assets on legal costs, arguing over who should have what. Sometimes, their legal costs even exceed the value of their assets, making the entire exercise somewhat futile.

Over the years family judges have often criticised couples for spending inordinate sums arguing over the division of their assets. We have written about this here previously, for example in this post in 2017.

And now another such case has been published. It is worth mentioning as a reminder of the folly of running up disproportionate legal costs.

And unlike so many of these cases, this one did not involve parties of great wealth. In fact, in the end they were arguing over negative assets.

The reason for this was that the parties’ assets were quite modest to begin with, and they ran up legal costs arguing over their division, greater than the value of those assets. The wife alone ran up legal costs in excess of £61,000. The end result was that their joint debts amounted to some £57,000.

And they did this despite the judge warning them at an earlier hearing that there was “a danger in this case that the cost of litigation and any final hearing will be disproportionately high relative to the asset base.”

The parties did, in fact, reach an agreement a few months before the final hearing, but they (in particular the wife) continued to argue over certain peripheral matters, with the result that the case dragged on to the final hearing.

In the end the judge made an order that was basically the same as what had been agreed previously. The husband therefore asked the judge to order the wife to pay his legal costs from the date of the agreement, amounting to some £29,000.

The judge found that both parties had been at fault in allowing the case to go to the final hearing, but also found that most of the fault lay with the wife. He therefore ordered the wife to pay £10,000 towards the husband’s costs.

All of the above led the judge to comment: “The level of costs in these proceedings has been ruinous to the parties. It is utterly disproportionate to the assets involved. To put the issue in context, the wife’s costs alone are just short of £4,000 in excess of the parties’ joint deficit. Issues have been pursued which did not merit any significant expenditure of costs. Warnings as to the costs being incurred have gone ignored.”

The moral is quite clear: do everything you reasonably can to settle matters by agreement, always bear in mind the costs you are incurring, and always see the larger picture.

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The concept of ‘matrimonial property’ can be of great importance when considering the division of assets between husband and wife on divorce. But what exactly is ‘matrimonial property’, and how does this affect the division?

In simple terms, ‘matrimonial property’ is property that came into being in the course of the marriage, due to the joint efforts of the spouses. Accordingly, property owned by either spouse before the marriage is usually ‘non-matrimonial’, as is property acquired after the parties separated, or property acquired other than by the efforts of the spouses, such as gifts or inheritances.

The importance of the concept of matrimonial property comes from the basic idea that marriage is a joint venture, and therefore on divorce each spouse should be entitled to an equal share assets acquired during the marriage as a result of their joint efforts (whether those efforts involved actually acquiring the asset, or enabling the other party to do so, for example by looking after the home and bringing up the family).

But it should be noted that there is no absolute rule saying that on every divorce each party should get half of the matrimonial property, and keep any non-matrimonial property they own. The court has a discretion to divide ALL property as it sees fit, having regard to the circumstances of the case. Thus, for example, a party may be awarded more than half of the matrimonial property and, if the matrimonial property is insufficient to meet their financial needs, then they may even be awarded non-matrimonial property belonging to the other party.

The operation of the concept of matrimonial property was demonstrated by a recent Family Court case.

In the case there were assets totalling £54 million in value. These included a £5 million inheritance that the wife received, and £9 million in trusts established by the wife’s family.

On the face of it both the inheritance and the trust money was non-matrimonial, but the husband argued that because he had managed the trust money for some 16 years, that had the effect of ‘matrimonialising’ it. Accordingly, he said, he was entitled to a half share.

The judge did not agree. The trust money had not acquired a matrimonial character, either in whole or in part, as a result of the husband’s activities as investment manager.

The judge therefore held that only £40 million of the assets were matrimonial, and, there being no reason to depart from equality, each party was therefore awarded half of that sum.

The discussion of matrimonial property above is just a very brief introduction to what can be a complex subject. For more details, you should consult an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Court of Appeal has given guidance upon the approach that the Family Court should take to allegations of domestic abuse when dealing with disputes between parents over arrangements for their children.

As we mentioned here in this post, the court was hearing four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse.

As the Court of Appeal pointed out, allegations of abuse are often made by one or both parents in children cases. In fact, it is estimated that at least 40% of such cases now involve allegations of domestic abuse.

When allegations are made, the court must decide, usually at an initial ‘fact-finding’ hearing, whether they are true and what effect, if any, they should have upon the arrangements for the children.

This can obviously be a difficult task, balancing on one hand the safety and welfare of the child, and on the other hand the ‘right’ of the child and parent to have a continued and full relationship.

The guidance given by the Court of Appeal focussed primarily upon the issue of coercive and controlling behaviour.

Coercive and controlling behaviour involves one party seeking to restrict the other, over a period of time. It can take many forms, such as the abuser preventing the other party from spending time with their family and friends, or controlling them by restricting their access to money.

Emphasising the importance of such behaviour, the Court of Appeal said that the courts should prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established, over and above the determination of any specific factual allegations.

The Court of Appeal stated that where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be considered because of their potential relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation (such as an allegation of rape) was so serious that it justified determination irrespective of any alleged pattern of coercive and/or controlling behaviour.

The guidance was welcomed by Lucy Hadley of the domestic abuse charity Women’s Aid, although she expressed concern that it did not go far enough, saying:

“…we are severely disappointed that the Court of Appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger … We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors. We will continue to fight for a change to the presumption of parental involvement in domestic abuse cases – for good.”

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Last week the Ministry of Justice published its latest statistics for cases dealt with by the Family Court, for the quarter October to December 2020.

The headline from the statistics was that there were 68,634 new cases started in Family courts in October to December 2020, which was up 6% more than the same quarter in 2019. This was due to increases in most case types: domestic violence (21%), financial remedy (8%), matrimonial (5%) and private law (3%) cases.

On the other hand, the annual figures paint a rather different picture. Annually, there were 264,091 new cases started in Family courts throughout 2020, which was very similar to 2019, when 266,059 new cases were started.

Perhaps the most important figure, however, was the increase in domestic violence (abuse) cases. The number of domestic violence remedy order applications increased by 19% compared to the equivalent quarter in 2019, while the number of orders made increased by 20% over the same period. There were 35,984 applications and 39,427 orders made throughout 2020, up 20% and up 17% respectively from 2019.

These statistics confirm fears of an increase in the incidence of domestic abuse during lockdown, as couples are forced to live together.

The statistics also showed an increase in the average time for divorce proceedings. The mean average time from petition to decree nisi was 30 weeks, and decree absolute was 56 weeks – up 2 weeks and 4 weeks respectively when compared to the equivalent quarter in 2019. The median time to decree nisi and decree absolute was 20 and 39 weeks respectively.

However, once again the annual figures paint a slightly different picture. Throughout 2020 the mean time from petition to decree nisi was 28 weeks and 53 weeks to decree absolute, each down 3 weeks respectively.

A statistician commented on the figures:

“The impact of Covid-19 continues to be seen across family court activity this quarter, with noticeable recovery as work levels return to pre-lockdown levels (seen in the number of new cases started and disposed across most areas since the first lockdown period). The negative impacts on timeliness measures continue, with work progressing to address the impact to the family justice system.

“Domestic violence remedy levels remain high, with substantial increases in both new cases starting and cases with a final disposal – up 21% and 38% respectively compared to quarter 4 2019…

“It may be some time until improvements as a result of recovery measures taken begin to show, particularly relating to timeliness measures as outstanding cases are dealt with. Nightingale courts continue to be used to help cope with demand and help the court system to run as effectively and safely as possible during the coronavirus outbreak.”

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A recent Family Court case acts as a warning to separating couples of the importance of finalising divorce financial agreements, and the perils of not doing so.

The case concerned a couple who separated in 2010. At that time they had various jointly owned assets, so in 2012 they agreed upon a division of the assets between themselves. Unfortunately, the agreement was never legally finalised.

In 2019 the wife commenced divorce proceedings, by which time the husband’s assets had risen in value considerably. This meant that the assets the wife received under the agreement represented only about 11 per cent of the total assets by the time of the divorce.

The wife issued a financial remedies application, seeking a significantly greater share of the assets. She was able to do so as the 2012 agreement had never been legally finalised, either by being put into a consent court order or, if there are no divorce proceedings, by being incorporated into a written separation agreement.

Both a court order and a separation deed really need to be prepared by lawyers, but the cost is relatively small, especially when compared to the cost of contested financial remedy proceedings.

The wife’s application was eventually dealt with by the court, and she was awarded a modest extra sum, although nothing like as much as she was seeking.

However, by the end of the final hearing the legal costs of both parties exceeded half a million pounds. This led the judge to comment “that an expenditure of perhaps a few thousands of pounds of legal costs in 2012 [on finalising the agreement] might well have saved and avoided the catastrophic expenditure of over £500,000 now.”

Obviously, separating couples should do all they reasonably can to resolve financial matters by agreement. However, they must then make sure that the agreement is legally finalised, so that there can be no come back later.

Family Law Café can find an expert family lawyer to help you both reach and finalise a financial agreement, working with you via our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Government has added some important new laws to its forthcoming Domestic Abuse Bill, designed to further protect victims of abuse and ‘clamp down’ on perpetrators.

The laws include making non-fatal strangulation a specific criminal offence, punishable by up to five years in prison. The Government says that this act “typically involves an abuser strangling or intentionally affecting their victim’s breathing in an attempt to control or intimidate them.” This is certainly something that many victims of domestic abuse complain of.

The announcement of the new offence follows concerns that perpetrators were avoiding punishment as the practice can often leave no visible injury, making it harder to prosecute under existing offences such as Actual Bodily Harm.

Another change is that the offence of controlling or coercive behaviour will be extended to include abuse where perpetrators and victims no longer live together. This change follows a Government review which highlighted that those who leave abusive ex-partners can often be subjected to sustained or increased controlling or coercive behaviour post-separation.

Lastly, so-called ‘revenge porn’ laws will be widened to include threats to disclose intimate images with the intention to cause distress. Those who threaten to share such images will face up to two years in prison.

The reforms have been welcomed by interested parties.

Dr Nicola Sharp-Jeffs OBE, Founder & CEO of the charity Surviving Economic Abuse said:

“We’re absolutely delighted the government is criminalising post-separation abuse via an amendment to the Domestic Abuse Bill.

“By doing so, victims will receive the recognition they need and deserve. Post-separation abuse is a devastating form of coercive control and the economic abuse elements of this can continue for decades.”

And Hetti Barkworth-Nanton, chair of the domestic abuse charity Refuge said:

“This is a significant moment for women experiencing domestic abuse who have been threatened with the sharing of their private intimate images and we are thrilled that the government has recognised the need for urgent change. Our research found that 1 in 7 young women have experienced these threats to share, with the overwhelming majority experiencing them from a current or former partner, alongside other forms of abuse.”

The Bill is in the final stages of its passage through Parliament, and it should not now be long before it becomes law.

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Last week the President of the Family Division Sir Andrew McFarlane announced that the new Financial Remedies Courts (’FRCs’) are now ‘live’ across all areas of England and Wales.

For the benefit of those who don’t know, the term ‘financial remedies’ refers to all family court proceedings relating to financial issues. These primarily consist of proceedings relating to the financial settlement on divorce, but also include other types of proceedings, including claims for financial provision for children.

Note that financial remedies does not include child support maintenance claims, which are dealt with by the Child Maintenance Service.

Until recently, financial remedy applications were all dealt with by the local family court. However, in 2016 it was suggested that a national network of specialist courts be set up to deal with financial remedy cases. A pilot scheme was then set up in 2018, to test the idea.

The pilot has now been successfully completed, and the President says that “the FRCs should henceforth be regarded as an established and permanent part of the Family Court.”

But what does this mean for anyone involved in a financial remedies case?

Well, the big thing is that word ‘specialist’. This means both that FRCs are particularly ‘geared’ to deal with financial remedy cases and, in particular, that the judges dealing with the cases will be specialists in financial remedy work.

This in turn should mean that financial remedy cases should in future be dealt with more efficiently, and with better, more consistent, outcomes. Such consistency should also make it easier for lawyers to advise clients, thereby making it more likely that cases can be settled without having to go to court.

Lastly, it should be noted that there are still two types of family-related financial cases that are not currently dealt with by FRCs. These are trusts of land cases (usually involving property claims following the breakdown of cohabitation) and Inheritance Act cases, where a claim is made against the estate of the deceased, often by a family member.

However, the President has expressed the hope that both of these types of case will, in due course, also be dealt with by FRCs.

Whatever type of financial remedy case you are involved in, you should seek expert legal advice. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The biggest divorce news of the week is of course that Kim Kardashian has reportedly filed for divorce from Kanye West. This latest celebrity divorce has already filled huge numbers of column-inches in newspapers and magazines across the world.

Our fascination for celebrity divorce seems to know no bounds. But can we actually learn anything useful from them? Anything that may be of relevance to ‘ordinary’ people going through marriage breakdown?

Well, sometimes we can, especially when (to the obvious delight of newspaper editors) the divorce gets ‘nasty’. Hopefully, Ms Kardashian and Mr West’s divorce, if it goes ahead, will not fall into this bracket, but sadly many celebrity divorces do, just as do many divorces involving ‘ordinary’ people.

Watching the awful spectacle of a nasty celebrity divorce play out in front of the world’s media must surely act as a warning to all: don’t let this happen to me.

And you don’t have to let it happen. You are in control. There are many things that you can do to avoid an unpleasant divorce. We have given much of this advice here previously, but it merits regular repetition.

Put the animosity of the breakup behind you – Obviously, many marriage breakdowns involve considerable animosity, and a simple mistake that parties make is to carry that animosity over to the divorce proceedings.

This can take many forms, from making irrelevant allegations against the other party, to seeking unrealistic outcomes. All of which will, of course, simply add to the stress, cost and time that the case will take to resolve.

Obviously, it is easy to say that animosity should be left behind, but hard to do it. However, all parties should try.

Concentrate on what is important – The important things in a divorce case are firstly sorting out arrangements for any dependent children and secondly sorting out the financial settlement.

But all too often parties will get side-tracked by other matters, or by matters that they think are relevant to children or finances, but actually are not. And this is where our next point comes in:

Follow advice – Take the best legal advice you can, and follow it. Your lawyer will tell you what is important or relevant, and what is not, and will ensure that you concentrate on the issues that really matter.

We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Consider mediation – Lastly, remember that court proceedings are not the only way to resolve a family dispute. Try to resolve the matter by agreement, and if that is not possible, consider using mediation as a way of resolving matters.

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The family courts are, of course, open to all, irrespective of means or social status. However, a new piece of research indicates that the users of the courts are not spread evenly across all strata of society.

The research was carried out by the Nuffield Family Justice Observatory, which aims to support better outcomes for children, by improving the use of data and research evidence in the family justice system in England and Wales.

The research examines trends in demand by parents in England for the family courts as a means of resolving disputes over arrangements for their children.

The research found that separated parents in England who depend on the family courts to resolve such disputes are likely to live in the country’s most deprived areas. It also revealed a clear north-south divide in the number of applications being made, with rates being consistently highest in the North East, North West and Yorkshire and Humber regions, and consistently lowest in London and the South East.

The figures showed that in 2019/20, 30 per cent of applicants lived in the most deprived 20 per cent of the wider population, whereas just 13 per cent lived in areas in the least deprived 20 per cent.

The research also showed that in 2019/20, application rates in the northern regions ranged between 79 and 81 per 10,000 families with dependent children, but were just 44 per 10,000 in London and 59 per 10,000 in the South East.

And despite these findings, there was also evidence of a ‘justice gap’, due to the abolition of legal aid for most private law family matters (i.e. cases not involving social services) in 2013, with a reduction in the proportion of applications brought by people living in the most deprived areas.

Commenting upon the research the President of the Family Division Sir Andrew McFarlane said: “The body of individuals who come to court with private family law problems are disproportionately represented from areas of which that are the most socially deprived… More cases come from the north of the country than the south. Should we be targeting our resources, attempt to engage with people before they come to court in a more specific way that meets the needs of those groups? I think so. Knowing something about who they are from this research is helpful.”

And the Observatory says: “It is critical that policy makers consider the role of deprivation as a factor in private law cases and its interaction with other factors such as conflict, domestic abuse and other child protection issues. This will be an important step in informing, and possibly reshaping, the response to private law need in both the court and out-of-court context.”

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We wrote here in January about a case in which the husband was seeking rent from the wife in relation to her occupation of the former matrimonial home.

As we explained then the husband was appealing to the Court of Appeal against a ruling that the wife was not liable to pay rent of £5,000 per week (a total of £600,000) to the husband in relation to the period that she occupied the property before it was sold.

The Court of Appeal has now handed down its judgment. It found in favour of the wife, and therefore dismissed the husband’s appeal.

The appeal revolved around the interpretation of a consent court order that was drawn up in 2016, setting out the terms of an agreed financial settlement between the husband and the wife.

The order provided that the wife was to receive a lump sum settlement of £11.5 million, £6.5 million straight away, with the balance due when the house was sold. However, the sale was delayed, and did not take place until 2019.

The order did not specifically state that the wife should pay rent to the husband, but the husband argued that it would be ‘absurd’ not to imply a term into the agreement requiring the wife to pay rent – the parties would surely have agreed this had they known that the sale would take so long.

The Court of Appeal disagreed. The matter turned solely upon what the consent order said. As it did not say that the wife should pay rent, she was not obliged to do so.

The case demonstrates the need to be specific when drafting court orders. Care should be given to take into account all reasonable possibilities, and to provide for them accordingly, either by agreeing the matter with the other party, or by requesting the court to include a suitable provision in any order.

It may now be that a rental clause will be sought in any similar agreement, as a matter of course.

But that obviously means that this would have to be taken into account when negotiating the amount that the occupying spouse should receive from the settlement. As Lady Justice King, giving the leading judgment of the Court of Appeal, pointed out, the only way that the wife could pay £600,000 would be from her lump sum, thereby reducing the lump sum by a “very significant sum”.

Clearly, whichever side you may be on, you will need to obtain the best possible legal advice. We can provide the advice you need, by finding you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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When deciding what, if any, financial orders to make on divorce the court is required to consider a checklist of factors. One of those factors is the contributions which each of the parties has made to the marriage.

Contributions can be financial, or they can be non-financial, such as looking after the home, or caring for the family. They can be both past contributions and future contributions.

In appropriate cases contributions can have a significant bearing upon the outcome of the case, where it would be unfair to disregard the fact that one party had made a much greater contribution than the other. This is most likely in high-money cases, as in low money cases the assets are usually required to pay for the financial needs of the parties, irrespective of who contributed what.

Contributions were a major factor in a recent Court of Appeal case. The case made the national news, as it involved a well-known BBC executive. She argued that she should have a greater share of the matrimonial assets, not just because of her substantial financial contribution towards the marriage, but also because, she claimed, her husband had made a negative financial contribution.

The case concerned her appeal against a financial award, which had already been amended in her favour following an earlier appeal.

Briefly, the circumstances of the case were that the parties were married in 1993 and have two children, twins, born in 2011. The husband is now aged 69 and the wife 57. The parties separated in 2012/2013 when the husband left the former matrimonial home. The husband has not sought to have any real contact with the children since the separation.

The wife has, for many years, worked for the BBC, and the husband has not worked for some time. The wife was earning a substantial sum, had some savings and a BBC pension worth some £2 million.

The husband, on the other hand, had a very small pension, and significant debts.

The parties also jointly owned a number of properties, with a net value of just over £2 million.

The wife argued that the husband’s contribution was “significantly negative”, and that the imbalance between the respective contributions of herself and the husband justified a significant departure from an equal division of assets. The court did not agree that the husband’s contribution was negative, but did find that it was “modest”. The wife was therefore awarded 63.5% of the non-pension assets. The pensions were shared equally.

The wife appealed. Her appeal was allowed, and her share of the assets was raised to 73%, and the husband’s share of the pensions was lowered to 34%.

The wife did not think that this went far enough and appealed again, to the Court of Appeal.

The Court of Appeal dismissed the appeal. It found, amongst other things, that the “negative contributions” argument was not actually about contributions at all, but rather about the husband’s conduct – contributions are positive, not negative. Here, the husband’s conduct was not sufficiently bad as to affect the financial settlement.

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It is sadly not uncommon for issues of alleged domestic abuse to be raised in applications relating to arrangements for children. For example, a father may apply to the court for contact, only to have the mother oppose the application on the basis of allegations that he had been ‘guilty’ of domestic abuse.

Obviously, the court must investigate the allegations, and decide whether they have a bearing on the issue of contact. But it is a fine line to tread: on the one hand, such allegations must be taken seriously, on the other hand the court must not allow false or exaggerated allegations to interfere with the child’s relationship with (in the above case) their father.

The question of how the family court should approach domestic abuse in cases involving arrangements for children is currently being considered by the Court of Appeal.

Last week the Court of Appeal heard four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse. All four mothers raised concerns about how the court below had approached those issues.

As the four cases raised similar questions, it was decided that the Court of Appeal should hear them together.

The hearing has now ended, and the Court of Appeal is expected to hand down its judgment in the next few weeks. If it considers it necessary, it may also provide further guidance upon how the courts should approach the issue of domestic abuse in cases involving children.

There is already guidance that the courts should follow. This requires the court to consider at all stages in children proceedings whether domestic abuse is an issue, and if it is to investigate the matter at the earliest opportunity, and decide what effect, if any, it should have upon arrangements for the children.

However, there are some who believe that the guidance is not being followed, or that it does not go far enough.

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Domestic abuse is obviously a very serious issue in cases relating to children, which can have a significant bearing upon the outcome of the case. Accordingly, whether you are the victim or the alleged abuser you should seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Obviously, when a married couple separate one of them is likely to remain living in the former matrimonial home, even if just for a limited period.

But this of course means that the party who left will have their interest in the property tied up, with them receiving no benefit from it.

Wouldn’t it be fair if the party still enjoying occupation of the property should pay rent to the party who left?

The answer to that is: ‘perhaps’, as a recent case, which has made headlines in the national newspapers, demonstrates.

The case concerned a couple who had lived in a five-bedroomed house in Kensington, which was owned by the husband. The marriage broke down and the husband left the property in 2014.

In 2016 the couple agreed a divorce settlement, whereby the wife was to receive a settlement of £11.5 million. She received an initial £6.5 million and was due the balance when the house was sold. However, the sale was delayed in the difficult post-Brexit referendum property market, and did not take place until 2019.

The husband demanded that the wife, who continued to occupy the house until it was sold, pay him £600,000 in back-dated rent, at the rate of £5,000 per week. The wife refused, claiming that she had the right to live in the property rent-free, until it was sold.

The husband took the matter to the court and last year the High Court ruled in favour of the wife. The husband recently appealed against that decision to the Court of Appeal, which will give its decision at a later date.

The decision of the High Court may be thought to suggest that a spouse living in the former matrimonial home cannot be forced to pay occupational rent, as it is called, to the other spouse. However, that is not so.

It is quite possible for a divorce settlement to include an occupational rent provision. The point in this case is that the settlement did not include such a provision, and the husband argued that such a provision should be inferred. Obviously, the High Court did not agree.

It is also possible in certain circumstances for a court to order a spouse to vacate the matrimonial home, and then order that the other spouse should pay them an occupational rent, although such orders are quite rare.

Obviously, anyone considering claiming occupational rent from their (former) spouse should first seek the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It goes without saying that pensions are one of the most important assets on divorce. In fact, in many cases they are one of the most valuable assets, often second only to the former matrimonial home.

It is therefore essential that anyone going through divorce fully understands the issue of pension rights, and what they are entitled to.

But sadly not everyone does understand, with the result that many do not receive their full entitlement.

This applies especially to wives, as demonstrated recently by research undertaken on behalf of the pension provider Legal & General.

The research found that wives are significantly more likely to waive their rights to their husband’s pension as part of their divorce, with 28 per cent of wives doing this, compared to 19 per cent of husbands.

Legal & General rightly say that this could have a significant long-term impact upon wives, particularly as they tend to have less personal pension wealth.

According to the most recent findings from the Office for National Statistics, men currently below the State Pension age have higher (£25,300) median active pension wealth than women (£20,000), and for those aged 65 years and over, median pension wealth for pensions in payment for men is double that for women (£223,933 for men against £112,967 for women).

Unsurprisingly, the research showed that wives are more likely to face financial struggle post-divorce (31 per cent, against 21% of husbands), and worry about the impact on their retirement (16% per cent, against 10% of husbands).

These worrying figures indicate the vital importance of obtaining the best legal and financial advice regarding the issue of pensions on divorce. Clearly wives, especially those at or approaching retirement age, should not be disadvantaged in this way.

In particular, wives need to know the true financial effect of waiving their rights to their husband’s pension, rather than seeking a share of the pension. This is not a step that should be taken without proper advice.

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All divorcing wives (and indeed husbands!) should seek expert legal and financial advice regarding pension rights. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The reader may have noticed in the news that the UK’s transition out of the European Union (‘EU’) was completed on the 31st of December (if not, where have you been?). What you may not realise, however, is that this has significant implications for any family law cases involving the EU.

Just to recap, the UK actually left the EU on the 31st of January 2020. However, there was then a transition period, during which the UK continued to abide by certain EU rules. The transition period ended on the 31st of December.

So what are the implications for family cases involving the EU? (Note that what follows relates only to cases involving the courts of England and Wales.)

There are two main sets of rules that apply to family cases in the EU. One, known as ‘Brussels II’, deals with jurisdiction and the cross-border recognition of judgments. The other, the Maintenance Regulation, sets out rules regarding maintenance cases.

Both sets of rules continued to apply to cases in England and Wales until the 31st of December, but have both now been revoked. This means that they do not apply to any cases starting after the 31st of December.

What does this actually mean? Well, there will be changes in the way it is decided what country’s courts should deal with divorce and children cases, and how court orders relating to such cases made in an EU country are recognised (or not) by the courts of this country. There will also be similar changes relating to maintenance cases, including the enforcement of maintenance orders made in another country.

The details of these changes are quite technical, and are beyond the scope of this post. The thing to take from all of this, though, is that if you are or may be concerned with a family case involving the EU then you really need to instruct an expert family lawyer, who can guide you through the changes. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Finally, it should be mentioned that the rules relating to international child abduction, and the return of abducted children, have not changed, as those rules are incorporated into our law. If your child has been abducted, or if you believe that they are at risk of being abducted, then you should instruct an expert family lawyer immediately – again, Family Law Cafe can help you find an expert.

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Image: Public Domain, via Piqsels

As we are sure all will agree, 2020 has been an awful year for everyone. Thankfully, however, there is reason to hope that 2021 will be much better.

And so it is in family law.

The pandemic and resulting social distancing rules hit the family justice system, just as it did every other aspect of society. Court buildings were closed, and judges and court staff had to rapidly adjust to the widespread use of remote hearings, via telephone or the internet.

Whilst the family courts and all involved in the family justice system rose heroically to meet this enormous challenge, inevitably the same volume of hearings could not be dealt with, leading to an increasing backlog of cases.

And justice delayed is a tragedy for all of those families affected, who cannot move on with their lives. This is especially so for the children who have to wait for major decisions to be made about their lives.

But, as with life generally, there is reason to hope that things will be better next year.

Firstly, as we reported here just last week, plans are already afoot to catch up with the backlog of cases. It is, of course, a huge task, and it may well not be completed next year, but hopefully during 2021 there will be a significant improvement in the length of time that it takes for cases to be dealt with.

Another reason for an improvement is that hopefully many court buildings will be reopening, as the danger from the pandemic subsides. This will obviously mean that it will be possible for more hearings to take place in court, rather than remotely.

And it is not just recovery from the pandemic that we can look forward to. There are other reasons to hope for a better family justice future next year.

In particular, no-fault divorce is expected to be enacted in the autumn, the biggest reform to our divorce laws for fifty years. At last we will do away with the need to hold the other spouse responsible for the marriage breakdown in order to get a divorce, and instead be able to concentrate on resolving the important issues such as child arrangements and finances, in a blameless atmosphere.

We wish all who are reading this a safe and happy Christmas, and a better future in 2021.

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The Family Justice Board, which oversees and directs the family justice system, has produced a statement that summarises the priority actions it intends to pursue in response both to immediate pressures within the family justice system, and to bring about longer-term reform.

The Board says that increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. Backlogs in private law cases (i.e. children cases not involving local authorities) have increased by 18% since before the start of the March lockdown. For those cases being heard, the average time to conclude a case is now 29 weeks.

HM Courts & Tribunals Service (‘HMCTS’) estimates that private law cases may not return to pre-Covid levels for another three years.

The Board reports that to deal with these issues HMCTS has recruited approximately 900 additional support staff, with currently around 700 further appointments sought; that approximately £3.5m additional funding has helped Cafcass, which looks after the interests of children involved in family proceedings, increase staffing levels to respond to record levels of open cases; and that a programme of recruitment to increase judicial capacity is ongoing.

The Ministry of Justice has also announced additional ‘Nightingale’ courtrooms, to bolster the national effort to tackle the impact of coronavirus on the justice system.

As to the future, the Board says that immediate recovery priorities include “changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.”

Where appropriate, couples will be encouraged to resolve disputes out of court, for example via mediation, thereby reducing the pressure on the court system.

Another way that pressure may be reduced is by more hearings being dealt with by the court ‘on the papers’, without the parties having to attend court.

Longer term reform plans include a revised system to deal with private law cases, in which issues are identified at an early stage in cases, so that the appropriate resources are allotted to each case. Where relevant, courts will also utilise a ‘problem-solving’ approach to the resolution of cases, whereby the court looks at ways of resolving problems faced by separating families, such as drug and alcohol abuse.

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We have written here previously about the divorce of Tatiana Akhmedova, former wife of Farkhad Akhmedov, the Russian oligarch and ally of Russian president Vladimir Putin.

In 2016 Ms Akhmedova was awarded a divorce settlement of £453 million by Mr Justice Haddon-Cave in the High Court. It was, and remains, the largest ever divorce award by a court in this country.

Unfortunately, however, Mr Akhmedov has failed to pay the award, and Ms Akhmedova has therefore been endeavouring to enforce payment.

The case has now returned to court as part of those efforts to enforce the award. Ms Akhmedova alleges that Mr Akhmedov transferred cash and assets to their son Temur, in order to avoid paying her the money. Mr Arkmedov and Temur deny the allegation.

The allegations have led to a breach between Ms Akhmedova and Temur, who is reported to have said that he would “never be reconciled” with his mother because “her outrageous, revengeful behaviour” has destroyed their once close relationship.

The case may obviously be interesting to the general public because of the people and amounts of money involved, but can those of ‘ordinary’ means who are going through divorce learn anything from it?

They certainly can. There are at least two lessons that apply in most financial remedy cases.

The first lesson is that getting a financial award is not necessarily the end of the matter. In fact, it may be only half of the battle. An award is of no value if it is not paid, and all too often the party ordered to make payment fails to do so, necessitating enforcement action by the party to whom the award was made.

And enforcement action can be long and expensive, as this case demonstrates. In short, anyone seeking a financial award from the court on divorce should understand that getting an award is not necessarily the end of the matter, and should be prepared to ‘be in it for the long run’.

The other lesson is that long acrimonious divorces can destroy families, with children and other family members ‘taking sides’. As we have seen, this can cause irreparable damage to family relationships.

Now, there may not have been anything that Ms Akhmedova could have done to prevent the breach that has happened between herself and her son, but parties should certainly think very hard before they involve other family members, particularly children, in the proceedings.

And protecting the wider family, and especially any children, from becoming embroiled in an acrimonious dispute is just one of the many reasons why parties to divorce should make every reasonable effort to resolve the matter by agreement.

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If you need to sort out financial arrangements on divorce then you should seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It goes without saying that family court proceedings can be expensive. Obviously, this can put a less well-off party at a serious disadvantage, with their opponent being able to afford to pay for legal representation, while they cannot.

Legal aid is not available for most types of family law cases, and many people have no other way of funding their legal expenses. What can they do to put themselves on an equal footing?

There may be another source of funding, and it comes from an unexpected direction: the other party. It is possible to ask the court to order the other party to pay a lump sum to cover your legal costs of the proceedings.

We have seen this happen in two recent cases.

The first case concerned a husband’s application for a financial remedies order on divorce. The wife was considerably better off than the husband, who could not afford legal representation. He therefore applied to the court for a legal services payment order, requiring the wife to pay a lump sum to cover his legal expenses. The court made an order that the wife pay the sum of £95,000, to include £58,000 costs already incurred by the husband.

The second case concerned a mother’s application for financial provision for her daughter from the child’s father. The father was considerably better off than the mother, and could not afford legal representation. She therefore applied for a legal costs funding order, requiring the father to pay a lump sum to cover her legal expenses. The court made an order that the father pay the sum of £60,000.

But a word of caution: these costs orders are quite unusual, and will only be made in certain circumstances. In particular, the party applying for the order must satisfy the court that they have no other means of financing the case, and that the order will not cause the paying party undue hardship.

The party applying for the order must also bear in mind that at the end of the case the court may require them to repay such part of the payment as it considers appropriate.

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If you would like to know whether you could apply for a legal costs funding order we can find an expert to advise you, working with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Office for National Statistics (‘ONS’) has published its latest annual statistics for divorces in England and Wales, for 2019.

The headline finding from the statistics is that the number of divorces increased by a huge 18% from the previous year. There were 107,599 divorces of opposite-sex couples in 2019, increasing from 90,871 in 2018.

The ONS does warn, however, that the scale of this increase partly reflects that divorce centres were processing a backlog of casework in 2018, which is likely to have translated into a higher number of completed divorces in 2019.

Nevertheless, the rise in the number of divorces may be significant, resulting in the highest number of opposite-sex divorces recorded since 2014, when 111,169 divorces were granted in England and Wales. It is also the largest annual percentage increase in the number of divorces since 1972, following the introduction of the Divorce Reform Act 1969, which made it easier for couples to divorce upon separation.

The statistics also show that there were 822 divorces among same-sex couples in 2019, nearly twice the number in 2018. This perhaps reflects that more time has passed since same-sex marriage was legalised in 2014.

Other findings from the statistics were that unreasonable behaviour was once again the most common reason for opposite-sex couples divorcing in 2019, with 49% of wives and 35% of husbands petitioning on these grounds (it was also the most common reason for same-sex couples divorcing, accounting for 63% of divorces among women and 70% among men), and that in 2019 the average (median) duration of marriage at the time of divorce was 12.3 years for opposite-sex couples, a small decrease from 12.5 years in the previous year.

Kanak Ghosh, of the Vital Statistics Outputs Branch at the ONS commented:

“Same-sex couples have been able to marry in England and Wales from March 2014. Since then, we have seen the number of divorces of same-sex couples increase each year from very small numbers in 2015 when the first divorces took place, to more than 800 in 2019, reflecting the increasing size of the same-sex married population in England and Wales.

“While we see that 56% of same-sex marriages were among females, nearly three-quarters of same-sex divorces in 2019 were to female couples. Unreasonable behaviour, which includes adultery, was the most common ground for divorce among same-sex couples this year as almost two-thirds of couples divorced for this reason.”

You can find the ONS statistical bulletin here.

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A multi-disciplinary group of family law experts has recommended that in any dispute between parents over arrangements for children the rights of the children be put first, and that the court should be the last resort in resolving the dispute.

The Family Solutions Group was formed earlier this year, with a brief to give fresh and focused attention to improving the experiences of, and opportunities for, separating families away from the Family Court. The Group’s report What about me?: Reframing Support for Families following Parental Separation, has just been published.

The report observes that the current processes for resolving disputes over arrangements for children (in or out of court) tend to operate largely for parents. The group proposes the creation of a framework of directly accessible community-based services for children and young people whose parents separate, offering them information, consultation, support and representation.

The group also recommends that there be a presumption that all children and young people aged 10 and above be heard in all issue-resolution processes outside of the courtroom.

As to court proceedings, whilst the group acknowledges that the need for swift and unimpeded access to the Family Court is rightly recognised as vital for some families, particularly where there are safety concerns, the group nonetheless reframes how we should consider the arrangements for issue resolution in and out of the court system. Significantly, it encourages all involved in such disputes to recognise the fact that many parental disagreements about children following separation are not legal disputes, and that a legal response may indeed be unhelpful for many families.

Commenting on the report the President of the Family Division Sir Andrew McFarlane said:

“It is thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting problems out themselves. This figure is both startling and worrying. Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child, rather than come to a court of law and a judge to resolve the issues.

“The number of these private law applications continues to increase, and the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue.”

You can read the full report here.

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A remarkable case was published last month in which a 41 year-old man sought to make a claim for financial support from his parents. The claim failed, but the case raises the question: when can an adult child make a financial claim against their parents?

Normally of course financial claims for children are made on their behalf by a parent, whilst the child is still a minor, i.e. under 18. However, it is possible for an adult child to make a financial claim against their parents, albeit in very limited circumstances.

Note that this post does not refer to claims by an adult child against the estate of a deceased parent – such claims are not unusual. And nor does it refer to civil money claims by a child against a parent, such as debt claims.

So what ‘family law’ claims can a child make against their parent(s)?

Since 1993 child maintenance claims have of course usually been made under the Child Support Act. However, the Act only provides for child support maintenance claims to be made by a parent or carer of the child – it does not include provision for adult children to claim maintenance for themselves.

There are, however, ways in which an adult child can make financial claims against their parents. In summary, there are provisions under which they can claim maintenance or even a lump sum from either or both of their parents.

But there are limitations to such claims, depending upon what type of claim is being made. We will not go into detail, but two particular limitations apply in all cases: a court can only make an order against a parent if:

1. The child is, will be or (if an order were made) would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while they are in gainful employment; or

2. There are special circumstances which justify the making of an order. ‘Special circumstances’ is not defined, but it is generally thought to refer in particular to cases in which the adult child suffers from a disability. There may, of course, be other types of special circumstance, but it is likely to be very rare for a claim to be allowed on this basis.

In short, the law generally considers that a parent’s financial obligations towards their child cease when the child reaches the age of 18 or, if the child is then still financially dependent upon them, when the child is no longer dependent. The child will usually be no longer dependent when they finish education, unless they suffer from a disability, in which case the dependency could be for life.

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If you are, or may be, involved in making an application for maintenance or financial provision for a child then you should seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Remote hearings, via telephone or video link, have become the norm for family courts, since the introduction of social distancing restrictions in response to the Covid-19 pandemic. Obviously, this has been a huge new departure for the family justice system, and it is essential to ensure that the hearings are delivering effective justice, and working as well as possible.

Back in May we reported here upon an early inquiry into the effectiveness of remote family court hearings, which was commissioned by the President of the Family Division and carried out in April by the Nuffield Family Justice Observatory.

In September the Observatory carried out a follow-up enquiry into remote hearings, in which it surveyed some 1,300 people with an interest in the family justice system, including parents, family members and professionals.

The survey found that most professionals (86%) felt that things were working more smoothly than in April, and some even reported benefits to working remotely, such as not having to travel to court and not having to have hostile parties face each other in court.

However, they shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely, although more than three quarters (78%) felt that most or all of the time fairness and justice had been achieved in the cases they were involved with.

On the other hand, a majority of parents and relatives (88%) reported having concerns about the way their case was dealt with, and two thirds (66%) felt that their case had not been dealt with well. Two in five (40%) said they had not understood what had happened during the hearing.

There was agreement between professionals and parents that family justice is not simply administrative adjudication but is dealing with personal and often painful matters which require an empathetic and humane approach, and both expressed concern about the difficulty of creating an empathetic and supportive environment when hearings are held remotely.

Lisa Harker, director of the Nuffield Family Justice Observatory, commented:

“We cannot put the lives of thousands of children and families on hold while we hope for face-to-face practice to resume, and it’s clear that judges, barristers and other professionals have put in enormous personal effort to keep the system moving during very challenging times.

“But equally life-changing decisions must be reached fairly for all involved. The family court is often dealing with incredibly vulnerable people, from victims of domestic abuse to mums being separated from their babies, and they must be supported to fully participate. Our consultation showed great concern among professionals for the experience of traumatised parents facing the system. It also highlighted that many of the issues could be solved with relatively simple measures.”

It is now clear that social distancing restrictions will be with us, in one form or another, for many months to come. Remote hearings will therefore remain the norm for the foreseeable future, and it is for everyone involved in the family justice system to ensure that they work as well as possible.

If you have concerns about how your case will be dealt with, then Family Law Café can put you in touch with an expert family lawyer who can advise you, and work with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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Last week we looked at the procedure to be followed to get a financial remedy order, setting out the financial settlement on divorce. But getting the order is not necessarily the end of the matter.

The order must still be complied with. What if the other party does not comply with it? What can you do? After all, an order that cannot be enforced is not worth the paper it’s written on.

Well, there are various different ways of enforcing financial orders. Which one is appropriate will depend upon the particular situation.

Enforcing Maintenance Orders

Because of their continuing nature, maintenance orders present special problems when it comes to enforcement. Normally, the amount that the court will enforce is fixed at the date of enforcement, meaning any future non-payment will have to be enforced separately.

For this reason, the most appropriate method of enforcing a maintenance order is by applying for an attachment of earnings order, whereby the debtor’s employer is required to deduct the maintenance and a sum towards any arrears from the debtor’s salary, and pay that to the court, for onward payment to the creditor.

Obviously, attachment of earnings orders can only be made where the debtor is employed. If they are not, then another method of enforcement will have to be used – see below.

Enforcing Orders for Transfer or Sale of Property

It is not uncommon for a party to refuse to obey an order to transfer a property, usually the former matrimonial home, to the other party. In this case, or where the transferring party cannot be found, application may be made for an order that the conveyance or transfer be executed by a district judge, instead of the transferring party.

Where there is an order for sale of property, and one party refuses to cooperate with the sale by refusing to give up possession of the property, then an application may be made for an order that that party deliver up possession to the purchaser or to whomever the court directs, to allow the sale to proceed.

Other Forms of Enforcement

There are a number of other methods of enforcing a financial remedy order. Here are some of the most commonly used:

Third party debt order – An order directing a third party who owes money to the debtor (e.g. the debtor’s bank) to pay the debt directly to the creditor.

Charging order – An order of the court placing a charge on the debtor’s property, to the value of the debt. The debt is therefore secured, and can subsequently be recovered by seeking an order for the sale of the property.

Execution against goods – Requiring the court bailiff to attend the debtor’s premises and seize goods to the value of the sum due. The goods will be sold and the proceeds used to pay the debt.

Judgment summons – This is a procedure whereby the debtor is required to attend court, where he will be examined under oath as to his means and will have to explain why he should not be committed to prison for failure to comply with the order. In practice, any committal order is likely to be suspended on condition that the debtor pay the amount due by a specified date, or by specified instalments.

And finally, what if you don’t know what method of enforcement to use? Well, then you can make a general enforcement application, seeking ‘such method of enforcement as the court may consider appropriate’.

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If you have a financial remedy order that you need to enforce then we would strongly recommend that you obtain the advice of an expert family lawyer. We find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week we looked at the principles that the courts use to decide financial remedy applications on divorce. This week we will look at the procedure on such applications including, in particular, the Form E financial statement.

To keep things simple we will divide the procedure into five stages, although what actually happens in any particular case may differ.

Stage 1 – The Mediation Information and Assessment Meeting (‘MIAM’).

Before issuing the application you may have to attend a Mediation Information and Assessment Meeting. As that name suggests, the primary purpose of the meeting is to assess whether the case is suitable for mediation. Some people are exempt from the requirement to attend a MIAM.

Stage 2 – The application (‘Form A’).

If the case does not go to mediation then the application will be made, by completing a ‘Form A’ and filing it with the court, with the requisite court fee. The court will then fix a date for the First Directions Appointment (‘FDA’ – see below), and timetable certain actions that should be taken by the parties. In particular, not less than 35 days before the FDA each party must file with the court and serve upon the other party a Form E financial statement, more of which in a moment.

Stage 3 – The First Directions Appointment (‘FDA’).

Both parties will have to attend the FDA. The main purpose of the FDA is to ascertain what the issues between the parties are, and to decide how the case should proceed. The court will then give directions as to what should happen next, and when.

Stage 4 – The Financial Dispute Resolution appointment (‘FDR’).

The next stage in the proceedings is usually a Financial Dispute Resolution appointment, or ‘FDR’. At the FDR the parties will be expected to use their best endeavours to reach agreement on the issues between them, with the assistance of the judge. If agreement cannot be reached, then the court will fix a date for the final hearing.

Stage 5 – The final hearing.

A full hearing of the case, at the end of which the judge will make their decision, and a final order will be made.

Form E

The Form E financial statement is the most important document each party will have to prepare in the course of the proceedings. In it, they must disclose full details of their means, including their income, their savings and capital assets, their pensions and any debts they have. In addition, certain specified documentary evidence, such as bank statements, must be attached to the form. You can see a Form E here.

Each party has a duty to fully and truthfully complete the Form E, as without full and accurate information about the means of both parties, the court cannot make a decision. Obviously, the other party does not have to accept the contents of the form at face value. If they believe that full disclosure has not been made then they can request further information or documentation in a questionnaire, which they will prepare before the FDA. The court can order the party to whom the questionnaire is directed to provide replies.

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If you are or may be involved in financial remedy proceedings then we would strongly recommend that you obtain the advice of an expert family lawyer. We find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week we looked at the range of orders that the court can make when deciding a financial remedy claim on divorce. But how does the court decide what orders to make?

If all else is equal…

The starting-point in all cases is what is known as the ‘sharing principle’.

The sharing principle states that marriage is a partnership and that when the marriage ends each party is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary.

The sharing principle will be the determining factor in many cases.

The next question, of course, is what is a ‘good reason to the contrary’?

Needs must

The most common reason is the needs of the parties, especially in cases where resources are limited.

The court will try to ensure that the basic needs of both parties (in particular income and housing needs) are met, and if one party has greater financial needs than the other then it may be appropriate for them to have a greater than half share of the assets.

A typical example of this is where dependent children live with just one of the parties. That party will obviously need to have suitable accommodation for the children, and their housing needs will therefore be greater than the housing needs of the other party.

Needs will also of course have a bearing upon whether a maintenance order is appropriate, and what pension sharing order, if any, should be made.

Note that needs are ‘generously interpreted’, meaning that they are calculated by reference to the resources available, and the standard of living enjoyed by the parties during the marriage – the needs of a party are not always the same in every case.

Anything else?

Well, yes. In fact, potentially any relevant circumstance of the case could have a bearing upon the court’s decision.

That’s not particularly helpful, so here are a few examples:

□ The income, earning capacity, property and other financial resources of the parties – obviously!

□ The ages of the parties – could be relevant, especially if one or both of the parties are approaching pension age.

□ The duration of the marriage – for example, after a very short marriage it may simply be appropriate to return the parties to the same financial position they were in before the marriage.

□ Each party’s contributions – where, for example, one party brought significantly more wealth into the marriage, that they had accumulated prior to the marriage.

□ The conduct of the parties – but before you start counting how much you think you should get, bear in mind that only the most serious conduct, such as threats to kill, is likely to have any bearing upon the financial settlement.

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Once again, this is just a very brief introduction to a potentially very complex subject. If you are or may be involved in financial remedy proceedings then we would strongly recommend that you first obtain the advice of an expert family lawyer. We find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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For most people going through divorce the biggest issue is the financial settlement. Sorting out finances on divorce can be a complex and difficult matter, so it’s important to know what the court can and cannot do.

The orders that the court can make are called ‘financial remedy orders’. The term can refer to a specific type of order (see below), or the final order, setting out the full financial settlement, which will usually include several of the specific orders mentioned below.

Note the reference to a ‘final order’. That order is meant to bring matters to a conclusion. It is not therefore usually possible to seek a further financial order once a final order has been made.

It should also be noted that a final order should normally be obtained in all cases, even where matters are agreed (in which case it is called a ‘consent order’), or where neither party is making a financial claim against the other. The reason for this is to ensure that any agreement is enforceable, and that neither party can make any further financial claims in the future.

The court can essentially only make those orders allowed by statute. These include:

Maintenance orders – These are orders requiring one party to make regular (usually monthly) payments to the other. The order will either last indefinitely (until the death of either party, the remarriage of the recipient, or further court order), or for a limited, specified, time. The court can also make a temporary maintenance order, to last until a final order is made – this is usually called ‘maintenance pending suit’.

Lump sum orders – An order requiring one party to pay a lump sum of money to the other party. The order will state by when the money should be paid, and this can include payment by instalments.

Property adjustment orders – These are orders adjusting the ownership of property, for example transferring the ownership of property from one party to the other, or adjusting ownership of jointly owned property from 50:50 to, say, 75:25.

Pension orders – These are most commonly ‘pension sharing orders’, which transfer all or part of one party’s pension fund into a pension fund owned by the other party. Note that this does not mean that the other party will receive the money transferred – it goes straight into their pension, and when they can receive any benefit depends upon the terms of their pension.

These are some of the most common types of financial remedy orders. Sometimes, however, an issue needs to be included in a settlement that cannot be ordered by the court. An example of this might be one party paying for medical insurance for the other party. In such a situation the court can accept an undertaking from the paying party, and the undertaking can be enforced in a similar way to an order.

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Obviously, this is just a very brief introduction to a potentially very complex subject. Even if you have agreed matters with your spouse then an order will need to be drafted, and this is really a job for a lawyer.

Accordingly, if you wish to obtain a financial remedy order then we would strongly recommend that you first obtain the advice of an expert family lawyer. We find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A judgment handed down last Friday contains an important lesson for all parents involved in disputes over arrangements for their children.

Such disputes can throw up many issues. Some of those issues will of course be of great importance, requiring the intervention of the court. But many of the issues are actually comparatively trivial, although it may not seem that way to the parents.

In the judgment the judge warned parents against clogging up the courts with unnecessary children applications.

He gave examples of the sort of applications he was referring to (all of which arose before him in the previous month):

“i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction? iii) How should contact be arranged to take place on a Sunday afternoon?”

Other judges, he said, have given him many other, similar examples.

He concluded:

“…the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.”

It is a message that should be heeded by all parents involved in disputes over arrangements for their children: before you rush off to court, stop and think whether you really need to. Can you resolve the matter without going to court, possibly via mediation?

And remember the warning: the courts are very busy – if you waste court time then you could be criticised by the judge, and even sanctioned, for example by being ordered to pay the other party’s costs.

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If you are contemplating making an application to the court in relation to a dispute over arrangements for children then we would strongly recommend that you first seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Image: J Taylor / M4 Bus Lane from Osterley Lane bridge, licensed under CC BY 2.0.

When parents separate the most common scenario is that their children will spend most of their time living with just one of the parents, either by agreement between the parents, or in accordance with a child arrangements order.

Under what circumstances, though, will the court alter this fixed arrangement, ordering that the child should spend most of its time living with the other parent (what used to be known as a ‘transfer of residence’)?

Perhaps the first thing to say is that if the change in arrangements is agreed between the parents, then the court will almost certainly go along with it, although in such circumstances a court order may not actually be necessary.

All about welfare

Otherwise, if the issue of a possible change in living arrangements is contested by the parents then, as always, what the court decides to do will be dictated by what is best for the welfare of the child. The court will decide this by reference to the ‘welfare checklist’, as we explained in this post.

So if the child’s welfare dictates that there should be a change in the child’s living arrangements, then that is what the court will do.

For example, one of the factors on the welfare checklist that the court should take into account is the child’s ascertainable wishes, considered in the light of the child’s age and understanding. Thus if, for example, an older child expresses a clear wish to live with the other parents, and if the other parent has suitable accommodation, then it is likely that the court will order a change of living arrangements.

But perhaps the primary issue that could lead to a change of living arrangements is another factor in the checklist: any harm which the child has suffered or is at risk of suffering. If the court finds, for example, that the child has suffered harm whilst living with one parent then it may order that the child should live with the other parent.

One of the most notable illustrations of this is when the court makes a finding that the parent with whom the child is living has alienated the child from the other parent. In such a case the court may, as a last resort, order that the child should be removed from the alienating parent, and move to live with the other parent.

Of course, whenever it is considering the possibility of ordering that the child should live with the other parent then the court must also consider another of the checklist factors: the likely effect on the child of any change in his or her circumstances. If the court finds that the change could be detrimental to the child, then it will only order the change if that detriment is outweighed by other factors.

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If you are considering a possible change of living arrangements for a child then we would strongly recommend that you first seek expert legal advice. Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Jelleke Vanooteghem on Unsplash

It is of course natural that when parents separate they will both want to spend as much time as possible with their children. This can often lead to situations in which one parent believes that the children should spend most of their time with them, and the other parent insists that the children should spend equal time with each parent.

So when are the courts prepared to make shared care orders?

Before we answer that, a note on terminology.

A shared care order is actually a type of child arrangements order. A child arrangements order specifies “with whom a child is to live, spend time or otherwise have contact, and … when a child is to live, spend time or otherwise have contact with any person”. Technically, therefore, when we talk of shared care orders, we are actually referring to shared ‘live with’ orders.

Note that this does not necessarily mean equal sharing time between each parent. It just means that the child spends substantial time living with each parent.

Note also that an order that a shared care order is not required to acquire equal status with the other parent, as some parents assume. A parent with a ‘lives with’ order and a parent with a ‘spends time with’ order (i.e. a contact order) have equal parental responsibility, assuming that they already both have parental responsibility, as is usually the case.

Shared parenting presumption

What the law does however state is that when a court considers arrangements for a child it should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare. This is known as the ‘shared parenting presumption’.

Once again, however, the presumption does not mean that the child should spend equal amounts of time with each parent, just that each parent should play as full a role in the child’s life as the court thinks appropriate.

Considerations for the court

Obviously, there are practical matters to consider before making a shared care order. Both parents must have suitable accommodation, in particular sleeping accommodation, and must not live too far from the child’s school.

Otherwise, it really just boils down to what is best for the welfare of the child, as in every case concerning child arrangements. In deciding what is best for the child’s welfare the court will consider the ‘welfare checklist’, as explained in this post.

It used to be considered that shared care orders were only appropriate if the parents remained on good terms with one another, as shared care can require greater cooperation between the parents. However, it is no longer considered that this should be a requirement for shared care, and such orders are now made even in cases where the parents no longer have a good relationship with one another provided, of course, that the court thinks that this would be best for the child.

The last thing to say is that there is nothing special about equal shared care, whereby the child spends exactly half of its time with each parent. The court will not be specifically seeking to achieve this where it thinks shared care is appropriate and, indeed, equal time orders are comparatively rare. As always, the exact time the child should spend living with each parent is determined by reference to what is best for the child’s welfare.

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If you are considering seeking a shared care order then we would recommend that you seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Max Goncharov on Unsplash

If there’s one truism about the law, it’s that a court order is worthless if it can’t be enforced.

Getting a contact order (that is, a child arrangements order providing for you to have contact with your child) may involve a considerable expenditure of time, stress, and expense. But getting the order may not be the end of the story. You must also be prepared to enforce the order, if the other parent does not comply with it.

So how do you go about enforcing a contact order?

Well, there are a number of options, but the system can be quite confusing, as the court will not necessarily take the enforcement option you request. We will therefore keep things simple, by setting out the main options that the court has on any application to enforce.

The first thing to say is that before it takes any enforcement action the court will take a number of steps, including ascertaining the facts, considering the reasons for any non-compliance with the contact order, and considering the welfare checklist, as explained in this post.

The things that the court can do when it hears an enforcement application include the following:

1. Refer the parents to a Separated Parents Information Programme (‘SPIP’). A SPIP is a course which helps the parents understand how to put their children first while they are separating, including helping parents learn the fundamental principles of how to manage conflict and difficulties.

2. Vary the child arrangements order, which could include a more defined order and/or reconsidering the contact provision or the living arrangements of the child.

3. Make a contact enforcement order. This is an order imposing an ‘unpaid work requirement’ on the person in breach of the contact order. The enforcement order will mean the person has to do between 40 and 200 hours of unpaid work, monitored by the probation service.

4. Make an order for compensation for financial loss, where the person seeking to enforce the order has suffered financial loss as a result of the failure to comply with the contact order, for example, where the cost of a holiday has been lost as a result of a contact order being broken.

5. Fine the person in breach of the contact order.

6. Lastly, the court can make an order committing the person in breach of the order to prison, although this is unusual, and such an order would normally only be made as a last resort, following several blatant breaches of the order

If you are considering applying to a court to enforce a contact order then we can put you in touch with an expert family lawyer to assist you in making the application. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by David Straight on Unsplash

There are many misconceptions about what is relevant when the court considers what order or orders to make in relation to a child, and having such a misconception can obviously be damaging to a parent’s case.

It is therefore important to know what factors the court takes into account before making a decision. The factors are set out in what is known as the ‘Welfare Checklist’.

The paramount consideration when a court determines any question with respect to the upbringing of a child is the child’s welfare, and in deciding how the child’s welfare is best served the court will have regard to all of the circumstances of the case, in particular the factors set out in the Checklist.

Those factors are as follows:

1. The ascertainable wishes and feelings of the child concerned. These are considered in the light of the child’s age and understanding, thus they are unlikely to be given much weight by the court if the child is very young. However, as the child get older they will be given greater weight, so that with a much older child their wishes could even be decisive.

2. The child’s physical, emotional and educational needs. This really refers to any special needs that the child may have, rather than their general needs. Examples might be special health needs, or special educational needs.

3. The likely effect on the child of any change in his or her circumstances. This can be an important factor if the court is considering the possibility of the child moving to live with the other parent, or re-introducing contact between the child and a parent, after a long period when there was no contact.

4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant. Note, however, that there is no rule that specifies that a child of a certain age or sex should live with one particular parent.

5. Any harm which the child has suffered or is at risk of suffering – clearly, the court will take into account any harm that a child has suffered at the hands of one parent, or the risk of any such harm occurring in future. Thus, for example, the court might order that any contact between the child and the parent be supervised initially, to minimise the risk of harm.

6. How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs. This is only rarely likely to be relevant, and certainly does not imply any bias towards either mothers or father, but there may be cases in which there may be questions over the capability of a parent.

7. Lastly, the court must consider the range of different types of order available to the court in the proceedings in question. We will not go through the full range of available orders here – suffice to say that the court can make any order that it considers to be appropriate. In particular, it should be noted that the court is not limited to making just the types of order(s) that the parents have applied for.

In addition to the above, the court should also presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare.

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If you are, or may be, involved in a children case then we would recommend that you seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Juliane Liebermann on Unsplash

The legal world is changing, perhaps more quickly than ever in history. Ways of doing things, written in stone for decades, if not centuries, are being swept away.

The Covid 19 pandemic may have accelerated them, but these changes have been underway for some time, and are surely inevitable.

We are talking about the move towards conducting family law work online. We are seeing this in particular with remote court hearings due to the pandemic, but before the pandemic there was already a move towards making applications to the court online.

Until recently if you wanted to make an application to the court you had to do so on paper. You then either had to go to the court to issue it, or you had to post it to the court. All of which involved unnecessary work and delay – for example, if the court was not happy with the paperwork, it would post it back to the sender, the sender would have to amend it, and then return it to the court.

Now the age of paper applications is coming to an end. One of the latest manifestations of this is the online child arrangements application.

Back in February the Ministry of Justice and HM Courts & Tribunals Service (‘HMCTS’) launched a new online service enabling parents and their legal representatives to apply to the court digitally to make child arrangements.

The new service is more convenient, faster and avoids many of the errors or omissions that paper applications used to contain, by picking them up during the online process. When it was launched Richard Goodman, HMCTS Change Director commented:

“For parents, it can often be a stressful, challenging time when trying to arrange visits to see children and this system is designed to make that process as straightforward as possible.

“As the court reform programme progresses, we will continue introduce services that make the justice system easier to navigate and more efficient for all those that use it.”

It is already possible to issue divorce proceedings online, and soon almost all family law business will be conducted online (although many hearings will take place in court buildings again, once the pandemic is over).

All of this of course fits in perfectly with Family Law Cafés vision of how family business should be conducted in the twenty-first century. There is no reason now why family law litigants should be required to physically contact their lawyers every time they need information or advice regarding their case, or to rely on the postal service when they wish to take a step in the proceedings.

The modern way to conduct a family law case is online, from wherever you are, whenever you wish.

If you require advice regarding sorting out arrangements for children, Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Austin Distel on Unsplash

Pensions can be one of the most important assets on divorce, often only second in value to the former matrimonial home. It is therefore essential to know how the courts will deal with them, and two recent cases provide a useful demonstration.

The most important type of order available to the court in relation to pensions is the pension sharing order. Under such an order, a proportion of the pension fund belonging to one spouse is immediately transferred into a pension fund in the name of the other spouse.

The pension sharing order enables the court to deal with the common scenario in which one spouse has a significant pension provision, and the other spouse has little or none. Thus, for example, if all of the pension was accumulated during the marriage, it may be appropriate for there to be a pension sharing order transferring half of the pension fund to the other spouse, thus ‘equalising’ their pensions.

But equalising pensions is not always appropriate.

In the first of the two cases we want to look at the wife was awarded just 25.8% of the husband’s pension, following a marriage that lasted some 12 years. The reason for the wife receiving less than half was that a significant part of the husband’s pension was earned before the marriage.

The wife appealed, arguing essentially that the order had not taken into account her needs, which should take precedence over the fact that the husband accumulated much of the pension prior to the marriage.

The appeal judge accepted that needs could take precedence, but found that the decision was fair, having regard to the fact that the wife had received a higher proportion of the capital assets.

Needs were also a factor in the other case. Here, a husband’s claim for a share of the wife’s pension was struck out by the court, in part because the wife had accumulated a large part of her pension after the parties separated.

The husband appealed. The appeal judge found that the court had failed to take into account the husband’s needs (the husband was aged 59, in poor health and in receipt of benefits). Accordingly, the husband’s appeal was allowed.

Pensions can be a very complex issue on divorce, requiring the help of both legal and financial experts. Family Law Café can put you in touch with the expert assistance you need – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Aaron Burden on Unsplash

Parental relationship breakdown can obviously lead to problems in relation to contact between children and (one of their) parents. But it can also create a rift between the children and their grandparents, particularly on the side of the parent with whom the children are not living.

What rights do grandparents have in such a situation?

Well, firstly it is not appropriate to talk of ‘rights’. A grandparent (and even a parent) does not have ‘rights’ in relation to the (grand)child. It is all a question of what is best for the children, as we will explain in a moment.

But grandparents are not in the same position as parents. Before they can apply to a court for an order allowing them to have contact with their grandchildren, they must first obtain the leave (or permission) of the court to make the application.

When deciding whether to grant leave the court must have regard in particular to two matters:

1. The grandparent’s connection with the child. This means that a grandparent who has had a close relationship with the child is more likely to be granted leave; and

2. Any risk there might be of the proposed application disrupting the child’s life to such an extent that the child would be harmed by it. This could, for example, mean that a serious rift between the grandparent and (one of) the parents could be a factor, but it really boils down to the issue of the child’s welfare.

These matters may give the impression that many grandparents will be refused leave to apply for contact with their grandchildren. However, that is not the case. It is actually quite rare for a leave application to be refused.

Once leave has been obtained the grandparent can proceed with their application for a contact order. As indicated above, the court will decide what contact to order, if any, by reference to what is best for the welfare of the child.

In most cases the court will consider that the welfare of the child will be best served by the child continuing to have a relationship with their grandparents. Accordingly, most applications by grandparents are successful, although obviously one would expect the amount of contact ordered to be less, or less frequent, than the contact that might be ordered in favour of a parent.

If you are a grandparent seeking contact with a grandchild then we can put you in touch with an expert family lawyer to assist you in making an application. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Johnny Cohen on Unsplash

The Family Court has a range of orders available to it when deciding what arrangements should be made for a child. Most of these orders are fairly self-explanatory, but there is one in particular that gives rise to considerable confusion: the special guardianship order.

So what exactly is a special guardianship order, and what does it do?

Special guardianship orders are for situations when it is not possible or appropriate for the child to reside with its parents, or one of them. They are therefore made in favour of other relatives, or people who are not related to the child at all.

In such situations the court has a number of options: for example, it could make an adoption order, or a child arrangements order, regulating arrangements relating to with whom the child should live.

But sometimes something else is appropriate. An adoption order may be too final, shutting the parents out of the child’s life. And a child arrangements order may not give the person with whom the child is living sufficient ‘independence’ from the parents, who would still have a say in all decisions relating to the child.

Note the reference to with whom the child is living. Special guardianship orders are often made in favour of someone with whom the child is already living, such as a relative or foster carer. They can also be made in favour of others, including any guardian of the child, anyone who has the consent of all those with parental responsibility for the child, and anyone who has been given permission by the court to apply for a special guardianship order.

So what is the effect of a special guardianship order?

Firstly, the child will live permanently with the special guardian, although they will normally retain a relationship with their birth family, including having regular contact with their parents.

Secondly, the special guardian will have parental responsibility for the child. The child’s parents will continue to have parental responsibility, but it will be limited, meaning that the special guardian will be able to take many decisions relating to the child, without needing the approval of the parents (unlike the situation where a child arrangements order is made).

Thirdly, the special guardian will have an additional ‘protection’ in that whereas if a child arrangements order were made then the child’s parents could apply as of right to vary or discharge that order, when a special guardianship order is made the parent must first obtain the leave of the court before making any such application.

In short, an order gives the special guardian a status in relation to the child that is greater than a child arrangements order, without severing the child’s links to the parents, as an adoption order would do.

Special guardianship orders usually last until the child is 18 years old.

Obviously, this is just a very brief overview of the law on special guardianship. If you are considering applying for a special guardianship order then you should seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Steve Shreve on Unsplash

As any Family Law Café customer will know, technology can be a blessing, reducing the stress involved in family disputes, by ensuring that you can request answers to questions and have access to documents, whenever you wish, and wherever you are.

But technology can also be a curse if its user is not careful, as a High Court judge recently discovered.

Mrs Justice Judd was dealing with a very sad child care case in which the child’s brother had died after suffering a catastrophic head injury. A fact-finding hearing was fixed, for the court to decide who, if anyone, was responsible for the injury.

The hearing was a ‘hybrid’ one, as are many hearings during the pandemic, taking place with some parties in court and other parties taking part remotely, via video link.

The child’s mother appeared in court. In the course of her evidence she complained of feeling unwell, on one day with back pain and blurred vision, and on the next day she said she had developed a cough. The hearing was stopped, and the mother allowed to go home.

The judge then returned to her room, and her laptop was brought to her. The judge then had a conversation with her clerk on the telephone, in which she made pejorative remarks about the mother, suggesting she was feigning illness to avoid answering difficult questions.

Unfortunately, the conversation was heard by the parties who had been taking part in the hearing remotely, as the video link on the laptop was still open.

The mother asked Mrs Justice Judd to recuse (i.e. excuse) herself from the case on the basis of bias. However, Mrs Justice Judd refused. The mother appealed against that decision.

The Court of Appeal allowed the mother’s appeal, finding that Mrs Justice Judd’s remarks about the mother would lead a fair minded observer to conclude that there was a real possibility that she was biased.

Accordingly, the case was remitted back for rehearing, before a different judge.

The case is obviously an example of when a judge should recuse themselves for possible bias, but it also has a moral for all of us: when using technology, make sure that anything that is private or confidential remains just that. Whatever technology you use for such matters should be kept secure, and if necessary password-protected. And remember to log out of secure sites like ours when you have finished using them!

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Photo by Kari Shea on Unsplash

Last week we looked at what constitutes a short marriage, and how that may have a bearing upon the division of assets on divorce. But that begs the question: what is a long marriage, and what difference, if any, does that make to the financial settlement?

As we explained last week, one of the factors that the court must take into account when considering what is an appropriate financial settlement on divorce is the duration of the marriage. Of course, that may not just mean that the fact that the marriage was of a short duration may affect the settlement – it can also mean that the fact that it was a long marriage can have a bearing upon what the settlement should be.

So what is a ‘long marriage’?

Again, there is no definition contained in the statute. We therefore have to look at what judges have decided over the years. And those decisions suggest that a ‘long marriage’ is not actually that long, at least by the sort of measure that most people might use.

Whilst most people might not consider a marriage to be long until it has at least reached its silver anniversary, the courts will generally consider a marriage of fifteen years or more to be long, and sometimes even a marriage shorter than that might qualify.

So what difference does it make to the settlement if the marriage is long?

Well, whilst a short marriage may have a bearing, as we explained last week, the mere fact that a marriage may be defined as ‘long’ does not of itself necessarily have a bearing. The ‘sharing principle’, whereby assets will generally be divided equally unless there is a good reason to depart from equality, applies to every marriage that was not a short one, irrespective of how long it was.

But the length of the marriage may have a bearing in other ways.

For example, if one party gave up a career to bring up the family then the disadvantage that they may have suffered in the employment marketplace will be greater the longer the marriage, and they may need to be compensated for that disadvantage, by having a larger share of the assets.

And after a longer marriage the fact that one party brought assets into the marriage may lessen in significance, making it less likely that that contribution will result in that party receiving a greater share on divorce.

In summary, the court will look at all of the circumstances in every case, including the duration of the marriage, and will make an award that it considers to be fair, having regard to those circumstances.

If you want further advice as to what factors may affect your divorce settlement then you should consult an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Ben White on Unsplash

When the courts divide financial assets on divorce they follow a general principle that an equal division of those assets between the parties should be departed from only if, and to the extent that, there is good reason for doing so.

This ‘sharing principle’, as it is known, leads many people going through divorce to believe that they are automatically entitled to half of the assets. And, to put it the other way around, it leads many to fear that, no matter what, they will have to pay half to their spouse, even if they contributed most of the assets to the marriage.

But what if it was only a short marriage? Will you still have to pay half to your spouse?

Perhaps the best answer is: not necessarily.

When the court decides how assets should be divided on divorce it must have regard to a list of factors, as set out by statute. One of those factors is the duration of the marriage. Thus, the fact that the marriage was short could have a bearing upon the division, meaning that the party who contributed less may get less than half.

But the statute does not define what a ‘short marriage’ is. All we can do is look at the case law to see what judges have decided, although caution is required, as each case is decided upon its particular facts. And it may be surprising to some just how short a marriage has to be for a judge to consider it short.

Whilst there is certainly no ‘cut-off’ point at which a marriage is no longer defined as ‘short’, the cases suggest that any marriage that lasted for more than three years is unlikely to be defined as ‘short’.

Looking at it the other way though, the shorter the marriage the greater the bearing that the marriage’s duration is likely to have upon the division of the assets. Thus, for example, in a recent case a judge who found that the marriage lasted just eight months awarded the wife just 20% of the assets.

It is important to note, however, that if there are children of the marriage then the fact that the marriage was short is likely to be of less importance to the outcome – the welfare of the children and the future contributions of either party in looking after the children will take precedence when dividing the assets.

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If you feel that the short duration of your marriage might affect your financial settlement then you should seek the advice of an expert family lawyer. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Aron Visuals on Unsplash

The Supreme Court has allowed a wife to proceed with a maintenance claim in England, despite divorce proceedings taking place in Scotland.

Charles and Emma Villiers spent almost all of their married life living in Scotland. After they separated in 2012 Mrs Villiers moved to England.

In 2013 she issued divorce proceedings in England, but in the following year Mr Villiers issued divorce proceedings in Scotland. Mrs Villiers agreed to the divorce going ahead in Scotland, and therefore her English divorce petition was dismissed.

However, in 2015 she applied to the English court for a maintenance order. Mr Villiers objected to this, claiming that the English court did not have jurisdiction to deal with the application, because of the Scottish divorce proceedings. However, the English court held that it did have jurisdiction. Mr Villiers appealed to the Court of Appeal, but the Court of Appeal upheld the order. Mr Villiers appealed again, to the Supreme Court.

Last week the Supreme Court dismissed the appeal, by a majority of three to two.

Giving the leading judgment Lord Sales said that the husband’s divorce proceedings in Scotland did not preclude the wife’s maintenance application as they were not ‘related’ actions.

However, giving a dissenting judgment Lord Wilson warned that the decision means that “untrammelled licence” will be “given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case.” Whether this turns out to be so, we will just have to wait and see.

You can read the full judgment here.

Should you go forum shopping?

So can you issue proceedings in England and Wales, rather than another country? And even if you can, should you?

As the fact that this case went all the way to the Supreme Court indicates, the rules on forum shopping are complicated. We could not possibly set them out here. In general, though, you will need some connection with the country where you intend to issue proceedings. It will also depend upon the type of proceedings that are being issued, and whether proceedings have already been issued elsewhere.

But even if you can issue proceedings here, that does not necessarily mean that you should. London may have a reputation for being more generous to wives making financial applications than other countries, but that does not automatically mean that it will be best for wives to issue here (and for husbands to issue elsewhere!).

Clearly, if you are considering issuing proceedings in England and Wales rather than another country then you should take expert legal advice, both upon whether you can issue here, and whether you should. Family Law Café can put you in touch with an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Lucrezia Carnelos on Unsplash

The Ministry of Justice has announced a ‘major overhaul’ of how the family courts deal with domestic abuse.

The overhaul is in response to a report by a panel of experts which looked at the risk of harm to children and parents in cases involving disputes between parents about the arrangements for their children. The panel raised concerns that victims of domestic abuse and children were being put at unnecessary risk.

The new measures announced by the Ministry included:

– Giving an automatic entitlement for special measures in the courtroom for victims of domestic abuse going through the family courts, such as separate waiting rooms, separate building entrances and protective screens to shield them from their alleged abuser in court.

– Giving judges stronger powers to prevent abusers repeatedly dragging a victim back to court over child arrangements.

– Trialling an investigative, problem-solving approach in private family law proceedings, in order to reduce conflict. This could see judges decide what evidence to investigate, rather than both parties presenting their cases against each other.

– Reviewing the presumption of ‘parental involvement’ and whether the right balance is struck between the risk of harm to children and victims, with the right of the child to have a relationship with both parents.

Commenting on the measures Dame Vera Baird QC, Victims’ Commissioner for England and Wales said:

“This panel of experts has dug deep to understand, and address, the serious harm to domestic abuse victims and their children caused over many years by the presumption of contact, and the intensely adversarial process present in the family courts.

“With children’s voices rarely heard in these proceeding and even more rarely heeded, victims and children are in need of better protections from abusive perpetrators.

“I welcome the report, its recommendations, and the implementation plan which will help to address these, and other concerns. It has my full support. And I call on the government to action this as a matter of urgency.”

You can read the report here.

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If you would like to know more about protecting yourself from domestic violence and abuse, Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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The Divorce, Dissolution and Separation Bill, under which a system of no-fault divorce will be introduced, has passed through both houses of parliament. The Bill now just requires the Royal Assent before it becomes law.

However, the Lord Chancellor Robert Buckland QC has warned that the new law is unlikely to be implemented until autumn 2021, as “time needs to be allowed for careful implementation”. This will include the making of the necessary rules and procedures to give effect to the law, which will obviously be quite different to the present system.

All of which begs the question: what do you do if you want to commence divorce proceedings? Do you proceed under the present law, or wait for the new law to come in?

At the moment, in view of how far the new law is still away, the answer must generally be that you should proceed now, unless you will have to wait anyway for the requisite period of separation to elapse. (If you can’t or don’t want to issue divorce proceedings now on the basis of the other party’s adultery or unreasonable behaviour, you have to wait until you have been separated for two years if the other party consents to the divorce, or for five years if they do not consent.)

However, as we get closer to the introduction of the new law, then more and more people will no doubt prefer to wait, rather than have to apportion blame for the marriage breakdown under the present system.

And if you believe that your spouse will defend divorce proceedings, then it may be more appropriate to wait, as defended divorce proceedings will not be possible under the new system.

If you want further advice as to whether to commence divorce proceedings you should consult an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Just like most other areas of society the family courts have been adversely affected by the COVID-19 pandemic. In particular, the lockdown and need for social distancing have meant that many court hearings have had to be conducted remotely.

The President of the Family Division Sir Andrew McFarlane has now published details of how the family courts will operate for the remainder of the pandemic, in a document entitled The Road Ahead.

Perhaps the most important point that the President makes is that it is likely to take much longer than many had hoped for the family courts to get back to normal. Sir Andrew makes it clear that he does not expect this to happen before the end of the year, and perhaps not until next spring.

This means in particular that, whilst all court buildings should be open again by next month, court hearings will continue to be predominantly conducted remotely.

Many people have raised concerns about the fairness of remote hearings, particularly where a party or witness does not have a lawyer. The President made it clear that in such cases consideration should be given to the hearing taking place in court, or to there being a “hybrid“ hearing, where (for example) a parent or witness gives their evidence in court, but the rest of the hearing takes place remotely.

The President has also set out a series of guidelines to ensure that remote hearings are as fair as possible. These include keeping the hearing to a reasonable length, and including short breaks; advocates ‘meeting’ with their client both before the hearing to explain what is going to happen, and after the hearing to ‘de-brief’ their client; ensuring that parties can give instructions to their lawyers during the hearing; and, where the hearing involves a litigant in person, the judge should ‘check in’ regularly with any litigant in person to ensure that they are hearing, understanding and following the proceedings.

The President however makes it clear that remote hearings should always be conducted with the same degree of seriousness and respect as fully attended hearings.

You can read The Road Ahead here.

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After a campaign for reform lasting at least thirty years it seems that we may finally be about to get a system of no-fault divorce.

The Divorce, Dissolution and Separation Bill, which will bring in the reform, is due to have its second reading in the House of Commons today. Whilst some MPs have voiced their concerns about the reform, it has widespread support, and is expected to pass. In fact, it has been reported that ministers are keen to see the legislation receive royal assent as soon as the end of this week.

To briefly recap, the Bill intends to do away with the need to attribute blame in a divorce. It will no longer therefore be necessary (for example) to allege that the other party has committed adultery or behaved unreasonably (at least until the parties have been separated for two years). The Bill also removes the possibility of defending the divorce.

Instead, there will be a procedure whereby when a party applies for a divorce they will simply file with the application a statement that the marriage has irretrievably broken down, and the court will accept that as proof that the marriage has indeed broken down irretrievably. Twenty weeks later the court can make a conditional divorce order, and six weeks after that the divorce can be finalised.

As mentioned, some MPs have indicated their opposition to the reform. However, Resolution, the association of family lawyers, have written an open letter addressing some of their major concerns. The letter can be found here. Hopefully, its contents will help reassure MPs and the Bill will pass, without significant alteration.

Before we get too carried away, however, it should be pointed out that the new law is unlikely to come into effect until some months after the Bill receives royal assent. There will be a lot of regulations to be made, and generally time will be needed to prepare for the new system.

Still, hopefully we will soon have a divorce system that does away with the ‘blame game’, thereby enabling couples to concentrate with less chance of animosity upon the issues that really matter, such as arrangements for children and sorting out finances.

UPDATE: The Bill passed its second reading by 231 votes to 16. It now goes to the committee stage in the Commons.

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The Coronavirus lockdown is having a serious adverse effect upon the finances of millions. Incomes are reduced and the value of capital assets has been slashed.

But what if your finances have also been affected by a money order made by the divorce court? What if you can no longer afford to pay the money the court ordered? Or what if the money you were to receive is no longer enough? Is there anything you can do about this?

We are talking about the variation of financial orders: can the order be varied, and if so what are the criteria that the court uses to decide whether or not to vary it, and by how much?

Financial orders essentially come in two forms: capital orders and income orders. Capital orders are primarily lump-sum orders, and orders adjusting the ownership of property. The main type of income order is of course a maintenance order, whether for a spouse or a child.

The rules regarding variation of capital orders and income orders are quite different. Income orders can be varied, but capital orders are usually intended to be final.

The main exceptions regarding capital orders are lump sum orders payable by instalments and orders requiring the sale of property. However, the courts are generally reluctant to vary capital orders. For example, the variation of an order to pay a lump sum by instalments is only likely to relate to the timing of the payments. Still, this could be useful if you want to ask the court for more time to pay.

Otherwise, it is theoretically possible to ask the court to set aside a capital order (and make a different one), on the basis that events have occurred since the order was made which alter a fundamental aspect of the order. It could be argued, for example, that a significant reduction in the value of an asset due to the effect of the Coronavirus is one such event. However, setting aside orders in this way is very rare, and the general opinion is that it would be very difficult to persuade the court to order a strike out in these circumstances.

Maintenance orders, however, are commonly varied. In deciding whether to vary an order the court will have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. The circumstances of the case include any change in any of the matters to which the court was required to have regard when making the order. Accordingly, if the maintenance payer’s income has reduced significantly, then the court is likely to make a significant downward variation in the amount of the maintenance payments.

Of course, the maintenance may be varied back up if the payer’s income subsequently returns to pre-virus levels!

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As usual, the above is just a very brief outline of what can be a complex topic. If you would like to apply to vary a financial order then you should first seek the advice of an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Over the weekend a national newspaper reported upon a case in which a husband was aggrieved that the court awarded his wife nearly half of his pension pot, including the contributions he made during the years before they were married, and despite the fact that she ‘never bothered’ to save for a pension herself.

The report also suggested that the law regarding the division of pre-marital assets is about to change, which would help people retain assets built up before marriage.

So what exactly is the law now, and is it about to change?

Matrimonial property

The courts do distinguish between ‘matrimonial property’, i.e. assets acquired by the parties during the marriage as a result of their own efforts (which will usually include the matrimonial home), and ‘non-matrimonial property’, which includes assets acquired before the marriage, inheritances and gifts, and assets acquired after the parties separated.

As a very general rule, the court will only divide matrimonial property between the parties, unless the essential needs of one of the parties can only be met by including non-matrimonial property. Accordingly, if the needs of both parties can be met from the matrimonial property then each party can usually expect to retain any assets they owned prior to the marriage. (In the case referred to in the report above it may have been that the court could not meet the wife’s pension needs without including the pension that the husband had built up prior to the marriage.)

The practical effect of this general rule is that non-matrimonial property, including assets acquired prior to the marriage, is more likely to be retained in higher-money cases.

Of course there is a major proviso to this: it is not always easy to separate matrimonial and non-matrimonial property. Very often the two become mixed over time, so that it becomes impossible to quantify what is and what is not matrimonial property. If in doubt the courts are more likely to say that property is matrimonial, rather than non-matrimonial.

Law reform

The newspaper report made mention of both the Government’s Divorce, Dissolution and Separation Bill, and Baroness Deech’s Divorce (Financial Provision) Private Members’ Bill.

The Government’s Bill will just introduce a system of no-fault divorce, without changing the law on division of assets on divorce. Baroness Deech’s Bill, as its name implies, is intended to change the law on division of assets, including essentially preventing the court from awarding one spouse a share of assets that the other spouse acquired before the marriage.

However, as the Baroness’s Bill is a private members’ bill it is unlikely to be passed. The law on division of assets is therefore likely to remain the same for the foreseeable future.

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The above is of course a very brief summary of what can be a very complex area of law. For more detailed advice you should consult an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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When a couple get divorced they will obviously need to sort out what happens to the contents of the former matrimonial home. Unfortunately, this can often be a fraught process, as they argue over who should have what. Here are a few tips that might help make things easier.

1. Difficult as it might be, every reasonable effort should be made to agree the division of the contents with your spouse if you possibly can. If you can’t agree with them direct, then try to agree through lawyers or via mediation. To help you reach agreement, it may be useful to prepare a schedule, setting out the items and their values (see point 3).

2. If you can’t reach agreement, then the court can sort out who has what, but this can be very expensive and time-consuming.

3. It may have cost a considerable amount of money to purchase the contents originally, but their current (second-hand) value is the value that the court will use, and that should be used in any negotiation. Unless you own antique furniture or other items of special value such as paintings, the current value of the entire contents is therefore likely to be minimal. Accordingly, you will not usually want to spend a substantial sum on legal costs arguing over the division of the contents.

4. If you do have valuable items then if they are not divided equally (see the next point) the party who receives less may be entitled to financial compensation.

5. As with other property, equal division is the starting point (save for personal possessions, which each party should keep), although there may be other considerations, in particular if one party is to have any children living with them then their needs should be taken into account, for example they will obviously need to have the children’s beds.

6. If there are single items over £500 or collections over that amount the court can take them into account as assets. To establish what valuable items are worth a jointly instructed expert can be appointed by the parties or the court.

7. If agreement cannot be reached and there are no items of sentimental value, consider selling the items and dividing the proceeds, rather than going to the expense of getting the court to sort it out.

8. Lastly, all of the contents should usually remain in the matrimonial home until agreement is reached as to their division, or the court has decided the matter. If your spouse starts removing items from the matrimonial home without your consent then you should inform your lawyer immediately.

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If you require further advice regarding the division of the contents of the matrimonial home then you should consult an expert family lawyer. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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The Coronavirus pandemic and resulting lockdown is having a significant impact upon how the family justice system is operating. As we explained in an earlier post, one effect is that court hearings are now being conducted remotely, where possible.

Remote hearings involve one or more of the participants (judges, lawyers, parties and witnesses) taking part remotely, via telephone or video link.

As indicated, it is not possible for all family court hearings to be conducted remotely. This may be because the hearing is not suitable to be dealt with remotely, or simply because the required technology is not available to all participants.

But what is the experience of those who have taken part in remote hearings? Do they think that it is a good or a bad thing?

Last month the President of the Family Division Sir Andrew MacFarlane commissioned an urgent inquiry into the effectiveness of remote hearings used in the family justice system. The inquiry sought the views of interested parties, including judges, lawyers, Cafcass officers and parents. Well over one thousand people responded.

Most of the respondents had taken part in a remote hearing, dealing with various kinds of family cases. The hearings were of all types, including directions hearings, interim hearings and final hearings.

The respondents were asked whether they were broadly positive or negative about their experiences of remote hearings.

There was an even balance in positive and negative responses to remote hearings. This reflected the fact that many respondents felt that remote hearings were justified in some cases in the current circumstances, even when they raised serious concerns about remote hearings in relation to other types of cases.

As to the figures, 22% were positive, 21% were negative, and the other 57% said that there were both negatives and positives about remote hearings. Almost all felt that remote hearings were justified in the current circumstances, although not necessarily for all cases. Some felt that remote hearings were justified for some cases both now and in the future, and only a small number of respondents were against remote hearings in principle.

Notwithstanding the views of some, it does appear that remote hearings will be with us at least until the pandemic is over, and very possibly after that. All users of the family courts will therefore have to be prepared for the possibility of their case, or at least part of it, being conducted remotely (hearings that can’t be conducted remotely will still have to take place in court, subject to social distancing rules).

Of course, they will also have to be prepared to wait longer for hearings to take place, as the courts will not be able to conduct the same number of hearings as they do in ‘normal’ times. Even more reason than usual to try to avoid court by settling your case, and getting expert help as soon as possible.

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A ‘successful’ divorce should surely be the aspiration for anyone whose marriage has broken down. So what is the secret to achieving a successful divorce?

Before we answer that question we must first of all ask another: what exactly is a ‘successful divorce’?

What is a successful divorce?

What makes a divorce ‘successful’? Well, that may be a matter for each individual. Some may simply measure it by how big a financial settlement they achieved, or by how little the divorce cost.

But we would say that there is more to a divorce being successful than just money. Yes, a satisfactory settlement is important, as is keeping the cost to a minimum. But there are at least two other factors: making sure that the whole process is concluded as quickly as possible, so that you can get on with your life, and making sure that it is as stress-free as possible, so that you can recover emotionally as quickly as possible (marriage breakdown is stressful enough anyway).

All of which really points in one direction: agree matters if you can! By doing so you will (by definition) have achieved a satisfactory settlement, and you will have reduced the cost, stress and time taken to reach a conclusion.

But even if you can’t agree matters, then a measure of success is still possible. Yes, you might have to ask the court to sort things out, but you can still take steps to ensure that the court proceedings are concluded as satisfactorily, cheaply, and quickly as possible.

The most important thing

Of course, there is no one thing that will guarantee a successful divorce. But there is something that is perhaps more important than any other, and a clue to what it is was contained in the opening paragraphs of a recent High Court judgment.

In the case FRB DCA Mr Justice Cohen began his judgment with the following:

“I have been hearing over some 15 days cross-applications by the parties for financial remedy orders. As this judgment will make clear the scope of this case has encompassed almost every issue that can arise within a matrimonial finance case. In some ways that is hardly surprising. I know of no other case where the breakdown of a marriage has engendered litigation on the scale witnessed in this case.”

He then said that the total legal costs incurred by the parties in what he called a “gladiatorial combat” between them exceeded £10 million, and went on to explain that the differences between the parties was in part reflected by the animosity that at least the husband felt towards the wife.

Animosity. That is perhaps the most important thing to avoid, in order to achieve a successful divorce. We realise that it is easy for a lawyer to say this, but it really can’t be emphasised enough: you should make every effort to put animosity to one side when you sort out your divorce.

A little animosity is quite natural and common when a marriage breaks down. But it can also be really destructive, as this case demonstrates. Remove the animosity, and you have taken a great step towards achieving a successful divorce: you can then just concentrate on what really needs to be sorted out, you will not be distracted by attempting to ‘score points’ over the other party and, above all, you will be far more likely to achieve an agreed settlement.

If you want to read Mr Justice Cohen’s full judgment, all 227 paragraphs of it, you can find it here.

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Of course, there is one other thing you need to achieve a successful divorce: an expert family lawyer, who will adopt an approach aimed at settling your case amicably, whilst simultaneously looking after your best interests. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Bankruptcy of one of the spouses is often a feature of a financial remedy claim on divorce. Sadly, the current pandemic may lead to many more people falling into bankruptcy, as their businesses fail to survive the lockdown.

If this happens to you, can you ask the court to order your spouse to pay a lump sum to discharge your bankruptcy?

The answer to this question was provided by the recent case S v H, decided by His Honour Judge Booth in the Family Court at Manchester.

Briefly, the relevant facts in the case were that the husband had no assets and was the subject of a bankruptcy order, much of his debt having been incurred by his contributions to the family, albeit with borrowed money. Judge Booth calculated that he would need some £270,000 to discharge his bankruptcy and pay off his other debts. The wife, meanwhile, had net assets of more than £3 million.

The husband sought a lump sum sufficient for him to pay off his debts, and leave him with enough to buy a home to live in. The wife sought a dismissal of the husband’s claims against her.

The question arose as to whether the court could make a lump sum order in favour of the husband, in the light of his bankruptcy. Judge Booth found that it could.

He also found that it would be appropriate to discharge the husband’s bankruptcy by way of a lump sum payment by the wife, in view of the fact that most of the bankruptcy debt had been incurred for the benefit of the family.

Accordingly, Judge Booth made an order that the wife pay a lump sum of £270,000, so that the husband could be discharged from his bankruptcy, and pay off his other debts, thereby avoiding any future bankruptcy.

That still of course left the issue of the husband’s housing. Judge Booth decided that the wife should not be liable to pay a lump sum to the husband outright for this purpose. Instead, he ordered that she should pay him £375,000 for him to buy a home, on the basis that the home should revert to her when the husband dies, or no longer needs it.

A very instructive case, showing that you can ask for a lump sum from your spouse to discharge your bankruptcy, and that the court will make such an order, in appropriate circumstances.

You can read Judge Booth’s full judgment here.

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If you are going through a divorce and either you or your spouse have been declared bankrupt then you should consult an expert family lawyer as soon as possible. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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The Office for National Statistics (‘ONS’) has released its latest figures for marriages in England and Wales, for the year 2017.

Amongst the main points revealed by the statistics were that there were 242,842 marriages in England and Wales in 2017, a decrease of 2.8% from 2016; that marriage rates for opposite-sex couples in 2017 were the lowest on record, with 21.2 marriages per 1,000 unmarried men and 19.5 marriages per 1,000 unmarried women; and that nearly 9 in 10 (88%) of opposite-sex couples cohabited before getting married in 2017 – this proportion has steadily increased over the last 20 years from 69% in 1997 to 81% in 2007, and is in line with the increasing level of cohabitation seen more generally.

Kanak Ghosh of the Vital Statistics Outputs Branch at the ONS commented:

“Marriage rates for opposite-sex couples are now at the lowest level on record. This continues a gradual long-term decline seen since the early 1970s, with numbers falling by a third over the past 40 years.”

The decline in the popularity of marriage, and the accompanying increase in the popularity of cohabitation, clearly demonstrates the need to give basic legal rights to cohabitants when their relationship breaks down.

As the law stands at present, cohabitants cannot seek any sort of financial support for themselves from their former partners, and cannot make any property claim, save in very limited circumstances. This means that every year thousands of people are suffering unnecessary financial hardship following the breakdown of their relationship.

For example, a woman who lived with her partner in his home and had a family with him may find herself homeless and penniless at the end of a long relationship, despite spending those years looking after the home and bringing up the family.

Campaigners for rights for cohabitants are not asking for them to be given the same rights as a married person on divorce. Instead, they propose that they be given basic rights, to prevent the sort of hardship referred to above.

For example, in 2007 the Law Commission recommended that cohabitants who had had a child together or had lived together for a minimum period should be able to apply to a court for ‘financial relief’, provided that they had made ‘qualifying contributions’ to the relationship, as a result of which the other party had obtained a benefit or they had suffered an economic disadvantage. Couples could specifically agree to disapply the scheme. Unfortunately, in 2011 the Government announced that it would not take forward these recommendations.

However, in the ensuing years the marriage rate has continued to decline, as demonstrated by these latest figures. More and more couples are choosing to live together without getting married. Surely, the time has now come to give them basic financial rights on relationship breakdown?

You can find the ONS statistical bulletin here.

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If you have been in a cohabiting relationship then, as indicated above, your rights will be very limited. If you do wish to make a claim in respect of property or on behalf of a child then you should seek the advice of an expert family lawyer. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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Surge in cases

It has been reported that lawyers have been inundated with inquiries from separated parents arguing about where their children should stay during the Coronavirus lockdown. The report suggests, amongst other things, that some parents are using the lockdown as an excuse to stop the other parent from seeing their children, citing the risk of the children catching the virus as a reason.

So what can you do if the other parent is stopping you from seeing your children, in breach of a contact order (i.e. a child arrangements order specifying when your children are to live, spend time or otherwise have contact with you)?

Well, there are a number of ways to enforce a contact order. However, before we look at some of them, we should make a couple of points.

Initial considerations

Obviously, enforcing a contact order involves taking your case back to the court and asking the court to enforce the order. The family courts are still operating under the lockdown, but unfortunately the lockdown and social distancing rules are having a serious effect upon the amount of cases that the courts can deal with. You may therefore have to wait considerably longer than usual for your case to be heard, and this situation is likely to last for some time to come.

The second point is that, as we mentioned here recently, the President of the Family Division has specifically stated that where parents do not agree to vary the arrangements set out in a child arrangements order, but one parent is sufficiently concerned that complying with the arrangements would be against current public health advice, then that parent may vary the arrangement to one that they consider to be safe. However, that parent must bear in mind that if the case subsequently goes back to court the court is likely to look to see whether they acted reasonably and sensibly, in the light of official advice.

Enforcement methods

If you ask the court to enforce the contact order the court will want to know why the order has not been complied with, and may considering varying the terms of the order to ensure future compliance. This may also involve reconsidering the children’s living arrangements.

Otherwise, if there is no good reason why the other parent has not complied with the order then the court can take various actions, including:

1. Making an enforcement order, requiring the parent in breach of the contact order to do between 40 and 200 hours of unpaid work.

2. Making an order requiring the parent in breach to compensate you for any financial loss you have suffered as a result of the breach.

3. Imposing a fine on the parent in breach of the contact order.

4. Lastly, in the most serious cases, the court can commit the parent in breach to prison for contempt of court.

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Obviously, the above is just a very brief outline of the law. For further advice in relation to your own circumstances, including how to go about applying for enforcement, you should consult an expert family lawyer, before taking any action. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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For the last two weeks we have all been ‘locked down’ due to the Coronavirus restrictions, forced to stay in our homes, save for specific purposes. This is obviously a trial for everyone, but for some it can be much worse.

What if the partner with whom you are having to stay at home is abusive? What can you do to protect yourself in this situation?

Leaving home

Obviously, if you are suffering serious abuse at the hands of your partner then you will not want to stay under the same roof as them. But can you leave home?

As we all know, or should know, the Coronavirus restrictions mean that it is an offence to leave home without “reasonable excuse”. We all also know that “reasonable excuse” includes obtaining basic necessities, taking exercise and seeking medical assistance. However, it also includes two other reasons, which may be relevant to a victim of domestic abuse:

1. Leaving the house to access “critical public services.” This includes social services and services provided to those at risk; and

2. Leaving the house to avoid injury or illness, or to escape a risk of harm.

Further to this, Home Secretary Priti Patel has confirmed that: “whilst our advice is to stay at home, anyone who is at risk of, or experiencing, domestic abuse, is still able to leave and seek refuge.”

Obviously, the police are enforcing the lockdown. However, they have been issued with guidance which specifically acknowledges that it may not be safe for everyone to stay at home.

So, in short, you can leave your home without breaching the Coronavirus restrictions, if you believe you will be at risk of harm due to an abusive partner.

But where can I go?

If you have a friend or family who you can stay with, all well and good (although you may still need to comply with self-isolation rules). But what if you don’t have anywhere to go?

Well, refuges and other forms of emergency accommodation are still open, and the Government has specifically stated that they do not need to close, unless directed to do so by Public Health England or the Government.

However some refuges may not be able to provide self-contained spaces where people can self-isolate, or ensure suitable space for social distancing, which may limit the service they can offer. Further, emergency accommodation may have to close if too many staff members need to self-isolate or if suitable social distancing measures cannot be implemented.

For further information about the availability of accommodation near to you, contact the National Domestic Abuse Hotline.

What other steps can I take to protect myself?

It is still possible to apply to a court for a domestic violence injunction, despite the Coronavirus restrictions.

Such injunctions take two forms:

1. A non-molestation order, which prevents another person from harming you or a child; and

2. An occupation order, which will indicate who can live in the family home and can direct another person to leave the home.

Whilst some courts have been temporarily closed due to the Coronavirus outbreak, there are still courts open that will deal with urgent injunction applications. Most injunction hearings will take place by telephone.

If you are in immediate danger, then you should still call the police, on 999.

Further advice and help

The above is just some general advice. For more detailed advice, or if you wish to instruct a lawyer to obtain an injunction on your behalf, call us on 020 3904 0506, or click the ‘Sign up’ button at the top of the page, and fill in the form.

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Image of empty street by Leslie on flickr, licensed under CC BY 2.0.

The Coronavirus pandemic has imposed major restrictions upon our movements. The UK is now in ‘lockdown’, with most people being restricted to their own homes, save for certain limited purposes. Even when we do leave our homes, we must adopt ‘social distancing’, keeping at least two metres away from anyone not from our own household.

But what if you are separated from the other parent of your children? We already know that in such cases children under 18 can be moved between their parents’ homes, but how exactly might the lockdown affect your child arrangements?

Child arrangements come in many forms, and exactly what type of arrangement you have will dictate how it will be affected. We have therefore divided child arrangements into five broad categories, as set out below.

However, before we look at those categories, here are three basic principles, as set out in guidance published last week by the President of the Family Division Sir Andrew McFarlane:

1. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

2. Where parents do not agree to vary the arrangements set out in a child arrangements order, but one parent is sufficiently concerned that complying with the arrangements would be against current public health advice, then that parent may vary the arrangement to one that they consider to be safe.

3. Where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child, for example remote contact via telephone or Skype.

Shared care, including holiday arrangements

This is where your child spends substantial amounts of their time with each parent.

Obviously, any change in such arrangements could have a significant effect upon the child, and should therefore be considered very carefully. Try to agree arrangements with the other parent, and if you have to act unilaterally then bear in mind that you may ultimately have to explain your actions to the Family Court.

Many child arrangements orders include provision for the child to spend longer periods of time with a parent during school holidays. However, schools are of course now closed, and there are therefore no school holidays. In such circumstances it may be best to suspend school holiday arrangements.

Overnight contact

This is where the child spends most of their time with one parent but has overnight, or ‘staying’, contact with the other parent, for example one or two nights a week.

For the purposes of Coronavirus, the situation here is really very similar to shared care, and the same principles therefore apply.

Visiting contact

This is where the contact takes place during the daytime only.

If the visiting contact involves going to the other parent’s home, then again similar principles apply to those above, although any alteration in the arrangements may not have such serious implications for the child.

However, some visiting contact takes place outside the other parent’s home, for example taking the child to the park, or to some other public place. Obviously, the present restrictions upon movement may affect those arrangements.

Supervised contact, including at a contact centre

Sometimes contact has to be supervised by a third party, for example when it takes place at a contact centre. Obviously, this may not currently be possible, if the supervisor is not available. The National Association of Child Contact Centres reports that the Coronavirus outbreak has had an impact on the availability of some but not all child contact centres. For more information, see here.

Indirect contact

Contact need not of course be direct between parent and child. It can be indirect, for example by telephone, Skype, email, messaging or plain old letters and cards.

Here of course there is some good news: indirect contact is virtually unaffected by the Coronavirus. In fact, it should be encouraged, especially where direct contact is stopped or restricted.

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Obviously, the above just sets out some general principles and guidance. For further advice in relation to your own circumstances, you should consult an expert family lawyer. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click the ‘Sign up’ button at the top of the page, and fill in the form.

You can read the President’s guidance here.

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Photo by Daiga Ellaby on Unsplash

Everyone is of course seriously concerned about the Coronavirus, and the restrictions that it is putting upon our lives. But what if you are contemplating divorce proceedings, or are in the midst of existing proceedings. How will the virus and the Government’s response to it affect you?

We are still here for you

Family Law Café continues to provide a full service, and we intend to do so for the duration of this emergency.

If you are an existing client then you can contact us as usual.

We are still taking on new clients, who can get in touch with us as outlined below.

And our service is online, so you can access it without having to leave your home. For further details of how our service works, see this post.

Expect delays

The courts are continuing to function. However, court hearings are now being conducted remotely, where possible.

In view of this, and possible court staff shortages as a result of the virus and the measures taken in response to it, you can expect cases to take longer.

Divorce proceedings can proceed entirely online, unless they are defended.

Children arrangements

Obviously, the restrictions upon movement will affect children arrangements between separated parents. The Government has, however, made clear that where parents do not live in the same household, children under 18 can be moved between their parents’ homes.

Of course, special care will need to be taken, and in some cases existing arrangements may have to be suspended. If you cannot agree matters with your (former) spouse, then you should seek legal advice. The President of the Family Division has issued guidance on compliance with child arrangements orders, which can be found here.

Financial remedies

You should also seek advice if you are concerned about the effect of the reduction in value of assets as a result of the financial instability caused by the virus.

Settlements that have not been finalised will normally take into account the current value of assets.

It is possible that settlements that have recently been finalised could be reopened, if there has been a significant change in the value of assets. However, this would be unusual – if you think it may apply to you, you should seek urgent legal advice.

Get in touch

For further information and advice upon any of the above matters, contact us. If you are a new client, call us on 02 03 9 04 05 06, or click the ‘Sign up’ button at the top of the page, and complete the form.

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Photo by Viktor Forgacs on Unsplash

Who wants to have to visit their lawyer every time they have something important to discuss with them?

And who wants a service where they have to wait for their busy lawyer to be available before they can ask them a question?

And who wants to have to wait until their lawyer’s office is open, and then have to telephone the office, just to find out the current position on their matter?

Well, you no longer have to put up with any of these things.

Family Law Café offers a revolutionary new type of legal service for anyone with a family law problem (not just divorce!). Now you can run your case online, from the comfort of your own home.

When you sign up with us you get access to our unique secure online portal, from wherever you want, and whenever you want, 24/7.

Via the portal you can see the current position in your matter, check for important upcoming dates in your case calendar, read and review documents. You can even request an answer to any question, and the answer will be there once a lawyer has logged in and considered it.

And the online portal can also be made available (with your permission) to anyone that you may need to help you with you case, such as an expert accountant – no need to spend time and money copying a paper file to them.

With Family Law Café you can truly run your case from home, at a time that suits you. For further details of our service telephone us on 02 03 9 04 05 06, or click the ‘Sign up’ button at the top of the page, and complete the form. We will contact you back in a way, and at a time, that suits you and can discuss how we work and what we can offer you.

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Photo by Content Pixie on Unsplash

You have just been served with divorce papers. Perhaps you expected them, perhaps you did not. They may make you angry, they may make you sad.

Whatever, it is likely to be an extremely stressful moment, and that stress could colour how you respond. But it is essential that, no matter how tempting, you do not respond in the wrong way.

Here are five typical things that you should NOT do if you receive divorce papers:

1. Lose your temper with your spouse – As we said, receiving the divorce papers may make you angry. This could be because you don’t believe that the breakdown of the marriage was your fault, because you are unhappy about allegations against you contained in the divorce petition, or simply because you don’t want a divorce. You may lose your temper and want to confront your spouse. Don’t. It will not achieve anything, and is only likely to make things worse. Remember that under our present divorce system one party usually has to ‘blame’ the other for the breakdown of the marriage – your spouse may have had no other option.

2. Tear up the papers – Yes, it does happen. But it is not going to stop the divorce. Without going into the details, your spouse will still be able to proceed with the divorce, and your actions may just have increased the costs of the divorce, which you may have to pay.

3. Ignore the papers – This also does happen, all too often. But it is not going to make the divorce go away. Again, your spouse will still be able to proceed with the divorce.

4. Stop paying for things – You may still be paying for things that your spouse benefits from, for example the mortgage on the matrimonial home, or the repayments on the car that they are using. Receiving the divorce papers may tempt you to stop paying these things. But doing so may cause you further trouble. Don’t have a ‘knee-jerk’ reaction – take advice first, and as quickly as you can.

5. Defend or cross petition without thought – This is often the first thought of anyone who doesn’t want a divorce, or who is aggrieved at being blamed for the breakdown of the marriage. Yes, in some (rare) circumstances it may be the best thing to do, but it may also be a huge mistake, which will only cause the divorce to drag out and be much more expensive.

Of course, what you SHOULD do if you receive divorce papers is take expert legal advice. Family Law Cafe can organise your response and sort out everything that needs to be done. For further information about what we can do for you call us on 020 3904 0506, or click the ‘Sign up’ button at the top of the page, and fill in the form.

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Photo by Nadine Shaabana on Unsplash

An enhanced version of the Domestic Abuse Bill has been introduced to Parliament by the Government. The Bill, which aims to strengthen protection for victims of abuse, had been introduced in the last Parliament, but failed to complete its passage through Parliament before the General Election.

To recap, measures in the Bill include: introducing the first ever statutory government definition of domestic abuse, which will include economic abuse; establishing a Domestic Abuse Commissioner to champion victims and survivors; introducing new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders to further protect victims and place restrictions on the actions of offenders; and prohibiting the cross-examination of victims by their alleged abusers in the family courts.

As we reported here, the Government has already announced that Nicole Jacobs will be the first Domestic Abuse Commissioner.

Enhancements to the Bill include requiring local authorities in England to provide support and ensure safe accommodation for victims and their children, and improving on the ban on alleged abusers from cross-examining their victims in the family courts, by applying it to all family proceedings where there is evidence of domestic abuse.

Commenting on the Bill Home Secretary Priti Patel said:

“An astonishing 2.4 million people in England and Wales have suffered domestic abuse. That is unacceptable, and the reason why it is so important to shine a light on this crime.
“The Domestic Abuse Bill is a monumental step to empower victims and survivors, provide protection and tackle perpetrators at the earliest stage.
“Through this bill and bolstering law enforcement, we will be able to keep millions of victims safe.”

Family Law Café welcomes the re-introduction of this important Bill, and hopes that it will swiftly pass onto the statute book.

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Photo by Kat J on Unsplash

Welcome to the new Family Law Cafe website!

The site is designed to explain clearly the benefits of using Family Law Cafe.

Here are some highlights:

Home page: Outlining what we do, and how we differ from other providers of family law services. Scroll down for more information.

Services page: Sets out the three levels of support that we provide:

1. Your Host takes information and processes your initial enquiry.

2. Your Expeditor, an experienced lawyer, will help you with key decisions.

3. Your Server will assist in day to day matters. You will never need to struggle alone or worry. We’ll be with you all the way.

This page also explains how our services work, and how they can save you time and money. Scroll down for the details.

FAQ: Have a question to ask about what we can do for you? You may find the answer is here.

Testimonials: Find out what others are saying about our service.

News: All the latest family law news that you need to know, along with basic advice on a wide range of topics. Click the button at the top of the page to filter the news by subject type.

About page: Explains who we are, why you should use us, and what you pay.

For further information about what we can do for you call us on 020 3904 0506, or complete the contact form, here.

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Rosie Duffield, the Labour MP for Canterbury, has given a harrowing account of her experience of domestic abuse, in a debate in the House of Commons.

The MP was speaking during the course of the second reading debate on the Domestic Abuse Bill, which will introduce a comprehensive package of measures to tackle domestic abuse.

Ms Duffield described how she suffered verbal abuse, humiliation and financial control at the hands of her former partner. She said:

“Domestic violence has many faces and the faces of those who survive it are varied too. Sometimes there are no bruises. Abuse is very often all about control and power.”

She said that at first her relationship with her partner had been full of romantic gestures. However, over time he changed, using verbal intimidation and criticism, and sometimes not speaking to her at all. She said that expressions such as “You’re mine for life” can sound menacing, and are used as a warning over and over again. She described a repeating pattern of reward, punishment, promises of happy ever after, alternating with abject rage, menace, silent treatment and coercive control. Eventually the abuse spilled out in public, with him shouting at her at constituency events, causing her extreme humiliation.

She was only able to bring an end to the abuse by taking away her partner’s house keys, thereby locking him out of her home. She concluded by saying:

“You realise it’s not your fault. He is left alone with his rage and narcissism.

“If anyone is watching and needs a friend, please reach out if it safe to do so and please talk to any of us, because we will be there and hold your hand.”

The Speaker of the House, John Bercow, said that Ms Duffield’s speech had been “simultaneously horrifying and as moving a contribution” as he had heard in his 22 years in the Commons.

The speech is a reminder that domestic abuse can happen to anyone, and can take many forms. Whatever form it takes, no victim has to suffer. If you would like to learn about protecting yourself from domestic violence and abuse, Family Law Café can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Rosie Duffield: Chris McAndrew [CC BY 3.0], via Wikimedia Commons.

Divorces are taking longer than at any time since December 2014, when the Ministry of Justice began publishing quarterly Family Court statistics.

The latest statistics, for the quarter April to June 2019, show that for those granted Decree Nisi in that period, the mean average time from the date of the divorce petition was 33 weeks, up 5 weeks from the same period in 2018, and the mean time from the petition to Decree Absolute was 58 weeks, up 3 weeks compared to the same period in 2018.

The statistics also show a decrease in the number of divorce petitions issued. There were 28,144 divorce petitions issued between April and June 2019, down 13% from the same quarter in 2018. Financial remedy applications also decreased by 5%, but private law children applications (primarily for child arrangements orders) increased by 3% compared to the equivalent quarter in 2018.

Private law children applications are also taking longer. In April to June 2019, it took on average 28 weeks for private law cases to reach a final order, up 3 weeks from the same period in 2018.

Elsewhere, other statistics published by the Ministry of Justice revealed that more family cases are being resolved by mediation. In the quarter April to June 2019 mediation starts increased by 22% and outcomes increased by 13%, compared to the same period last year.

You can find the Family Court statistics here.

If you would like advice about taking divorce proceedings, Family Law Café can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: Calendar, by Dafne Cholet, licensed under CC BY 2.0.

The Home Secretary Priti Patel has announced that Nicole Jacobs will be the first Domestic Abuse Commissioner for England and Wales.

Ms Jacobs will initially work as the designate Commissioner, as the post has technically not yet been created. It was due to be created by the Domestic Abuse Bill, but the Bill fell when Parliament was prorogued. The Government has pledged to re-introduce the Bill in the next Parliamentary session. [UPDATE: The Supreme Court has, of course, now decided that Parliament was not in fact prorogued. Hopefully, this will mean that the Bill will now continue its passage through Parliament.]

The Commissioner will be tasked with encouraging good practice in preventing domestic abuse; identifying both those at risk of abuse as well as those perpetrating it and improving the protection and provision of support to those affected by domestic abuse. They will also be able to publish reports that hold statutory agencies and the government to account.

Ms Jacobs was the former Chief Executive Officer at charity Standing Together Against Domestic Violence and has more than two decades of experience working to reduce domestic abuse. Responding to her appointment, she said:

“Establishing the Office of the Domestic Abuse Commissioner shows the government’s commitment to reducing harm and improving the lives of those who experience domestic abuse.

“It is an honour and a privilege to be appointed as the first Commissioner and I intend to raise the voices of victims and survivors of all ages, status and background and ensure that we shine a light on practice that fails them.”

Family Law Cafe wishes her well, and hopes that her appointment will improve the response to the scourge of domestic abuse.

If you would like to know more about protecting yourself from domestic violence and abuse, Family Law Café can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe brings smart technology to complex family law issues, allowing customers to benefit from access to a friendly team of experts, assembled to the customer’s needs and budget.

Image of Nicole Jacobs reproduced from the GOV.UK website, Crown copyright, licensed under the Open Government Licence.

The latest annual statistical bulletin giving estimates of population by legal marital status and cohabitation status by age and sex for England and Wales, for the year 2018, has been published by the Office for National Statistics (‘ONS’).

The main points were:

• The proportion of the population aged 16 years and over in England and Wales who are married has continued to decline in 2018 to 50.5%, down from 51.0% in 2017.

• Whilst the proportion of the population under age 70 years who are married has declined, the proportion aged 70 years and over who are married has increased from 50.3% in 2008 to 55.8% in 2018.

• The number of people aged 16 years and over who are single and have never married has continued to increase, rising by 369,000 from 2017, to a total of 16.7 million people (35.0%) in 2018.

• The number of people aged 16 years and over who live with a partner and have never married has continued to increase, rising by 1.3 million people since 2008, to a total of 5.0 million (10.4%) in 2018.

A statistician at the ONS commented:

“In England and Wales, around half of the population aged 16 years and over were married in 2018. The proportion of people married has been in decline over the last decade, while the single population has been increasing.

“However, those in their 70s and beyond are seeing a different trend where, despite a modest rise in the divorced population, the proportion of people aged 70 years and over who are married has been increasing at a greater rate.”

These figures show a clear and continued trend away from marriage, and towards cohabitation, particularly amongst the younger population. Why might this be? Could it be that they increasingly see marriage as ‘old fashioned’? Or could it be that they simply don’t want to make the commitment that marriage entails?

Whatever your reasons may be for choosing a particular living arrangement, it is important that you know your rights. Family Law Cafe can advise you. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

The statistical bulletin can be found on the ONS’s website, here.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: ‘Just Married’, by Stewart Black, licensed under CC BY 2.0.

According to various media sources, American singer, songwriter, and actress Miley Cyrus is preparing to divorce her husband, Australian actor Liam Hemsworth. Some of the reports suggest that the divorce will be the ‘smoothest of all time’, and could be completed by the end of October, thanks to a prenuptial agreement that the couple entered into before they were married last December. Apparently, the document says that the couple, who do not have any children, will simply retain their own property, and make no financial claims against each other.

So, can a prenup make a divorce quicker and smoother? It is certainly possible, but there are a couple of caveats.

Prenuptial agreements are not legally binding in this country, but the divorce court will usually give effect to them where they are freely entered into by each party with a full appreciation of the implications of the agreement, unless it would not be fair in the circumstances to hold the parties to the agreement, for example because it failed to meet the needs of one of the parties, or of any children. This means that even if the terms of the prenup are fair when it is entered into, it may no longer be fair when the marriage breaks down, due to the circumstances of the parties having changed.

Obviously, if the prenup is given effect by the court then that can indeed make the divorce quicker and smoother, by doing away with the need to have a time-consuming argument over financial and other arrangements following the divorce.

If you are considering entering into a prenup, or if you would like further advice on the subject, Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image of Miley Cyrus at the Capital Pride Festival, Washington DC 2017, by Ted Eytan, licensed under CC BY 2.0.

Several newspapers are today carrying a story about a wife who is apparently unable to obtain a divorce, despite her husband being jailed for seriously assaulting her. The story goes that her husband, who is currently serving a three years and three months prison sentence at HM Prison Manchester, commonly known as ‘Strangeways’, is preventing the divorce by not consenting to it. But is it really the case that a husband in this situation can prevent a divorce?

We don’t have all of the relevant facts of this particular case, so we cannot comment upon it in detail. What follows are a few basic principles.

As the law on divorce currently stands anyone wishing to take divorce proceedings must prove that the other party has committed adultery, that the other party has behaved unreasonably, that the other party has deserted them for two years, that they have been separated for two years and the other party consents to a divorce, or that they have been separated for five years. It will be noted that the consent of the other party is only required for a two year separation divorce, although in other cases the other party can seek to defend the divorce.

Clearly, a serious assault of the type suffered by the wife in the reported case would amount to unreasonable behaviour. The husband could seek to defend the divorce, but as a court has already found him guilty of the assault then it would be extremely unlikely that any defence would be successful.

Of course, if the reform of the divorce laws to introduce no-fault divorce goes ahead, then all of this will be academic – there will be no need to prove adultery, unreasonable behaviour, etc., and the other party would not be able to defend the case.

There is one other matter that could be delaying the divorce: that the husband is refusing to acknowledge receipt of the divorce papers. In that case, the wife only needs to prove that he has received them, and she will be able to proceed with the divorce.

In short, if a wife has suffered serious abuse at the hands of her husband then she should be able to get a divorce. The husband could seek to delay the divorce, but it is very unlikely that he could prevent it.

As we said, we cannot advise specifically upon the case in the newspapers. However, there does appear to be a moral to take from it: obtain expert legal advice before issuing divorce proceedings. Family Law Cafe can help you find that advice. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: HMP Manchester by Mikey, licensed under CC BY 2.0.

As now seems to occur at this time most years, there is speculation in the media that the end of the summer holidays will see a rise in the number of people getting divorced.

Such speculation is becoming as common as the idea of ‘divorce day’, the first day of the first working week after the Christmas/New Year break, when more people are supposed to instruct lawyers to start divorce proceedings than any other day of the year.

But is there any truth in it?

Possible reasons put forward for an increase in divorces at the end of summer are similar to those put forward for divorce day, including the holidays forcing families to be together, thereby highlighting problems in relationships, and disappointment at family holidays not being as wonderful as expected. Another possible reason is that children go off to university at the end of the summer, forcing their parents to live on their own for the first time in years. It has also been suggested that people are more likely to meet someone new in the summer holidays!

Whether there is any truth in any of this, we don’t know.

The simple fact is that marriages can break down at any time, and if your marriage has broken down, the timing is likely to be immaterial. The important thing is to seek expert legal advice, as soon as you can. Family Law Cafe can help you find that advice. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: ‘Beach’, by David Martyn Hunt, licensed under CC BY 2.0.

A survey by the investment company Fidelity International has found that a third of women would not be able to cope financially if their relationship ended tomorrow.

The survey, of 2000 individuals, also found that women between the ages of 55 and 64 years old are the most likely to find themselves financially vulnerable in the event of a relationship breakdown. One reason for this, of course, is the lack of adequate pension provision.

By contrast, only about one in five men felt they would not be able to support themselves financially in the event of a relationship breakdown.

A spokesperson for Fidelity said that, in addition to typically earning less and therefore saving less, women tend to take more time off work than men, which ultimately results in less time to pay into a workplace pension.

The findings emphasise the need for expert advice in the event of marriage breakdown, to ensure the best possible financial settlement. Family Law Cafe can put you in touch with an expert. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: Pound coins, by J D Mack, licensed under CC BY 2.0.

Once again it appears that the record for the biggest money divorce to be dealt with by the courts in this country is to be broken. And once again it seems that it will be the wife of a Russian oligarch who will be seeking to break the record for the largest divorce award. That record is thought to be held by Tatiana Akhmedova, who was awarded £453 million in 2016.

That record, however, could be eclipsed by Natalia Potanina, the former wife of Vladimir Potanin, who made his reputed £15 billion-plus wealth in metals, following the break up of the Soviet Union. Mrs Potanina is reportedly seeking a lump sum of £5.76 billion, claiming that she was by his side as he built up his fortune from nothing.

The couple were together for some 31 years and had three children (all of whom are now grown up), before they separated in 2013. They were subsequently divorced in Russia, but Mrs Potanina has been living in London since 2016, hence the claim in the High Court. The courts in this country are considered by many to be considerably more generous to wives than the courts in many other countries (financial claims can be pursued here following foreign divorces, if either party lives here).

Most people, of course, can only dream of such sums. No matter what your wealth, however, Family Law Cafe can help you through your divorce. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Nornickel office in Norilsk by Ninara, licensed under CC BY 2.0. Mr Potanin is the largest shareholder in Nornickel.

The summer holiday season is now in full swing. It can be a fraught time for separated parents, who have to make arrangements as to with whom the children will stay over the school holidays, and possibly also where they will go, for example where permission is required to take them abroad.

The best advice is of course to sort out holiday arrangements for children well in advance of the school holidays. That way, if it is simply impossible to agree the arrangements, then at least there will be time to ask the court to decide the matter.

Sometimes, however, it is just not possible to sort things out in advance, for example where a situation arises at the last minute. Previously agreed arrangements may also break down.

What do you do in such circumstances? What are your ‘rights’? Do you need the agreement of the other parent? If so, what is the best approach to take when dealing them? What if you can’t agree matters? And what matters are sufficiently urgent for the court to deal with them at short notice?

To answer these and any other questions you may have you should seek expert advice from a specialist family lawyer, as soon as possible. Family Law Cafe can help you find that advice. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: beach, by ECraig4, licensed under CC BY 2.0.

Lady Hale, the President of the Supreme Court, has made an appeal on BBC Radio, seeking donations for a charity that provides support for unrepresented litigants.

Lady Hale appeared on the BBC’s Radio 4 Appeal programme on Sunday, where she appealed for donations on behalf of the Personal Support Unit (‘PSU’), a charity which seeks to reduce the disadvantage of people facing the civil and family justice system without a lawyer, by providing them with the support of a volunteer. The charity operates from 23 courts in 18 different cities across England and Wales, and are the only organisation providing such a service. Lady Hale is a patron of the charity.

Lady Hale told listeners that she knew how intimidating the civil and family courts can be for people without legal knowledge or help, and said: “Everyone deserves access to justice whether or not they can afford a lawyer.”

Family Law Cafe wholeheartedly agree. If you would like to make a donation to the PSU you can find details of how to do so on their website, here.

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Family Law Cafe brings smart technology to complex family law issues, allowing customers to benefit from access to a friendly team of experts, assembled to the customer’s needs and budget.

Image of Lady Hale reproduced from the Supreme Court website, Crown copyright, licensed under the Open Government Licence.

A public call for evidence, or consultation, has been launched on how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. The call for evidence is part of a three-month project overseen by a panel of experts, aimed at throwing a spotlight on how the family courts manage the safety and well-being of children when there is a risk of domestic abuse.

Specifically, the call for evidence will focus on private family law proceedings. Amongst the questions it will ask are:

• How Practice Direction 12J, which relates to child arrangement cases where domestic abuse is a factor, is being applied. This includes its interaction with the presumption that involvement of both parents in the life of the child concerned will usually further the child’s welfare.

• How ‘barring orders’ are being used. These prevent further applications being made without leave of the court. Such applications could be used to re-traumatise those who’ve faced abuse.

• What is the impact on the child and parent victim where child contact is sought by someone alleged to have, or who has, committed domestic abuse or other relevant offences.

Justice Minister Paul Maynard said:

“Domestic abuse destroys lives, which is why survivors and their children must have every confidence that they will be protected in the family courts.

“Just this week we introduced legislation that will ban abusers from cross-examining their victims in the family courts, and throughout our review we will be engaging with victims across the country to make sure we are doing all we can to protect them further.

“The review – ordered by ministers in May – will also consider the level of encouragement victims are given to raise concerns, the standard of domestic abuse information shared with courts, as well as looking to better understand the different types of coercive control.”

You can find the consultation here.

If you are involved in a children case in which domestic abuse is a factor, you should seek expert legal help. Family Law Cafe can provide this. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: parent/child shadow, by Anders Andersson, licensed under CC BY 2.0.

The government’s Domestic Abuse Bill, which has been described as “the most comprehensive package ever presented to Parliament to tackle domestic abuse, both supporting victims and bringing perpetrators to justice”, is to receive its first reading in the House of Commons today.

Measures in the Bill include:

• introducing the first ever statutory government definition of domestic abuse, which will include economic abuse

• establishing a Domestic Abuse Commissioner to champion victims and survivors

• introducing new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders to further protect victims and place restrictions on the actions of offenders

• prohibiting the cross-examination of victims by their abusers in the family courts

• providing automatic eligibility for special measures to support more victims to give evidence in the criminal courts

Justice Secretary David Gauke commented:

“This Bill marks a fundamental shift in our response to domestic abuse – establishing greater protections for victims, whilst ensuring perpetrators feel the full weight of the law.

“By banning abusers from cross-examining their victims in the family courts, and giving courts greater powers through new protection orders, we are making sure the justice system is better equipped than ever to tackle this horrific crime.”

As we have said before, Family Law Cafe welcomes the Bill, in particular the provision prohibiting the cross-examination of alleged victims by their alleged abusers in the family courts.

For further information about how you can protect yourself from domestic abuse, see this post. If you would like to know more about protecting yourself from domestic violence and abuse, or if you would like to apply for a court order, Family Law Café can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: Teddy Bears and Bruises by DualD FlipFlop, licensed under CC BY 2.0.

The Law Society, the professional body that represents solicitors in England and Wales, has raised concerns about the Government’s Divorce, Dissolution and Separation Bill, which is intended to introduce a system of no-fault divorce.

The Society says that whilst it welcomes the Bill and supports the introduction of no-fault divorce, it considers that “there are still important details that need to be addressed to ensure that the Bill is clear, fair and accessible to those who need to use it.” (For a brief overview of what the Bill will do, in its current form, see this post.)

In particular the Society is concerned that the Bill proposes that the 20 week period of notice before a divorce order can be made should run from the start of proceedings. The Society believes that this is unfair on the respondent, who may receive the divorce papers long after the start of proceedings, whether due to court delays, interference from the petitioner in delaying receipt by the respondent, the simple length of time of delivery if abroad, or other administrative reasons.

Instead, the Society proposes that the 20 week period should not begin until the respondent has been served with the divorce application.

However, supporters of the Bill in its current form point out that if such an amendment were made respondents could deliberately avoid service, or even suggest that they will only accept service if the petitioner agrees to their terms regarding financial matters, or arrangements for children.

Clearly, this matter requires careful consideration.

You can read all of the Law Society’s concerns about the Bill, and its proposed amendments to it, in its written evidence for the Divorce, Dissolution & Separation Public Bill Committee, which can be found here.

Family Law Cafe will be watching with interest to see what, if any, significant amendments are made to the Bill as it passes through parliament. The Bill has just gone through committee stage and is now due to have its report stage and third reading, on a date to be announced.

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Image: Law Society, Chancery Lane, London by The wub [CC BY-SA 4.0], via Wikimedia Commons.

The Ministry of Justice has published its latest statistical bulletin presenting statistics on activity in the Family courts of England and Wales, and providing figures for the latest quarter (January to March 2019).

The bulletin shows that in that period there was an increase in the number of divorce petitions, alongside an increase in timeliness of divorce proceedings. Divorce petitions were up 6% compared to same period in the previous year. As to timeliness, the average time from the date of petition to the pronouncement of the decree nisi was 33 weeks, up 6 weeks from the same period in 2018, whilst the average time from petition to decree absolute was 59 weeks. The Ministry of Justice says that these represent the highest figures so far for the periods covered by the bulletin, and are a result of divorce centres processing a backlog of older cases.

The eleven divorce centres, which now deal with all divorce cases, have been heavily criticised for being inefficient, including by the former President of the Family Division Sir James Munby. In February we reported here that delays at the country’s largest divorce centre at Bury St Edmunds reached ‘unprecedented levels’ in 2018. As we said then, longer divorces cause increased stress and suffering for people going through what is already one of the most difficult times in their lives. It is therefore imperative that these problems are resolved. How that might happen is not clear, although the current President Sir Andrew McFarlane recently hinted that the centres might be phased out and replaced by an online system.

You can find the statistical bulletin here.

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Image: Ministry of Justice, by morebyless, licensed under CC BY 2.0.

The last thing that we here at Family Law Cafe want to do is take sides in the argument over who should or should not be this country’s next Prime Minister. However, there is an important message to take from the reporting of an incident the other day at the home of Boris Johnson and his partner, Carrie Symonds.

The important message is this: if you are concerned that a serious incident of domestic abuse may be taking place then you should report it to the police. Some have argued that what happened between Mr Johnson and Ms Symonds was private and should not have been reported. However, it would be a serious retrograde step if concerned neighbours felt they should not report their concerns because that might breach someone’s privacy. A large number domestic abuse incidents only come to the attention of the police because they are reported by concerned neighbours, and failing to report could put many victims at risk.

It is of course true that everyone is entitled to privacy in their own home, and we are not for one moment suggesting that anyone should pry into the private life of a neighbour. However, an altercation that is so loud that it can be heard by others is no longer private. We are not of course saying that anything untoward happened at Mr Johnson’s home, just that genuine concerns should be passed on to the authorities. Domestic abuse is a scourge that we all have a duty to address.

If you are a victim of domestic abuse then there are steps you can take to protect yourself. For a summary, see this post. For further information, please contact us. To book a free initial consultation, click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Boris Johnson from Flickr, licensed under CC BY 2.0.

We reported back in February that the justice secretary, David Gauke, had confirmed that he would bring in legislation enacting no-fault divorce. The legislation was introduced into the House of Commons, in the form of the Divorce, Dissolution and Separation Bill, last Thursday.

The Bill will:

• Replace the current requirement to evidence either a conduct (i.e. adultery or ‘unreasonable behaviour’) or separation ‘fact’ as proof of the breakdown of the marriage with the provision of a statement of irretrievable breakdown of the marriage (couples can opt to make this a joint statement).

• Remove the possibility of contesting the decision to divorce, as a statement will be conclusive evidence that the marriage has broken down.

• Introduce a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a ‘conditional order’ (which will replace the present ‘decree nisi’) may be made, allowing greater opportunity for reflection and, where couples cannot reconcile and divorce is inevitable, agreeing practical arrangements for the future. (The divorce cannot be finalised until six weeks have elapsed after the date of the conditional order.)

Mr Gauke said:

“Marriage will always be a vitally important institution in society, but when a relationship breaks down it cannot be right that the law adds fuel to the fire by incentivising couples to blame each other.

“By removing the unnecessary mudslinging the current process can needlessly rake up, we’ll make sure the law plays its part in allowing couples to move on as amicably and constructively as possible.

“I’m proud to introduce this important legislation which will make a genuine difference to many children and families.”

And Margaret Heathcote, Chair of Resolution, the association of family lawyers, commented:

“We’re delighted that the government is introducing legislation which will help reduce conflict between divorcing couples.

“Every day, our members are helping people through separation, taking a constructive, non-confrontational approach in line with our Code of Practice. However, because of our outdated divorce laws, they’ve been working effectively with one arm tied behind their backs.

“These proposals have the support of the public, politicians, and professionals. We therefore call on MPs and members of the House of Lords to pass this Bill without unnecessary delay, and end the blame game for divorcing couples as soon as possible.”

Family Law Cafe are also delighted that the Bill has been introduced, and hope that it will be quickly passed, so that all matrimonial disputes can be resolved without the necessity for attributing blame for the breakdown of the marriage, thereby increasing the chances of the parties resolving matters amicably.

MPs will next consider the Bill at its Second Reading, the date for which has not yet been announced.

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Image of David Gauke: Chris McAndrew [CC BY 3.0], via Wikimedia Commons

For most couples, the personal affair of divorce is dealt with away from prying eyes – but spare a thought for Adele, who is to divorce from Simon Konecki, writes Joanna Toch

A divorce is rarely a pleasant affair, and despite the recent changes to law which will soon make it possible for couples to divorce without ascribing blame to one party, the fact is that the person you once intended on spending your life with is no longer by your side, and the division of assets can be an immensely distressing experience. When there are children involved, the process is inevitably even more emotionally charged.

For most couples, this intensely personal affair is dealt with away from prying eyes – but spare a thought for the likes of Adele, who this month announced her divorce from Simon Konecki, to the interest of tabloids up and down the country. There are however steps that can be taken to keep information out of the public eye, and it seems that Adele may have successfully used these, opting for out of court procedures to transfer properties, and agree the financial and childcare aspects outside of a courtroom. Fiercely protective of their six year old son, the couple have done all they could not to wash their dirty linen in public.

It is not easy, though: for couples in the public eye, a divorce is considered fair game by journalists, whose editors’ opinion is generally that their decision to be a celebrity means that no aspect of their private life is off limits. At an already stressful time, this intrusion can feel almost impossible to handle.

Rules of court allow journalists to attend private court hearings to which members of the public are denied, but judges have expressed differing views on what they can report, and whether people can be named, making it tricky to predict the media fallout of a high profile divorce. There is also inconsistency between the different levels of court – if the case goes to the Court of Appeal or the Supreme Court, parties are routinely named, whereas at a lower level they may or may not be.

The dissolution of a marriage is a fact of public record, and the decree hearing is always open to both the public and the press. No matter how much you may want to, you cannot hide the fact of being divorced from the public.

That said, there are laws that can be utilised to limit the volume and type of coverage if you’re in the public eye and, where there are children involved, it is easier for your lawyer to argue that intense media scrutiny could cause damage to those children. The court generally, though not always, protects the privacy of children: it is a criminal offence to report a children’s case while it is happening, and the court can rule that reporting restrictions should endure indefinitely.

There is no guarantee the court will grant a request for anonymity: in the case of Spencer v Spencer in 2009 (where one of the parties was Earl Spencer), Lord Justice Mumby declined to grant the request of both parties for a media gagging order. Mumby argued that it would be “potentially dangerous, very dangerous, territory……. to privilege one group of the community – those who attract the attention of the media – over and above another group who do not.”

So, what should you do if you are seeking a divorce and suspect the media will take an interest? The fact of your divorce will unavoidably end up in the public domain, but the details of, for example, your financial settlement can still be protected by taking the following steps:

Choose your lawyer wisely

It sounds simple enough, but it is crucial that you speak to the right lawyer early on to ensure that you do not take your case down a fruitless and expensive path. There is no ‘one size fits all’ approach to divorce, so you need to appoint an appropriately skilled lawyer to look at your situation and develop the right strategy at outset.

Consider out of court options

Your lawyer should advise you to engage in mediation. Through this process, voluntary disclosure and mutual pursuit of a consent order, the details of a divorce can be concluded out of court and with minimal or no acrimony. If court proceedings do start, you can ask the other party to have private lawyer-led mediation within the proceedings, where a lawyer considers each party’s position and advises on settlement.

You may also wish to consider binding arbitration. In these cases, the parties choose their judge and the arbitration process takes place in private. The court will then make an order laying out the terms of the divorce.

As acrimonious as these things can be, there are three major benefits to keeping the contest out of court : you will save yourself significant legal fees, avoid a protracted courtroom battle, and finally the case will never be heard in court in front of journalists.

Embrace technology

The idea of taking hours out of a day to sit in a room with an ex-partner and discuss the allocation of assets may fill many with dread, but there are a number of ways to ensure that your time is not wasted during the process, such as online portals that allow documents and case materials to be held securely online and accessed only when needed.

In a world in which all of us can bank, shop and even buy a property online, there is equally no need to spend hours in a lawyer’s office these days. For those who have busy schedules or are finding the process more taxing that it needs to be, systems such as these can be a lifeline. It is important to investigate the options available and find one that best fits your needs.

None of us wants to launder our dirty linen in public. A divorce is not a pleasant process, but with strategic thinking, a good lawyer, a willingness to settle outside of court and embracing technology, it needn’t a public one.

Joanna Toch is founder of the Family Law Café, an ‘online service which provides access to the best lawyers, saves time and improve the efficiency of the legal process’.

This article first appeared in Spear’s Magazine.

Image of Adele by Marc E. [CC BY 2.0], via Wikimedia Commons.

It has been reported in the popular press that Brad Pitt, concerned that his wife Angelina Jolie is delaying their divorce, has issued her with an ‘ultimatum’ to sign the divorce papers, or else he will ask the court to impose a fine on her. Such a procedure is not available here, but what can you do if your spouse is delaying the divorce?

Well, it depends upon whether you are the party taking the divorce proceedings, the basis of the divorce, and the stage that it has reached.

If you issued the divorce petition then you may be able to proceed with the divorce even if your spouse has failed to acknowledge receipt of the divorce papers. If you can prove that they have received the papers (for example by having a process server personally serve the papers upon them), then you can ask the court to proceed with the divorce. However, you will still have to prove the basis of the divorce. If the divorce is on the basis of your spouse’s ‘unreasonable behaviour’, or five years separation, then this may not be a problem. However, if the divorce is on the basis of your spouse’s adultery then you will need to prove the adultery without an admission from them, and if the divorce is on the basis of two years separation, then you will not be able to proceed without your spouse’s consent to the divorce.

If you did not issue the divorce then, if the decree nisi has not been pronounced, there is nothing that you can do to force the divorce through, other than to issue a cross-petition of your own. However, if the decree nisi has been pronounced then you can yourself apply for the decree absolute, finalising the divorce, three months after your spouse could have applied, i.e six weeks plus three months after the date that the decree nisi was pronounced.

There is another issue that can be a factor in how long a divorce takes: the financial settlement. Often, a divorce should not be finalised until the settlement has been reached. In that case, you should obviously seek to reach a settlement as soon as possible, whether by agreement or court order.

The above is a brief summary of the law. For further details, please contact us. To book a free initial consultation, click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Angelina Jolie and Brad Pitt by Georges Biard [CC BY-SA 3.0], via Wikimedia Commons.

It has been reported that singer and actress Fergie Duhamel wants to revert to her birth name of Stacy Ann Ferguson, when she divorces her husband Josh Duhamel. It is, of course, quite common for a wife to want to revert to her maiden name when she divorces, but just what is involved?

The reports state that Fergie has asked the judge dealing with her divorce to legally change her name. However, that is not how it works in this country – changing names is not a function of the divorce courts here.

In this country your name is quite simply what you want other people to call you. Accordingly, you can change your name at any time, and technically you don’t need to take any legal steps to effect the change. However, it may be necessary to have some documentary proof of the name change, as this will be required by certain organisations you may have to deal with. In that case, you can have a simple change of name deed drawn up. You can then send the signed deed, or a certified copy, to anyone who requires proof of your name change.

It should be noted, however, that you cannot change the name of your children when you divorce, without either the consent of the other parent (and anyone else with parental responsibility), or a court order. Courts are not usually prepared to agree to the change of a child’s name, unless there is a very good reason.

For further details regarding change of name on divorce, see this post. If you require more specific advice, then please contact us. To book a free initial consultation, click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Fergie by Craig ONeal [CC BY 2.0], via Wikimedia Commons.

Boris Johnson is back in the news, and not just because he is the front-runner in the race to be the next leader of the Conservative Party. Stories in the popular news media are telling us that he is seeking a ‘quickie divorce’ from his present wife within the next six weeks, so that his new partner can move in to Number 10 Downing Street with him, if he wins the leadership contest and becomes Prime Minister.

But as we already know, there is no such thing as a ‘quickie divorce’. So will Mr Johnson get a divorce that quickly? The answer is: ‘it depends’.

A divorce cannot normally take place from start to finish within six weeks. The divorce petition has to be issued, the court must deal with the papers, a date is fixed for the pronouncement of the decree nisi, and only six weeks after that can the divorce be finalised. Even with the best will in the world, that process will take at least three months, and usually six months or more. In addition, a divorce is not usually finalised until a financial settlement has been reached, which may mean the divorce takes considerably longer than that.

However, we know that Mr Johnson’s divorce was issued last September, and it has been reported that he may have reached a financial settlement with his wife. If that is so, it could be that the divorce can now be finalised quite quickly. However, so far as we are aware, the decree nisi has not yet been pronounced and, as we have seen, six weeks must elapse after that before the divorce can be finalised by the decree absolute. Accordingly, it would appear that Mr Johnson will not be divorced in time to take his new partner with him through the door to Number 10, assuming he wins the leadership contest.

It has also been reported that Mr Johnson hopes to marry his new partner whilst he is Prime Minister. If he does, then he will be the first Prime Minister to marry whilst in office in the last 250 years. Only two sitting Prime Ministers have married whilst in office, the last being Augustus FitzRoy, in 1769.

If you would like more information regarding the length of time it takes to divorce, Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: TV Interview With Boris by Garry Knight, licensed under CC BY 2.0.

In the last few days the breakdown of the marriage of the celebrity chef and television presenter Paul Hollywood has been in the news, occupying many column-inches in the popular press. However, as with so many celebrity divorces, the stories perpetuate various common myths surrounding divorce.

The stories all refer to Mr Hollywood’s new relationship with a 24 year old woman, and speculate that his wife Alex will issue divorce proceedings on the basis of his adultery. However, we are told, Mr Hollywood denies that he has committed adultery, as the relationship only began after he and his wife separated. We don’t know whether this report is true, but it does highlight a myth about adultery: that it can only happen if the husband and wife are still living together. This is simply wrong: adultery is still adultery even if they are separated.

The stories also suggest that Mr Hollywood’s adultery could have a bearing upon any financial settlement. Again, this is a myth. Adultery has no bearing whatsoever. In fact, the conduct of the parties only has a bearing in an extremely small number of cases, when it is especially bad.

The other myth comes from the report that Mrs Hollywood is seeking to “have her day in court”, where she can finally have her “say over the end of their 20-year marriage”, following the breakdown of mediation between the parties regarding financial matters. This suggests that she will have an opportunity “get her own back”, by blaming her husband in court for the breakdown of the marriage. She will not. If the parties are not able to resolve financial matters by agreement, there will be a financial remedies hearing, but the court will not be interested in the reasons for the breakdown of the marriage, as they are not relevant to the issue of any financial settlement.

If you would like advice regarding the factors that are relevant to any financial settlement, Family Law Cafe can provide it. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Paul Hollywood by Tim Fields [CC BY 2.0], via Wikimedia Commons.

Mandy Gray was married to William Randall (‘Randy’) Work for eighteen years, until the marriage came to an end in 2013. When they met they had no significant financial resources, but during the course of the marriage Mr Work amassed a fortune worth about £180 million. The parties were divorced and in 2015 the High Court ordered that the assets of the marriage should be divided equally, thus Miss Gray received some £90 million. Mr Work appealed against that order, but his appeal was dismissed by the Court of Appeal in 2017.

After the marriage broke down Miss Gray began an affair with her physical therapist. During the course of the affair the couple acquired various luxury assets, including an Italian villa and four ‘supercars’. The affair came to an end in January, and now Miss Gray is suing her former boyfriend for the value of the assets, said to be worth more than £20 million. Miss Gray claims that she is the sole owner of the assets, whereas her boyfriend claims that they are owned jointly. The case is being heard by His Honour Judge Rawlings in the High Court in London.

Until (or unless) the case is finally heard and officially reported, we cannot speculate upon the details of the financial arrangements between Miss Gray and her boyfriend. However, the case does illustrate the need to seek proper legal advice before entering into any significant financial arrangement with your cohabitee. It should be made quite clear who owns what, and if necessary the parties can enter into a ‘cohabitation agreement’, setting out how their assets will be owned, and how they will be divided in the event that the relationship should break down (under current English law, assets of cohabiting couples will usually belong to whoever owns them, unless it is agreed otherwise).

If you are in a cohabiting relationship, or about to enter such a relationship, and require advice regarding how to protect your financial assets, then Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Ferrari 458 by Nan Palmero from San Antonio, TX, USA [CC BY 2.0], via Wikimedia Commons.

As will now be well known, the Ministry of Justice intends to press ahead with the introduction of no-fault divorce, as soon as Parliamentary time allows. The reform has been welcomed in many quarters, but there are still some who oppose it.

Last month Fiona Bruce, Conservative MP for Congleton, asked the Lord Chancellor David Gauke in the House of Commons the following question:

“…what is the justification for the Government cherry-picking not just public opinion, which, according to the responses to their own consultation, is 80% against the proposed changes, but the evidence they rely on, with Ministers seeming to ignore evidence that there will be an immediate spike in divorce rates, which will impact negatively on the families involved?”

Mr Gauke replied:

“I have to disagree with my hon. Friend on this point. It is true that there was a surge of submissions to our consultation in the last couple of weeks, but the fact is that a YouGov poll on the day the proposals were set out suggested 73% support for them. Indeed, we have had support from the Law Society, Resolution, the Family Law Bar Association, Sir Paul Coleridge—the chair of the Marriage Foundation—Relate and National Family Mediation. This reform will help families and ensure that the divorce process is less acrimonious.”

Notwithstanding that reply, Ms Bruce, who is also a solicitor, has told the Law Society Gazette that “the government has cherry-picked the evidence and ignored the warnings that these changes will make divorce easier.” She went on:

“The removal of fault sends out the signal that marriage can be unilaterally exited on notice by one party with little, if any, available recourse for the party who has been left. There will be far less pressure, or incentive, to work at the relationship in such circumstances.”

But is it true that no-fault divorce is likely to lead to a spike in the number of divorces? We are not so sure that it is.

We do not believe that many people take divorce proceedings lightly, irrespective of the law. They only go ahead with divorce when they are certain that the marriage has irretrievably broken down, and all avenues aimed at repairing it have already been explored. They are not more likely to get divorced simply because the system is easier. And having a system that makes it more difficult to get divorced will not save a broken marriage, it will only prolong it.

The introduction of no-fault divorce is not about making divorce easier. As Mr Gauke said, it is about making it less acrimonious. Removing the need for one party to attribute blame for the breakdown of the marriage to the other party is likely to reduce conflict, and therefore increase the likelihood of the parties settling other matters, such as arrangements for children and finances, by agreement.

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Image: Ministry of Justice Plaque, by Simon Gibson, licensed under CC BY 2.0.

Recent news reports have claimed that singer-songwriter Adele has ‘secretly divorced’ her husband, Simon Konecki. But is it possible to get a ‘secret divorce’?

It is certainly possible to be discreet about the fact that you are not getting divorced: not ‘broadcasting’ the fact and, in the case of celebrities, not informing the media. However, like marriage, divorce is a matter of public record. It is not therefore possible to keep it entirely secret.

When the court is satisfied that you are entitled to a divorce, it will pronounce the ‘decree nisi’. A list of cases due for the pronouncement will be published by the court, and can be seen on the court’s public noticeboard. The pronouncement itself takes place in a hearing in open court, at which anyone can attend (although usually no one does!).

And after the divorce has been finalised, details of it (or at least of the decree absolute) will be placed on a central index of decrees absolute maintained by the Central Family Court in London. Anyone can search the index, and can obtain a copy of the decree absolute, for a small fee. Divorce case files for older divorces up to 1937 are held at The National Archives.

So it is not possible to be divorced in secret, no matter what the headline writers may say!

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Image of Adele by Marc E. [CC BY 2.0], via Wikimedia Commons.

The Ant McPartlin divorce is back in the news again. It has been reported that the divorce is in ‘deadlock’, with the parties unable to reach an agreement on a financial settlement.

We don’t know the details of what is happening in the McPartlin divorce, but obviously it is not uncommon that matters grind to a halt without an agreement being reached. What can you do if this happens to you?

The first thing to say is that you cannot force the other party to put forward settlement proposals, or to respond to any proposals you make. However, the court will usually take a very dim view of any party that does not make a reasonable effort to negotiate, and may ultimately penalise them with a costs order.

If the other party simply refuses to enter into negotiation then you may have no alternative other than to take the matter to court. Similarly, if the parties are so far apart in their proposals that agreement seems impossible, then again it may be necessary to take the matter to court. However, in that instance there are alternatives.

The first alternative is mediation. This is a voluntary process whereby a trained mediator will try to help the parties settle matters by agreement, even if they seem way apart. If an agreement can be reached then it will be made into a binding court order.

Another alternative is arbitration. This is different from mediation, in that the arbitrator’s decision will be binding, and therefore arbitration will definitely bring the case to a conclusion. Arbitration is again voluntary, but it can be much quicker than going to court.

For further information about resolving matters out of court, see this post.

If your divorce seems to be going nowhere, there are steps that you can take to break the deadlock. Family Law Cafe can help you to do this. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Anthony McPartlin by Ben Salter (From Flickr) [CC BY 2.0], via Wikimedia Commons.

The Nuffield Foundation has published a report exploring the legal and procedural details of the divorce process in selected other jurisdictions. The analysis was conducted to inform policy debates about how the law in England and Wales might be reformed in practice.

As we reported here, the justice secretary, David Gauke, recently confirmed that he will bring in legislation enacting no-fault divorce, in the next session of Parliament. However, the detail of the legislation is still to be decided. The Nuffield Foundation report examines what lessons can be drawn from eight other comparable jurisdictions: Australia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden.

The report indicates that the Government’s proposal for no-fault divorce is fully consistent with international trends. Indeed, the report finds that there is an international trend away from requiring any ground for divorce at all. However, the report’s authors say that the Government’s proposed process for divorce “is somewhat onerous compared to other countries.”

Amongst the issues that the report looked at were the time periods required for the divorce process (the Government is proposing that there be a minimum period of six months between the granting of a decree nisi and the granting of a decree absolute), whether the divorce can be defended, and whether the marriage should be of a minimum duration before a divorce can take place (the Government is proposing that the current bar on issuing a divorce in the first year of marriage be retained).

You can read the report here.

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Image: Family Law Cafe (flags in public domain)

It has been reported in The Japan Times that, with the divorce rate increasing in the country, more Japanese couples are entering into pre-nuptial agreements.

The primary reason that Japanese couples are entering into pre-nuptial agreements is, of course, to protect themselves financially should the marriage break down. However, the report states that the agreements are also being used to impose conditions upon how the parties behave towards one another during the marriage, for example sharing domestic chores, contacting each other every day, and always spending their wedding anniversaries together.

Pre-nuptial agreements are also attracting increasing interest in this country, even though they are not strictly legally binding here. Despite that, the courts here are likely to go along with the terms of an agreement, if they are considered to be fair. Having said that, the courts here would be unlikely to be interested in enforcing the sort of conditions in agreements mentioned above!

For a brief summary of how the courts in this country approach pre-nuptial agreements, see this post.

If you are considering entering into a pre-nuptial agreement, or would like any further advice about them, Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image of Japanese Wedding by ThisParticularGreg, licensed under CC BY 2.0.

How to cut through court delays

Last week a headline appeared in a national newspaper declaring: “Long court delays lead to boom in private divorces”. But what exactly is meant by the term ‘private divorce’?

Of course, there is no such thing as a ‘private divorce’. Divorces are dealt with by the court, and that cannot be circumvented. However, parts of the processes connected with divorce can be dealt with privately, by the agreement of the parties.

The primary reason for agreeing to deal with matters privately is that, as the newspaper headline indicated, they can often be dealt with much more quickly than they would be dealt with by the court. Often, court hearings are fixed some way into the future, and then it is not unusual to find that the judge is too busy to deal with the case on the day fixed for the hearing, leading to further delays.

To get around this, many litigants are agreeing to go private in order to progress matters more quickly. The most common examples of this relate to financial remedy proceedings connected to the divorce.

At an early stage in financial remedy proceedings a ‘Financial Dispute Resolution’ (‘FDR’) appointment takes place, at which the judge will try to help the parties settle the matter by agreement, failing which they will give directions as to how the case should proceed. For a fee the parties can appoint a specialist family lawyer to carry out the FDR privately, usually much more quickly than the court would deal with it.

Another example is arbitration, whereby a trained family arbitrator will make a final decision on a family dispute, which will be binding upon the parties, just the same as a court’s decision. Again, arbitration is likely to be much quicker than waiting for the court to deal with the matter. For more detail about the arbitration process, see this post.

If you would like more information about private FDRs and arbitration, Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: PRIVATE, by Tristan Ferne, licensed under CC BY 2.0.

The Judicial Executive Board (‘JEB’), through which the Lord Chief Justice exercises executive and leadership responsibilities for the judiciary, has published its response to a consultation concerning possible reforms to the courts’ approach to lay individuals, commonly known as McKenzie Friends, who help individuals who litigate without the assistance of a lawyer. The consultation was launched by the JEB in 2016, following concerns about the growth in reliance on McKenzie Friends, particularly fee-charging ones, as a result if the legal aid cuts in 2013.

The response stated that:

“The JEB remain deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers.”

The response did not, however, recommend that there should be a ban on fee-charging McKenzie Friends, saying that that is a matter for the government to consider. Instead, the JEB support the view that a ‘plain language guide’ for McKenzie Friends and litigants-in-person should be produced, and that the current practice guidance on McKenzie Friends should be updated and reissued, to ensure that it properly reflects the current law.

You can read the Consultation Response here.

Family Law Cafe shares the judiciary’s concerns over McKenzie Friends. If you need legal assistance for a family law problem then your best course of action is to instruct a professional lawyer, who you can be sure is qualified to help you, is fully regulated and insured. We can put you in touch with such a lawyer. However, we recognise that not everyone can afford to pay for a lawyer to represent them throughout a case. For that reason we offer a personalised service that takes into account your financial situation, allowing you to choose what level of service you want and can afford.

To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: St Georges Hall Court Room, by Michael D Beckwith, public domain.

It has been reported that delays at the country’s largest Divorce Centre at Bury St Edmunds reached ‘unprecedented levels’ in 2018.

The report, contained in the Law Society Gazette, says that:

“Average waiting times for each stage of the divorce process at Bury St Edmunds increased markedly last year, confirming many lawyers’ long-held fears about the centre’s ability to cope.”

The figures, obtained from HM Courts and Tribunals Service (‘HMCTS’), revealed that it took 373 days on average from the issue of a divorce petition to decree absolute in 2018, a 9% increase from 2017; that the eight-day wait for issuing a petition more than doubled in a year; and that the average time from the issuing of a petition to decree nisi increased 17%, to an average of 195 days.

HMCTS responded by saying that it had recently increased staff numbers at the centre, as a result of which performance had improved. A spokesman also pointed out that the new online divorce service is speeding up the application process significantly.

The eleven Divorce Centres were established in 2015, taking over the work of dealing with divorces from more than one hundred Divorce County Courts spread across the country. It has always been the worry of divorce lawyers that the centres would find it difficult to deal with the 100,000-plus divorces issued each year. And the position of Bury St Edmunds is the worst, as it covers London and the South-East, accounting for some 40% of all divorce petitions.

Whilst Family Law Cafe understands the need for rationalisation in these difficult economic times, longer divorces cause increased stress and suffering for people going through what is already one of the most difficult times in their lives. We hope therefore that the necessary resources are found to ensure that divorces are dealt with as quickly as possible, in all Divorce Centres.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: Delayed, by Jordlet, licensed under CC BY 2.0.

The justice secretary, David Gauke, has confirmed that he will bring in legislation enacting no-fault divorce, in the next session of Parliament. The announcement brings this long-awaited reform a step closer to reality.

But exactly what is the new legislation likely to say? The detail has not of course yet been decided, but these are the Government’s proposals:

1. That the sole ground for divorce, i.e. that the marriage has broken down irretrievably, be retained.

2. That there no longer be any necessity to prove irretrievable breakdown, for example by showing that the other party has committed adultery or behaved unreasonably. Instead, it will just be necessary for one or both of the parties to file with the court a notice that the marriage has broken down irretrievably.

3. That the divorce still be a two-stage process (decree nisi and decree absolute), but that there be a minimum period of six months between the granting of a decree nisi and the granting of a decree absolute.

4. That the opportunity to contest the divorce be removed – there will be no more defended divorces.

5. That the current bar on issuing a divorce in the first year of marriage be retained.

It appears that the idea of no-fault divorce is generally supported. We suspect that the only one of these proposals that is likely to be subject to change is the third, with the ‘period for consideration of the decision to divorce’ possibly being altered.

Of course, all of the above depends on Parliament having time to pass the legislation. In particular, it would be seriously delayed (or worse) if its progress is interrupted by a general election.

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Image: Family Law Cafe

It’s always nice to receive positive testimonials from satisfied customers, especially when you have created an innovative new service for them. Without such feedback, it’s not always easy to know whether your creation is on the right lines.

Family Law Cafe received two more positive testimonials from satisfied customers over the past week, both on the same day, and we wanted to share them with readers.

Both of the testimonials came via Twitter, addressed to our CEO Joanna Toch (@Joannatoch) (we are omitting the customers’ Twitter names for privacy reasons, but thank you to you both!).

The first testimonial read:

and this was the second:

We were particularly pleased that both customers were happy not just with our personal service, but also with our secure online portal, which really sets us apart from what other providers are offering. The portal contains all of your case materials, which you can view at any time, and also enables you to see any important dates in your case calendar.

For further information about our service, or to book a free initial consultation, click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

You can read further testimonials from satisfied Family Law Cafe customers here.

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Image: Family Law Cafe

Last week the National Centre for Social Research published findings from this year’s British Social Attitudes Survey which revealed that almost half of people in England and Wales mistakenly believe that unmarried couples who live together have a common law marriage, and enjoy the same rights as couples that are legally married.

The findings showed that 46% of those surveyed were under the impression that cohabiting couples form a common law marriage, a figure that remains largely unchanged over the last fourteen years, despite a significant increase in the number of cohabiting couples in that time. And people who have children were found to be significantly more likely to believe in common law marriage: 55% of households with children thought that common law marriage exists.

There is, of course, no such thing as a common law marriage. Merely living together does not give the parties the same rights as those who are married. As a result, the more vulnerable party can suffer severe financial hardship should a cohabiting couple separate, for example where they have interrupted their career to raise children, and where the home is owned by the other party.

It is therefore important that you do not fall into the trap of believing that just because you live with someone you automatically become their ‘common law’ spouse, and acquire the same rights as a married person.

For further information on what rights a person has upon cohabitation breakdown, see this post. If you would like specific advice as to what you can do to protect yourself if you cohabit, or as to what you can do on the breakdown of a cohabiting relationship, book an initial consultation with us by clicking the green button at the top of this page and filling in the form, or call us on 020 3904 0506.

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Image: Solihull Register Office, by Elliott Brown, licensed under CC BY 2.0.

The Government has today published a draft Domestic Abuse Bill, aimed at supporting victims and their families, and pursuing offenders.

The draft Bill includes provisions to:

• introduce the first ever statutory government definition of domestic abuse, to specifically include economic abuse and controlling and manipulative non-physical abuse;

• establish a Domestic Abuse Commissioner to drive the response to domestic abuse issues;

• introduce new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders to further protect victims and place restrictions on the actions of offenders; and

• prohibit the cross-examination of victims by their abusers in the family courts.

The proposed Bill is in response to a consultation on domestic abuse that the Government carried out last year.

Home Secretary Sajid Javid said:

“Domestic abuse shatters lives and tears families apart. It can happen anywhere, to anyone. Protecting victims, as well as supporting survivors, is at the heart of our strengthened response to this horrific crime. Our draft Domestic Abuse Bill and wider package of measures, unveiled today, will bolster the protection for victims and will help expose and bring the vile abusers to justice.”

Family Law Cafe welcomes the draft Bill, in particular the provision prohibiting the cross-examination of alleged victims by their alleged abusers in the family courts.

For further information about how you can protect yourself from domestic abuse, see this post. If you would like to know more about protecting yourself from domestic violence and abuse, or if you would like to apply for a court order, Family Law Café can help. To book an initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

You can read the Government’s consultation response, including the draft Bill, here.

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Image: Domestic Violence by CMY Kane, licensed under CC BY 2.0.

Last week Amazon CEO Jeff Bezos, reputedly the world’s richest man, announced that he and his wife MacKenzie are seeking a divorce. The news has caused a stir amongst divorce lawyers around the world, but what could it mean in terms of a divorce settlement?

Relevant factors are that the couple were married in 1993, a year before Mr Bezos founded Amazon. It has been reported that they did not enter into a prenuptial agreement, so any settlement would be calculated by reference to the relevant divorce laws. According to the American business magazine Forbes, Mr Bezos has an estimated net worth of $122 billion.

Mr and Mrs Bezos reside in Washington state, which uses a “community property” approach to decide how to divide assets on divorce. Under this approach, all property acquired after the date of the marriage is presumed to be “community property”, in which each spouse has an interest. Unless one spouse can show that a specific item of property falls within an exception to this rule, all of the assets acquired during the marriage could be divided equally. This could mean that Mrs Bezos would receive the largest divorce award ever.

If the divorce were taking place in England there could potentially be a similar result, as the English courts use the “sharing principle”, whereby each party is entitled to an equal share of the assets of the marriage (i.e. the assets acquired during the marriage), unless there is a good reason to the contrary.

Happily, Mr and Mrs Bezos have indicated that the separation is amicable. We hope that it remains that way, and that they are able to resolve matters between them by agreement, rather than through the courts.

If you would like any further information as to the principles that the courts in this country use to decide financial settlements on divorce, see this post. For more detailed advice regarding your own case, book an initial consultation with us by clicking the green button at the top of this page and filling in the form, or call us on 020 3904 0506.

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Image of Jeff Bezos by Seattle City Council from Seattle [CC BY 2.0], via Wikimedia Commons.

Much has been made in the media over the last week of the success of the Ministry of Justice’s online divorce service, which was launched last April. Figures revealed by the Government showed that since then more than 23,000 online applications for divorce have been made. It has also been revealed that 455 applications were filed between Christmas Eve and New Year’s Day, with 13 submitted on Christmas Day itself.

Of course only the divorce procedure itself can presently be dealt with online. Other aspects of the divorce, such as dealing with financial matters and arrangements for children, still have to be dealt with ‘on paper’, as do other types of family cases.

Commenting upon the figures Justice Minister Lucy Frazer QC said:

“These online services are already making a difference to people who use the justice system. As we reach this milestone it’s encouraging to see people are reporting these services work well for them and are a better fit around their busy lives.”

We agree that people who have family law problems find it convenient to be able to deal with the matter online where they want, and when they want. That is why we provide our customers with access to a secure online digital platform, which contains all of your case materials, no matter what type of family case it is.

As well as viewing all of your essential case papers, the platform enables you to see any important dates in your case calendar, and speak with your Expeditor (an experienced lawyer, who will help you with key decisions) and case experts by instant messaging.

Family Law Cafe. The future is already here.

For further information about our service, or to book a free initial consultation, click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: Family Law Cafe.

The first working day of the year is supposed to be ‘Divorce Day’, the day when family lawyers receive more new divorce instructions than on any other day of the year. As one local newspaper put it:

“Family lawyers across the land are rubbing their hands together in eager anticipation of their busiest time of year – Divorce Day.

“It’s the day solicitors get a nice boost to their business as they see a surge in separation enquiries after the pressures of the festive break.”

Well, we can tell you that family lawyers do not ‘rub their hands together’ in anticipation of “a nice boost to their business”. Many family lawyers will actually tell you that there is no such thing as ‘Divorce Day’ – that it is nothing more than a media invention.

Whatever, if you have decided that now is the time to bring your marriage to an end, you will need the best help you can find. This is where Family Law Cafe can assist.

Upon receiving instructions from you we will carry out an assessment and direct you to the best lawyers and experts that you need to deal with your particular case. We will prepare a strategic plan for the case, and ensure that you only spend money on what you need to bring the case to a successful conclusion.

As your case progresses you will have 24-hour access to all of your important documents, via our secure online portal. And throughout the case you will be able to seek advice and support from a mentor that will be assigned to your case.

For further information, or to book a free initial consultation, click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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We reported here last month that a Sharia court in Dubai had dismissed an application by a wife to enforce an English divorce court order that a £346 million luxury yacht, which is currently moored there, must be transferred to her as part of her divorce settlement.

The wife, Tatiana Akhmedova, was awarded £453 million from her Russian oligarch ex-husband Farkhad Akhmedov, by Mr Justice Haddon-Cave in the High Court in December 2016.

Well, the Dubai court order hasn’t stopped Mrs Akhmedova from seeking to recover the monies owed to her. It has now been reported that she has had a helicopter that was once used to ferry passengers to the yacht seized and sold, for about £4.5 million.

One of Mrs Akhmedova’s advisers is quoted as saying that: “The net has been closing on Mr Akhmedov for a while now, and the sale of this helicopter proves that our enforcement methods are not just working but bearing fruit”. However, a spokesman for Mr Akhmedov said that the net value of the helicopter was “negligible”, and that “Mr Akhmedov and the Akhmedov family trust remain confident that their legal efforts will continue to be successful in preventing the seizure of any meaningful assets”.

With respect, Family Law Cafe’s view is that a divorce court order must be obeyed. Whilst Mrs Akhmedova clearly has a long way still to go, the seizure of the helicopter at least sends out a message that parties should not expect to get away with wilfully failing to pay what a court has ordered.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image of a Eurocopter EC155, similar to the one owned by Mr Akhmedov, by AKS.9955 [CC BY-SA 4.0], from Wikimedia Commons.

The Ministry of Justice’s consultation on reform of the legal requirements for divorce closed on Monday, the 10th of December.

Responders to the consultation have included The Law Society, the representative body for solicitors in England and Wales; The Bar Council, which represents barristers in England and Wales; Resolution, the association of family lawyers; and the Family Law Bar Association, the specialist Bar Association for the Family Bar in England and Wales.

The Ministry of Justice is now analysing the feedback to the consultation, and when that has been completed it will publish the outcome, setting out the responses to the consultation, and the government’s own response to them, including how the government proposes to reform the law on divorce. It is expected that the outcome will most likely be published in the Spring of next year.

Family Law Cafe awaits the outcome with great interest, and hopes that the government’s final proposals provide a workable system that achieves the consultation’s aim of reducing conflict on divorce. If they do, then we could at last have a divorce system fit for the twenty-first century.

You can read the Ministry of Justice’s consultation document here.

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Image: Ministry of Justice, by morebyless, licensed under CC BY 2.0.

Back in October last year we wrote about the divorce of Her Royal Highness Princess Tessy of Luxembourg and her husband His Royal Highness Prince Louis, and the financial remedies application that the Princess issued in the High Court in London. The final hearing of that application, before Mr Justice MacDonald, has now taken place.

The outcome of the application might seem quite mundane, given the exalted status of the parties. It is also notable that the Princess represented herself at the hearing, with the assistance of a McKenzie Friend. Mr Justice MacDonald dismissed the Princess’s application for a property transfer order with respect to the former matrimonial home in London, and made an order providing a licence for the Princess and the two children of the marriage to occupy the home, terminable on six months notice, a nominal spousal maintenance order, and a child maintenance order in the sum of £4,000 per year per child.

He concluded his judgment by referring to the allegations that we mentioned in our previous post that the Princess was simply a ‘gold digger’, saying that: “Nothing could be further from the truth.” He went on:

“In his statement for this final hearing, the husband states that “We married young and much has been expected from the applicant in her role as Princess. She undertook that role with grace and represented my family well, for which I am grateful to her.” At its heart, this is simply a sad case about a young couple who determined to marry for love despite the considerable challenges posed by the way in which history, tradition and chance had conspired to define their respective social status and to shape attitudes towards their marriage. It is a case about a couple who thereafter, for a time, were happy together, before the fairy tale soured.

“The fact that the wife chose in these circumstances to pursue financial remedies, as is her right in accordance with the law, does not act to equate her with those people who cynically form relationships with partners in order to obtain money or status. Although a legitimate exercise of the right to freedom of expression, and whilst the point does not fall formally for me to determine, on the detailed evidence that has been available to me I take the view that the manner in which the wife has been traduced in some sections of the press by the use of that malign characterisation is both unfair and unwarranted.”

You can read Mr Justice MacDonald’s full judgment here.

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Image of Prince Louis and Tessy Antony by Schnékert (Own work) [Public domain], via Wikimedia Commons.

This week is Good Divorce Week 2018, a campaign run by Resolution, the association of family lawyers and other professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters.

Good Divorce Week is an annual campaign intended to promote a better way of getting divorced, minimising conflict between the parties and promoting the idea of settling disputes by agreement. This years’ campaign focuses on how separating or divorcing parents can limit the impact of conflict on their children, and also calls on the government to reform divorce law.

Resolution points out that its approach puts the best interests of children first, but says:

“However, although practitioners and parents are striving to limit the impact of conflict on children, the current fault-based divorce system has been shown to further exacerbate conflict. Two-thirds of our members have said that the current law makes it harder for separated parents to reach agreements.”

Family Law Cafe agrees. Family disputes should be resolved by agreement if at all possible. Minimising conflict makes agreement more likely, and most importantly reduces the chances of children being adversely affected when their parents separate. Doing away with the need to attribute blame for the breakdown of the marriage by introducing no-fault divorce removes an unnecessary cause of conflict.

If you want to find a lawyer who can help you try resolve a family dispute in a non-confrontational way Family Law Cafe can assist. To contact us, click the Contact link above and fill in the form, or call us on 020 3904 0506.

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Image: Handshake, by Amtec Photos, licensed under CC BY 2.0.

The Government has announced that early and late sittings are to be piloted in civil and family courts, “giving people greater access to hearings that can fit around their busy lives.”

The pilots will take place in two court sites: the Manchester Civil Justice Centre and Brentford County Court, and are expected to begin in spring next year. Whereas courts normally operate between 10.00 am and 4.00 pm, hearings in the pilot courts will begin at 8.00 am and end at 7.00 pm.

The pilots will run for six months, “testing whether civil and family buildings can be used more effectively; the benefits of making it possible for people to attend court outside of the traditional 10am – 4pm sitting day; and what more flexibility means for staff and legal professionals.”

Justice Minister, Lucy Frazer said:

“We want to make our courts and tribunals more accessible to the public. This pilot assesses whether and how we can give people greater flexibility in their busy lives.

“We listened carefully to the views of legal professionals and others before going ahead, and as a result flexible operating hours are not being piloted in criminal courts. We will now test different options relating to operating hours in two civil and family courts and an independent evaluation will be carried out before any decisions are made about further roll-out.”

You can read more about the pilot here.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image of Manchester Civil Justice Centre by Skip88 [Public domain], from Wikimedia Commons.

A Sharia court in Dubai has dismissed an application by a wife to enforce an English divorce court order that a £346 million luxury yacht ‘M V Luna’, which is currently moored there, must be transferred to her as part of the divorce settlement.

In December 2016 Mr Justice Haddon-Cave granted financial relief to Tatiana Akhmedova against her ex-husband Russian oligarch Farkhad Akhmedov in the sum of £453 million, and in April this year he ordered that the yacht should be transferred to her as part of the settlement. Mrs Akhmedova sought to have the order upheld in Dubai, but the Dubai court ignored the High Court order.

At 115 metres (377 ft) long, Luna is the world’s second largest ‘expedition yacht’ (i.e. yacht created for long distance cruising to remote areas of the world), and 23rd largest luxury yacht. It was formerly owned by Russian businessman Roman Abramovich, the owner of Chelsea Football Club.

The case has raised concerns amongst lawyers over the difficulties of enforcing English divorce court orders abroad, although it is understood that Mrs Akhmedova may not have exhausted all of her legal options in Dubai.

Of course if you cannot enforce an order then the order is effectively worthless. The best practical advice therefore must be to consult an expert upon the chances of recovering property abroad, before issuing any proceedings. Family Law Cafe can help you find such advice. To contact us, click the Contact link above and fill in the form, or call us on 020 3904 0506.

You can read the second judgment of Mr Justice Haddon-Cave here.

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Image: Mega Yacht LUNA, by Tomás Del Coro, licensed under CC BY 2.0.

Sometimes a celebrity divorce can act as a useful vehicle to educate the public upon the workings of the family court.

So it is with the divorce of TV presenter Ant McPartlin and his wife Lisa Armstrong, which has been back in the news this week, raising three separate issues.

The first story informed us that Mr McPartlin is reportedly paying his wife’s legal bills, “in a bid to get their split settlement finalised before Christmas.” We do not know if this is correct, but it is actually not that unusual for one party to pay the other’s legal bills. In fact, it is possible for one party to ask the court to order the other to make provision for their legal costs. This is called a ‘legal services order’.

The second story related to the couple’s pet dog, ‘Hurley’. Apparently, they are in a battle as to who will have ‘custody’ of Hurley. But if they can’t reach agreement, how would the court deal with such a dispute? The answer is that it will treat the pet like any other property, ordering that he should belong to one party or the other. It will not treat the pet like a child, setting out detailed arrangements as to each party’s contact with the pet. Accordingly, if you want such arrangements then you will have to agree them with the other party.

The last story relates to a hearing that was due to take place before Mr Justice Mostyn on Monday. Mr McPartlin should have attended the hearing, but failed to do so. He subsequently maintained that he had no intention to disrespect the court, and that he had been advised by his lawyer that he didn’t need to attend. Whatever, Mr Justice Mostyn told his QC: “There isn’t one law for the famous and one for the rest of the community. The rules say he was supposed to be here, and that can be reported. He has been told off.” The moral is clear: whoever you are, you must obey the rules of the court!

If you require detailed advice regarding any of these matters, then you should consult an expert family lawyer. Family Law Café can help you find an expert. To contact us, click the Contact link above and fill in the form, or call us on 020 3904 0506.

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Image of Ant McPartlin by Damien Everett, licensed under CC BY 2.0.

Yesterday the Chancellor of the Exchequer Philip Hammond delivered his Budget for 2018. The headline was his claim that the era of austerity is coming to an end. But what does the Budget mean for families and family law?

Here are some of the relevant points:

Perhaps the best news for families is that their income tax bills will be reducing, by more than was expected. The Chancellor announced that the government will raise the personal allowance from £11,850 to £12,500 and the higher rate threshold from £46,350 to £50,000, from April 2019, one year earlier than planned. The rises will mean an annual increase in income of £130 for basic-rate taxpayers, and £860 for higher-rate taxpayers earning up to £100,000.

The increase in the personal allowance will also mean that the marriage allowance will increase in April next year, from £1,190 to £1,250. The marriage allowance enables couples who are married or in a civil partnership to reduce their income tax bill by transferring a proportion of their personal allowance from one spouse/partner to the other, where the transferring spouse/partner has an income below their personal allowance, and the other spouse/partner is a basic rate tax payer.

Another important tax change relates to Capital Gains Tax (‘CGT’). CGT is a tax on the profit when you sell or dispose of an asset that has increased in value. However, a relief from CGT is available on any gain arising on the disposal of your only or main residence. This can cause a problem when a couple get divorced, one party moves out of the home and transfers their interest in the property to the other spouse: it is no longer their residence. However, if the transfer takes place within 18 months of them moving out, the relief will still apply. Under the Budget, this period will be reduced from April 2020, from 18 months to just 9 months.

Moving on, changes to where couples can marry were announced in the Budget. The government has asked the Law Commission to propose options for a simpler and fairer system to give modern couples ‘meaningful choice’ of wedding venues. This will include looking at “reducing unnecessary red tape and lowering the cost of wedding venues for couples.”

The last point that we wish to mention represents bad news for the family justice system, and for the justice system as a whole. The Chancellor may claim that austerity is coming to an end, but this will clearly not apply to all public services. The budget for the Ministry of Justice is to reduce by £300 million, from £6.3 billion in 2018/19 to £6 billion in 2019/20. This will mean that by the end of 2019/20, the Ministry’s day-to-day budget will have fallen by more than a third in the ten years since 2010/11. We will have to wait and see what effect this will have upon the quality of service that the justice system is able to provide.

You can find more details of the Budget here.

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Image of Philip Hammond by Chris McAndrew [CC BY 3.0 ], via Wikimedia Commons.

This morning the ITV breakfast show Good Morning Britain covered a story of a poll that indicated that 24 percent of 16-24 year-olds believe that marriage should be like a mobile phone contract, that can be renewed or terminated after two years.

It sounds preposterous, but is there some merit in such an idea?

The idea is not actually new, having been proposed by various people in recent years. For example, back in 2011 the authorities in Mexico City looked into the possibility of reducing divorce rates by the introduction of a renewable marriage contract, which would give couples a two-year trial-run to see if their marriage had what it took to stand the test of time. Perhaps not surprisingly the idea never became law.

That, however, was just for the first two years of marriage, rather than constantly renewable throughout the marriage.

No doubt many would be appalled at the idea that a marriage shouldn’t at least be entered into with the intention that it is to be a life-long commitment. However, the reality is of course that marriage is often not for life. The most recent figures show that 42% of marriages end in divorce. Could it be, as some of those Mexicans thought, that ‘renewability’ could actually be a good thing for the institution of marriage?

It could also obviously be a good thing for divorce rates, with incompatible parties simply deciding not to renew their marriage contract, rather than having to divorce.

And renewable marriage contracts could encourage spouses to regularly think about what, if anything, is wrong with their marriage, and therefore put it right, before drifting into a position when it is too late to repair the marriage.

So the idea of such contracts may not be as silly as may at first appear. Having said that, we very much doubt that we will see them in this country any time in the foreseeable future.

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Image: ITV (ITV (Television Station)) [CC BY-SA 4.0 ], via Wikimedia Commons

The tabloid newspapers are full of news stories to the effect that TV presenter Anthony McPartlin, better known as ‘Ant’ of Ant and Dec, and his wife Lisa Armstrong are divorcing today. Unfortunately, the stories are incorrect. What is happening today is that their decree nisi is being pronounced at the Central Family Court in London.

The stories represent one of the common misconceptions about divorce. Along with the myth of the ‘quickie’ divorce, also often reeled off by tabloids, the idea that the parties are divorced when a decree nisi is pronounced is often repeated.

But the parties are not divorced when the decree nisi is pronounced. The pronouncement simply means that the court is satisfied that the party who applied for the divorce (usually the petitioner) has proved that the marriage has broken down irretrievably, and is therefore entitled to the divorce after a further six weeks, unless during that time it is shown to the court that the divorce should not be finalised for some reason (the word ‘nisi’ means ‘unless’ in Latin).

After the six week period has elapsed, the party in whose favour the decree nisi was pronounced may apply for the decree absolute (if they don’t apply then the other party may apply after a further three months have elapsed), although often the decree absolute is not applied for until financial matters have been resolved. Only when the decree absolute has been made are the parties divorced, and therefore free to remarry.

There are two lessons to be learned from this story: firstly, don’t believe everything you read in the papers, and secondly, don’t expect to remarry until you have your decree absolute!

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image of Anthony McPartlin by Ben Salter (From Flickr) [CC BY 2.0], via Wikimedia Commons.

“As Home Secretary, I was proud to sponsor the legislation that created equal marriage. Now, by extending civil partnerships, we are making sure that all couples, be they same-sex or opposite-sex, are given the same choices in life.”

So said Prime Minister Theresa May on Twitter, announcing that heterosexual couples are to be given the option of entering into civil partnerships. The government said that the move will give mixed-sex couples and their families the option of greater security, and it will address the “imbalance” that allows same-sex couples to choose, but not mixed-sex couples.

The government also said that there were “a number of legal issues to consider, across pension and family law” and that ministers would now consult on the technical detail. However, Equalities Minister Penny Mordaunt promised that the change in the law would happen “as swiftly as possible”.

The announcement comes just four months after the Supreme Court held that the current law, which only gives the option of civil partnership to same-sex couples, was incompatible with the European Convention on Human Rights. The couple involved in that case, Rebecca Steinfeld and Charles Keidan, said that the announcement was a “major step” forward. but that they would only celebrate “when legislation is agreed”.

Responding to Theresa May’s announcement, Graeme Fraser, Chair of Resolution’s Cohabitation Committee said:

“Today’s announcement is surely a victory for equality, with the extension of civil partnerships to all allowing those who do not wish to get married and their children access to the benefits of a formalised relationship. It is also a step in the right direction as it helps to bring family law in line with modern values.”

Family Law Cafe also welcomes the announcement. Whilst marriage will no doubt remain the preferred choice for the vast majority of heterosexual couples wishing to enter into a legal relationship, extending civil partnership will provide an option for those who do not wish to get married.

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Image of Theresa May by HM Government [OGL 3], via Wikimedia Commons.

In the last week statistics on divorce have been published by both the Office for National Statistics (‘ONS’) and the Ministry of Justice (‘MoJ’). They paint a conflicting picture as to whether the divorce rate is going down or up.

The ONS’s statistics, for divorces in England and Wales in 2017, indicate that the divorce rate is falling. They show that in that year there were 8.4 divorces of opposite-sex couples per 1,000 married men and women aged 16 years and over, representing the lowest divorce rates since 1973, and a 5.6% decrease from 2016. This moved Nicola Haines, Vital Statistics Outputs Branch, Office for National Statistics, to comment:

“Divorce rates for opposite-sex couples in England and Wales are at their lowest level since 1973, which is around forty per cent lower than their peak in 1993.”

But she went on:

“However, among older people rates are actually higher in 2017 than in 1993 – perhaps due to the fact we have an increasingly ageing population and people are getting married later in life.”

Indeed, the statistics showed that the divorce rate for opposite-sex couples was highest among men aged 45 to 49 years and women aged 40 to 44 years.

Moving on to the MoJ’s statistics, which were for the Family Court for the quarter April to June 2018, these showed a significant increase in the number of divorce petitions issued in that period, up by 18% compared to same period in the previous year. There were 32,230 divorce petitions made during the period, which was the highest quarterly figure since the start of 2013, following a long period of stability around 28,000 petitions per quarter. the MoJ says that future quarters will be monitored to assess whether this a sustained change in trend.

So, is the divorce rate going down, or going up? Or maybe it has gone down and is now going up again? Perhaps we will have to wait for the next round of statistics to find out…

You can find the ONS’s statistics here, and the MoJ’s here.

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Image: Ministry of Justice, by morebyless, licensed under CC BY 2.0.

A husband involved in financial remedy proceedings has been ordered by a judge not to pay any money to his lawyers, unless he pays an equal amount to his wife’s lawyers.

The husband had previously been ordered to pay the sum of £40,000 for six months, to cover the wife’s legal costs. He failed to do so, claiming that he could not afford to pay. However, he did pay the sum of £95,000 to his own lawyers.

Hearing the case in the High Court Mr Justice Holman said that that it was “intolerable and an affront to justice” that the husband had paid £95,000 to his solicitors, at the very time when he should have been paying the costs order. He therefore made an injunction forbidding the husband from paying any further money to his lawyers, unless he pays an equal amount (i.e. pound for pound) to the wife’s solicitors towards satisfaction of the costs order.

The husband’s counsel objected to the order, claiming it denied the husband the means of obtaining legal advice, which he submitted was contrary to principle and impermissible. However, Mr Justice Holman said that the injunction was not intended to deny, nor was it denying, the husband the means of obtaining legal advice – he could go straight out and pay £100,000 to his lawyers for further legal advice, the only condition being that he also paid pound for pound £100,000 to the wife’s solicitors.

The injunction is an interesting way to try to force the husband to pay the costs order. It will also be interesting to see if the husband will appeal against it, particularly as some legal experts are unsure as to whether Mr Justice Holman had the power to make such an order.

You can read the full judgment in the case here.

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Image: ‘Money Scales‘, by Images Money, licensed under CC BY 2.0.

As anticipated here last week, the Government has announced a consultation on the introduction of no-fault divorce.

Proposals detailed in the consultation include:

• retaining the sole ground for divorce: the irretrievable breakdown of a marriage
• removing the need to show evidence of the other spouse’s conduct, or a period of living apart
• introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
• removing the opportunity for the other spouse to contest the divorce application

The consultation also seeks views on the minimum time frame for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute). This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.

The announcement has been met with widespread approval, particularly amongst family lawyers, who are well aware of the unnecessary animosity caused by the need to attribute blame for the breakdown of the marriage under the present law.

However, there is still some way to go before we finally have a no-fault divorce system. As Nigel Shepherd, former Chair of Resolution and long-time campaigner for no-fault divorce, has said:

“It is now vital that the many individuals and organisations who have supported our call for change in recent months respond to the government consultation and get firmly behind this reform.”

If you would like to respond to the consultation, you can do so here. You can find the consultation document here. The consultation closes on the 10th of December.

We must keep up the pressure and ensure that this much-needed reform finally becomes law!

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: Roman marriage vows, by Ad Meskens [Attribution, CC BY-SA 3.0 or GFDL], from Wikimedia Commons.

It has been reported that the Lord Chancellor David Gauke is set to announce a consultation on no-fault divorce, in which he will call for the existing fault-based system of establishing marriage breakdown to be abolished.

Does this mean that we will at last be getting a no-fault divorce system, more than twenty years after the Government first tried to introduce it?

Well, we should not get too carried away. All that has been suggested is a consultation, and even that may not actually happen – see below. There is much to discuss in any consultation, including how long the divorce should take (the Government is apparently going to propose a minimum timeframe of six months), and getting a consensus may not be easy, and may take some time.

There have also been previous occasions when family law reforms have been recommended, but have never happened. For example, in 2007 the Law Commission recommended that cohabitees be given basic property rights, but that reform was never introduced.

Further to this, it has been suggested that the idea of the consultation has been purposely leaked, with a ‘Westminster source’ apparently saying that “not everyone will be in favour” and that “releasing the proposals now could be a way to test the water or even try to scupper them altogether”. It could therefore be that we will not get a consultation at all.

The Government did, however, indicate in the House of Lords last Thursday that the Lord Chancellor was sympathetic to the argument for reform of divorce.

Whatever, there is obviously still a long way to go before any reform of our divorce law happens, if it happens at all. Still, it is highly encouraging to see that the matter is on the Government agenda.

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Image of David Gauke: Chris McAndrew [CC BY 3.0], via Wikimedia Commons

The Supreme Court has held that a mother should be entitled to widowed parent’s allowance following the death of her partner, despite the fact that she was not married to him. The ruling has been criticised in some quarters for eroding the difference between marriage and cohabitation.

In the case Siobhan McLaughlin had lived in Northern Ireland with her partner John Adams for 23 years, until he died on 28 January 2014. They did not marry because Mr Adams had promised his first wife that he would never remarry. They had four children, who were aged 19 years, 17 years, 13 years and 11 years when their father died. Mr Adams had made sufficient National Insurance contributions for Ms McLaughlin to be able to claim widowed parent’s allowance had she been married to him.

Ms McLaughlin’s claim for widowed parent’s allowance was refused by the Northern Ireland Department for Communities, on the basis that the allowance could only be claimed by someone who was married to, or the civil partner of, the deceased. She applied for judicial review of that decision, on the ground that the relevant legislation was incompatible with the European Convention on Human Rights (‘ECHR’). That claim succeeded in the High Court in Belfast, but a subsequent government challenge to that ruling was upheld in the Court of Appeal.

Ms McLaughlin appealed to the Supreme Court, which allowed her appeal, by a majority of four to one. The Supreme Court also made a declaration that the legislation precluding any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased was incompatible with the ECHR. It will be for the relevant legislature to decide whether or how the law should be changed.

As indicated, the ruling has been criticised by some for eroding the difference between marriage and cohabitation. However, the majority of the Supreme Court justices found that the purpose of the allowance was not just to assist the survivor but also the children. Giving one of the majority judgments Lady Hale said:

“The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another. The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same whether or not the parents are married to or in a civil partnership with one another.”

The couple’s children, she said, should not suffer the disadvantage of the allowance not being paid because their parents chose not to marry. And Lord Mance, also with the majority, said:

“Bearing in mind that the main purpose of widowed parent allowance is to secure the continuing well-being of any child of a survivor, there seems in this context to be no tenable distinction, and indeed manifest incongruity in the difference in treatment, between a child of a couple who are married or civil partners and the child of a couple who are not.

“In a large number of cases the effect would also be to discriminate against a child who was illegitimate.”

He went on:

” A policy in favour of marriage or civil partnership may constitute justification for differential treatment, when children are not involved. But it cannot do so in relation to a benefit targeted at the needs and well-being of children.”

Thus the primary basis of the Supreme Court decision is not to put cohabitants on a par with married couples, but rather to ensure that children are not discriminated against simply because their parents chose not to marry. The effect of the decision may have been to remove one small difference between the rights of cohabitants and those of married couples, but it can hardly be said to have eroded the difference between marriage and cohabitation.

You can read the full judgment of the Supreme Court here.

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Image of Lady Hale reproduced from the Supreme Court website, Crown copyright, licensed under the Open Government Licence.

A new film starring Dame Emma Thompson has led to a call for the mandatory provision of independent advocates for children.

The film, The Children Act, is based upon a novel by Ian McEwan, and explores a fictional case concerning a 17 year old boy suffering from leukemia. The boy’s doctors want to perform a blood transfusion, but his parents, who are Jehovah’s Witnesses, object. Thompson plays the judge who has to decide whether or not the transfusion should go ahead.

The children’s charity Coram say that decisions relating to the welfare of children are often made by courts and public bodies without the children concerned being given a proper opportunity to put forward their views. This, they say, could be addressed by the provision of independent advocates, who could also provide the children with the necessary legal advice.

Commenting upon the issues raised in the film, and the complexities of cases in the family justice system, Kamena Dorling, Group Head of Policy and Public Affairs at Coram, said:

“A judge can consider the views of the child in a variety of ways: these could be ascertained from the child and included in a report to the court compiled by a Cafcass (Children and Family Court Advisory and Support Service) adviser after speaking to the child and their parent/s; through separate legal representation; through talking to the judge directly; and through the child giving evidence in court.

“The latter happens rarely and there is no automatic right for a child to attend or speak at court. In recent years, there has been debate as to how the family justice system can both safeguard children and ensure that they are able to participate meaningfully in legal proceedings. The previous President of the Family Division, Sir James Munby, has highlighted the lack of visibility of children within the system.

“Coram is committed to ensuring that children are encouraged and supported to express their views – not just with a legal framework that allows theoretical access to the court, but within the entire system. Children must understand their rights, the legal process they are going through and should be supported by their parents and/or the state every step of the way. They should be able to get legal advice if they need it. All support should be tailored to the individual child, with their welfare the top priority.

“Coram is calling for the mandatory provision of an independent advocate enshrined in law for all children and young people receiving or seeking care or support from the state.”

Family Law Cafe broadly agrees with the proposal, but wonders whether, in an already over-stretched family justice system, the necessary resources will be available to put it into effect.

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Image of Emma Thompson by Justin Harris (Flickr) [CC BY 2.0 ], via Wikimedia Commons.

The Child Poverty Action Group (‘CPAG’) has published its latest Cost of a Child report, showing what it costs to raise a child to age 18, based on what the public thinks is a minimum standard of living.

The report says that the overall cost of a child (including rent and childcare) is £150,753 for a couple and £183,335 for a lone parent.

Note that this is a minimum. For most parents, the actual cost is likely to be considerably higher.

Note also that the figure is higher for lone parents (including, of course, those who have separated from the other parent), due to the increased difference that the presence of a child makes to a single adult’s budget, compared to the difference a child makes to a couple’s budget.

The report serves as a reminder of the importance of ensuring that proper financial provision is made for any dependent children when their parents separate. This does not necessarily just mean that the non-resident parent should pay the appropriate amount of child maintenance. Special expenses such as school fees will also need to be considered. And if the non-resident parent is on a particularly high income then it may be necessary to go to court to obtain an order ‘topping up’ the amount that the Child Maintenance Service requires them to pay.

As the CPAG report indicates, the total cost of raising a child can be enormous. Accordingly, if you are a parent with care of children it is essential that you receive proper advice as to what the other parent should be paying. Family Law Cafe can help you find that advice. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

You can read the full CPAG report here.

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Image: CPAG

At least two national newspapers have reported this week of a poll indicating that three in ten divorcing couples exaggerate faults in their marriage, in order to get a quicker divorce. This includes people exaggerating the ‘unreasonable behaviour’ of their spouse, and also lying both about adultery and about how long they have lived separately from their spouse.

The poll doesn’t really tell us anything new, but it comes hard on the heels of the Owens case, in which the Supreme Court confirmed that Tini Owens was not entitled to a divorce on the basis of her husband’s ‘unreasonable behaviour’. It is feared that the decision may lead to divorce petitions based upon behaviour having to include much stronger allegations in order to get a divorce, which could in turn increase animosity and make it less likely that divorcing couples will be able to agree arrangements over children and finances.

The Owens case led to an increase in calls for the introduction of a system of no-fault divorce, and the poll can only add to those calls.

But is it really necessary to exaggerate or lie, and what might happen if you do?

It is not yet clear whether the Owens case will actually make any difference to the way in which judges look at behaviour petitions. It may be that most judges will still take the pragmatic view that there is no point in the law prolonging an unhappy marriage. And there is always of course the possibility of waiting for two years’ separation if your spouse consents to the divorce, or five years’ separation if they do not. (For further details of the ground for divorce, see this post.)

But if you do lie to the court then there could be very serious consequences if you are found out, in addition to you being denied a divorce. In the course of the proceedings the person seeking a divorce will have to sign a statement of truth, confirming that everything they said in their divorce petition was true. At the end of the statement is this warning:

“Proceedings for contempt of court may be brought against a person who makes or causes to be made, a false statement in a document verified by a statement of truth.”

In fact, we think that making a false statement technically amounts to perjury, rather than contempt of court. Either way, the possible consequences are serious, including committal to prison. Obviously, we would always advise people against lying to the court, whether about adultery, the other party’s behaviour or how long they have lived apart, even if this means that they will not be able to get their divorce as quickly as they had hoped.

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Image: ‘Divorce‘, by Dallas, licensed under CC BY 2.0.

A High Court judgment in relation to an Islamic marriage has caused confusion in some quarters, with it being reported that the judgment means that such marriages will be recognised by English law.

In the case Akhter v Khan the parties undertook an Islamic marriage ceremony in Southall, London, in 1998. However, they did not go through a civil marriage ceremony that was valid under English law.

The marriage lasted for 18 years, during which time the parties considered themselves to be married to each other and held themselves out to the world at large as husband and wife.

In November 2016 the wife issued divorce proceedings. The husband defended the divorce, on the basis that the parties had not entered a marriage valid according to English law. In her reply, the wife claimed that the presumption of marriage arising out of cohabitation and reputation applied so as to validate the marriage. In the alternative, she claimed that the marriage was a void marriage, as it had not complied with the necessary legal requirements.

The question as to the legal status of the marriage fell to be decided by Mr Justice Williams in the High Court. The question was of vital importance, as if there was no marriage at all then the wife could not make any financial claims against the husband. On the other hand, if there was a valid marriage, or if the marriage was void, then she could pursue such claims, either within the divorce proceedings if the marriage was valid, or within nullity proceedings if the marriage was void (a void marriage is ended by annulment).

Mr Justice Williams held that the marriage had not been validated by the presumption of marriage, as the presumption of marriage did not operate on the facts of the case so as to presume a valid marriage under English law. However, he did hold that it was a void marriage, and accordingly the wife was entitled to a decree of nullity.

As Mr Justice Williams explained, the case was not about whether an Islamic marriage ceremony should be treated as creating a valid marriage in English law. A couple who go through an Islamic marriage ceremony will still need to go through a civil ceremony if they want the marriage to be recognised by English law.

You can read the whole of Mr Justice Williams’ judgment here.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image of Islamic bride signing marriage papers by S.M. Samee [CC BY-SA 4.0 ], from Wikimedia Commons.

Sir Andrew McFarlane has taken up his position as President of the Family Division, following the retirement of his predecessor, Sir James Munby.

Sir Andrew, who recently won an ‘outstanding achievement’ award at the Legal Aid Lawyer of the Year awards, has a particular interest in children matters, including the ‘private law programme’, which was introduced with the aim of improving the way in which private law disputes over arrangements for children are dealt with. He recently told the Families Need Fathers Conference (‘FNF’) that:

“In the Autumn I will embark upon a series of visits during which it is my aim to meet every fulltime Family judge at each of the 40 or so designated Family Court centres, together with the local magistrates, local CAFCASS officers and members of the legal profession. In addition, I will develop and maintain contact with interested groups, such as FNF and Women’s Aid, in order to gain a very, very, detailed understanding of the operation of the private law programme as it is experienced case by case, family by family, judge by judge on the ground. Once that process is over, possibly by the time of your conference next year, I will be in a much better position to understand what goes well and, no doubt, what does not and what may need to be changed.”

It will be very interesting to hear his findings.

Family Law Cafe says: Sir Andrew is taking over the mantle of President at a very difficult and challenging time. He is facing many problems, including difficulties with access to justice, lack of resources and rapid change. We hope he has the energy and support to meet these challenges, and wish him every success.

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Image of Sir Andrew McFarlane reproduced from the Courts and Tribunals Judiciary website, Crown copyright, licensed under the Open Government Licence.

The Supreme Court has today refused the appeal by Tini Owens against the refusal of the court to grant her a divorce.

Mrs Owens issued divorce proceedings on the basis that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. However, Mr Owens denied that he had behaved unreasonably, and at a hearing in 2016 the judge refused the divorce, stating that Mrs Owens’ allegations were “of the kind to be expected in marriage”. Mrs Owens appealed, but the Court of Appeal upheld the original decision. Mrs Owens then appealed again, to the Supreme Court.

The Supreme Court has today unanimously dismissed Mrs Owens’ appeal. Giving the leading judgment, Lord Wilson said that whilst the majority of the Supreme Court justices had concerns about the summary way in which the judge at the first hearing had considered Mrs Owens’ allegations against Mr Owens, the judge had applied the correct legal test and was entitled to reach the conclusions that he did. Accordingly, the appeal should be dismissed.

The majority did, however, invite Parliament to consider replacing “a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.”

You can read the full Supreme Court judgment here.

Resolution, the family justice body, has called on the Government to urgently reform divorce law in England and Wales, in the light of the decision. Nigel Shepherd, Resolution’s past Chair and long-time campaigner for no-fault divorce, echoed this call for law makers to take action, saying:

“As an organisation who intervened in the case in support of Mrs Owens, we are disappointed at today’s judgment and what it means for her.

“Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it.

“In this day and age, it is outrageous that Mrs Owens – or anybody – is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name. Today’s judgment underlines just how vital it is that government now urgently reforms the divorce law.

“It should not be for any husband or wife to ‘prove’ blame as the law requires many to do – this is archaic, creates needless conflict, and has to change.”

Family Law Cafe is also disappointed, though not surprised, by the decision. We, too, call upon the Government to urgently consider the introduction of a system of no-fault divorce.

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Image of Courtroom 1 at the Supreme Court by Diliff [CC BY-SA 3.0 or GFDL], from Wikimedia Commons. (Yes, we know the judgment was handed down in Courtroom 2!)

It was originally expected to be a case that might change the law on the so-called ‘meal ticket for life‘, whereby one spouse is ordered to pay maintenance to the other, possibly for the rest of the other spouse’s life. Graham Mills, who has been paying his ex-wife Heather maintenance since they were divorced in 2002, had wanted to argue before the Supreme Court that the law should be changed so that one spouse should not have to pay maintenance to the other for life.

In the event, Mr Mills was only granted permission to take his case to the Supreme Court on the limited ground of whether, provision having already been made for Mrs Mills’ housing costs in their 2002 capital settlement, the Court of Appeal erred in taking her housing costs into account when it decided to increase her maintenance last year.

The Supreme Court has today unanimously allowed Mr Mills’ appeal. Giving the leading judgment, Lord Wilson said that the judge at the original hearing (in 2015 of the husband’s application to discharge or reduce the maintenance and the wife’s cross application to increase it) was entitled to decline to vary the maintenance so as to require the husband to pay all of the wife’s rental costs.

Provision for the wife’s housing had been made in 2002 when she was awarded capital to rehouse herself, but she instead exhausted the capital by entry into a series of unwise transactions, and so developed a need to pay rent. Lord Wilson said that a court would need to give very good reasons for requiring a spouse to fund payment of the other spouse’s rent in these circumstances. A spouse may well have an obligation to make provision for the other; but an obligation to duplicate it in such circumstances is most improbable.

The order of the Court of Appeal was therefore set aside and the original order, that the maintenance should remain at the same level, was restored.

You can read the full Supreme Court judgment here.

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Image: ‘Fan of Money and House‘, by Images Money, licensed under CC BY 2.0.

As we have said here before: it’s the question to which anyone involved in divorce proceedings wants to know the answer: how long will it take?

The latest statistics published by the Ministry of Justice, for the period January to March 2018, indicate that divorces are now taking longer to process. The average time to the Decree Nisi is now 27 weeks from the date that the divorce petition was issued, up 3 weeks from the same period last year, and the average time to the Decree Absolute, which finalises the divorce, is now 51 weeks from the date of the petition, up 2 weeks from the same period last year. So a little longer than previously and, we suspect, rather longer than most people would imagine. These are, in fact, the highest figures since the current records began.

It should be pointed out that how long the divorce takes does not just depend upon how long the divorce centre takes to process it. In most cases it is not advisable to finalise the divorce until financial matters have been resolved. Obviously, it may take longer than 51 weeks to resolve those matters, and that will therefore mean that the divorce will take longer.

By the same token, it is quite possible to complete a divorce in considerably less than 51 weeks. One-third (33%) of divorce petitions issued between 1 January 2011 and 31 March 2018 reached Decree Nisi in the first quarter after the petition was issued, with just over a further third (38%) reaching that stage within the second quarter. Over half the petitions reached Decree Absolute within three quarters after the petition (1% in the first quarter, 35% within 1 to 2 quarters and 19% within 2 to 3 quarters).

You can read the statistics here.

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Image: Time, by barbie.harris37, licensed under CC BY 2.0.

A recent case has raised serious issues as to whether anyone else, including the court and the other party to any court proceedings, is entitled to see communications between a lawyer and their client, or between the lawyer or client and a third party.

Normally confidential communications between a lawyer and their client for the purpose of advice, or between the lawyer or client and a third party in connection with court proceedings are subject to ‘legal professional privilege’. This entitles the client to withhold the communications from the court or anyone else, including the other party to the proceedings.

However, in a case currently being heard by the High Court a paralegal who was employed by a firm of solicitors acting for a husband in divorce proceedings sent a number of documents, including accounts of communications between the husband and his lawyers, to the court. The court sent copies to the parties, and the wife is now alleging that the husband and his legal team have committed perjury and perverting the course of justice, apparently in the light of the contents of the documents. The High Court is now going to have to decide whether the documents are protected by legal professional privilege.

Hearing the case, Mr Justice Holman said:

“…we live in an era in which so-called “whistle blowing” is less frowned upon than it once was and in which, indeed, in many circumstances whistle blowing is now encouraged. But it is not difficult to see that if some employee of a firm of a solicitors can disclose what is otherwise prima facie privileged material, whether to the court or to the other side, the whole edifice of legal professional privilege might rapidly crumble. On the other hand, fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place.”

In view of the fact that the case raises “new and grave issues” in relation to legal professional privilege Mr Justice Holman directed that is should be considered at the highest possible level, namely that of the President of the Family Division.

It will be very interesting to know w