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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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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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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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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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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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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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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