Keeping kids first helps minimise fallout from family breakdown

Keeping kids first helps minimise fallout from family breakdown

Everys is campaigning for a change in the law to reduce the fallout from divorce on children, after figures released today revealed the impact of conflict between separating parents.

In a new poll, 79% of the population agreed conflict from divorce or separation can affect negatively children’s mental health, a figure rising to 87% among those who experienced their parents’ divorce as children. 77% said conflict could affect children’s academic performance and a further two-thirds felt social interactions and the ability to form healthy romantic relationships were also jeopardised.

We made the calls as part of a national Good Divorce Week that is being led by Resolution, who campaign for a fairer family justice system and commissioned the new YouGov poll.

Good Divorce Week aims to provide practical help, highlighting ways for separating parents to put their children’s needs first, as well as calling on government to urgently remove blame from the divorce process.

As 200,000 people divorce each year in England and Wales, an overwhelming 79% of the public support measures that would remove blame from the divorce process, with 71% believing change is urgently needed to reduce the negative impact on children.

While most parents we work with want to keep a child’s best interest at the forefront, the current fault-based divorce system can make this a challenge.

Our Family Team said:

“Each day we work with separating parents to help them resolve their own issues in a way that provides a fair outcome to everyone in the family especially any children. But often, even with the most amicable break up, the requirement to apportion blame for the breakdown of the marriage can create unnecessarily conflict that can threaten the entire process.”

 Resolution has made resources available, both to the public but also local practitioners, to help them campaign to change the system and raise awareness of the long-term impact this conflict can have on children. These are available at www.resolution.org.uk/GoodDivorceWeek

Pets and Divorce – Who keeps the family pet?

Pets and Divorce – Who keeps the family pet?

One of the most often asked questions in a divorce is who is going to keep the family pet, be it the family dog or other much loved family pet.   Sometimes it is obvious that one party wants to keep the pet and the other party does not, in that case it is very straight forward.  What happens however if both parties want to keep the pet themselves?

Ideally both parties should try and reach an agreement, perhaps even a shared care arrangement for the pet. Perhaps if the parties have children, then the pet stays with the children and whoever they are with?

But what happens if the parties simply cannot reach an agreement, what does the court do then? The court can only determine who owns the pet not what the arrangements should be.  The pet is considered a “chattel” of the marriage along with items of furniture etc. The court might simply look at who bought the pet, in whose name the pet is registered with at the vets or whose name is on the ID chip? That is unfortunately the sad reality of how the court views the much loved family pet.

Whilst the court can determine ownership and therefore who gets to keep the pet, the reality is that this is a very expensive way to resolve a dispute. However much you love your pet, and no price can be put on that, your solicitor will encourage you to reach an agreement and not incur costs arguing over chattels, which is unfortunately how your pet is seen by the court.  You would probably not spend money arguing about who keeps the sofa or the cooker and as can be seen the court would treat the pet in the same way.

It is always better to agree on all matters, such as the arrangements for the children, the financial settlement and the arrangements for your pet rather than fighting matters through the courts. The more money that is spent on fighting, the less money there may be at the end of the matter for you.

Once you have agreed the financial settlement and the arrangements for your pet, it is essential that a formal agreement is entered into to ensure that the arrangements are legally binding. It is a common misconception that a Decree Absolute ends everything, but it simply ends the marriage.  To dismiss the financial claims that have arisen as a result of the marriage a financial order is required otherwise those financial claims remain open.

For more information, or some preliminary confidential advice contact a member of our Family Team from your local office.

Separation – Your Questions Answered

Separation – Your Questions Answered

Who should pay for what in the immediate aftermath of a break up?

There are no rules as to who should pay for what in the immediate aftermath of a break up. Initially it is usually best to continue as you were whilst you are sorting out the new arrangements.

If one party has moved into new accommodation, then the joint income which was paying for one household and all bills, now needs to pay for two households and all bills. It will be a financial calculation in each case as to who can afford to pay for what. If one party is the higher earner, and they have moved out of the family home, they may well be expected to continue to make a substantial contribution to the running of the former family home.

Any extras such as gym membership should be made by the party that it will benefit.

In the longer term an agreement will be reached as to whether one party needs to pay spousal or child maintenance to the other.

What is financial disclosure and what information am and I my partner expected to share?

Financial disclosure is information about all capital, liabilities, income, expenditure and pension provision that a spouse may have.

Both spouses are required to provide this information to each other and to provide documentary evidence in support.

The purpose of disclosure is so that both parties are aware of the true financial picture of the marriage and both parties can then negotiate a fair settlement based on what is available for division between them.

The situation is slightly different if you are cohabiting. Then you need to discuss the assets and liabilities which are in your joint names.

How can a solicitor help to decide what is a fair settlement?

Once full financial disclosure has been exchanged it is not as straightforward as working out what there is and dividing it equally between you as you may have different needs and resources and lots of factors need to be weighed in the balance.

The welfare of any children you have will take priority and the following factors are also considered by the court and guide our advice on parameters for settlement:

  • The length of the marriage: the longer the marriage the stronger the likelihood that the assets will be divided equally
  • Your ages: needs will correspond with the stage in life of each of you
  • The reasonable needs of each of you: this is loosely based on the standard of living you enjoyed during the marriage although it is important to remember that when the money is divided between two households it will not go as far
  • The resources of each of you: this includes not only the assets, pension and income you have now but also your earning capacity (which may not be maximised currently) as well as mortgage capacity
  • Contributions made by either of you: A significant contribution to the marital assets made by one of you (for example, property brought into the marriage or an inheritance/gift received at any time during the marriage) – this will be more likely to be ring-fenced if it has been kept completely separate or the marriage was short.
  • Any health issues
  • Any pre/post nuptial agreement you entered into
  • Benefits which either of you could lose as a result of the divorce (such as widow(er)’s pension benefits)

Taking into account all the factors, a solicitor can then advise on what might be a fair settlement in your particular circumstances. It should be a settlement that meets the needs of all parties, particularly the needs of the children.

Again the situation is different if you were cohabiting. In that case, none of the above factors would matter. It would be a case of who owns what and whether each of the parties have an interest in the assets.

Who decides what level of maintenance estranged partners must pay?

There is a calculation which sets out what level of child maintenance should be paid which is based on income of the party paying. There is a helpful calculator on the Gov.uk website which does the calculation for you. This would apply whether you were married or cohabiting.

Spousal maintenance will depend on the needs and resources of the parties. If one party has been a stay at home parent, then it is likely that spousal maintenance will be paid by the other party. Spousal maintenance can be for a limited term, or it can be for an unlimited term. There is no set calculation, unlike for child maintenance.

How are pensions divided on divorce?

Pensions are just part of the matrimonial pot which are to be divided on a divorce. There are various ways in which pensions can be included in a settlement:

  • Pension Offsetting – this is where one party elects to receive more capital rather than a share of the other’s party pension.
  • Pension Sharing Order – this is where the pension pot is divided between the parties in the agreed shares. The party who is receiving the pension sharing order will elect their own pension to have their share paid into, and then each party has their own pension. This therefore results in their being two separate pension schemes which are not related to the other.
  • Pension Attachment Order – this is not a very popular as it means that the party keeps their pension, and on their retirement, the pension company will pay an agreed percentage each month to the former spouse. The problem is that if the person with the pension should die, then the former spouse does not receive anything.

It should also be noted that if the value of the pension pots are “shared” equally it does not mean that each party will receive the same income. Income is calculated by a pension actuary, and generally the same pension pot will lead to a smaller income for a woman than it would for a man. If parties are trying to achieve an equal income in retirement, then an actuary will need to produce a calculation to state what percentage one party might need to receive.

Who keeps the house?

Who keeps the house is just one of the factors to be considered when determining what is a fair settlement in a divorce based on all the other factors that must be considered, as set out above. It cannot be considered in isolation without reference to the other assets, liabilities and pensions that the couple may have.  The key issue to determine whether the house is kept by one party, or sold is usually the needs of the children. However keeping the house must also be financially affordable. It is often common that the sale of the house is postponed until the children have finished school or until the spouse remaining in the home remarries or cohabits. At that point the house would be sold and the equity divided.

If you are cohabiting, then it would depend on who owns the house. If the house is in one of the party’s sole name, then they will retain the house. If the house is in joint names, an agreement would need to be reached as to who will buy the other’s interest in the house or whether the house is sold and the proceeds split.

For more information, or some preliminary confidential advice contact a member of our Family Team from your local office.

Protecting the family farm…Pre-Nuptial Agreement?

Protecting the family farm…Pre-Nuptial Agreement?

It is not the most romantic topic to discuss when you have just become engaged but you may need to consider whether a Pre-Nuptial agreement is something that you might need to discuss with your fiancé.

It might be a second marriage, or it might you have inherited the family farm and in the event of a marriage break-down, you will wish to retain the farm for your children? In these cases, you might want to enter into a pre-nuptial agreement to set out at the outset that those assets would remain yours in event of a breakdown of the relationship.

A pre-nuptial agreement sets out how a couple’s assets will be divided should they separate or divorce.

Although pre-nuptial agreements are not legally binding in the UK, they are increasingly being recognised and upheld in the courts provided certain conditions have been met.

These conditions include entering into the pre-nuptial agreement in plenty of time before the wedding. If you are forced to sign a pre-nuptial the night before your wedding, it is unlikely that a court would uphold the agreement!

There should also be full and frank financial disclosure so that both parties are aware of the assets which would be retained by either party.

It is important that both parties take independent and separate legal advice about the agreement. This is particularly important if you are being asked to sign a pre-nuptial agreement as a pre-nuptial agreement can limit a financial settlement that might otherwise have be ordered by a court on a divorce. You could therefore be agreeing to receive less than you might be entitled to.

The court, on a divorce, will consider all the circumstances surrounding the pre-nuptial agreement and the courts will even reduce an amount one spouse is to receive because of the existence of a pre-nuptial agreement even if the court thinks the pre-nuptial cannot be followed exactly.

It is therefore extremely important that legal advice is sought about a pre-nuptial agreement. However entering into a pre-nuptial agreement makes it clear what your wishes are and the wishes of your fiancé. We would say it is better to have one than not.

For more information, or some preliminary, confidential advice please contact a member of our Family Team, or your local office.

 

Divorce in light of the Owens v Owens Case

Divorce in light of the Owens v Owens Case

There is only one ground for a divorce which is the irretrievable breakdown of a marriage.

To prove the irretrievable breakdown your divorce must be based on one of the following five facts:

  • Adultery
  • Unreasonable behaviour
  • Separation of 2 years, which both parties consent to
  • Separation of 5 years
  • Desertion

You cannot simply say that you have grown apart, or no longer love each other.

In Owens v Owens, heard by the Supreme Court, Mrs Owens started divorce proceedings on the basis of her husband’s unreasonable behaviour.  Mr Owens did not accept the marriage had broken down and defended the divorce.

In Owens the court considered the ground of unreasonable behaviour and the correct test that needs to be applied.  The test is:

“the correct inquiry is: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make an evaluation as to whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable”

Unfortunately for Mrs Owens, when the current law was applied to her case, the court concluded that she should not be granted a divorce, although it was accepted that the marriage had broken down, Mrs Owens had not proved unreasonable behaviour.  This was despite the court stating that the appeal generated uneasy feelings but that the duty of court was to apply the current law as set out by Parliament.  In this case the Matrimonial Causes Act 1973.

This case will lead to renewed calls for Parliament to reconsider the current divorce law and to introduce a no fault divorce.

For more information please contact Emma Benyon-Tinker, Solicitor in our Family Team, on 01392 848947 or email emma.benyon-tinker@everys.co.uk

Children FAQ’s

Children FAQ’s

1. What rights do Grandparents have?

Grandparents, currently, do not have any legal rights over their grandchildren. The only people with legal responsibility for a child is their parent, or anyone with the benefit of a court order in their favour, such as a Child Arrangements Order or a Special Guardianship Order.  If the relationship has broken down between the grandparents and the parents of the child the grandparent would need to seek a court order to see their grandchild. The first step is to seek the court’s permission to make the application. The court’s only concern is the welfare of the child and will only make an order if the court believes it is the best interest of the child.

2. I am their parent, surely it’s my right to have my children half of the time?

Although as a parent you have legal responsibility for your child, this does not mean that you have a “right” to have your child with you half of the time. It is for you as parents to agree on what time your child should be spending with each of you. If you cannot agree the arrangements, then a court would make the decision. The court starts from the point that the child has a right to a relationship with both their parents, and will then make an order which is in the child’s best interest.

3. I want to take my children abroad on holiday, surely I can do this?

If you have a Child Arrangements Order in your favour confirming your child should live with you, then you can remove your child from the jurisdiction of England and Wales for 28 days each year. If you do not have an order, then you must obtain the consent of the other parent who holds parental responsibility for the child. If they consent (and you should get this in writing) then you can take your children on holiday abroad. If they will not consent to the holiday, then an application to the court is required and the court would decide whether or not you should take your children abroad on holiday. The likelihood is that the court would consent unless you were proposing travelling to a dangerous country or removing the children from school for a lengthy period of time.

4. Can I stop the other parent moving away with my children?

You cannot stop your former spouse/partner moving away. However if you have what is called parental responsibility for your children, then you have to consent your children moving. If you do not, an application would need to be lodged with the court by the other parent. The court would then have to consider the benefit of the move and consider whether this is in the best interest of the children.  If the move would not impact on the time the children are spending with either parent, the move is likely to be approved.

5. My former partner is not letting me see the children, and is not giving me any information about the children, what can I do?

If you have parental responsibility for the children you are entitled to ask for information about your children from their school or GP direct.  If you and your former partner cannot agree on the arrangements for the children, then you would need to make an application to the court asking for an order for the children to spend time with you. The older the children are, the more impact their views will have on the court ordered arrangements. A 14 year old’s views have a greater weight than a 5 year old’s views. This is because of the child’s level of understanding. The court will then make an order based on the child’s best interests.

6. I have had a letter from social services and there is a meeting, what do I do?

If you have received a letter from social services you must not ignore the letter and you must attend any meeting. It may be a meeting to discuss concerns that have arisen and it may be possible to agree a plan with social services that if followed will mean they will close their file. Or it could be a meeting where social services indicate that they have serious concerns about your children and that they want to take court action to consider removing the children from your care. It is important that whatever letter you receive, you immediately take legal advice so you can understand the consequences of the letter.

7. I work long hours, my partner looks after the children, but social services are involved, why?

Your partner may, unfortunately, not be providing a good enough level of care to the children whilst you are at work. This could be for any reason. Social Services will want to discuss the childcare arrangements with you to see if you are able to share the childcare more; what you can do to help your partner or what other action needs to be taken to look after the children properly. You should engage with the social services.

For more information or some preliminary, confidential advice please contact Emma Benyon-Tinker, Associate in our Family Team, or your local Everys Office.