Adultery & Divorce

I was thinking about this issue the other day, after a client had mentioned to me that she had discovered that her husband had been sending less than appropriate messages to another women and that she had plans to arrange for him to be “caught out” by effectively turning up at his hotel room door.

I advised her to stay well clear of any hotel room doors and there was certainly enough other aspects of his behaviour that she could use to formulate a Petition, which was the course she was set on.

In the end she conceded and agreed that however strong and indignant she felt now, that would soon be forgotten when she was faced with the reality.

But it led me to thinking about adultery in the context of Divorce proceedings and whether it’s worth it – not the adultery (which almost never is!) but relying on it to issue proceedings.

Don’t get me wrong, certainly there may well be times when there has been no other “behaviour” to rely upon and adultery may well be the only feasible option or where it might be important to prove adultery – perhaps for some cultural reason or where a pre-nuptial agreement might be affected.

The majority of cases, however, will involve some other behaviour by the Respondent, perhaps a distancing from family life, a lack of affection or physical relationship, a lack of emotional support etc.  The behaviour might well be as a result of the Respondent conducting an extra marital affair (not always!) but all of it can be used to issue a Petition based on behaviour and not adultery.

But why is that better.....well adultery must be proven or admitted in order for a Divorce to progress on that basis. If the Respondent is not likely to co-operate in proceedings and actively admit his/her adultery then proof it will have to be.

The sexual act of adultery is what must be proven – an inappropriately close relationship is not sufficient! That makes it very difficult (and costly) to prove – not least in terms of emotional cost.

So is it necessary to rely on adultery…..sometimes tactically and sometimes morally but my advice would always be to consider another option, especially if your spouse is not likely to co-operate!

Cancellation of National Family Week

National Family Week was to run from 25^th to 31^st August 2012 but has had to sadly be cancelled this year as a result of all of the other big events gripping the nation.

We, for the most part, see our families every day but how much time do we actually spend together?

It is widely accepted that spending quality time with children is important and that this aids their development, sense of worth and belonging and allows for a closer relationship to develop with their parents.

In a world where children are faced with so much at such a young age I believe that it has never been more important for families to be close, to spend time together and for children to feel able to approach their parents about any issue, big or small.

For adults to, spending time with a partner or spouse is important. We rush through our days fitting in work, household chores, children’s parties/dance classes/sports etc. but where is the time set aside to enjoy quality time together?

Much has been made recently by the government about the importance of stability in families and the effect that broken family life can have on children and adults alike.

I for one hope that despite National Family Week having been cancelled this year, people will step back and think about how they could spend even just a little more quality time together.

Divorcing man’s best friend

I recently saw an advert for family law services that made reference to couples being helped to decide “who gets the dog” and I got to thinking is this really what it comes down to?, is it right to suggest that this is a valid enough argument to have before the Court? to spend money on?

Certainly I am only too aware that positions taken on the division of assets on Divorce or separation can become polarised during negotiations and I know from experience that very often the smaller, more legally insignificant items can become real sticking points (I speak of small and inexpensive items as opposed to small items with significant monetary value)

It’s not that I am unsympathetic and certainly I can well understand sentimental items being of real emotional value to clients. Equally, I can understand the bond that clients can have with their family pets – often seen by many as a great source of reliability and comfort and often bought when children leave for university, to replace the silence that frequently descends at that point.

Of course, there may be situations in which there is a significant cost to the upkeep of the animals, typically horses – that can be a real issue in terms of who is to maintain them financially, are they to be kept, did they form part of the family’s lifestyle etc. those are not the situations I speak of here.

The issue I have is whether people should be encouraged to litigate over small items or pets.

Certainly, encouraged or not, cases continue to reach the high court (granted, with other more significant legal arguments) in which claims to family pets are made. The Courts in the UK tend to take a quite literal approach to family pets, looking really at whose “asset” the pet is, who looked after the animal, who purchased it etc.

The “best interests” of the animal and the emotions of the parties do not feature on the Court’s list of considerations.

My personal view, and that which I would advise my clients, is that they must think long and hard over their stance. They will undoubtedly spend significant amounts of money negotiating such matters, increase the hostility and in some cases risk the other party withdrawing from what you had considered agreed points.

I have not reached a point in my life as yet where I have such attachment to items or pets and I do not agree that clients should be encouraged to litigate over such issues but each person must of course make their own decision.

Still, the question remains….how do you balance emotional value against the monetary cost of litigation/negotiation?

Father's name on Birth Certificate = responsibility?

The issue of whether mothers should be forced to name a child’s father on its birth certificate first became an issue in 2009 when the Welfare Reform Bill was making its way towards the statute book.

Opponents of the concept at that stage voiced their concern that it could lead to abusive fathers retaining control over their partners, especially on the basis of the proposal that fathers have the ability to declare their own parental status if the mother leaves their name off the certificate.

The Welfare Reform Act did, nevertheless, include a provision making it compulsory for mothers to name a child’s father on the birth certificate if he was known to them. The consequences of non-compliance ranged from a fine of £200 to 7 days imprisonment for perjury if a false statement was made.

When this government came into power it decided not to press ahead with enforcing that particular provision of the Act but the topic raised its head again late last year when the government announced that it was looking at this again as a way of ensuring involvement by fathers in their children’s lives and by way of encouraging a sense of responsibility.

The government has talked of exemptions for this provision being mothers who are victims of domestic violence (if a GP or social worker can corroborate any claim that naming the father would put the mother or child at risk), conceptions by way of rape or sperm donation.

The Liberal Democrats appear to oppose the idea but will forcing fathers to sign birth certificates or forcing mothers to name fathers on them really encourage active involvement or foster a sense of responsibility?

Certainly it might well make it easier to deal with issues of child maintenance but the rationale behind the proposals appears to be that signing the certificate or being named as the child’s father will boost the sense of responsibility and mean that more fathers remain involved with their children beyond separation.

David Lammy, MP for Tottenham mentioned on the BBC in June the effect that his father walking out on his family had on him as a child. Mr Lammy said:

"I missed someone help me learn how to shave, someone help me learn how to do up my tie, someone to talk to in those teenage years that can be so difficult.”

"No-one there on Fathers' Day, no-one at the end of the football game that you were playing, all of those things where the absence of the father is felt acutely”

"Of course relationships break down but active fathers make a huge difference to the lives of young people."

In the same piece Adrienne Burgess, joint chief executive of the Fatherhood Institute, said: "Requiring both parents to sign the birth certificate sends out a powerful message that our expectations of mothers and fathers are equal.”

"Meanwhile, 45,000 children every year are losing out because they do not know, and often never will know, who their father is."

I accept that there are undoubtedly cases where mothers are obstructive in allowing fathers Contact with their children or to develop a meaningful relationship with them but I can’t help but wonder about the responsibility of men who biologically father children but then apparently do nothing to discover if the child is theirs and, if it is, to establish a relationship with them – even if that means Court proceedings.

I am sceptical about whether forcing a mother to name a father on a child’s birth certificate is really likely to encourage more fathers to become actively involved with their children or maintain that involvement.

In addition, naming a father on a birth certificate has the effect of giving him Parental Responsibility for the child, entitling him to be consulted in terms of decisions on schooling, religious upbringing, medical treatment etc. and preventing the child’s removal from England & Wales for periods in excess of 4 weeks without his consent.

If a father chooses to disengage then with the child or the child is born from a short relationship, one-night stand, extra marital affair - where the father really has no interest in maintaining his relationship with the child - the fact of his PR may well cause difficulty for the mother down the line.

I agree that children should be aware of their paternity and that it is healthy and vital for their sense of identity and belonging but I am concerned that these proposals really achieve legal identification of a child’s father and focus less on what children really would benefit from, active involvement in their lives by their fathers.

Shared Parenting – The proposals…

The topic of the government’s proposal to alter current legislation to reinforce the expectation that, where safe, children should have involvement with both parents formed a post of mine in May.

I am a little behind I’m afraid (hazards of life and work!)

Those of you who read my earlier post will know that my view was (and remains) that the Court and family law system as a whole already works from the starting point that children should have the benefit of a good quality relationship with both parents, where safe to do so. I remain of the view that messing around with current legislation is not necessary and, in fact, potentially more confusing for parents.

Nevertheless, there is now in place a consultation as regards options to achieve the government’s desired result – closing 5^th September 2012.

The governments preferred option is to “require the Court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests.”

Other options are:

1.      to require the Courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents.

2.      providing that the Court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents

3.      inserting, as an additional factor that the Court must consider, the further involvement of both parents.

In terms of the government’s preferred option, like I say, I know of no Judge or Solicitor who would presume otherwise and I don’t consider that any such amendment to expressly set out the presumption will alter the way in which the Court deals with these types of issues

…but how will this be construed by parents in the heat of court proceedings or separation – ultimately it is this that matters, it is clients and their views or perceptions that drive matters through Court. It isn’t beyond belief that in their minds the proposed presumption will relate to equal division of responsibility and, as part of that, time.

Already there have been comments made in the media that fuel such a thought process - “father’s to get equal access rights” being just one. However much the government makes it clear that equal time is not their focus, it will not be ministers trying to explain that to parents in Court.

The government’s argument for such amendment to legislation is that it will assist separating parents and will mean less cases reaching Court. There appears to have been little given to the fact that some 90% of separating couples never reach Court and the remaining 10% ordinarily involve multiple issues and problems.

How will introducing some starting point or presumption help those parents?  it is more likely to further entrench them against each other, leading to longer cases, more hostility and argument over what constitutes sufficient “involvement” with the child.

I have seen several cases where parties’ parenting styles have been different (neither worse nor better than the other but different) with one parent seeking at every opportunity to involve themselves when the children are with the other, criticising the other’s approach – where will the line be drawn?

Further, there appears to be little thought given to how the proposed presumption of “co-operative parenting” will be rebutted. How will the Court identify those cases in which the presumption should not apply? What guidelines are there to be?

Fundamentally, I wonder where the government’s evidence for the necessity of such amendments comes from. There is certainly a perception amongst some people that the Family Courts are biased in some way towards one parent but no evidence that that perception is based on fact. Where is the need for amendment?

Are we to legislate now just to remove or deal with people’s perceptions, however inaccurate they may be?

That will be next to impossible in Family law, where the Court’s quite rightly have wide discretion to act with the child’s welfare as their paramount consideration. Almost every case will see someone come away without all that they wanted and a “perception” that the Court has favoured the other – this seems to be despite all that the judges do to make it clear that their focus is the child.

One thing is clear, the government is set on this course irrespective of the views of Family law professionals or the conclusion of the Family Justice Review – we can only hope that, whichever option is chosen, clear information is given to parents to avoid further incorrect perceptions being formed.