tag:blogger.com,1999:blog-78495672704972060022024-03-19T02:27:05.292-07:00family legalLouise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.comBlogger50125tag:blogger.com,1999:blog-7849567270497206002.post-32769275673590290142013-11-06T06:26:00.000-08:002013-11-06T06:26:55.760-08:00Enforcement of Child Contact Orders
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">This has
long been a difficult and emotive area of family law – on the one hand the need
for Court Orders to be upheld both for confidence in the family law system and
the ordered Contact to take place (especially as the Court will have considered
that to be in the best interests of the child in making the order in the first
place) and on the other the available penalties, how practical they may be and
the impact on the child’s welfare in using them.<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">These types
of matters are in the minority but, as you might imagine, are the most
intractable with the emotional distress to the parties and to the children at
its highest. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">The Court
may consider a breach of an Order as contempt of Court and this makes available
to it fines or imprisonment. The Court may also change a child’s residence. The
problem with these options is how practical they are in the circumstances and
the potential impact on the carer and, therefore, the children. Ultimately of
course it is not likely to do much for the children improving their
relationship with their non-resident parent, who they may even view as to blame
for their other parent being imprisoned/fined.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Thanks to
the Children and Adoption Act 2006, unpaid work and financial compensation may
also be used as means of enforcing Orders…. but how does the Court actually
deal with these matters.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">A recent
study funded by The Nuffield Foundation and published in July this year has
sought to gather information on these types of matters and their outcomes – a
good thing too given the lack of any real analysis to help steer legislation.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Most
enforcement applications are brought by fathers as a result of Contact breaking
down completely, although there were cases brought for enforcement because the
parent with care of the children was late for Contact or sessions were being
missed. 59% of cases studied were brought back to Court within 1 year of the
original order.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Although
most people probably believe that the main reason for Contact Orders being
breached is as a result of the unreasonable behaviour or implacable hostility
of the parent with care, in fact the study found that these matters made up
just 4% of the studied sample of cases.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Most common
were cases of parents in significant conflict – either through a lack of any
trust or where they were in competition – meaning that they were entirely
unable to work together. Next common were those cases where one or both parties
raised issues of risk, be those alcohol, drugs, mental health or domestic
violence and 10% of cases saw older children rejecting all or some of the
ordered Contact in a reasoned way, citing the behaviour of the non-resident
parent or their lack of sensitivity as an issue.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Most of the
cases were dealt with by the Court setting out a timetable for Contact but also
putting in place measures to encourage the parents to work together, be that
mediation, parenting education courses etc. but the Court also dealt with
matters by setting out a new timetable for any Contact, assessing risk issues
by way of drug testing or by restricting Contact to supervised Contact and by
seeking the views of the children involved and following those.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">In 9% of the
cases sampled, the Court sought to ensure compliance with the original order by
way of punitive action. These were largely restricted to the cases of
implacable hostility, which formed the smallest % of cases sampled.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">The study
finds that largely the Court alters its way of dealing with these matters
depending on the reasons for the case returning to Court and in the vast
majority of matters, the Court deals with them appropriately. Given that most
enforcement cases centre on the parental conflict or risk issues, it is
positive to note the Court’s focus on co-parenting, protection and problem
solving as opposed to pure punitive measures, which almost certainly wouldn’t
assist.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Interestingly
enough, the study found that too much focus is placed on quick case progression
at the expense sometimes of addressing the underlying issues causing the
dispute – I can only imagine that this is not going to improve given the
stripping of resources and increase in the Court’s caseload with Litigants in
Person but perhaps I am being too pessimistic, the single family Court is on
its way and there is every chance this will streamline matters and free up time
for the Courts….<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<a href="http://www.nuffieldfoundation.org/sites/default/files/files/enforcement%20briefing%20paper%20final.pdf"><span style="font-size: 12.5pt; line-height: 115%;"><span style="color: blue; font-family: Calibri;">http://www.nuffieldfoundation.org/sites/default/files/files/enforcement%20briefing%20paper%20final.pdf</span></span></a><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;"> <o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-52773753193353193732013-10-21T08:19:00.003-07:002013-10-21T08:19:56.209-07:00Family Mediation Reduction
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;"><span lang="EN" style="mso-ansi-language: EN; mso-bidi-font-weight: bold;">It has been recently reported that since the cutting of </span><span lang="EN" style="mso-ansi-language: EN;">Legal aid in April 2013 there has been a dramatic
drop in the number of divorcing or separating couples opting for mediation,
according to the latest government figures.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="mso-ansi-language: EN;"><span style="font-family: Calibri;">Mediation
Information and Assessment Meetings (MIAMS) fell 47 per cent in the past year,
despite guidance that all divorcing couples should attend such sessions before
commencing proceedings. It is not currently obligatory for couples to attend
Mediation but that is set to change with the introduction of the Children and
Families Bill next year, which may result in increased numbers attending
Mediation but who will be left to provide these services by then? Will
Mediation Services survive the drop in their income?<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="mso-ansi-language: EN;"><span style="font-family: Calibri;">But, that aside,
why are people failing to attend Mediation – especially given that, amongst all
of the legal aid cuts, Mediation has survived with legal aid still available
for those who qualify financially.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="mso-ansi-language: EN;"><span style="font-family: Calibri;">I suspect that,
despite the government seeking to justify the cuts at the time by reference to
legal aid remaining available for Mediation, there has been little real
promotion of this since, by the media or the government.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="mso-ansi-language: EN;"><span style="font-family: Calibri;">Divorcing couples
now know or believe that legal aid is not available to them and I expect that
they (wrongly) consider that this goes for Mediation as well. In addition, the
number of people taking legal advice on Divorce is very likely to have reduced,
as people fear the cost and this, in turn, is likely to have an effect on the
number of referrals by Solicitors to Mediation services. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="mso-ansi-language: EN;"><span style="font-family: Calibri;">And yet,
Mediation is a hugely powerful process in the right cases and can allow clients
to retain control over the discussions, the timeframe and ultimately their
agreement. It can lower the overall costs of a matter dramatically and ease the
emotional fall out.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="mso-ansi-language: EN;"><span style="font-family: Calibri;">A joint
partnership between lawyers and Mediators is, I believe, one structure which
would assist – in the absence of the media/government/legal aid agencies
promoting the availability of Mediation and whilst we wait for the introduction
of compulsory MIAMS next year, surely the promotion of Mediation by the
profession would help.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="mso-ansi-language: EN;"><span style="font-family: Calibri;">The client’s aims
are, ordinarily, to achieve a fair outcome as quickly as possible and to limit
the emotional and monetary expense – a combination of Mediation and legal
advice can achieve this in most cases and more fixed fee partnerships between
mediators and solicitors of the kind we are party to in Worcester would, in my
opinon, be a good place to start.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-72685521665154654982013-09-13T03:58:00.000-07:002013-09-13T03:58:17.316-07:00Step-families Day
<span style="color: black; font-family: "Verdana","sans-serif";"><span style="font-size: x-small;"><span style="font-family: Arial, Helvetica, sans-serif;">On the 16<sup>th</sup> September it will be National Step Family
Day in the U.S – there is not, as far as I am aware, an equivalent day in the
UK.<o:p></o:p></span></span></span><br />
<span style="font-family: Arial, Helvetica, sans-serif; font-size: x-small;">
</span><br />
<div style="background: white;">
<span style="color: black; font-family: "Verdana","sans-serif";"><span style="font-size: x-small;"><span style="font-family: Arial, Helvetica, sans-serif;">One in three American citizens live in a stepfamily and 30% of
children in the U.S are currently growing up in a stepfamily. In the UK in 2008,
more than 10% of families with dependent children were step families and
stepfamilies were the fastest growing type of family. It has even been
previously estimated that there are more step families than “nuclear” families.<o:p></o:p></span></span></span></div>
<span style="font-family: Arial, Helvetica, sans-serif; font-size: x-small;">
</span><br />
<div style="background: white;">
<span style="color: black; font-family: "Verdana","sans-serif";"><span style="font-size: x-small;"><span style="font-family: Arial, Helvetica, sans-serif;">Having a step-parent suggests that the family has previously been
through a divorce, which will have been a huge ordeal, especially for the
children, and the changes and emotions that are felt when a new step-parent
comes into the family can be difficult. Resentment, anger and divided loyalty
can see previously amicable relationships damaged with the consequences felt by
the children and all involved.<o:p></o:p></span></span></span></div>
<span style="font-family: Arial, Helvetica, sans-serif; font-size: x-small;">
</span><br />
<div style="background: white;">
<span style="color: black; font-family: "Verdana","sans-serif";"><span style="font-size: x-small;"><span style="font-family: Arial, Helvetica, sans-serif;">And yet there are many step families who work hard with these
issues every day, foster good relationships between the children and new step
parent and between the adults involved and who, despite the difficulties,
remain together and provide a stable environment for the children in the family
unit.<o:p></o:p></span></span></span></div>
<span style="font-family: Arial, Helvetica, sans-serif; font-size: x-small;">
</span><br />
<div style="background: white;">
<span style="color: black; font-family: "Verdana","sans-serif";"><span style="font-size: x-small;"><span style="font-family: Arial, Helvetica, sans-serif;">So, if your family is a step family, on the 16<sup>th</sup>
September (even if you are not in the U.S) take a moment to think about the
positives and some time together.<o:p></o:p></span></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-39446662304692444372013-08-28T01:44:00.000-07:002013-08-28T01:44:02.961-07:00Interest in Cohabitation?
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Recently, a
client of mine said that he “knew that after 6 months of living with his new
partner, she would gain an interest in his property”.<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">I asked my
client where he had heard this information and he told me that he had been
speaking to a friend who had told him as much.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">This is not
the first time that I have had to put clients straight about their position on
cohabitation and it is a mystery to me where these snippets of “advice” stem
from but in short I informed my client that a cohabitee does not gain any
automatic right or interest in property after a set period of time.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">The key to a
non-owning cohabitee seeking to claim any interest in a property lies in a 2
stage approach;<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpFirst" style="margin: 0cm 0cm 0pt 36pt; mso-list: l1 level1 lfo2; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">1)</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><!--[endif]--><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">The non-owning cohabitee proving a
common intention of the parties to share the interest in the property<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpLast" style="margin: 0cm 0cm 10pt 36pt; mso-list: l1 level1 lfo2; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">2)</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><!--[endif]--><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Quantify their interest either by
inference from their conduct or by imputing what the Court considers fair<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">This can be
particularly complicated but the area of trusts is used to deal with hurdle 1
and in their boiled down states these are:<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpFirst" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">1.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><!--[endif]--><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Express Trusts – i.e. some evidence
in writing of the parties’ intentions as regards interest in the property –
quite unlikely in a situation where one party alone owns the property<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">2.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><!--[endif]--><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Constructive Trusts – i.e. where the
non-owning cohabitee shows that there was a common intention that they have an
interest in the property (either through their conduct or that there was some
agreement between the parties) and that they had relied on that intention to their
detriment<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpLast" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">3.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><!--[endif]--><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Resulting Trusts – i.e. the
non-owning cohabitee made some contribution to the purchase price of the
property that they intended would gain them some interest in the property<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Trust
arguments are complicated and disputes between cohabitees can be costly. The
best piece of advice to any client of mine with such issues would be to
carefully consider with your new partner any financial contributions that they
make towards the purchase or any property, mortgage payments or any
outgoings/renovations/extensions on the property and make a clear record of
what payments are for and whether it is intended at all that these payments
will mean that the new partner has any interest in the property and, if so, how
much.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Review any
financial arrangements relatively frequently and certainly if they are to
change at all to make sure that your agreement is up to date and good evidence.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Thinking about
these issues at the outset makes it much easier to resolve matters if the
relationship fails.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com2tag:blogger.com,1999:blog-7849567270497206002.post-25262429091225697392013-08-13T08:30:00.001-07:002013-08-13T08:30:40.355-07:00What’s in a name?
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Yesterday saw a case reported from the Tennessee Courts which involved 2 parents who
could not agree on their child’s surname and who, as a result, issued an
application for the Court to determine the matter. <span style="mso-spacerun: yes;"> </span></span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><a href="http://www.independent.co.uk/news/world/americas/hes-not-the-messiah-hes-just-a-little-boy-tennessee-judge-changes-childs-name-from-messiah-to-martin-8757085.html"><span style="color: blue; font-family: Calibri;">http://www.independent.co.uk/news/world/americas/hes-not-the-messiah-hes-just-a-little-boy-tennessee-judge-changes-childs-name-from-messiah-to-martin-8757085.html</span></a><span style="font-family: Calibri;">
</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;"><span style="font-size: 12.5pt; line-height: 115%;">Unfortunately
for the parents, in deciding the matter, the judge learnt of the child’s first
name (on which the parents did agree, presumably) being Messiah. The Court has
ordered that the child’s first name be changed to “Martin” and that both
parents’ surnames be used as the child’s surname, leaving the child’s name now
as Martin </span><span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;">DeShawn McCullough.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">Whether the mother’s appeal against the change of the
child’s first name will be successful remains to be seen, the mother alleging
that the judge took more account of her own religious beliefs than considering
the child’s interests or the parents’ right to choose a name for their child.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">But what this case does highlight is just one of the
issues that might arise between parents of children who are separated and have
different views.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">In this country, if both parents have Parental
Responsibility for their child (the mother gets that automatically on the
child’s birth and the father may obtain it either by being married to the
child’s mother, entering a Parental Responsibility Agreement or being named on
the child’s birth certificate post December 2003) then there are certain things
that cannot be done without both parties’ consent and several decisions in
which both parents should be consulted/have a say.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">The changing of a child’s name is one action that cannot
be taken without the consent of all people with Parental Responsibility for
that child and, if parents cannot agree, then an application to the Court for a
“specific issue order” will be necessary.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">The Court will have to have regard to the “Welfare
Checklist” as with all applications concerning children and balance the
following, taking into account that the child’s best interests are paramount in
these kinds of applications:</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">a) the ascertainable wishes and feelings of the child
concerned (considered in the light of his age and understanding);</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">(b) his physical, emotional and educational needs;</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">(c) the likely effect on him of any change in his
circumstances;</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">(d) his age, sex, background and any characteristics of
his which the court considers relevant;</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">(e) any harm which he has suffered or is at risk of
suffering;</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">(f) how capable each of his parents, and any other person
in relation to whom the court considers the question to be relevant, is of
meeting his needs;</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">(g) the range of powers available to the court under this
Act in the proceedings in question.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">I have made several such applications on behalf of
clients over the years and whilst there are exceptions, notably where
association with a particular name is likely to cause the child distress or
harm or where change to incorporate a particular name is likely to be against
the child’s best interests, the Court has favoured the incorporation of both
parents’ surnames into the child’s name, sometimes hyphenated, sometimes not.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">That appears to be because this allows the child’s link
with their biological parents to be kept intact – which in terms of a child
understanding its paternity and history can be very important, perhaps even
more so if a child is having limited or no contact with one parent.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span lang="EN" style="font-size: 12.5pt; line-height: 115%; mso-ansi-language: EN;"><span style="font-family: Calibri;">It appears that the Court in Tennessee has come to the
same conclusion in this recently reported case.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-39458291904580949732013-07-10T08:00:00.000-07:002013-07-10T08:00:06.334-07:00Summer – Will it become too heated?
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Finally, some sunshine and
high temperatures after the distinctly too cool Spring and soon enough schools
will break up, children will be off for the summer….<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The pressure that many can
feel to have the “perfect Summer”, to spend time with family, arrange and host
BBQs and other events and ensure that the children have plenty of days out and
fun activities can lead to tremendous stress and fractured relationships.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">It has long been acknowledged
that there is a noticeable link between holiday periods and the number of
enquiries that Solicitors receive about Divorce following those and whilst many
consider that a bad joke I can assure you that for the clients that I see it is
anything but.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Now I am not suggesting that
one less than perfect Summer leads to Divorce, families and relationships are
far more complex than that, but it can be a significant stressor on a
relationship that perhaps is already in difficulty or on couples who are not
seeing eye to eye.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">There are some things that
you can consider to make the whole period less stressful. Try the following:<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpFirst" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">1.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Plan in advance
and acknowledge what you can and can’t do – limit the number of BBQs or events
you are going to host over the holidays and “book” them in early, speak with
other parents at School or with family members about their plans early so you
don’t feel pressured to accept any last minute invites.<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">2.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Make a note of
local activities for children or for you and your partner that will keep you
all interested. If you have different interests, acknowledge those and plan
activities accordingly.<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">3.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Arrange for the
children to spend time at their friends’ homes – I’m sure their parents will
gratefully accept if the reverse is also offered and it will allow you some
time alone or together as a couple to discuss any issues without the children
around.<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">4.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Pencil in some
relaxation or free time so that you can do as you please – talk to your
partner, accept that last minute invite if you want to, spend time as a family
at home.<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">5.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">If you are really
struggling to speak with your partner without arguing then don’t. Take time to
walk away and compose yourself and raise any issues when you are both calmer
and away from any family members or children.<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpLast" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-size: 12.5pt; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">6.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Perspective – it’s
Summer, yes we don’t have great weather all the time and you want to make the
most of it but the memories that I have of Summer, both in my childhood and
adulthood, are not of what the weather was doing or even what<i style="mso-bidi-font-style: normal;"> I</i> was doing but who I was with and the
atmosphere that there was – make that your focus.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-53389857329380548092013-06-12T07:42:00.000-07:002013-06-12T07:42:36.675-07:00Petrodel v Prest - Summary<a href="http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0004_PressSummary.pdf">http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0004_PressSummary.pdf</a>Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-91859425199712213742013-06-06T08:57:00.000-07:002013-06-06T08:57:34.743-07:00Protect your Rights...I recently have had several clients contacting me very concerned that they are separating from their husbands and that the family home is owned in his sole name.<br />
<br />
Some have been told by their husbands that they will have to leave because it is "his house" and some have assumed that they have no security because their name is not on the deeds.<br />
<br />
In cases where parties are cohabiting and are not married, that might well be the case but where parties are married, the non-owning spouse (so to speak) has a right of occupation by virtue of the fact that the property is his/her marital home, irrespective of the position as to legal ownership.<br />
<br />
There is also something that can be done to protect that right, in the registration of a Home Rights Notice (HRN) against the property with the Land Registry.<br />
<br />
This straightforward notice is especially important if the non-owning spouse is going to move out whilst the marital finances are being sorted - perhaps to their parents/friends or into rented accommodation - this is sometimes the case where that person feels that it is impossible to remain under the same roof and try and resolve the marital finances and where their spouse refuses to leave the property because his/her name is on it.<br />
<br />
The notice can only be registered against one property (the one that has been used as the marital home) - and if a couple has a property portfolio and some of those other properties are owned in the sole name of one spouse, the other would be best advised to consider registering another form of restriction against those.<br />
<br />
The effect of the HRN is to put any prospective buyer on notice that the non-owning spouse has a right of occupation of the property. No buyer is realistically going to want to buy the property subject to the notice and they will ordinarily demand its removal before/on completion of any purchase.<br />
<br />
The benefit of this is that it can frustrate the owning spouse selling the property from under the other, non-owning, spouse because they will have notice of any proposed sale when they are approached to remove their notice and, in the normal course of events, will refuse to remove the notice to allow any sale to go ahead unless settlement terms can be agreed.<br />
<br />
The owning spouse can object to the notice being entered, if they provide appropriate evidence - for example if they believe that the property was never the matrimonial home.<br />
<br />
The Notice can be cancelled on the death of either spouse, pronouncement of Decree Absolute, by the non-owning spouse agreeing to release the rights or by Court Order.<br />
<br />
A really useful tool and, having explained it to clients, one that helps sets minds at ease!Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-54945464819245770532013-05-24T02:06:00.000-07:002013-05-24T02:06:16.421-07:00Whatley Weston & Fox are on Facebook!<a href="https://www.facebook.com/solicitor.worcester">https://www.facebook.com/solicitor.worcester</a> we're on facebook - check out our page and like us to keep up to date with our news Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-56985987488590003132013-04-24T07:31:00.001-07:002013-04-24T07:31:41.593-07:00Family Department | Solicitors Worcester<a href="http://www.wwf.co.uk/services/family-department">http://www.wwf.co.uk/services/family-department</a> - check out our new website for factsheets on family law issuesLouise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-37872817055373271712013-03-27T09:37:00.000-07:002013-03-27T09:37:31.640-07:00Unbundling or unravelling?The new buzz word of the moment in some legal circles is "unbundling" but could it all lead to matters "unravelling"?<br />
<br />
The concept essentially is to offer clients the option of doing parts of the work themselves and paying a Solicitor either for discreet pieces of work or defined parts of a matter.<br />
<br />
I can certainly see the benefit to the client in terms of limiting costs but I do think both sides need to be careful that matters don't end up more complicated with the case suffering as a result.<br />
<br />
This idea is being discussed over a number of different areas of law but I shall focus on family law, as it is the one I am more familiar with.<br />
<br />
Take Divorce as an example. What I mean by that is what lawyers refer to as the "main suit", the paper-process that takes a person from "married" to "divorced". Often misunderstood by clients as encompassing all issues, finances and children as well. <br />
<br />
That process is fairly straightforward - yes there are some points that need to be discussed/negotiated but if a Divorce is to proceed undefended i.e. no answer filed by the Respondent (which is not the same as someone disputing what is said about their behaviour but nevertheless agreeing that the marriage has come to an end) then the reality is that the process is defined and why should we not, as lawyers, be able to offer a fixed fee or "unbundled" service to clients? <br />
<br />
The level of fixed fee will depend on how much work a client wants to undertake themselves. I know, if i am to do all of the drafting for a client, what is involved and how long it will take me. If a client is being guided by me but undertaking the drafting themselves then there is less certainty about how much input they will need from me in terms of the paperwork.<br />
<br />
There has been much discussion about how we can tell whether a client is capable of undertaking the necessary work, how much they understand and whether them undertaking work themselves may put other aspects of the case in jeopardy - that may well be relevant if the client is left to their own devices, entirely unguided or perhaps in other areas.<br />
<br />
My view is that each client has a particular relationship with their lawyer and lawyers should be sufficiently adept at client care and client contact to establish a good relationship with each of their clients. It is a matter for discussion between the Solicitor and client as to how work is divided and whether indeed the client wants to do any of the work themselves. <br />
<br />
I have had no difficulty with clients opting for our "Guided Divorce". I am clear with them at the outset about our respective responsibilities in terms of paperwork etc. and understand from their feedback that the option of controlling costs by undertaking the preparation of papers themselves has been helpful. Clients feel that they are able to work this way because they know that they have my guidance throughout.<br />
<br />
In terms of other matters, I can see that it may be difficult to "unbundle" financial negotiations for example or negotiations concerning child arrangements. <br />
<br />
That is twofold, to ask a Solicitor to work on a discreet piece of work, perhaps the preparation of a statement for example, can in fact be counterproductive - the Solicitor will not have been privy to the detail of negotiations and will be unable to advise in the round to ensure that all areas are covered and that the client understands their position and any risks that they face.<br />
<br />
This causes a difficulty for lawyers, who are inherently risk averse, because we feel that we are left open to suggestions that we have not fully advised the client about the various possible outcomes or their risks, that there might be some claim raised against us etc. etc.<br />
<br />
In addition, fixing a fee for negotiations is difficult because the length and depth of work is an unknown at the outset. <br />
<br />
That said, I can see no reason why costs for defined stages of proceedings cannot be set in bands with detailed information given about what that "band" involves. That leaves the client clear about the level of costs that they will incur up to a certain point and allows the Solicitor to work on the matter throughout and not piecemeal, which satisfies us as regards our duty to fully advise etc. etc. <br />
<br />
I think the reality is that decisions as to whether firms operate this way going forward will be business decisions and the level of fixed fees, "unbundling" or banded fees will need to be carefully assessed and clear letters to clients detailing the extent of the work being undertaken by the firm and by the client respectively.<br />
<br />
The legal landscape is changing, fast, and I do think that more flexibility is required and will be demanded by clients - perhaps especially after the 1st April. <br />
<br />
This is a brave new world of legal services but who will have the courage?<br />
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-3484501843484971482013-03-18T07:52:00.001-07:002013-03-18T07:52:58.876-07:00Legal Aid Cuts fast approaching
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Wow,
February has totally past me by I’m afraid – hence the lack of any blog posts –
apologies.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Recently, I
have been amazed about the lack of understanding that there is generally by the
public about the forthcoming cuts to legal aid and what that will mean for
couples separating after 1<sup>st</sup> April.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">I am often
asked by friends, family and professional contacts “how work is going” and I
have spoken with people recently about the challenges that family law as a
whole will face in the coming months/years. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">More often
than not, people are surprised to hear that from April there will no longer be
legal aid available for family law matters, save where there has been Domestic
Violence – subject to the client being able to provide the necessary evidence
of that – or for Care proceedings. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">This was hit
upon in the press when it was initially proposed but seems to have been lost
amongst other news and has not been highlighted for some time now. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Essentially
it means that the vast majority of separating and divorcing couples will no
longer be able to access legal aid to fund their matters. <span style="mso-spacerun: yes;"> </span>It is estimated that this will be about 85% of
those cases currently benefitting from legal aid.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">It will mean
that for couples facing separation or Divorce where there has been no Domestic
Violence that they face some stark decisions about how to progress with their
Divorce or Separation.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">These may be
couples with many assets, no assets but a lot of debt, couples facing disputes
over the arrangements for their children or any other situation in between.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">To represent
yourself, perhaps especially in cases concerning arrangements for the children
but equally in cases involving the division of marital assets, is stressful and
frightening. Whilst a Judge will be available to manage the Court process and
explain some of the procedure to couples once proceedings have started it is
not the Court’s job to present any one party’s case or advise about the merits
of their arguments. Outside of the Court process people may feel entirely alone
and unsupported. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">In the event
that one party has resources to fund legal representation and the other does
not, it can leave an imbalance in power in terms of negotiations and is likely
to see many more cases progressing to Court proceedings and thereafter to
contested final hearings, as a result of negotiations being ineffective.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">The Family
Courts have principles and checklists to follow both in terms of cases
involving children and those concerning the division of marital assets. Add to
that the volume of case law, some of which binds and some which informs the
Court’s decisions, and it is easy to see that the self-representing litigant
may come unstuck.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">So…what are
the other options:</span></span></div>
<div class="MsoListParagraph" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">1.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><u><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Research</span></span></u></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">There are a
number of online resources available now that will explain the process of
Divorce and the issues that you will need to consider on Separation. You may
undertake some research and go it alone.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 12.5pt; line-height: 115%;">Consider</span></b><span style="font-size: 12.5pt; line-height: 115%;"> – a lot of these resources provide
only brief information about the paper process of Divorce and fail to fully
explain important issues around finances or child arrangements. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Be wary of
advice from friends or people down the pub – they may be well-meaning but
frequently have their own perceptions or experiences colouring their view.</span></span></div>
<div class="MsoListParagraph" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">2.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><u><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Mediation</span></span></u></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">To be
invested in heavily by the government over the coming years, Family Mediation
is a process whereby couples attend joint sessions with an independent Mediator
to discuss the various issues faced on separation – try to resolve their
financial affairs and try to agree arrangements for the children</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Legal aid
remains available for Family Mediation if you pass the financial assessment.
You may self-refer or be referred through a Solicitor.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 12.5pt; line-height: 115%;">Consider</span></b><span style="font-size: 12.5pt; line-height: 115%;"> – if you are not eligible for legal
aid then you will have to pay for each session of Mediation, although this is
often more cost effective than full blown negotiations through Solicitors and
can help narrow the issues.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Even if you
reach agreement through Mediation, you will need legal advice to ensure that
your agreement is legally binding – the Mediator will be able to point you in
the right direction and look out for Partnership Schemes between Solicitors and
Mediators that will fix fees for you – there is one in Worcester for example.</span></span></div>
<div class="MsoListParagraph" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">3.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><u><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Middle ground</span></span></u></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Some
Solicitors offer a middle ground option in terms of Divorce proceedings which
will see you doing some of the form filling and correspondence yourself whilst
you are guided through by the Solicitor dealing with your case.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">This has the
advantages of you being certain of your next steps but controlling the costs.
Your Solicitor will also be able to advise you about any ancillary issues so
that you are clear on your option.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 12.5pt; line-height: 115%;">Consider </span></b><span style="font-size: 12.5pt; line-height: 115%;"><span style="mso-spacerun: yes;"> </span>– there will be a cost to this option but it
should be less than asking a Solicitor to fully manage your Divorce proceedings
– expect to pay about £350-£400 + VAT and Court fees of £385.</span></span></div>
<div class="MsoListParagraph" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">4.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><u><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Free initial consultations</span></span></u></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Useful and
offered by most Solicitors now, this initial form of consultation should allow
you to gain some information about procedure and the important issues in your
particular case. It is more tailored to you then generic information that you
may find online and you can access it without obligation</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 12.5pt; line-height: 115%;">Consider </span></b><span style="font-size: 12.5pt; line-height: 115%;">- it may leave you informed but more
concerned about representing yourself going forward. Frequently people who
attend to see me for an initial consultation feel clearer on the issues and
their options but feeling that they will need support and guidance going
forward. That is not really a bad thing, better to be informed early on.</span></span></div>
<div class="MsoListParagraph" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="font-size: 12.5pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">5.</span><span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span></span></span><u><span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Instruct a Solicitor</span></span></u></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">The plus
side to this of course is that you will have a legal professional guiding you
through the minefield that can be Divorce, someone to support you and protect
your best interests and someone to advise you about which of your arguments are
strongest and which are perhaps fuelled by your emotions.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">You may wish
to consider instructing a Collaborative Solicitor, and follow the Collaborative
law process.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 12.5pt; line-height: 115%;">Consider</span></b><span style="font-size: 12.5pt; line-height: 115%;"> – there is clearly a cost to
instructing a Solicitor but you should be provided with detailed cost estimates
at the outset and updated about any costs throughout.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Several
Solicitors now offer fixed fee packages or banded costs – so that you know what
your costs will be at each stage of the process. You may also be able to agree
a capped fee with your Solicitor at the outset.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">There may be
sources of funding open to you and there are a couple of organisations that
offer loans to cover the cost of financial negotiations and proceedings on
Divorce. Be sure to take financial advice and be clear on the terms of any
loan.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt; line-height: 115%;"><span style="font-family: Calibri;">Whichever
option is chosen, Divorce is a difficult and stressful time for all involved,
if possible choose an option that will help you minimise the strain.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-53091737282867778242013-01-30T06:37:00.001-08:002013-01-30T06:37:31.657-08:00Costs and control in DivorceSo February is nearly upon us, scary - one month down!<br />
<br />
I have struggled this month with diet, exercise and all the new year resolution type things that I was to do but all of that pales into insignificance when I meet new clients struggling with all of that, normal life, children and the prospect of a separation.<br />
<br />
Many have been happy that finally they have felt able to do something about the feelings that they have harboured for a long time but even when people have plucked up that courage and taken that step they find themselves trying to deal with a process that is alien to them and the costs that come with it.<br />
<br />
I have read in several places over the last month or so that Divorce costs £10,000+ (I have seen that as a statement in itself with no qualification about the level of assets or complexity of the case).<br />
<br />
Now whilst I accept that there are some cases that are complex or very contested and which attract alot of legal costs, there are many more that are relatively straightforward and that should not attract anywhere near that amount. It worries me to think that there are people who will shy away from getting the legal advice they need to make an informed decision because of scaremongering about costs.<br />
<br />
There is a cost, of course, to obtaining specialist legal advice on Divorce - much as there is a cost to having your car fixed or taking financial advice - but there is also a value to that advice - be it in peace of mind, protection of assets or security for the future.<br />
<br />
People going through the process of separation or divorce want control, they want fairness and they want to feel that they are not lost and that they have direction - that is fine but often the sticking point is cost.<br />
<br />
In late 2012 I entered a Mediation Partnership with Mediation Worcestershire, along with a few other Solicitors in the area. The concept is that people who attend Mediation to resolve their differences but who naturally require legal advice at some point in that process, will be able to turn to members of the Partnership for that advice at a fixed cost.<br />
<br />
The aim is to make sure that couples who are separating have the benefit of control through the Mediation process with access to the specialist legal advice that they need at a cost that is clear.<br />
<br />
I am imensely pleased that as a profession as a whole we are trying to ensure that access to legal advice remains open and never will this be more important than post April 2013, when the availability of legal aid for family law cases will be abolished, save for those cases involving Domestic Violence or Care issues.<br />
<br />
I know that there is a cost to bear for legal advice but I hope that as this year progresses people do not leave themselves counting the cost of not having had it!<br />
<br />
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-32840854030937815552013-01-02T01:38:00.000-08:002013-01-02T01:38:01.579-08:00New Year, next chapter?
<span style="font-family: Calibri;">Whilst this festive period may have been a happy time, for
many the added stress, constant planning and financial pressure will have left
their relationships at breaking point.<span style="mso-spacerun: yes;">
</span>When the New Year comes round and people stand back to assess their
lives and relationships, many may decide to separate or Divorce.<o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Rarely do I find that the Christmas period has been the <i style="mso-bidi-font-style: normal;">cause</i> of a relationship breakdown and
often separation is something that couples have been discussing between
themselves for quite a while. When another year arrives on the calendar people
think about a new start, new opportunities and new possibilities. It often
seems easier to draw a line in the sand at the end of the old year and try to
be optimistic about the future at the beginning of the new one, whatever
difficulties you might be facing.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Often, the idea of instructing a solicitor may seem 'too big
a step' when all you really want is an understanding of what your options may
be going forward and clients frequently tell me that they have delayed getting
advice because they were concerned about the costs or fearful about feeling
pressured into a certain course of action – presumably having listened to the
media’s view of lawyers generally.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">I can only imagine that in 2013, with Legal Aid being
withdrawn by the government for almost all Family Law matters, the number of
people feeling this way will increase. And yet, separation or Divorce is a
major life decision and one that you should make with as much information as
possible. </span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">I offer a free initial consultation on family law issues and
spend time explaining to clients the options and discussing ways forward. I
hope that clients leave more reassured and clearer about their next steps and
they frequently tell me that this is the case, which is good to hear!</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Recently, we developed a range of fixed fee options, again,
in the hope of reassuring clients and in anticipation of Legal Aid being
withdrawn, to assist the many people that will require advice after April 2013
but simply cannot afford to pay on the basis of an hourly rate. It remains to
be seen whether many other firms will take the same line but it I clear that
the legal market is changing.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Couples separating will more and more be faced with a vast
array of organisations and firms seeking to offer legal advice – they will have
to decide, do I get advice from my supermarket, an online organisation or a
traditional law firm. Do I want to deal with a call centre, someone over e-mail
or do I value my life and future enough to want the person dealing with it all
to be accessible, someone I can visit face to face and develop trust in?</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">So I start 2013 positively, having done all I can to enable
our clients to access the advice they need at an affordable cost, and anxious
to see how the legal market will change this year.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Bring on the next 12 months! <o:p></o:p></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-78753532835743317292012-12-04T03:48:00.000-08:002012-12-04T03:48:06.344-08:00One too many days of Christmas?
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">So the festive season is
nearly here, there are Christmas displays in shop windows and the
build-up has well and truly begun.<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Whilst this for many is a
happy time of year the added stress and debt can put strain on relationships
and cracks may start to appear or become more apparent for those who are not
used to spending long periods with their partner or children.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The constant planning and
pressure for everything to be perfect can leave couples at breaking point and
it is a sad fact that reports of Domestic Violence and people seeking advice
for relationship breakdown often double in the post-Christmas period.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">With the recession still in
force, this year may seem particularly difficult for many but n</span></span><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">obody wants to suffer upset
at Christmas so how can you try to Christmas proof your relationship?</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">1. Keep a check on your
alcohol consumption – excessive alcohol can frequently lead to people being
more aggressive/argumentative or expressing views that they may later regret –
alcohol and the pressure of a family Christmas can be a disaster</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">2. Agree a budget for each
family member or for the children and stick to it – financial pressures are one
of the biggest strains at Christmas and can be source of many arguments, even
in to the New Year when debts need to be paid off</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">3. If you’re struggling,
refusing to speak to one another, whether that is because you simply can’t bear
it or because you fear it will cause a row, will see tensions build – try and
clear the air about issues as quickly as possible and away from family members.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">4. Perspective – with the
added stress and pressure the smallest of things can become a source of major
irritation. Stand back and count to 10, is it that big an issue? If it is then
speak about it, if not, let it go.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">It is rare that Christmas is
the cause for a relationship breaking down but it can magnify cracks in a
relationship and be the last straw – if that is the case, seek out specialist
advice in the New Year and remember that friends may be well meaning but they
are frequently wrong or influenced by their own experiences.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">For those couples already
separated, particularly with children, the issue of how to deal with Christmas
can raise other difficulties, here are a few tips to help…</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">1. If you have recently
separated, or even if you have been for some time, rely on your friends and family
for support. Surrounding yourself with close friends will lift your mood and
stop you dwelling on matters.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">2. Make Christmas your own –
often when there are children involved, a family will have certain traditions
done each year. Don’t focus on what has always been done, make your own
traditions and memories and move forward </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">3. Forget the emotion – maybe
you are still processing emotions from the breakdown of your
marriage/relationship try not to let your children sense that over Christmas.
Remember this, as long as children see
both of their parents over the Christmas period they won’t be too concerned
about who they see on Christmas Day – Christmas starts when the presents start
and ends when the presents end – who said Santa can’t leave their presents in 2
houses?</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">4. Communication is key –
when you separate there will be all sorts of emotions to process and you will
both be feeling them, not necessarily the same ones at the same time.
Communicating with your ex about Christmas presents, arrangements etc. will
enable you and the children to have an enjoyable break.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-81905320025079945462012-11-30T08:23:00.001-08:002012-11-30T08:23:35.636-08:00Applying the brakes
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Following my last post, we
saw a fast car and an open road for unscrupulous spouses who may wish to put
assets beyond the reach of the family courts on divorce.</span></span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">There is action that can be
taken by the money-makers to make the most of any company structure but equally
some things that the spouse chasing settlement might focus on for best effect –
I use the example of wife in this post as chasing settlement, although it could
just as easily be the husband. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">So…how do we apply the
brakes?</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">1. Look at the family home first…</span></span></u></b></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Even where the Family Home is
owned in the name of the company it is often possible to argue that, as the
company has allowed the family to reside in the property, it has created a
“settlement”.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">2. Check the husband’s directors’ loan account</span></span></u></b></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">It is possible for the family
court to order transfer of the loan account to the wife, who will then be able
to enforce payment of the account against the company to extract the monies.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">3. Look at Transfer of Shares…</span></span></u></b></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Entirely possible for the
family courts to make such an order but be careful…some company articles of
association mean that the board has the discretion not to recognise any
transfer of shares, which will render any such transfer pointless</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">4. Check the source of funds….</span></span></u></b></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Check where money for the
purchase of company assets came from. If it came from the husband then it may
be possible to argue that those assets purchased in the company’s name but with
the husband’s money are held on trust for him, therefore opening up the
possibility of them being transferred to the wife</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">5. Prevention is better than a cure…</span></span></u></b></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Ensure that any pre-nuptial
agreement considers these issues. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">6. If all else fails...</span></span></u></b></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Be very careful about the
drafting of any family court order. Consider drafting a lump sum order in
instalments, which will allow the possibility of applying to the court to
commit the husband to prison for breach of each instalment, as opposed to one
payment – which will allow only one committal application</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-size: 12.5pt;"><span style="font-family: Calibri;">There may be one large brake applied as I understand
that permission has been given to Mrs Prest to appeal to the Supreme Court
against the order of the Court of Appeal. We shall await with interest the outcome
of that. <o:p></o:p></span></span></b></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-19302559058734097282012-11-22T02:35:00.002-08:002012-11-22T02:35:37.363-08:00All we need is a fast car and the open road…
<span><span style="font-family: Calibri;">And that is exactly what
“money-makers” got according to LJ Thorpe in the recent Chancery judgement in
Petrodel Resources Ltd & Ors v Prest & Ors.</span></span><br />
<span><span style="font-family: Calibri;"></span></span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The facts of the case are
summarised as follows:</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The parties married in 1993
and had 4 children, all teenagers by the time of the hearing.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The Husband founded several
companies, collectively called the Petrodel Group and the parties lived a
lavish lifestyle. There were properties owned in London, Nigeria and the Caribbean
and the parties agreed outgoings of about £700-£800k per year.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The Former Matrimonial Home
in London (with a value of about £4m) and the properties elsewhere were all
held in the names of various companies forming the Petrodel Group and in essence
this caused the central issue in the case.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The family court heard
evidence from the parties and was tasked with trying to establish the extent of
the husband’s wealth. This was easier said than done as the husband had failed
to frankly disclose his assets and had throughout the proceedings been less
than honest and open. He had breached orders for maintenance that he was to pay
to his wife and his brother even issued injunctive proceedings in Nigeria to
prevent the release of papers or information relating to one of the companies
(although the husband did, when it suited him, disclose certain papers).</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The Court ultimately
determined that a fair settlement to the wife would be a sum of £17.5m. It was
decided that although the former matrimonial home was owned in the name of one
of the companies, it was held on trust and, therefore, could be transferred to
the wife without difficulty.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The bigger issue for the
Court was to consider what orders it could make against the other property or
shares held in the names of the various companies.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">This was important because
under the relevant legislation only property to which a party is “entitled” can
be ordered to be transferred to the other. This means that the party must be
legally or beneficially entitled to the property or it cannot be transferred.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">So, a party who owns shares
can be ordered to transfer them, a party found to have a beneficial interest in
a property legally owned by someone else, perhaps because he has paid all of
the outgoings/expenses, can have the property transferred to his spouse.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">In this case, the companies
were the legal owners of the property but did this mean that the husband was
not “entitled” to it?</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The husband was the majority
shareholder in the companies and the Court found that the husband had
controlled the companies and assets for the benefit of the family and had been
able to use the companies to pay his own personal and legal expenses.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The Court was in no doubt
that the husband was the effective owner and controller of the companies and
that he had unrestricted access to the assets and could dispose of them as he
wished, without any need for a board to approve his actions.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The Court did accept that the
companies had been established legitimately for tax and wealth protection
purposes and that there had been no impropriety on the part of the husband in
running the companies.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The Court felt that the
property effectively belonged to the husband and that he was “entitled” to it
and that, therefore, it could be transferred to the wife.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The companies appealed the
decision, as did the husband. The husband was initially granted permission to
appeal subject to him paying to the wife the money owed under the maintenance
orders that he had breached. He did not do so and so his appeal was struck out
– the companies continued with their appeal.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The majority of the appeal
court disagreed with the family court decision, except the one family judge
sitting on appeal, LJ Thorpe who said that if the decision of the family court
was reversed in terms of the company held assets, it would put those beyond the
reach of the family court and fairness then could not be achieved.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">On majority, the court
determined that the husband was not “entitled” to the property and that it was
wrong to consider that because he was the majority shareholder he could deal
with the property as if it were his own. They said that it was not enough to be
satisfied that it was “effectively his” – he had to be <u>entitled</u> to it.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">Companies are separate legal
entities and assets held in company names belong to that company entity. The
normal starting point is that shareholders have no interest in the company’s
assets.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">It is, of course, possible to
go behind the “corporate veil” but only where there has been impropriety i.e.
that the company structure has been improperly used to avoid or conceal
liability and that it should be disregarded to ensure that no benefit is gained
from its improper use.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">But the husband’s lack of
co-operation in proceedings and his less than honest disclosure to the Courts
is not impropriety in terms of the company structure and so the Courts cannot
look behind it.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">What followed from the appeal
court was a look at various case law and a telling off for the family courts
for using “family justice” rather as a catch all to get around having to apply
strict legal principles of the law in other areas. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The court could not,
therefore, order transfer of the properties owned by the companies and whilst
of course it remains open to the Court to order the husband to pay a lump sum,
such an order would have no teeth, as there was no realistic way of enforcing
it against the husband.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">This judgement is likely to
have a significant impact on the ability of the family courts to achieve
fairness in cases where one party is involved in the running of a company or
companies which own certain assets.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">It is more likely to come
into its own in the future, once parties have taken advice and recognise the
real opportunities that this case provides for assets being put beyond the
reach of the family courts on divorce.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">It will mean that creative
thinking will be required when settlement terms are made, both in the
construction of the deal and the wording of any order. It may also have an
impact on the construction of pre-nuptial agreements and may see each
respective side seeking certain clauses that before now perhaps would have been
less important.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;"><span style="font-size: small;">In my next post I’ll deal
with some of the brakes that might be applied to this fast car which, at
present, has an open road in front of it….<o:p></o:p></span></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-73536109948301999202012-11-13T04:06:00.002-08:002012-11-13T04:06:34.994-08:00Bankruptcy and Divorce
<span><span style="font-family: Calibri;">In this economic climate,
whether we are recovering from recession or not, the issue of bankruptcy on
divorce or after the event often raises its head.</span></span><br />
<span><span style="font-family: Calibri;"></span></span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The recently reported
case of McRoberts saw the Court consider the issue of what to do with a debt
arising from an Order in family proceedings when the payer (in this case the husband) had been made
bankrupt.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The Order was made by
agreement on the parties’ divorce in 2003 and provided for the husband to pay
to the wife £450,000 by instalments. The wife received about £211,000 of that
but the husband then defaulted and was declared bankrupt in September 2006.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The wife entered a proof of
debt in the bankruptcy for £244,966 (which represented the balance owed to her
plus interest) but there was no money available to the creditors of
the husband and the wife, therefore, was not paid anything.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The husband was discharged
from his bankruptcy in September 2007 and then in 2012 the husband applied to
the Court for him to be released from the debt still owed to his wife.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">It is fair to say that quite
a bit rested on the judgement of this case as, had the husband succeeded, it
may well have opened the gates for others to try and avoid paying money due under family Court orders to their ex-spouses by way of
bankruptcy.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The default position, which
was accepted by both parties, is that orders made in family proceedings or
under a maintenance calculation made under the Child Support Act 1991 are not
discharged by bankruptcy. There is however discretion for the Court to provide
release from such debts.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">This discretion has been the
subject of only limited case law but it is clear that is a discretion that is unlimited.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">So….how will the Court decide
when to use its discretion and release applicants from such debts. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">Answer....The Court will try to balance
any prejudice to the Respondent in having the debt released if there might be a
chance of some or all of it being met and any prejudice to the Applicant in
building a new life and financial future for himself and his dependents if the
debt were to remain.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">It is the Applicant that has
the burden of proof – i.e. it is the Applicant who must satisfy the Court that
there will be prejudice to him and that, as such, the debt should be released.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span><span style="font-family: Calibri;">Mr McRoberts - </span></span></u></b></div>
<div class="MsoListParagraphCxSpFirst" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">1.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><span><span style="font-family: Calibri;">suggested that
the initial order of the family courts was in fact an obligation to pay
maintenance to the wife (worded as an order for a lump sum in instalments) and
that it should be viewed by the Court as a maintenance obligation or at the
very least a lump sum payable by instalments, both of which can be varied under matrimonial legislation.</span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">2.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><span><span style="font-family: Calibri;">argued that the
variation should and could be done by the Court hearing the current application under
their discretionary powers </span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">3.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><span><span style="font-family: Calibri;">suggested that as
the order was in fact maintenance, disguised as a lump sum by instalments, the
arrears of maintenance over 12 months old could not be enforced by the wife
without the Court’s express permission </span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">4.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><span><span style="font-family: Calibri;">suggested that
the length of time that had passed with the wife not seeking to enforce the
order against the husband leant towards the debt being released</span></span></div>
<div class="MsoListParagraphCxSpLast" style="margin: 0cm 0cm 10pt 36pt; mso-list: l0 level1 lfo1; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">5.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> a</span></span></span><span><span style="font-family: Calibri;">nd finally…..
suggested that if the debt was released at this stage, it would not prejudice
the wife because in the event that the husband had significant capital or
income in the future, the wife could apply in the family courts for
financial provision because the “Clean Break” (you’ll remember that from an
earlier post!) that the order had provided for had no effect until the terms of the initial order had been met and they had not.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span><span style="font-family: Calibri;">Mrs McRoberts -</span></span></u></b></div>
<div class="MsoListParagraphCxSpFirst" style="margin: 0cm 0cm 0pt 36pt; mso-list: l1 level1 lfo2; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">1.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><span><span style="font-family: Calibri;">pointed out that
the Matrimonial Causes Act (under which many family financial matters are
determined) provided specifically for lump sum orders by instalment independent of
any suggestion that those types of orders are “maintenance orders”</span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l1 level1 lfo2; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">2.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><span><span style="font-family: Calibri;">pointed to the
order itself, which said that the entire lump sum was to become payable on
default of any instalment. As the husband had defaulted in payments, the debt
was clearly now all due as a lump sum and, as such, could not be varied under
matrimonial legislation</span></span></div>
<div class="MsoListParagraphCxSpLast" style="margin: 0cm 0cm 10pt 36pt; mso-list: l1 level1 lfo2; text-indent: -18pt;">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;"><span style="font-family: Calibri;">3.</span><span style="font-family: "Times New Roman"; font-size-adjust: none; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> a</span></span></span><span style="font-family: Calibri;"><span>nd finally….
pointed out that</span> ,<span>in the event that the
debt was released, whilst the wife could apply in the future for financial
provision such an application would only be judged on her needs at the time and
would not reflect her interest in the previous marital property - which of course the award of £450,000 in the initial order did.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The court felt that the initial order was for a lump sum and that, as such, the order could not be varied.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">In any event, the Court was
clear that what the Insolvency Act did not allow the Court to do in these
circumstances was to review the merits or fairness of the initial order or
debt. That was so even where the circumstances of the case or
parties have changed so that a review of the initial order might be
appropriate.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">In the McRoberts case this
was relevant as the wife had been successful following the divorce and was at
the time of judgement in a more secure financial position than the husband. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">The husband did not set out
the details of any future enterprise or business that would be affected if the
debt remained and no special reason why the debt remaining would prevent him
moving forward. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<b style="mso-bidi-font-weight: normal;"><u><span><span style="font-family: Calibri;">Lessons –</span></span></u></b></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">Be aware that a change in
circumstances leading to bankruptcy will not clear debts or obligations under
previous family court orders. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Calibri;">Be aware that even where
the debt remaining seems “unfair” in the circumstances, the
Court will not use Insolvency legislation to vary or review the debt.</span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-86771720817042476522012-11-02T02:15:00.001-07:002012-11-02T02:15:48.481-07:00Inheritance & Divorce
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Divorce and the financial
negotiations that ensue are already difficult creatures for clients to have to
face in the aftermath of a separation but add to that inherited assets or
wealth and you have a more complicated situation.<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Leaving aside the added
emotion that comes from the feeling that money or property handed down from
parents or family members is at risk of going to your ex-spouse, how those
inherited assets are dealt with by the Court will also be up for discussion.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">What is clear from case law
is that inherited assets or wealth are “non-matrimonial” by their nature. That
distinguishes them from “marital assets”, which are those accrued during the
marriage by the effort of one or both parties jointly and commonly include the
former marital home, savings, pensions, investments etc. etc.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">There may be arguments of
course that some assets though accrued within the marriage were built as a
result of a special or stellar contribution from one party alone – that I leave
for another day!</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The importance of
distinguishing inherited assets as “non-matrimonial” is that this class of
assets is not subject to the normal “sharing principle” that marital assets are
i.e. there is no entitlement by one spouse to an equal share of the other’s
non-matrimonial assets.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Sounds great! Surely that
means my inheritance is safe!</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">If all in family law were
that clear cut the Court wouldn’t have the wide discretion that it does and
litigants in person would be in a much better position.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The fact is that whilst the
Court has been clear that inherited, non-matrimonial property is not subject to
the normal “sharing principle” it will not be discounted entirely.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Firstly, we must look at
whether there has been any “mingling” with marital assets i.e. part of an
inheritance used to pay off the mortgage on the marital home or purchase the
marital home outright. Any money mingled with a marital asset (which the
marital home is, however it was purchased) has the effect of diluting the
“non-matrimonial argument” and the payer may have to accept that those monies
have been taken into the “pot” for sharing (in which case he/she may have to
rely on arguing that their greater financial contribution should give them more
of a % settlement).</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">If inherited monies have been
kept separate and apart and identifiable i.e. in separate savings/investment
accounts then the Court may also look at the timing of the inheritance and
whether the family has been used to drawing any income from the assets, in the
case of investments or shares.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Ultimately, the Court will
come back to look at the needs of the parties. Even if you have been successful
in establishing that assets are inherited and therefore non-matrimonial the
Court will invade those assets if that is the only way in which the needs of
the other party can be met.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">This was very recently
evidenced in the case of YvY, in which the husband had a landed estate worth
about £26m. The marriage was 26 years long. The wife was awarded 32.5% of the
assets which the Court felt fairly met her needs. The Court made comment about
sharing and felt that, taking into account the origin of the wealth, the award
that they had settled on met not only her needs but also was fair in terms of
any entitlement to share.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">In the end, the needs of the
parties tends to trump all other arguments and this recent case shows that, even
in big money cases, needs arguments can be key to settlement. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">To give clients the best
possible chance (absent any post-nup or pre-nup agreements) the advice must be
to keep any inheritance separate and apart and try not to have recourse to it
to fund family life – not sure how feasible that is within the context of a
marriage! – and accept that, whatever steps are taken, if it is necessary to
fairly satisfy the needs of the other spouse on divorce it will be used.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">I do wish for my clients that
I could say “yes, you’ll be able to keep all of that” or “no, that will have to
be shared” and the proposal that marital finances on separation should be
resolved by applying a formula sounds appealing to those who crave certainty.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">..…the difficulty is, and
probably always will be, how to legislate to provide certainty whilst ensuring
a fair outcome for all, given the diversity of circumstances surrounding family
structures and wealth and the vast differences that there can be in arguments
about “needs”.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Ultimately, the Court retains
its discretion as regards inherited wealth and assets and the way in which it
takes such assets into account in any particular case so there can be no absolute
certainty.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-41360639351251192882012-10-25T07:06:00.000-07:002012-10-25T07:06:24.859-07:00Child Maintenance - Changes ahead.
<span style="font-family: Calibri;">This month saw a new child maintenance formula introduced
for the CSA to calculate child maintenance. There has been little detail
published about the new scheme so I thought I’d do a bit on this.</span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Initially, the scheme will apply to all new cases where
there are 4 or more children and will be opened up gradually, with all cases
falling under the new formula from early 2014.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">The new formula uses gross income instead of net income,
which has been used for some time to form the basis of the calculations by the
CSA. </span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">It is hoped that in using gross income figures this will
avoid delays and make it easier to establish self-employed income, by using tax
returns and information submitted to HM Revenue & Customs instead of relying
on documentation and information from the parent themselves. It should also
help to make it more difficult for parents to minimise the income assessed in order to reduce their child maintenance liability.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">The new formula is to be applied in 2 parts, one for the
first £800 of gross weekly income (12% for one child, 16% for 2 children and
19% for three or more) and the second for any gross weekly income over £800 (9%
for one child, 12% for two children and 15% for three or more). There is a cap
of £3,000 per week gross income, beyond which parents shall have to apply to
the Court.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">There will continue to be reductions in maintenance if the
paying parent is financially responsible for other children, is a step parent
to other children in his/her household or to take account of overnight stays.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Controversially, there will be a charge for using the CSA to
assess and collect child maintenance, whereas at the moment this is free. The
charge is likely to come in once the new formula is being applied to all cases.
</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Consultations on the level of that charge shall end shortly
but some critics say that charges may not be affordable for all parents and
will see money effectively taken from the children it was meant to support. </span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Existing cases will not be affected until late 2013 but when
they are it will mean that all currently paying parents will be given an
opportunity to establish a direct payment to the other parent (even those
parents who are paying through the CSA at the moment because of their history
of non-payment). The CSA has a direct payment scheme, which would mean that the
paying parent can make their payments direct but without the receiving parent
having to disclose bank details etc.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Failing any agreement or direct payment, a fresh application
will have to be made to the CSA by the parent with care of the children. </span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">Critics of this part of the scheme have suggested that this
may allow perpetrators of domestic violence to manipulate or financially
control their ex-partners by making direct payments but changing the dates or
missing payments, the only other option for the victim to be to apply to the
CSA once again and be charged.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">The move to use gross income figures is likely to help with
accurate assessment and enforcement of child maintenance but the proposed
charges may, for many, be an obstacle to obtaining a secure financial
future for their children, which ironically is exactly what the child
maintenance scheme is supposed to achieve. </span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-family: Calibri;">As with many of these things, the devil is in the detail so
I think we’ll have to wait and see how it all works in practice.<o:p></o:p></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-34872273768626023282012-10-15T01:57:00.003-07:002012-10-15T01:57:51.950-07:00A stable future?
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">It has been recently reported
that by 2047 families headed by married couples will be in the minority, at
just 49.5%, if the current rate of decline in marriages continues. The think
tank calls for additional government focus and support to ensure family
stability, the breakdown of which costs society an estimated £44billon per
year.</span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The proportion of families
headed by a married couple has declined by 5% in the last 10 years and
cohabitation has increased by some 3%. I have posted earlier about the marriage
foundation, which extols marriage as the gold standard. There certainly are
studies to support that cohabiting relationships are less stable than married
ones.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">And yet, I wonder how much
impact any government schemes or proposals would really have in turning the
tables and encouraging people to marry. There is talk of need for a Government
department for families to tackle family breakdown and introduction of a
transferable tax allowance for married couples to promote marriage.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Financial incentives to
marriage are not, in my opinion, likely to make a difference. I cannot think
that the vast majority of people marry for tax or any other financial benefit
that they might receive from the state and if they do, how stable is their relationship
likely to be in the future?<span style="mso-spacerun: yes;"> </span>Are those
people then to be discouraged from separation even in the most distressing of
circumstances because to do so would be financially disadvantageous? Is that
how we see our future?</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The CSJ comments that more must
be done to strengthen families in the poorest communities to ensure social
recovery and economic growth – will financial incentives such as transferable
tax allowances make marriage more appealing in these communities? How does this
sit with cuts to state funded benefits impacting on many families up and down
the country and increasing the pressure on them?</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">If stability of marriage, or
any other relationship, is the goal then I do think there needs to be more done
on a deeper level – to encourage people to work through problems or communicate
more effectively – how or if the government is placed to do that is
questionable.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The real difficulty may be
that society as a whole has changed and that future generations view their
lives very differently. Relationships now take on many forms and I wonder
whether younger generations will hold marriage to be the “gold standard”
whatever incentives or support there is?</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The fact is that, unless and
until sufficient is done and public opinion is swayed, cohabitation will
continue to increase, leaving many people in precarious positions on separation
and without any real understanding of their legal rights.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Following the logic of the
CSJ, perhaps education on cohabitation and its various potential
legal/financial pitfalls might persuade more into marriage instead?!<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-39017535100107180062012-10-09T03:33:00.000-07:002012-10-09T03:33:41.205-07:00Real life drama – Part 2
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Following on from my last
post here’s the next storyline….<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;"><span style="mso-spacerun: yes;"> </span>1. <b style="mso-bidi-font-weight: normal;"><u>The
non-biological mother and Residence</u></b></span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Ashley is Gaby’s biological
father, her mother not being around (although if she were matters might be
different again). Ashley and Laurel (his wife and Gaby’s step-mother) have
separated and Gabby and her half-brother (Ashley and Laurel’s son) Arthur have
remained living with Laurel and have had Contact with their father until
recently.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Gaby expressed a wish to stay
with her father and, although he does not have appropriate housing at the
moment and has suffered anger management issues, which manifested themselves in
him physically attacking his own father and controlling his money, he has taken
Gaby to live with him. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Much as with Paddy’s
situation, the fact that Laurel married Gaby’s father does not provide her
automatically with PR for Gaby – I must confess that I cannot remember far back
enough to know whether there was some PR agreement made between Ashley and
Laurel so I assume that there is not. Ordinarily that would mean that Gaby’s
school might be in difficulty providing information about Gaby to Laurel
without Ashley’s agreement. In addition, it means that technically Ashley is
able to decide the big issues in Gaby’s life without consulting Laurel,
including where she resides. Ashley should be consulting with Gaby’s biological
mother. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Ashley is perfectly able to
remove Gaby from Laurel’s care but of course he must consider Gaby’s best
interests. If Laurel wished to prevent Gaby’s removal from her care or seek her
return then she would need to make an application to the Court for a Residence
Order in her favour – as she is Gaby’s step-parent. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">In determining Gaby’s
Residence, the Court would need to have regard to the “welfare checklist” under
the Children Act 1989, which includes the child’s wishes and feelings
(considered in the light of their age and understanding), the child’s physical
and emotional needs, the likely effect of any change of circumstances, how capable
each party is of meeting the child’s needs and any harm or risk of harm to the
child.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Gaby, as I understand it, is
about 10 years old and is clearly capable of expressing a view. Her wishes will
not be the overriding factor, given her age, and although she is aware of the
difficulties that her father has had as regards his anger she is probably not
old enough to understand any on-going risk to her – if indeed there is any, on
the basis that he has been having unsupervised Contact with the children.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The Court would have to
assess any anger management issues that Ashley continues to have and any risk
that he might pose. In addition, they would have to weigh into the balance
Arthur’s best interests and whether it would be appropriate to split the
siblings or whether this is likely to cause them more harm. If it is decided
that to split the siblings is not appropriate, and it is unusual, then the
Court will need to balance the needs of both children in coming to a solution.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The fact that Ashley is
Gaby’s biological parent is a factor that the Court will have to consider but
it is not determinative. It is certainly a contributor to the Court’s balancing
exercise, as will be the length of time that Gaby has been with her father by
the time any Court application is made. Laurel has, however, parented Gaby for some significant time and her relationship with Laurel will also need to be considered.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">So…..we’ll see what action Laurel
decides to take - will the children continue to grow up in separate households,
will Arthur move also to reside with his father or will Gaby have to return to
Laurel’s care…you never know, although far less appealing as a soap storyline
than a Courtroom battle, the show might favour an amicable resolution in the
children’s best interests as the real world does!<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-22389320774360837452012-10-03T06:13:00.000-07:002012-10-03T06:13:00.346-07:00Real life drama – Part 1
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Ok, so I admit it – I do
watch soaps at home – Emmerdale and Coronation St are my guilty secrets – I still
struggle to believe that so much drama can happen in one small village/street…</span></span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Anyway, for those of you not
aware, recently Emmerdale has seen its fair share of family breakups – children
caught in all of them – and Coronation St. sees an abusive relationship play
out, baby in tow. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The current storylines
highlight issues that we see frequently when families separate and so I shall
go through them and the legal points they raise over a couple of posts…</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">1. <b style="mso-bidi-font-weight: normal;"><u>The Step-family and removal from the jurisdiction</u></b></span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Marlon fathered baby Leo with
his then partner Rhona – they separated when she was pregnant and she formed a
relationship with Paddy, whom she married. All was well and Marlon was seeing
Leo (who has Downs Syndrome) regularly. Paddy was offered a job in New Zealand
and they all agreed to go with Leo. Marlon changed his mind and wanted baby Leo
to stay in the UK – all hell broke loose….</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">There are several issues that
this potentially throws up. Firstly, Marlon and Rhona were not married when Leo
was born – unless Rhona named Marlon on Leo’s birth certificate (which from
memory she did) he would not have Parental Responsibility for Leo and she would
be the only person to have this. This would have meant that there would be
nothing legally to prevent her changing his name, removing him from the
jurisdiction or taking other important decisions in his life without consulting
Marlon.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Paddy’s status in Leo’s life
as his step-father is also an issue. Simply marrying Leo’s mother does not of
itself provide Paddy with Parental Responsibility for Leo. Marlon (assuming he
has PR) and Rhona could have agreed to execute a PR Agreement to provide Paddy
with PR for Leo but unless they did that he would have to apply to the Court
for an Order to obtain PR.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">This doesn’t affect matters
day to day because Rhona has PR for Leo and it is unlikely that Paddy would
ever have to make any important decision for Leo alone – consider though if
Rhona were to die – Paddy would almost certainly need PR were Leo to remain
with him.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Marlon commenced Court
proceedings for Residence of Leo when he changed his mind about leaving for New
Zealand and the Court granted an interim order to prevent any removal called a
Prohibited Steps Order. Rhona left the jurisdiction with Leo anyway. Not only
has Rhona breached the terms of the interim Order that the Court made, she also
has committed an offence under the Child Abduction Act if Marlon has PR and she
removes Leo for more than a month. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">She also is potentially is
liable to be prosecuted for “child abduction”. </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">To some that seems odd on the
basis that Leo is her child but “child abduction” is the wrongful removal or
retention of a child. That removal or retention is considered “wrongful” where
it breaches the rights of custody of the other person, institution or other
body under the law of the country in which the child was habitually resident
immediately before the removal/retention.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Where that has happened, the
Hague Convention will come into play – assuming that the other country, where
the child has been removed to or retained in, is a signatory.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">New Zealand is a signatory of
the Hague Convention and, as Marlon had Parental Responsibility for Leo (being
named on his birth certificate) his rights of custody had been breached. The
term “rights of custody” do not necessarily refer to who the child was living
with – there has been case law on this point that has established that it is a
wider term that can encompasses both rights given by Court Order, PR and where
care is being given on a daily basis and for all intents and purposes a person
is exercising PR and caring for the child, irrespective of any Court Orders.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The other argument in this
case could be that Rhona had in any event breached the Court’s rights of
custody – as there were pending proceedings for Residence of Leo in front of
the Courts here and in removing the child, she has interfered with the Court’s
right to determine Leo’s residence.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Marlon’s correct course of
action would be to approach the Central Authority for Child Abduction, who will
in turn contact the Central Authority in New Zealand to secure Leo’s immediate
return to England….whether he has done so or not is something I am not clear
on, having missed a few episodes recently!!</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">………<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-71968343167796517702012-10-02T06:20:00.000-07:002012-10-02T06:20:02.836-07:00Irreconcilable Differences?
<span><span style="font-family: Verdana, sans-serif;">Several clients of mine have
recently spoken to me about divorcing on the basis of “irreconcilable
differences” and even one of my colleagues mentioned the concept (his area is
not family law).<o:p></o:p></span></span><br />
<span style="font-family: Verdana, sans-serif;">
</span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">I was forced to explain to all
that the only ground for divorce in England and Wales is the irretrievable
breakdown of the marriage. I also explained that this ground must be supported
by one of several “facts” – behaviour, adultery, 2 years separation with the
other’s consent, desertion or 5 years separation.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">Whilst going through the
explanations and answering the questions that ensued, it stuck me that their
misconception about the divorce process and the ground for divorce in this
country had almost certainly come from watching US dramas/reading articles
about celebrity divorces in the papers – almost all of which mention one party
“citing irreconcilable differences”. Fine if you are divorcing in the US.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">Of course no-one should or
would have reason to know the ins and outs of the divorce process in this
country unless they were practising family law or had been through the process
before but it did make me wonder where people seek out information when they
are faced with separation or divorce – especially given that these clients were
adamant that the information was correct and that their planned course of
action was the right one.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">At such an important and
emotionally charged time in their lives, are clients prepared to avoid UK
solicitors at all costs and instead rely on pieces of information picked up
from friends, TV, the media etc.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">I can only say what I said
when faced with those clients and my colleague – you wouldn’t have a look
around online to obtain bits of information and then have a go at extracting a
tooth, plumbing in a bathroom or fixing a car – at the very least you would
obtain some expert advice.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">It is perhaps our fault as a
profession that we have not appeared approachable enough, have not educated
sufficiently and have not done enough to change the perception that people have
about the costs involved.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">That is surely now coming to
an end with the entrance of ABS and certainly costs and accessibility are
becoming a point of difference between firms.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">Fixed fee options, free
initial consultations, DIY divorce packs, factsheets etc. are all services we
have developed to educate people and enable them to regain control of costs and
action at a time when most feel that they are spiralling out of control.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">I believe that many in the
profession are doing what they can to make access to information and advice
easier and less intimidating for clients but, for things to get better, there
must be some change of culture… some general consensus that it is better to
obtain expert advice before taking action and that Solicitors are not all smoke
and mirrors and actually have some expert knowledge and value to give.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span><span style="font-family: Verdana, sans-serif;">Without that change, I fear
that people will continue to shy away from seeing a Solicitor and take action
on the basis of the piecemeal (often incorrect) information that they pick up
or are given by well-meaning friends – lessons might be learnt when things go
wrong and legal advice and action is needed to right it but that is far too
late and can be more costly in the long run.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 14pt;"><span style="font-size: small;"><span style="font-family: Verdana, sans-serif;">So…. don’t struggle alone or
worry about what you are or are not doing….contact Solicitors’ firms and I am
prepared to bet that the majority will offer free initial consultations or a
fixed fee initial appointment….get the correct legal advice before taking
action and ask solicitors whether they do fixed fee services….some already do
and in the long run I suspect that this will become more common.<o:p></o:p></span></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0tag:blogger.com,1999:blog-7849567270497206002.post-90796107125246854932012-09-26T08:30:00.000-07:002012-09-26T08:30:31.649-07:00Hide and Seek
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">There was recently reported
in the press a case of a man who won £50,000 playing Deal or no Deal on TV.<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The winner spent the money in
the space of 4 months, before the television show aired, as he was in the
middle of a Divorce and wanted to make sure that his estranged wife “wouldn’t
get a penny”.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">The estranged wife apparently
only found out about the winnings once the show aired but Mr Brown, the winner,
had by then purchased a number of household items, a second hand X-type Jaguar
car, a holiday in Mexico, an ipad etc.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Once discovered, the wife
applied to court and an injunction was imposed to prevent Mr Brown spending any
more of his winnings, if any remained.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Mr Brown will no doubt have
to detail exactly what he spent the money on and there will, no doubt, now be
argument about his financial conduct – although he did apparently use some of
the money to pay off debts and paid for an electrician’s course, having been
signed off work for “depression”.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">Although Mr Brown’s conduct
may be taken into account and the items purchased with the money potentially be
divided between the parties, the reality is that a large part of the winnings
have gone and the items reportedly purchased are unlikely to hold their value
and are almost certainly far less useful to Mrs Brown than the capital that
would have been available.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">It highlights the importance
of maintaining an eye on your spouse’s lifestyle and spending after separation
and within the course of a Divorce. I am not talking about making a note of
each time they do a food shop or the purchase a new toy for the children but if
there is unusual and excessive spending (cars, holidays, expensive items etc.)
then questions must be asked about how that is all being funded.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">It also goes to show the lengths
to which people will go in cases of Divorce to “deprive” the other from any
share of what they perceive to be theirs.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">This all against a backdrop
of each spouse having a duty to provide full and frank disclosure of their
financial position – that duty being an on-going one within proceedings and
designed to help the parties (and the Court) ascertain what is available for
distribution and what would be fair.</span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 10pt;">
<span style="font-size: 12.5pt;"><span style="font-family: Calibri;">I imagine that Mr Brown will
have achieved an increase in both his and his wife’s legal costs in determining
their matter and an awful lot of ill-feeling between them – a sad state of
affairs when you consider that the parties have 2 young children and will have
to co-parent for some time to come.<o:p></o:p></span></span></div>
Louise Chipchasehttp://www.blogger.com/profile/01407066104217566147noreply@blogger.com0