Shared Parenting – The proposals…

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

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

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

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

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

Other options are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Divorce?...What’s the rush?

When couples separate often the last thing they want to think about is Divorce.  Their focus is on sorting out the financial issues or arrangements for the children, which are often more important to them.

Clients often say to me that really the "Divorce" element of their separation isn't that important to them immediately and some even would say that they don't like the idea of such finality when they have just separated (despite intending to remain apart and clear about their wish to separate).

If agreement about financial matters can be reached then issuing proceedings is not immediately necessary and parties may choose to delay issuing a Divorce Petition and enter into a “Separation Agreement”. The purpose of a Separation Agreement is to set out the financial arrangements clearly and in such a way that it will be upheld by the Court later on.

Most commonly the intention of parties dealing with a break-up in this way will be to issue Divorce proceedings and apply to the Court for the terms of their agreement to be incorporated into a legally binding Court Order at a later date – usually after they have been apart for a period of 2 years. That allows time for emotions to be worked through, people to move on and for the Divorce then to be dealt with amicably and at a time when the parties feel more ready to deal with it.

Separation Agreements cannot be used where there is dispute between the parties as to how assets are to be divided. If Mediation cannot resolve the dispute or it cannot be negotiated then Court proceedings might be needed to determine matters. Financial proceedings cannot be brought without Divorce proceedings first being issued and, in some circumstances therefore, an immediate Divorce is necessary.

The same goes for cases in which there is some urgent need for the Court to intervene, perhaps where assets are being dissipated.

There are emotional benefits to dealing with separation in this way but Separation Agreements are not a “quick fix”. Separation Agreements are not legally binding and will require the Court's approval (which may only be given once Divorce proceedings have been issued and the Decree Nisi granted) to become so. 

They must be approached and prepared properly to hold weight with the Court and ensure a fair outcome and it is important that both parties provide detailed financial information to one another and have the opportunity of taking independent legal advice.

So... consider it as an option and take advice about whether it might be possible in your case.

Family Businesses and Divorce

Many business owners are concerned about the impact that Divorce proceedings will have on their businesses and are unsure about how the business will be taken into account in reaching a financial settlement.

There are many different ways in which a family business might be operated but sole trader arrangements, partnerships (be that with or without any formal paperwork), or Ltd companies are most common. Those businesses might involve retail, manufacturing or provision of services and there might be specific market factors to take into account. The structure of the business may also give rise to additional issues around the status and responsibilities or obligations of a spouse in the business and whether dividend payments or other monies are due to them as a result.

To the extent that the business has been run throughout the marriage by one or both parties, for example, if one has been a company secretary (as is commonly the case) or has undertaken some work in the business, such as payroll or book-keeping etc. the business will be considered a “marital asset”. There may be some argument if the business was established by one party and successful at the outset of the marriage or if there has been some level of entrepreneurial skill shown by one party in developing the business.

Where assets are “marital” in nature, they fall subject to the principle of “sharing”. However, the way in which a business is considered in marital finance negotiations depends largely on the type of business and the issues in dispute and the business cannot be looked at in isolation but must be considered alongside the other assets of the marriage, such as property, investments etc.

There may be several solutions to achieve a fair outcome in terms of capital and income and having regard to the nature of the assets – such as share transfer, continued maintenance or off-setting any true capital value against other liquid assets but how settlement is structured will depend on a variety of factors including the other marital assets and the needs of both parties.

The Court is unlikely to enforce a settlement that sees a business unable to continue trading. It is unlikely that the Court will consider that the business should borrow against assets or otherwise fund lump sum payments if such borrowing or payments are not commercially viable.

Whether the business is to be considered a capital asset or one that is solely income –producing will need to be considered and this will depend, to some extent, on the needs of the spouse and whether there is any argument for one party to receive on-going maintenance from the other or whether a “Clean Break” can be achieved. The case law in this area makes it clear that the Court will be careful not to “double count” in treating the business as capital and counting its income as well. 

The Court has equally made clear that they will seek a “business solution”, which might often mean that a clean break cannot be achieved, because of the reliance that there would have to be on “snap-shot” valuations of the business – which can be undertaken by reference to a number of different indicators from the business accounts; such as earnings, assets, dividends and cash flow and which can lead to widely varying figures.

Cases involving Family businesses are complex and on separation specialist advice should be sought to ensure that all issues are considered.

The cost of Divorce

Much is being made of legal costs at the moment, with the impending removal of Public Funding for many family law cases, the start of fixed fee models and national brands undertaking legal work but, whatever the future holds, there will always be a cost for family law services and, considering the issues, complexities and future impact of the work I imagine most can understand why.

That said, in this climate costs for family law matters are a real issue and one that no doubt worries clients as much as the process of Divorce itself.

There are some steps that you can take to limit costs sensibly – by this I do not mean undertaking all of the work yourself for, although people try to do so, I find that the majority realise that whilst there might be some things that they can do themselves, marital financial negotiations or proceedings concerning children involve issues and arguments of which they are not fully aware or are ill-equipped to deal with.

Frankly, dealing with the emotional fall out of divorce and separation, day to day parenting, your job and simply functioning is probably quite enough – the following pointers, however, might just help you when it comes to limiting the costs:

1.     Write down the history

This may sound like an awful lot of work but actually it can be very helpful and will avoid lengthy meetings with your Solicitor to tell them the information. In terms of the Divorce proceedings themselves, you might be considering the option of petitioning on the basis of your spouse’s behaviour – in that case you will need to provide details of such behaviour (all of which you can set out now). At the very least, it should allow any Solicitor to advise you whether a behaviour petition is an option. In addition, when it comes to dealing with your marital finances it will be necessary for your Solicitor to know if there are any issues as regards your financial contribution towards assets, whether they were inherited or gifted, whether they were accrued from a business etc. etc.

Setting out the history – both of the relationship and the assets at the outset will ensure that you are off on the right foot. Many clients of mine tell me, having undertaken this exercise at my request, that they had forgotten things that came to mind because they were focussed on this task – much better to remember earlier on in the process!

2.     Find a Solicitor offering a free initial consultation

You should have a good choice in today’s legal market with many firms offering free initial consultations. It is important to use this time to work out whether you can work with the Solicitor, whether you like the “feel” of the firm and obtain as much advice as you can as regards your next steps.

3.     Do some of the paperwork yourself

When I referred above to clients undertaking some of the work themselves, I was referring to the more paper-based exercises – where no real legal expertise is necessary. The Divorce proceedings (by which I mean the paper-based main suit proceedings that take you from “married” to “divorced”) are a classic example.

This process is (as recently one judge put it) administrative and, whilst there are a couple of areas that you may need guidance on – the forms themselves are straightforward and designed to allow non-lawyers to complete them.

Solicitors may quote between £600-£800 + VAT for completing the forms and dealing with the process for you (liaising with the court etc.) and indeed in terms of time (assuming an hourly rate of £200 per hour) this would be about right. If you are, however, prepared to spend your own time (for which I assume you will not charge!) then you may be able to save some money in the process.

Many clients simply do not have the time or inclination to undertake the paperwork themselves and are content to instruct me to do so but I do have more clients nowadays taking the view that they would rather spend money on me negotiating their marital finances – which is a much more complex area – than form-filling – fair enough!

Solicitors may, myself included, offer a bespoke fee arrangement if you wanted to complete the forms yourself but wanted them checked by the Solicitor – which would see a reduced fee. That, it seems to me, brings you the best of both worlds.

When you come to dealing with financial negotiations – do as much of the chasing around for documentation as you can yourself. Contacting banks, credit card companies, lenders, estate agents etc. all takes time but if you can obtain the information yourself, as opposed to your Solicitor having to write out for it that will help limit your costs.

4.     Beware fixed fees

Fixed fees are fine and I do think they offer certainty and that they will become more common as we go through this year and into next.

I was always told to read the small print – probably something to do with my legal training! – this is exactly what you must do.

There is a difference between what a lawyer means by “Divorce” (the paper-process, main suit that takes you from married to divorced) and what a person on the street would understand by such a word (usually the entire thing – financial negotiations and child arrangements included).

There is nothing underhand in the fixed fee offerings by solicitors and all the ones I have seen have carefully worded small print explaining that the Court fees are extra and that financial negotiations or issues concerning children are excluded from the fee.

Just be aware that the offer might not be what you would expect on the basis of your understanding of the word “Divorce”.

5.     Consider Mediation alongside legal advice

Mediation should be discussed with you by any Solicitor and since early 2011 attendance at a Mediation Information and Assessment Meeting has been mandatory, save in excepted circumstances (for example where there is Domestic Violence etc.)

The benefit of Mediation, where parties are prepared to engage fully in the process, should not be underestimated and I have seen couples negotiate fair and sensible settlements, reduce the length of their matter and remain amicable and able to discuss issues concerning the children going forward.

The benefit in successfully negotiating a settlement through Mediation, as far as costs are concerned, is obvious in that Court proceedings will not be necessary and any work that the Solicitor needs to do following the agreement will be limited to drafting the necessary paperwork and implementation of the agreement itself.

There is a cost to Mediation sessions but when you consider the length of sessions and the ability to make decisions quickly, as both parties are present, this is still a cost effective approach.

Legal advice should always be sought alongside Mediation sessions to make sure that discussions take account of any important legal issues. If this doesn’t happen it sometimes leads to a situation in which parties consider that an agreement has been reached but in fact the agreement is unfair to one party and may not be upheld by the Court, or that party, on taking legal advice, withdraws from the “agreement”.

6.     Be pragmatic – don’t let your emotions take over

Negotiation is one area where you will see your costs rocket if you are not careful. Arguing over the principle of a matter is great but be prepared to spend money. I’m not saying that your points and arguments shouldn’t be raised but take advice from your Solicitor about the strength of your arguments – push the stronger ones (this is where trust in your Solicitor is important). Don’t lose sight of the monetary value of your arguments – if you are £5,000 apart, don’t spend the same amount arguing the toss – split the difference!

Above all know what you want to achieve – for some it will be for the paperwork and process to be taken off their hands – at whatever cost. For others it will be to limit the costs as far as possible, even if that means taking on more of the work themselves. Be honest with your Solicitor at the outset and discuss the issue of costs in detail and at the start.

The Divorce Hotel – where checking in can lead to a quick exit?

Already up and running in 6 “high-end” hotels in the Netherlands the “Divorce Hotel” concept may be making its way to our shores in early 2013 if its creator has his way.

The idea is that couples wanting to separate amicably and quickly check in on a Friday (into separate rooms!) and over the course of the weekend negotiate their marital finance settlement, children issues and Divorce with the help of mediators and lawyers, who are provided as part of the flat fee package (I shall leave aside the issues about how experienced the lawyers may be – vis a vis fitting it all into a fixed package, the choice of lawyer and whether the client can work with them etc. etc.)

I understand that 17 couples have tried this concept in the Netherlands and all but 1 have apparently been successful in their attempts to negotiate settlement and leave all but divorced at check out on the Sunday.

Also understood is that couples who apply to go to the Divorce Hotel are screened beforehand to rate their chances of success with only 1 in 3 being accepted. Taken with the reports that the creator of the concept is negotiating with television companies in the U.S to launch a reality series, the cynic in me wonders whether the screening has more to do with the perceived success of the concept than any genuine attempt to identify couples who would do more damage to each other and any children as a result of their inability to negotiate.

That aside, I wonder whether this kind of service is what the British public want or need.

I understand that the concept came about as a result of its creator having witnessed what by all accounts was the stressful and acrimonious divorce of his college friend. The driving motivation is to reduce hostility between the parties and deal with matters quickly for a fixed fee but the implication appears to be that if couples choose the more traditional route of instructing their own solicitors, they are somehow going to become more hostile and matters will be dragged out for months at a vast cost.

I am painfully aware of the perception that the general public have about the legal profession but I do think that there are a great number of family law solicitors who want to do the best for their clients and who offer an excellent service. Of course there is a cost to the service, expertise and knowledge provided by solicitors but, when you consider the often complex nature of the assets being dealt with and the fact that we are talking about people’s future security and balance that against the costs, I don’t consider those excessive.

Add to that the increasing number of fixed fee arrangements for Solicitors’ services and the availability of Mediation already on Divorce and Separation and I wonder what the Divorce Hotel is offering in addition.

Of course it offers luxury surroundings and the promise that matters will be resolved over the course of a weekend but is the luxury enough to prevent parties feeling pressured.

I know that parties make their “booking” with the best of intentions to remain amicable and reach agreement but I cannot believe that they will have really thought through every issue that is likely to be touched upon or discussed. I can’t believe that at some point relations won’t become fractured, perhaps as a result of the other raising a point that they hadn’t considered before – what then of the 48 hour timescale?

Also of concern is that parties don’t have sufficient time to process the information and think through their decisions – even traditional Mediation allows significant time to make sure that parties have advice and are able to process information. My experience of clients tells me that they, even those who have been separated for some time, are emotional about the process of Divorce or Separation and this impacts enormously on their decision making abilities.

I cannot imagine that the number of major decisions that would be needed, to deal with financial settlements and issues concerning children, could be made properly in 48 hours – irrespective of the intentions of the parties to remain amicable.

Can this be the pressure that people want on their Divorce?

Of course, it might be that the couples’ financial arrangements are simple and there are no children involved – meaning less major decisions to be made but, if that is the case, why bother with the hotel stay, why not discuss matters together or with the help of mediation services already available – why not do some of the paperwork for the Divorce yourself or with the guidance of a Solicitor to speed things up or cut costs.

I have no doubt that, as we progress through this year and into next, separating couples will be bombarded with different options and different service providers, all vying to deal with their matters – be those online services, Co-op legal services, fixed price packages (of varying quality and degree), national umbrella brands or the Divorce Hotel model.

To have options is good – no one option will suit all people – but what you must be clear on when facing such issues as Divorce and financial negotiations is your priorities and emotions. Only being aware of both will lead you down the route most appropriate for you.

Guest Spot - Warning about mis-selling

Property Protection Trusts (sometimes called Asset Protection Trusts) are designed to help people protect the value of their home and safeguard the property against any change in circumstances, such as the death of a partner or care home needs.

The Law Society and Trading Standards Watchdogs are currently concerned that these products are being mis-sold, with inaccurate promises made that the Local Authority cannot class the property as an asset when assessing care home fees, and used by unauthorised firms, who are not entitled to prepare these Trusts.

Even more concerning is the manner in which some unregulated firms appear to be approaching people, who are often elderly, with complaints being made about high pressure selling and scare tactics.

Norman Snowball says: “There are proposals to regulate Will writing and estate administration and the sooner the better but, for now, there are a number of unregulated firms offering those services. Making a Will is very important, even more so where care home fees or tax planning may be an issue. Until the changes on regulation come in, people must be extremely careful about who they ask to prepare their Will.”

Will you show your relationship the red card?

It doesn’t seem that long ago that we were cheering England on in the World Cup but with the Euros on the horizon, as well as hope that the team does better, a word of warning….

People in this country are often extremely passionate about football and the national team and that is to be commended. However, excitement, nerves, anger and disappointment – frequently fuelled by alcohol – don’t make for a good combination when it comes to relationships at home.

Often partners can totally lose their sense of perspective when it comes to such competitions, spending increased time away from their family, engrossed in games and reducing the quality of communication with their partners to a minimum.

It is widely recognised by family lawyers, police and domestic violence charities that when England plays in football tournaments, the number of incidents of domestic abuse increases dramatically.

The number of calls to helplines and the number of enquiries to Solicitors increased noticeably after the last World Cup, particularly on England’s exit from the competition.

Bear in mind also that when we speak of “domestic violence” we mean not only physical violence but psychological, emotional and sexual abuse as well.

It is a sad fact that often people cannot control their emotions or the passion that they have for sporting competitions or that they feel that it is acceptable to be a perpetrator of domestic abuse – although I’d hope the latter was rare. Sad to is the fact that many victims of domestic abuse may not recognise themselves as such or struggle on in the hope that things will change.

That said, the increased number of reported incidents after such sporting events as the World Cup suggests that either continuing abuse escalates to a point whereby the victim makes a report or that otherwise non-abusive relationships become abusive.

This year I would like to see people take time out with their partners and their family to make sure that their relationships don’t suffer and be mindful of their behaviour.

Have some insight and, if necessary, plan your time in advance – above all, put it into perspective….

However much we all want England to do well, is one competition worth the loss of a family? of a relationship?