Hide and Seek

There was recently reported in the press a case of a man who won £50,000 playing Deal or no Deal on TV.

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”.

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.

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.

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”.

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.

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.

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.

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.

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.

When is a marriage not a marriage?

An odd question on the face of it but one of increasing importance in a world where more and more people live “international” lives, crossing jurisdictions for business and pleasure and residing in different countries.

A recent case in the English Courts brought this issue once again into focus. This featured parties who were both Moroccan by descent, the wife born in England and always residing here, the husband born in Morocco and moving to England when he was 7 with dual citizenship.

The parties went through a Moroccan civil ceremony in the Moroccan Consulate in London. There were witnesses and a formal marriage certificate, two wedding parties and a honeymoon. The ceremony was conducted by a notary and the relationship lasted some 7 years, the parties having a son and separating in 2009 – although staying under the same roof.

The wife sought to issue Divorce proceedings in England but the husband, just over a month earlier and without the wife’s knowledge, had petitioned for Divorce in Morocco.

A Divorce was then finalised in Morocco with minimal financial provision for the wife. The wife’s application before the Court in England, therefore, was for financial provision following the foreign divorce.

For the purposes of marriage, the Consulate constituted English soil and the “marriage” therefore took place in England and was governed by English law. It was perfectly open to the husband to petition for Divorce in Morocco and there is legislation that permits parties to issue applications for financial relief in England following overseas divorce. In order to do so, however, there must have been a “marriage” capable of recognition in England and this became the issue for the Court.

The husband argued that her application must fail because a) there was no marriage recognised in England and b) the Moroccan divorce should not be recognised in England (I’m not dealing with (b) in this piece)

The Judge considered the ceremony, which was wholly non-compliant with the Marriage Act, and the length of the parties’ cohabitation. He found that the ceremony did not give rise to a valid marriage and that the fact that the parties had cohabited together for some 7 years was not enough to give rise to a presumption of a valid marriage and he declared it a “non-marriage”.

But…could this nevertheless amount to a “marriage” for the purposes of applying for financial relief (the wife’s application)? The Court held that despite both parties intending the marriage to have legal consequences there needed to be a valid marriage, or at the least a void marriage (i.e. one that is capable of founding a decree of nullity) for such an application to be made.

And so, the wife could make no financial claim against her ex-husband in England and she was stuck with the “very modest” financial provision awarded to her by the Moroccan Courts, the English courts would not interfere with the flat held in the husband’s sole name (net value of £300,000).

The lessons are there to be learnt….marriage ceremonies should comply with the provisions of the marriage act – pay careful attention to the venue and the provisions as regards who undertakes the ceremony – if no valid/void marriage is created then parties may be left in difficulty on separation, particularly when it comes to dealing with financial affairs.

Parenting on Separation – endless decisions

There was a case reported in the press recently about a 10 year old girl who wanted to be baptised. The child was living equally between her separated parents, her mother remained of Jewish faith and her father had converted to Christianity after the breakdown of his marriage to the child’s mother, having been of Jewish faith before that.

The child’s mother had issued an application to prevent the child’s baptism going ahead and considered that the child should be made to wait until she was 16 years old before making such a decision – the child’s father considered that the child knew her own mind and that she should be allowed to be baptised now, as was her wish.

Ultimately, whilst there was no jurisdiction for the Court to order that the baptism take place, it refused to prevent the baptism happening and the judge felt that the child’s best interests would be served by starting her baptism classes as soon as possible.

It struck me when looking through the judgement of this, admittedly, unusual case that despite any separation, there are an almost incalculable number of decisions that parents will need to make for children as they grow up. The vast majority of these will need to be made jointly, both because joint decisions ultimately must be better for children but also because Parental Responsibility necessitates consultation when significant decisions are made for a child, such as schooling, religious upbringing, medical care etc.

Disputes concerning a child’s religious upbringing are probably less common than say disputes over schooling but such disputes are not uncommon – even the Cruise v Holmes divorce settlement included clauses to limit the child’s involvement in the father’s following of Scientology as his “religion”.

Also sometimes before the Court are disputes over whether a child should be given certain medical treatment, for example where one parent is a Jehovah’s Witness and will not consent to the giving of blood.

It is fairly common for parents to have differing opinions on various topics but the difficulty with separated parents is how those differences are communicated, acknowledged, discussed and dealt with.

Surely better that potential areas of dispute are considered early on by both parents – at least then they can identify where they differ in their opinions and where perhaps they will need some assistance  in the future – court based or otherwise –if those areas become an issue.

The Court devised, some time ago, a way of encouraging separating parents to think about their views and opinions in terms of the child’s upbringing early on – Parenting Plans.

These “plans” take the form of a booklet and include a whole range of different areas relating to the child’s upbringing – some that parents may not even have given thought to or be aware that the other holds particularly strong views on.

The idea was that these plans were given to separating parents at an early stage, either by a Solicitor or perhaps a Mediator to encourage some forethought and discussion – ideally with the outcome that neither parent would need to resort to Court applications.

I am not sure how successful these plans have been or how routinely they are used across the country but I would say that the earlier potential sources of dispute are identified, the more opportunity there is for parents to enter into discussions together to try and resolve matters.

Ok, it won’t be suitable for every family and life is ever-changing – What if the child expresses a strong wish for something contrary to what the parents had agreed together? What if there is a change of circumstances and as a result one or other parent changes their mind about something?

There is, as ever in cases concerning children, no one size fits all solution but early identification and discussion must surely be a positive all round.

Adultery & Divorce

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

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

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

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

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

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

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

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

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

Cancellation of National Family Week

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

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

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

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

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

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

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

Divorcing man’s best friend

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

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

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

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

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

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

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

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

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

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

Father's name on Birth Certificate = responsibility?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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