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The End of the Blame Game…

Posted on by polly@susanclarksolicitor.co.uk

… In divorce proceedings at least.

Currently, the current law requires spouses to evidence at least one of five facts to support the basis that their marriage has irretrievably broken down. The facts available are that the marriage has ended based on adultery, behaviour, desertion, two years separation (with consent) or five years separation. With the facts of adultery, behaviour and desertion the Petitioner (the spouse starting the proceedings) must set out the nitty gritty details of why and how the marriage ended. This can add fuel to an already very acrimonious situation.

This is not a new problem, and one that lawyers have been battling against for many years. As members of Resolution, we at Susan Clark Solicitor advise our clients that financial matters should be resolved in an amicable way. However, we also have to advise our clients to set out, in as much detail as possible, the harm and distress they have suffered at the hands of their spouse during the marriage in the divorce petition if it is based on unreasonable behaviour.

Justice secretary David Gauke said: “Hostility and conflict between parents leave their mark on children and damage their life chances. While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples.”

The government has confirmed that it will introduce legislation to end the “unnecessary blame game” and also remove the ability of one spouse to contest the divorce. They have also confirmed that there will be a mandatory six month delay between the Decree Nisi and Decree Absolute to allow for couples to make sure it is really what they want.

Although this is a very welcomed change in the divorce process, the legislation will be introduced “as soon as parliamentary time allows”, which could be some time.

A Happy Home

Posted on by polly@susanclarksolicitor.co.uk

Many couples now don’t feel the need to marry and they instead continue to raise families and get a mortgage happy in their decision. There are also people living together, as friends or housemates, who want to protect their rights. However, many are getting savvier about protecting their rights when they sign on the dotted house agreement line.

In both scenarios, an agreement can set out how finances will be shared, what happens if one of them becomes ill, dies or “opts out” of the relationship. The agreements for the finances can include how the rent, mortgage or bills are paid, what would happen to joint bank accounts or pensions, deal with assets owned or bought while living together, arrangements for children (normal or fur babies) and next of kin rights.

In order to have an agreement drawn up, parties will need a list of their finances including any debts, assets and anything else they would like the agreement to cover. The parties will also need relevant documents to support the list such as proof of assets, tenancy agreements or title deeds, proof of earnings and bank statements and birth certificates of any children.

Once the agreement has been drafted, there are some steps to make sure the agreement is valid and these are:
• Both parties need to enter into it freely and voluntarily;
• The agreement needs to be in the form of a Deed;
• Each person needs to sign it;
• It must be updated following any major life changes (e.g. birth of a child, purchase of a home).

During the process, each party should seek independent legal advice to ensure they understand the terms and are happy with the agreement.

If the relationship does break down or change, at least the person can concentrate on fixing their broken heart safe in the knowledge the finances are sorted.

If this is something you think could benefit you and your partner, please telephone our office to make a fixed fee initial meeting with us.

If you didn’t say “I do”, you’re probably not married

Posted on by polly@susanclarksolicitor.co.uk

If you are in a couple who have always thought you are in a “Common Law” marriage will find yourselves in a pickle if you ever decide to try and rely on those illusive rights.

The “Common Law” marriage is a modern day myth, the term originates from when it was less socially acceptable for couples to live together and have children without being married first.

There are long term couples who mistakenly believe that after living together for a long time believe they have some legal rights. Couples who do not formalise their relationships through marriage or civil partnerships will find themselves in a complicated situation should the worst happen.

The division of finances on separation or death of a partner can be very difficult to deal with because without an express contract or being named in a will, the partner left alone can be left without a legal claim to anything. Things can be further complicated if children are involved and complicated can mean very expensive in terms of fighting a legal battle.

There are now many options for couples who do not want to formally marry or enter into a civil partnership including cohabitation agreements, shared property ownership and making sure they have an up to date will.

Spending a little time now formalising your living situation could potentially save you a lot of time and money in the future.

A change to the famous five

Posted on by polly@susanclarksolicitor.co.uk

The government has proposed to change a further inconsistency between civil partnerships and marriages.

One of the five facts that are used to evidence a divorce is adultery. Currently, a couple cannot end a marriage or civil partnership based on the other’s adultery if the adultery committed was with someone of the same sex. This is because adultery, as defined, can only take place with two people of opposite sex. An archaic definition.

The bar confirms that “A spouse or civil partner having sexual intercourse with someone of the same sex is not technically adultery although in many cases it would lead to the irretrievable breakdown of the marriage or civil partnership.”

6 Months for a Divorce

Posted on by polly@susanclarksolicitor.co.uk

The bar has warned that making couples wait 6 months for a divorce is an ‘unacceptable delay’ for those who do not have children.

The Ministry of Justice had presented its report following a consultation on the reform of divorce. The Ministry suggested that they wanted to test a six month forced delay on allowing a Decree Nisi to be made Absolute. Currently, the period a Petitioner has to wait for a Decree Nisi to be made absolute is six weeks and one day.

The Ministry said that “We think this allows a sufficient period for most couples to consider the implications of divorce and reach agreement on practical arrangements, while not being so long a period of uncertainty that would have long-term effect on children.”

The bar have replied stating, “it is not clear whether there is empirical or anecdotal evidence that evidence that the current period of 6 weeks and 1 day is too short a period of time and what the reasoning is for extending it to 6 months. The period is a minimum and a decree absolute will not be made until the court is satisfied that to make a decree absolute will not cause hardship and, in the case of marriage with dependent children, that satisfactory arrangements have been made for the children.”

Adulterous husband contests divorce

Posted on by polly@susanclarksolicitor.co.uk

In the case of VWvBH, a husband tried to contest a divorce which was based on his adultery. In the extraordinary case, the couple’s daughter was cross-examined during the three day trail.

Her Honour Judge Lynn Roberts heard the contested divorce (one of around only 20 divorce trials per year) at which the husband contested the divorce despite admitting that he had committed adultery for 22 years of the marriage.

The husband had already delayed the trial due to a claim that he was attacked the night before the first day, a claim which the Judge has not given any great weight to.

With regards to examining his wife’s witness statements, the husband’s actions were recorded by the Judge who stated “and, if I had not intervened, would have questioned each one of them for very long periods of time… it was a difficult and painful experience, in my judgement, for each of Ms W’s witnesses and for Mrs W to observe. His cross-examination of his daughter, M, was particularly excruciating” and that asking his daughter questions about herpes was “unfortunately and wholly unnecessary [stet]”.

She added “Mr H’s whole case has indeed has been completely futile, a huge waste of money, a tragic destruction of family relationships, and all, in my opinion, to satisfy Mr H’s own vanity and need to be in control and for other reasons I have suggested earlier. All he had to do was not contest the divorce, a divorce he wanted, as virtually everybody else in the country does, and this couple would have had their decree nisi last year, the various relationships would, in all likelihood have been well on the way to healing by now and the money saved for the family.”

The wife was granted a Decree Nisi, the husband was ordered to pay her costs on an indemnity basis “because of the totally unnecessary proceedings that have taken place, a huge amount of costs which have been made much more expensive than they needed to because of decisions taken by Mr H.” This is another reason why no fault divorce is so important. Changes will hopefully happen in the New Year.

 

Waggott vs Waggott ‘meal ticket’ appeal leaves lawyers waiting for maintenance guidance

Posted on by polly@susanclarksolicitor.co.uk

This month, the Supreme Court has refused permission to appeal in Waggott v Waggott because it was stated that it was not based on an arguable point of law. The appeal was a wife’s challenge on the Appeal Court’s decision to end periodical payments from her ex-husband.

The parties were married in 2000, had a child in 2004 and separated in 2012. The wife ceased working as an accountant in 2001 while the husband had a successful career. By the end of 2014 he was earning a £3m annual salary.

The original agreement regarding the assets was to equally divide the £16m capital assets. However, the parties disagreed as to how much the wife should get from the husband’s future income. Originally, a Judge ordered the husband to pay the wife an amount to cover the balance remaining from her capital payments, but both parties challenged this decision at the Court of Appeal.

The wife’s appeal was dismissed but the husband was allowed to cross-appeal and a ruling was made that the payments to the wife would now cease on 1 March 2021.

Following the judgement, the national media debated whether the days of the so-called ‘meal ticket for life’ were now numbered. The Supreme Court said that one of the main issues was the question of whether the earning capacity of one party should be treated as a matrimonial asset to which the other party should have a share of in the future. Another issue was whether it was fair to expect a homemaker party to use their capital award to meet their future income needs, where the working party could meet their needs and retain their capital assets untouched. Lawyers will be waiting for further guidance as the position is unclear.

Law Society publishes guidance on what happens if there is a no-deal Brexit

Posted on by polly@susanclarksolicitor.co.uk

Papers cover family law, legal services, civil and commercial co-operation and data protection.

Concern that the UK could exit the EU without a deal has pushed the Law Society of England and Wales to publish the first in a series of papers giving solicitors guidance so they can take steps to prepare for some of the outcomes.

The first lot of papers gives guidance on some of the possible rule changes where a deal goes bad between a business here and in the EU, what happens in family law if a couple splits up and how data sharing should be approached if the UK quits the EU without any agreement. There is also a paper on legal services.

The Law Society notes that, for example, the Brussels II Regulation is a single legal instrument which helps families resolve disputes about divorce and the custody of children where they involve parties in more than one EU state. Under the regulation, EU courts automatically recognise judgments delivered in other EU states on matrimonial and parental responsibility. This will no longer apply to the UK once we leave the EU.

The Maintenance Regulation meanwhile helps ensure the payment of maintenance in cross border situations – again that will no longer apply.

Law Society president Christina Blacklaws said:
“Whatever you think of Brexit, it has opened up a Pandora’s Box of complicated personal and business issues which were previously dealt with under EU rules. Some areas – such as family law – are partly catered for by other agreements that will still apply such as the Hague Conventions. But there’s little doubt that resolving disputes will become much more complex and much more costly.”

Are You Being Served?

Posted on by polly@susanclarksolicitor.co.uk

The courts in England and Wales take a rather flexible approach to service of a petition on a Respondent, almost anything goes – Facebook, email, smoke signals. If you can prove that the receiving party was aware of the proceedings, that is good enough for our courts. If you has receive a text from the other side which says something along the lines of “not coming on Thursday – up yours”, there has been effective service as far as our courts are concerned because the receiving party knows about the hearing.

The reason that our rules on service are so flexible is not that we have no rules – we do, but it is down to the other provisions allowing substituted or alternative service or even no service both for the divorce itself and other family applications. Our rule say:

“6.19
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may direct that service is effected by an alternative method or at an alternative place.

(2) On an application under this rule, the court may direct that steps already taken to bring the application form to the attention of the respondent by an alternative method or at an alternative place is good service.

(3) A direction under this rule must specify –
(a) the method or place of service;
(b) the date on which the application form is deemed served; and
(c) the period for filing an acknowledgment of service or answer.”
6.20
(1) The court may dispense with service of the application where it is impracticable to serve the application by any method provided for by this Part.

(2) An application for an order to dispense with service may be made at any time and must be supported by evidence.

(3) The court may require the applicant to attend when it decides the application.

Service by an alternative method or at an alternative place”
6.35
Rule 6.19 applies to any document in proceedings as it applies to an application for a matrimonial or civil partnership order and reference to the respondent in that rule is modified accordingly.
6.36
The court may dispense with the service of any document which is to be served in proceedings.”

The recent case of Wilmot v Maughan [2017] EWCA Civ 1668 in which the Court of Appeal decided that regardless of the fact that a husband in Turkey had not been served properly pursuant to the Hague Service Convention 1965 [see below] but had instead been served by email, the court was able to order service out of the jurisdiction by an alternative method – even if it had never expressly said that was!

Some may be shocked to find out that as a result of the somewhat pragmatic approach to service, our regime is the source of much amusement amongst some overseas lawyers in relation to this issue. Overseas lawyers and judges from other jurisdictions simply would not accept that documents can be emailed, sent by Facebook or handed over by a James Bond wannabe. Indeed, postal service is actually prohibited in many jurisdictions. Why? Presumably because their postal system lacks integrity. Personal service effected by an individual may be a criminal offence in some overseas domestic criminal laws. The truth is that if you fail to abide by the rules, the overseas court is very unlikely to assist you. Ours, however, seems to want to help and turn a blind eye to the more uncouth ways to serve documents.

International Conventions

The UK is a signatory to the Hague Convention on Service 1965 and the 2007 EU Regulation on Service (Denmark though not a member of this Regulation has chosen to apply it, by virtue of a separate declaration). Importantly, given Brexit, all of the EU states are also members of the 1965 Hague Convention.

It will therefore be interesting to see if our judicial system will review serving the Facebook divorce petitions…

Woman Trapped in Loveless Marriage after Judges Refuse Divorce (first published 15 April 2017)

Posted on by polly@susanclarksolicitor.co.uk

You may have seen in the widely reported press the case of Mr and Mrs Owens where a wife was refused a divorce on the grounds of her husband’s unreasonable behaviour. The case law is embodied within section 1(2)(b) of the Matrimonial Causes Act 1973. This states “the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts… that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent… it shall be the duty of the court to enquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent”.

For a long time (encouraged by Resolution the family law organisation) lawyers have endeavoured to keep the particulars set out in an unreasonable behaviour petition to a minimum. This is to reduce potential acrimony which can overflow into disputes regarding children and the division of the assets. However, this case may mean that in the future much more robust and possibly controversial particulars will have to be included in petitions. The outcome of this case may have been correct if the law was strictly applied, but the law needs to change and there is now a substantial lobby to press on for no fault divorce. It is very much to be hoped that local judges will not pay much heed to the decision of the Court of Appeal, given that they have been fairly lenient in the fact that they have passed as suitable for the pronouncement of a decree nisi.