Consent orders and mental illness

Mental capacity is an interesting issue within the context of family law. Where is the line to be drawn between silly decisions made by a sane person with legal capacity and those made by someone with diminished mental capabilities and thus no legal capacity to make them?

The two ends of the spectrum are fairly clear. Most people are fully functioning and have full legal capacity to make their own decisions. At the other end, where adults suffer from a diagnosed mental illness, or have suffered damage to the brain, which makes them clearly unable to promote their own welfare, then another person can be appointed to look after their interests.

We have written before about how parties who lack capacity to litigate can be represented, so if you’d like more details about that, click here. In summary, an adult does not have mental capacity to litigate if they cannot understand information given to them, cannot retain that information long enough to be able to make a decision, cannot weigh up the information available to make a decision, or cannot communicate their decision. Children are dealt with differently, and are considered as a general rule not to have capacity whilst they are minors, although exceptions do apply.

In family law matters the interests of an incapacitated adult can be represented by someone else under a Lasting Power of Attorney. If that is not possible, for example if someone loses mental capacity without having signed an LPA then their interests will be safeguarded by the Court of Protection which has jurisdiction over the financial affairs, property, and personal welfare of people who lack mental capacity. The Court of Protection appoints Deputies, who can be family members or professionals, to make decisions relating to the affairs of those who lack capacity. If a suitable Deputy cannot be found or appointed, then the Official Solicitor can act as a Deputy.   An Attorney or a Court of Protection Deputy (known collectively as “alternative decision makers”) will represent the person lacking capacity in litigation or alternative dispute resolution.

An interesting issue about mental capacity arose in a recent case which concerned a former wife who was challenging a consent order made in financial remedy proceedings. It is unusual to appeal against a consent order, as by its very nature it reflects an agreement by the people involved about what will happen, which is then sanctioned by a judge to turn it into a binding court order. This woman was challenging the order on the basis that she did not have mental capacity to sign it when she did. According to the case report, she suffers from Bipolar Affective Disorder (also known as manic depression) which fluctuates in severity, allowing her periods of normal functioning and periods where she is hospitalised and sectioned under the Mental Health Act. It’s a fundamental point of law that in order to be binding, agreements must be between people with legal capacity.

After the consent order had been approved by the court, the woman claimed that she had not been in a frame of mind where she could properly have consented to the agreement. Because she lacked capacity, the order should not stand. She tried to appeal the decision of the district judge who had approved the order, who had no notice of her alleged lack of capacity to sign it at the time it was approved.

Interestingly, (for those of us of a legal persuasion at least!) this is the first time that this particular problem has been aired in the courts within a family law arena, so the judge hearing the application for permission to appeal had no binding precedent to go on.

Alongside alleging her lack of capacity to consent to an order at the time she did, the woman also claimed that the agreement was unfair in its terms. However, the unfairness of a consent order is not a valid basis for attempting to overturn it, so the judge found that the only real issue was the alleged lack of capacity. It is normal practice for solicitors to notify the court if there are concerns about their client’s mental capacity, but in this case the wife had dismissed her solicitors and was representing herself when the agreement was signed. She had no safety net.

The judge compared the family law and civil law approaches to capacity. He arrived at the conclusion that an order made on the basis of consent from a party who lacks capacity and is otherwise unrepresented is an order that would be invalid and should be set aside. He considered it was arguable (although not proven at this stage) that the woman lacked capacity at the requisite time, and he therefore gave her permission to proceed with her appeal against the order.

In getting permission to appeal she has cleared only the first hurdle. The challenge she now faces is to prove retrospectively that she lacked mental capacity at the time she signed the agreement. The assumption is that a person has capacity unless there is evidence to the contrary, so the wife must prove her case.

If you have concerns about capacity, or any other family law issues, please make an appointment on 01223 443333 to come in and talk to Adam, Gail, Simon or Sue.

Are parents giving up on children after divorce?

Some interesting statistics crossed our desk last week from CAFCASS, who have reported a significant year-on-year drop in the number of applications being made to the court for orders about children’s arrangements when parents don’t (or no longer) live together. These applications are generally disputes about where children should live (formerly known as residence, and before that, custody) or how much time they should spend with the parent with whom they don’t live (formerly known as contact, and before that, access).

The figures show that in July 2014, there were 36% fewer applications than there were in July 2013. This significant decrease is part of a bigger picture of declining use of the courts to work out children’s arrangements – the graph produced by CAFCASS illustrates this clearly.

What we don’t know is the reason why. There are various possibilities, of course, some more palatable to the government than others.

A positive spin on the reduction in court applications has seen people suggest that we are starting to see the benefits of the government’s desire to divert more people to mediation. As regular readers will know, we are big fans of mediation at CFLP: three of us are qualified mediators (Simon simply hasn’t got round to it yet) with active mediation practices as part of our toolbox of dispute resolution skills. There’s a vibrant mediation community in Cambridge, and in the wider area. Further, legal aid is still available for family mediation so if you qualify on a means test, you can get family mediation for free from providers who have a legal aid contract – you can find those here.

People coming through to mediation are starting to increase, it’s true, partly because of the requirement for prospective applicants to court to see a mediator for a MIAM (mediation information and assessment meeting) to investigate whether the dispute might be appropriate for the mediation process and to learn more about alternatives to court. It’s also partly that awareness of mediation is growing: whereas a few years ago it was common for mediation to be confused with an attempt to get couples to reconcile, now this misconception occurs more rarely and more people understand that mediation is a way of talking the problem through with someone trained to assist you to work out a way forward.

However, there are two problems with linking a decrease in court applications to an increase in mediation. The first is that there hasn’t been nearly such an increase in mediation as there has been a decrease in court applications – anecdotally, the figures themselves don’t add up. The second is that not all mediations lead to a full settlement of the dispute. A number still require an application to court (or to arbitration) to work out matters that people haven’t been able to agree on. Family circumstances are complex, and disputes are multi-faceted. Although in our experience it is rare that people leave the mediation process without feeling that progress has been made in some respect, not everyone manages to come to a full agreement. The court should still be an option for those who don’t.

Could the number of parents separating have reduced? It’s possible of course but it’s difficult to get statistics for the number of relationship breakdowns. Divorce statistics are available but in an era when only about half of children are born to married couples, they don’t tell nearly the whole story. One suspects that a third reduction in the number of couples with children separating year-on-year would be a social phenomenon worthy of note, and celebration. Frankly, we just don’t think it’s possible to draw that conclusion from the figures.

Could it be that parents are more likely to agree on arrangements for their children after they separate without needing to have any recourse to dispute resolution at all? Well, that would be lovely. Sadly, we haven’t seen any evidence of that that would account for the change in figures.

In our view, the most likely explanation for the huge reduction in court applications is that parents are increasingly finding that the cost of justice is beyond their reach. Since legal aid was all but abolished for court applications in family cases in April 2013, those who cannot afford to pay for legal advice and representation are faced with the choice: mediate, go to court without advice or representation, or don’t bother at all. Mediation doesn’t always have the clear-cut outcome we would want. Although the courts are better set up for litigants in person now than they used to be, not everyone has the confidence or emotional resources to negotiate the litigation maze by themselves, and for those not entitled to an exemption there is still the cost of an application and a MIAM. The third option remains – just to leave it.

Are people just leaving it? This in our view is the most worrying, and most likely, explanation for the drop in court applications. It concerns us because we’re passionate about doing what we can to encourage good outcomes for children after parental separation, and we believe that in general the family court is good at doing this. It helps children who aren’t being supported by the parent they live with to have a beneficial relationship with the parent that lives away; it helps children where one parent is trying to bully the other to accept arrangements that aren’t in their best interests. If the parents don’t have access to the family court, it’s the children that miss out. Without legal aid, it seems that many people are finding access to the court too difficult.

You may know that our Simon Bethel is chair of Resolution’s Children Committee, and as such has a particular interest in helping ensure that children get the justice they deserve if their parents can’t agree on what’s best for them. Last week he was quoted in the Law Society Gazette and the New Law Journal on this issue.  It’s because we believe that these statistics need to spark debate outside legal circles that we’re writing about them here.  Children’s best interests are everyone’s business.

If you’d like to make an appointment to see Simon, Gail, Sue or Adam about any situation arising from separation or divorce, please give the office a call on 01223 443333.

How long does it take to get divorced?

The length of time that a divorce (or civil partnership dissolution) will take is one of the questions we are most frequently asked at an early stage. The answer depends on a number of factors, and we set out some things to consider below when you’re trying to work out which timescales might apply in your circumstances. As with all things family law-related, as regular readers will know, there is no definitive answer.

The first thing to say is that it actually doesn’t take that long to get divorced. An undefended divorce petition can get through the court in the space of 3-4 months if all paperwork is filed promptly and the court is being efficient. Even with the requirement to wait 6 weeks after decree nisi (the penultimate stage) to apply for the decree absolute that will finally end the marriage, the process can be completed in 6 months without anyone having actually to attend court. See our divorce factsheet here for more detailed information.

However, the key thing to remember is that a divorce itself does not sort out any questions relating to children, money or property. Putting children aspects to one side for a moment, it’s always sensible to get some advice on the effect of a divorce on your financial position and to obtain an order (a ‘consent order’) from the court that either reflects the financial arrangements that you and your ex have agreed, or records that neither of you will claim anything from the other. This needn’t delay the final divorce at all as it can be drawn up quickly and presented to the court for an order to be made at any time after decree nisi is pronounced, so long as you are both agreed on what will happen.

Without such an order, there is the possibility that either of you could seek to obtain a financial adjustment from the other at a later date. Another issue is that once you cease to be a spouse, there could be benefits from insurance or pension policies in the other person’s name that you lose access to. As a result, there may be reasons to seek to delay the grant of decree absolute and the final end of the marriage until you’ve worked out what this might mean and what, if anything, should be done.

If it’s not possible for the two of you to agree what should happen financially at the end of your marriage, there are various options to look at. All are likely in practical terms to delay the end of your marriage while the details are worked out, but some perhaps for longer than others. The two important factors that most influence the speed of the process are commitment and attitude. The more work you both put into sorting out your difference of opinion, and the more co-operative and businesslike you can be about the process keeping emotion at bay as far as possible, the quicker your resolution – and therefore your divorce – is likely to come. Usually, the longer it takes, the more expensive it is, so there are added benefits to seeking a swift outcome.

In our experience, former couples who commit to resolving their disputes through collaborative law, mediation or arbitration, where they are involved in every aspect of their process and are responsible for its timing, can get to a settlement more quickly (as long as the process is successful!). Those whose are not able to, or do not wish to, use these alternatives to court (and you have a chance to find out about them at the compulsory mediation information meeting – MIAM – you must attend before filing proceedings at court) are less in control of the timescale because the court takes over. It is up to the court to fit in and schedule the necessary hearings, and there is a strict timetable leading up to court appointments that dictates when information must be completed, filed and exchanged. There is simply less flexibility.

Despite the well-known pressure on the family courts, the early stages of the court process in financial matters on divorce still tend to mean a first hearing before a judge within 3 or 4 months of filing an application. (If you want to know what the court process on finances entails, take a look at our factsheet here.) The real problem comes at the later stages when and if it’s necessary to find extended court time for a final hearing to determine what the outcome should be; the delays here mean that in a complex case it can take around 12-18 months in some courts for the trial to be held, after which there may be a wait for the judge’s decision. During this time, it may not be possible to finalise your divorce. It is of course possible to settle the dispute at any time even when the court process is underway – very few cases go so far as a final hearing.

Turning now to children matters, in most cases these are unlikely to delay the progress of a divorce because the law that applies to children is largely unconnected to the marital status of the parents, and more concerned with the legal concept of parental responsibility and the best interests of the children. In most cases, although resolving differences over children’s future arrangements may be a significant factor in your divorce both in terms of emotional and practical impact, the legal position is largely separate, in contrast with finances. There are few reasons to delay a divorce because of children matters (although you should seek advice that relates to your own circumstances).

How long does it take to get divorced? Well, it depends. If you’d like to come in and talk to us about your situation, give us a call on 01223 443333 to make an appointment with Sue, Adam, Gail or Simon.

Marriage for millennials

The summer holidays always seem to be something of a silly season for news stories, and family law has not escaped this phenomenon. A story caught our attention recently which combined the issue of marriages with what some might describe as the modern world’s throw-away approach to modern life and technology.

The story was reported in the Telegraph and in Time Magazine and likens the modern approach to marriage and long-term commitment to beta-testing software.

According to a new survey from the USA covering the age group labelled millennials (those aged 18 to 34), 43% of respondents said they would support a marriage model that involved a two-year trial, after which the union could be either formalised (like a decree nisi but in reverse) or dissolved, with no divorce required. A further third were in favour of a fixed term marriage in which licenses would be granted for five, seven, ten or thirty year periods, after which the terms of the marriage would need to be renegotiated. Some 21 per cent liked the idea of a “presidential” model, where marriage would last four years – automatically renewable to eight – after which you get to choose a new spouse. 10% favoured a multiple-partner marriage option (polygamy or polyandry to put it in legal terms), and 40% said they believed the “till death do us part” vow should be abolished.

These new suggested arrngements were described in the study as “beta marriages”, representing unions that the couple concerned can road-test, then uncouple, or “de-glitch” to use a techy term, without cost or consequence.

Naturally a study focussing on the thoughts of a few hundred young Americans is not necessarily reflective of the zeitgeist of all of us living in the UK today, but there are some interesting points arising from it.

It seems that younger people may want to test a relationship before committing to it. For the younger generations, there is little stigma to divorce; perhaps it now represents just a stage of life (remember Gwyneth Paltrow and Chris Martin’s “conscious uncoupling”?). We are all accustomed to having choices and options available to us now – from career paths, to where we live, what we wear, whether we attend church, right down to the type of phone we use. This expectation of quality and choice may carry through to relationships and may partly account for the rise in couples living together either before marriage, or instead of it, perhaps thinking that it provides a more flexible set-up. Perhaps the changing social mores are also behind the increase in couples drafting living together agreements and pre-marital agreements in order to give themselves certainty and plan for the uncoupling or deglitching which they consider may well be on the medium-term horizon.

The wide acceptance of alternative family structures and the increasing numbers of people living together outside of a marital framework indicates how attitudes to the family as a concept are changing. The decline of organised religion means marriage itself is no longer generally seen as a sacrament: in fact 70% of marriages now take the form of civil, rather than religious, ceremonies. The 2011 census showed us that almost a fifth of people who were married but not living with their spouse were in fact cohabiting with someone new. We all know that living together is on the up, and the rise in cohabitation is occurring more in mature age groups, with those aged 40 and over making up 41% of the cohabiting population in 2011.

That said, despite this beta-testing idea, marriage remains attractive to many and the ONS figures for 2012 show an actual increase in weddings taking place – up 5.3% on 2011 (262,240 weddings took place in 2012). When combined with the dropping divorce rate, this would tend to show that the Big Day and everything which follows it still has its appeal, even for the creative minded millenial generation.

The picture is confusing. This sort of debate is not entirely new. Some anthropologists have long argued that long term monogamy (as formalised in modern concepts of marriage) is not how we are meant to live, but rather we would be better suited to repeated short-term, monogamous relationships lasting three or four years.

Where does all this leave us? Despite the fact that in the office here we do enjoy a good survey, this one is not really likely to affect the way we practise family law, and there are certainly no plans in this country (or indeed in the USA) to introduce marriages of fixed duration after which you can change partners or keep your current one (can you imagine the stress of approaching the end of the fixed term, wondering whether or not you’d come up to scratch in the preceding years or were about to be dumped?). But the concerns that many people do have about making a huge commitment with financial implications should it go wrong can be allayed somewhat by the preparation of agreements sorting out what should happen if you do later uncouple. If you would like to talk to us about protecting your wealth going onto a relationship, or any other aspect of family law, do ring us on 01223 443333.