Our Adam in the Telegraph

As CFLP blogging is taking a break next week, we thought we’d leave you with a link to the Telegraph’s Story, “Divorced at 60: I regret staying with my husband” in which CFLP’s partner Adam Moghadas is quoted extensively, as follows:

Adam Moghadas, a partner at the Cambridge Family Law Practice, has seen a rise in the number of older people coming to him for a divorce and believes the disappearance of a “past stigma” surrounding divorce are contributing factors. “People are living longer, women are more financially independent, there have been a lot of societal changes in recent years that contribute to the rise in older people looking to divorce. Often I hear the phrases ‘looking for freedom’ or a ‘sense of identity’ from clients that they’d previously not been able to attain during their marriage.” 

He also cites changes in how society now perceives sexuality as a possible reason for older couples filing for divorce, “they’ve essentially lived a lie and now they’re tired of it, they want a new life.”

Divorce is often called selfish. Those who oppose it cite the lasting damage it can do children – no matter the age. But when it comes to those who choose to divorce at a later stage in life, Adam says they are often more “considered and resigned” than those younger than them. 

“I find people coming to me, not to divorce, but to just ask me questions about the process and where they stand and then I won’t hear from them for weeks, days, months and – in one case – years. But then they do come back to me and say, ‘Oh, I should’ve done it back then.’ 

“There is definitely a pressure placed on them to stay and try to make it work. They have children, they have grandchildren, and there’s this feeling of, ‘Why can’t you just soldier on?’ It becomes a much more considered decision to divorce at a later age. They are much more purposeful and have a clearer intent of mind. They know what they’re doing, and what it can mean for their family but they’re at a point where they feel ‘I’m at this stage in my life, if I don’t do it now, when?'”

… Adam refers to the ‘mid-life crisis‘ as reason for divorces rising in the ageing population: “Older men will run off with younger women, though it’s not just men – I had an older woman run off with a younger woman recently. But, and I feel a lot of people don’t consider this, the idea of rehousing is a big worry for them.”

“Financial security is incredibly important for people at that age. When you’re divorcing in your 30s or 40s you think ‘it’s ok, I still have at least 20 years to sort everything out and get back on my feet’ but the later you leave it, the more you begin to worry about how you’ll survive alone financially so they continue to put it off.” 

Adam also suggests differences in the way men and women behave and perceived gender roles as a reason for putting off divorce until later life: “Men typically have a fear of not knowing how they’ll cope alone. Things like cooking and washing clothes. They’ll say “I know I’m not in love with her but…” and they’ll stay because they feel like they can’t do things alone.” 

“We also have to consider that men, typically, don’t have the same kind of support network that women have. Women, when something like a divorce happens will pick up the phone and call their friends to help them through it. Men don’t do that, there’s a sense of isolation there.”

If you have any queries about divorce in later life, or any other family law matter, please do call 01223 443333 and make an appointment to see Adam, Gail, Sue, Simon or Tricia.

 

When 100% is a fair division of assets

Family lawyers are always talking about fairness, and what that means. Sometimes it means equality and equal sharing of a couple’s assets, sometimes is means an unequal split to balance capital and income and to try to meet everyone’s needs, but rarely does fairness require one party to get everything.

You may have seen the coverage in the press in the last week about a case where just that happened, so we thought we would have a quick look. Naturally, the press have reported it in their typical fashion, claiming the wife is “walking away” with the family’s “entire fortune” (see for example this from the Telegraph) , but a brief look at the facts of the case renders the decision a little less dramatic.

The husband and wife in this case are both medical professionals. They married in 2002, and had two children before they separated in 2011. A year after separation the husband moved to Bahrain, where he has since formed a new relationship, undergone an Islamic marriage ceremony, and had another child.

Since moving abroad the husband had made very little effort to support his children, and the judge called him a “serial defaulter”. As he had moved abroad, he was beyond the jurisdiction and thus the reach of the Child Maintenance Service (the body taking over from the CSA), which only has jurisdiction in the UK, in other words England, Scotland, Wales and Northern Ireland.

By way of explanation: in cases where one parent lives abroad the CSA/CMS cannot provide a calculation of how much maintenance the non-resident parent should pay, nor can they take steps to collect those payments. There are a few exceptions to this rule, namely if the non-resident parent works overseas for the UK Civil Service, the armed forces, or a UK Government organisation, or works overseas for a UK company and is paid from a UK payroll. In certain cases, it is possible to go to court to obtain a maintenance order, and for that to be enforced overseas through procedures knows as Reciprocal Enforcement of Maintenance Orders. However only certain countries participate in these arrangements, and the UK authorities have no power to compel foreign courts or authorities to enforce maintenance orders, or to set a timescale for enforcement, as the system is based on mutual agreement.

In any event, Bahrain (in common with most other Middle Eastern states) does not participate in arrangements for reciprocal enforcement of maintenance. So having moved to Bahrain, the husband put himself beyond the reach of the CMS and the courts in relation to maintenance.

The trial judge who dealt with this case had to give first consideration to the welfare of the two children. It was clear that the wife was to have the sole responsibility and financial burden of raising the children, and so he concluded that she should have the lion’s share, if not all, of the assets, as she needed them to house herself and the children in appropriate accommodation and make provision for them. He therefore made an order providing her with the proceeds of sale of the former matrimonial home (£250,000) and the couple’s savings of £310,000. This is what has been described in the press as “their entire fortune”. In this day and age, those sorts of figures do not really amount to a fortune, especially when they have to be used on supporting a family.

The husband appealed this decision to the Court of Appeal. The original award was upheld, with the judges pointing out that on the wife’s case, the husband had “abdicated responsibility” for her and his children. They agreed that the trial judge had been right to decide that the wife had no realistic expectation of any future substantive payment of maintenance from the husband, so she needed all the capital assets in order to provide for herself and the two children .The original order was fair given that the husband could not be relied upon adequately to support the family, and neither the CMS nor the courts could realistically make him.

The award made to the wife shows that courts will take failure to support children seriously, and where capital assets are the only source of financial support for a spouse and children then a radical departure from equality may be required in order to meet their welfare needs. Perhaps it will act as a deterrent for those seeking to avoid their financial obligations, or as a useful precedent for spouses left behind trying to enforce maintenance from their recently emigrated exes.

If you would like to talk to us about the case, or any other aspect of family law, please give us a ring on 01223 443333 and make an appointment to see Gail, Simon, Adam, Sue or Tricia.

Parental responsibility and responsible parenting

The concept of parental responsibility for children is one of the core principles of family law. Parental responsibility means the legal rights, duties, powers, responsibilities and authority a parent has for a child and the child’s property, and a person who has parental responsibility for a child has the right and obligation to make decisions about their care and upbringing. (If you want more information about who has parental responsibility automatically and how it can be acquired, click here.)

The law now makes clear the attitude of the family courts for years: that children benefit from both parents being in their lives, so long as it is safe. When considering arrangements for a child, a court must presume, unless the contrary is shown, that involvement of each parent in the life of the child will further the child’s welfare. “Involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

The courts are usually quite reluctant to place restrictions on parental involvement and parental responsibility, but will do so if necessary because they need to exercise their overriding and paramount consideration regarding the welfare (best interests) of the child. They have an eye to the past and present, and another on the future, understanding that as children grow up, the wider effects of either having or not having one parent involved in their lives will start to play out. Indirect contact – letters between parent and child, for example – can be a way of keeping a parent involved in the child’s life when spending time together is not in the child’s best interests for some reason. Often, when the courts order indirect rather than direct contact, they may also include provisions for the parent to be kept informed about the child’s educational progress or other milestones in his or her life.

A rather upsetting and extreme case has just come to light where the court, unusually, ordered that the father should be prohibited from exercising his parental responsibility for the rest of his children’s childhoods. The father in this case had been convicted of two offences of battery against the mother, and breach of an injunction that he should stay away from her. He continued to deny these incidents occurred at all. One incident it was not possible for him to deny is set out by the judge in two paragraphs from the judgment:

“ 17. On 24 July 2012 at approximately 7am the father set fire to the passenger seat of his own car and drove it into the family home whilst the mother and the children were inside. Following the impact the father got out of his car and further fanned the car fire by pouring accelerant on it. The house then caught fire. The mother recollects the children’s fish tank shattering and the pictures on the walls and the television melting. The mother and the children were fortunate to escape the burning family home without sustaining injury.

18.  The father maintains that his actions in driving a burning car into the family home constituted at attempt to take his own life and that the incident had its genesis in alleged mental health issues. The incident recounted above was however caught on a CCTV camera. That camera recorded that the father stood watching the burning car and the burning house, laughing and saying “I couldn’t have wished for it to go any better, if I’m not having the house neither is she”.   There is no evidence before this court regarding the father’s mental health and nor has the father sought to introduce any.“

The father was sentenced to a long term of imprisonment. However, the matter did not end there. Whilst in prison, there was evidence the father repeatedly sought out inmates whom he asked to burn down the mother’s house and her neighbour’s house, offering plans, information and payment. He was eventually sentenced to a discretionary life sentence, with the judge observing that he posed a significant risk to the safety of the mother and children, and their friends and family. There was evidence to suggest that the children were severely traumatised, as one might expect.

The mother and children had moved to a new, secure address. Once the father had accepted that the previous court order for indirect contact between him and the children should be discharged, the single issue that remained to be determined by the family court was whether the father should, as he wanted, receive annual academic progress reports from the children’s schools.

Generally, parents have a right to see the academic records of their children. The mother argued that if the father were able to exercise this right, it would increase the likelihood of his being able to ascertain where she and the children were, so he could try again to harm her and them. The court agreed that the risk itself was appreciable. Also, the psychological impact of the possibility that the school might inadvertently reveal their location on the mother and children was potentially highly damaging. Further, the court could see no benefit for the children to the father having access to their academic reports – in the circumstances, the children’s welfare did not demand it, even if the father wanted it.

The court said,

“85. By reason of his persistent desire to harm the mother the father has demonstrated himself incapable of discharging his parental responsibility to the sole end for which it was bequeathed to him, namely ensuring the welfare of his children.   To the contrary, the father has chosen to expose the children repeatedly to the risk of very serious physical and emotional harm. In these circumstances, I am satisfied that the need the children have for a father to be able to exercise his parental responsibility so as to remain involved in their lives must, in this exceptional case, give way to their need for continuing safety of the children and for the continuing safety of the mother who cares for them.”

On the surface, this is another blog on the theme of ‘bad things people do to each other during a break-up where the children are the collateral damage’. There seem to have been a few of these recently: we tell the tales because we are passionate about helping adults manage divorce better, and protecting children rather than putting them in the firing line. Thankfully, few cases are as extreme as this; but at a lower level, it is easy when involved in a horrible break-up to lose sight of the effects of adult behaviour on young minds. It’s not always easy to put one’s own battles aside and focus on the children, but nobody said parenting was simple: we all have to try.

If you’d like to discuss anything about parenting during a break-up or any other family matter, please do call Adam, Tricia, Sue, Simon or Gail on 01223 443333 to make an appointment.

Deception and damages

Paternity fraud is not something that comes up every day, thankfully. The discovery that, contrary to what you have always assumed, you are not biologically related to a child you have loved and raised as your own must be absolutely devastating. Aside from the emotional cost, there is also the rather more hard-headed consideration of having financially supported a child while under the impression of a biological link that was not there. Is there a remedy? A recent case suggests there could be, in the form of a claim for damages for deceit.

In this case, the couple met in 1997 and married in 2002. A little boy was born in 2005 as a result of IVF treatment, towards the end of their relationship – they separated in 2006 when he was about 7 months old. They drew up a separation agreement which included a provision that the husband would pay child maintenance. They divorced in 2007, and in the paperwork the wife asserted that the boy was a child of both of them. The divorce proceeded smoothly and the finances sorted and implemented. Later, in 2011, when relations had become strained and arrangements were not going smoothly, the husband issued an application for contact with the boy. Shortly after the application had been made, the wife informed him that he was not the boy’s biological father after all. This was confirmed by a DNA test.

It turns out that there had been some underhand goings on by the wife, and an old (and reignited) flame at a fertility clinic in Spain. The couple had first attended the clinic in Barcelona in September 2004, at which time the husband had provided a sperm sample, which was frozen. The wife returned in January 2005, but did not take the husband with her. The relationship was in difficulty at this point. Instead she took a former boyfriend with her, who gave a sperm sample at the clinic.

It seems the clinic were under the impression that the former boyfriend was in fact the husband; a notion of which neither the wife nor the boyfriend disabused them. His sperm was used to fertilise the egg, and the pregnancy was successful.

When the husband discovered that the wife had attended the clinic with the former boyfriend, he asked whether his sample had been used. The wife told him the clinic had been about to use the ex’s sample, but she told them to use his instead. In fact, the clinic had a policy of using the freshest sample, and believing the ex to be the husband had simply used the most recent sample, which was that of the ex.

Believing the baby to be his, the husband was named on the birth certificate. He raised the boy jointly until the couple separated. The wife in fact knew all along the child was biologically her ex-boyfriend’s, as did the ex-boyfriend himself. When the husband discovered that the child was not his, he launched a civil claim for damages for deceit and repayment of the child maintenance he had paid since the couple parted.

The judge who heard the case was clear that there is a cause of action in deceit in a domestic context such as the one here. There are certain key things which need to be proven for the claim to succeed. They are:

  • the defendant said something or represented something through their conduct;
  • which they knew was untrue;
  • they intended the claimant to believe it, or were reckless whether he did or not;
  • they meant the claimant to do something as a result of believing it, and the claimant acted on what they said; and
  • as a result the claimant suffered loss.

So in this case, although the wife had not directly said “the boy is your child”, she had told the husband his sperm had been used, had named him on the birth certificate, told the school he had parental responsibility and had accepted child maintenance from him for several years. That amounted to a representation, and she knew it to be untrue. The judge was clear that the wife intended for the husband to believe that he was the boy’s father and to act on that belief. It was clear that the husband would not have signed the separation agreement and continued to pay child support had he known he was not the boy’s father.

As the husband had paid money on the belief that the boy was his, he had suffered financial loss. Consequently the claim for deceit was made out. In addition, the aspects of the separation agreement which related to child support had been entered into fraudulently.

The court ordered the wife to pay £10,000 in general damages (for distress), £4,000 for loss of earnings (his depression and anxiety following the discovery affected his earnings), and she was ordered to repay £25,321 (including interest) which her former husband had paid under the agreement for the upkeep of the property in which the wife and son lived.

It is worth noting that the child maintenance per se was not repaid as there are public policy considerations arising from earlier case law which states that damages should not be awarded arising from maintenance of a child. So the husband did not get the money back which he had paid for the maintenance of the boy.

It’s easy to forget that there is a little boy at the heart of this story. We hope that he has been protected from the fallout of this case.

Ten years ago there was a report that claimed that one in 25 fathers may not be the biological parent of the child they believe to be theirs. The figures are a bit controversial, but if there is any truth in them, then following the clarification of the option of a claim for deceit in this case, then we may see more of these cases.

If you would like to make an appointment to see any Simon, Gail, Adam, Sue or Tricia to discuss any aspect of family law, please get in touch on 01223 443333.