Parents: be involved, be responsible

From today, new legislation comes into effect that is intended to affect the way courts will look at how children of separated parents divide their time.

So for cases starting on or after today in the family court, there is a new presumption which judges must apply: that the involvement of both parents in the life of the child concerned will further their welfare, provided there are no safety concerns. “Involvement” in this context means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. It is most definitely not a presumption for a 50/50 split of childcare or of shared residence. The Ministry of Justice says that the change will encourage parents to be more focused on children’s needs following separation and the role they each play in the child’s life. We hope so.

The change is being brought about by the coming into force of section 11 of the Children and Families Act 2014 (which also deals with a whole range of changes to the private and public spheres of family law – we wrote about it here).

In practice, the change “on the ground” may not be huge, as judges are already well aware that by and large children benefit from having meaningful relationships with both their parents, and the welfare of children has been the court’s paramount concern for decades. Where parents are working out the arrangements for their children after their separation without involvement of the local authority, it is only in extreme circumstances that parents are excluded from their child’s life. So whilst the legislative presumption can be seen as a statement of intent and policy, it may not herald a sea change in the way judges deal with cases.

It is interesting that the one other presumption used in children cases is that of non-intervention, known as the no-order principle. This means that the court should not intervene unless it is in the best interests of the child for it to do so. So it will only make a child arrangements order, or specific issue/prohibited steps order, if the interests of the child require it. Where parents are able to agree arrangements for their children after separation, the court will only rarely make an order, if it considers that the children (not the parents!) are better off with one than without.

So the law about private family arrangements for children now contains a couple of presumptions. It has long been the case that a common sense, child centred approach is the norm when judges have to deal with these disputes. Courts, and indeed lawyers and mediators, often have to remind parents that they do not have “rights over” their children, and that the welfare of the children is paramount.

Common sense took precedence in a recent case, where the President of the family Division, Sir James Munby, made it clear that court resources should not be used to micro-manage parental disputes over the minutiae of childcare arrangements, and that parents must be expected to act with maturity and responsibility concerning their children.

The case serves as a sad reminder of the effect of parental conflict and the inability to work together on children. The boy in this case was only 6 years old and his parents had been litigating bitterly for 4 and a half years. They could not agree on anything, even which platform of Clapham Junction railway station they should use to pass the little boy between them for visits. The court sensibly refused to be drawn into which platform, ticket office or other place should be used, saying that it was a waste of court time to decide such things when mature adults should be able to sort that out themselves. These parents also brought to court a fundamental disagreement on the type of dental treatment their son should have, and the President refused to decide on which parent’s preferred treatment should be allowed to go ahead. He said that to do so would set a precedent for the child’s life with every future disagreement over medical treatment being aired before the court. The parents were left without a judicial decision on dental treatment, meaning that they would have to sort it out themselves. This judgment is a warning to these parents, and to other parents who disagree on everything and try to litigate everything, ignoring the effects their never-ending conflict will have on their child.

This strong decision from the leading judge of the family court may signal a move towards the court refusing to be drawn into arbitrating minor matters of dispute, and limiting itself to more important questions relating to children. That will be a positive step, provided that couples can find other ways of resolving these matters. Mediation and collaborative law can be powerful, less stressful alternatives to court proceedings that enable lasting decisions to be made on the basis of welfare of the children, also taking into account the practical considerations of the adults. They can be used at any point in a dispute; although it is never too late to try, it is rarely too early, either.

If you would like to talk to any of us about any aspect of family law, please get in touch to make an appointment. You can reach us on 01223 443333.

Feeling the need

“Will I be able to manage financially after we divorce?”  “Can I afford a house for myself and the children?”  “How can we afford to live?”  “Will I have to watch every penny?”  These are the sorts of questions which worry most people going through divorce or dissolution.

The principles that guide how judges make decisions in financial divorce and dissolution disputes include the concepts of needs, sharing the fruits of the marital partnership and compensation for lost earnings.  The needs of each person in the family, especially those of the children, will be the most important consideration in the vast majority of cases.  “Needs” can be a trump card which defeats arguments for things like keeping inheritances intact, or for pre-owned assets being excluded from being shared out.  As the needs of the family often dominate cases even where the assets may extend to several million pounds, we thought a look at what exactly amounts to “needs” would be useful.

There are two broad types of need when assessing who should have what proportion of the assets in divorce: capital and income.

Capital needs tend to be for one-off items, and can be satisfied by a lump sum in most cases.  They include needs for housing, furnishing costs, purchasing cars and clearing debts.  Income needs are based on what a household requires to meet ongoing, regular expenditure such as mortgage payments or rent, utility bills, food, clothes and other essentials.

So far, straightforward.  However the problems come when trying to assess, objectively, what someone actually needs.  The House of Lords (now the Supreme Court) has made it clear that needs should be “generously interpreted” where it is possible to be generous.  In big money cases, there have been some interesting outcomes.  For example, in 2011 a husband failed to convince the Court of Appeal to overturn an award to the wife , where she had only one of the couple’s five children still living at home with her, but was found to need a 9 bedroom house worth £2m, plus £75,000 to renovate the property, a further £1.65m lump sum and £75,000 a year in child maintenance.  You can imagine the headlines, but on closer inspection this was in the context of an overall asset pool of £12million and a very long marriage where the family (who had five children in all) had enjoyed a very high standard of living throughout.

Where does this leave those of us without millions in the bank, or elsewhere, when trying to meet needs?  Often there is no room for needs to be “generously interpreted” and more frugality is required from everyone when a marriage or civil partnership ends. The common problem is that one household does not transform into two separate households without some financial tightening of belts and moderation of expectations.

In order for everyone to work out what is fair and what each element of the family needs, both spouses have to set out a summary of their capital and income needs as part of the preparation to make a decision, or ask the court to make one.  This is part of financial disclosure.

On the capital side, if you are going to have to move house, this is likely to involve obtaining information about house prices for properties which would be appropriate.  If funds are tight, you might have to face a shift down in terms of size or quality of property.  A judge will agree that children need four walls and a roof over their heads, but may not agree that the family need a spare bedroom or a detached garage, especially if this impacts on the other parent’s ability to care for the children.  There is also the question of each spouse’s borrowing capacity, to assess how a property purchase can be funded – if you have a mortgage capacity of £X, and a property will cost £Y, then you may have an argument that you need £Z to make up the shortfall.  This is part of the exercise of the process of balancing needs against resources with which your lawyer can help you.

For income needs, you should draw up a list of what you spend each month – a ‘budget’.  This can entail a rather painful and longwinded trawl through bank statements and bills to see exactly what is being spent on utilities, household expenditure, travel costs, clothes, entertainment, children’s activities etc.  It’s an essential part of working out what you actually need to live on, before it is possible to examine how and whether those needs are going to be met from the available resources.  It is possible that some of your spending may not be ‘needed’ in strict legal terms – for example satellite television subscriptions, gym memberships, or foreign holidays, but much depends on the standard of living enjoyed by the family before the separation and what’s available to satisfy the needs set out.

Where there simply isn’t enough to go round, a judge may give only scant regard to what the parties claim their needs are, and simply divide up what limited income and assets there are, leaving both parties to cut their cloth accordingly.  In others, where income is greater, things may legitimately be claimed as needs which would be excluded as luxuries from other cases.

Needs are subjective and vary from family to family.  Where finances do not permit two household to be run at the spending level of the former shared home, needs will come under scrutiny and be pared down to essentials, rather than the “generous interpretation” used in the big money cases.

If you would like to talk to us about needs or any aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam (or, from next month, Tricia!).

The Dishonest Dottore and her Dodgy Divorces

A “conspiracy to pervert the course of justice on an almost industrial scale”. This is not the usual phrase to be found in the opening paragraph of a family law judgment, but then the case of Rapisarda v Colladon was not a usual case. It is quite a story, and one that reveals a fair amount about the workings of the family courts in this country.

First we need to introduce you to the Queen’s Proctor (or King’s Proctor in times of male monarchs). This is the person who represents the Crown in the probate and divorce courts. The Queen’s Proctor may intervene in a divorce suit for the purpose of arguing any question that the court deems expedient, including arguing against a decree nisi being made absolute. He (or she) is most usually involved on receipt of information suggesting that the court has been misled into granting a decree, as was the case here. The issues first came to light earlier this year when the question of whether the saga could be made public was answered in the positive by the President of the Family Division, and the judgment was finally released last week.

In February 2012 an eagle eyed member of court staff at Burnley County Court spotted that two divorces, both involving Italian parties, referred to the same address in Maidenhead, Berkshire. The situation was unusual enough for her to raise the issue with the judge, who thought it was worthy of a little further investigation. When the court looked into it, the address turned out to be a mailbox at a business premises rather than a residential property, and the police became involved.

The police investigation revealed that 179 divorce petitions had been issued in 137 different courts right across the country all using that same address in Maidenhead, with one further petition using a different address. A firm of solicitors in Reading had been unwittingly drawn into the case as their name was used without their knowledge on the affidavits apparently sworn in support of the 180 petitions. It was clear that nobody lived at the mailbox address, meaning the basis of the English court’s jurisdiction over these Italian nationals could not be proven.

The Queen’s Proctor argued that in all 180 cases the divorce proceedings were fraudulent from beginning to end. He argued that each of the divorce decrees, whether nisi or absolute, had been procured by fraudulently claiming that one party or the other was resident in England and Wales when this was not the case, and forging the paperwork.

Behind all these dodgy divorces was someone calling herself Dr Frederica Russo, whom it seemed was attempting to procure English divorces for Italian clients on the false basis of one or other party living here (at the mailbox in Maidenhead). She charged a minimum of €3,750 per couple. The paperwork was either forged or amounted to perjury, with fake affidavits and lies about residence.

In all 180 cases neither party was habitually resident in England, so the court had no jurisdiction to entertain any of the petitions. Where decrees had been pronounced, they had been obtained by fraud perpetrated on the court. So, the President dismissed the petitions which had been presented to court but not yet reached decree nisi stage. In the cases where there had been a decree nisi or a decree absolute pronounced, the decrees were set aside as being void for fraud. This left all 180 couples still married. He made it clear that the fact that one or both parties may have remarried, or even subsequently had a child (as had happened in one case) made no difference to his decision. This leaves some of them in quite a fix.

All of the petitions were based on the parties having apparently been separated for two years and with them both consenting to the divorce. Although not clear from the judgement it seems that the reason for all these Italian couples wanting to use the English courts to obtain a divorce is the requirement under Italian law for a couple to have been separated for 3 years before they can divorce. Also a divorce validly obtained in one country will be recognised in another, so an English divorce is just as effective in Italy as an Italian one, as long as it has been properly obtained.

One of the reasons why the conspiracy was able to go on for so long without being detected is that a petition can be filed in any divorce county court (now the family court) irrespective of the address of either party. So “Dr Russo” spread the divorce petitions widely across a large number of courts, all of whom seemed to have jurisdiction to accept them. There is presently no legal reason why someone living in Maidenhead cannot issue a petition in Llandudno. However, it seems that this facility will soon be curtailed. Handling of divorce petitions will soon be centralised and to quote from the judgment “by this time next year there will be fewer than twenty, possibly as few as a dozen, places at which a divorce petition can be issued.” So one hopes that the courts will not be subject to anything similar in future.

If you would like to talk to us about any aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam (or, from next month, Tricia).

Translating Big Money principles in Divorce

It is one of the great ironies of family law that the divorce cases that hit the headlines and the law reports are by and large those where the family is very wealthy and can afford to pay the costs of litigating their case through the final hearing, and then onwards through to the Court of Appeal when someone alleges an error in the initial judge’s treatment of the case. In our common law tradition, where judicial decisions of the higher courts become binding precedents, the big money cases affect how judges decide the outcome of the cases of the vast majority who don’t have those limitless resources, and how we as lawyers inform and advise our clients. So how do the principles devised when dissecting the lifestyles of the rich and famous filter down to apply where there’s not quite enough to permit the comfortable forging of two homes from one?

It is worth mentioning to start with that there is a list of factors set out in an Act of parliament that judges must consider when dealing with financial division on divorce. These are known as the “Section 25 factors” for they are set out in s.25 of the Matrimonial Causes Act 1973, and for civil partnerships the list is set out in Schedule 5 to the Civil Partnership Act 2004. You can download our factsheet about those statutory principles here. The factors are such fundamental matters as the needs of both parties and their resources, their ages and the length of the marriage, and any disabilities. The first consideration is always the welfare of any children.

It was only relatively recently in legal terms (in 2000) that the idea of fairness and equality was introduced to family law with the landmark decision in White v White, which enshrined the procedure of measuring a proposed financial distribution against ‘the yardstick of equality’. Then in 2006 in the headline grabbing House of Lords case of Miller; MacFarlane, the law lords declared that the overarching objective of a fair outcome required the court to consider three principles in addition to the statutory factors: the parties’ relationship-generated needs (generously interpreted), compensation for relationship-generated disadvantage and sharing of the financial fruits of the relationship. These have been abbreviated in every day family lawyers’ usage to “needs, sharing and compensation”.

We will look in detail at what amount to “needs” in a future blog (coming soon!), but of the principles arising from case law, it is naturally the one which dominates most cases, as even at fairly high asset and income levels it can be difficult to divide one household into two while retaining a similar standard of living. The question is what do the adults and the children need, and how can this be achieved from available resources? In most cases needs are established by looking at what it will cost to house the parents and the children, and the requirements of an income stream to meet essential outgoings on each home. Often there is no room for needs to be “generously interpreted”; the children’s need for a secure home tends to have to come first, and the rest falls into place where it can.

Sharing of the assets is what tends to happen when each person’s needs can be met, so in reality it is only relevant when there is more than enough to go round, although this tends to happen more often when there are no children to consider. In big-money cases, this tends to become the battleground where each ex-spouse gives reasons why they should have more of what’s left than the other – perhaps, because of non-matrimonial property, which is less easily divided as part of the financial settlement. “Matrimonial property” tends to cover the family home and anything acquired during the marriage. “Non-matrimonial property” covers things owned before the couple got together and gifts or inheritances received by one or other of them during the marriage. In a short marriage it may be that matrimonial property is divided equally, but each party keeps their own non-matrimonial property. The longer the marriage, the more blurred the distinction becomes, and when a case is all about needs, then judges may put everything into the proverbial pot so that roofs can be put over the family’s heads.

Concepts such as “relationship generated disadvantage” and “compensation”, where the stay-at-home parent‘s career has been curtailed by the duties of running the home and caring for the children, are rarely applied in practice as there are rather narrow criteria to fulfil.

In many cases, the principles that emanate from the higher courts when dividing assets on divorce, despite their memorable labels, are of little relevance to the couple involved. What a court is striving to achieve in all cases is “fairness”. That may require one party to be kept out of his or her share of the assets until the children have left home, or both parties moving into much smaller properties than they are used to, or dipping into one party’s inheritance to adjust the capital more evenly. Where trusts or companies hold the bulk of the wealth used by the family, lawyers and the courts often have to be very creative to find a way to get to a solution that might be seen as fair by an impartial observer. At higher asset levels and when matters get international, they are often very complex in legal terms.

So whilst the principles and bons mots handed down by the best legal brains in the biggest money cases can be helpful reading for judges across the country, their aim remains achieving fairness through a pragmatic approach to the case in front of them. All cases turn on their own facts, but in most instances, needs and resources are the important factors.

If you would like to talk to us about any aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam. Or from November, our new partner Tricia Ashton!