10 July 2012, by Taylor King Family Law Solicitors
The Court of Appeal has dismissed an appeal by Dr Zaid al-Saffar, a hospital consultant and head of Scarborough Islamic Society, to overturn an order within divorce proceedings that he pay his former wife maintenance. Lord Justice Ward ruled that believing that maintenance payments were contrary to Islamic culture was no defence to orders made in English divorce courts.
In Sharia tradition Mrs al-Saffar, by accepting a dowry or Mahr, had forfeited her half interest in the former matrimonial home. It is also often accepted that the divorced wife will be supported by her family rather than receive maintenance payments from her former spouse.
This case has confirmed that English law will be applied in every divorce case in England and Wales. If there is a conflict between the two laws English law will take precedence. Blackburn MP Jack Straw said that “Dr al-Saffar was ill-advised to rely on Sharia law. There is only one law of the land which applies to everyone.”
However, it is still possible to incorporate Sharia law principles into a matrimonial settlement and the courts are willing to take cultural and religious considerations into account. This should not be assumed though and it is important to take legal advice.
09 July 2012, by Taylor King Family Law Solicitors
In response to the Family Justice Review the Government has announced its intention to introduce a legislative presumption of shared parenting after separation.
Section 1 of the Children Act 1989 states that the welfare of the child is paramount and sets out a list of circumstances the court should have when making decisions about the child. Whilst continuing involvement with both parents is not contained on that list is can be inferred from some of the others.
A consultation has now been opened on co-operative parenting and implementing the proposed legislative change. The consultation will consider how best to amend the Children Act 1989 to reinforce the principle of shared parenting. It states that the emphasis will be put on mediation but if cases do proceed to court it is intended that a ‘Child Arrangements Order’ will replace existing residence contact orders.
The Government’s intention is to reinforce the expectation that both parents are responsible for their child’s upbringing.
The proposals include providing that the starting point for courts in making decisions for children’s care should be that a child’s welfare is likely to be furthered through involvement with both parents. It also suggests that an additional element should be added to the welfare checklist so that a child’s interest in retaining a relationship with both parents is considered.
The Government, however, wants to make it clear that the aim of these proposals is not about imposing equality of time but encouraging parents to resolve disputes and agree care arrangements without the assistance of the court.
The publication of the consultation paper has however drawn criticisms with views of some practitioners being that the proposed changes will lead to confusion, raise unrealistic expectations, possibly promote parents’ rights over the best interests of the child and lead to an increase in litigation.