Family Law Blog

Defective Divorces – Mistakes by the court lead to couples entering into bigamous marriages

05 April 2018, by Taylor King Family Law Solicitors

Under The Matrimonial Causes Act 1973, s.3 states the following;

‘Bar on petitions for divorce within one year of marriage.
(1) No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage.
(2) Nothing in this section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period.’

The question that follows is how are divorces being granted when the parties have been married less than a clear year?

The President of the family division Sir James Munby has revealed that because of failures by divorce court staff defective divorces have been processed and parties have wrongly been granted a divorce that breached the time limits imposed.

Past cases such as Woolfenden v Woolfenden [1948] and Butler v Butler, confirm that petitions in breach s.3 are invalid and any Decree Nisi or Absolute granted is null and void. As you can imagine this is not ideal for the those who have since re-married, and unknowingly have committed bigamy. Their new marriage is invalid because they were still married.

Court fees will be waived  for those who find themselves with defective divorces. Munby J states that the courts will ‘need to be alert to the potentially devastating impact’ once parties are  informed that there is a ‘problem’ with their divorce.

Munby J has placed his faith and assurances in the courts and their software to prevent such errors from occurring in the future.

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk

Inheritance – Will my spouse be entitled to half my inheritance?

05 February 2018, by Taylor King Family Law Solicitors

Clients often ask what will happen to their inheritance when they get divorced.

In general, all matrimonial assets are pooled and treated as joint assets. Money or property inherited is not automatically excluded.

Each case is treated differently and depends on its individual facts. The court will take into account the following;

  1. Worthy inherited assets transferred into joint names or used for the benefit of the couple e.g. improvements to the family home.

In this case they will be treated as marital assets.

  1. When was the inheritance received?

If it was shortly before the breakdown of the marriage it is less likely to be included in the marital assets.

  1. How was it treated during the marriage? did the beneficiary ring fence the inheritance and treat it as their separate property.
  2. How large was the inheritance in the context of the total marital assets?
  3. The needs of the family, in particular the children. If the matrimonial assets are insufficient to meet these needs, then the court will take into account inherited property to satisfy them.

Future inheritances.

In the case of Alireza v Radwan the wife was entitled to a prospective inheritance from her wealthy Saudi Arabian father because of forced heirship i.e. she would receive a share of his estate upon his death. This was regarded by the court as a financial resource.

In most cases, future inheritances are not taken into account because if uncertainty. However, if one of the parties is likely to inherit in the immediate future e.g. on the death of a terminally ill relative, the court may adjourn the financial application until the inheritance has been received.

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk

Benefit of early legal advice

08 November 2017, by Taylor King Family Law Solicitors

A report by Ipsos Mori commissioned by the Law Society, showed a link between getting early legal advice and resolving problems. The vice president of the Law Society stated that without early advice, relatively minor legal problems can escalate. The research showed that one in four people who received early legal advice had resolved their problem within three to four months as against nine months for those without legal advice. Early legal advice was defined as within three months.

If you are contemplating separation or have separated form your partner give us a call. We provide free legal advice over the telephone and can advise you of your rights and options. If you want a face to face appointment, then you can have a fixed-fee interview of up to one hour at a cost of £75 plus VAT.

Importance of a financial consent order

25 August 2017, by Taylor King Family Law Solicitors

Many divorcing couples agree their financial arrangements, but do not have it recorded in a financial order.

Mr & Mrs Briers divorced in 2005, at that time Mr Briers transferred to his wife the former matrimonial home, mortgage free which was worth approximately £700,000. The husband retained his clothes business, which he had set up in the family garage. Both parties were teachers at the time.

In 2013 Mrs Briers applied for a financial remedy order, in the interim Mr Briers had transformed his business which then had a turnover of £30 million. Mrs Briers had continued working as a teacher and looking after the children.

Mr Briers argued that there was a verbal agreement in 2005 which prevented his wife from making a claim.

The court of appeal found that there was no agreement. They said that the wife has contributed after the divorce to the family by looking after the children and she was ordered one third of her husband’s wealth.

We advise separating clients that they should not make payments to their spouses, divide assets or transfer property, without a final consent order in place.

Recently we have noted a rise in the number of ‘spouses’ coming back for a second bite of the financial cherry after they have received a lump sum or the transfer of the family home. In one case this was 14 years  after the wife had received all the net proceeds of sale of the family home upon separation.

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk

Division of assets in short marriages

28 July 2017, by Taylor King Family Law Solicitors

The recent case of Sharp v Sharp has shed some light on the division of assets, following a short marriage were there were no children. Mr and Mrs Sharp married in 2009 after co-habiting for 18 months. Divorce proceedings were commenced at the end of 2016.

Both parties initially had similar earnings of approximately £100,000 per annum, but during the marriage Mrs Sharp received discretionary bonuses totalling 10.5 million.

The total assets for distribution on divorce were 6.9 million. The judge at first instance did not find that there was a reason to depart from an equal division of the assets, nor did he allow a discount simply because it was a husband making a claim against a wife.

Mrs Sharp appealed and the Court of Appeal were prepared to depart from the yardstick of equality and Mr Sharp did not receive 50% of the marital assets.

The court found;

  1. This was a short marriage, even though the parties had been together including the period of cohabitation for seven and a half years.
  2. There were no children.
  3. Mrs Sharp’s bonuses were way beyond the level of her previous earnings and were as a result of her employment without any contribution from her husband.
  4. Mr and Mrs Sharp had managed their finances separately.
  5. Mr Sharp had not contributed more to the home life ( the courts do not distinguish between the breadwinner and the homemaker).

The Court of Appeal did state, that a departure from equality would only be justified in a small number of cases.

However the message is clear that couples who divorce after a short marriage can no longer expect to have martial assets divided equally, especially where there are no children and finances have been kept separate.

If the facts had been reversed and Mr Sharp had received the bonuses, would the court have reached a different conclusion about the division of the assets?

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk

Contributions in Matrimonial Settlement

22 June 2017, by Taylor King Family Law Solicitors

In dividing the assets on divorce, those acquired during the marriage are shared equally unless there is a good reason for departure. This is called the sharing principle.

In the case of Gray v Work, Mr Work the husband, sought a larger share of the assets on the basis of the amount of wealth he had generated during the marriage. he asked the court that this wealth should be generated as a “special contribution”. The husband sought 61% of the assets on the basis that he had generated 225 million dollars.

The court of appeal confirmed the following, if there was to be a departure from equality;

  • The contribution had to be wholly exceptional, so that it would be inconsistent with the objective of achieving fairness.
  • Exceptional earning were a relevant factor
  • The disparity in contributions was relevant to the welfare of the family.
  • There is no discrimination against the homemaker.
  • The special contribution must be unmatched by the other party.
  • The amount of wealth may be so extraordinary as to be exceptional.
  • There is no threshold.

The husband’s appeal against an equal share of the assets was dismissed. This case shows how difficult it is to argue a departure from equality in relation to assets acquired during the marriage.

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk

 

Child arrangements on separation – Shared Care

24 May 2017, by Taylor King Family Law Solicitors

When parents separate, whether after marriage or cohabitation, it is always best to keep things as amicable as possible.   The court encourages this approach and takes the view that unless it is unsafe to do so then it is best for children to spend time with each of their parents. This does not have to mean an equal division of time, which often does not meet a child’s needs, but can mean any manner of divisions, varying from weekends to 50/50 arrangements.

In England and Wales under current law, where the parents can agree arrangements, the Court will generally not interfere as the view taken by them is that parents are the best people to decide what is in their children’s best interests.  The Court will only make an Order in relation to the children’s care if it is satisfied doing so would be better for the children than making no order at all.

It has often been mistaken in the past that when families separate the children always remain with their mother.  This is not the case and if parties are unable to agree matters amicably, the court’s paramount concern will be the children’s welfare and what is in their best interests.  This might mean the children living with their father and the court can consider a variety of options, including sharing the residence of the children.

Sharing the care of the children means that the children alternate their periods of residence between two or more homes.   Whether this works in practice will depend on the individual circumstances but it can be an attractive option to parties where it might not be appropriate or best for the children to reside only with one parent.  The effect of sharing care under a court order will also put the parents on an equal footing.  Shared care does not have to equate to equal time spent in each home but the time should be significant.  The court will be reluctant to make such orders if the arrangements are more akin to living in one home and, for example, children spending time with the non-resident parent once a week.

Where possible, we aim to resolve family disputes, particularly those involving children, in an amicable way, and consider alternatives to litigation in the first instance.  We recognise that following a separation, emotions can be high.  Where children are involved, however, relationships need to be maintained to allow for communications between the parents long after any proceedings have concluded.  As a result, we consider with our clients whether their case is suitable for mediation, we encourage parents to attend family mediation. At mediation they can come to a decision about the suitable arrangements for their children. If court proceedings are issued, then a judge will take that decision.

Unless there are issues of domestic violence, the parents are required to attend family mediation and an application for a child arrangement order can only be applied for after the mediator has confirmed that it is not a suitable case for mediation.

If there have been problems in the past with regard to the breakdown of arrangements for the children and the parents having reached an agreement want it incorporated into an order, the court has jurisdiction to make a consent order.

The court can make a shared care order in circumstances where the children spend considerably more time with one parent than the other. In essence, the parents are accepting a joint commitment to their children.

If you are experiencing problems with the arrangements for your children, or would just like to find out more information about the issues raised above, please contact   Nicola Dunkerley. Please call 0161 883 0460 or email Nicola.dunkerley@taylorking.co.uk  for further information.

Who or what is Cafcass?

23 March 2017, by Taylor King Family Law Solicitors

CAFCASS stands for the Children and Family Court Advisory and Support Service. It is separate from the court service and provides expertise to the court when required.

When an application is made to the court for a child arrangement or other order in respect of a child or children, CAFCASS will initially undertake safeguarding checks on the parents with social services and the police. These enquiries are to ascertain whether or not the parents have criminal convictions, are on the sex offenders list, there are issues of domestic violence and any involvement of social services in the lives of the children. CAFCASS will speak to the parents over the telephone to determine the reason for the application and write a short report.

At the first hearing called a FDHRA, a CAFCASS officer will meet both parents at court to discuss the case and make recommendations to the court. If issues arise which affect the welfare of the child/children, the court can order CAFCASS to create a report.

The recommendations of CAFCASS will have a significant influence on the eventual outcome of the case. Parents often accept the recommendations in the report.

The CAFCASS officer is appointed by the court. Parents are often unhappy about the conclusions in the report. It is not possible to change the appointed CAFCASS officer, however, if a parent has serious concerns then they can make a complaint against the officer using the CAFCASS complaints procedure.

In a limited number of cases, after concerns have been raised, either CAFCASS or the court will appoint a new CAFCASS officer.

The court is under no obligation to follow the recommendations of the CAFCASS officer in their report. It is a matter of judicial discretion. The overriding consideration is what is in the best interests of the child/children.

A parent can ask the court to order the author of the CAFCASS report to attend to give evidence. At the hearing, the CAFCASS officer will be cross-examined. If the cross-examination raises concerns about short comings in the report, the court may be influenced to go against the proposals of the CAFCASS officer.

We acted in behalf of a father seeking contact with his son. The original recommendation of the CAFCASS officer was that he should not have direct contact with the child. This recommendation had been made on the basis of allegations made by the mother against the father which were totally unfounded.  This was later confirmed after a fact-finding hearing. The CAFCASS officer was removed from the case.

If you are experiencing problems with the arrangements for your children, or would just like to find out more information about the issues raised above, please contact   Nicola Dunkerley. Please call 0161 883 0460 or email Nicola.dunkerley@taylorking.co.uk  for further information.

Who pays for the cost of a divorce?

24 January 2017, by Taylor King Family Law Solicitors

The Petitioner (the person who issues the divorce petition) irrespective of who was responsible for the breakdown of the marriage, can ask that an order for costs be made against the Respondent.

When receiving a draft/ sealed petition, the Respondent is often surprised that a costs claim is being made against them. Costs claims are very common. These costs will include; the cost of the preparation of the divorce petition, application for decree nisi and application for decree absolute, together with the court fees of £550.

There are various different costs claims that the Petitioner can make and these are as follows:-

  1. A full costs claim (i.e. asking the court to require your spouse to pay all of your costs);
  2. No claim for costs (i.e. accepting that you will pay for all your costs yourself);
  3. No claim costs for provided your spouse does not defend the petition; or
  4. Restricting the claim for costs to a specific figure – this figure could be only the court fee of £550 or half of the total costs of divorce – you are able to choose.

Costs orders are normally made where the grounds for divorce are unreasonable behaviour or adultery.

We normally advise our clients to seek a costs order so that we can negotiate with the other side once the proceedings have been issued. On the other hand if the Petitioner is anxious for the divorce to proceed unopposed, the claim for costs is only sought if the proceedings are undefended. This often encourages the Respondent to return the acknowledgement of service more quickly.

It is important to be aware that the claim for costs is only in relation to divorce proceedings and not financial matters. Each party will be expected to cover their own costs relating to financial issues, disclosure and settlement.

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk

No fault Divorce Bill

05 April 2016, by Taylor King Family Law Solicitors

The Private Members’ No Fault Divorce Bill will be presented again in the next session of Parliament which commences on 18th May 2016. It was expected to have its second reading debate in March however, the motion was not moved and there are no available days left before the end of the current parliamentary session in which it can have its second reading.

The Bill makes provision for the dissolution of marriage or civil partnership when both spouses separately make a declaration that their marriage or civil partnership has irretrievably broken down. There is no requirement to prove any other facts unlike the current divorce procedure which requires proof of either adultery (not available for same sex marriage or civil partnerships), unreasonable behaviour, desertion or separation for two or five years.