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

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

 

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.

Divorce Fee Increase

11 March 2016, by Taylor King Family Law Solicitors

We reported in July that the Ministry of Justice had plans to increase the court fee for issuing divorce petitions. It was announced on 17th March that as from 21st March 2016 the court fee for issuing divorce, dissolution and nullity petitions will increase by more than a third from £410 to £550. It is normal for fee increases to be announced only a couple of days before implementation to avoid any last minute rush to issue proceedings to utilise the lower fee.

At the moment this has been the only court fee relevant to family law proceedings to have been increased and full or partial fee remissions are still available for those on a low income or benefits.

Muslim Marriage and Divorce in Britain

25 February 2016, by Taylor King Family Law Solicitors

The Muslim Woman’s Network (MWNUK) has published guidance on Muslim marriage and divorce in the UK.

The report is aimed at Muslim woman so that they are better informed about their rights and practices relating to marriage and divorce. MWNUK promotes the registration of Muslim marriages, i.e. having an additional civil marriage, so that a union is valid under English law.

The guidance includes real case studies and covers commonly asked questions such as seeking permission of parents, marrying outside of their faith, valid and invalid marriage and barriers that Muslim woman face when there are trying to get divorced.

The report can be found here [http://www.mwnuk.co.uk//go_files/resources/MWNU%20Marriage_Divorce%20Report_WEB2.pdf].

When a Petitioner Will Not Apply for the Decree Absolute

11 January 2016, by Taylor King Family Law Solicitors

For whatever reason, a respondent in divorce may be faced with a spouse who will not apply for the decree nisi to be made absolute and therefore bring their marriage to an end.

In those circumstances there are options available to the respondent: Read more →