When people, usually parents, involve the courts in relation to their children, Cafcass are automatically involved. Initially, their role is akin to triaging cases to identify those where the children are potentially at risk and in which they need to become more involved. Cafacss are also involved in cases initiated by the Local Authority where their concerns for a child’s safety trigger legal action independently of the parents.
Children do not appear in court in cases that relate to them. Children younger than 12 can have their ‘apparent’ wishes and feelings taken into consideration, as reported to the court by Cafcass. Very often it is reported that children display a clear sense of loyalty to both parents and feel torn. After that age, they are considered (potentially) mature enough to able to express their views clearly enough for the court to place more weight on them but again this is always through the reports of the Cafcass officer. Conveying a child’s wishes and feelings, in such a highly sensitive court process, is as difficult as it sounds.
It is widely considered by many judges and lawyers that hearing from children directly in cases would provide them with the voice that some crave, unfiltered by other professionals. Many children feel excluded from cases that will affect their lives fundamentally. Some argue that this exclusion may be seen as a breach of their human rights.
Since 2010 a working group of senior judges had investigated how it might be possible for children to be heard in court cases. Liberal Democrat Simon Hughes, who was then Justice Minister, promised to change government policy. But earlier this year the Ministry of Justice admitted that the plan had been shelved.
In a recent interview with the BBC’s Today programme on Radio 4, Lord Justice Jackson discussed allowing some children to meet the judge. He was clear that it would not be suitable for all children. Indeed, all cases involving children have focused always on the child, and if meeting the judge would be harmful, it should not happen:
The phrase ‘domestic abuse’ is very widely defined and is not limited to physical abuse. It can include psychological, social, financial or emotional abuse and includes forced marriages or abandonment, coercive and/or controlling behaviour and ill treatment.
The Court will consider any form of domestic abuse as being potentially harmful to the child and/or where it puts a child at the risk of harm. This can include not only domestic violence directed at the child, but circumstances where the child witnesses one or both of their parents being violent or abusive to the other.
Children may also suffer direct physical or psychological and/or emotional harm living with parents who have a history of domestic abuse.
The Family Court will seek to identify any such issues at the outset of proceedings and ensure that any application made under the Children Act 1989 by a parent is conducted in such a manner as to ensure that a child is safe from exposure to such abuse.
The Court will typically not make any order before an initial ‘Welfare Report’ has been carried out. This is usually done by the reporter speaking to both parents and checking for any criminal record or past involvement of Social Services.
In the case of Hart v Hart, His Honour Judge Wildblood QC awarded Karen Hart just £3.5m out of the total assets amounting to just under £9.4m in a financial remedy order made in June 2015. This unusual ruling wasn’t as a result of a ‘short, sharp’ marriage as documented previously, as the couple’s marriage spanned 23 years.
Karen Hart’s solicitor said the settlement 'should have been based on an equal sharing of the assets they created between them during this time', and the recent ruling 'leaves the law in a state of flux. It allows a trial judge to find that even where it is not properly evidenced, the financial contribution of one spouse outweighs the family and domestic contribution of the other. This can lead to a result that is unfair and discriminatory, as it has done in this case. More such results are likely to follow, with the potential to set the law back more than 20 years'.
Regardless of whether this latest ruling will indeed set a precedent for financial remedy cases moving forward, it will no doubt make couples who are looking to wed in the near future think about their financial assets, and how best to allocate them should the worst occur by drafting up a prenuptial agreement.
Mrs Owens originally petitioned for divorce against her husband of 37 years on the basis of his unreasonable behaviour. Under the law in England and Wales, a petition on this basis is one of only two ways separating couples can commence divorce proceedings immediately. Mr Owens defended the proceedings which in itself is somewhat unusual.
Multiple court hearings have since followed and the court have found, to date, that the examples of unreasonable behaviour Mrs Owens included within her divorce petition are not enough to satisfy the threshold, trapping her in what she calls “a loveless marriage”. The Court of Appeal found that "Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be."
There is current debate surrounding whether there should be legislation to allow separating couples to divorce immediately on a ‘no fault basis’. The idea is that this would enable couples to engage in the divorce process on a more amicable, less confrontational basis and would hopefully avoid the type of litigation Mr & Mrs Owens have had to endure.
The case demonstrates that it is vital to seek legal advice at the outset of separation to ensure that unnecessary, costly and stressful litigation can be avoided.
Mr and Mrs Sharp were married for four years. They had no children together and both worked full-time earning approximately £100,000 per year each. Mrs Sharp, however, did receive significant bonuses amounting to over £10 million during the marriage. Throughout the course of their marriage, the couple kept their finances separate, although they did purchase property together and shared in the costs of acquiring and refurbishing those properties.
Upon Mrs Sharp finding out Mr Sharp was having an affair in 2013, she issued divorce proceedings and the financial elements of those proceedings were initially determined by the court in November 2015. The Judge decided that Mr Sharp was entitled to exactly half of the matrimonial pot, which amounted to £2.75 million. This decision was very much in line with the long-established sharing principle upon divorce. Mrs Sharp appealed that decision and argued that the equal sharing of the matrimonial assets, which were mostly built up by her, was unfair.
The Court of Appeal have recently found in Mrs Sharp’s favour and decreased the award to Mr Sharp to £2million, which is less than 50% of the matrimonial pot. This decision is a significant departure from the long-established principle of splitting the matrimonial assets down the middle upon divorce, despite the length of the marriage.
Lord Justice McFarlane, one of the three Appeal Court Judges, found that in this case there was no impediment to depart from the established principle of equal division and he concluded that in a short, dual career marriage in which the couple had kept their finances separate, it was indeed justified.
This decision creates further uncertainty in the law and conflicts with the general principle of an equal split upon divorce. This case concentrates on the fairness of the outcome in the circumstances of this couple’s situation and clearly reflects the position that the courts will not apply an automatic split down the middle in every case and that the couple’s circumstances must be considered in each and every case.
The experiment was initially piloted at a divorce centre in Southampton, and its launch is expected to save family solicitors weeks of delays in future cases. In a letter published this week, family division president Sir James Munby and HM Courts & Tribunals Service deputy chief executive Kevin Sadler said that the pilot had accomplished its purpose of introducing a more streamlined process to divorce proceedings, reducing the delays experienced by court users as files are transferred between courts by up to two weeks.
Presently, if a contested financial application is made by one or both parties, the whole proceedings are transferred to a local court. The pilot in question administratively unlinks financial proceedings from divorce so that the main divorce proceedings remain in the specialist centre, whilst staff and judiciary at the local hearing centres worked separately on the contested financial proceedings. Other matters such as consent applications remained at the divorce centres.
A separate financial remedy file is then created at the local hearing centre, holding the same case number as the divorce proceedings. Many family solicitors are hailing this new approach as more effective and speedy than before.
Family law group Resolution also welcomed the news; they stated “Any steps that reduce delay and make the administration of family proceedings more efficient must be encouraged. This is just one example of how quite simple changes can make a difference in practice”.
The Law in England currently states that if you have sex with another person outside of your marriage or civil partnership, and that other person is of the same sex as you, it's not considered adultery - even if you're in a same-sex marriage or civil partnership.
This causes both same-sex couples and heterosexual couples some difficulties when citing the reason for the breakdown of their marriage/civil partnership for the purpose of divorce or dissolution where one person has had an affair with someone of the same sex.
In order to divorce or dissolve your civil partnership, you have to support the ground for divorce/dissolution, which is the irretrievable breakdown of your marriage/civil partnership, with one of 5 facts:
When identifying the relevant fact causing the breakdown of the relationship one would assume that if your spouse/partner had cheated on you with another person you were entitled to rely on their affair to obtain your divorce/dissolution. Well, not if that affair was with a person of the same sex as them.
Most people would think that this wouldn’t be of concern to a heterosexual married couple but it has proven to be problematic. For example, a married man would not be able to rely on his wife’s adultery to divorce her if she had been having an affair with another woman. And on the flip side, a woman would not be able to reply on her husband’s adultery if he had been having an affair with another man. There have been situations across the country whereby the spouse who has been cheated on and left feeling terrible cannot even rely on the relevant fact to initiate his/her divorce proceedings.
The couple in the case have not been named but the full judgment can be reviewed AAZ v BBZ  EWHC 3234 (Fam). They married in 1993 and had two sons. The wife was 17 years younger than the husband and was described to be a housewife and a hands-on mother during their marriage. The husband was a businessman with significant wealth. The husband sold shares for US $1.375 billion during their marriage and at the point of divorce, the wife estimated their marital wealth to be over £1 billion.
The Judge accepted that the total wealth of the family was wholly matrimonial and that it should, therefore, be shared between the husband and wife.
The husband, in this case, seems to have not done himself any favours by failing to attend at court for the various hearings. The husband did, however, rather fittingly given the wealth involved, appear at the final hearing by video-link from his yacht in the Caribbean.
London is well known for being the divorce capital of the world and women from all over the world seek to issue their divorce proceedings in London if they have sufficient links to the country to secure jurisdiction. The reason for this is that the courts in London tend to take a more sympathetic attitude toward housewives or stay at home mothers.
The law provides for a starting point, in line with the sharing principle, in long marriages of a 50/50 split of the matrimonial assets regardless of who earns the most. The court will also give consideration to the standard of living the family has enjoyed throughout the marriage when determining a financial award. This means for a stay at home wife, who has been married to a wealthy businessman for a long while, is likely to receive an award very close to 50% of the entire matrimonial wealth.
As a family law solicitor I am often consulted by parents, usually fathers (and so for the purposes of this article I will assume that is the situation), who are determined to continue to be a big part of their child’s life despite splitting from the child’s mother. Those fathers that I meet that find themselves in that situation are keen to spend as much time as possible with their child and would not want to ever miss an important occasion such as a Birthday, Christmas or Holidays. Those fathers are so dedicated to their child that if suitable arrangements cannot be agreed between them and their ex-partner they will engage the services of someone like myself and embark on what is sometimes a long and expensive process though the courts to ensure that they remain a constant and important part of their child’s life.
But what if the father is not like the usual father described above and does not want to spend time with, or be involved in their child’s life or perhaps does not want to be as involved as the mother would like them to be? What happens then, how can the mother force the father to be involved? How does the law work for children in that situation?
Quite frankly, it does not. There is nothing in law which can force a parent to be involved or more involved in their child’s life if they choose not to be.
The right to spend time with a parent is the child’s right, not the parents’, but if the parent does not want to spend time with their child then that child’s right is lost. How can the court or anyone else force a parent to spend time with their child? Simply, they can not. Sadly, if a parent decides that they do not want to be involved in their child’s life or does not want to spend regular, quality time with their child there is no way to force them to do so.
A child has a right to spend time with both parents and if one parent is trying to prevent the other from spending time with the child then that parent would be able to rely on the law to determine whether or not it is in the child’s best interest to spend time with them. The importance of children having relationships with each parent following separation was reinforced by the Children and Families Act 2014. The court can, upon application of a parent, make orders relating to the living arrangements of a child and when, where and by what means that child will spend time with the other parent.
The frequency and amount of time a child will spend with each parent will differ from family to family. There is no formula to calculate what amount of time is suitable and there is no precedent as to what a child arrangements order will look like, it will depend on the individual family and their circumstances. Equally, there is no legal definition as to what would amount to a reasonable amount of time. Some parents spend an equal amount of time with their child, some parents split their time between weekdays and weekends or every other weekends. There is no right or wrong, it is whatever works best for the child.
If you are in this difficult position, Pinney Talfourd are here to help. We have a large experienced and dedicated team of specialist family lawyers and we would be happy to help you through this difficult time. We can offer late appointments from Monday to Thursday in each of our offices in Upminster, Hornchurch and Brentwood and your initial 30 minute consultation will be free.
Resolution is a community of family law professionals who subscribe to a Code of Practice to assist working with families and individuals to resolve issues in a constructive way.
The family team at Pinney Talfourd are all proud to be members of Resolution and subscribe to their Code of Practice which has recently been revised.
The ethos of the Code is to encourage families to deal with their issues without conflict or confrontation, to support and encourage them to put forward the best interests of their children first, to act with honesty, integrity and objectivity and to strive to resolve matters so far as it is possible to do so without the need to apply to Court.
A full copy of the Code of Practice can be seen here: http://www.resolution.org.uk/site_content_files/files/code_of_practice_full_version_web.pdf
As part of the campaign, Resolution will be attending Parliament to lobby for a change in the law to include ‘no fault’ divorce and improving the rights of cohabiting couples.
When a financial settlement is reached in divorce proceedings it is important that this is recorded within a consent order. This will ensure that all claims that both parties can make against the other are fully resolved and the terms are embodied within the consent order. Once approved and sealed by the court they become enforceable upon Decree Absolute (final decree) being granted.
Therefore if one party refuses to comply with the implementation of the order the other party can apply to the court to seek enforcement and the application can include asking the court to make an order for costs against the offending party.
It is therefore beneficial to both parties that a consent order, to reflect all terms of a full and final settlement, is put in place before Decree Absolute is granted.
Without this neither party are protected. Either party could apply to the court for a further order in relation to the matrimonial finances even if the parties have already agreed to the division of net proceeds of sale or a transfer of the marital home to the other party.
Alembic Strategy was delighted to be joined by Catherine Polli, a Partner at Pinney Talfourd for the second webinar in a series of three at the Law Society. These were aimed at helping Lexcel firms respond effectively to the strategic planning component on the Lexcel Standard (v6).
Catherine explained how the use of strategic planning has been crucial in driving growth and performance over that past few years at Pinney Talfourd. The strategic planning process is driven by the 2020 Business Plan which covers all aspects of the firm’s growth up to 2020, from the number of partners and fee earners, the culture of the firm and fee income growth, with an emphasis on staff focused objectives to allow everyone to play a role in achieving goals set. Good communication of this plan is vital in achieving it.
This strategic planning was proven very effective and Pinney Talfourd has just been recommended in an outstanding ten categories by Legal 500 UK 2016. We are also shortlisted for the Private Client Practice Award at the Law Society’s Legal Excellence Awards.