Owens v Owens

When Mr & Mrs Owens said I do little did Mrs Owens know if she wanted to divorce it would break her emotionally and financially. Even with financial assistance from Resolution (the organisation who quality assure family lawyers) and a visit to the Supreme Court she cannot escape the previous Judgment handed down that she simply does not satisfy the grounds for divorce based on Mr Owens ‘unreasonable behaviour’.

It seems unconscionable that in the 21st century the law still prevents an amicable divorce by mutual consent or at the will of one party to the marriage who no longer wishes to be party to it. Family lawyers agree that it should not be for any husband or wife to prove blame which results in conflict and acrimony. Especially in marriages involving children.

Since we last attempted a change in divorce law through the Family Law Act 1996 1,720,000 people cited adultery or unreasonable behaviour as grounds for divorce in their petition.

Mrs Owens is now aged 68, she has given her marriage 40 years but simply because her husband refuses to divorce she will have to wait until 2020 (5 years separation) to divorce him without his consent. Mr Owens says the only reason she wants to divorce him is through boredom or because she has had an affair. Mr Owens does not believe he should be criticised for trying to save his marriage. It is clear in this marriage listening was not one of Mr Owen’s strong points if he believes that his marriage is reconcilable.

In answer to this Dame Butler-Sloss, the first female Lord Justice of Appeal (Appeal Court Judge) as tabled a private members bill to change the law to ‘no fault’ as in the US, Australia and Scotland (yes Scotland has different laws!) However, it continues to be very difficult to convince parliament to have any enthusiasm for this subject.

With divorce soon to go on line and more people self representing it is concerning that many may fall prey to this recent case law with spouses who do not wish to divorce choosing to defend the divorce proceedings. If you need help or advice with your divorce contact me on 01603 675666 or email kr@rogers-norton.co.uk.

Court Allows Divorce Settlement Appeals

 

The Supreme Court recently unanimously ruled in favour of two women who made applications to set aside orders made by the court in their divorce settlements.

Alison Sharland and Varsha Gohil both alleged that their husbands had, at the time the order was made, been dishonest about their financial position.  As such they argued that they had received an unfair financial settlement than they might otherwise have received if the true financial position had been known.

In Mrs Sharland case she was married for 17 years to the founder of AppSense.  They were able to reach an agreement on their financial settlement but following the divorce she discovered that he was worth significantly more than she had been told.  Further, she also discovered her husband planned to float the company on the stock market.  Mrs Sharland appealed to overturn her settlement but was not successful because the Court felt it unlikely she would have received a higher award.

Meanwhile, Varsha Gohil discovered two years after her divorce that her husband had been untruthful about his financial position when he was arrested for fraud and money laundering.  The Court refused to allow the criminal evidence to be used and to overturn her settlement.

In Mrs Sharland’s case the Supreme Court decided she had been deprived of her right to a full and fair hearing and in Ms Gohil’s case they decided there had been an ‘erroneous approach’ to the application of the admissibility of the evidence.

Therefore both applications should be allowed to proceed.  Kerry Rowell comments
“These decisions have created speculation in the media about opening the floodgates to other such applications.  In fact what they have done is to ensure that justice comes first and that justice is about having a fair hearing in every respect.  If you provide dishonest or misleading information about what your assets are, this is a clear indication that your husband or wife can go back to court”

If you require advice on any of the above or any matrimonial matters, please contact Kerry Rowell or Averil Ballam in our matrimonial department on 01603 666001.  Or email kerry.rowell@rogers-norton.co.uk or averil.ballam@rogers-norton.co.uk.

Disclosure, Disclosure, Disclosure!

As Family Law Solicitors advising clients in relation to their financial settlements upon divorce we are very much aware that our frequent reminders to clients of their obligation to be open and honest about the extent of their financial interests can seem rather tiresome.

However, the importance placed by the Courts upon parties’ honesty about their finances was exemplified in the High Court last week when Scot Young, a former property magnate, was sentenced to six months’ imprisonment for failing to disclose his assets in his divorce case. Specifically, Mr Young refused to disclose what had happened to £400 million of his wealth which he claimed was lost following a failed property transaction in Moscow. In proceedings brought by his former wife for his breach of a 2009 Court Order to pay her £27,500 per month maintenance, Mr Young was described by Mr Justice Moor as having “flagrantly” breached the Court’s orders to disclose what had happened to his fortune. Consequently, he was imprisoned for contempt of court.

Sentences of imprisonment are unusual in divorce cases for non-disclosure of assets. We have been involved in a case where the other party has received a suspended sentence of imprisonment for failing to disclose credit card statements as ordered by the court. This case involved modest finances and a rather stubborn former spouse who did not want to co-operate. As a result they now have a criminal record.

The case of Scot Young is a reminder to us all of the importance of honesty throughout the Court process. ‘Disclosure’ is not simply an excuse for your solicitor to nag you (!) or an exercise to run up costs. Whilst in the majority of cases the Court may simply draw adverse inferences upon one party’s refusal to provide the court with information about their financial position, in others it can result in significantly greater consequences.

Should you require any further advice from our Family Law Team then please feel free to contact Amy Walpole, Partner, or Sophie Key, Solicitor, on 01603 675648 or email matrimonial@rogers-norton.co.uk.

All I Want for Christmas….

You may have read over the Christmas period the rather saddening reports that a ‘dad’ was the tenth most longed-for ‘present’ on children’s Christmas wish lists.

A survey of 2,000 parents, conducted by Westfield London and Westfield Stratford City revealed that, along with the expensive ‘must have’ toys and an array of pets, a number of children wished for a father in their lives.

The survey highlights the breakdown of family life. Recent figures from the Office for National Statistics show that the number of children living in single-parent families in the UK has risen steadily but significantly from 1.6 million in 1996 to 2.0 million in 2012.*

From our dealings with clients we appreciate that it is not always through choice that many fathers, and indeed mothers, are prevented from being involved in their child’s life. Unfortunately, it is not uncommon for the resident parent to be obstructive to the contact between a child and their non-resident parent. We are frequently asked by clients to write to their former partner to negotiate the arrangements for contact (formerly known as access). This is not just at Christmas but is a year-round problem for many families. On some occasions it is necessary for parents to apply to the Family Courts for a Contact Order.

Since April 2011 it is necessary for most cases to be referred to mediation before an application to the Court can be made. Mediation is a process whereby a trained, impartial mediator meets with the parties together and assists them to reach a resolution between themselves. If mediation is unsuccessful then it is possible to make an application to the Court.

In the absence of any welfare concerns the Court operates under a presumption that contact between a child and their non-resident parent is in the best interests of the child. Contact can take many forms including ‘supported’ contact at a local contact centre to ‘staying’ contact. The process may be resolved by agreement at an early stage or may proceed to a final hearing whereby a judge will make a decision as to the type and frequency of contact. The Court treats very seriously the issue of contact between children and their parents and relatively recent developments in the law has seen the introduction of custodial sanctions for resident parents who continue to obstruct contact in breach of a Court order.

If you are experiencing difficulties maintaining contact with your children or you wish for some advice as to how to manage your child’s contact with your former partner please contact our Family Team. We offer a one-off Fixed Fee meeting during which we can address your queries and advise you as to your options. Our fees are £50 + VAT for the Fixed Fee meeting.

Please feel free to contact Sophie Key, Solicitor, or Amy Walpole, Partner, on 01603 675648 or email matrimonial@rogers-norton.co.uk.

*Office for National Statistics ‘Families & Households 2012’ Statistical Bulletin 1st November 2012.

Prenuptial Agreements:Radmacher - one year on

The 20th October 2011 was the one-year anniversary of the landmark ruling handed down by the Supreme Court in the case of Radmacher v Granatino [2010] UKSC 42 in which it was held that the prenuptial agreements could be given decisive weight when considering financial settlements upon divorce. To what extent does this case have implications for those seeking to protect their assets in the event of divorce and what has been the effect of the decision in practice?

Mr Granatino and Ms Radmacher (formerly Granatino) entered into a prenuptial agreement in 1998 at the instigation of the wealthy wife which provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. At the time, the husband held a well-paid position in banking which he subsequently left to pursue an academic, but significantly less well-paid, career. Following the issue of divorce proceedings in 2007 the husband applied to the Court for it to determine a financial settlement even though the prenuptial agreement stated that the couple would waive any financial claims against each other in the event of their divorce. Initially, the Court held that the prenuptial agreement was defective and awarded the husband a capital award of £5.56 million plus £504,000 for housing in Germany and periodical payments of £70,000 per year for the couple’s two daughters. The wife successfully appealed and the Court of Appeal reduced the husband’s award in recognition of the “decisive weight” of the prenuptial agreement. The husband appealed to the Supreme Court who upheld the decision of the Court of Appeal.

The decision in Radmacher does not mean that pre or postnuptial agreements are automatically enforceable. The law dealing with financial settlements upon divorce is set out in the Matrimonial Causes Act 1973 (MCA) and it is not possible for couples to oust the jurisdiction of the Court by entering into a prenuptial agreement or an agreement after the marriage (postnuptial). However, what the case of Radmacher did achieve was to set out the circumstances which will enhance or detract from the weight to be given to any agreement when considered alongside the ‘section 25’ factors of the MCA. For example, it is important that each party receives independent legal advice and that there is full disclosure of each party’s financial resources. It is also important that the agreement is entered into freely, in the absence of undue pressure or duress. It is therefore the role of the solicitor to carefully draft any proposed agreement to ensure that its terms will be followed by the Courts in future, should one party attempt to renege on the agreement and make an application to the court for a financial order.

The publicity surrounding Radmacher and prenuptial agreements in general has seen an increase in the number of enquiries and instructions received by the Matrimonial Team at Rogers & Norton from individuals seeking to protect their assets. The trend of people marrying later in life, sometimes for second or subsequent times, means that many individuals have pre-acquired assets which they bring to a marriage. Also, many individuals are keen to protect any future wealth such as inheritance from their family.

Prenuptial and postnuptial agreements can include provisions regarding existing wealth and assets, future inheritance, gifts during the marriage and the practical and financial arrangements for children. Our Matrimonial Team is experienced in advising in relation to a proposed agreement, drafting both prenuptial and postnuptial agreements and advising upon agreements prepared by other solicitors to ensure they are clear and fair in light of the guidance set out in the Radmacher judgment.

If you are considering entering into a prenuptial or postnuptial agreement and would like some advice then please feel free to contact Sophie Key or Amy Walpole on 01603 675648 or email matrimonial@rogers-norton.co.uk.

The pitfalls of owning property jointly with another

The law is “double-Dutch”: Geoffrey Boycott

The pitfalls of owning property jointly with another

This week has seen former England cricketer and well-known Yorkshireman, Geoffrey Boycott, appear at the High Court in London expressing his view that the law surrounding joint ownership of property is unclear. Mr Justice Vos hearing the case himself acknowledged the “obscurity” of property law which dates back 300 years.

The case centres around Boycott’s purchase in 1996 of a three-bedroomed property overlooking Poole Harbour in the millionaires’ resort of Sandbanks, Dorset. The property was purchased for £450,000 and earlier this year was valued at £3 million. Boycott purchased the property with his then partner, Anne Wyatt, and it was put into their joint names as ‘joint tenants’. When property is owned as joint tenants upon the death of one owner their half share will automatically pass to the other. This is commonly referred to as the ‘rule of survivorship’. This type of joint ownership is usually preferred by married or cohabiting couples as it provides security on death for the surviving spouse/partner which is particularly important where there are children of the family.

The alternative to owning a property as joint tenants is to own it as ‘tenants in common’. As a tenant in common it is open to you to make provision in your Will for your share to pass on your death to a third party. In the absence of a Will the rules of Intestacy apply which may result in your share passing to one or more prescribed family members which may not be what you want. For example, if you remain married your share could pass to your spouse, even if you are separated.

Purchasing a property as joint tenants is not unchangeable. It is open to variation by either owner. By serving a ‘Notice of Severance’ upon a joint owner it can be changed to a ‘tenancy in common’, giving one party the option of leaving their half share to a third party under the terms of their Will in the event of their death.

This fact came as somewhat of a shock to Geoffrey Boycott when, in 2009 on the death of his former partner, he discovered that she had two years earlier unilaterally changed the joint ownership to a tenancy in common and had bequeathed her half share of the property to her niece. It is Mr Boycott’s case that he and Ms Wyatt had agreed that upon their deaths their respective shares would pass to the other. He says that had he known that the ownership could be altered he would never have bought the property with Ms Wyatt, who had continued to live in the property rent-free.

To change the ownership of a property from a joint tenancy to a tenancy in common one party must ‘serve’ upon the other a Notice of Severance in accordance with section 36(2) of the Law of Property Act 1925. Section 196 of that Act sets out the method of ‘service’ which essentially means sending a written document to the co-owner at their last known home or business address. It need not be acknowledged by the co-owner.

In Mr Boycott’s case, in which he is making a claim against his solicitors who dealt with the purchase, he claims that it was a “huge surprise” to him to discover on Ms Wyatt’s death that she had unilaterally changed the ownership of the property to a tenancy in common and had left her share to her niece.

This case highlights the importance of fully understanding the implications of owning property jointly with another, particularly in the event of the death of one party or the breakdown of the relationship.

If you require advice regarding financial and property matters as a result of the breakdown of your relationship or protecting your assets when entering into marriage or a relationship then please contact Sophie Key or Amy Walpole in our Matrimonial Department on 01603 675648 or email matrimonial@rogers-norton.co.uk.

If you would like to discuss the preparation of a Will then please contact Tom Lawrence or Louisa Mawbey in our Private Client Department on 01603 666001 or email web@rogers-norton.co.uk.

If you are purchasing a property in joint names and require a conveyancer and advice in relation to joint ownership then please contact Hayley George in our Residential Conveyancing Department on 01603 675623 or email hlg@rogers-norton.co.uk.

Shared parenting – a move in the right direction?

On 17th June 2011 the Shared Parenting Orders Bill will receive its second reading in the House of Commons.

When, a child’s residence, formerly known as ‘custody,’ cannot be agreed by his/her parents, it will be determined by the Court. The Courts are governed by the Children Act 1989 and, whilst the Court’s paramount consideration is the welfare of the child, it will take into consideration various other factors to determine with which parent a child shall live including the child’s wishes and feelings, the capability of the parents to meet his/her needs and any harm the child has suffered or is at risk of suffering. The Court does have the option to make a shared residence order where a child spends significant periods of time with each parent but typically, where a child’s place of residence is in dispute, the Court will be asked to specify with which parent the child shall live and, often, the level of contact s/he shall have with the non-resident parent. The Shared Parenting bill is seeking to change the way in which the Courts consider the arrangements for children.

The Bill was initially presented on 13th July 2010. The purpose of the proposed legislation is to ensure that, wherever possible, children benefit from the full involvement of both parents in their upbringing. A “shared parenting order” means an order providing for both parents to have a full involvement in the upbringing of a child particularly in respect of major long-term issues, and requiring that the child must spend a substantial and significant amount of time with both parents. This is to be distinguished from a shared residence order.
The presumption of shared parenting has been considered by the Family Justice Review in their interim report dated 31st March 2011. The Panel comments that currently the Court follows case law which sets out that it is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living (Re P (Contact: Supervision) [1996] 2 FLR 314). The Court will only depart from this presumption where the potential for harm to the child outweighs the benefit of parental contact.

Shared parenting legislation is increasingly common elsewhere in the world. Australia, France, Denmark, Belgium and a number of US states are examples. However, the Family Justice Review Panel considered evidence from Australia and Sweden in particular about the harm caused to children resulting from the conflict between parents where the legislation has created a presumption of shared time. It concluded that these countries have experienced difficulties in interpreting and implementing the legislation which goes against the aim of family lawyers and policy makers to keep disputes regarding children away from the Courts.

As a result of this evidence, the panel has concluded that no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents. It is recommended that the existing legislation should be amended to include a general statement of intent, to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.

There are concerns that to adopt such a broad-brush approach will remove the current case-by-case approach which is tailored to the individual needs of the child. A presumption of shared parenting could move away from the current role of the Courts to make decisions in the best interests of children and may favour the best interests of the parents.

Sophie Key at Rogers & Norton comments " the principles of shared parenting would be beneficial to many families. That said, applying the presumption to all families could be detrimental to the welfare of some children – no two cases are the same, and the current legislation providing for every case to be considered on their individual factors is a much safer option. "

Whether the proposed shared parenting legislation comes into force remains to be seen but it would appear that the fight for children to have an equal relationship with both parents is as strong as ever.

Should you wish for any further information or advice on Children matters please contact Sophie Key on sok@rogers-norton.co.uk or 01603 675666.