D-Day, should you stay or should you go?

With Family lawyers rubbing their hands at the New Year rush of enquiries whether this be on the media lead D-Day or Divorce Day, it was pleasing to see one of the leading Judges Sir Paul Coleridge come out and reverse the trend by promoting marriage. He sought to encourage couples to perhaps think twice before engaging in a process that has a massive impact on the vast majority of couples both financially and emotionally – not to mention the impact upon any children they may have.

In his article with the Times on 3rd January he said he wanted to promote marriage and reverse the “appalling and costly impact of family breakdown” on children and society at large.

The launch of a “Marriage Foundation” by the senior High Court judge aims to be the “go to” place for information on marriage. It will commission research, hold seminars and conferences, produce publications and in due course, lobby for “family-friendly” policies. With support from leading names in the judiciary including Baroness Butler-Sloss the former President of the Family Division, he also expects family lawyers and solicitors to endorse its aims and, it would seem, encourage financial contribution to cover the annual running cost of £150,000.

Whilst divorces are on the increase not all divorces involve the protracted court process and every encouragement is made by those family lawyers who are members of Resolution (http://www.resolution.org.uk/) to resolve the couple’s issues without confrontation and acrimony.

It is disappointing that articles such as this one http://www.bbc.co.uk/news/business-16410550 make no reference to Collaborative law as a way in which many couples are now finding solutions by committing to a process to avoid using the courts.

Communication is the key between clients to saving their marriages or separating amicably and is in the best interests of their children. However with emotions involved it is often one of the first things that is lost or reduced as parties seek to avoid conflict or fail to deal with it.

So will Russell Brand and Katy Perry listen to Sir Paul Coleridge’s advice and work at their 14 month marriage or will they be another statistic for the lawyers.

 

Bridge over troubled waters.

If you think your marriage is failing, contact your lawyer now as it can make a huge difference to your settlement.

When a relationship fails or begins to fail, married expats can find themselves in a very difficult position. Where they divorce and how much they will have to pay or receive by way of divorce settlement can be determined by where they issue. Getting this right is crucial particularly for expat wives.

Generally the expat wife will have fewer assets than her husband particularly if it was his employment that took the family abroad. It is therefore generally considered advisable for expat wives to retain a base in the UK to enable a petition to be issued in England and Wales. The English law has been recognised in the media as the wives jurisdiction. This is because in England and Wales spousal maintenance is open-ended meaning it can be paid until the payer dies or their financial circumstances change.

Most EU states require the recipient to demonstrate why ongoing maintenance is required over and above child support and in Europe the courts expect the spouse to get back on their feet and independent as quickly as possible.

In the EU, the Brussels II convention brought together the rules regulating divorce jurisdiction across all EU member countries except Denmark.  This states that wherever divorce proceedings are issued first that is where the divorce takes place.

Therefore expats living abroad may fulfil residence criteria in more than one jurisdiction but by virtue of their domicile they may be able to issue in England and Wales.

The divorce situation is different in the US and other non EU countries which considers the circumstances of the case and requires a hearing to determine the appropriate jurisdiction which is costly for both parties but can be a price worth paying for some spouses where their assets may be better protected by that jurisdiction, Eg a spouse may issue in the US or other EU state where pre-nuptial agreements can be binding but in England and Wales are only evidence that the Judge will consider.

As an experienced lawyer it is necessary to ensure that the client who is often upset and emotional acts decisively to ensure that if the jurisdiction may be in issue that they get in first and secure the position that best protects them.

The courts of England and Wales will insist upon full disclosure being provided so that you can be sure of all the facts and figures before trying to negotiate a settlement, however in Italy or Spain the requirement is not so stringent.

Acting for UK expats seeking advice from Hong Kong, Oman, USA and Europe has enabled me to become experienced in understanding the needs of the expat client and being able to act both quickly and appropriately to enable the right choices to be made at the outset.

The Family Justice Review – Part 2

The Family Justice Review has been published today and its full 228 pages can be read  http://bit.ly/sSx0IF David Norgrove Chair of the Family Justice Review identifies problems and weaknesses within the current system and recommendations on how to improve matters moving forward.

I have addressed a number of the recommendations relating to the court system and children in part 1 of my blog http://bit.ly/v3OTk9

This blog focuses upon the recommendations for divorce and financial arrangements. The review has recommended a revised divorce process to enable individuals to complete this themselves. It recommends that an “information hub” is established where they will access and “online divorce portal” enabling them to have all of the information they require to complete the application on-line. The system is to be designed to have the necessary built-in checks to prevent the frequent errors that now occur but would be processed by a central court processing centre.

The same grounds and conditions apply as at present but if the acknowledgement of service is returned and doesn’t contest the divorce then a court officer will issue the decree nisi, thus allowing the application for decree absolute to take place in the current timescales. If the ground is contested the application would be transferred to the applicants local court for judicial consideration.

The focus where possible are that all issues in dispute should be considered together whether in mediation or consolidated court hearings. However there is a warning that “care should be taken to avoid extra delay that this may cause particularly in relation to children”

There is a recommendation that the Government should establish a separate review of financial orders to include an examination of the law. This would encourage modern social trends are reflected in law and by the judiciary.

There is concern expressed about the impact of the legal aid reforms which is to be monitored so as to ensure that the supply of properly qualified family lawyers which is vital to the protection of children is not damaged significantly.

Most lawyers will welcome a number of the recommendations that have been made as the Law Society and Resolution have been consulted as part of the review however there remains a significant cost which is detailed within the review that will have to be met to implement the recommendations which during the at the current economic climate may mean that these are delayed.

There are some of the usual re-branding exercises that invariably are recommended with most reviews with the most notable being that “Alternate Dispute Resolution” which most people have got to grips with now and is known as ADR should be changed to “Dispute Resolution Service”. For those of us who enjoy cricket the DRS (Decision Review System) is already in use and it would be dangerous to confuse both.

 

 

 

 

 

UK Lottery ruling – Make sure you buy your own ticket!

In the High Court this week Mr Justice Mostyn gave what is believed to be the first reported UK ruling upon a National Lottery windfall and how it should be divided upon divorce.

After a 25 year marriage during which the Wife won £500,000 about ten years ago, the case has now come to court with the Husband seeking to claim a half-share of the prize money.

The couple who cannot be named for legal reasons separated approximately three years after the windfall and been separated since that date. After the windfall the wife used part of the proceeds to buy a house for herself and the husband to live in and as a result of this action Mr Justice Mostyn awarded the Husband £85,000.

His ruling which raised the issue once again of “non-matrimonial assets”, ie assets brought into the relationship solely by one party, confirmed that had she not used part of the assets for her and her husband then the Hotel Porter husband would possibly have received nothing despite the length of their marriage.

The Judge mentioned that there are 5 reported cases involving lottery wins in Australia and no doubt he may have given consideration to the outcomes of those cases. But a clear message was given that couples within a marriage should buy their own tickets independently of the other using their own incomes if they want to successfully argue that the asset does not form part of the matrimonial assets to be divided on divorce.

For more information or advice please call Mark Sage on 01225 750072 or email marksage@mogers.co.uk