Money Box 2

There was another set of interesting questions about divorce and separation on BBC Radio 4's Money Box today. This time the topics covered included pensions, 'aliment', parents' financial responsibility towards over 18s in education and jurisdiction. I couldn't help feeling sorry for one caller from Milton Keynes who had cohabited for 17 years, raised her partner's children and had no financial interest in any assets. In Scotland she would have been able to make a claim based on the disadvantage suffered from giving up employment to care for the children but of course in England cohabitants still have no rights.

The panel of experts were Liz Welsh, Chair, Scottish Family Law Association, Janet Tresman, Consultant, Piper Smith Watton and Simon Piggot, Partner, Levison, Meltzer, Piggot and the podcast is available here. There is also a list of useful internet links and helplines here.

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Proposed Overhaul of Family Law

Today a major new report "Every Family Matters" was published by the Centre for Social Justice, the think-tank set up by the former Conservative leader Iain Duncan Smith, which has had a major bearing on David Cameron’s social policy-making. The report claims the recommendations are a "far-reaching overhaul of the law [in England & Wales] aimed at putting marriage at the heart of family life." Key points include;

Divorce
▪ Discussing no-fault divorce is a low priority in contrast to other family law reforms.

▪ Creation of a three month period of reflection and consideration at the outset of the divorce process, which would now be commenced only by a short written notice without any allegations.

▪ Parties should be able to petition jointly under existing law Decree absolute of divorce should be capable of being applied for after four weeks from the decree nisi, instead of the present time periods.

Cohabitation
▪ For the different reasons, we do not consider that it is appropriate to make any proposals for cohabitation law reform at this time.

▪ We oppose the present Private Members’ Bill on the basis that it provides very similar rights to marriage.

Information Provision
▪ There should be information provision before the commencement of family law proceedings.

Alternative Dispute Resolution
▪ Binding family law arbitration should be introduced.

▪ There should be mandatory attempts at resolution of children disputes before the issue of proceedings.

Legal Aid
▪ Government should clearly place on record that access to justice, like education, health care and other front-line services, is an essential facet of any civilised society.

▪ The legal aid system must attract and retain specialist practitioners in all areas of family law.

Contact
▪ An amendment to the Children Act 1989 to include explicit principles of contact and residence, incorporating equal status of those with parental responsibility and the benefit to the children of both parents having a significant involvement in their lives, with the welfare of the child remaining the paramount consideration.

Relocation
▪ A change in the law regarding relocation such that an amendment to the Children Act would apply in such cases, to take better account of the changed patterns of parenting, the considerable impact on the child of relocation away from home and other home environment features and wider family members, yet taking account of the increased movement of families.

Grandparents
▪ Grandparents should be placed in a distinctive legal position.

Ancillary Relief
▪ Marital assets are all assets acquired by the parties solely or jointly during the marriage and any pre-marital cohabitation whether through passive growth or active acquisition.

▪ In conducting its fairness exercise on distribution of marital assets and non-marital assets, the court shall follow as binding any marital agreement of the parties.

▪ The marital assets, including illiquid assets, shall be divided equally between the spouses unless there is a good reason not to do so.

▪ The family courts shall have power to make child maintenance orders where both parties are not in receipt of or claiming welfare benefits and the court is making other orders between them concerning income or capital and in any event where are arrears of more than 6 months.

▪ Spousal maintenance shall continue to end automatically on remarriage but should be reduced to a nominal maintenance order after periods of six months’ cohabitation.

Full Report Source Centre for Social Justice 14 July 2009

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Cohabitants and Mistresses

The Scottish Law Commission yesterday published its Report on the Law of Succession to the Scottish Government with plans to modernise Scotland’s wills and inheritance system. Professor Joseph Thomson, the lead commissioner on the Succession project said: "The aim is to simplify the law radically by providing rules which are easily understood and which at the same time reflect the nature of family structures in contemporary Scotland." 



The report recommends that when a person dies without making a will, the deceased's surviving spouse or civil partner will inherit the whole estate up to the value of a threshold sum after which the remainder of the estate will be shared equally with the deceased's issue. The report proceeds on the basis that the threshold sum should be £300,000 but recognises that the precise sum is a political question for the Scottish Parliament. Where there is no surviving spouse or civil partner, the deceased's issue will inherit the whole estate.



If there is a will and the deceased's surviving spouse or civil partner is disinherited, the report recommends that they will be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate. If children are disinherited, the report offers two possible scenarios. First, the children would be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate. Second, and more radically, dependent children should be entitled to a capital sum 
calculated by reference to their maintenance needs: but otherwise a person would be free to leave his estate as he or she chose and his wishes could not be disturbed by claims from adult children. Which scheme should be adopted is again a political question for the Scottish Parliament. 



With regard to cohabitants the report says;

"It is possible that the deceased was survived by both a cohabitant and a spouse or civil partner. In this situation both the cohabitant and the spouse or civil partner will have succession rights. Where the deceased died intestate we recommend that the amount which the spouse or civil partner would otherwise receive should be shared with the cohabitant. The amount due to the latter will depend on the 'appropriate percentage', but can never be more than what the spouse or civil partner receives. And where the deceased died testate the cohabitant's claim will be the appropriate percentage of the legal share to which the spouse or civil partner is entitled. Thus, in this situation too, the cohabitant's entitlement can never exceed that of the spouse or civil partner."

Unfortunately all does not bode well for sensible debate. Tanya Thompson of The Scotsman makes sensational headlines with her article Mistresses should get share of dead lovers' estates, says Law Commission here.

Full Report Source Scottish Law Commission 15 April 2009

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Cohabitation - Provision on Intestacy

Last week Catherine Hart of CaseCheck reviewed the first case where a decision was imposed under s29 Family Law (Scotland) Act 2006. Section 29 allows an application to be made by a surviving cohabitant where the deceased cohabitant died intestate for an order for payment of a capital sum from the deceased’s net intestate estate or for transfer of property. The case was heard in December 2008 at Falkirk Sheriff Court.

The Pursuer had lived with the deceased, who died intestate and without issue, for about 2.5 years They had not formed a civil relationship and the Pursuer sought payment of the deceased’s entire net intestate estate or, alternatively, an order for transfer of heritable property. The Defender was the executor for the estate of the deceased, her half brother, and submitted that no award should be made standing that the Pursuer had already received a half share of the lump sum death benefit and an adult dependent’s pension from the deceased’s employers’ pension scheme. The Defender had received the other half share of the lump sum.

It was held that the Pursuer was entitled to make a claim but the amount was assessed at nil. The full judgement is here.

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England v Scotland

Further to my posts Cohabitation and Palimony looking at financial provision for co habitants in Scotland and the first case under s28 Family Law (Scotland) Act 2006, CM v STS, Marilyn Stow has two guest posts comparing proposals for cohabitant rights in England to those we already have in Scotland. Jenny Wilmot's and John Fotheringham's posts are here and here.

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'Breakthrough Britain'

This week the media and several family blawgs have covered a review of family by Iain Duncan Smith, the former Conservative leader, proposing family law reforms to strengthen families by making it more difficult to divorce.

From a personal point of view the idea that divorce is easy and people should work at their marriage somewhat irritating. I am not into 'informal relationships' and in the last 32 years only had the one relationship, our marriage. I tried very hard to save the relationship of 23 years for 7 years. It then took another 4 years of living in limbo to negotiate, reach a settlement and divorce. Anyone who believes that is too easy is out of touch.

It just isn't possible to lump all separated families together. According to Professor Michael Lamb quoted in Fatherhood Institute Research Summary: Separated Families 70 % of children from separated families do not show any worse long-term outcomes than children whose parents have not separated and the five important factors that predict children’s outcomes after their parents’ separation are;


• The quality of their relationship with their mother 

• The quality (not necessarily the quantity) of their relationship with their father

• How much and how viciously the adults continue to fight 

• The financial support available to them 

• The child’s individual temperament

'Breakthrough Britain' is a misnomer as the research actually relates to family law in England & Wales, a fact which has been overlooked by the UK media (no surprises there, then!) It links rising levels of family breakdown to the increase in cohabitation and criticises the Government for considering offering couples legal rights outside of marriage. Here in Scotland although cohabitants do not have the same rights as married couples they already have some rights and as far as I'm aware it has not affected the trend for cohabiting, marrying or divorcing. The measures do provide some protection and financial support which at least gives children life chances.

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Sarah's Law

From today thousands of parents and guardians (presumably in England & Wales) will have the formal right to ask police to look into the background of people who have unsupervised access to their children according to The Independent. A pilot has been launched in four areas allowing single mothers to check out whether new partners are sex offenders.

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Cohabitants Separation Date

Meena Raghunathan or Fairley v Alan Fairley [2008] 104 was an action concerning the separation of cohabitants. The couple separated sometime in 2006 with the pursuer contending the date was in June after the introduction of s28 Family Law (Scotland) Act 2006 on 4 May which gives cohabitants certain rights to financial provision. The defender contended a date in April.

After hearing evidence Lord McEwan found the defender has been untruthful about the date to the Court and also to his solicitor and his witness. His reason for behaving in this way is only too obvious. It was ruled that the parties cohabited until 5 June 2006.

Thanks to Casecheck for bringing this case to my notice.

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