Holidays & Fairs

Due to holidays, weddings, BBQs, Festivals etc and a get fit campaign I have neglected my blog and emails for the last 6 weeks or so. Sorry, it's a bit late now for this year but Nick Woodall of the Centre For Separated Families sent me a link to a mailing offering separated parents tips on coping with the summer holidays. It's worth a read and bearing in mind for the next school holiday.

Also Suzy Miller of the Starting Over Show has left a comment on this post and the next Starting Over Show which focuses on starting over and rebuilding healthy lives after divorce will be in London on 7 March and Brighton 28 March 2010. This will provide an opportunity to get free legal, financial and life coaching advice.

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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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News Roundup 4

The news is rather quite on the divorce front in Scotland at the moment but there are several recent interesting stories from south of the border.

Divorce settlement granted after 22 years

A woman has won £220,000 in a ground-breaking divorce settlement — 22 years after separating from her husband.

They were married only four years before they split up but they never formally divorced.

The woman, who is in her fifties and lives in West London, was prompted to bring her claim after learning that her husband had secured a windfall by inheriting some money.

Full report Source The Times 13 June 2009

Judge calls for action to stop British 'epidemic' of family breakdown


A national commission should be created to tackle Britain’s “epidemic” of family breakdown, a senior judge said yesterday.

Mr Justice Coleridge, a Family Division judge, said that the commission should establish marriage as the “gold standard” for relationships and put an end to the constant games of “musical relationships” or “pass the partner”, which can scar children for life.

Full story Source The Times 17 June 2009

History-making divorcee Julia McFarlane is awarded an extra £100,000 a year

A divorcing wife who made legal history when the law lords awarded her a £250,000-a-year payout from her husband has won a 40 per cent increase in her maintenance payments.

Julia McFarlane, 49, who separated from her husband Kenneth in 2000, will receive £350,000 a year although her needs have been put at £150,000.

Full story Source The Times 20 June 2009

Tycoon Scot Young faces jail in £400m divorce

A secretive tycoon at the centre of one of Britain’s biggest divorce cases is facing jail over the whereabouts of his £400m fortune.

Scot Young, a “fixer” to Russian oligarchs and British billionaires, has been told that he could be imprisoned for failing to tell a High Court judge where his money has gone...........

The judge has ordered that Young’s passport be seized to stop him fleeing the country. “There is a real risk that he will leave the jurisdiction and not be seen again,” Mr Justice Charles told a hearing at the High Court last week.

Full story Source The Times 21 June 2009

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Public Petitions Blog

New social media has been introduced by the Public Petitions Committee at the Scottish Parliament, as part of the petitions process. The public petitions process is a key part of the Scottish Parliament's commitment to participation, openness and accessibility. It allows individuals, community groups and organisations to raise issues of concern with the Parliament and now petitioners will be able to provide videos and photos about their petitions as part of the committee’s new blog page.

Past petitions include;

PE589 Mr George McAulay, on behalf of the UK Men's Movement.

Petition calling for the Scottish Parliament to take the necessary steps to recognise Parental Alienation Syndrome and to develop early intervention strategies to prevent parental alienation.


PE624 Ms Ann Mallaby, on behalf of the Women's Land Reform Group

Petition calling for the Scottish Parliament to take the necessary steps to introduce new legislation into matrimonial law to address the alleged violation of women's land rights and farm business in cases of divorce.


PE944 Gary Strachan

Petition calling on the Scottish Parliament to urge the Scottish Executive to (a) investigate why there is no presumption of equal access/residence for children with both parents after separation in Scottish law; (b) investigate bias against fathers as equal parents in the Scottish Court System; (c) investigate why contact orders are not enforced and (d) investigate why parental responsibilities and rights are ignored by the medical, welfare and governmental institutions to the detriment of children


PE997 Peter Cox, on behalf of the Mothers for Justice Campaign

Petition calling on the Scottish Parliament to urge the Scottish Executive to provide greater protection to the children and partners of abusive parents by introducing legislation to ensure that (a) where an allegation of abuse has been made against a parent, access rights are suspended pending a full investigation; (b) all previous convictions of an abusive parent are taken into account before access rights are granted; (c) all access hearings are held in open court; and (d) all sheriffs who deal with child custody cases are given appropriate training.


PE1051 Jimmy Deuchars, on behalf of Grandparents Apart Self Help Group Scotland

Petition calling on the Scottish Parliament to urge the Scottish Executive to make the Charter for Grandchildren legally binding ensuring that the rights of children are recognised by all public agencies and families, and enforced by law.


PE1247 Stewart Mackenzie

Open petition calling on the Scottish Parliament to urge the Scottish Government to introduce a McKenzie Friend facility in Scottish courts as a matter of urgency. (See this earlier post)

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Never A Dull Day

Whilst browsing I came across a fairy tale.

It was a long, long time ago, that Princess Fiona, then aged 30 years, met her true love. Her champion, who was but five years her elder, had secured her release from a dreadful ordeal that was imprisonment, in a far, far away tower. His name was Shrek.

Within weeks the happy couple cohabited, initially in a modest swamp dwelling. Shrek was then a humble apothecary, but he sought greatness. Fame and fortune did indeed await him.

Shrek toiled for many years, seeking the elusive elixir. In 1998, after ten years of blissful cohabitation, the couple married. They purchased the matrimonial home, Yew Tree Cottage, for £100,000, with a 90% mortgage. However, at the turn of the following year, Shrek found his fortune. On the eve of Millennium, Shrek discovered and then sold to Never Never Inc. a sole manufacture and distribution licence for his Happy Ever After potion. The sale raised £3 million, together with an annual licence fee of £100,000. The couple purchased a more palatial property for £1 million cash. Shrek retained the remaining capital and his income.

Shrek grew tired of the marriage. In 2002 he met Darla, an Australian beauty, and his indiscretion soon led to irretrievable breakdown.

Princess Fiona, now aged 46 years, issued a divorce petition against Shrek, now aged 51 years. Ancillary relief has been claimed.

Shrek, who now that he has money, has reverted to type, seeks your advice upon the following issues:

1. Surely this is a short marriage case and Princess Fiona will not get much?

2. If I am wrong, must she get half?

3. What reasons are there to depart from equality?

4. If she is going to get substantial relief, I'll move to the Australian outback and she’ll have to find me.

5. Can I run the millionaire’s defence?

6. I am about to be sued by a Swiss financial institution for £½ million – is that relevant?

7. I want a clean break but I can't afford it. Please advise upon Fiona’s maintenance claim.

A link to the article in Word format is available below but it would be interesting to know what a Scottish lawyer would make of it as the points of law and outcome would be very different.

Full article Source Zenith Chambers

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Boom or Bust

The accountancy firm Grant Thornton has recently published it's sixth annual survey of "the UK's leading law firms" specialising in family law. I have downloaded the report as a pdf but cannot now find the address, grr... The survey of matrimonial lawyers makes interesting reading and I have highlighted some of the figures below;

• 48%, of respondents predicted a fall in the number of couples filing for divorce in the English and Welsh Courts due to the economic slowdown

• women filed for divorce in 91% of cases and in all but 3% of cases, the divorces are not contested

• 23% of lawyers believe that the number of divorces will stay at the same level as the previous year

• lawyers supporting collaborative law has fallen to 81% from 89%. However, the number of respondents trained as collaborative lawyers has increased to 50%, up 2%

• the total family assets for distribution in a divorce, dealt with by the respondents, fell from £2.85 million in 2007 to under £1.5 million this year

• 65% of respondents predict there will be a fall in lump sum financial agreements and an increase in maintenance based settlement

• 59% of lawyers surveyed advise on pre-nups more than other types of agreement

• 52% of respondents predict that there will be an increase in pre and post nuptial agreements due to the economic slowdown

• 82% of solicitors felt that pre-nups should be a factor considered by the Courts. This compares to 18% of respondents considering that they should be legally binding, down from 56% in 2007

• lawyers are increasingly concerned about the treatment of cohabiting couples, 45% called for a change in legislation.

• 19% of respondents have had instances of cases involving concealed assets over the last twelve months it has been more common for the concealment to be an action of the husband (91% of the cases). This year there were no cases (2% in 2007) of the concealment resulting from the actions of a wife

• 85% of respondents, had dealt with cases which had international elements

• The jurisdiction thought by 98% of respondents to most favour the wife (in terms of financial settlement) continues to be England and Wales. Whilst Scotland continues to be cited as the most favourable jurisdiction for husbands (30% of respondents in 2008)


Press release Source Grant Thornton

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Silver Divorces

According to The Independent a recent survey by the equity release trade body showed that 13,678 couples over 60 got divorced last year, a 49 per cent increase since the 1980s. Marilyn Stowe says: "The problem is there are only limited assets and funds in the majority of cases and you simply can't stretch those assets to attain the same standard of living as the couple may have previously enjoyed."

The current financial climate adds particular complications to dividing assets for those divorcing late in life;

• the sale price that reflects what the property was worth until recently is potentially unachievable

• the option of equity release if one party wishes to stay in the home can lead to a reduced payout.

• with a weak stock market it is not a good time to liquidate stocks and shares and the knock-on effect is a reduction in retirement capital

• fewer than 1 in 10 divorces involve an element of pension sharing and often, wives are left disadvantaged

• for a state pension, divorced couples will have to revert from the married state pension allowance back to the individual state pension allowance.

Full article Source The Independent 14 June 2009

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No Marriage, No Divorce

If you are planning an exotic wedding abroad the case of Gillian Hudson is a warning to check the ceremony will be valid. The High Court found that although there was a
religious ceremony in South Africa it had been worded in a way that did not comply with marital laws so Gillian wasn't married. As there was no marriage there could be no divorce or financial claims.


Full story Source The Times

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Relationships Scotland

It is over a year now since Relate Scotland and Family Mediation Scotland merged to become Relationships Scotland so I thought it would be interesting to have a look at their website to see what services are now on offer. Apart from Relationship Counselling and Family Mediation, Relationships Scotland currently supports a variety of other family support services: Child Contact Centres, Groups for adults and Groups for children.

Child Contact Centres offer supervision at the venue, supporting the exchange of the child from one parent to the other and supporting the contact when necessary. Alternatively Child Contact Centres may be used as a venue to “pick up” and “drop off” children for contact.


Family mediation services offer support groups for adults. These may be in the form of a series of workshops exploring the emotional and practical difficulties of divorce and separation. These groups are called Surviving the Break Up. Also on offer are a one off, 3 hour parent education workshop called Parenting Apart where parents can find out how best to support their children through separation – covering the emotional process of separation, children’s different needs at different stages, and what children need to hear.

Groups for children in which they are supported to express their thoughts and feelings in a safe environment re run by family mediation services. They meet with other children experiencing their parents divorce or separation and they are able to support one another through that. In some services these groups are called Time to Talk
Some local services provide a children and young persons’ counselling service to give children and young people time to explore their thoughts and feelings about changes they may be experiencing in their life due to parental separation, divorce or moving into a step-family situation.

Not all the services are available in all locations, unfortunately, but there is a useful search facility for finding specific services offered at different locations.

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Minimising Divorce Costs

Last week Marilyn Stowe gave some good tips on how to minimise the costs of divorce in a recession in an article she wrote in The Telegraph;



• Move swiftly

• Get your timing right

• Make interim arrangements for bills

• Save, don't splurge

• Consider using a collaborative lawyer

• Look out for deliberately low offers and valuations

• Cash is king

• Avoid Mesher orders

• Know what to do if your spouse goes bankrupt

Full story Source The Telegraph 15 May 2009

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Forensic Accountants

In the aftermath of the Myerson case in England when Brian Myerson failed to reduce his divorce settlement the FT looks at the role of Jeffrey Nedas, a forensic accountant who specialises in big money matrimonial cases. Mr Nedas is also called upon to trace offshore assets to work out whether someone is not disclosing their true net worth to minimise a settlement.

There are two main principles when advising business owners involved in a divorce Jeffrey Nedas says. First, to take a sensible and commercial view when valuing the asset, to avoid racking up excessive costs. Second, if a business is the main source of their prosperity, to make every effort to keep it running successfully, protecting a steady income flow for the benefit of both parties until it can be sold.

Mr Nedas acts for husbands as often as for wives although he has some sympathy for the women whose first inkling of the true state of their finances comes after their husband has asked for a divorce. "For some of them, they will have enjoyed this luxury lifestyle for years, but when everything comes out, it turns out they have been living in a castle built on sand."


Full story Source The Financial Times 8 May 2009

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James Watt v Ann Bruce or Watt

This case heard in the Court of Session was mainly concerned with the wife's substantial claim to financial provision and a dispute about the valuation of Mr Watt's business interests. The judge, Lady Smith, was satisfied that the couple's marriage of 25 years had broken down irretrievably and divorce was granted.

▪ The couple were married on 22 July 1977 and separated on 20 August 2002. They have one child who is over the age of 16 years.

▪ Mrs Watt (defender) qualified as a teacher at or about the time of their marriage and was keen to return to teaching following the birth of her son, but was discouraged from this by her husband. He told her he was earning plenty of money for both of them.

▪ Mr Watt, 53, is a successful businessman fishing for mackerel and herring.


Mr Watt's case was that fair sharing in this case was unequal sharing, in his favour whilst Mrs Watt sought an equal sharing of the couple's wealth following the divorce - a payment of a capital sum of £4.25m and property transfer orders in respect of the husband's interests in two properties. Lady Smith determined the total net value of matrimonial property at the relevant date as £8,829,170 and after taking into account Mr Watt's wealth had grown from interests he owned prior to the marriage divided assets 52:48 in Mr Watt's favour.

Full judgment Source Scottish Courts 29 April 2009

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Irish Variations

There is an article in April's edition of The Journal looking at the differences between England & Wales and Ireland of seeking a variation to periodic payments (spouse maintenance). Divorce in Ireland is something I know little about and it was of some interest to discover a “clean break” is precluded and the majority of ancillary relief orders may be granted at the time of divorce/judicial separation “or at any time thereafter”.

Apparently when economic times were good this lead to a number of “second bite of the cherry” cases seeking increased or additional financial provision to what had been agreed on separation or divorce. Of course during the present downturn the opposite is true and the door is open for downward variations.

Full story Source The Journal 20 April 2009

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Tax Havens Clampdown

Bad news from various media sources for those divorcing who wish to squirrel assets offshore to prevent their spouse's claim to financial relief - the G20 leaders have agreed measures to clampdown on the secrecy of international tax havens.

Apart from a published blacklist of tax havens there is a grey list of countries where international standards have been agreed but not yet fully implemented. On this list, alongside Austria, Liechtenstein, Monaco and Switzerland, is Luxembourg and according to the Luxemburger Wort the Luxemburgers are not happy.

Luxembourg's Prime Minister Jean-Claude Juncker protests against the lack of transparency in which the OECD has set up the grey list. Having dealt with financial institutions in Luxembourg and Jersey over many years I agree with him, Luxembourg just isn't in the same league as those places with long standing reputations as tax havens.

The problem with Luxembourg isn't secrecy, it's red tape. If you go about things the right way information is available, but it does help if you speak Luxembourgish and understand the workings of the institutions there. Someone working on my behalf in a Jersey bank once likened it to bureaucracy  in India and nothing like working with a modern West European country.

So if your marriage is on the rocks and in the unlikely event your spouse has 'hidden' assets in Luxembourg my advice is do not panic, there is every chance they can be traced - it just takes time.

Article Source Luxemburger Wort 4/4/09
(Be warned the Google translation of the article is rather strange!)

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Myerson v Myerson

I thought I had the scoop of the day when I read the news of the Myerson judgement as it came out yesterday but I didn't have any time to blog and many blawgers got there first. The case was important in England & Wales because of it's implications for big money cases in which wealth has been lost through the financial crash.

Myerson v Myerson was the case that financier Brian Myerson (see my earlier post) took to the Court of Appeal to renegotiate his divorce settlement because his wealth had been reduced by the current recession. It was ruled that the settlement couldn't be revisited as a result of "natural price fluctuation.""When a businessman takes a speculative position in compromising his wife's claims, why should the court subsequently relieve him of the consequences of his speculation by rewriting the bargain at his behest?" said Lord Justice Thorpe. Giving the ruling he said those "contemplating an attempt to reopen an existing ancillary relief order on the grounds of subsequently encountered financial eclipse would be "well advised to heed the warning that very few successful applications have been reported". The judgement is here.

Full story Source The Independent 2/4/09

Update: According to The Guardian Brian Myerson is to appeal to the House of Lords.

Full story Source The Guardian 2/4/09

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March Blog Highlights

Jonathan Mitchell QC : Google Street View and the law
Following suggestions that Google Street View which was launched in Scotland earlier this month is illegal Jonathan examines the legal issues. His conclusion is bad news for cheating spouses (or any miscreant) caught on camera as there is no authority to support the notion that photographing ordinary street scenes is unlawful.


Family Lore: Brave new world
In a speech to the family lawyers organistation in England & Wales Resolution Mr Justice Andrew McFarlane said new plans to open family courts to the media do not go far enough. The press release is here.

Family Lore: Resolution calls for no-fault divorce
Resolution called for a radical overhaul of divorce laws at it's national conference by asking the government to help take the blame out of divorce and separation by introducing no-blame divorce. It was also said the government "should commit to undertaking a thorough review of family law so that couples can be clearer from the outset about how their finances will be divided." The press release is available here.


Marilyn Stowe: Financial Dispute Resolution – look out for these stumbling blocks
In 2006 new cost rules were introduced in England & Wales for ancillary relief (the court procedure for resolving financial matters) requiring each party to pay their own costs. Marilyn Stowe has noticed a trend with the new rules being used as a weapon to force one party into accepting an offer, because they are worried about mounting legal cost.

Marilyn Stowe: Mesher Orders and Martin Orders: What You Need To Know
In England & Wales Mesher & Martin orders are sometimes used to defer the sale of the former matrimonial home to enable one party (usually the wife) to temporarily remain living there whilst the other party maintains an interest in the property in the form of a chargeback. This can be fraught with problems when the time comes to sell the house, leaving the person who remained in the former matrimonial home unable to afford to buy another property.


Pink Tape: Three posts about the impact of the government’s latest round of proposed cuts in legal aid in England & Wales on vulnerable families and children here, here and here.


Judith's Divorce Blog
Interesting posts about the recession, not intervening in others marital relations and winning in Judith's unique style


Los Angeles Divorce and Family Law: International Divorce
An article from the The Economist. Thanks to John Bolch of Family Lore Focus for the tip off.

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Money Box

Following an earlier programme answering questions about mediation, the Child Maintenance and Enforcement Commission, splitting assets, benefits and pensions BBC Radio 4's Money Box progamme took more calls earlier today on divorce and separation.

As well as John Fotheringham, consultant in family law at Fyfe Ireland, this time the panel included Jane Craig, family partner at Manches, and Kirsty Marshall, senior advice worker at Gingerbread.

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Divorce North & South of the Border

Thanks to John Bolch of Family Focus for pointing out a story in The Times this morning comparing the differences between divorce settlements in Scotland and England & Wales.

Taking the scenario of a couple with assets of £10m and eligible to divorce in either jurisdiction it is figured that a husband would be considerably worse off divorcing in England than Scotland. In other circumstances the wife would be better off issuing in Scotland. - "Food for thought as to whether legislation to introduce a more streamlined system could be brought in across the UK."

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Devious Husbands

It is amazing the lengths some people go to in order to defeat their spouse's claim to financial provision on divorce. The Scotsman today reports the dismissal of an appeal against a ruling annulling a husband's bankruptcy and ordering him to pay a £1m lump sum to his former wife.

William Paulin issued proceedings for a bankruptcy order to be made against himself when confronted with his wife's application for financial relief. This resulted in the divorce court being unable to order a settlement and the wife having to apply for the bankruptcy to be annulled.

After accepting the wife's evidence that her husband had issued threats that were she to take him to court, he would hide his assets and ensure that she got nothing and he had substantial undisclosed assets Lord Justice Wilson condemned devious husbands.

The judgment is here.

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