Eileen Macqueen

Is it Possible to Vary your Divorce Settlement at a Later Date?

Published on February 20, 2017December 13, 2017

Eileen Macqueen - Devonshires Solicitors, — Eileen Macqueen heads the family law team at Devonshires Solicitors,

The Court of Appeal recently ordered that a divorced wife should receive additional money from her former husband, despite agreeing a settlement almost 15 years ago.

She was initially awarded £230,000 in 2002 in addition to £1,100 in monthly maintenance. She went on to invest the lump sum in properties, which failed to realise a worthy investment. As a result, she was left in debt and applied to the court for a higher pay-out almost 15 years after the divorce.

The Court of Appeal ordered the ex-husband to increase his monthly maintenance payments to £1,441 as his ex-wife was “unable to meet her basic needs”.

Why was she able to vary her divorce settlement?

Following a divorce settlement, the courts can vary maintenance payments if there has been a significant change in circumstances.

In this case, the court felt that the ex-wife’s inability to “meet her basic needs” fulfilled this criterion. The judge explained that the ex-wife had been “hindered” by health problems since the divorce and she had to support herself whilst raising a child. The judge therefore calculated that the ex-wife needed £1,441 a month to sustain her needs.

It is common for the court to vary the settlement by increasing or decreasing the maintenance allowance, however in this case, the court not only increased the monthly maintenance payment, it also stated that the ex-wife would be awarded this payment for the duration of her life. This may have constituted a variation of not just the amount – but also the term – of the maintenance.

Can I vary my divorce settlement?

In rare occasions, a court can vary a sequence of lump sum payments that are awarded initially. However, it is more common to apply to the court to vary periodic maintenance payments. The court will look at each party’s current and past financial situation before deciding on whether to alter the original settlement.

How can I obtain a divorce settlement that cannot be varied?

It is common for individuals to sacrifice ongoing maintenance payments for a larger proportion of the available capital: a one-off lump sum payment (with the associated dismissal of capital claims) can’t be varied at a later date as a matter of course.

If a settlement does include maintenance, a bar can be included at the time of the divorce which would stop an ex-spouse from increasing the duration of maintenance payments.

How will this affect my case?

This cases raises many questions which will no doubt be brought in front of the Court again, so must be considered by those going through legal proceedings, including:

– Should an ex-spouse be responsible for their ex-wife/ex-husband’s financial decisions following a divorce?

– Should the ex-spouse stay completely independent even if this means one party is left in a considerable weaker position than the other?

– Should there be a time bar on how long an ex-spouse is responsible for maintenance payments?

If you believe that you have a change of circumstance justifying a change in your divorce settlement or have been pursued many years after settling a divorce, then seek legal advice as soon as possible.

About Eileen

Eileen Macqueen is a senior solicitor in the Family Department at Devonshires, one of the UK’s leading full service law firms.

Based at the firm’s office in Finsbury Circus, London, Eileen has qualified as a solicitor-advocate (with Higher Rights of Audience) and can therefore undertake advocacy on behalf of her clients.

She is also a member of Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales who believe in a constructive, non-confrontational approach to family law matters.

Relationship in Trouble

Criminalisation of Controlling Behaviour

Published on March 6, 2016December 17, 2017

At the end of 2015, new legislation came into force introducing a new offence for ‘controlling or coercive behaviour in an intimate or family relationship’.

This is a hugely important step, that will help clarify what constitutes domestic abuse, making it easier for individuals to seek help.

One of the most difficult aspects of challenging domestic abuse is helping someone who has experienced such behaviour to identify it as ‘abuse.’

Of its very nature, the relationship between a perpetrator and their victim is founded on the often misguided concept of love.

While the move away from the term ‘domestic violence’ towards ‘domestic abuse’ has assisted, many individuals struggle to define their experience as abusive, particularly if it does not involve physical violence.

The historical lack of a ‘domestic violence’ definition for use in the Family Court has been unhelpful and this new criminal offence will bring clarity. The Statutory Guidance for the offence includes a non-exhaustive list of examples of coercive control, for instance where an individual:

Takes control over aspects of another’s everyday life, such as where they can go, who they can see, what to wear and when they can sleep
Repeatedly puts them down such as telling them they are worthless
Carries out financial abuse including controlling finances, such as only allowing a person a punitive allowance

Such examples will help individuals to identify which behaviour is unacceptable and seek help if appropriate.

The introduction of this offence will also assist with obtaining both injunctive relief and longer term assistance in the Family Court. It should make it easier to obtain a non-molestation or occupation order if there has been no violence but there are a number of other elements of coercive control. This will help individuals to escape abusive relationships before the behaviour escalates.

Furthermore, it should help police to assist those who are unwilling or unable to seek legal assistance.

Increased understanding of such abusive relationships should also help judges to identify individuals who use the legal system to continue to control their former partner, for instance, by repeated Court applications, and parents who use the arrangements for children to continue a pattern of controlling behaviour.

It is essential that the very system designed to protect those who have experienced domestic abuse is not open to violation by those perpetuating such abuse.

Domestic abuse rates have been increasing since 2009 and estimates suggest that 1.9 million people suffered domestic abuse last year. I hope that this new offence brings a glimmer of hope to such a wide-reaching, complex issue.

Eileen Macqueen heads the family law team at Devonshires Solicitors, one of the UK’s leading full service law firms. Based at the firm’s office in Finsbury Circus, London, Eileen has qualified as a solicitor-advocate (with Higher Rights of Audience) and can therefore undertake advocacy on behalf of her clients.

She is also a member of Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales who believe in a constructive, non-confrontational approach to family law matters.

Divorce Law UK

Top Financial Concerns when Thinking about Divorce

Published on January 21, 2016

Yours or mine?

With the news that Cheryl Fernandez-Versini has filed for divorce comes the speculation about how the split could dent her multi-million pound fortune.

As there is allegedly no pre-nuptial agreement in place, the path to separation may be a rocky one for the singer as she could be forced to part with a significant chunk of her wealth.

But it’s not just the rich and famous who are likely to worry about their finances when going through a divorce.

A recent survey commissioned by Devonshires Solicitors polled 1,000 divorced and married people and revealed that 74% of Brits had, or would have, financial concerns when thinking about divorce. This is a trend that can be seen across the board, whether people earn £15,000 or £55,000.

Dividing assets topped the list of financial worries, with almost half of respondents saying that this was the biggest concern, regardless of their income. The majority of clients that I have worked with share the same view, particularly with regard to the former family home.

When determining the financial arrangements of a divorcing couple, the starting point for a Court will be a 50/50 division of the matrimonial assets, although a Court will also consider a number of additional factors, including their ages, earning capacities and contributions to the family.

If, however, any of the couple’s assets were acquired by one party before the marriage or as a result of an inheritance, these will be treated differently by the Court.

In terms of the former family home, the Court’s priority in any separation will be to provide both people (and any children) with a roof over their head.

But difficulties often arise if there are insufficient assets to preserve the lifestyle both parties had become accustomed to. In all cases, the Court will prioritise the welfare of any children. If the children live with one parent for the vast majority of the time, that parent’s housing needs may be deemed greater than the other parent’s.

thinking about divorce However, there are numerous ways to protect the other parent’s interest if it is tied-up in a home for the children, for example, a charge against the home which is repayable upon the youngest child turning 18 years old.

Furthermore, many individuals are emotionally attached to the former family home, which can lead to further disputes in relation to selling it.

I often encounter clients who are keen to off-set claims they have against other assets, such as pensions or ongoing maintenance in order to retain the family home. However, before taking these steps, it is essential to get both legal and financial advice to ensure that your long-term financial position is secure.

Pensions or ongoing spousal maintenance provide an element of security in this respect, but some individuals still choose to retain the family home and downsize at a later stage to release capital. Each case will vary and such a decision is likely to be a finely-tuned balancing act.

Our survey also revealed that child maintenance was a source of worry when divorcing, with one in four stating that this was their main concern.

However – in my experience – disputes surrounding child maintenance are on the decline. This is mainly because the Child Maintenance Service, which replaced the Child Support Agency in 2013, has introduced a new calculation which is clearer and simpler to use.

That said, all parents should familiarise themselves with the finer details of the child maintenance calculation, including the number of nights the children spend with each parent and any other children that live with the paying parent. Parents who earn a gross weekly income in excess of £3,000 (after pension contributions) should always seek specialist advice from a solicitor.

Divorce is rarely easy and financial concerns are natural for any couple going through the process, so it is important to seek legal advice at an early stage to ensure that both parties are fully informed of the options available to them.

Eileen Macqueen heads the family law team at Devonshires Solicitors, one of the UK’s leading full service law firms.

Based at the firm’s office in Finsbury Circus, London, Eileen has qualified as a solicitor-advocate (with Higher Rights of Audience) and can therefore undertake advocacy on behalf of her clients.

She is also a member of Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales who believe in a constructive, non-confrontational approach to family law matters.

Because so much is riding on your divorce