Katie McCann

Length of Marriage – How is Money Distributed Following Divorce

Published on January 15, 2018January 11, 2019

Family law calls for quite a lot of mathematics. From calculating how matrimonial finances should be divided upon divorce, to considering the tax implications of the same, a lot of number crunching goes on.

Here, Head of Family for Kuits Katie McCann, who specialises in complex matrimonial finances, explains how a good divorce lawyer needs to be well-versed in the calculations that are necessary to ensure a fair settlement is reached for their client.

How is money distributed following divorce?

When dealing with finances after a marriage has broken down, parties must disclose their financial situations so that the ‘total available pot’ can be calculated. After this, each party’s circumstances must be considered so that finances can be divided in a way that takes care of their needs at the same time as being fair.

In the famous case of White v White (1 All ER 1) Lord Nicholls introduced the ‘yardstick of equality’ and explained that, as a general rule when it comes to dividing finances, equality should only be departed from if there is a good reason for doing so.

In order to consider what would represent a fair division of assets, judges will be guided be S25 Matrimonial Causes Act 1973. Amongst other considerations such as the standard of living enjoyed by the family prior to the breakdown of the marriage, each parties’ income and earning capacity moving forward, judges must give thought to the duration of the marriage.

Does the length of the marriage affect the way money is distributed?

The significance of the length of a party’s marriage was highlighted in the case of Sharp v Sharp (EWCA Civ 408), in which Mrs Sharp claimed that the £10.5million bonus payments that she had accrued during the marriage should be protected. Mr and Mrs Sharp had no children, earned similar incomes and, most importantly, had only been married for four years. Based on the facts of the case, the Court of Appeal reduced Mr Sharp’s initial award from £2.7million down to £2million, thus highlighting that equality is more likely to be departed from when a marriage has been short-lived.

As a result, it is now more important than ever for family lawyers to be able to advise their clients whether a marriage is likely to be considered ‘long’ or ‘short’ by the Court. As there is no definitive guidance on this topic each case must be decided on its own facts and this is where things start to get tricky.

Does cohabitation affect the court’s view of the length of a marriage?

The case of GW v RW (EWHC 611) makes it clear that if a couple’s cohabitation moves seamlessly into marriage, such cohabitation must be considered when calculating the length of the marriage. Using a worked example to illustrate the importance of this guidance, in the event a couple have cohabited for 15 years and then are married for just three, this marriage is most likely going to be defined as long. This is extremely significant, as we know that a long marriage is likely to result in finances being divided equally between the parties.

Based on the above, you would be forgiven for thinking that 15 years of cohabitation but no marriage would grant both parties an equal split. However, there is no such thing as common law marriage in the UK. A couple could have lived together for 30 years or more, but the absence of a marriage certificate means their entitlements are limited in the event the relationship breaks down.

This is where our current laws start to become illogical: either cohabitation is worth something or it is not. It cannot be fair that a cohabitation of 10 years followed by a short marriage will result in an equal split, but a 30-year cohabitation with no marriage is worth nothing at all.

With more and more couples choosing to cohabit, something has to change. If logic is to be worth anything at all, then either long-term cohabitation should result in an equal financial division following separation, or cohabitation should not be considered when calculating the length of a marriage. At the moment the maths simply doesn’t add up.

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ABOUT KATIE

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Divorce News

Marriage or Civil Partnership? What’s the Difference?

Published on March 1, 2017January 11, 2019

Head of Family at Kuits, Katie McCann, comments on the recent news that a heterosexual couple have lost their Court of Appeal battle to enter into a civil partnership.

This week, Rebecca Steinfeld and Charles Keidan lost their battle to legalise civil partnerships for heterosexual couples in the Court of Appeal.

The couple challenged a previous High Court ruling that was made last year, stating that they could not have a civil partnership because The Civil Partnership Act 2004 demands that they be of the same sex, which they argued was discriminatory.

Many people have since asked me why this couple would bother – if they have the option of just getting married, why would they enter into a stressful and costly litigation situation?

Let’s lift the bonnet on this for a moment. What are the real differences between marriage and civil partnerships?

Well, in a civil partnership, you cannot say you are ‘married’ – no actual ceremony needs to take place (save the signing of a formal document, although most couples do add some ceremonial aspect to their day); there can be no religion involved; and, interestingly, the certificate includes the names of both partner’s parents (instead of just fathers, like on marriage certificates).

Furthermore, adultery cannot be used as a ground for a dissolution (its dissolution in a civil partnership not divorce).

However, when it comes to how finances are dealt with and the law that surrounds that, then the provisions are almost identical to those when dealing with a financial application upon divorce.

Civil partnerships were initially brought about to give same-sex couples the option of legalising their relationship along the lines of marriage, before the law allowed them to marry.

As such, some argue that civil partnerships are just a hangover from the time before lawmakers felt comfortable enough to take the final step to true equality by making marriage available to all – a half-way house before real equality was achieved.

Arguing to allow access to civil partnerships to heterosexual couples is seen by those of this view to be flipping back in time.

On the other hand, there is a case to be heard that the couple’s human rights are being potentially being interfered with, as same-sex couples now have more options than heterosexual couples, which doesn’t exactly lend itself to equality.

In my opinion, the government really should be thinking about cleaning up the legislative landscape. They might, for example, decide to get rid of civil partnerships all together, or make them available to all.

If you would like to discuss any of the issues raised in this article, please call our Family team on 0161 832 3434.

About Katie

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Divorce Law UK/Family Mediation

MIAMs are Not the Way to Encourage Divorcing Couples to Mediate

Published on April 19, 2016January 11, 2019

The Ministry of Justice recently published the Legal Aid Statistics for October to December 2015, which revealed that the number of Mediation Information and Assessment Meetings (MIAMs) have continued to decline and were down by 16% in the last quarter.

MIAMs were introduced in April 2011 and became compulsory for divorcing couples to attend in April 2014 before they’re granted permission for their matter to be progressed to court.

The aim of the meetings is to assess whether mediation is an appropriate way to resolve any issues and, ultimately, to try to avoid court proceedings.

The Advantages of Mediation

While mediation is not suitable for every case, it certainly has its benefits. Going to court may provide closure, but it puts decision-making in the hands of a judge. Mediation, on the other hand, provides the divorcing couple with far more control and allows them to work together to reach practical agreements.

Cooperating to reach conclusions leads to a far less hostile environment, where communication is encouraged and stress levels can be reduced.

Mediation also often allows for a far speedier process, which is significantly cheaper than litigation, and it can be especially useful when reaching decisions in relation to any children, where flexibility and compromise is vital.

Why aren’t MIAMs Leading to More Mediation?

Despite the above advantages, the introduction of compulsory MIAMs have not resulted in the desired increase in the use of mediation.

There are several reasons for this.

The first, quite correctly, is the existence of several exemptions that automatically permit non-attendance at a MIAM, based on the fact that mediation would be unsuitable for the couple in question.

MIAMs are Not the Way to Encourage Divorcing Couples to Mediate Logical exceptions include situations where there has been an allegation of domestic violence in the last 12 months, where the whereabouts of one ex-spouse is unknown, or where any delay caused by attending a MIAM would cause significant harm to a child, a significant risk of a miscarriage of justice, or unreasonable hardship.

These exemptions, together with several others, are perfectly understandable and forcing such couples to attend mediation would be, at best, pointless and, at worst, unethical.

However on the other side, a MIAM form can be ‘signed-off’ if a session could not go ahead due to the non-attendance of one of the parties (without good reason). This option, which arguably reduces the process to a box-ticking exercise, seems to be counter-productive.

After all, MIAMs are either compulsory or they are not. Failure to show up should not be as accepted as a satisfactory excuse in the way it currently is.

Furthermore, even when separating couples willingly attend a MIAM, it only results in the use of mediation in less than a quarter of cases. For this reason the question must be asked, if compulsory MIAMs are not successfully encouraging the use of mediation as a method of alternative dispute resolution, then what will?

A Proposed Solution – Make Mediation Compulsory Instead

It seems that the obvious way to increase the use of mediation is to make mediation itself compulsory.

While this appears somewhat draconian at first glance, if approached sensibly it may have the desired outcome and inconvenience the parties no more than attending a MIAM currently does.

Firstly, it would be feasible to require compulsory attendance at a couple of mediation sessions, while retaining the exemptions that currently exist for MIAMs. The information that is currently provided at a MIAM could either be discussed at the beginning of the session or sent ahead in the post, with the mediation session highlighting the benefits that can be achieved.

After all, the best way to decide whether something will be a success is to try it out.

Those who oppose compulsory mediation will argue that it would be unfair to impose it on the unwilling couples who, to put it bluntly, cannot stand the sight of each other. It is important to remember however, that there is no need for such parties to even see each other at mediation – it can take place in separate rooms, with the mediator going in-between.

The compulsory nature of the first few sessions would also remove the need for one of the parties to suggest the use of mediation, putting the separating couple on an equal footing from the offset.

Compulsory mediation may not appeal to everyone, however the suggestion is born from the fact that couples are already being ‘forced’ to attend MIAMs, which are not obtaining the desired results. The obligatory nature of this has already been established so extending this principle to require attendance at an actual mediation session would simply increase couples’ awareness of its benefits.

Let’s not forget, mandatory mediation would only be for couples who wish to proceed to court – those who are willing to negotiate by themselves, or through solicitors, would be left alone to do so.

But we think it’s time to face reality – MIAMs aren’t the best way to encourage mediation – mediation is the best way to encourage mediation.”

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Divorce Law UK

Prenuptial Agreements: The Tabloids vs Reality

Published on April 14, 2016January 11, 2019

‘Judges say they will ignore pre-nups unless couple are rich,’ reads a recent tabloid headline, before stating that the majority of spouses who sign prenuptial agreements are wasting their time, since only the very wealthy can expect their wishes to be honoured.

Here, Kuits’ family team explain why, whilst the above article has a grabbing title, those who have entered into such agreements – and may now be concerned that they have done so without good reason – should not be worried.

Going Beyond the Headlines

The guidance in question comes in the form of a leaflet that was put together by the Family Justice Council, entitled ‘Sorting out Finances on Divorce 2016’ .

The guide seeks to help Litigants in Person, who will no doubt find the prospect of negotiating an agreement without legal advice extremely daunting.

This point itself is extremely important: the guidance is aimed at those who cannot afford lawyers upon divorce and who will, in the majority of circumstances, not have many assets between them to consider upon separation.

“In such scenarios,” says Katie McCann, Head of Family for Kuits, “it is and always has been the case that the couple’s needs will be the priority, and no family lawyer in the country would advise otherwise.”

She goes on: “The article states that only the very wealthy can expect their pre-nup wishes to be honoured. Of course, no such blanket statement is actually made within the legal guidance and the leaflet’s reference to the fact that pre-nups are often irrelevant correlates to the fact that they are not suited to low net-worth individuals, for whom the guidance has been written for. There is of course, a large group of individuals sitting between such people and the ‘mega wealthy’, many of whom could benefit from having a prenuptial agreement.”

“Another ‘conclusive’ statement contained within the article is that the only case a pre-nup might be of use to an ordinary couple is when a spouse hopes to keep a specific item of personal or sentimental value, such as a family heirloom, pet or vehicle.

Again, there is no such absolutism contained within the guidance that actually states that a couple who would not have any surplus cash left over in the event they divorce might want to use a pre-nup instead to protect a specific item, rather than have it determine the division of all of their assets.”

Prenuptial Agreements UK – Looking at the Facts

Under current UK family law, prenuptial agreements are not, and never have been, legally binding contracts.

prenuptial agreements Instead, they are used to set out how a couple would ideally like their assets and liabilities to be divided in the event of a divorce and, if entered into correctly – i.e. they are fair, there has been no duress and there has been parity of advice – the courts will likely consider them to be a factor when deliberating the divorce settlement as a whole.

Whilst there have been suggestions by the Law Commission to transfer prenuptial agreements into binding agreements, this has not yet come to fruition and no legal guidance has suggested otherwise.

Both the article and the guidance do correctly point out that the main factor when dealing with the division of assets post-divorce is the needs of both parties.

This will be true for couples with or without a prenuptial agreement, and for couples with or without wealth. A prenuptial agreement will always be disregarded if its contents do not enable both parties’ needs to be accommodated, and this will be true even if the couple in question are extremely wealthy.

The Family Justice Council’s guidelines are an extremely useful tool for divorcing couples who cannot afford legal advice. The advice contained in the guidance has been written to cater for a specific audience and this should be remembered when reading it.

The law surrounding prenuptial agreements has not changed and remains firmly in place.

Couples who have entered into prenuptial agreements will hopefully have done so with legal advice and will have been educated to the fact that they are not currently legally binding, but will serve as a strong indication for the judge if the appropriate steps have been taken.

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Divorce Law UK

How, Why and What is a Prenup?

Published on January 9, 2016January 11, 2019

When anyone gets married, they truly hope it will last forever; however unfortunately this isn’t always the case.

With 42% of marriages in the UK now ending in divorce, people are extremely keen to take a sensible approach by planning what should happen if their marriage does break down.

Once viewed as an extremely American concept, prenuptial agreements are now becoming a very popular way for couples in the UK to plan for the ‘worst case scenario’.

But what exactly are pre-nups? And are they even legal in the UK? Katie McCann, Head of Family at Kuits Solicitors, answers some important questions which surround this potentially complex area of law.

What is a prenuptial agreement?

A pre-nuptial agreement is an agreement created by a couple before they get married. It sets out what will happen to any assets should their marriage break down.

Why have a prenuptial agreement?

There are several reasons a couple may want to enter into a prenuptial agreement. One spouse may have family wealth requiring protection so that it is ring-fenced and will not form part of a matrimonial claim upon divorce. Even when there isn’t exceptional wealth, couples may prefer to ensure that they are on the same page by having an agreement that clarifies exactly what should happen if they divorce.

The significant benefit of a prenuptial agreement is that things can be agreed in a calm and equitable manner, as opposed to when the relationship has broken down and acrimonious feelings may cause either spouse to act without rationale.

Are they legally binding?

In the UK, prenuptial agreements are not automatically legally binding. However, recent case law seems to suggest that the courts will uphold agreements that have been entered into fairly. There have also been proposals put forward by the Law Commission that state that they should be given legal status.

Who decides on the contents of a prenuptial agreement?

The contents of a prenuptial agreement must be agreed by both parties. Although suggestions may be made by each spouse, both must feel comfortable with the agreement. If they are not, or if the court finds that either spouse was bullied or signed the agreement under duress, then the agreement will not be valid. A prenuptial agreement should therefore not be used to disadvantage one spouse, but rather it should set out a reasonable and equitable agreement.

What should go into a prenuptial agreement?

It may actually be beneficial to first consider what should not go into a prenuptial agreement, so as to avoid the court refusing to uphold certain clauses or, worse, concluding that one clause should invalidate the entire agreement. In order to avoid this, the prenuptial agreement ordinarily would not deal with anything to do with personal issues and instead would focus only on finances.

Child arrangements would rarely be included, as the court cannot guarantee to uphold such clauses on a public policy basis, given the ever changing and unpredictable needs of children as they grow up.

Whilst the contents of a prenuptial agreement will be totally subjective to the couple entering into the marriage, there are common things that are often included. These are:

how property should be divided upon divorce,
whether any property should be considered separate and therefore ring-fenced, and why
who should take responsibility for any debts
how inheritance should be dealt with

What is a prenup — What should go into a prenup? Property for one.

The recordings contained within a prenup are just as important as the actual agreements contained within. As an example, it is definitely worth recording that both parties intend for the prenuptial agreement to be binding, and that they both believe the contents of it to be fair.

It is also worth stating that the agreement has been entered into without duress or undue influence and that neither party rushed into signing it.

A recording should be included to state that both parties have taken independent legal advice, and that full and frank financial disclosure has taken place.

A recording should also be included to state that, in the event one clause is disputed, this should not invalidate the whole agreement.

It is not unusual to state that, in the event of divorce, if the prenuptial agreement is contested, the couple should attend mediation at first instance instead of petitioning at court.

Can prenuptial agreements be contested?

There are several reasons why a prenuptial agreement may be contested or found to be invalid. If both parties did not obtain legal advice, or if there was disparity of advice, this may result in one of the parties being prejudiced.

A prenuptial agreement will be contested if one of the parties feel that they had been forced to sign it. This problem commonly occurs when one spouse is presented with an agreement on the eve of the wedding and signs it under duress.

As a rule of thumb, prenuptial agreements should be signed at least 4 weeks in advance of the wedding. Both parties also have a duty to disclose all of their assets before entering into the agreement. It must be the case that each party knows what they are effectively losing or gaining claims over from the start.

What if I’m already married?

Couples that have already married may become aware of the benefits of having a prenuptial agreement and regret not having created one ahead of their wedding. In this case, they will be able to enter into a postnuptial agreement instead.

Postnuptial agreements operate in a similar way to prenuptial agreements; however, as their name suggests, they are entered into once the marriage has occurred. Like prenuptial agreements, they are not 100% legally binding; however, they are likely to be upheld by a court if they are entered into fairly.

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Children of Divorce

Child Maintenance and Child Contact: How some Parents are Adopting a ‘pay per view’ Attitude to their Children

Published on December 23, 2015September 14, 2019

When a couple split up they are likely to have a tough and emotional time whilst coming to terms with the fact that their relationship is over.

For couples with children, this period is destined to be even more challenging, as they will also have to focus on making the necessary arrangements to ensure that their little ones adapt to the situation and have their needs catered for moving forward.

Decisions will need to be made, amongst other things, about how much contact the children will have with each parent, their living arrangements and what financial support will be given by way of child maintenance payments.

These topics can naturally be quite difficult to discuss and it is quite common for disagreements between the parents to arise.

The Child Maintenance Options online calculator is an excellent tool that allows parents to input the information relevant to their situation before generating the appropriate child maintenance figure that should be paid monthly.

When a child maintenance agreement cannot be reached between the parents, the Child Maintenance Service can act as an intermediary between them. The fees for using the government-led scheme include a £20 application fee, a 20% collection fee on top of the maintenance figure (to be paid by the paying parent), and a 4% enforcement fee which is deducted from the child maintenance. Such fees should ideally work to deter parents from using the service and instead they should attempt to reach such arrangements themselves.

As mentioned above, another significant agreement that must be reached is in relation to the children’s living arrangements and how much time they will spend with each parent.

Sometimes this can be simple to work out and children may split their time equally between two houses, or perhaps have one parent’s house as their base whilst going to stay with their other parent every other weekend. When such arrangements can be made amicably, it is hugely beneficial for the children involved. After all, suddenly having two homes can be a big enough change, without the children having to experience a sense of conflict when their parents cannot agree on an appropriate parenting plan.

Unfortunately, when child arrangements cannot be agreed following divorce and separation, it is often fathers who feel as though they are mistreated.

Although there is certainly no legal presumption that mothers should determine their children’s schedules, sadly this can often happen. Due to this there are several support and action groups who are fighting for a presumption of equal parental contact post-separation.

Whilst the above campaign is an extremely honourable one, care must be taken to ensure that the issue of parental contact is kept separate from other child-care issues.

child maintenance and child contact — Ensure that the issue of parental contact is kept separate from other child-care issues.

Unfortunately the opposite is encouraged by some support groups. By way of example, ‘New Father 4 Justice’ (which, importantly, should not be confused or affiliated with ‘Fathers 4 Justice’) claims that they strongly support the non-payment of child maintenance by those who are being denied access to their children.

There is no doubt that being refused child contact is one of the hardest and most excruciating things that could happen to a parent; however, the above attitude is extremely damaging. To actively encourage fathers who are not seeing their children to stop providing financially for them only serves to increase tensions at a time when they are, no doubt, already sky-high.

Aside from the fact that it will be to the children’s detriment if maintenance is not paid, it is also important to note that financial support – although it does not automatically entitle a parent to contact – is a legal duty. Contact and maintenance are two separate issues and therefore should not be merged together to encourage a ‘pay per view’ environment.

As explained on the Child Maintenance Options website, whilst it is certainly important (when safe) for both parents to have an active role in the children’s lives, it is important that access should not be used as a bargaining tool for negotiating child maintenance and vice versa.

If a parent is being refused contact to their children, they should continue to make child maintenance payments whilst trying to resolve the issue.

Although some parents may find making payments at such a time challenging, they should try and remember that the children’s welfare is the priority and it will be them who suffer if the maintenance is not paid. The suffering parent can then try and negotiate contact with their unwilling ex-partner, although sometimes this will not be possible.

In such a situation, mediation should be the next port of call.

Mediation is an extremely effective and reasonably inexpensive way of trying to sort such disagreements out – so much so, that attending a MIAM (mediation information meeting) is now a compulsory preliminary step for those wanting to issue court proceedings. At mediation, an independent third party will try to guide the parents to reach a child arrangement that they are both happy with.

If mediation is unsuccessful, an application to court can be made for a child arrangement order as a last resort. Naturally, court proceedings are expensive and, often, physically and emotionally stressful, and should be avoided if possible. Unfortunately however, in some circumstances, court will be the only option and a judge will make a decision in the children’s best interests.

Whichever method is used to try to arrange child contact, parents must remember to stay focused on the children and remember that withholding maintenance payments will only negatively impact the children that they care so much about. It is also worth remembering that, by continuing to pay maintenance whilst being refused child contact, parents are showing their ex-partners that they are willing to do the right thing all of the time – not just when things go their way.

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Children of Divorce

Parental Disputes and Divorce: When Divorcing Parents Hold Different Beliefs, Where Does that Leave the Children?

Published on September 10, 2015September 14, 2019

Katie McCann Head of Family Law and in-house counsel at Kuits Solicitors — Katie McCann
Head of Family Law and in-house counsel at Kuits Solicitors

Raising children together within the realms of a marriage or relationship can be tough to say the least.

Each parent’s own personal upbringing will have formed their own set of beliefs and enabled them to decide how they wish to raise their family. Coming together with another person, who is likely to hold many different beliefs, can be taxing.

As the couple’s children grow up, there will be discussions about many things, including the best method of discipline, views on education, and even how much financial support to give. However, by effectively communicating, parents are often able to reach a compromise.

Upon divorce, spouses with children are encouraged to continue to co-parent. This means that, despite having separated, they should continue to discuss anything going on in their children’s lives and make parental decisions together. For some, this task may be a simple one – after all, having been married, the parties are likely to have an understanding of how they initially agreed to raise their children and therefore this can continue harmoniously without their personal disagreements getting in the way. For others, however, things may not be so simple.

There are various reasons why co-parenting may be difficult after divorce. Often, parents find it hard to set aside the hurt and anger they feel towards each other in order to focus on their children.

Suggestions can be seen as personal attacks and questions can be perceived as a lack of trust in the other’s parental abilities. Alternatively, spouses may be divorcing due to lifestyle differences, having realised they are not compatible. When children are involved in the latter situation, it can create a serious challenge to co-parenting, as spouses may feel very differently about how they wish to raise their children.

Parental disputes involving religion – case examples

An example of such a dispute can be found in the case of Re J (child’s religious upbringing and circumcision)[1]. The non-practicing Christian mother and the non-practising Muslim father in this case had divorced when their child was two and a half, after which the child was brought up by his mother in a secular household and his only contact with Islam was through his father.

When the child was five, the father applied for a specific issue order for the child to be circumcised, claiming that the mother had agreed to the procedure when she had been pregnant.

The court held that the child should not have the circumcision. Their decision was based on the fact that his upbringing was secular, the circumcision was an irreversible surgery with no medical basis, the mother opposed it and it was not in the child’s best interests.

The father appealed, but this was dismissed.

Another example of a post-divorce parental dispute can be seen in Re G[2].

Here, the ex-spouses were both Jewish, having been part of an ultra-orthodox community when they were married. Along with an application for a residence order, the mother made an application for a specific issue order, seeking permission to enrol the children in a new, less religious co-educational school.

The father opposed the application as he wanted them to remain in the single sex ultra-orthodox school they had been attending until the matter came before the court.

The court had to decide whether the mother’s argument that the children would receive a better education in the latter school should take precedence over the father’s desire to prioritise the religious environment that was available in their current school.

Lord Justice Munby explained the court’s decision to rule in favour of the mother, stating: “Our objective must be to maximise the child’s opportunities in every sphere of life as they enter adulthood.”

Whilst the court gave serious consideration to the children’s religious needs, they felt that a balance between education and religious philosophy could be achieved in the less religious environment, which would equip them to decide what type of life they wanted to lead when they were older.

The religious school was viewed as limiting, as it was more likely to restrict their educational options in the future.

I’m involved in a dispute with my ex-spouse – what should I do next?

The above cases are examples of rather significant disagreements between ex-spouses. Whilst such large disputes may not arise in every co-parenting scenario post-divorce, there will almost always be times when small disagreements arise.

It is extremely helpful to communicate with your ex-spouse when your opinions conflict.

You should try not to let any animosity that exists between you affect these conversations; instead, you should remember that your children are the most important thing to you both and everything else should be left at the side-line. When conversations are unsuccessful, or when issues are significant, it may be useful to introduce a mutual friend to mediate; or, when this is not possible, to hire a professional mediator or lawyer, who will try and guide you to reach a compromise.

Unfortunately, sometimes court will seem like the only way to resolve parental disputes, and a prohibited steps order or specific issue order application must be sought to make or to prevent the other parent from doing something. The court will always prioritise the welfare of the child and their best interests.

[1] [2000] 1 Fam (CA) 307

[2] [2012] EWCA Civ 1233

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Financial and Legal Advice

Child Support Payment – Defaulters Beware!

Published on July 28, 2015January 11, 2019

The case of Mr and Mrs Aly hit the headlines last week when HHJ Mark Rogers ordered Mr Aly to hand his family’s entire fortune (£550,000) over to his ex-wife following their divorce.

This ruling has shocked many, as it is so far removed from the distinguished ‘yardstick of equality’ concept that was introduced by Lord Nicholls in White v White.[1]

The basis of this theory is that, when dealing with financial division following divorce, the starting point should be to consider an equal distribution between the spouses. Whilst a slight departure from equality would not have raised eyebrows, digression from 50% to 100% is truly remarkable.

So how did the court reach such a decision? Firstly, we must look at the facts surrounding the case.

Mr Aly is a 54-year-old anaesthetist whilst Mrs Aly, 46, is a GP. Therefore, it is likely that the court accepted they had both made equal contributions during their marriage of significant length (nine years). It is also likely that both spouses became accustomed to a similar standard of living during their marriage and that through continuing to work they would both be able to remain leading comfortable lifestyles.

The above facts suggest that the yardstick of equality would have been the perfect method by which to distribute matrimonial assets; however, the court assessed the behaviour of Mr Aly following the divorce and reached their decision on the basis that he had ‘abdicated responsibility’ of his ex-wife and children.

In 2012, a year after the couple had divorced, Mr Aly left the UK and moved to Bahrain, where he formed a new relationship and fathered another child.

Having been married to Mrs Aly for nine years and having had two children with her, Mr Aly left the country and stopped paying maintenance and child support to the family he left behind.

Mr Aly’s lawyers argued that the ruling was unfair, as it gave no consideration to his needs. They professed that, moving forward, he would be willing to pay £40 child support per week.

Unfortunately for Mr Aly, however, it was a case of too little too late.

A promise to start making payments was clearly too difficult to believe coming from a man that had not made a single contribution for several years. This, in addition to the fact that the Child Maintenance Service (CMS) would not be able to pursue Mr Aly whilst he lives abroad, means that his promise carried little weight.

As Lord Justice McFarlane explained: “There is no realistic expectation of getting any further amount of maintenance out of the husband.”

The court have seemingly used the case of Mr and Mrs Aly to highlight the significant responsibilities attached to marriage – responsibilities that can often continue long after a marriage has ended.

Rather than being seen as a flippant activity that can be undone at the flick of a switch, the case shows that marriage is serious commitment and anyone who thinks that they can up and leave their responsibilities behind once a marriage is over, now stands corrected.

Perhaps the case also highlights the growing importance of prenuptial agreements in today’s society.

In an age where there is seemingly a misunderstanding about post-divorce responsibility, a prenuptial agreement would allow both spouses to have a clear understanding of what they can expect to receive in the event of divorce.

Of course, pre-nuptial agreements will not allow one parent to abdicate responsibility in relation to their children. Such matters are considered to be public policy issues and therefore no agreement can permit non-payment towards a child.

This in itself shows the importance of child maintenance payments, and therefore if someone is willing to forgo making such payments for their children and they are not within reach of the CMS, then the courts may have no option but to transfer a substantial portion of the matrimonial assets to the caregiver to ensure that the child’s welfare is secure. Defaulters, you have been warned.

[1] [2000] UKHL 54

About Katie

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Divorce Law UK

Grandparent Rights in UK

Published on July 21, 2015January 11, 2019

When parents get divorced, they are encouraged to sort out arrangements for any children between themselves, so that things can remain as amicable as possible.

The best interests of the children should be the focal consideration and both parents should continue to have a strong involvement in their lives, so long as there are no welfare issues to consider.

The concept of ‘custody’ was traditionally used to define who children of divorce would predominantly live with; however, this has been abolished and, instead, parents will make ‘child arrangements.’

The change in terminology was an attempt to remove the concept of one parent being the ‘winner’ and one the ‘loser’, and to keep parties focused on making decisions based on what is best for the children.

In the event parents cannot agree on arrangements in relation to their children, they can apply to court for a child arrangement order to be made. Their right to apply is an automatic one, which means that although a parent may worry about the outcome of the application, they can relax somewhat in the knowledge that the court will make the best decision for the children.

Unfortunately the same cannot be said for grandparents in such circumstances. When their children decide to divorce, this can mean an uncertain future in relation to contact with their grandchildren.

This is due to the fact that if one of the children’s parents decides they do not want the grandparents to maintain contact with the children, the grandparents do not have an automatic right to apply to court for a child arrangement order to be made. Instead, they must apply to the court for permission to make an application for such an order.

It goes without saying that grandparents in the above position should always attempt to negotiate with whichever parent is making contact difficult for them. However, when such negotiations aren’t successful, many people argue that grandparents should have an automatic right to apply to the court for a child arrangement order.

The above argument is based on the fact that many grandparents have extremely close relationships with their grandchildren, and it can be traumatic for both the children and the grandparents when such relationships come to a very sudden halt upon divorce.

Many people also find it unfair that relationships between grandparents and their grandchildren should stop because of ill-feelings between the parents. Neither the grandparents nor the children should be punished because of any animosity between parents.

Whilst there have been parliamentary debates about the difficulties grandparents face in maintaining contact with their grandchildren after divorce, no action has been taken yet.

In the 2008 report, ‘Beyond the nuclear: Including the wider family’[1], it is pointed out that the government argues that if grandparents had an automatic right to apply for contact, this could impact a child’s rights being paramount.

The government claims that it would be hard for a child’s welfare to be considered, or for their rights to be protected, if grandparents were not required to request permission to apply to court.

The main problem with the government’s argument is that it is not consistent. Any potential welfare issues that could emerge from providing grandparents with an automatic right to apply for contact surely already attach to the existing automatic right that allows parents, or those with parental responsibility, to apply for contact.

It is important to note that no one is campaigning for grandparents to have an automatic right to contact, as this could indeed be detrimental. Instead, they should simply be granted an automatic right to be acknowledged and considered in child arrangements.

Providing grandparents with an automatic right to apply for a child arrangement order, would signify the important role they play in many families.

Eliminating the need to request permission to make an application to court would remove one huge hurdle that grandparents currently often need to go through during an already emotionally draining and troubling time. This would make the process easier and, hopefully, in cases where it is appropriate, allow contact to resume as soon as possible.

[1] http://www.fnf.org.uk/phocadownload/research-and-publications/research/Including_the_Wider_Family.pdf

About Katie

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Children of Divorce

A Mother on the Run: Rebecca Minnock’s Attempt to Take the Law into Own Hands

Published on June 26, 2015January 11, 2019

Runaway mother Rebecca Minnock plagued the news last week after she went into hiding with her son, Ethan, following a judge’s ruling that the child should live with his father.

Rebecca finally handed herself in on 12 June after admitting that she knew she would not be able to hide forever.

During her two weeks in hiding, Rebecca was in touch with the press and explained to them that her actions were a result of her having “lost all faith and trust in the system.” Rebecca tried to justify her decision to hide by claiming that she knew “what is best for Ethan because he is my son,” adding, “I feel social services have let me down and the court has been unfair.”

Rebecca’s attempts to present herself as a victim were quashed on 15 June, when Judge Stephen Wildblood QC spoke in open court, before he held a private hearing in relation to Ethan’s future.

He accused Ms Minnock of trying to manipulate the press with a publicity stunt. He added that she had acted very irresponsibly from the point of view of the child’s welfare.

So what exactly is the truth? Did Ms Minnock act rashly and unreasonably or was she doing what any mother would to protect her child?

Before the case came to the attention of the public, there had been a two-year custody battle between Rebecca and Ethan’s father, Roger Williams.

During this period, Rebecca had attempted to frustrate contact between Ethan and his father by fabricating false allegations about Mr Williams. In addition to this behaviour, Rebecca had also allegedly exposed her son to emotional harm. The risk Ms Minnock posed was highlighted by a social worker whilst she was on the run, who claimed that Ethan was emotionally unsafe with his mother.

Judge Wildblood has allowed Ethan’s father to decide whether Rebecca should face further legal proceedings for defying court orders. If she is found to be in contempt of court, she could be jailed.

Madelaine Hailey of the Kuits Family team feels that this case is an incredibly sad example of an intractable contact dispute gone wrong. She explains: “Intractable contact disputes arise when one parent refuses to facilitate a relationship between the child and the other parent without reason, often in breach of court orders, to the child’s detriment. Sometimes parents will make profound allegations against the other as a means of ‘justifying’ their actions, which was found to have happened in this case.”

Whilst the initial ruling that Ethan should live with his father must have been extremely difficult for Ms Minnock to deal with, her resulting actions are in no way justified.

The court’s decision for Ethan to live with his father will not have been made lightly and instead the child’s best interests would have been the overriding objective.

Evidence showed that the risk to Ethan’s emotional welfare if he remained with his mother was sufficiently serious enough for the judge to order that Rebecca should only have supervised contact with her son.

Speaking on how the case has been portrayed to the public, Madelaine commented: “What is particularly disappointing about this matter is how the media and, correspondingly, the public at large seem focused on how the justice system failed the mother. The family court’s primary concern is the welfare of the child, not that of the parents. The court has determined that the child’s welfare is best served by being raised by his father, so why do we not accept this?”

She adds: “Recent research has concluded that the family court doesn’t discriminate between parents on the issue of child arrangements. Perhaps, however, the media and society as a whole have yet to catch up.”

Ethan is now back with his father; however, Judge Wildblood said he will do everything possible to ensure that he has an effective relationship with both parents.

Hopefully, Ms Minnock now understands that the best interests of Ethan must be the primary focus of any arrangements made. This matter should also serve as a warning to other parents who believe that child arrangement orders can be flouted.

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Divorce Law UK/No Fault Divorce UK

Let’s Stop the Blame Game – the Argument for No-Fault Divorce

Published on May 7, 2015March 28, 2022

‘Nobody likes a snitch’ is how the playground saying goes.

Yet ‘snitching’ is what you must do in the UK in order to get divorced, without having to prove that you and your spouse have been living separate lives for a minimum of two years (or five if your spouse will not consent to the divorce).

To be able to divorce after one year of marriage, adultery or unreasonable behaviour must be cited, and these behaviours must be shown to have caused the marriage to have irretrievably broken down.

With unreasonable behaviour being the most frequently used ground, examples of such conduct have ranged from domestic abuse to the respondent not taking a big enough interest in the petitioner’s career. Whatever the accusation, the concept is always the same: the petitioner is pointing the finger at their ex-spouse and claiming that their behaviour is the reason behind the divorce.

At a time when emotions are already running high, it is certainly questionable that the law encourages ex-spouses to ‘stir the pot’ by requiring them to place blame on their ex-partner.

Explaining the rationale behind the law, Sir Nicholas Wall states: “In the nineteenth century […] divorce was a matter of social status – it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the “innocent” party.”

Today, with 42% of marriages estimated to end in divorce[1], surely this reasoning is neither necessary nor appropriate.

no-fault divorce — Let’s Stop the Blame Game – the Argument for No-Fault Divorce

Divorce no longer attracts the same negative social connotations that it once did and therefore the quest for innocence is somewhat redundant. As Sir Justice Munby correctly questioned: “Has the time not come to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?”

Baroness Hale has been the most recent figure to answer this question in the affirmative by reiterating her call for the introduction of no-fault divorce – one that she initially made some 20 years ago.

One of the main arguments against the blame game is that it is effectively pointless.

Apart from allowing one spouse to appear ‘innocent’ and from it allegedly ‘discouraging divorce’ (a theory never necessarily proven), once the finger has been pointed there are no further repercussions. Therefore, by way of example, if adultery is alleged then this will have no bearing on the financial order that a court makes.

Another problem with fault-based divorce, and in particular with the unreasonable behaviour ground, is that it is far too broad.

As mentioned above, it can catch all manners of behaviour; indeed, it seems unfair to tarnish a spouse who does not pay their partner enough attention with the same brush as a violent domestic abuser. It also does not cater for situations where there has been unreasonable behaviour from both spouses, or adultery by one spouse and unreasonable behaviour by the other. In this situation, which spouse should be labelled as the innocent party? Surely time is wasted and emotions are drained by trying to agree who the innocent party is.

Laying the blame on one spouse is not appropriate when a couple have simply grown apart and fallen out of love. It seems unjust to force one party to make an accusation of unreasonable behaviour in this situation, especially as they are unlikely to actually agree with the claims they are making.

The government is currently attempting to get more couples to use mediation by making mediation information meetings (MIAMs) compulsory before beginning court proceedings. They are also offering a complimentary mediation session to couples where one spouse qualifies for legal aid.

The Justice Minister, Simon Hughes, has explained that mediation allows people to avoid the confrontational and stressful nature of court. But, if the government’s aim is to reduce confrontation, surely fault-based divorce must be abolished? If the starting point of divorce is to hold one spouse accountable for the marital breakdown, this does not pave the way for an amicable divorce procedure. If mediation is truly going to be a success, then perhaps a no-fault ground allowing divorce after a year is required.

[1] http://www.ons.gov.uk/ons/rel/vsob1/divorces-in-england-and-wales/2011/sty-what-percentage-of-marriages-end-in-divorce.html

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

Divorce and Finances

Don’t look back in anger? Try telling that to Dale Vince.

Published on March 23, 2015January 11, 2019

Kathleen Wyatt has recently received permission from the Supreme Court to seek financial provision from her ex-husband, Dale Vince.

So far, normal.

Except for the fact that the pair separated 30 years ago before officially divorcing 23 years ago.

So why wasn’t this sorted out following their divorce in 1992?

And what can divorcees do to protect themselves against these types of claims?

During the couple’s relationship, the pair lived a nomadic lifestyle, surviving on very little money. Following their separation, life continued in a similar manner for Ms Wyatt, who today lives in an ex-council house in Wales with her children.

However, things changed dramatically for Mr Vince when he founded Ecotricity in 1995, which is now one of the UK’s biggest green energy companies. Mr Vince’s new lifestyle mirrors his business success and he currently lives in a £3 million 18^th-century castle with his new wife and their son.

At first glance, it seems obvious that any maintenance claim brought by Ms Wyatt so long after their divorce should fall flat. After all, the maths is plain and simple: Mr Vince’s success came three years after the couple divorced and therefore this surely means that Ms Wyatt’s ship has sailed and she has no right to any of her ex-husband’s earnings?

This logic was certainly used by Lord Justice Thorpe in the Court of Appeal, who stated that Mr Vince was not to be Ms Wyatt’s ‘insurer against life’s eventualities’. However, shockingly, when the matter reached the Supreme Court, Lord Wilson ruled that Ms Wyatt should be entitled to bring a claim against her ex-husband and stated that the matter should be heard by a judge in the Family Division of the High Court.

don't look back in anger — Mr Vince when he founded Ecotricity in 1995, which is now one of the UK’s biggest green energy companies.

When the case does come before the High Court, Ms Wyatt will likely base her claim on her significant childcare contributions over the years. Mr Vince will rely on the ridiculously long delay in the claim being brought, as well as the fact that although the couple were officially married for 11 years, they actually only enjoyed marital cohabitation for two years.

Although Ms Wyatt’s claim may not be successful, the fact that she has received permission to bring it before a Judge is still extremely unsettling for divorcees, who should not have to live in fear that their divorces, which they presumed to be ‘done and dusted’, may rear their ugly heads in the form of a claim in the future.

If nothing more, the Supreme Court’s ruling comes as a huge warning to anyone whose marriage ends in divorce, and that warning is quite straightforward: it is imperative to get a final order so that all monetary claims are dealt with together with the divorce.

It is certainly understandable why many fall into the trap of thinking that a clean break is unnecessary; after all, when a couple have lived on an extremely low budget throughout their marriage, the cost of a court order is likely be viewed as an unnecessary expense.

However, it is vital for couples to realise that things can and do change – one party may win the lottery, a loved one may leave a large and unexpected inheritance, or one party may start a business that reaches a level of success they couldn’t have imagined in their wildest dreams.

Today, separating spouses are privy to the ‘online quickie divorce’, a service that allows parties to get divorced for a fixed fee of as little as £100 plus VAT.

Whilst such services may appear appealing and are often very useful for those looking to keep their divorce costs to a minimum, it is imperative for couples to understand that such a service often does not deal with matrimonial finances and instead only take the couple to the decree absolute stage of their divorce.

In order for both spouses to move on with their independent lives after divorce, it is crucial that they draft, approve and sign a final financial order before submitting it to court for approval.

Whilst the cost of a lawyer drafting such an agreement may be a slight inconvenience, it will be miniscule compared to a claim that could be brought years later by an ex-spouse with a hefty sense of entitlement.

Nobody wants to be looking over their shoulder after divorce and the best insurance against having to do this is to tie things up at the point of divorce instead of leaving loose ends.

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

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