Financial and Legal Advice - Page 14

Divorce involves complex financial and legal considerations that can have long-lasting impacts on your future. This section provides expert guidance on crucial topics such as property division, spousal support, tax implications, and legal rights, empowering you to make informed decisions and protect your interests throughout the divorce process.

where to get divorce papers from when dealing with divorce
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Over-the-counter divorces? They’re not such a bad thing, says Keystone’s family lawyer Zoe Bloom

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Family Lawyer Zoe Bloom
Zoe Bloom – Family Lawyer with Keystone Law

In the latest bid to shake up divorce law, thousands of cases are set to be removed from the courts with the introduction of new divorce centres across England and Wales.

But is the initiative ultimately an attack on marriage? Or should it be applauded? Keystone’s Zoe Bloom shares her views.

As of next month, the vast majority of divorces processed in both England and Wales will be taken out of the courts and dealt with in one of eleven regional centres located across both countries.

Admin staff will deal with all paperwork, rather than judges, with the aim of producing faster and cheaper solutions to marriage breakdown.

The accepted reasons for filing for divorce in an English court will remain exactly as they are – with unreasonable behaviour, adultery, desertion, 5 years separation or (agreeing) couples having lived apart for a minimum of two years.

However, it is the way in which the administrative side of things is handled that will change dramatically. Instead of senior judges being forced to spend time dealing with paperwork, a number of capable yet more junior staff will be dedicated to this part of the process.

Whilst the likes of Ann Widdecombe have condemned the move, suggesting that “it makes a nonsense of marriage”[1], making a divorce as easy as “discarding an old carrier bag”[2], others claim that the idea is merely a consequence of the changing needs of today’s client.

When I first meet with people considering a divorce it is obvious that they have already spent years considering the right path for them personally and their children. It is then, a huge decision to contact me to discuss their future.

Over-the-counter divorces
It takes, on average, 3 months before instructions are formalised. Are over-the-counter divorces a solution?

It then takes, on average, 3 months before instructions are formalised.

By that time, all clients want to achieve is the divorce and separation in terms of finances and arrangements for children. Having taken the time to make the decision, the delays which are imposed by negotiations and the court are an endless source of frustration.

Anything which seeks to streamline the process and which takes that frustration away from people, who are already in a difficult position, must be welcomed and given the chance to succeed.

The evidence from those of us dealing with divorce every day is that nobody enters it lightly.

These process changes do not alter the grounds for divorce and there will still be a level of skill, experience and training required to process the papers.

If they work, the changes can only help clients going through an already difficult time, and release court and judge time, to deal with the more complicated issues resultant from separation.

[1] http://www.telegraph.co.uk/women/sex/divorce/11691060/Why-quickie-divorces-are-a-good-idea.html

[2] Ibid

Zoe is a family lawyer with Keystone Law who specialises in advising mid to high net worth individuals on the financial implications of divorce and separation. She has particular experience in renegotiating financial settlements and challenging previous consent orders, separation agreements and pre or ante nuptial agreements.

As a trained and active collaborative lawyer, Zoe is well-placed to guide clients on the best choice of route to a successful conclusion of their matter, whether this is litigation or settlement.

Zoe is a member of Resolution and has been quoted in the national press in respect of pre-nuptial agreements.

Zoe has a background in private client and tax affairs.

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Pensions and Divorce

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Soila from The Divorce Magazine had the opportunity to interview Karen Agnew-Griffith of Woolley & Co. Solicitors about Divorce, Pensions and Financial Settlement or the Financial Order.

How important has the pension become in today’s divorce cases in view of the Wyatt vs Vince divorce court case?

Karen gave us a quick summary of the proceedings in the Wyatt vs Vince case.  She explained that they were married but it wasn’t a long marriage and they had one child.  They divorced in the early 90s and at the time of divorce they had no assests at all.

They separated, he went and she stayed at home living in quite poor circumstances, raising the child without any financial support from him.

20 + years later, he has made a fortune in wind farms and is now a mulitmillionaire.  She on the other hand, is still living in very poor circumstances and as she has raised the child of the marriage without financial support and is saying she now needs help.

At the time of their divorce those many years ago there was no financial settlement of any description.

The courts have now agreed in fact that she is owed but nothing like the amount that she’s expecting.

So what does it means now for couples getting divorced today or those who got divorced a few years ago and had no financial settlement?

Karen explains that the situation hasn’t changed drastically in as much as family lawyers, divorce courts and judges have always said to clients that they should try to resolve financial order settlements and claims at the time of their divorce process.

Karen has had situations where financial order claims have been made so many years after a divorce involving multiples of millions. So there’s always been that situation there.

What’s remarkable about this case is that it wasn’t a long marriage at the time of the divorce there were no assests and this is many, many years later. But Karen thinks this case is going to be treated in the same way as any other.

The facts of the case are always unique and the uniqueness of this particular situation is his remarkable wealth, her remarkable poverty and the fact that she did make a contribution something the has been taken into account.  She made a contribution in raising that child without financial support from the father.

What does “make a contribution” actually entail?  What does it mean?

Pensions and Divorce
Pensions or Property?

It can be anything, Karen explains that she had a case whereby a mother lived in a property that was in joint names.  Husband left that property, never paid for its upkeep, never paid anything towards the mortgage and 20 years later has come back saying, “Well I know you paid the mortgage off now I’d like to sell.”

The husband’s view then was, it’s the wife’s payment of the mortgage during that 20 years, it was the wife’s contribution in maintaining the property that has meant the property is now availalbe to be sold.

So in that particular case what the judge did was that he asked us to secure a valuation to what the property would have been worth at the date of separation and gave the wife all of the growth on the property up to that point and half of the value of the property at the point of separation.

So contribution can be something like looking after a property or where a parent who is looking after the children post-separation while the other parent who is not looking after the children day-to-day is able to work perhaps full-time and pursue a career.

In the meantime, the other parent with the care of the children, looking after the child in school holidays, looking after the children when they’re sick, perhaps cannot pursue a career and is left with a more lowly paid less of a career opportunity type situation.

So, the parent who is looking after the children is making a contrtibution in that way and quite often in a divorce you will quantify what total assets are and you will give the parent with the children whether it’s husband or wife you will give them an extra few percentage of the total assets.

When it comes to divorce and pensions, divorce hasn’t changed and pensions haven’t changed either. They’ve always been very valuable before the 2000s and since it’s just that peope are now aware.

People are living longer, they are suddenly aware that they are going to have a poor retirement if they havent’ got a decent pension fund. The value of the state pension has fallen. We’ve had a lot of years of opting out so that there’s less additoinal state pension and people generally have been untrusting of pensions and have invested less in pension pots you know in the last 15 years.

We have the situation whereby government workers, civil servants, nurses, doctors, teachers, members of the armed forces, police officers, firefighters, they’ve all had defined benefits final salary schemes and those are worth vast sums often vastly more than the value of any home that the parties own. So and wives are beginning to understand that they are certainly going to live as long as their husbands possibly longer and they need that retirement. They need those funds.

So when it comes to divorce and pensions and property, I asked Karen, pension or property?

She explained that one the court would say, the property, the money in the property is what we call a liquid asset you could sell it go out and buy lots of sweets.

With the pension, up until the recent changes, it was very difficult to cash it in and it was regarded as an illiquid asset.

The recent changes means that there is more liquidity in a pension. Realistically you’re only going to take £30,000 because after that the tax you would pay is punitive. So there’s a little bit more liquidity in a pension, but no frankly you need both. Buy a smaller house and have a pension.

What role does the financial order have to play in a divorce process and divorce settlement?

What is more important, having the matrimonial home or a share in the pension (pension sharing in divorce).

When coping with divorce and looking at divorce settlements, what do both partners need to be aware off with regards to pensions especially if you’re a teacher, firefighter, police officer etc. How would the pension sharing be an important factor in your divorce?

How important is it to reach a financial order?

As you go through your divorce process, don’t forget about completing all your divorce papers including those that deal with your financial settlement or financial order.

Ask divorce lawyers about the financial order and how to go about it all.

How will your divorce affect your pension? Is pension sharing a must do?

If you would like to contact Karen – 01842779905 –  www.family-lawfirm.co.uk

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DIVORCE LAWS
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For Better or for Worse? Dated Divorce Laws Need Major Overhaul!

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Divorce laws
Zoe is a family lawyer who specialises in advising mid to high net worth individuals on the financial implications of divorce and separation.

It is extraordinary that English divorce law has discouraged independence and autonomy for as long as it has. Individuals remain unable to set the agenda for their financial lives pursuant to separation. For example, they cannot:

  • enter arrangements which set out their wishes in the event of separation;
  • On separation they are not able to agree privately, without the involvement of lawyer or written evidence, their financial arrangements; and
  • Most controversially, they have not been encouraged to break the financial ties between them, unless there has been sufficient money to buy out the claim by way of clean break.

Much has been written individually on the cases which have addressed these issues and it is not helpful to reiterate that commentary, but for completeness, the references are to the recent cases of:

  • Wright (the case which gave the press the headline ‘Ex wife told to stop sponging off millionaire and get a job’);
  • Wyatt v Vince (the controversial decision to allow a wife’s claim to be heard over 20 years after separation); and
  • Hopkins (a decision about the enforceability of post nuptial agreements).

These cases have addressed each of the issues and attracted significant publicity.

The public reactions can be found across the media, including most interestingly, the commentary to online articles. It is in those comments we find public opinion on a subject which is usually only aired between divorce professionals.

Opinions are strong and often steeped in personal experience which above anything, remind us how many people are impacted by the law in this area in one way or another. They may be divorced themselves, be the children of divorced or separated parents or supported friends and relatives through a divorce. This explains the public interest but also why the views of the public cannot be dismissed or ignored.

That opinion is overwhelmingly supportive of decisions which encourage autonomy and independence.

Surprisingly both left and right wing commentary is supportive of women returning to the workforce having had children. Viv Groskop of the Guardian wrote an article entitled ‘A judge telling a divorcee to get a job is a triumph for women’s rights’ and Linda Kelsey writing in the Telegraph wrote an article ‘Tracey Wright should get a job. I’m grateful I did’.

Although they approach the issues from different positions both articles support women making choices which give them freedom and self-respect.

The comment section to the articles are full of animated responses some of which become personal. This is utterly in keeping with commentary which addresses the working mother/stay at home mother issues across social media – those unfamiliar can see countless fights on the topic on websites like mumsnet.

In the case of the Guardian’s article, the comments run to 15 pages.

There is a sense, however, that whatever the family decision is about work and life, it is a decision for the family and the family should be free to arrange their affairs as they wish. The decision in Wright takes that position and says that since the agreement to remain a family has broken down, so too has the decision that one party will support the other, and where reasonable, both parties should do their best to support themselves. Where working lives often go onto the age of 70, this does not seem an controversial decision, but of course it is.

This brings us rather neatly to nuptial agreements.

If the public support families being entitled to run their financial arrangements freely, it must be equally supportive of families being free to enter arrangements legally, setting out what will happen in the event the marriage breaks down.

divorce papers when dealing with divorceThe reaction to cases relating to the enforcement or otherwise of nuptial agreements is less feverish, perhaps because the public remain confused about their legal status. Certainly it is the question most commonly and quickly raised in any seminar given to those outside the profession.

We do not yet have the legislation needed to provide clear and consistent advice to families about whether they can and should enter into a nuptial agreement and what is required of them if they wish to. Without wishing to enrage, it is simply not good enough.

The decision in Wyatt v Vince attracted over 580 comments on the Daily Mail website and 797 on the Guardian. The overwhelming public response has been one of outrage that 20 years after separation, it is apparently possible to obtain a financial settlement from assets accrued after the parties divorced. Divorce professionals have had to enthusiastically peddle an explanation that the case has not yet been heard as to quantum. Presumably the public reaction will weigh on the final outcome.

The case attracted this succinct comment from Jo Edwards of Resolution “Resolution believes that Wyatt v Vince [2015] UKSC 14 is an illustration of the need for reform of the law around divorce finance as set out in its Manifesto for Family Law. Resolution wants reform to create greater certainty around divorce with the aim of getting couples to financial independence sooner.”

Divorce professionals will be meeting for Resolution’s annual conference this Friday and Saturday, in Brighton.

Part of the discussions will inevitably focus on the need for reform and the published Manifesto which addresses the following areas where change is needed:

  1. Protect vulnerable people going through separation
  2. Introduce measures to help separating people reach agreements out of court
  3. Introduce a Parenting Charter to help parents understand their responsibilities when they separation
  4. Allow people to divorce without blame
  5. Help people understand how their divorce will affect their future finances
  6. Provide at least basic legal rights for couples who live together if they separate (cohabitants)

The Manifesto is focused on providing people with information and clarity so that they can make their own decisions, while ensuring those who are vulnerable are protected. It makes children central.

The public have already voiced their support of these changes in their reaction to the cases making headlines over the past few months. Arguably, they could go further, but given the slow progress and reluctance to reform the area it is an exceedingly good start and should be widely supported by the public.

Zoe is a family lawyer with Keystone Law who specialises in advising mid to high net worth individuals on the financial implications of divorce and separation. She has particular experience in renegotiating financial settlements and challenging previous consent orders, separation agreements and pre or ante nuptial agreements.

As a trained and active collaborative lawyer, Zoe is well-placed to guide clients on the best choice of route to a successful conclusion of their matter, whether this is litigation or settlement.

Zoe is a member of Resolution and has been quoted in the national press in respect of pre-nuptial agreements.

Zoe has a background in private client and tax affairs.

 

 

 

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How to Get Divorced – Where to get Divorce Papers?

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Which divorce forms and where to get divorce papers from?

We have so far looked at the importance of getting the financial order or financial agreement in place, how to get divorced and now we look at where to get divorce papers from.

The divorce forms are different for each basis or case and you can download the necessary divorce papers from here https://www.gov.uk/divorce/overview

What if we have nothing to “fight” about financially, we still need a financial order or a clean break order? Yes you do.

How long does the divorce process take? About 5 – 6 months if all is well.

What is the form E? Horrible form that’s a bit like an income tax form! It’s a form you have to complete in relation to financial proceedings. So if you’re going through financial proceedings relating to your divorce or ending of your civil partnership you have to provide full details in relations to your personal and financial circumstances and to provide lots of supporting financial documents that go with it.

Form E is completed during the family mediation process during the financial disclosure stage. At the end of the day, what the court will need is a summary of this information, i.e. each person’s full financial standing and this is required on what is called a D81 otherwise known as a Statement of information for a Financial Consent Remedy Order!

Completing this particular divorce form is crucial as it allows the divorce judge to look at the proposed order against that form and decide whether that order should be approved or not.

Without that background information he or she cannot make any decisions as to whether that financial order or financial agreement is correct.

Sometimes you won’t get your decree absolute until your finances have been sorted because by having your decree absolute you’re no longer husband and wife. This means that if there are pensions involved it’s important that until all of the finances have been resolved that you don’t have your decree absolute. So don’t rush into headlong finalising your divorce until you have sorted out your finances.

Caroline is a seasoned family lawyer and a member of Resolution which follows a strict code of practice and code of conduct so as to promote amicable and conciliatory divorce.  You can contact Caroline on:

www.independentlegalservices.info

cs.independentlegalservices@gmail.com

Phone: 07518178977

 

 

 

 

 

 

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How to Get Divorced – The Divorce Papers

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Following on from Caroline Saunders’ previous interview on the importance of getting a financial order in place, this interview focuses on the necessary divorce papers that you will need as you go about filing for divorce.

Caroline Saunders is a  Family lawyer and keen supporter of family mediation.  She is the founder of Independent Legal Services  where she helps couples complete their divorce papers and drafting the all important financial order agreement.

Couples can do their own divorce but after down loading the divorce forms online and do the actual divorce part Caroline will check them and most importantly will also draft their financial order which she does from Memorandum of Understanding that their family mediator will have prepared.

This document, the Memorandum of Understanding, sets out the background to their case and the details of the agreement that they have reached.


Caroline also drafts another very important document which is a financial document which is a summary of their financial and personal circumstances. Both documents are required by the court.

The making of the financial order is not a rubber stamping operation. It goes before a judge whose role is to be a judge and not just to stamp documents. This means that he or she will check through the draft of the financial order against the financial summary and personal summary to see whether in his or her opinion, that order is practical, workable and most importantly fair.

If the agreement seems unfair and/or the judge has some questions, the judge will contact the couple so that they can clarify any issues but should the agreement be clearly unworkable it will be rejected.

What are the grounds for divorce or the reasons for divorce? There’s only one which is that the marriage has irretrievably broken down but you have to substantiate that on the basis of one of the following further five reasons for divorce:

 

  1. Unreasonable behaviour
  2. Sexual relationship with someone else
  3. Lived apart for the period of two years and the other party consents
  4. Lived apart for a period of two years because the other party has left the marriage
  5. You’ve lived apart for 5 years

 

The divorce forms are different for each basis or case and you can download the necessary divorce papers from here https://www.gov.uk/divorce/overview

Caroline is a seasoned family lawyer and a member of Resolution which follows a strict code of practice and code of conduct so as to promote amicable and conciliatory divorce.  You can contact Caroline on:

cs.independentlegalservices@gmail.com

Phone: 07518178977

 

 

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How to File for Divorce: The Financial Order

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What is a financial order? It’s part of the divorce procedure. A financial order or a clean break order as it’s otherwise known, regulates such aspects of the financial agreement as spousal maintenance or alimony, payment for a capital sum or a lump sum, provide for a sale of a property or a transfer of a property and also a pension sharing order.

Caroline Saunders is the founder of Independent Legal Services which compliments family mediation. She takes the mystery out of the divorce process by helping you complete your divorce papers and make them legally binding.

When you have successfully gone through family mediation and you have a settlement agreement on all matters relating to finances, Caroline is there to help you formalise that agreement.

Unless you have a clean break order or financial consent order no matter how long you’ve been divorced, as seen in the Wyatt and Vince case, one or other of the parties can come back and ask to apply for a financial order.

Ideally when you go through your divorce process or end your civil partnership, as part of the settlement agreement you should have a financial order that deals with every aspect of the financial side of your marriage.

What happened to one of Caroline’s clients when they didn’t finalise their financial agreement? What happens when there is no court order?

A lot of couples assume that once there is a divorce that’s it but it’s is only the ending of the marriage it’s not the ending of the financial relationship between them.

How important is it to have your financial agreement. You must, must have that put into a court order.

 Independent Legal Services does this. When you have a couple that have reached agreement in relation to a divorce or civil partnership, I’m there effectively to help with all the form filling but most importantly to draft the financial order.

The financial order is what gives you a proper clean break.

If you reach an agreement together, you still will need somebody with specialised family law knowledge, preferably a family lawyer, to look at that agreement and say if it ‘s going to work in practice.

Caroline is a seasoned family lawyer and a member of Resolution which follows a strict code of practice and code of conduct so as to promote amicable and conciliatory divorce.  You can contact Caroline on:

cs.independentlegalservices@gmail.com

Phone: 07518178977

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family arbitration
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Family Arbitration UK: a Safety Measure for Divorce?

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Suzy Miller of Alternative Divorce Guide

In this article, I explore how family arbitration UK could provide an element of psychological security on the bumpy road of the divorce journey.

I interviewed a range of family arbitrators about whether arbitration saves the client money, and whether the arbitrator’s decision is always enforceable by law.

As the court system struggles to keep it’s head above the rising fiscal tide, the reduced access to legal aid for court cases and ensuing explosion of DIY divorces clogging up the already overburdened courts, a long term viable solution needs to be found – and found quickly.

But isn’t it already here?

Despite some serious battles for recognition and still a long way to go to become established as the divorce option of choice, Mediation is surely the intelligent way to resolve differences of opinion during a divorce. However, the reality is that sometimes it’s necessary to agree to disagree on some issues – and that’s where an Arbitrator has such a powerful role to play.

That disagreement can be handed over to a specialist in that particular field, an Arbitrator, and their decision allows the mediation process to then continue, or be brought to a happy conclusion.

It’s a bit like when seat belts were brought in. I remember ardent Liberals complaining that enforced wearing of seat belts was denying people their right to take care of their own safety, but these days, I doubt there are many people who would rally the Government to change the law back to ‘choose for yourself’.

One day in the future, people may look back at the divorce process of our current times and marvel at how many initially amicable divorces crumbled into a fight in court, and be amazed to learn that the safety belt of Arbitration was there waiting in the wings to be used, if only the clients had fully understood it’s benefits.

Can family arbitration save clients money?

It is fair to point out that compared to getting the court forms for a divorce and going the DIY route with no complex financial issues to resolve and no disagreement, obviously Arbitration will add cost on top if you need some help in resolving a dispute and choose not to use mediation or the collaborative law process.

Family arbitration UK
Can family arbitration save clients money?

“In many cases, it will be more expensive to arbitrate, because the parties will be paying the fees of the arbitrator whereas going to court involves no direct cost once the application fee is met. Of course, you’re right to say that arbitration is quicker which normally involves less expense (time is money), but I’m not sure I’d say it’s always the cheaper option.” Alexander Chandler (Barrister & Arbitrator Chambers of Deborah Eaton QC and Philip Marshall QC).

Alexander is making a fair point about the cost of court being less than the cost of Arbitration if you only count in the court fees.

From what I can see, family Arbitration provides an excellent alternative to going to court – cheaper, quicker and possibly fairer, bearing in mind how some family court judges have far less training and expertise in family law than a qualified Family Arbitrator does.

Time is money, and Arbitration can save a great deal of time – especially compared to going to court. Arbitrators can be accessed for as little as £500 depending on which Arbitrator you choose and the required specialised experience, which is a lot less than what you will pay for barristers and court time – especially if the dispute is a complex financial issue.

The process is flexible and allows for disclosure to be provided in an efficient manner which suits the issues to be resolved rather than the “one size fits all” method which the court uses. This clearly has an immediate costs saving for all concerned. Solicitors retain their involvement throughout and they have clients who are content because they have achieved an outcome, even if it is not the outcome they wanted, without the costs and unpleasantness of the court.” Clare (Sibson) Thornton, Thornton Jones Family Law.

It’s not just the money in the divorcees pockets that could be saved using arbitration, but also the State has much to gain financially as well in reducing the time litigants spend in court by finding quicker, cheaper solutions.

“By comparison, Arbitration is quick, cheap, private and confidential and the person making the decision is an experienced family practitioner who has been through a very difficult assessment process to be admitted as an Arbitrator.” Olive McCarthy, Breeze & Wyles

Is Arbitration legally binding? Does it have any teeth?  Find out in Part 2

For more information regarding Family Arbitration, refer to the IFLA website: http://ifla.org.uk/.

Suzy Miller

Alternative Divorce Guide

 

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go get a job

Divorce Judge Tells Millionaire’s Wife – Go Get a Job!

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Claire O Finn
Claire is a consultant in Keystone Law’s Family team

The ex-wife of a millionaire racehorse surgeon has been told by Lord Justice Pitchford to get a job as she has no right to be financially supported for life by her former husband – all whilst living mortgage free in a £450,000 home.

Mother of two Mrs W, was told by the judge that divorcees with children aged over seven should at least try to work for a living.

Substantial payments being made by Mr W – who claims he is worried that he won’t be able to afford them when he retires at 65 – will now gradually reduce over five years before stopping completely.

In addition the Judge added that the payments were never intended to provide Mrs W with a lifelong income in the first place.

Keystone’s Family and Matrimonial lawyer Claire O’ Flinn commented,

“This ruling is ground-breaking for divorcing husbands and wives alike and reflects a serious change in outlook on mothers being expected to return to work after divorce.

For many years the courts have been ordering husbands to pay spousal maintenance to their former wives for long after the husbands have retired and whilst the wives show no willingness to work or provide for themselves financially, often when they have an earning capacity.

Lord Justice Pitchford has said that ‘it is possible to find work that fits in with childcare responsibilities’ and criticised the wife for not updating her skills and for not seeking work because she expected to be supported by her former husband.

Husbands will rejoice in the judgment and wives may feel vulnerable but as each case is unique in its facts, divorcing clients should always seek specialist family law advice before agreeing to any settlement with their spouses.”

For more information get in touch with Claire O’ Flinn or your usual Keystone contact.

Claire is a consultant in Keystone Law’s Family team.

She is a highly experienced family solicitor who has specific expertise in resolving complex financial consequences of relationship breakdown whether based in this country or internationally.

Claire has particular experience in advising on private children issues; she advises on contact and residence disputes issues including the making and defending applications to remove children from the jurisdiction.

Above all, Claire is committed to helping couples part with dignity and to minimise the impact on the family. Claire provides clients with practical advice and workable solutions.  She is a trained collaborative lawyer and also a contributor to published family law journals.

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Go and Get a job? The Case for and against a Divorced Wife. Part 2

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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

Click here for Part 1 of Go and Get a Job.

‘Team Mrs W’

The main problem with the Mrs W ruling isn’t so much the idea that women should not rely on their ex-husband’s for spousal maintenance, but rather the fact that this case was the one chosen to make such a point, when the facts of it simply don’t lend themselves to such a decision.

Many cases have passed through the courts over the years where judges have reminded us that discrimination must not occur against the home-maker.

This has resulted in extremely generous awards being presented to stay-at-home mothers, and has even led to the UK being referred to as ‘the divorce capital of the world’. Many have claimed that such awards send women the wrong message, with Baroness Deech stating that women are taught that, once they get married, they never have to work. As a result of this, it appears that the court decided a stand had to be made to prevent women presuming they could claim a ‘meal ticket for life’, and this stand came in the form of the H judgement.

However, it is odd that a case involving a 51-year-old women was the one chosen to make such a point. After all, cases such as A v A (financial provision)[1] have stated that it would be inequitable to require women of 45 to find a full-time job, even when they hold degrees. Yet here we have a woman nearing the age of retirement being told to get a job – and the discrepancy seems to be more about the judges making a point and less about them having considered the specific facts of this case.

A further issue with the ruling stems from the fact that it paints Mrs W out to have an aura of self-entitlement, which she allegedly does not deserve to have.However, it can be argued that it is in fact Mr W who appears self-entitled, as he wishes to have his cake and eat it too. No doubt the decision for Mrs W to forgo work and stay at home was one made by both parties, and this decision enabled Mrs W to support her then-husband so that he could climb the career ladder.

It is only with the support of his ex-wife that Mr W has been able to become one of the country’s leading vets, yet he now wishes to abandon their initial arrangement and get on with his life post-marriage. Yet the same is not necessarily possible for Mrs W, who, having taken over a decade out of the working world, cannot simply swan back into it and demand a job that could afford her the same type of lifestyle that she grew used to during the marriage – which, coincidently, is a very important factor for consideration under S25(2)(c) MCA 1973.

Go and get a job
With the support of his ex-wife that Mr W has been able to become one of the country’s leading vets.

Lord Justice Pitchford makes reference to the fact that Mrs W has an earning capacity and therefore a responsibility to earn; however, this seems to miss the point.

Plenty of home-makers have an earning capacity, but that does not necessarily mean that working would be the best way for them to utilise their time. The fact that Mrs W may be capable of securing a job does not mean that it is appropriate for her to do so, given the arrangement her and her ex-husband made.

As mentioned before, his part of the ‘deal’ has allowed him to climb the career ladder, whilst Mrs W has stunted any potential career progression. Despite the fact that the marriage is over, the detrimental results of the arrangement to Mrs W’s career progression are permanent and a joint lives maintenance order is the only way to reflect this.

Lastly, Lord Justice Pitchford stated in his judgement that mothers with children over seven should be working. The main question being why seven is the magic number? His reasoning is likely to be based on the fact that, at this age, children become a little more independent; however, this should be irrelevant.

If a couple had decided whilst married that the stay-at-home party should return to work when their child reached a certain age, this would be one thing; however, if the arrangement was that the home-maker should remain at home indefinitely, then this should not have to change if the marriage ends in divorce.

Upsettingly, the law’s attempt to promote gender equality by stating that women (who are more frequently the home-makers) should be able to support themselves through jobs after divorce will actually result in further inequality.

This is because, realistically, it will still be the home-maker-turned-worker who will take primary responsibility for the children, struggling to balance work and school collections, as well as having to take days off work when the children are ill.

The other party, however, will likely continue to work undisturbed. If the law is really trying to promote equality, judges should ensure that childcare responsibilities are shared equally when both parties are going to be working.

Which H is right?

Ultimately, it seems that there are several very valid points in relation to both sides of the argument. Whilst an agreement had been made during the marriage, and the sacrifices made by Mrs W must be acknowledged, the law must also recognise the fact that the marriage has now ended and therefore circumstances have changed.

Commenting on the judgement, Katie McCann, head of the Family department at Kuits, states: “The benefits of the objectives behind The Divorce (Family Provisions) Bill, as discussed in our previous article can certainly be highlighted by the H case.

The Bill, which was introduced by Baroness Deech seeks to limit maintenance payments to three years. In this time, ex-spouses who took the role of home-maker in their marriage would have time to readjust, so that when the time comes for their maintenance payments to be terminated, they would be equipped to become financially independent and ready to enjoy life after divorce.

Perhaps this ‘middle ground’ approach is the best way forward for all.”

[1] [1998] 2 FLR 180

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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Go and get a job

Go and get a job? The case for and against a Divorced Wife – Part 1

Published on
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

This particular divorce case has hit headlines hard recently after a judge told a divorced wife and mum that she simply needed to ‘go and get a job’.

The couple divorced in 2008 after 11 years of marriage, having had two children together and she was initially awarded half the proceeds from the sale of the former matrimonial house, which allowed her to buy a new £450,000 home, mortgage-free, as well as receiving an annual maintenance of £75,000 (£32,000 of which was to be used for her personal upkeep).

Mr W, let’s call him, protested against this joint lives maintenance order, claiming that he would be unable to fund his ex-wife’s lavish lifestyle after his retirement, which he anticipates will occur in five years’ time.

In a judgement that has got everyone talking, Lord Justice Pitchford agreed with Mr W  and told Mrs W to get a job.  This ruling has seemingly divided the nation, with some feeling sorry for Mrs W and others stating that it’s about time the law stopped treating women as victims.

Below we set out arguments for and against this landmark decision and consider whether an equitable ruling has been made.

‘Team Mr W’

The definition of ‘adapt’ is ‘to become adjusted to new conditions’.

This is something that Mrs W should have done back in 2008 when her marriage to Mr W came to an end. Despite the fact they had initially agreed that Mrs W would be the home-maker and Mr W would be the money-maker, these terms were only in relation to the couple’s marriage. It should be obvious that once the terms of their relationship changed then the terms of the above arrangement would have to change too.

riding instructor
Both of Mrs W’s former careers could be done on a part-time basis.

Mrs Wand so many women in her position try to claim vulnerability by arguing that they have stunted their career progression by staying at home, and by claiming that they would lose out further if they then had to clamber back onto the career ladder after divorce.

However, this point of view does not take into account that both parties suffer from the terms of such an arrangement having to change.

After all, the breadwinner who was previously taken care of by the home-maker has to adapt to juggle the house-work and their job, and for this reason the home-maker should also have to adapt to include work as part of their day-to-day life.

Before giving up work, Mrs W was a legal secretary and a riding instructor. Whilst it understandably may take her some time to get back into the swing of either professions, there is no doubt that she would be able to do so relatively quickly.

It is also worth noting that the Hs’ oldest child is in boarding school, whilst their youngest is in full-time education. Both of Mrs W’s former careers could be done on a part-time basis and there is therefore nothing preventing her from working during school hours.

Should Mrs W prefer to embark on an entirely different career path, then she has the fortunate position of there being enough money available for her to retrain. This would enable her to have the career she wants, as well as allowing her to become financially independent.

Mrs W should certainly have the option of not working; however, she must appreciate that within this new chapter of her life, not working will result in her having a much lower standard of living. Once again, she needs to adapt to the situation at-hand and make career choices based on the fact that she is no longer married to a millionaire.

Whilst financial ties will remain between the Hs’ in relation to their children, Mrs W should have attempted to make herself as independent as possible.

With this in mind, it seems that Lord Justice Pitchford was correct in stating that Mrs W had made no effort to seek work or update her skills and has been working on the basis that she would be supported for life. By stating that it is imperative that she starts work now, Lord Justice Pitchford is simply trying to guide Mrs W into a position that will empower her in the long-term and will allow her to live an independent, self-sufficient lifestyle.

Lord Justice Pitchford’s judgement is not about neglecting women’s needs at all, but rather empowering them to see that there can be life after divorce.

Click here to Read part two for “Team Mrs W” and Which W is right? 

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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The Judge

THE JUDGE, THE JOB AND THE CONTROVERSY

Published on
Family Department of Rawlison Butler solicitors
Nigel C Winter – Partner in the Family Department of Rawlison Butler solicitors

In reading the headlines over the last couple of weeks, one would have thought that it is now settled law that every divorced Mum would be compelled to go out and “get a job”.

This follows the high profile divorce of Mrs W, the estranged wife of a Racehorse Surgeon and the selectively reported comments of the Judge in this case.

As ever, it pays to “let the dust settle” and consider what really happened.

Nigel Winter, Partner in Rawlinson Butler’s Family Team considers the real impact of the decision and why getting advice early should be high on the list for anyone contemplating divorce.

As every marriage is different, so is each divorce and the facts are critical in each case.

Mrs W (51) had been married to her husband Mr W(59) for 11 years and they had 2 children aged 10 and 16, the elder being at Boarding School.

The proceeds of sale of their £1.3million house were duly split and Mrs W was receiving £75,000 per year maintenance.

Mr W was concerned about his capacity to pay ongoing maintenance upon retirement. He therefore sought to have that maintenance significantly reduced.

The £75,000.00 per annum maintenance was for the 2 children and £33,200 of that was spousal maintenance for Mrs W herself. In addition to this Mr W was also paying the school fees.

Last year a Court ordered that the personal payments to Mrs W should taper off over a period of 5 years before ceasing upon Mr W’s retirement. It was this decision that Mrs W was seeking to appeal.

That appeal was unsuccessful and the comments of the Judge on hearing the case have been seised upon in isolation. But it is essential to remember that each case is judged on its own facts.

Critically, the media reports haven’t stated the overall wealth of the parties, merely that they had a £1.3million house.

Furthermore under Section 25 of The Matrimonial Causes Act the standard of living is a factor to be taken into account. It is a reality that people who are wealthy have a completely different expectation of life, which the Courts recognise. Using the house as a guide, they appear to be comfortable but not rich. However that may not be the case and provide an explanation as to why Mrs Ws solicitors pressed on with the appeal.

Mrs W will therefore be expected to go out to work.

The reasons for this are that her eldest daughter is at private school and her youngest daughter is aged 10 and therefore far less dependent on Mum than a toddler.

Thus, as with the passage of time, the relevance of given factors such as contributions to the family, shifts on a sliding scale. It is therefore no great hardship for a 10 year old to have their Mum and main carer working part-time. Furthermore it will enable that Mum to gain full-time employment at a later date.

The Judge
Get a Job

The law has therefore altered very slightly in cases on these facts.

But a completely different result may have been achieved if the children had been younger, the paying husband wasn’t approaching retirement, the wife had got an order for more capital and less income and significantly she had actually made applications for work or even accepted the principle that she had to work, even if she wasn’t able to find any.

In this case Mrs W was actually criticised for being “evasive” about her job prospects. In that regard she did not help herself.

The case is therefore very specific to its own facts. It will have an impact on high net worth families who have ongoing maintenance claims.

But it is a long established principle that financial independence should be achieved at the earliest opportunity and so parties have always been encouraged to achieve this, often by way of a larger capital sum (if available) in lieu of maintenance. However, there is now an overall trend towards limitations on the duration of maintenance and this case is one small part of that movement.

The process remains unchanged and it has been settled for a number of years that the starting point is that there should be a “yardstick of equality”.

Contributions made by the homemaker and breadwinner are of equal value. The Courts will endeavour to split equally the assets accumulated during the marriage.

In high net worth cases, inherited assets received before the marriage, may not be included. Having performed this exercise, the next stage is to decide if this is sufficient to meet the parties’ needs. In the event that the joint assets are insufficient to meets the needs of the family, then maintenance has a role to play. This is always subject to variation as circumstances change.

This decision doesn’t alter the basic reality that bringing up children, harms ones career unfairly or otherwise. Thus one party’s career will prosper whilst the main carer’s time is applied to the demanding role of being a stay at home parent.

The reality remains that even when the papers are full of reports that the Judge allegedly barked “get a job” at the wife, she will not be able to get as good a job as had she been able to draw upon 10 years of career progression rather than motherhood.

In the event that that second career doesn’t meet the needs then she will have to look elsewhere for those said needs to be met. And that is usually from the matrimonial assets. In short, a different route to the same outcome.

What this case DOES NOT rule, contrary to the impression that has been left in some of the media is that:-

  • All Mums must go out and get a job per se
  • Being a Mum is unworthy
  • This is a blanket rule and hereafter cases will stop being judged on their own facts

True, stay at home Mums, with children of minimal dependency, will be expected to find work if they can. There were very few cases in which the standard of living was so high and the parties’ expectations such that, they could expect maintenance forever, without having to work. When this actually occurred they usually ended up in the newspapers.

For the vast majority of couples contemplating a divorce the most important thing is to get the right and sensible advice at an early stage, free from the influence of an eye catching headline.

About Nigel Winter

Nigel C Winter is a partner in the Family Department of Rawlison Butler solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

website: www.rawlisonbutler.com

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 Disclaimer – This document is provided for information purposes only and does not constitute legal advice.

 

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separation advice

Separation Advice from Gingerbread

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Separation Advice
Rebekah Barry
Information Manager at Gingerbread

As January typically sees a rise in couples taking the difficult decision to end their relationship,here is some vital separation advice from Gingerbread.

It can be a tough time and it brings a lot of change, especially when you have children.

With decisions to make and lots to organise it can be hard to work out what you need to do and when.

However, there are some things that should be a priority.

Housing

One of the most pressing practical issues is working out where you and your children are going to live.  This is always a tough decision to make and may indeed be the biggest change in your lives.

You maybe able to remain in your current home but if you cannot do this and need to leave and find somewhere else, our factsheet on “Housing Options for Single Parents” explains what’s possible depending on your circumstances, whether it’s social housing or getting support with the rent.

Deciding on arrangements for your children when it comes to your ex-partner is a vital part of the process, our factsheet Making Arrangements for your Children can help you sort out where your children will live, and when they spend time with each parent.

Your finances

How you’ll cope financially is usually one of the biggest worries after a separation, and thinking about how you’ll manage on your own can be daunting. For most single parents financial support is available, so make sure you get all the help you can for you and your family.

separation advice
Working out where you and your children are going to live

If you weren’t entitled to tax credits before, you may be now. You can use the Turn2us online benefit calculator to check what benefits and tax credits you’re entitled to, and you’ll need to let the tax credits helpline know that you’ve separated. You need to do this within a month. If your household income has gone down it’s likely that you’ll be entitled to more tax credits, so the sooner you let them know, the better.

You’ll also need to let the child benefit office know that you’ve separated – you can report this online through the gov.uk website.

Remember if you’re now the only adult in the household, let your local council know. You should get a discount on your council tax, and you might be eligible for a council tax reduction – contact your local council to find out.

If you’re renting, the council can also check whether you’re entitled to housing benefit to help towards your rent.

Do think about arranging child maintenance with your child’s other parent. All parents have a legal responsibility to support their child financially and it can make a real difference. 

Getting support for yourself and your children

It’s not all about the practicalities; separation is of course a time of huge emotional upheaval for you and your children.

You’re not alone. There is lots of support out there if you need it.

You might want to share your experiences and get support from friends or other single parents who have been through the same situation. Joining a support group can be helpful. 

There are organisations that can support you and give you practical suggestions on looking after yourself and coping with any emotional difficulties following a separation. Relate offers a wide range of online support, including a parent’s guide to separation. They also offer counselling services for both adults and children.

Deciding to separate is never an easy decision, but taking care of the practicalities, working out your next steps and knowing where you can turn for help if you need it can make things much easier.

 

Rebekah has been part of Gingerbread’s advice and information team for five years. She now specialises in creating Gingerbread’s online advice for single parents on anything from child maintenance to heading back to work.

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