News (Family)

The government has announced that it will allow heterosexual couples in England and Wales to enter into a civil partnership.

Teresa May stated that it will address the “imbalance” in society to reflect the fact that all couples – and not just same sex couples – can choose either a civil partnership or to get married.

The news follows a ruling in June this year that the current Civil Partnership Act 2004, which only applies to same-sex couples, is in breach of European Convention on Human Rights.

In the UK, there are over 3.3 million unmarried couples who live together with shared financial responsibilities. Nearly half of these couples have children. Under current law, cohabitees don’t have the same legal and financial standing as that of a married couple or those in a civil partnership.

Many heterosexual couples, who have no wish to get married, have been campaigning for a change in the law, arguing they’re being discriminated against because they’re not married and not gay. They believe that not being legally recognised as a couple creates uncertainty around next of kin and inheritance issues. They also claim they’re not benefitting from tax allowances that are available to married and civil partnership couples.

In announcing the change, Teresa May stated: "This change in the law helps protect the interests of opposite-sex couples who want to commit, want to formalise their relationship but don't necessarily want to get married...

"Now, by extending civil partnerships, we are making sure that all couples, be they same-sex or opposite-sex, are given the same choices in life."

Changes to divorce law in England and Wales have taken a step forward. Justice Secretary, David Gauke is set to begin a consultation calling for no-fault divorce to finally be implemented.

The plans, which are yet to be finalised, will be the biggest shake up of the system in 50 years with couples being allowed to file for no-fault divorce and spouses losing the right to contest the divorce. A reduction in the time someone needs to wait is also being proposed.

At the moment, a person has to show irretrievable breakdown by proving their partner has committed adultery, or state they behaved unreasonably or prove desertion. They can also file for divorce if they have been living apart for two years and both sides agree to end the marriage. But, if the divorce is contested, there’s a wait of five years before proceedings can be started.

Under the new proposals the sole legal ground for divorce would be irretrievable breakdown and the need to specify a reason for the break-up of the marriage would be removed. Contesting the divorce would also be abolished and the time the parties need to wait before becoming entitled to a divorce would be reduced from two years to six months.

The news follows the case of Tini Owens who has been refused the right to divorce her husband until 2020 (see our news article dated 6^th August). Judges made the ruling after Mrs Owens, who has been married to her husband, Hugh for 40 years, was unable to prove her marriage had irretrievably broken down. Despite having had an affair and living in a different house to her husband, Mr Owens has contested the divorce because he believes his wife is “bored” and insists they still have a time to enjoy life.  

Supporters of the new legislation believe that the introduction of no fault divorce will alleviate the stress associated with divorce and relieve conflict. Opponents of the proposed legislation, however, fear that it will undermine the sanctity of marriage by enabling divorce on demand.

Russell & Russell’s family law team has solicitors who specialise in divorce. If you’d like to understand how divorce might affect your circumstances, call any of our branches and arrange to speak to a solicitor.

A law graduate who split from her partner of 16 years has won a legal battle for half of their £1.7m former home.

Shree Ladwa was accused of living off her girlfriend, Beverley Chapman during their time together, but when the relationship broke down, a legal battle ensued over the property and the return of alleged loans, jewellery, shoes and handbags worth around £130,000, as well as the proceeds of the sale of an Aston Martin.

In court, Ms Chapman, a successful businesswoman, was said to have lavished Ms Ladwa with jewellery, designer shoes and bags, an Aston Martin and hundreds of thousands of pounds and had even proposed with a diamond ring.

However, despite the fact that it was Ms Chapman who had paid the mortgage off, Ms Ladwa claimed she was entitled to half the property as would be the case with any other 'housewife' in a traditional 'divorce'.

She argued that Ms Chapman, who was the sole earner in the relationship, had bought the property in her name as it was easier to get a mortgage, but had promised that as soon as the mortgage could be discharged it would be transferred into their joint names.

Ms Chapman, however, disputed this saying that she had been treated as a ‘cash cow’ and had been pressurised by Ms Ladwa into putting the property in both names, but Judge Stephen Murch rejected her case, stating that he believed that it was always their 'common intention'.

He went on to note that the house had been bought largely with money from their joint bank account, including the proceeds of the sale of their previous home and although Ms Chapman had made 'substantially greater contributions' to the account, it was a joint account which they must have regarded as joint property.

The decision means that both women’s shares in the property are equal and that Ms Ladwa doesn’t have to return the money or the designer goods she was given.

When setting up home together, no matter how awkward it may be to bring it up,  it’s always advisable  to make arrangements in case the relationship breaks down. If you’d like some guidance on how cohabitation agreements work and what you can expect from them, our solicitors can talk you through it.

Despite being “wretchedly unhappy”, a woman who claims she is “trapped in a loveless marriage” can’t divorce her husband.

Tini Owens has been told she can only divorce husband, Hugh in 2020 after they have been separated for five years.

Mrs Owens, who has two children with her husband of 40 years, was denied her appeal to divorce by the Supreme Court even though she alleges her husband’s behaviour is so bad she can’t reasonably be expected to stay married.

During an earlier hearing Mrs Owens provided 27 examples of her husband’s unreasonable behaviour, but the judge ruled that her allegations were “flimsy and exaggerated”.

Judges at the Supreme Court warned that the question for Parliament was whether the law governing entitlement to divorce remained "satisfactory" and that it would have to decide whether to introduce no fault divorce on demand (see our related news article dated 22/05/18).

Speaking of the ruling, Mrs Owens's solicitor said the Supreme Court “has missed an opportunity to assist Mrs Owens and to move case law on after over 40 years”.

Nigel Shepherd, former chair of Resolution, the family law group, was quoted as saying: “Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it.

“In this day and age, it is outrageous that Mrs Owens - or anybody - is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name. Today’s judgment underlines just how vital it is that government now urgently reforms the divorce law.”

The Office of National Statistics (ONS) has issued its latest findings on women suffering domestic abuse by a current or former partner.

The report, which incorporates figures from the years March 2015 to 2017, shows that young women aged between 16 and 24 years were more likely to have experienced partner abuse (15%) than women aged between 45 and 59 years (10%).

Similarly, women who suffered from a long-term illness or disability were more than twice as likely to have experienced some form of partner abuse than those without. In particular, women with an illness or disability that limits their activities were more likely to suffer abuse.

Bisexual women were almost twice as likely to have experienced partner abuse than heterosexual women (10.9% compared to 6.0%). Looking in to the figures further, this consisted of being twice as likely to suffer non-physical abuse (6.8% compared with 3.9%) and, alarmingly, nearly five times as likely to have experienced sexual assault by a partner or ex-partner (1.9% compared with 0.4%).

More than any other group, women who identified as mixed/multiple ethnicity (10.1%), were more likely to have experienced partner abuse. This is three times more likely than Asian/Asian British women (2.8%) while white women suffering abuse accounted for 6.5%.

Women living in households where the income was less than £10,000 were more than four times more likely to suffer abuse at the hands of their partners than women with household incomes of £50,000 or more (14.3% compared to 3.3%). Those in social housing were nearly three times as likely to experience abuse (11.1%) than women who were owner occupiers (4.1%).

Figures for the report were taken from the Crime Survey for England and Wales (CSEW) and are based on the experiences of women aged 16 to 59 years old. The CSEW refers to abuse carried out by a partner or ex-partner as being:

• non-sexual abuse: physical force, emotional or financial abuse, threats to hurt the respondent or someone close to them
• sexual assault: rape or assault by penetration (including attempts), indecent exposure or unwanted touching
• stalking carried: two or more incidents (causing distress, fear or alarm) of receiving obscene or threatening unwanted letters, emails, text messages or phone calls, having had obscene or threatening information about them placed on the internet, waiting or loitering around home or workplace, or following or watching the victim

The full report can be found here.

Although more people over the age of 65 are tying the knot, the divorce rate in this age group is also rising.

Figures released by the Office of National Statistics show that between 2004 and 2014, the number of brides and grooms aged 65 and over went up by 46% in England and Wales.

Similarly, the number of divorces for couples aged 65 and over also shot up. In the decade 2005 – 2015, 23% of men got divorced, while 38% of women in this age group decided to call it a day.

Reasons for ‘silver splitters’ are numerous, but the general view is that it’s due to the post-war baby boom and people living longer. In 2017, an average 65-year-old man could expect to live for a further 19 years – two years longer than that of a man the same age in 2004. For women, the gap has also widened from 20 years in 2004 to almost 22 years in 2017.

As people live longer, people are more unwilling than ever to remain in an unhappy marriage. The stigma traditionally associated with divorce doesn’t exist in today’s society in the way it did in the past and as more people are working beyond retirement, the idea of being self sufficient outside marriage is more conceivable.

Whatever the reason, divorce at any age is difficult. But, for older couples who tend to have more assets and bigger pension pots, it can be much more problematic.

Donna Leigh, a solicitor who specialises in high net worth divorce at Russell and Russell, says: “Many older people don’t realise how much wealth they’ve built up over a lifetime. Whether they’ve had a modest income or have been a high earner, the compound effect of savings, pensions, any shares or ownership of other assets and the fact that house prices have risen 23% in a decade means that their personal worth can be far greater than they anticipated. 

“High net worth divorces can be complex, but the starting point is always a 50/50 split. From there, the matrimonial assets – and any debts that can be attributed back to the marriage – have to be declared, assessed and valued. All the circumstances of the marriage, including the parties’ ages, the length of the marriage, the income capacities of the parties, any health issues, for example, are considered before a division of the matrimonial assets is achieved. There are a number of ways assets can be divided and a good solicitor will outline these clearly and transparently.”

Last week, the Supreme Court heard about a woman who wants to divorce her husband on the grounds that she is in a "loveless" marriage is being denied because, in the eyes of the law, his behaviour isn’t viewed as bad enough to warrant ending the relationship.

Under British law, unreasonable behaviour is one of the grounds for divorce and Tini Owens wants to end her 40 year marriage to her husband, Hugh on the basis that she can’t reasonably be expected to live with him. Mr Owens’ legal team, however, argued that if she’s granted her appeal to divorce, it will pave the way to a divorce on demand ideology.

In 2016 a family court judge ruled that Mrs Owens’ claim that her husband focused too much on work, didn’t give his wife attention or affection and was "unpleasant and disparaging" towards her, comprised "minor altercations of a kind to be expected in a marriage". It was, therefore, deemed as not serious enough to grant her a divorce.

The case, however, has reignited family lawyers calls for a change in the law to allow ‘no-fault’ divorce. This form of dissolving a marriage proposes that couples can go their separate ways without having to place the blame for the breakdown in the relationship on one side or the other.

Although Mrs Owens appeal failed last year, her Barrister, Philip Marshall QC called on the Supreme Court for a "modest shift" in the interpretation of legislation. He claimed that the judge in the original case was too objective on the plea of unreasonable behaviour, rather than viewing it from Mrs Owens perspective.

Mr Ownes’ legal team contested the claim, stating that Mrs Owens is seeking, in effect, to change the law, arguing that: "It is not a proper function of the Supreme Court to dilute or refashion a statute." and that: "Parliament did not provide for divorce, either as a ground or as a fact leading to the ground, based on unilateral unhappiness."

The court reserved judgment for a later date.

Grandparents should have greater rights to contact with the grandchildren after divorce, according to MPs.

Politicians from across the parties are calling for an amendment to the Children Act so that it includes a child’s right to have a close relationship with their extended family, which would also include the rights of aunts and uncles to have contact with nieces and nephews.

At the moment, relatives who want time with a child must make a request to court to obtain permission to make an application. Once permission has been given, they can make an application to the court for a child arrangement order (CAO).

A COA allows the court to define the time that a child can spend with their relative. Such orders are always made with the best interest of the child being the paramount consideration.

Ministers discussed the issue last week, which highlighted the plight of many grandparents who find themselves shut out of the lives of their grandchildren after the parents divorced. Describing his constituents’ experiences, Conservative MP Nigel Huddleston said: "When access to grandchildren is blocked, some grandparents call it a kind of living bereavement."

The Ministry of Justice has said it would consider the proposal, Children's minister Nadhim Zahawi stated that while the government would consider any proposals that could improve the system, the guiding principle "has to be the wellbeing of the child".

The rights of grandparents having access to their grandchildren was last examined in 2011 as part of the independent Family Justice Review. The report recommended that CAOs stay in place to "prevent hopeless or vexatious applications that are not in the interests of the child".

Restrictions on access to legal aid have resulted in many people having to represent themselves in court. Navigating the complexities of the law by yourself is not only daunting, but can also not help your cause. So, to help guide you and keep costs down, we’re offering an unbundled service for family law matters.

This is a facility where we help you with parts of the legal process that you’re unable to deal with, without incurring the full cost of us handling the whole matter on your behalf.

This may involve representing you at court, preparing legal documents or drafting letters. The key benefit here is that we can ‘dip in and out’ of your case so that you have access to the legal expertise of a solicitor as well as saving money.

In the first instance, a family law solicitor from Russell and Russell will meet with you so you can agree what parts of your case you want us to work on while you get on with other, less complex or routine tasks. We then act on an hourly rate, invoicing you after each stage so there are no unexpected charges.

Solicitors charge for each action they carry out on a file. This can be anything from sending letters, making calls, reading through and/or preparing documents and advising you on the issues. All this time adds up. If you’re able to do the ‘leg work’ we can advise or act on the specialist areas so that you’re controlling the cost.

We can help with an unbundled service, whether you’re a cohabitee or a spouse, on finances and children matters including child arrangements or relocation issues, divorce and dissolution of civil partnerships.

During the process, if you find that you don’t want to continue on this basis, we can take on the whole case for you and will provide an estimate of our fees.

An 83 year old man has been sent to prison for 14 months after deliberately avoiding paying his ex wife’s divorce settlement.

Businessman, John Hart was repeatedly warned that he must comply with the court’s order, but chose not to.

In 2015, his wife, Karen Hart was awarded £3.5 million of the couple’s total £9.4m wealth after their 23 year marriage broke down. Mr Hart was ordered to transfer his shares in a company called Drakestown Properties Ltd to her, but he purposefully frustrated his ex wife’s ability to manage the company “efficiently and effectively”.

Sentencing Mr Hart for 'serious contempt', his Honour Judge Wildblood QC concluded that every effort had been made by Karen Hart and her legal team, as well as the judiciary, not to bring the contempt hearing, but Mr Hart’s actions had made it unavoidable.

While Judge Wildblood noted that both sides had paid their own legal costs, he pointed out that the litigation process, and those working within it, had been paid for by the public purse. He also stated that the case had been unnecessarily drawn out which had placed a huge burden on already limited public funds; a burden that would continue as a consequence on Mr Hart’s jail term.

Speaking of the ruling, Russell and Russell divorce specialist, Pippa Tudor, who commented on the original case (see our news article dated 18/09/2017), said: “Court orders that are intentionally breached face stiff punishment, but some people wrongly assume that sentences won’t be enforced. This case, however, demonstrates that the law’s bite is just as good as its bark. Hopefully this will send a clear message to anyone attempting to frustrate the legal process that they will face the full force of the law if they refuse to comply with the courts.” 

Marriages are at their lowest level since the early 1970s, according to figures release by the Office of National Statistics (ONS).

In 2015, the number of opposite sex couples getting hitched decreased by 3.4% in comparison to 2014, from 247,372 to 239,020.

This is the lowest on record, with 21.7 marriages per thousand unmarried men and 19.8 marriages per thousand unmarried women.

Despite this, however, the rate of older couples tying the knot has actually increased for men aged 50 and over and women in the age brackets 35–39 and 45 and over.

2015 was also the first full year to reveal statistics relating to same sex weddings, which accounted for 2.6% of all marriages. Of the 6,493 same sex marriages that took place, 56% were between female couples. A further 9,156 same-sex couples converted their civil partnership into a marriage.

Donna Leigh, a specialist in family law at Russell and Russell, said: “We’re potentially looking at a shift in the way people live. It’s no longer a priority to get married; many people are choosing to live together as unmarried partners instead. The reasons for this trend are unclear.

“Whilst it’s great that people are committed enough to set up a home together, it’s still important to ensure that they protect their assets. We see a lot of people who’ve split up and are looking to retrieve the money they’ve put into the house. Unfortunately, if there’s no legal document to ring fence any additional money they’ve put in, the equity in a property will most likely be divided equally. In this situation, I’d always advise anyone buying a house with someone to set up a Deed of Trust which outlines the how much extra they’ve put in. That way, if things do go wrong, at least they can get their money back if that’s what the parties agree that they would want to happen.”

A survey of kinship carers has found that nearly 200,000 children in the UK are being raised by a family member other than their parents.

The findings of the survey carried out by two charities, revealed that the task of kinship carers – people who look after the children of other family members (grandchildren, nieces and nephews etc.) or friends – often falls on grandparents. The financial strain of this has, in some cases, meant that carers are using credit cards to buy food or are failing to pay a bill.

This is in stark contrast to registered foster carers who are entitled to financial support from their local authority. It’s also difficult for kinship carers to access help if the arrangement is private with no legal order, although they may be able to claim benefits available for children, low-income families, older people or those with a disability or long-term illness. There are various orders that the Court can make to ensure the wellbeing of children, some of which put a responsibility on the local authority to pay an allowance.

Charity, Grandparents Plus wants a national minimum allowance introduced to cover the costs of raising a child as there is no statutory entitlement for kinship carers. While the Department for Education recognises the role grandparents’ play, the party line is that local authorities are responsible for advice and financial support.

The survey which was carried out by Grandparents Plus and Family Fund suggests that:

•55% cited the most common reason children are in kinship care is due to parental drug or alcohol abuse

•45% of respondents quit work to become carers

•43% said they don’t have enough income for their grandchildren's needs

•The average income for a kinship household is £17,316, well below the national average of £27,200

•19% of carers rely on their pension as their main source of income

Russell and Russell can give advice to grandparents, and other family carers, about their rights when social services place grandchildren with them.

The Law Society is launching a campaign for legal aid to be reintroduced for early advice following growing concerns over the lack of early intervention in family and housing law issues.

The findings of an Ipsos MORI report, commissioned by the Law Society, demonstrates a clear link between getting early legal advice and resolving a problem sooner.

Since the government cut the majority of legal aid in 2012, people have had to pay for advice they receive. Those who can’t afford it are left to deal with the issue alone and frequently end up representing themselves in court. Having little or no legal experience all too often compounds the problem. Many lawyers believe that legal aid prevents further costs to the tax payer because it allows people to instruct a solicitor from the outset which can prevent a case ending up in court.

The report defined early legal advice as ‘within three months of the issue first occurring’. It stated that on average, 25% of those who received early advice had resolved their issue within three to four months of it arising. In contrast, 25% of those who hadn’t received early advice didn’t resolve their problem until nine months after it first occurred.

Amanda Connor, head of family law at Russell and Russell, believes the cuts to legal aid have been detrimental to the system: “Clearly, if a case is complex or serious in nature, it requires the expert advice of a solicitor. It’s ridiculous to expect someone to run a case, particularly through court, without having any legal experience, but unfortunately this is what’s happening. Situations like this just complicate things further because in some instances the matter doesn’t get resolved at all or the court process gets slowed down which inevitably results in more expense for the tax payer.” 

The law needs to stop discriminating against cohabiting couples and recognise that society has moved on. This is the view of Jakki Smith who has recently won a landmark battle for greater legal recognition for bereaved unmarried couples.

Jakki and her partner, John had been together for 16 years, but had never married. He died after falling ill on holiday in Turkey. He had previously undergone an operation to remove a benign tumour from his foot, but medics hadn’t recorded that he had a serious infection.

After his death, Jakki was denied statutory award because she and John weren’t married when he passed away. As a result, she took the government to court, claiming her human rights had been breached by denying her bereavement damages.

Currently, the law states that if a couple are married and one of them dies as a result of negligence, a fixed sum of £12,980 is payable. For cohabiting couples in similarly committed relationships, the same rights don’t apply. Eligibility of bereavement damages for cohabiting couples have been recommended by the Law Commission in the past and the government did produce a draft Bill, but plans were shelved in 2009.

In the initial case the judge ruled against her because there was no conflict between the 1976 Fatal Accidents Act and Jakki’s rights under the European Convention, effectively rendering her unable to make a claim. At the time, Mr Justice Edis noted that the law was in need of reform, but acknowledged that he had no power to intervene. However, the Court of Appeal has since found in her favour, allowing her challenge against a High Court ruling dismissing her claim.

Jakki will make no money from the case and nor is she interested in doing so; she simply wants to help others in a similar position. She now hopes the ruling will have a positive impact on the increasing number of cohabiting couples by legally recognising meaningful relationships.

Plans to introduce specialist courts which focus solely on divorcing couples’ finances have been welcomed by family lawyers.

Sir James Munby, the most senior family court judge in England and Wales, made the announcement which aims to reduce the pressure on overstretched family courts. Trials of the new Financial Remedies Courts, which will only deal with the financial aspects of divorce proceedings, are due to start in London, the West Midlands and South Wales this year.

The move is being seen by family lawyers as a step in the right direction for the family justice system as it will allow more time for emergency domestic violence and children cases to be heard in local courts.

That said, the reforms are not being viewed as a platform for wealthy couples’ to settle rows over money; rather the court will hear cases from all separating couples regardless of the value of the assets involved. What it does propose to do, however, is ensure that complex cases will be heard by specialist judges which will have the appropriate support in place at each of the centres so that judicial continuity can be achieved in tandem with other family law matters.

A survey of the Magistrates Association has revealed that 68% of people represented themselves at the most recent family court hearings.

This is up from 41% in 2014, resulting in a 65% increase since that time – one year after legal aid cuts were introduced.

Magistrates claim the situation is causing long, confrontational court hearings and injustices but, more importantly, children are ultimately the victims.

The anonymous survey, which consulted 370 magistrates, condemned legal aid cuts which have been blamed for the rise of Litigants in Person (LiPs). The situation, as one magistrate called it, is “becoming a joke, while another claimed that the person with a solicitor “would always fare better”.

Family Courts hear a range of cases which impact children’s lives significantly. Cases include victims of domestic violence, parental disputes over contact, the residence of children, financial support of children and social service interventions.

Speaking of the report, which was commissioned by BuzzFeed News, chair of the Magistrates Association, John Bache expressed concern that those representing themselves were at an unfair disadvantage if the other side had a lawyer representing them. He explained: “The impact on children will stem from that because if there hasn’t been proper representation, the children won’t be achieving necessarily the best outcome in terms of relationship with their parents.”

He also said that court delays caused by explaining the law or waiting from documents from LiPs could also end up harming children as they were left in limbo.

Several magistrates echoed this. One said: “I fail to see how removing legal aid from private law family proceedings is saving any money at all, given the number of extra hearings and additional time spent in court. The situation is becoming a joke.”

95% of those surveyed believe that self-representation had a negative impact on the effectiveness of the court processes and that the imbalance of one having representation by a solicitor, while the other fends for themselves was unfair and resulting in injustices.

In another testimony, a magistrate said: “LiPs are often at a huge disadvantage in the courtroom, this is not justice. LiPs often appear intimidated by the other person's legal representation, [and] some barristers particularly play on the inequality.”

One of the reasons the government introduced the legal aid cuts for low-income divorcing couples, or parents arguing over child arrangements, was to encourage them to enter into mediation. This strategy appears to have backfired. Without lawyers referring clients on to mediation, the number of amicable agreements being made has reduced drastically. This has led to more people navigating their way through the judicial system without a solicitor.

The government has announced a review of the impact of its cuts to legal aid which will report back later this year. 

Over the last decade the overall divorce rate has fallen, but a surprising statistic is the rise in the number of people over 60 who are splitting up.

Between 2000 and 2015, the total number of divorces in England and Wales dropped 28% from 141,135 per year to 101,055. Yet the number of divorcing couples over the age of 60 shot up by 43% (from 9,997 to 14,249).

Reasons for ‘silver splitters’ are numerous, but there’s a view that as people are living longer, they’re looking for more from life. Equally, the stigma of divorce has faded, so separating from a partner is no longer the daunting proposition it may once have been. Also, more people than ever are more likely to work beyond retirement making the idea of supporting themselves outside marriage more conceivable.

A divorce at any age is difficult, but it can become much more problematic with older couples who have more assets and pensions that come under scrutiny when they part company.

Research carried out by Scottish Widows showed that seven out of 10 couples separating didn’t discuss pensions during divorce proceedings. In particular, this can have a huge impact on women who perhaps have taken maternity leave, had career breaks and may have suffered as a consequence of the gender pay gap.

The starting point for a fair split is to find out what pensions there are between the parties, identify what they’re worth along with any other assets, such as property and savings. From there, an agreement can be worked out as to who gets what.

Depending on the circumstances of a split, there are a number of ways assets can be divided and a good solicitor will outline this clearly and transparently. For example, a couple can ‘offset’ assets against each other so that one party keeps the pension while the other gets a larger share of the other assets.

Alternatively, courts can make a pension sharing order, giving a percentage of one person’s pot to the other partner. Again, a good solicitor will explain this in plain English. Pensions are very complex and it may be appropriate to obtain an expert report on the issue from a Pension Actuary.

Resolution, the national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems, is holding its annual awareness week between 27th November and 1st December.

This year, the focus is on issues surrounding cohabitation and how many unmarried couples living together are unaware of their lack of rights should they separate.

When couples move in together, the last thing on their minds is the consequences of what happens if their relationship breaks down. If it does, all too often they can find themselves arguing over whom gets what when splitting the equity in their home.

Cohabitees don’t have the same rights as people who are married. This is particularly relevant if you’re living together and you’ve invested more money than your partner when purchasing the property as the starting point for dividing up the asset is 50/50.

In a situation where the house is in joint names, it doesn’t matter whether you’ve paid more into it or not; if there’s no cohabitation agreement in place, or proof of an arrangement regarding the financial split, the equity in the home will be divided equally.

If the property you live in is owned solely by your partner, but you contribute to the mortgage payments, bills or home improvements, you may want to claim some of the equity in the house. Although it’s possible, it’s a complex area of the law, so we’d strongly recommend you seek legal advice on your rights.

If you already own a house and your partner moves in with you, or is planning to move in, we’d also recommend you enter into a cohabitation agreement to ensure that your partner doesn’t assert in interest in your property should your relationship break down.

Cohabitation agreements set out how the finances are to be divided up on separation and the intention of you both with regard to the equity in the house. They identify any assets you bring to the relationship – money, property, possessions and the ownership of the same.

If you’d like some guidance on how cohabitation agreements work and what you can expect from them, our solicitors can talk you through it.

A parent who left a tight-knit ultra-Orthodox Jewish community to start a new life as a woman has taken her fight for access to her five children to the Court of Appeal.

The transgender woman , referred to as J in an earlier court case, is contesting a ruling that her children faced greater psychological harm by being excluded from the Haredi community for having contact with her, than not having contact with her at all.

During the case, which was heard at Manchester family court in January, J explained that she hadn’t seen her children for around 18 months and wanted to be reintroduced to them sensitively. However, the children’s mother said that direct contact with J would lead to the children being ostracised at community festivities and family events.

This led the judge to rule with “real regret” that the children shouldn’t see J, but be allowed to communicate through letters and cards, citing: “These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large … It is painful to find these vulnerable groups in conflict.”

“In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – is too wide for the children to bridge.

“This outcome is not a failure to uphold transgender rights, still less a ‘win’ for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.”

J believes she’s the first person in the UK to leave a Haredi community after receiving help from an LGBT support group.

We’ll report on the outcome of the appeal when the ruling is made.

The latest figures released by the Ministry of Justice (MOJ) has raised fresh concerns over the number of family cases being brought to court without legal representation.

Stats show that 36% of the 13,029 applications made between April and June this year weren’t legally represented on either side. This is up 2% on the previous quarter.

The increase has led to calls from the legal sector to review the way the family justice system is funded. The view is that even a small amount of government financed advice could help signpost applicants to alternative forms of resolution and information to help them settle cases without having the worry, and inexperience, of representing themselves in court. The concern has been echoed by Lord Chief Justice, Lord Thomas of Cwmgiedd who described it as ‘deeply worrying’.

Suggested solutions include a return to legal aid or adoption of the Californian practise of providing a court bared solicitor who can advise whilst at court. Legal aid for children matters at least is being championed by the Bach Commission, which is looking into access to justice. The government has also been urged to broaden the remit of legal aid for other specific family cases with respect to court representation.

While many couples still choose to get married, for those who don't take the plunge there’s the option of living together. Cohabiting is more popular than ever but, just like marriage, it can bring its own problems when fall outs and disagreements over who gets what make a break up all the more acrimonious. 

So, before you sign your name on the joint mortgage, we’d recommend you consider getting a cohabitation agreement drawn up. These identify any assets you bring to the relationship – money, property, possessions – which are ring-fenced in the event of your relationship breaking down.

If you’re thinking about getting married, it’s worth noting a recent ruling by the Court of Appeal which has cast doubt over conventional assumptions surrounding how the assets of a marriage are divided between parties (see our news article dated 18/09/17 for more details). Family lawyers have been divided on this particular case because the judge ruled in favour of the husband keeping the majority of the couple’s assets as he brought more wealth to the marriage.

What the case has done is set a precedent that prenuptial agreements should be sought prior to getting married. In essence, a ‘pre nup’ is a contract which outlines the division of financial, property and personal assets between yourselves in the event of divorce. Of course, it’s easy to see this as not being a very romantic notion, but all sorts of problems occur when marriages break down and splitting finances can be a very thorny and drawn out (not to mention expensive) process.

If you’d like some guidance on how cohabitation and prenuptial agreements work and what you can expect from them, our solicitors can talk you through it.

It’s envisaged that prenuptial agreements will become more commonly used following the outcome of a court case which dismissed a woman’s bid for an equal share of her and her ex-partners assets.

Karen Hart was awarded £3.5m by the Court of Appeal after her 23 year marriage broke down. The couple’s assets were valued at just under £9.4m, but Judge Wildblood QC ruled that Mr Hart was entitled to keep the lion’s share of the combined wealth as he had brought the majority of the assets to the marriage.

Family law solicitors are now hotly debating how this will affect future rulings. Some believe that the settlement should have assumed equal weighting given the length of the marriage. There was also surprise that, even though it wasn’t properly evidenced, the judge found the financial contribution of Mr Hart outweighed that of Mrs Hart’s family and domestic contribution.

Others, however, are in favour of the ruling. They advocate that the courts draw a clear distinction between wealth built up during the marriage and what was generated prior to the partnership. In the case of Hart v Hart, Mr Hart brought his wealth to the marriage, so should be entitled to keep it. That said, an exception to this would be when a marriage breaks down and there aren’t enough assets to meet the financially weaker partner’s needs. As needs are viewed as more important, in those instances, some of the one side’s pre-acquired wealth will be apportioned to the weaker party.

Pippa Tudor, a divorce lawyer at Russell and Russell, advises: “This case has clearly set a precedent that, particularly where there is significant wealth involved, prenuptial agreements should be sought prior to getting married. I appreciate in the throes of love, it’s not a very romantic subject to bring up, but it's important to legally outline what contribution you’re bringing to the marriage to prevent any nasty surprises as they could be included in any pay out should you divorce in the future.”

Figures released by the Office of National Statistics have revealed that the number of people aged 65 and over getting married had increased by 46% in the decade from 2004 to 2014.

Data shows that in 2004, 7,468 marriages in this age group were recorded, while in 2014 the figure was up to 10,937. The figures also indicated that, in 2014, a whopping 92% of these people were divorcees, widows or widowers, leaving just 8% getting married for the first time.

It’s believed that the rise in the number of “silver splicers” is due to a combination of the post-war baby boomers and people generally living longer. In fact, the number of people aged over 65 has increased by 20% in the same period.

In contrast, despite a 28% decline in general divorce rates between 2005 and 2015, older people are bucking the trend. In the same period, divorces involving men over 65 went up by 23% and those of women, by 38%.

Again, it’s believed the increase in “silver separators” is down to people living longer. In 2004, an average 65-year-old man could expect to live for a further 17 years and a woman for a further 20 years. In 2017, this has risen to 19 years for a man and almost 22 years for a woman.

The consequences of all this means that whether you’re getting married or simply living with each other, the assets you build up could be substantial. As such, it’s important to consider getting a pre-nuptial or cohabitation agreement drawn up. It may not be particularly romantic, but it will help avoid any potential conflict should the relationship break down in the future.

Figures released by the Office of National Statistics (ONS) have revealed a 9.1% decrease in divorces of opposite sex couples in 2015.

Stats show that 101,055 divorces were finalised across England and Wales, compared with 111,169 in 2014. This is a 34% decline since the recent peak in 2003. Although divorce rates reduced across all age groups, the highest was amongst men and women aged 40 to 44.

In 2015, 62% of divorces between opposite sex couples were petitioned by the wife. Unreasonable behavior was the most common reason for divorce with 52% of wives and 37% of husbands petitioning on these grounds.

Following the introduction of marriage between same sex couples in March 2014, the first divorces took place in 2015. In total, 22 divorces were registered; 12 female and 10 male. Unreasonable behavior was also cited as the most common grounds for divorce, accounting for 77% of splits. However, unreasonable behavior within same sex couples can include having a sexual relationship with someone else as the law currently states adultery can only legally be committed between two people of the opposite sex.

Speaking of the findings, Amanda Connor, head of family law at Russell and Russell, said: “While the decrease is welcome news, it could simply be a reflection of the fall in the number of marriages being registered, which have also declined since the peak of 2003. Aside from the emotional aspects of divorce – especially if children are involved – sorting out finances can be complex and, in certain situations, quite acrimonious. A good solicitor will work to ensure you’re exposed to as little hostility as possible and achieve the right outcome.

“One of the reasons behind the reduction in the divorce rate may simply be down to more people choosing to cohabit rather than getting married, but even this can have its pitfalls. If this is something you’re considering, we’d strongly recommend you consider getting a pre-nuptial agreement drawn up. It may not be very romantic, but it would avoid any potential conflict should the relationship break down in the future.” 

Russell and Russell has appointed two new solicitors to its family department.

Donna Leigh (pictured) will work from the firm’s head office on Wood Street in Bolton town centre. She has over a decade of experience dealing with high net worth finance cases, cohabitation issues, divorce and dissolution of civil partnerships, domestic violence and children matters.

With over 25 years of experience, Hilary Farren has also joined the firm, working from our Bury office. She will provide private client advice on divorce, finances, cohabitation, injunctions and children matters. In addition, she will be running a free family law clinic every Wednesday from 1.00-4.00pm at the firm’s office on Manchester Road in the town centre. 

“Both Donna and Hilary have a wealth of knowledge in private family law and their experience will add strength and depth to the team”, said Amanda Connor, head of Russell and Russell’s family department. “We’ve undergone a significant upturn in business over the last 12 months, so their expertise will lend itself to servicing our growing private client base and complement our social care team.”

The recent news regarding Rebecca Steinfeld and Charles Keidan losing their battle to have a civil partnership, rather than marriage, has raised questions over whether it should be extended to mixed sex couples.

The pair, who live in London and have a 20-month old daughter, want to legally fomalise their seven-year relationship, but believe marriage isn’t suitable for them. Instead, they want a partnership that's: “modern, (which is) symmetrical and that focuses on equality, which is exactly what a civil partnership is".

Another couple, Kate Stewart and Matthew Cole, share the same view. They had a civil partnership in Gibraltar in June last year. Having been together 10 years they wanted a ceremony that recognised they are equal, stating that marriage “is very much unequal depending on your religion”. The couple paid for the ceremony in pounds and have a certificate, but their civil partnership isn’t legally recognised in the UK.

While they aren’t opposed to marriage, they weren’t comfortable with it as they feel it has hangovers of inequality from the past. Instead, they believe civil partnership should be a choice for both gay and straight couples.

So, what are the differences between civil partnership and marriage?

• You can dissolve your marriage on the grounds of adultery, but not in a civil partnership
• In a civil ceremony you don’t have to exchange vows and you can include songs, readings and music, however, you can’t have any religious content
• Marriages need to be carried out publicly and can be conducted by a member of the clergy, while civil partnerships can be held in private
• Only the names of the fathers of each party need to be included on a marriage certificate in contrast to a civil partnership where both parents are named

All three judges at the Court of Appeal agreed that there’s a potential breach of human rights and that the status quo couldn’t continue indefinitely, but the government is still to decide whether to extend civil partnerships to opposite-sex couples, abolish them or phase them out.

Conservative MP, Tim Loughton, who recently introduced a Private Member's Bill to give mixed-sex couples the right to a civil partnership, believes the government has "no excuse" for delaying a change in the law as the bill received cross-party backing. The bill is due to be debated on 24^th March.

In the meantime, Rebecca Steinfeld and Charles Keidan, who have collected more than 72,000 signatures to an online petition calling for civil partnerships to be open to all, intend to appeal to the Supreme Court.

Christmas is generally seen as a time for family but sadly, for some people, it’s a period when they seriously question whether they’re happy in their relationship. As a consequence, January is the month which sees the highest number of divorce proceedings started.

Getting a divorce is not only stressful, it can be expensive too - especially if there’s a house move involved. Unraveling bank accounts, a mortgage, insurance policies and pensions can be complex. There may also be loans or credit cards to pay back.

It’s not just the financial aspects of a relationship breakdown that have to be considered either. Even if it’s an amicable decision, agreeing on the arrangements for the children can be fraught with emotional turmoil.

The concept of DIY divorces is to keep costs down. There are a number of different online divorce or dissolution services which vary in price and offer different levels of help. Most will assist with the standard paperwork, but not with any tricky issues including reaching a financial settlement, which isn’t great if there are assets you want to protect or gain a share of. Not only that, “kitchen table” financial settlements aren't legally binding and are easy to overturn in court.

As with a lot of online tools, they don’t take account of the complexities of the law, which may not be obvious at the time you separate. Also, if you don’t take legal advice, you and your ex-partner may agree to split your finances, or child contact arrangements, in a way that’s unfair or hard for one or both of you.

A final word of warning; update your Will, otherwise you may end up leaving your estate to your ex. 

Figures released by the Crime Survey of England and Wales (CSEW) have revealed that police forces across England and Wales recorded 1.03 million domestic abuse-related incidents in the year ending March 2016. Following investigations, the police concluded that the number of domestic abuse-related criminal offences committed was approximately four in every 10 (41%) of these incidents (421,000).

Domestic abuse-related crimes recorded by the police accounted for approximately one in 10 of all crimes, with women more likely to report having experienced domestic abuse and 78% of cases consisting of violence against the person offences.

The decision to charge offenders was made on 70% of the domestic abuse-related cases referred to the Crown Prosecution Service CPS), with convictions secured on three-quarters of prosecutions brought. Of the cases referred to the CPS, 68% of defendants pleaded guilty.

Despite the figurers being at their lowest since the year ending March 2005, 53% of unsuccessful prosecutions were due to victim retraction, victim non-attendance or evidence that the victim didn’t support the case. It’s believed that one of reasons behind this was due to the level of fear and control exerted by the perpetrator.

If you, or someone you know, are the victim of domestic abuse we can help. We can provide advice on your legal position and link you with organisations and agencies that can assist in other areas of your life so that the process of leaving an abusive partner is made that little bit easier. 

Figures recently released by the Office of National Statistics show that the number of divorces has decreased to its lowest level in 40 years.

It’s believed the reasons behind the figures are that couples are increasingly choosing to live together rather than get married. Those who are getting married are leaving it longer before they tie the knot.

In 2014 there were 111,169 divorces granted in England and Wales, down 3.1% on 2013 and a decline of more than 25% from the most recent peak in 2003. Overall, the divorce rates per thousand married men and women fell 9.3%, the lowest level since 1974. All age groups accounted for the fall in divorces, with the exception of women aged 55 and over.

Despite the encouraging figures, as more couples choose to cohabit, it’s important for people to think about setting up a legal agreement to protect both parties in the event of the relationship breaking down.

While some couples are able to settle things amicably when they split, unmarried couples have far less protection than their married counterparts. The lines of who gets what are becoming increasingly blurred and if not sorted out could end up in court – a situation neither side is likely to want and an expense both could do without.

A cohabitation agreement is a legal document which specifies how assets and any equity in a property will be divided should couples decide to go their separate ways. Its purpose is to avoid adding further stress to an already stressful situation. So, if you’re thinking of taking the plunge, call us on 01204 399 299 for an informal chat about setting one up.

The festive season can bring out the very best in people; but it can also bring out the very worst too. This is particularly relevant for couples who have separated or divorced. Making child contact arrangements over Christmas can be fraught with disagreements and arguments about who spends time with the children, when and for how long.

Trying to divide up your children’s time over the holidays can be tricky and often frustrating to negotiate. So, here are some suggestions about how to come to an agreement on child arrangements so that everyone can have a Merry Christmas:

• If you’re the resident parent of a child, make sure you discuss Christmas arrangements well in advance so that both of you are aware of when you have the children and can plan accordingly
• Discuss what you would like calmly and be prepared to listen to what your ex wants, even if you don’t agree with them – this is about your children, not you
• Make your arrangements sensible and child focussed – using the children to get back at your ex-partner only ends up in with them losing out
• Think of what’s best for your child – will they feel unsettled if they spend Christmas being driven around and swapped between parents too much?
• Christmas is a special time for children, so if it’s not possible for your child to spend the festive period with both parents, they’ll probably be more than happy to have two Christmas Eves and two Christmas Days

If you’re struggling to come to an agreement on your child contact arrangements, we can help. We offer advice and guidance on making sensible suggestions that will make sure children get to see both parents, and their extended families, over the festive period and, more importantly, that their parents’ relationship doesn’t spoil their Christmas.

The breakdown of a relationship seldom ends amicably, but if children are involved it’s important to make sure that they don’t end up paying the price of their parents’ separation. 

Today marks the start of good divorce week, a campaign aiming to raise awareness that divorces needn’t to be acrimonious.

The initiative, which is being championed by Resolution, an organisation committed to resolving family disputes, is to highlight the idea that removing blame from divorce will not only make it easier for couples to move on, but also to enable people to go their separate ways without either having to take responsibility for the breakdown of the relationship. This, Resolution believes, will make things less stressful and will help people to manage the situation with as little conflict as possible.

Currently divorces in England and Wales can only be granted on one of five grounds: adultery; unreasonable behavior, desertion for two years or more, two years’ separation with consent or five years’ separation without the other party’s consent.

The problem with this is that couples who agree their marriage is over have to decide whether they can wait two years before divorcing or whether one of them should file on the grounds of unreasonable behavior in order to speed up the process.

Research carried out by Resolution in June 2015 showed that 52% of divorce petitions were fault-based, split between unreasonable behavior and adultery. Of these, 27% admitted the allegation of fault wasn’t true, but it was the easiest option.

Resolution is proposing an alternative divorce procedure based on one or both partners giving notice that the marriage has broken down irretrievably. After this, divorce proceedings can begin and if one or both partners still think it’s the right decision after six months, the divorce can be finalised.

Allowing couples to separate without attributing blame will enable them to resolve their problems outside courts which is far less damaging to the relationship and will help meet the government’s aim of reducing the burden on the family court, claims Resolution.

Resolution will be lobbying parliament about the issue on 30^thNovember. For more information, visit http://www.resolution.org.uk/lobbyday2016

The ex-partner of late property developer, Carol Ainscow has won a landmark ruling at the Court of Appeal.

Helen Roocroft, who was in an 18 year relationship with the property tycoon, launched the appeal after discovering that Ms Ainscow may have had hidden assets worth millions, despite claiming she had lost a fortune during the property crash.

Ms Roocroft originally accepted a far lower settlement after the dissolution of their civil partnership in 2009, however, following her death from a brain tumour at the age of 55, it became apparent that Ms Ainscow may have mislead the courts as to the true value of her wealth. As a consequence of the new ruling Ms Roocroft’s legal team is now able to set aside the original “unfair” settlement and negotiate a new agreement.

A pioneer of Manchester’s gay night life scene, Carol Ainscow was the driving force behind legendary bar, Manto and iconic nightclub, Paradise Factory. Always having one eye on the future, she spotted the opportunity in property regeneration and set up Artisan. From its base in Manchester, the company went on to develop regeneration projects in Liverpool, Sheffield and London.

After an unsuccessful attempt to settle via Alternative Dispute Resolution, the case went to the lower family courts and the High Court before being heard at the Court of Appeal in July. All three judges agreed Ms Roocroft’s right to argue for her settlement to be set aside, stating that Ms Roocroft had submitted evidence suggesting that “the deceased’s income at the time of the consent order was three times that which she had stated in her Statement of Information”.

Speaking of the ruling, family law specialist, Rebecca Muirhead of Russell and Russell, said: “This is an interesting case because the law governing the dissolution of a marriage between same sex couples is relatively new and cases like this help to shape our understanding of how the courts will deal with particular issues. In particular, this ruling makes clear that everyone is entitled to honesty and fairness, irrespective of gender or sexual orientation.

“The courts take a dim view of anyone undervaluing their wealth in an attempt to reduce a settlement. Anything less than a full disclosure of assets is dealt with strongly and this can amount to a finding of misconduct, the implications of which can lead to financial penalties or an adjustment in the settlement. In this case, it’s the right decision because there can’t be any circumstances where dishonesty is allowed to go unchallenged or the court’s ability to make appropriate decisions be hampered.

“In situations where one or both parties have significant personal wealth, we would always recommend a pre nup. While it’s not very romantic, and no one gets married with a view to getting divorced, but with so many marriages breaking down,it’s always advisable to protect yourself from the outset.”

Russell and Russell is continuing to grow its numbers with the appointment of three solicitors.

Rebecca Meehan and Ceri Jones join the family department, headed up by Amanda Connor, to service private family law clients involved in divorce and matrimonial finances, cohabitation disputes, children law and domestic abuse.

The two newly qualified solicitors join an expanding team of family solicitors who also specialise in social services issues, along with more niche areas of law including, surrogacy, same sex marriage, child relocation and abduction and female genital mutilation.

In a further appointment, Rachel Kelly has been recruited to the wills and probate team to help support the growth of the department across all the firm’s branches.

“This is an exciting time for Russell and Russell”, said Amanda Connor. “The practice has grown considerably over the last three years and we want to continue this evolution to realise our plans for the firm.

“In order to do this, we understand that the future of Russell and Russell lies in the people we bring in today. Both Rebecca and Rachel have been brought through our training scheme, while Ceri demonstrated outstanding ability during her legal training. All three of them are exactly the kind of talent we’re looking for to service our expanding client base and to help drive the business forward over the next five years.”

The Court of Appeal has given the parents of a young woman who died of cancer the right to use her eggs to conceive a grandchild.

The parents had argued that their daughter, who died in her 20s, had frozen her eggs at a fertility clinic and had wanted her mother to carry and care for her ‘babies on ice’. Despite her request, after she died, the Human Fertilisation and Embryology Authority (HFEA) refused permission for the eggs to be exported for treatment.

The Court of Appeal upheld the parents’ challenge, stating that it was clear this was what the daughter had wanted. In light of the ruling the HFEA will now have to reconsider its decision.

“This is a ground breaking case”, said Rebecca Muirhead, a solicitor in Russell and Russell’s family department. “It could well pave the way for a raft of legal challenges in situations where a person has passed away, leaving their eggs or sperm in storage.

“This ruling has set the precedent that consent is king. It’s no longer down to individuals or organisations to make decisions on behalf of people who are no longer with us. Instead, quite rightly, it’s the person who’s eggs or sperm are stored who ultimately gets to decide what happens to them.”

If a parent wants to move to a different location with their child and the other parent objects, a relocation dispute can arise.

With more children being born into international families, there are a number of situations where relocation issues may arise. You may have been offered a job overseas, for example or you might want to return to your country of birth where you have family and friends or you may need to move home to look after parents or other family members. You might even have remarried and want to move to a different country with your new partner.

Trying to reach agreement about the arrangements for children when a relationship breaks down can be difficult enough, but it can be even more challenging if one parent wants to move outside UK with the child.

With more international families it’s becoming increasingly common for disputes to arise about where children will live when parents separate. When parents share responsibility for a child, they both need to consent to the relocation of the child outside UK.

Taking children out of the country without the other parent’s consent is child abduction and is a criminal offence.

If you’re a parent seeking to relocate with a child to a country outside the UK, there are a number of ways that agreement can be reached. Some parents are able to reach agreement together, some with the assistance of a mediation service, while others may need to use a family solicitor.

If there’s a residence order or child arrangements order in place in respect of a child, the order provides that no person may remove that child from the UK without either the written consent of every person who has parental responsibility or the leave of the court. This, however, doesn’t prevent the parent with whom the order is in favour of from removing the child for a period of less than one month.

Whether there is an order in place or not, the consent of the other parent is required and if consent can’t be obtained, then the court’s permission will be required. Even if the other parent doesn’t have parental responsibility, it would be advisable to obtain written agreement.

If agreement can be reached, then the arrangement can be formalised in a consent order which can be submitted to the court for approval with a C100 application. The order can set out the arrangements for the child to spend time with the non-moving parent. Consideration would need to be given as to how the child can continue to have a positive relationship with the other parent, including direct contact and indirect contact using facetime and Skype.

If you’re a parent who is agreeing to your child relocating to a different country, then it’s important that you consider formalising the arrangement in a court order so that it’s clear when the child will be made available to spend time with you directly and indirectly.

If a proposed move is within the EU, an order made by the English court will be enforceable, although this doesn’t apply to Denmark. Similarly, if the proposed move is to a country which is a signatory to the 1996 Hague Convention, orders from the English courts may be recognised and enforced.

If the relocation isn’t to a country within the EU or a 1996 Hague Convention country, then specialist advice would be needed.

If no agreement can be reached about whether it’s in the best interests of a child to relocate abroad, then the court’s permission would be required. An application for permission to remove a child from the country can be made, setting out the reasons why the move is being proposed and the positive benefits to the child.

Parents are advised that the Children and Families Act 2014 made it a requirement for a person to attend Mediation Information and Assessment Meeting (MIAM) before certain applications can be made to the court. A MIAM is a short meeting that provides information about mediation as a way of resolving disputes. There are exemptions to attending a MIAM; for example if you’ve been the victim of domestic violence or if there are child protection concerns. If this is applicable, we can provide further information about exemptions.

In all cases relating to external relocation the court’s paramount consideration is the welfare of the child concerned and the court is likely to consider the following factors:

• The motivation of the parent seeking to relocate
• The plans of the parent seeking to move
• The plans of the parent seeking the child to remain
• The proposals for the involvement of the other parent in the child’s life
• The plans put forward by the parent opposing the move
• The child’s wishes and feelings in light of the child’s age and maturity

As members of Resolution, Russell and Russell’s family department is committed to helping parents deal with matters in a constructive and non-confrontational manner, putting the needs of the children first.

In urgent matters where there is a real and imminent risk that a child may be removed from the country, the police should be contacted. 

There can be a number of situations where the need for relocating a child may arise. One parent may be offered a new job in a different part of the country or may wish to return to a part of the country where they have family and friends.

Unlike external relocation – taking a child abroad – there’s no automatic restriction on moves within the UK. Internal relocation cases are treated differently to external relocation cases and proposed moves within the UK would usually only be stopped in matters where there were exceptional circumstances.

The recent case of Re C (Internal Relocation) has helped to provide some clarity as to the likely approach the court will take when determining applications where one parent wants to move within the UK with a child.

The welfare of the child is the court’s main consideration. The court will listen to proposals put forward by both parents and carry out a welfare analysis. It will consider a range of factors including the practical arrangements, the motivation of the parent proposing to relocate, the ability for a relationship to be maintained with the other parent and the child’s view.

If you’re a parent seeking to relocate with a child to a different part of the UK there are a number of ways that an agreement can be reached. This may be through agreement with the other parent or with the assistance of a mediation service, for example.

If you’re unable to reach agreement or if you’re concerned about a proposed move and whether it’s in the best interests of your child, the following applications can be made to the court.

• Specific issue order – an order allowing a child’s relocation or dealing with an issue about schooling
• Prohibited steps order – an order preventing a child’s relocation

As members of Resolution, Russell and Russell’s family team are committed to helping parents deal with matters in a constructive and non-confrontational manner, putting the needs of the children first. In all cases relating to internal relocation, the courts main consideration is the welfare of the child. 

The recent hike in divorce fees, which has been introduced by the Ministry of Justice (MOJ), has been met with criticism from across the legal community.

Couples in England and Wales who want to end their marriage will now have to pay £550 – a whopping £140 increase.

The MOJ has defended the 34% rise as being necessary in order to reduce the burden of the courts and tribunals on the taxpayer. According to courts minister, Shailesh Vara Her Majesty's Courts and Tribunals Service (HMCTS) cost £1bn a year more to run than it receives in income. The new fee, along with several other fee increases, is expected to raise an extra £60m a year.

The MOJ originally planned to raise fees by 80% (from £410 to £750), however, it climbed down after "carefully considering" concerns raised in a consultation.

Speaking of the increase, Rebecca Muirhead, a divorce specialist at Russell and Russell Solicitors, said: “This is nothing more than a stealth tax, especially as it’s only been two years since fees were increased from £345 to £410. It costs the courts around £270 to process a divorce, so other than profiteering from relationship breakdowns, I don’t know how the MOJ can justify the latest rise.”

However, court fee exemption is still available for people on a low income and for others we can offer payment of such fees and our costs by way of instalments; this hopefully helps clients in this situation. 

Recent guidance on how children are taken into ‘voluntary care’ has been welcomed by Russell and Russell's family team.

The Section 20 Children Act 1989 permits social services departments to ‘accommodate’ children not foster care, if the parents ask for it. Lots of cases recently have shown that some local authorities have abused this power and children have been left to ‘drift’ in the care system without clear plans being made for them.

The Transparency Project has published guidance for parents and professionals which sets out what is expected of social workers if they are talking to parents about section 20: http://www.transparencyproject.org.uk/guidance-on-...

"This guidance is a welcome development. We regularly give advice to parents about section 20 accommodation. This includes both whether they should agree to it and whether they should withdraw their consent to it. This guidance is a useful tool to help in making sure everyone knows what's expected of them", said Salim Ibrahim, partner in Russell and Russell's family department.

Legal aid is available for advice on section 20. All our solicitors are experts in their field who can guide you through the complexities of the law.

Following the Department for Education’s review of Special Guardianship, the government has set out amended regulations designed to ensure that children living under Special Guardianship Orders (SGOs) are safe in a good, caring, permanent home.

Introduced in 2005, an SGO aims to assist children who can’t live with their birth parents and would benefit from a legally secure placement with one or more ‘special guardians’. Changes in the use of SGOs since then, however, have raised concerns that some special guardians may not always be assessed or supported in a way that puts children’s long term welfare first.

The review of Special Guardianship, which was published in December 2015, involved extensive discussions with a wide range of interested parties. The outcome of it was a clear rationale for creating a stronger, more robust assessment framework for potential special guardians.

As a result, the Government has implemented the following amendments as of the 29th February 2016. Local authorities are now required to report to the court that potential special guardians have the skills to ensure that any placement gives children the best chance of good outcomes in their life through:

• the capacity of the guardian to care for the child now and until the child is 18
• an assessment of the relationship between the child and the prospective guardian
• the ability of the guardian to overcome the impact of any abuse or neglect in early life
• the effect on the child into adulthood of being cared for under a special guardianship order
• the ability of the guardian to manage any risk to the child of any pre-existing relationship between the guardian and the child’s birth parents

At Russell and Russell, we have a specialist family department which deals with these matters on a daily basis. If you would like further information and advice, call us on 01204 399 299 or 01244 405 700.

The Court of Appeal has ruled that government changes to legal aid for domestic violence victims are unlawful.

The decision to overturn the government’s rules on evidence, introduced as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), means that victims of domestic abuse will no longer be required to bring a case against an ex-partner within two years of the incident taking place.

The challenge, which was brought by the Public Law Project on behalf of the charity, Rights of Women, has been hailed as a victory for anyone suffering mental or physical abuse at the hands of a partner. The Court of Appeal ruling recognised that the two year time restriction prevents victims from applying for legal aid, even when it’s clear there’s been violence or there’s an on-going risk of violence.

Rights of Women argued that fear of a perpetrator of domestic abuse does not disappear after two years and legal aid is often the only way some victims can fund action to escape from violent relationships and protect their children. In addition to mental and physical abuse, the ruling also requires the government to amend regulations to ensure that victims experiencing financial abuse are able to access family law legal aid too.

Speaking of the ruling, Pippa Tudor, family solicitor at Russell and Russell, said: “This is a real triumph for anyone who’s been unable to bring a case against their ex-partner because the abuse took place more than two years ago and they don’t have the funds to instigate a private case. The two year time constraint has meant that many victims of domestic abuse have been unable to cut ties with their ex and move on with their life, so the outcome of the ruling is not only a success for victims, but also for common sense.”

As members of Resolution, Russell and Russell took part in the drive to abolish this ruling. If you've been prevented from getting protection, we may be able to review this on your behalf. Call us on 01204 399 299 / 01244 405 700 for more information.

The second reading for plans to introduce no fault divorces has been postponed until 11^th March.

The Bill, which was first tabled by MP, Richard Bacon in October last year, proposes that couples can go their separate ways without having to place the blame for the breakdown in the relationship on one side or the other.

Under the current law, divorces in England and Wales can only be granted on one of five grounds: adultery; unreasonable behaviour, desertion for two years or more, two years’ separation with consent or five years’ separation without the other party’s consent.

The result is that couples who agree their marriage is over have to decide whether they can wait two years before divorcing or whether one of them should file on the grounds of unreasonable behaviour in order to speed up the process.

Research carried out by Resolution, an organisation committed to resolving family disputes, in June 2015 showed that 52% of divorce petitions were fault-based, split between unreasonable behaviour and adultery. Of these, 27% admitted the allegation of fault was not true, but it was the easiest option.

Under Mr Bacon’s proposal couples would be able to split without having to apportion blame by providing separate signed declarations stating that the marriage or civil partnership had irretrievably broken down.

The Bill, however, isn’t without its opponents. Sir Edward Leigh, the Conservative MP for Gainsborough argues that a change in the law would make divorce “easier" and increase the number of divorces, but Mr Bacon has counteracted this, stating that divorce in itself is a "tragedy" which should not be "made easier", but his Bill would allow couples to break up without "throwing mud" at each other.

Susan Alexander of Chester Mediation is a Family Mediation Council Accredited All Issues Mediator authorised to hold Mediation Information and Assessment meetings and to sign court forms. Unless a mediator holds this accreditation they are not authorised to sign court forms from January 2016. Susan Alexander provides family mediation services at our Chester and Atherton offices. To arrange a Mediation Information and Assessment meeting with her, call the team on 01244 405744.

Christmas can bring out the very best in people; but it can also bring out the very worst too. This is particularly relevant for couples who have separated or divorced. Making child contact arrangements over Christmas can be fraught with disagreements and arguments about who spends time with the children, when and for how long.

Trying to divide up your children’s time over the holidays can be tricky and often frustrating to negotiate. So that everyone can have a merry Christmas, here's our suggestions on how to agree sharing time with your children:

• If you’re the resident parent of a child, make sure you discuss Christmas arrangements well in advance so that both of you are aware of when you have the children and can plan accordingly
• Discuss what you would like calmly and be prepared to listen to what your ex wants, even if you don’t agree with them – this is about your children, not you
• Make your arrangements sensible and child focussed – using the children to get back at your ex-partner only ends up in with them losing out
• Think of what’s best for your child – will they feel unsettled if they spend Christmas being driven around and swapped between parents too much?
• Christmas is a special time for children, so if it’s not possible for your child to spend the festive period with both parents, they’ll probably be more than happy to have two Christmas eves and two Christmas days

If you’re struggling to come to an agreement on your child contact arrangements, we can help. We offer advice and guidance on making sensible suggestions that will make sure children get to see both parents, and their extended families, over the festive period and, more importantly, that their parents’ relationship doesn’t spoil their Christmas.

We also offer a mediation service which helps to re-focus the parents on what’s important; the children. By entering into a process of negotiation with an independent third party, mediation aims to bring about an agreement that both sides will be comfortable with. Mediation can also help foster better relations between parents by building trust which helps to avoid future potential disputes relating to the children, such as holidays and birthdays.

The breakdown of a relationship seldom ends amicably, but if children are involved it’s important to make sure they don’t end up paying the price of the parents’ separation.

New polling has found that around eight out of ten children and young people with experience of parental separation or divorce would prefer their parents to split up if they are unhappy, rather than stay together.

The poll of young people aged 14 - 22 with experience of parental separation, which was carried out by ComRes on behalf of family law organisation Resolution, has revealed fresh insights from children about the levels of involvement and amount of information they would like during their parents’ divorce. The findings are released ahead of a Parliamentary launch of new advice for divorcing parents.

An overwhelming majority (82%) of the young people surveyed said that, despite their feelings at the time, they felt it was ultimately better that their parents divorced rather than stay together unhappily. Asked what advice they would give divorcing parents, one young person said, “Don’t stay together for a child’s sake, better to divorce than stay together for another few years and divorce on bad terms”; while another suggests children “will certainly be very upset at the time but will often realise, later on, that it was for the best.”

Key findings from the research shows that children and young people want greater involvement in decision-making during the divorce process:

• 62% of children and young people polled disagreed with the statement that their parents made sure they were part of the decision-making process about their separation or divorce;
• Half of young people (50%) indicate that they did not have any say as to which parent they would live with or where they would live (49%) following their parents’ separation or divorce. Importantly, 88% say it is important to make sure children do not feel like they have to choose between their parents;
• Around half (47%) say that they didn’t understand what was happening during their parents’ separation or divorce;
• Two in ten (19%) agree that they sometimes felt like the separation or divorce was their fault;
• When asked what they’d most like to have changed about their parents’ divorce, 31% of young people said they would have liked their parents not to be horrible about each other to them, and 30% said they would have liked their parents to understand what it felt like to be in the middle of the process;
• Positively, Resolution’s research also showed that many parents are handling their separation admirably. 50% of young people agreed that their parents put their needs first during their separation or divorce.

Speaking about the new findings, Jo Edwards, chair of Resolution, said: “This new information shows that, despite the common myth that it’s better to stay together “for the sake of the kids”, most children would sooner have their parents’ divorce rather than remain in an unhappy relationship.

“Being exposed to conflict and uncertainty about the future are what’s most damaging for children, not the fact of divorce itself. This means it is essential that parents act responsibly, to shelter their children from adult disagreements and take appropriate action to communicate with their children throughout this process, and make them feel involved in key decisions, such as where they will live after the divorce.

“We should be supporting parents to choose an out of court divorce method, such as mediation or collaborative practice. This will help parents to maintain control over the divorce and ensure their children’s needs are, and remain, the central focus.”

Family lawyer, Susan Alexander of Russell and Russell, who practices collaborative law and offers mediation services at the firm’s Chester and Atherton offices, said: “I know that parents who are going through a divorce will want to put their children first. There are around 600 divorces happening in Bolton and 650 in Chester each year. This means that there are many local children who might be facing the family issues raised by this research. Divorce is of course a very stressful thing to go through – but the best way forward is to manage separation in a way that minimises conflict, focuses on the needs of children and helps separating couples to avoid court”.

Relate counsellor, Denise Knowles said: “Of course, children usually find their parents’ separation extremely upsetting but as this research demonstrates, eventually many come to terms with the situation and adjust to changes in family life. There are plenty of steps that separating parents can take to ensure they reduce the negative impact on their children such as working to avoid constant arguing or speaking badly of the other parent in front of the kids.

The ComRes survey results support the main advice Resolution shares in its Parenting Charter, which sets out what children should be able to expect from their parents during a divorce.

These include children’s rights to:

• be at the centre of any decisions made about their lives
• feel and be loved and cared for by both parents
• know and have contact with both sides of their families, including any siblings who may not live with them, as long as they are safe
• a childhood, including freedom from the pressures of adult concerns such as financial worries

At a special event with MPs and Peers in Parliament later this week, Resolution will be calling for the Government to share the Charter with all divorcing parents. The event will also see the launch of an online advice guide at www.resolution.org.uk/divorceandparenting developed by Resolution to help divorcing parents manage their relationship with their children and with each other during separation.

A landmark ruling on two divorce settlements could open the floodgates to thousands of claims of financial misrepresentation.

Alison Sharland and Varsha Gohil won their case against their ex-husbands who they claimed deliberately hid their wealth to avoid paying out on their divorce settlements.

In 2010, Ms Sharland accepted £10 million from her former husband, Charles while Ms Gohil received a car and £270,000 from her ex, Bhadresh in 2002.

Although the Supreme Court indicated that both claims would return to the High Court, the significance of these cases could have massive consequences for divorce proceedings.

“In essence, the judgment of the Supreme Court sends a clear signal of the importance for full and frank disclosure of assets in divorce proceedings”, said Rebecca Muirhead, family law specialist at Russell and Russell Solicitors. “The decision makes clear that where full disclosure doesn’t take place, it could affect the terms of a settlement so the court can reconsider the decision and overturn a previous order. If ever there was a case for honesty being the best policy, this is it.”

The ruling was based on the fact that Ms Sharland believed that the money she received from her husband’s company represented half his wealth. She also accepted 30% of the proceeds of shares held by her husband when he sold them. In fact, Charles Sharland’s company had been estimated to be worth around £600 million by the financial press, despite the value being used in the divorce as just £47 million. There were also plans to float the company on the stock market.

In Ms Gohil’s case, her husband’s deception was revealed when he was prosecuted for money laundering. His true wealth came to light during the trail and he was later jailed for 10 years.

Two solicitors at Bolton law firm, Russell and Russell have been made partners.

Emma Wood, who has worked for the firm since 2003, began her career as a trainee solicitor. She qualified in 2006 and specialises in wills, probate and Lasting Powers of Attorney. She is a member of Solicitors for the Elderly, a national organisation which provides specialist legal advice for older and vulnerable people, their families and carers.

Family lawyer, Jean Flanagan also makes partner. Having joined Russell and Russell in 2005, she is a senior member of the care team where she deals with cases on behalf of parents and children when there is intervention from social services and highly complex disputes where children’s arrangements are the subject of court proceedings. Her specialist skills and knowledge in this area led to her achieving panel membership of the Law Society’s Children Panel in 2010.

Speaking of both promotions, Judith Bromley, joint managing partner at Russell and Russell, said: “Emma and Jean have shown tremendous dedication to the firm and their contributions to its continued growth have been invaluable. Their partnerships are well-deserved and I know they will both continue to play extremely important roles in the firm’s future.”

Russell and Russell Solicitors has made an addition to its family law team. Pippa Tudor joins the practice to service private clients involved in divorce proceedings, children matters, protection from domestic violence and harassment and financial disputes arising from marital breakdown and cohabitee separation.

Originally from Ruthin in North Wales, Pippa obtained a law degree from the University of Liverpool before completing her Legal Practice Course at Chester College of Law. She began her career working as a paralegal at a Liverpool based law firm, qualifying as a solicitor in 2011.

“Russell and Russell’s family department has a great reputation across the region for representing clients involved in family disputes, so it was a move that was too good an opportunity to miss”, said Pippa. “Joining the department, which already has an established Care Team that represents parents in proceedings brought by the local authority, will enable me to grow the private side of the business and I’m very much looking forward to the opportunity of doing so.”

Amanda Conor, head of family law at Russell and Russell, added: “Pippa has considerable experience in private family matters, particularly finances upon divorce and domestic violence. Her appointment will allow the firm to build on its private client services and will complement the work provided by the Care Team.”

Russell and Russell has been awarded another accreditation for its work in family law.

Our Bolton and Chester based practices has received the Help and Support for Separated Families certification for its mediation services. A government run initiative, HSSF is designed to help separated families work together in the best interests of their children.

To become accredited, Russell and Russell underwent a rigorous application and assessment process in which the firm was required to demonstrate how it supports collaboration between parents, helping them to resolve disputes and focus on the effect the separation has on their children.

Speaking of the accreditation, collaborative lawyer, Susan Alexander said: “Gaining the HSSF mark is further recognition of the quality of our service and provides peace of mind for clients who may be unsure about the value of mediation.

“Russell and Russell’s family law department has a specialist mediation team which provides a cost effective way of resolving disputes between parents whose relationship has broken down. Mediation works towards co-operative parenting so that court action, which can be very expensive, can be avoided and, more importantly, helps limit the emotional consequences of separation felt by the children.”

The Court of Appeal has ruled that government changes to legal aid for domestic violence victims are unlawful.

The decision to overturn the government’s rules on evidence, introduced as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), means that victims of domestic abuse will no longer be required to bring a case against an ex-partner within two years of the incident taking place.

The challenge, which was brought by the Public Law Project on behalf of the charity, Rights of Women, has been hailed as a victory for anyone suffering mental or physical abuse at the hands of a partner. The Court of Appeal ruling recognised that the two year time restriction prevents victims from applying for legal aid, even when it’s clear there’s been violence or there’s an on-going risk of violence.

Rights of Women argued that fear of a perpetrator of domestic abuse does not disappear after two years and legal aid is often the only way some victims can fund action to escape from violent relationships and protect their children. In addition to mental and physical abuse, the ruling also requires the government to amend regulations to ensure that victims experiencing financial abuse are able to access family law legal aid too.

Speaking of the ruling, Pippa Tudor (pictured), a family solicitor at Russell and Russell, said: “This is a real triumph for anyone who’s been unable to bring a case against their ex-partner because the abuse took place more than two years ago and they don’t have the funds to instigate a private case. The two year time constraint has meant that many victims of domestic abuse have been unable to cut ties with their ex and move on with their life, so the outcome of the ruling is not only a success for victims, but also for common sense.”