A few days ago the Supreme Court clarified a question concerning the court’s powers on divorce.
Divorce courts only have the powers given to them by parliament so are not free to do anything outside that “toolbox” of powers. Often divorcing couples wish to agree matters outside the power of the court. For some time this situation been dealt with by “ undertakings” i.e. promises by one party to the other. So final court orders often consist of a series of promises followed by court orders. So the undertakings/promises are not the court exercising its powers. When a divorce court exercises its powers that is usually a one off exercise so orders cannot subsequently be varied in the case of orders relating to capital. Maintenance orders are different as the court has power to vary.
In Birch part of the final agreed order provided for the husband to transfer his interest in the home to the wife and she promised to obtain his release from his promises under the mortgage by an agreed date, failing which the home would be sold to enable that release to take place. Accordingly,the husband is likely to have relied on that promise when agreeing to the overall terms of the agreement/order.
In the event the wife was unable to secure the husband’s release as had been promised. Instead of putting the house on the market for sale she applied to the court to vary her undertaking so as to extend the deadline until several years later.
The case fought all the way to the Supreme Court as the husband argued that the court had no power to hear the wife’s application. However, the court has now issued its decision in favour of the wife therefore decided that it has the power to vary undertakings albeit that power is not unfettered.
Advisers must now be very careful when advising their clients to agree to undertakings as previously it was thought that the undertaking could not be varied but the court has now said that the courts have the power to vary undertakings.
This is the title to a new video posted on YouTube by HM Courts and Tribunal Service promoting a promise of a huge investment to revolutionise how justice is administered through using digital services and an online court. For divorce a simple online system is promised.
We are all used to government making promises and promoting high expectations. Let us hope that this is a promise that will be delivered as any steps to reduce the cost and stress of divorce on families is to be welcomed.
This is the link to the video, called Justice Matters:
Since 1973 the only ground for divorce has been irretrievable breakdown of the marriage.This can only be proven in one of 5 ways: adultery, unreasonable behaviour and 2 years separation with the consent of the other party being the most commonly used.
This immediately creates a hostile situation, as one party has to successfully raise one of these grounds against the other party, at a time when financial and emotional energies could be better spent sorting out the family finances and arrangements for the children.
This can create a very real problem where one party has concluded that the marriage has irretrievable broken down but the other party choses to defend the divorce proceedings. To take matters forward then involves a public trial of the allegations. This can be a very real problem, as shown in the case of Tini Owens, who is at present asking the court of appeal to overturn a decision of a lower court judge, who refused to allow her petition for divorce. The vast majority of divorces go through undefended so it is unusual to have a defended divorce and even more unusual for a divorce petition to be refused.
However, notwithstanding widespread calls for a No Fault based divorce system, the government, through the justice minister and House of Lords spokesperson Lord Keen, recently indicated that the government “… have no current plans to change the existing law on divorce ”.
Recent figures published by the Office for National Statistics show that the divorce rate has declined by 27% from 2003, to the 2014 figure of 111,169 divorces in England and Wales. Of these, the most was in the age group 44/49 for men and 40/44 for women.
Nicola Haines, of the Office for National Statistics, said that likely reasons included the increasing age of first marriage and the increase in cohabitation. Also, compared to 2004, divorce rates in 2014 were lower for all age groups except for women aged 55 or over.
Divorce is most likely to occur in the first 10 years of marriage and where a marriage has lasted for 20 years, there is a greater chance the couple will not divorce.
According to the recent ONS report, the percentage of the population who are married or in a civil partnership continues to fall. In 2002 the figure was 54.8 % which compares to the latest figure of 50.6 % of the population aged 16 and over in 2015.
In terms of numbers, the 50.6% represents 23.8 million people who were married in 2015.
This decline is probably explained by a rise in the number of people who cohabit who have never married or formed a civil partnership.
60.5% of the population aged 16 and over, that is, 28.4 million people were living in a couple in 2015 and the number of that population who were “cohabiting, never married or civil partnered” increased from 6.8% in 2002 to 9.5% in 2015.
The report provides lots of other statistics for those who like such information. Interestingly, we learn from the figures that the majority of the population aged 16 and over in 2015 were married. They are followed by those who were single, never married or civil partnered (34.5%). Those who were divorced come out at 8.1% and those widowed at 6.5%. The smallest group were those in a civil partnership, at 0.2% of the population aged 16 and over.
Also more men than women remarry after divorce.
Source: ONS (Office for National statistics).
For anyone reaching state pension age on or after 6 April 2016 you need to be aware that the rules on what pension sharing orders can be made in divorce, nullity and on dissolution and annulment of a civil partnership will change.
For people reaching state pension age on or after 6 April 2016, there will be a new state pension and this cannot be subject to a pension sharing order. However, for some aspects there will be a transition period and complicated transition arrangements in the light of which there could be big differences on outcomes depending on whether or not the proceedings started before or on or after 6 April 2016.
Particular areas affected relate to contracting-out, protected payments, and the order itself.
From 6 April 2016, where the proceedings start –
a) before 6 April 2016: the existing arrangements apply and the additional State Pension is shareable
b) on or after 6 April 2016: the new arrangements apply and the Protected Payment is shareable.
If you would like further details of this complicated situation see:
Article 2 of The Pensions Act 2014 (Pension Sharing on Divorce etc.) (Transitional Provision) Order 2016.
Have you wondered what happens about finances when you have to go to court ? It is sensible to consider this question when deciding whether or not to use family mediation to resolve issues about how to split your finances.
Here is a link to a recent 1 hour discussion on the subject on Radio 4. The discussion included a retired Family Court judge, a practising barrister, an academic and a McKenzie friend ( a person who assists a litigant in person in court and who does not need to be legally qualified): Splitting the Assets .
When involved in divorce proceedings (or dissolution, nullity or judicial separation proceedings) concerning finances couples have to fill in a very long form called a Form E. This is intended to be a complete disclosure of the parties respective financial positions (i.e. assets and liabilities). Parties and courts make final decisions and orders on financial settlements based on this disclosure. If it is substantially wrong i.e. there would have been a different outcome if the true facts were known, it is possible for any final court order to be set aside.
There is an online form for this purpose which calculates certain totals of individual figures. If using a solicitor the solicitor will usually provide the hard copy form but for those acting without solicitors the online form is often used.
At the end of last year it was discovered that there was a problem with the online software, which had existed since about April 2014, which resulted in the form containing inaccurate figures. This was corrected on 14 December 2015. However, it was then discovered that the error could also have affected cases between between April 2011 and January 2012.
In January 2016 the Ministry of Justice announced that this affected 3,638 couples and has potentially voided about 2,235 settlements, as 1403 cases were still live. Justice minister Shailesh Vara MP wrote that some parties may want to set aside or vary their order and that there would be no court fee for making such an application. He also said: ‘I have instructed HMCTS to write to all parties in the 2,235 closed cases. The letter expresses our sincere regret for the error, sets out what happened and explains that, although Form E is just one part of the evidence used in their case, there remains a possibility that the error affected the final outcome.’
The Ministry have said “Anyone concerned about their own court proceedings should contact
(Advise (sic) regarding a faulty divorce form E (Financial Statement):
The Office for National Statistics have published (23 November 2015) more information showing how marriage and divorce in England and Wales have fared over the last few years.
The rate of divorces fell in the years 2003/2009. The rate was then steady until 2010 when there was a 4.9% increase after which the rate was more or less steady until 2012, then fell in 2013. As to the actual figures in that year, in 2013 there were 114,720 divorces, a fall of 2.9% since 2012, when there were 118,140 divorces.
So, who is doing the divorcing? The statistics show that in 2012 divorce was highest among men and women aged 40 to 44. In 2013 the average marriage that then ended in divorce lasted for 11.7 years. This average has kept fairly stable since 2005. Interestingly 65% of petitions for divorce were started by women.
As reported in my last blog, more couples are now choosing to cohabit, which might help to explain these figures.
The Office for National Statistics (Families and Households survey, released 5 November 2015) has shown that unmarried living together is the fastest growing family type. The statistics disclose that in 2015 there were 3.1 million opposite sex cohabiting couple families, an increase from 14% of all families in 2005 to 17% in 2015. This difference is described as a “statistically significant increase”. In the case of opposite sex cohabiting couple families, 41% have dependent children in their homes which figure is 3% for same sex cohabiting couple families. Also, in 2015 there were 90,000 same sex cohabiting couple families in the UK. These figures mean that there are more unmarried couples with no children in the household than those who do have children in the household.
There is a big gap between the protection the law offers to married couples compared to those who are unmarried. This leads to much debate about the extent to which the law needs to close the gap; that is, should unmarried couples who choose to live together and not marry, be given rights closer or equal to those who make the choice to marry?
There is no right or wrong answer. However, given the increased numbers who chose to live together and not marry, the law should at least be as clear as it can to help such couples divide their money and property if and when they separate without the added worry and cost of an uncertain legal position.
These relationships cover a wide range of situations, from childless couples who have lived together for a short period, maybe days and months, to those who have lived together for many many years, have had children together and where one of the parties, typically, might have given up or slowed down a career for the sake of bringing up their children. So it can be seen to be very difficult to create a system that provides fairness in all of these different situations whilst being straightforward, clear and cheap to administer.