A recent case, decided by the Supreme Court, Wyatt and Vince, has allowed a wife to make financial claims after separating in 1984 ( 3 years after the marriage) and 18 years after their divorce.
During the marriage the parties had no money and after separation neither had money for some time. They had a child between them who was raised mainly by the wife. However, the husband, who had adopted a new-age traveller’s lifestyle, had an interest in the environment and went on to develop a wind turbine technology which then made him many millions. The wife remained poor.
The divorce papers were lost so the court assumed that no final financial order had been made. The Supreme Court therefore held that the wife was free to pursue her financial claims against her former husband notwithstanding the time that had passed since the separation and divorce and the fact that he had made all his money since then and without any help from the wife.
The Supreme Court therefore directed that the wife’s application proceed in the Family Division of the High Court so the final outcome is awaited. However, the case has alreaady cost hundreds of thousands of pounds in legal costs. The Supreme Court also reinstated an earlier order for the husband to pay £125,000 to the wife to pay her legal costs. By the time of this last court decision that had all been spent.
So some of the lessons are: to be very careful at the time of the divorce to ensure that there is a final clean break court order, to keep the divorce papers for a long time and to keep a record of child care and financial contributions for the children. In this case the wife was claiming to be compensated for having borne the brunt of raising the child without financial support from the husband even though during many of those years he also was without money.
Where parentage is disputed DNA testing can be used and is very effective. The dispute is often about who is the father of the child. However, the cost of paying for the tests is expensive and has often stopped parties using this service which frequently results in longer court cases.
Examples of where these disputes arise and come to court are: where a parent is refusing to allow the other parent to see the child and where a parent is refusing to provide financial support alleging he/she is not a parent.
From September 2015 Judges in Family Courts will have the power to order these tests which will be funded by CAFCASS (a government agency). The Justice Minister Simon Hughes announced this on 17th February. The government hope this will help to save courts time and money. Also it says this will help judges to feel more confident in their decisions and that parents are more likely to honour any court orders.
The dispute has to get to court before the government will help with the costs. That is unfortunate especially as the government says it is committed to other means of resolving disputes before they get to court eg Family Mediation, but have not provided free DNA testing to support these other means.
Justice Minister, Simon Hughes, has announced that children aged 10 and older will have an opportunity for their views and feelings to be heard by a judge in proceedings that concern them.
No detail of how this will work in practise has been announced except that this initiative is to be implemented as soon as practically possible.
At the same time arrangements will be made in appropriate cases for children to be heard by a mediator.
On 30 June 2014, a new system aimed at ending the Child Support Agency over the next 3 years, comes into force.
Applicants for child maintenance will have to pay a £20 fee to the Child Maintenance Service and there will be financial penalties of up to £300 for payers who try to avoid payments.
The government’s intention is to encourage couples to make their own arrangements and to make for financial costs if the state system has to be used.
There will be a Direct Pay system under which the state will calculate how much should be paid and the payments will then be made direct but the state will help if payment is not made.
Otherwise there will be Collect and Pay system under which the state will also organise payment. However, to discourage use of the latter there will be huge costs:
20 % of the sum assessed for the paying parent and 4% of receipts for the receiving parent.
At present pre nuptial agreements can be taken into account by courts but are not legally binding. Should married couples be able to agree, in advance of problems, how their property and other assets should be divided when they divorce ? If so, should there be any limitations ? For example, how should the future birth of children come into account ?
The House of Lords gave the Divorce ( Financial Provisions) Bill its second reading on 27.06.14. This Bill will make such agreements made before and after marriage binding, so amending the present law which is contained in the Matrimonial Causes Act 1973. The Bill also seeks to make other changes, for example limiting maintenance payments to 3 years.
The content of pre nuptial agreements is a matter that can be discussed in mediation. To then make it legally binding the process is to take the proposals to a lawyer who will deal with the legal formalities.
Following the government abolishing legal aid for most family court applications about children, finances and property, there have been many more people going to court unrepresented.
They are called Litigants in Person (LIPs). As they have no legal training they often do not know the court procedures and what facts are relevant in law. This has slowed down court proceedings as they often take longer where no lawyers are involved.
To help these folk a mediator/barrister has produced 3 practical videos to help them understand the court process. They can be found on YouTube (click on the link below to open the video) :
1. Preparing for your first court hearing.
2. The Hearing Itself.
3. Giving evidence and challenging evidence.
After a long passage through parliament, today, 13 March 2014, the Children and Families Bill received the Royal Assent, hence becoming law.
Amongst it’s many provisions, it provides that parties wanting to go to court over disagreements concerning arrangements for their children and finances, MUST first obtain information about family mediation. This will usually involve attending a Mediation Information and Assessment Meeting (MIAMS) with a qualified family mediator. In some limited cases, such as certain types of domestic violence, there will be an exemption from this requirement otherwise it will now be compulsory. The start date is to be 22 April 2014.
If the matter does go to court the court must have regard to the principle that both parents should be involved in their children’s lives, where it is safe to do so.
A recent YouGov poll disclosed that 58% of separated parents they surveyed do not believe in the idea of a ‘good separation’. 52% said that their separation had had a negative impact on their children.
In family mediation, where the separating couple have children, the needs of the children are at the centre of the process. How you deal with your separation has an important effect on your children. So, if you want good outcomes for your children, do your best to have a good separation.
Do not be afraid to ask for help and look for information. Relate have launched a service, Being Parents Apart where you can find lots of information and signposting to places that can help.
Another good source for information and signposting is the government’s site called Help On Breaking Up. This gives information to help you support your children and deals with most other areas where help is needed including housing, welfare and legal issues.
Communication is central . Family Mediation helps separating couples improve their communication leading to better outcomes for all concerned.
Mediation clients often say that they have come to mediation to avoid having to use lawyers, who they fear will make relations with the other party worse and will involve high fees.
A sensible use of lawyers in the mediation process can in fact help the mediation to succeed. This usually involves consulting lawyers on particular questions rather than employing them to do everything. That way the mediation client retains control and is able to clarify matters that need to be discussed in the mediation meetings. Lawyers can give useful general advice on how courts approach matters such as issues concerning finances and arrangements for children. They can also provide advice on complicated matters such as options when discussing pensions.
Lawyers are useful at the final stage of the mediation process , when a set of draft proposals have been agreed, to give advice on those terms. Until there is a court order any proposals reached in mediation are not legally binding. This encourages mediation clients to be more relaxed about discussing and disclosing matters which gives both parties more options and a better chance of finding solutions acceptable to both of them.
Sometimes mediation is either unsuitable or one party is unwilling to consider even attending a mediation information and assessment of suitability meeting with a trained mediator.
In these circumstances the willing parent usually wants guidance on what to do next. That parent will often want to take the matter to court for a decision on the arrangements for seeing their children. In that case these links are often helpful for them:
Application form for a contact order: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c100-eng.pdf
Court form CB1: Making an application – children and the family courts: http://www.familylaw.co.uk/system/uploads/attachments/0000/2078/CB1_1108.pdf
Form Ex50 for court fees and Ex160A for fee remission : http://www.justice.gov.uk/courts/fees
The applying parent will also need a form FM1 from the mediator to produce to the court.