Many people believe that cohabiting couples who break up have legal rights against each other: the so called “common law husband and wife”. In fact this is a myth as they have no rights based on the fact of their cohabitation.
In 2007 the Law Commission (an independent body which reviews the law of England and Wales and recommends reforms) recommended that the law be changed to give cohabitants some rights when the relationship ended albeit not the same rights as a divorcing couple have against each other. However, the government has not acted on that recommendation. The position is different in Scotland as there cohabitants have rights.
In Scotland the court looks to see if one party has obtained economic advantage from the contributions made by the other party and whether the first party has suffered economic disadvantage in the interests of the other party or any child. The court takes into account the extent to which any economic advantage derived by one cohabitant is offset by the economic disadvantage suffered by the other. Such imprecise wording allows flexibility for the courts using these powers but leads to uncertainty in predicting outcomes. The Law Commission favoured a more restrictive law for England and Wales.
The uncertainty over property when couples split up can be very expensive to resolve. Family mediation can be very helpful in these situations in enabling couples to resolve their differences far more quickly and cheaply than going through the courts.
The government believe that mediation is often a better way of resolving disputes about arrangements for children or finances following relationship breakdown. This does not just apply to the couple concerned but could include other family members such as grandparents.
In order to encourage anyone wanting to apply to the court for an order relating to children or a financial remedy, to first obtain information about family mediation and other alternatives to court, a form called Family Mediation Information and Assessment (MIAM) form-FM1 needs to be completed and given to the court . This form confirms that the person has attended a meeting with an accredited mediator or to provide reasons for not having done so.
On 1 December 2012 the Ministry of Justice published a new version of the Family Mediation Information and Assessment (MIAM) form-FM1.
On a divorce a court can look at all the assets owned by the parties to the marriage.
Amongst other types of order, a court can order one party to transfer an asset he or she owns to the other party. Sometimes what are owned are shares in a company and the company itself owns assets, for example, properties.
In the past, courts have been fairly robust at looking at the reality of the situation when making orders. For example, if the husband is the sole shareholder ( that is the sole owner of a company) and is used to treating the assets of the company as his own, family courts have felt able to make orders directly against the company property in favour of the other party.
In a recent case Moylan J decided that assets held by companies, where the husband was the sole owner, were effectively his property and ordered the husband to transfer to the wife certain properties held by the companies.
However, the decision was appealed and the appeal court decided that this approach by the family courts was wrong as it disregarded the very long established legal principle that a company was a separate legal personality from its shareholders so that the court did not have this power in a divorce so the earlier court decision was wrong.
The case is now being appealed to the Supreme Court so watch this space.
For some years the topic of shared parenting has been a popular theme for those involved with arrangements for children after the separation of their parents. Lone fathers groups have been very vocal and achieved a high profile in arguing for a presumption of shared parenting.
There has been discussion about what that means: some say a strict mathematical approach to equally dividing the children’s time with each parent (which generally doesn’t pay first regard for what is in the children’s best interests) others that it is about sharing all the important decisions about arrangements for children.
Last year a report commissioned by the Government, the Family Justice Review, concluded against a presumption of shared parenting (by which it meant substantially shared or equal time for both parents).
However, the Government clearly think more needs to be done to protect the interests of children following separation, as in the Queen’s Speech a few days ago, it was proposed that the Government consult on how to change the law “so more children have a relationship with both parents if families break up” where that is safe and in their best interests.
Justice Minister Jonathan Djanogly said that the Bill will make it law that before starting a court action concerning arrangements for children it will be a prior condition to consider family mediation as the government feel that family mediation can be cheaper , quicker and provide better outcomes for the children and parents.
I am interested to see how the government will achieve its aims as these same themes have been debated for many many years. So watch this space!
In April 2011 court rules were introduced in the family court to make it necessary for anyone wanting to start a court application regarding children or financial issues to first to attend a meeting with a family mediator to find out about mediation and other alternatives to court. These are called Mediation Information and Assessment Meetings or “MIAMS” for short.
Resolution, an organisation for divorce solicitors, has just published some results of a survey of its members. “Resolution is a group of over 6,500 family lawyers and professionals in England and Wales. It promotes a non-confrontational, constructive approach to resolving family disputes.”
The survey was carried out last month and received replies from users of over 100 courts in England and Wales. 114 of their members responded.
There was clearly a huge difference in the way courts were interpreting the new rules;
“· 56% of survey respondents said that court staff are not regarding it as compulsory that a party issuing an application should show evidence of having attended a MIAM.
· 78% of respondents said that their local courts are not making an enquiry at the first court hearing or even at all, as to whether alternative dispute resolution is appropriate.”
In a recent speech to Resolution members, the President of the Family Division, Sir Nicholas Wall, urged practitioners to press the court to make proper use of its powers to encourage parties to use alternatives to court, at every stage of a court process.
This article caught my attention as it gave one man’s experience of divorcing.
The author concluded by saying “
If you really think divorce is the only answer, don’t lie, cheat or ruin your spouse. This will destroy any trust between you and her during the divorce. Divorce proceedings that lack trust will ruin your life. It will cost tens of thousands of dollars (or hundreds of thousands); you’ll lawyer up and find yourself in court. Be honest, come clean, give and see it from their side and you might make it without sinking the ship.”
It can be very difficult at a very emotional time to sort matters out face to face. However, whilst divorce lawyers can be very useful it is easy to hand over control of your family’s future and in the process spend lots of money better used for family purposes. This is a good example of when it helps to use family mediation.
Welcome to my blog.
What I want to achieve is to give my readers information to help them in making the transition from being one part of a relationship to adjusting to life apart and to do it as successfully as can be done for yourself as well as for any children you might have.
So I will be giving links to articles and websites that I think might be of help. I will not be giving advice. I’m aiming to give solutions to readers problems and also to be of general interest to anyone involved in the area I’m writing about.
What is very helpful for someone separating is to learn what has helped or hindered other people. I’d therefore like to build an atmosphere of involvement and community so please use the Contact Me page to let me know your comments, suggestions and stories . I can then add them to my blog but I will not add postings making personal or offensive comments.
So please let me know what you would find helpful. Have a look around the website for more information about Evolve Mediation.