For richer, For poorer?

For many couples in the UK, the idea of discussing a pre-nuptial agreement before their marriage is unromantic and many consider that it is tantamount to saying that the marriage is bound to fail.

In the U.S. however there are no such qualms and in many European countries couples must choose under which property regime they intend to marry and are, therefore, used to considering future asset division at the point of marriage.

With people in the UK now marrying later, and therefore being more likely to have their own properties, investments etc., pre-nuptial agreements are becoming more common.

Pre-nuptial agreements are still not legally binding on UK courts but recent case law suggests that the Courts will take into account any pre-nuptial agreement when determining the division of assets on divorce.

If couples freely enter a pre-marital agreement with a full appreciation of its implications then the Court will look to uphold those agreements, unless it would be unfair to do so. There are no absolute rules or steps that must be taken but there are certain factors that will come into play, in the event that the agreement is ever contested, such as the provision of legal advice and whether there has been financial disclosure between the parties.

In addition, for those couples who have married abroad under different property regimes, entered pre-nuptial agreements abroad or who are likely to live in different jurisdictions during the course of their marriage, specialist advice will be required as regards the status or security of those agreements, should divorce proceedings take place in the UK.

Whether a party wishes to argue against being bound by the terms of a pre-nuptial agreement or wishes to suggest that an agreement should be upheld, expert advice will be needed.

Summer Holidays – will it be a breeze or cause a storm?

Well, the weather certainly looks like it’s here and soon enough the schools will break up and children will be off for the summer.

The great British tradition of summer holidays is a happy and carefree time for many (leaving aside the eternal issues of childcare and annual leave) but it can be a time of great upset, anger and hostility for separated parents with children.

For those who could not agree when they separated on the arrangements for the children, they are likely to have a Court Order that provides for the children to spend time with each of them and, whilst no 2 Orders are the same, frequently they provide for extended or additional time over school holiday periods.

If possible, the Court will try not to be too prescriptive in the wording of the orders, after all best laid plans etc. but this means that instead the arrangements as regards dates and times are left to the parents to sort out year on year.

I can say from experience of these kinds of cases that this sometimes doesn’t work well, one party being too rigid on dates and times, dates being provided too late by one with the result that the other has already booked flights etc. etc.

The key thing to remember, and often now I insert a provision in the Order for this, is to discuss holidays at the very outset of the year and, where possible, agree the specifics early on. I know no-body likes talking about October ½ term in January but the reality is that if parents can agree dates in advance (or even some structure that rolls from year to year or alternates from year to year) it allows them also to plan in advance - to book their annual leave, budget for holidays, book flights cheaper and so on.

It amazes me still that parents who have suffered the trauma of Court proceedings to deal with arrangements for their children and have secured an Order for their trouble put off discussing holiday arrangements with the other until the last minute.

Frequently, what this achieves is further dispute, hostility and if they’re really unlucky, a return to Court to resolve the matter. A bit of forward thinking could avoid all of that.

Quite apart from advance planning, compromise and some flexibility is also essential. The fact is that commonly now parents both work – they may each have commitments to employers and other draws on their time – with some communication, it can actually be easier for both parents to manage the holiday time. Of course, the further ahead of time discussions take place the more potential for flexibility – although that does have to start as a state of mind.

With summer rapidly approaching then, my thoughts turn to those parents who are separated, with or without Court Orders, newly separated or long since divorced and I hope that arrangements for the children to spend time with each of them over the holiday period have been made already.

If that isn’t the case then discussions need to start happening now.

Avoid the disputes and bad feeling – remember, for the most part children really just want to spend time with each of their parents and enjoy that time.

Breaking up is so hard to do......or accept

In this recently reported case the husband, Peter Savva, appealed the grant of the “Decree Nisi”, which had been granted – the Court having considered matters and judged that there was an entitlement to the Divorce on the grounds put forward by the wife, who had been the one to petition.

Mr Savva’s position was, whilst accepting that the marriage had temporarily broken down, that his wife had suffered some sort of mental breakdown or was confused or, in the alternative, that she was being unduly influenced by her solicitors, her mother and others and that the marriage had not permanently broken down.

Mr Savva even went as far as to say that his wife lacked the capacity to instruct her solicitors and asked the Court to order psychiatric testing.

Lady Justice Black rejected the arguments put forward by the husband and said that Mrs Savva stuck her as being “upright, honest and, not surprisingly, fed up with all that has been going on”. Lady Justice Black confirmed that in her view the husband was finding “all of this very difficult” and was struggling and “reaches out for any excuse other than the truth”.

The Court endorsed an earlier judgement in the case that the matter was “very sad” and I would certainly second that.

I would say that the lengths to which Mr Savva went are unusual – I expect that there are a significant number of people who are less than accepting that a divorce is the right course of action or even shocked that their spouse wants one but not everyone ends up in the Court of Appeal!

This case does, however, highlight, the difficulty that there can be when one party doesn’t necessarily want the Divorce to go ahead or considers that there hasn’t been an irretrievable breakdown of the marriage.

In England and Wales the only ground for divorce is that there has been an irretrievable breakdown of the marriage and this must then be based on one of several “facts”.

A divorce may be progressed without the other party’s consent or acceptance, for example, if the person petitioning considers the other’s behaviour to have been unreasonable, for which no proof or admittance of the behaviour is necessary. This is one of the most common facts upon which petitions are issued and means that a Divorce petition can be issued immediately upon separation – allowing the other party little time to get used to the idea or reach any level of acceptance.

Mr Savva has indicated his intention to seek judicial review of the process of divorce in England and Wales and considered that Mrs Savva should have been made to go through a“cooling off” period before commencing the divorce proceedings.

I do not agree that in all circumstances this is appropriate – for example when divorce proceedings are needed urgently because there is some pressing issue as regards the marital finances but there are several countries around the world whose procedures encompass some waiting time.

In Sweden, couples can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months.

In Malta, who only had legislation introducing divorce in October 2011, the parties must have been separated for 4 years from the last 5 and there must be sufficient arrangements as regards maintenance. The requirement of separation for 4 out of the preceding 5 years is the same in the Republic of Ireland.

In the U.S, where no-fault divorces are common, most states still require a 1-2 year period of separation before proceedings can be commenced.

The reality is, despite these different procedures, that if one party wishes to separate, there is nothing that the other party can do – an obliged period of separation before divorce at least provides time for the party being left to come to some level of acceptance but it does also prevent both sides from moving on.

Far better, in my view, for parties to speak with each other before one takes action – not necessarily to achieve any reconciliation (although if that is a possibility divorce should be furthest from anyone’s mind) – but to discuss their respective feelings and needs so that the process, as administrative as it may be, can be approached on a timescale (ideally) appropriate to both sides.

Leaving aside cases where there is domestic violence (when some thought needs to be given to the timing and arrangements for any such discussion) the first thing that a spouse knows about divorce should not be receiving the papers through the post, no matter how uncomfortable that discussion is going to be.

Shared Parenting – Necessary changes?

The Queen’s speech announced the plan for a new Children and Families Bill and, amongst other reforms, the government’s plan to change the law in such a way that it will ensure that, where it is safe and in the child’s best interests, both parents are able to have a relationship with their children after they separate.

The media has billed this as:

“father-friendly access arrangements following relationship breakups” – guardian

“Fathers look set to be given additional rights to see their children after family break-up or divorce” - Independent

Ken Sanderson, chief executive of the charity Families Need Fathers, said the plans would “send a clear message” that children need “the full involvement of two loving parents in their lives”.

I’m left asking myself whether (a) the fact that children require or at the very least do much better with the full involvement of two loving parents has ever been in question and (b) whether it has been suggested in recent times by the public, the legal community, the judiciary or the government that the idea that children should have an ongoing relationship with both parents on separation or divorce, where it is safe and in their best interests is flawed?

Certainly I am aware that the public perception of such matters is that mothers are somehow favoured over fathers and that not enough emphasis is placed on a child’s relationship with both parents. My experience, having dealt with such issues for some significant time is that case law in this area is very clear about the importance of children maintaining a good quality, close relationship with both parents on separation, where it safe for the child and in the child’s best interests, and for parents to play a full role.

Tim Loughton, the Children’s Minister, said “We need to clarify and restore public confidence that the courts properly recognise the joint nature of parenting,”. The public perception has not gone unnoticed by the government, whatever the reality – I will hold back my views that this proposed “change” to legislation – yet to be clarified – will be a popular one with the public, however unnecessary, and one that they will be hoping may help stem the red tide that we saw at recent local levels.

The legislation at present, and long-established, provides for the child’s welfare to be the court’s paramount consideration in determining such cases and sets out certain factors called the “welfare checklist” (non-exhaustive) that the Court must have regard to when making decisions. It appears agreed all round that the child’s welfare should remain paramount and I hope that whatever the detail of any proposed changes that this remains undiluted.

As well as the principle that a child’s welfare is paramount, current legislation deals with “Parental Responsibility”, defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property..” It allows for involvement in the child’s upbringing and in major long term issues for the child.

Father’s married to the child’s mother will have PR by virtue of their marriage and, since late 2003, unmarried father’s named on the child’s birth certificate will also have PR. Case law suggests that those fathers who do not have PR for whatever reason, will have it granted by Court Order on application.

Save for specific mention of the element of time that a child spends with both parents, you could be forgiven for thinking that PR provides exactly what the government is suggesting, full involvement in the child’s life after separation.

However, quite what the public’s knowledge is of PR and what rights and powers it confers is unclear. The Norgrove review did recommend that the government find means of strengthening the importance of a good understanding of parental responsibility in information it gives to parents.

Quite apart from the apparent lack of understanding about PR, the perception of some sort of unfairness or bias towards one parent over the other in cases concerning children has not been helped by the jargon/vocabulary that has developed. The concepts of “Residence” and “Contact”, whilst much better than the previous terms of “custody” and “access” still cause difficulty for parents, them seeing the parent with “Residence” as somehow in a superior position. The Court does not use Residence and Contact to distinguish one parent over the other in any way but as a way of identifying the arrangements for the child.

There is legislation in any event to enable the Court to deal with any concern – the Shared Residence Order. These orders don’t necessarily reflect an equal division of time but have been made where the Court has sought to reflect that the 2 different homes offered equal status and importance, where a sole residence order may have been misinterpreted by one of the parents as allowing more control or where it would be psychologically of benefit to the child or parents. In other words, to send a message to the parents that neither has the upper hand and that both are of equal importance to the child and their upbringing – the Court recognising the joint nature of parenting.

The Norgrove review of family law last year warned against introducing a legal presumption in favour of shared parenting, warning that it could pose an “unacceptable risk of damage to children”. The thinking behind this recommendation was that such a presumption may encourage parents to feel that children should spend equal time with each of them and this was borne out by the framework that has been in Australia since 2006 (that children should have a “meaningful relationship” with both parents) having led to increased litigation and the word “meaningful” being applied to the time a child spends with each parent.

It is with some concern that I note phrases such as “father friendly access” and “father’s additional rights” being used in the media so soon after the Queen’s speech – I can well foresee difficulties ahead if the media is insistent on speaking about parenting and arrangements for children in terms centred on parents’ “rights”.

The Court, in my view, already has as its starting point that a child should have a full and on-going relationship with both parents, where it is safe and in the child’s best interests. It has at its disposal a range of orders that may be made under the current legislation to give effect to that principle.

In my experience, those disputes around child arrangements that end up before the Court are hostile and frequently parents are entrenched in their views early on – often one fearing that they are going to be marginalised in their child’s life.

And yet, I would be concerned if there was to be any suggestion that the starting point for children should be equality of time with both parents – although I acknowledge that this is not even what the government are saying at this stage (despite what the media might suggest).

It is rare that dividing time on a week by week basis or 3 days and 4 days a week between parents is in a child’s best interests. I would be concerned about an increase in litigation and, more particularly, an increase in the bitterness of litigation if the public perception was that equality of time was the starting point.

I think this issue would be better dealt with by putting in more support services for separating parents and by educating parents on separation about PR and the Court's approach but I would hope that, if changes are made to the existing legislation, they are carefully thought through and worded to avoid misinterpretation and the possibility for increased argument over the time that children spend with each parent.

In addition, given the lack of real understanding about PR, despite this principle having been around for some time, I would hope that any changes are explained fully to the public so that there is no confusion or expectation by parents that goes beyond the changes made.

Ultimately, if this does not happen, I can foresee increased appeals and a continued perception (however incorrect) that the Court does not recognise shared parenting – exactly what the government is trying to eliminate.

The consultation on the proposed bill will commence shortly and no doubt interested parties from all angles will have their say. I hope that amid all the forthcoming negotiations and posturing that we don’t lose focus on those who will be affected most– the children.

The Marriage Foundation – on solid ground?

The recently launched Marriage Foundation, brainchild of Paul Coleridge, High Court Judge, aims to champion long-lasting, stable relationships within marriage and establish marriage as a “gold standard” to which people should aspire in terms of their personal relationships.

The foundation speaks of the benefit of marriage in terms of higher income and accumulation of wealth, improved health and happier relationships when compared to those relationships outside marriage. The foundation also notes the legal protection afforded to married couples in terms of their financial entitlements and the intentional act of commitment that marriage requires – as opposed to people “sliding into relationships that prove unstable”.

I must say, it is unusual for a member of the judiciary to so publicly raise such an issue and to seek to do something about it but is the foundation on solid ground?

The statistics are notable, a lowering in the rate of marriage, an increase in cohabitation, a higher proportion of cohabiting couples separating than that of married couples and 70% of young offenders coming from single parent families (no specific mention of whether that was as a result of a breakdown of marriage or cohabitation).

Cross-national studies show that “much can be done to improve child wellbeing through economic and other supports where the institution of marriage has seriously weakened and cohabitation has become common. But even in nations that have the most extensive welfare measures, such as the Scandinavian countries and France, a substantial gap in child wellbeing remains between those children who grow up in intact families, and those who do not… all the evidence we have shows that individuals fare best, both in childhood and in later life, when they benefit from the economic and emotional investments of their natural parents who reside together continuously and cooperate in raising them.” Popenoe, D. 2009. Social Science and Public Policy. Vol 46, Number 5, pp. 429-436. – that is not to say married or unmarried but both natural parents.

It is estimated that the cost to society in this country from family breakdown amounts to £44bn per year.

And yet, I am concerned by some of the statistics and whether in fact it is not simply marriage that must be aspired to but a stable and committed relationship (be that within marriage or not).

Certainly it is the case that married couples account for the majority of births, some 54% (cohabitants contributing 40%) and a larger proportion of cohabiting couples separate than married couples, 59% as against 20% but is it just too simplistic to suggest that advocating marriage as the “gold standard” will help solve the problem?

There are certainly some benefits to marriage, from the point of view of legal status and rights that flow as a result of marriage, that are not present with cohabiting couples, whether they understand it or not.

One of the aims of the foundation is to educate people about these issues, presumably with a view to encouraging marriage as a concept, but surely people who enter a marriage do so for reasons other than the legal status and financial protection that it provides. I doubt that if a bride or groom were asked why they were marrying that this would spring to mind! How successful then will such education be in encouraging people towards marriage, bearing in mind the other considerations that will also necessarily come into play (cost, personal experience etc.).

The same could be said of the argument that married couples have happier relationships and are healthier – whatever the research says, how likely is it that someone will marry their partner (who they are happy with) simply because they believe that they will be happier or healthier?

Even if there is some success and more people do marry, the Divorce rate rose by nearly 5% in 2010 on the rate for 2009 (the latest available data) – marriage might well be more stable than cohabitation at this stage but being married clearly is no guarantee of stability or of children being raised by both parents.

Far more important, in my view, is people’s attitude towards relationships, the commitment that they have to their partner and their willingness and ability to “weather the storms” that they will suffer married or not.

Willingness to work through problems or weather the inevitable storms cannot, I suspect, be influenced from the outside, save perhaps if there was some penalty or consequence, be that some stigma, financial consequence or otherwise.

It used to be the case in our society that Divorce was seen as something to be frowned upon and the respective parties, as a result, had to go to great lengths to prove that they were the innocent party – society’s perception of you was very important. Those days have passed and whilst Divorce is no means encouraged (nor should it be) the stigma associated with it has gone. I, for one, hope that it never returns.

There remains a financial consequence to separation, of course, perhaps even more severe in these harder economic times and yet the divorce rate rises – the assumption must be that people don’t consider the financial implications of Divorce a sufficient penalty or bar.

The process of Divorce itself is, as Sir Nicholas Wall put it recently, “an administrative process masquerading as a judicial one” – he advocates a case for “no-fault divorces”, a more streamlined process where no blame or fault need be mentioned. The government has no plans to reform the current process at the moment but it appears clear that if there is to be reform, the idea is that the process will become simpler – no incentive there then to get through those storms.

The ability to weather storms and work through difficult and stressful situations is an entirely different matter. There may be methods of improving people’s skills in this area.

I am not aware of any service offered to couples getting married to provide them with the skills they will require or to encourage them to contemplate how they would approach things. The same can be said for couples starting cohabitation or indeed in our society as a whole – these personal skills don’t really feature in any curriculum.

Of course, those couples marrying in church receive some religious guidance from their priest but how much of that involves the teaching of skills and real coping strategies? Those entering civil ceremonies receive no guidance.

Often the first input that couples have, married or otherwise, with such issues arrives when there are already problems and when they themselves ask for help. That is not to say that those relationships cannot be saved and I know of many who have but I suspect that those who ask for or accept help for relationship difficulty are in the minority – most struggling to resolve matters on their own, without the necessary skills and often with children in tow.

Would it not be better to focus on providing the skills and understanding that people will need to make their relationships successful – whether they choose to marry or not? I consider that this would go a long way towards more stable relationships developing.

In terms of the children, it cannot be disputed that those children who grow up with the love and support (financial and emotional) of both parents living together do better generally and the statistics regarding youth crime speak for themselves, with the overwhelming majority of young offenders coming from broken families.

What is less clear is whether it makes any difference, from the point of view of the child, whether their parents are married or not. What surely would make a difference is their sense of security, which they would understand from their day to day experiences of the parental relationship.

Whist I applaude Mr Coleridge and his supporters for raising the issue of family breakdown and support marriage wholeheartedly I remain unconvinced that we can shoehorn society into marriage and suggest that this will mean more stable relationships.

People are unique, their life experiences varied and their resources and needs differing.

Surely education from the start about respect for others, tolerance, persistence and understanding would have more of an impact?

New Age law

The legal market has long been behind other, more commercial, markets in evolving and developing to meet clients’ (dare I say customers’) needs and to a point we have been restricted until relatively recently in terms of advertising etc.

More restrictive, however, has been our habit of clinging to “the way that we have always done it” – I speak of the mystique of hourly rates, rafts of paperwork and a reliance on being the “family solicitor”.

For a time, the people working in the law have dictated the way the market works but that is changing – both as a result of consumer demands and frustrations and as a result of legislative changes - bringing into the mix ABS (Alternative Business Structures/Co-op Law etc.) and removing the public’s recourse to Legal Aid.

It is not the quality of advice or service that has been provided previously that is the issue - and I am proud to be part of a profession who on the whole provide very high quality in that regard - but it is the way in which the advice/service is delivered and the “givens” that legal professionals have been able to rely upon previously that are changing.

In this “New age” legal market how are we to respond?

This is now the question that many law firms are facing – how do they deliver their high quality service and advice in a way that matches consumer expectations and demands and how do they manage that and the sometimes competing demands of the business itself.

Some Challenges…

Lawyers understand the hourly rate and are comfortable with it as a concept but in a world of uncertainty, and especially in situations where solicitors are required, customers want certainty – they want to know at the outset how much it will all cost.

That is sometimes very difficult to achieve without over estimating (with the result of the customer either not taking action or feeling even worse about their situation) or under estimating (leaving the business at risk of losing revenue).

In the “instant response” world that we now live in, security of client information is an increasing issue and lawyers must balance that with the variety of ways that consumers now expect to be able to communicate with their solicitor (e-mail, text, smartphones, Skype etc.) People may also now expect instant advice but that must be balanced with the need for the Solicitor to allow proper time to consider the issues in hand – negligent, inaccurate or incomplete advice is not what anybody wants.

The current economic climate doesn’t help matters – just as a double dip recession is announced consumers will be reluctant to take time out of their working day to take advice – preferring instead to see solicitors out of hours or on their own time.  Employer firms will have to consider lone working policies, flexible working hours and remote working amongst other issues.

Consumers will also be more mindful of their spending – perhaps delaying taking action that would incur costs or seeking out a cut price service. This might be a false economy and the concern must be that more costly action might be required to rectify problems down the line as a result – coming full circle to the above challenges!

But Wait….

Whilst this change in the legal market will undoubtedly be challenging it must surely also been seen as quite an exciting opportunity.

Lawyers are taught to think creatively by nature – it’s all in the application and interpretation – so I see this next phase in legal services as an opportunity to do just that – be creative about how services are delivered.

In fact, it has been quite liberating to have to think outside the box in that area and developing new ways of working and new fee structures has been high on my list of recent activity.

Yes, there will be serious questions to be answered and, yes, it will be uncomfortable for some but the profession has long been criticised for being closed, opaque and difficult to deal with – we’ve all heard the stereotypes about costs, lawyers making matters more difficult and generally being unapproachable – now’s our chance to change that image (inaccurate as it may be).

I’m sure also that I’m not alone in saying that one of the reasons that I decided to embark on a career in the law was to help people through some really difficult problems, achieve fairness or protect them from ever having to encounter those preventable difficulties. It is easy to forget that in day to day practice but here – especially in my practised area, Family Law – is an opportunity to really help people - not in the provision of the advice itself, which I have been doing for some years now, but in the delivery of it.