Hide and Seek

There was recently reported in the press a case of a man who won £50,000 playing Deal or no Deal on TV.

The winner spent the money in the space of 4 months, before the television show aired, as he was in the middle of a Divorce and wanted to make sure that his estranged wife “wouldn’t get a penny”.

The estranged wife apparently only found out about the winnings once the show aired but Mr Brown, the winner, had by then purchased a number of household items, a second hand X-type Jaguar car, a holiday in Mexico, an ipad etc.

Once discovered, the wife applied to court and an injunction was imposed to prevent Mr Brown spending any more of his winnings, if any remained.

Mr Brown will no doubt have to detail exactly what he spent the money on and there will, no doubt, now be argument about his financial conduct – although he did apparently use some of the money to pay off debts and paid for an electrician’s course, having been signed off work for “depression”.

Although Mr Brown’s conduct may be taken into account and the items purchased with the money potentially be divided between the parties, the reality is that a large part of the winnings have gone and the items reportedly purchased are unlikely to hold their value and are almost certainly far less useful to Mrs Brown than the capital that would have been available.

It highlights the importance of maintaining an eye on your spouse’s lifestyle and spending after separation and within the course of a Divorce. I am not talking about making a note of each time they do a food shop or the purchase a new toy for the children but if there is unusual and excessive spending (cars, holidays, expensive items etc.) then questions must be asked about how that is all being funded.

It also goes to show the lengths to which people will go in cases of Divorce to “deprive” the other from any share of what they perceive to be theirs.

This all against a backdrop of each spouse having a duty to provide full and frank disclosure of their financial position – that duty being an on-going one within proceedings and designed to help the parties (and the Court) ascertain what is available for distribution and what would be fair.

I imagine that Mr Brown will have achieved an increase in both his and his wife’s legal costs in determining their matter and an awful lot of ill-feeling between them – a sad state of affairs when you consider that the parties have 2 young children and will have to co-parent for some time to come.

When is a marriage not a marriage?

An odd question on the face of it but one of increasing importance in a world where more and more people live “international” lives, crossing jurisdictions for business and pleasure and residing in different countries.

A recent case in the English Courts brought this issue once again into focus. This featured parties who were both Moroccan by descent, the wife born in England and always residing here, the husband born in Morocco and moving to England when he was 7 with dual citizenship.

The parties went through a Moroccan civil ceremony in the Moroccan Consulate in London. There were witnesses and a formal marriage certificate, two wedding parties and a honeymoon. The ceremony was conducted by a notary and the relationship lasted some 7 years, the parties having a son and separating in 2009 – although staying under the same roof.

The wife sought to issue Divorce proceedings in England but the husband, just over a month earlier and without the wife’s knowledge, had petitioned for Divorce in Morocco.

A Divorce was then finalised in Morocco with minimal financial provision for the wife. The wife’s application before the Court in England, therefore, was for financial provision following the foreign divorce.

For the purposes of marriage, the Consulate constituted English soil and the “marriage” therefore took place in England and was governed by English law. It was perfectly open to the husband to petition for Divorce in Morocco and there is legislation that permits parties to issue applications for financial relief in England following overseas divorce. In order to do so, however, there must have been a “marriage” capable of recognition in England and this became the issue for the Court.

The husband argued that her application must fail because a) there was no marriage recognised in England and b) the Moroccan divorce should not be recognised in England (I’m not dealing with (b) in this piece)

The Judge considered the ceremony, which was wholly non-compliant with the Marriage Act, and the length of the parties’ cohabitation. He found that the ceremony did not give rise to a valid marriage and that the fact that the parties had cohabited together for some 7 years was not enough to give rise to a presumption of a valid marriage and he declared it a “non-marriage”.

But…could this nevertheless amount to a “marriage” for the purposes of applying for financial relief (the wife’s application)? The Court held that despite both parties intending the marriage to have legal consequences there needed to be a valid marriage, or at the least a void marriage (i.e. one that is capable of founding a decree of nullity) for such an application to be made.

And so, the wife could make no financial claim against her ex-husband in England and she was stuck with the “very modest” financial provision awarded to her by the Moroccan Courts, the English courts would not interfere with the flat held in the husband’s sole name (net value of £300,000).

The lessons are there to be learnt….marriage ceremonies should comply with the provisions of the marriage act – pay careful attention to the venue and the provisions as regards who undertakes the ceremony – if no valid/void marriage is created then parties may be left in difficulty on separation, particularly when it comes to dealing with financial affairs.

Parenting on Separation – endless decisions

There was a case reported in the press recently about a 10 year old girl who wanted to be baptised. The child was living equally between her separated parents, her mother remained of Jewish faith and her father had converted to Christianity after the breakdown of his marriage to the child’s mother, having been of Jewish faith before that.

The child’s mother had issued an application to prevent the child’s baptism going ahead and considered that the child should be made to wait until she was 16 years old before making such a decision – the child’s father considered that the child knew her own mind and that she should be allowed to be baptised now, as was her wish.

Ultimately, whilst there was no jurisdiction for the Court to order that the baptism take place, it refused to prevent the baptism happening and the judge felt that the child’s best interests would be served by starting her baptism classes as soon as possible.

It struck me when looking through the judgement of this, admittedly, unusual case that despite any separation, there are an almost incalculable number of decisions that parents will need to make for children as they grow up. The vast majority of these will need to be made jointly, both because joint decisions ultimately must be better for children but also because Parental Responsibility necessitates consultation when significant decisions are made for a child, such as schooling, religious upbringing, medical care etc.

Disputes concerning a child’s religious upbringing are probably less common than say disputes over schooling but such disputes are not uncommon – even the Cruise v Holmes divorce settlement included clauses to limit the child’s involvement in the father’s following of Scientology as his “religion”.

Also sometimes before the Court are disputes over whether a child should be given certain medical treatment, for example where one parent is a Jehovah’s Witness and will not consent to the giving of blood.

It is fairly common for parents to have differing opinions on various topics but the difficulty with separated parents is how those differences are communicated, acknowledged, discussed and dealt with.

Surely better that potential areas of dispute are considered early on by both parents – at least then they can identify where they differ in their opinions and where perhaps they will need some assistance  in the future – court based or otherwise –if those areas become an issue.

The Court devised, some time ago, a way of encouraging separating parents to think about their views and opinions in terms of the child’s upbringing early on – Parenting Plans.

These “plans” take the form of a booklet and include a whole range of different areas relating to the child’s upbringing – some that parents may not even have given thought to or be aware that the other holds particularly strong views on.

The idea was that these plans were given to separating parents at an early stage, either by a Solicitor or perhaps a Mediator to encourage some forethought and discussion – ideally with the outcome that neither parent would need to resort to Court applications.

I am not sure how successful these plans have been or how routinely they are used across the country but I would say that the earlier potential sources of dispute are identified, the more opportunity there is for parents to enter into discussions together to try and resolve matters.

Ok, it won’t be suitable for every family and life is ever-changing – What if the child expresses a strong wish for something contrary to what the parents had agreed together? What if there is a change of circumstances and as a result one or other parent changes their mind about something?

There is, as ever in cases concerning children, no one size fits all solution but early identification and discussion must surely be a positive all round.