Hello

JulietWelcome to my blog.

I am a family solicitor with many years experience and I run the family department at  Shanahans in Cardiff.

http://www.shanahans-law.co.uk

I want to make my blog interesting for you as well as informative.  Feedback (constructive, please!) is, therefore, good.

Every month I plan to let you know recent developments that have occurred in family law, and there are a lot at the moment.

If you think any of my blogs affect you, you are welcome to email me and I will do my best to answer your specific questions.

juliet@shanahans-law.co.uk

Happy reading!

When Do I Need to Instruct a Solicitor?

When facing a family problem it is natural to want to talk to a friend or relative but often you will need expert legal advice as well as a friendly ear.

Many people want initial advice about their options.  It may be some time later before you are ready to take action.

You may feel confident about taking the first steps on your own but many people feel that even if they are prepared to start, for example, divorce proceedings themselves  they want assistance in sorting out their children’s arrangements or their financial division but are often concerned about approaching a solicitor because of worries about the potential costs.  If you do wish legal assistance but think you cannot afford it, or would prefer not to pay for comprehensive representation from a solicitor, there are a various ways forward available.

Family Mediation – this is where you both attend with a family mediator to attempt to resolve your children’s arrangements or financial division by agreement.  If you do not like the thought of being in the same room with your ex you could ask the mediator if it is possible to have shuttle mediation. This means you would stay in separate rooms and the mediator would shuttle back and forth between the two of you to discuss your respective positions with a view to achieving a resolution.  If mediation is successful and you enter into a mediation agreement, you can subsequently seek advice from a solicitor only on the aspects of that agreement and preparing a Court order to reflect that agreement.

Roundtable Meeting – if you do not like the idea of negotiating with your ex at mediation without your solicitor present to advise you could, alternatively, ask your solicitor to set up a roundtable meeting where you and your solicitor and your ex and their solicitor meet to discuss the issues whether in relation to your children’s arrangements or  your financial division or both.  At the end of this meeting if an agreement is reached, similar to the procedure with a mediation agreement,  your solicitor can prepare a Court order to reflect that agreement.

Collaborative law- again,  if you do not like the idea of negotiating with your ex without your solicitor present to advise you could instruct a collaborative lawyer who will arrange a meeting with your ex and his collaborative lawyer (and possibly other experts) to achieve a resolution by agreement.  It would be necessary in this case for you both to instruct collaborative lawyers.

Unbundled services – you can represent yourself but if there is a piece of work you do not feel confident about such as preparing a statement for Court or attending a Court hearing you can instruct a solicitor just to do that piece of work.

Full representation – in this case a solicitor would represent you throughout your case and negotiate with your ex or their solicitor for you and, if necessary, commence Court proceedings and represent you at Court.  Sometimes this is the only way you achieve the best result.

In summary there is no “right” time to instruct a solicitor but most solicitor offer free initial appointments and so if you believe you would benefit from advice why not arrange an intial appointment to discuss your options before making a decision.

 

 

 

 

Clean Break Anyone?

Many clients come to see me and immediately tell me that they want a “straightforward divorce” and they will deal with the finances with their ex at a later stage.

While I appreciate I have a vested interest in saying that a final financial order is very important, it is also true.  If you do not settle your finances and obtain a final order at the time of the divorce you are leaving the door open for a financial claim at any point in the future.

I would urge you to check out the case of  Wyatt v Vince [2015] UKSC 14. In that case the Supreme Court decided that Mrs Wyatt was allowed to proceed with a financial claim many years after the decree absolute was granted finalizing the divorce. The financial claim was settled earlier this year when it was agreed Mrs Wyatt would receive a lump sum of £300,00. Wyatt v Vince [2016] EWHC 1368 (Fam)

The background is that at the time of the divorce a financial order was not made and the parties had no assets.  However, many years later Mr Vince became a very successful multi-millionaire businessman.  Mrs Wyatt issued a financial claim and Mr Vince asked the High Court for the claim to be dismissed given the length of time and in effect arguing she did not have a case. The High Court Judge directed the financial claim was allowed to proceed and so Mr Vince appealed.  At the Court of Appeal his appeal was allowed and the claim was dismissed so Mrs Wyatt appealed to the Supreme Court who allowed the appeal enabling the financial claim to continue.  As stated above, the claim has finally been settled but after many years and significant legal costs to cover the appeals and cross-appeals.

When divorcing settling your financial commitment to each other is a priority even if your finances are not in joint names and even if you do not have any assets at all and you simply wish a clean break.  If you do not obtain a financial Court order at the time you may find yourself looking over your shoulder in the months and years that follow.

How To Tell The Children You are Breaking Up.

Below are suggestions on how to tell the children.  No doubt you will think well it’s easy to sit and write out those suggestions, not so easy to put them into practice when you are feeling devastated.  I totally agree but give it a try.

1.Don’t tell the children until you are absolutely certain you are breaking up and there’s no going back.  Imagine how confusing and upsetting it is for the children to tell them you are breaking up and a week later you decide to give it another go.

2.It is not necessary or wise to share adult information about the reason for the break-up with the children.  Reassure them that whatever happens you love them and will always be there for them.  Otherwise, stick to practical issues such as how it will affect them, will they be moving or will they stay where they are and see the parent moving out, how often will they see that parent and when?  Tell them the information in a straightforward manner and make sure they are comfortable to ask questions.

3. There’s no need to tell the children you think the other parent is at fault for the break up or the faults of the other parent.  No doubt both of you think the other has faults but the children don’t have to know that.  Keep your thoughts to yourself!

4 If you are on reasonable terms, telling the children together is a good idea because you will be presenting a united front to the children and they will understand that just because you are separating you are still providing boundaries for them and are of the same view about their upbringing.  It is inevitable that you will have different points of view about day to day parenting as time goes on but, ideally, this should be discussed between the two of you and a decision put to the children rather than involving them in conflict.

5. Make sure the children know the break-up isn’t their fault and was in no way caused by them.

6. The key is the children are probably going to feed off your feelings and the atmosphere in the house so if you are anxious and upset, they are likely to be too.  Difficult though it may be, try to stay calm.

Best of luck.

 

Are You Getting Your Fair Share?

In the recent cases of Sharland v Sharland (2015) and Gohil v Gohil (2015) the Supreme Court set aside the consent orders that had been made for financial settlement on the basis that there had been non-disclosure of their financial assets by the husbands.

When assessing a fair financial settlement upon divorce it is important that both the husband and the wife exchange correct financial information with each other.  The purpose is to ensure when deciding on your share of the pot you are making an informed decision.   When there are Court proceedings the Court will order you to provide your financial information.  This is known as disclosure because you are disclosing your financial information to the Court and your ex.  Even when you see a solicitor or attend mediation rather than going to Court you will be advised to obtain your financial information to disclose voluntarily.  This duty of disclosure continues right up until a financial settlement has been achieved either at a final Court hearing or by a consent order made between the parties.

Once you have seen the other person’s financial information, you can make an informed decision about the financial settlement you wish to achieve, and you may obtain advice from a solicitor or attend mediation to assist you in reaching that financial settlement.  You may decide that you wish to accept a financial settlement that is less than you believe you are strictly entitled to because in family situations there are usually many factors you will take into account such as a joint ongoing relationship for in the benefit of your children, or if you do not have children, there may be other reasons aside from the finances which are important to you.  Before making any of these decisions, however, financial disclosure is essential to enable you to reach the right decision.  If you are only being told half the story, or feel as if you are being told half the story, the outcome is unlikely to be satisfactory.  Also, the Court has the power to draw adverse inferences about the other party’s financial disclosure if there is a doubt that the whole story is being told.

The message sent by the Court in the cases of Sharland and Gohil was that overturning consent orders in divorce proceedings was likely even if  both parties had given their agreement as the Court would not uphold an order if it was based on deceit.

For more information on the cases please go to Sharland v Sharland (2015) UKSC 60 and Gohil v Gohil (2015) UKSC 61

 

 

 

 

 

 

 

 

Would You Consider Family Mediation?

Family mediation is an alternative way to resolve family disputes without going to Court.

Generally, it is now compulsory to attend family mediation before issuing Court proceedings in family matters.  You attend the first session known as a mediation, information and assessment meeting (MIAM) on your own so you can find out from the mediator more about mediation, and discuss with the mediator whether you believe attending with your ex would be suitable.  There are certain exemptions such as domestic abuse where you are not required to attend but you will need to produce documentary evidence to support the exemption.

At family mediation you can mediate on all matters relating to relationship breakdown whether you are married or living together.  Going to mediation is not the same as going to marriage or relationship counselling.  The purpose of mediation is to discuss arrangements for your children, your property, your finances and any other matters which concern you regarding your split.

Usually, attending mediation means you will be in the same room,  with a mediator present,  as your ex to resolve matters.  If you would prefer not to be in the same room, you can ask the mediator if you can be in a separate room from your ex.  This is known as “shuttle mediation”, and the mediator would move between rooms to speak to both of you.

Sometimes you will be prepared to try mediation but your ex won’t attend.  Unfortunately, you cannot force your ex to attend.  If, however, you need to issue a Court application, the Court is able to direct that you and your ex are referred to mediation before the Court proceedings continue.

Many people do not realise that legal aid is available for mediation if you are financially eligible.  This is the case even though legal aid may not be available to see a solicitor on the same matter.  Also, if you reach an agreement with your ex at mediation there is legal aid available to solicitors to advise on that agreement provided, again, you are financially eligible.

For more information go to www.nfmorg.uk/local or thefma.co.uk

Living together

Many people believe that if you live with your partner for a number of years you acquire the same rights as a married couple, that you have a “common law marriage”. This is not true.  The law for married couples and unmarried couples is different.

The family home may be owned in joint names and so you will both have a legal interest.   If it is not in joint names the person who lives in the home but who does not own it may be vulnerable.  The law governing divorce does not apply.  Your interest must be proved using the general law of property and contract.   What if you want to leave and can’t afford to rent until the home is sold or your partner buys out your interest?  There is no entitlement to maintenance even if your partner earns a lot more than you.  What about savings?  Perhaps your partner has substantial savings which have built up over the years you have lived together.  If the savings are not in joint names there is no entitlement.

Having children together may make a difference.  The Children Act 1989 schedule 1 provides for you to apply for settlement or transfer of property or a lump sum.

All parents have a duty to financially maintain their child and so an absent parent has a maintenance obligation and, if this is not resolved by agreement, an application can be made to the Child Maintenance Service.   The Court can only deal with child maintenance in certain circumstances such as the Child Maintenance Service having already assessed a basic level of maintenance and the Court ordering an additional amount if it is decided the parent can afford it, or the child living outside the UK.

Finally, an unmarried father who has a child born before 1st December 2003, or born after that date but his name is not registered on the birth certificate, will not have parental responsibility for his child.  Only the unmarried mother has a duty to register the birth of the child although the parents can choose to do so together.

Due to the potential complexities of breaking up when you have been living together, I would recommend that you take, at least, initial advice from a solicitor.

Going to Court On Your Own

Since legal aid was cut in most family cases in April 2013 there has been a steady rise in people going to Court without a lawyer.  Here are some do’s and don’ts for you when you head off to Court on your own.

DO be polite.  It seems obvious but when dealing with a stressful situation in a Court environment where you may not have been before, it is very easy to become stressed and emotional, and this can lead us to saying or doing things we had not planned.

DO speak to the other person’s lawyer if they approach you for a chat before going into Court as you may be able to agree some, or, even all, of the reasons why you are in Court.  If you can’t agree, at least, you should know the differences.

DO prepare what you want to say for the Court hearing, and any information that the Court requires for the hearing e.g.  the Court may have directed that you should prepare a statement setting out your situation, or what you are asking the Court to do.  It is important  that any requested or relevant information is ready for the Court in order to make progress.

DO ask for permission to take a McKenzie Friend into Court with you if this would make you feel more confident.  You should be prepared that there might be an objection to you using a McKenzie Friend.  A McKenzie Friend is a lay person who can accompany you into Court and offer you assistance by taking notes or quietly reminding you of a point that is important to you.  A McKenzie Friend is not allowed to speak in Court on your behalf unless the Court gives permission.  A McKenzie Friend may be a friend of yours but some McKenzie Friends charge a fee.

DO ask if there is a Personal Support Unit (PSU).  In some Family Courts there is a PSU based in the building.  The PSU is staffed by volunteers.  If you have no-one to accompany you to Court, a member of the PSU might be able to help.  Before the Court hearing date, why don’t you telephone the Court to find out if there is a PSU, and whether a member is available on the date of the hearing?

DON’T stay silent if you’re not sure of something e.g. a direction the Judge has made.  If you are not sure ask the Judge to explain what is expected of you.

These are just a few tips for going to Court on your own.  For more information follow the links below:

www.advicenow.org.uk

www.gov.uk/represent-yourself-in-court.gov.uk

www.thepsu.org/contact-us