Monday 22 December 2014

Coercive and controlling behaviour becomes an offence

In last week's blog you'll remember that I mentioned that 'coercive behaviour' was not provided for in the changes to Legal Aid in April 2013.

Now this week a new domestic abuse offence for "coercive and controlling behaviour" within relationships has been announced by the home secretary.

Home Secretary Theresa May said domestic abuse by intimate partners or family members was a "hideous" crime that shattered lives and that she hoped the new law would protect victims from extreme psychological and emotional abuse.

The maximum penalty for the new offence in England and Wales will be five years in prison and a fine.

Coercive and controlling behaviour can include the abuser preventing their victim from having friendships or hobbies, refusing them access to money and determining many aspects of their everyday life, such as when they are allowed to eat, sleep and go to the toilet.  Evidence of such behaviour could be threatening emails and text messages, or bank statements that show the perpetrator sought to control the victim financially.

At the weekend I heard a phone-in where a woman said her husband didn't like Christmas and would not let her have a Christmas tree.  It's the word 'let' that is most telling here, and it does indicate a degree of control which should perhaps be worrying.

If you're concerned about yourself or a friend of yours, remember you can speak to myself or Sally Fitzherbert in our Family Law department.


Monday 15 December 2014

Challenge to legal aid changes relating to domestic violence

The charity Rights Of Women is mounting a challenge over the legality of changes made to legal aid in April 2013 which set out evidence requirements for domestic violence cases.

When new rules to legal aid were introduced in April 2013 under the Legal Aid, Sentencing and Punishment of Offenders Act, the government was keen to stress that cases involving domestic violence would continue to benefit from legal aid funding.  However, a report published last week by Rights of Women, Women’s Aid Federation England and Welsh Women’s Aid shows that nearly 40% of women affected by violence do not qualify for funding as they do not have the required evidence to support an application for legal aid, leaving them to fund legal representation themselves, represent themselves in court against their assailant, or simply do nothing.

Under the new rules, although it was possible for emotional or psychological abuse to give rise to the required evidence, in reality it has been very hard to prove. Financial abuse and controlling or coercive behaviour were not provided for at all.

The survey further showed that 60% of women took no action as a direct result of not being eligible for legal aid.

We recognise that a lot of women may not want to approach their GP, who may be known to their family, with a report of domestic violence.  They may feel embarrassed to report any incidents to someone who knows them or their family.

In cases of domestic violence we would suggest speaking to a lawyer first to find out exactly what evidence is required and what your options are.  In the first instance, you can give us a ring for a brief chat, in confidence, about your circumstances - you can speak to myself or Sally Fitzherbert in our Family Law department.


Monday 8 December 2014

What happens to your Will if you divorce?

Your Will remains valid until your divorce is finalised.  At that point your former spouse will no longer inherit even if he or she is still named as a beneficiary.  Your ex-spouse may also be named as an executor which might not be appropriate any longer.

If you don’t have a Will you are deemed as being ‘intestate’.  After a divorce the main beneficiaries would be your children, but if you don’t have any children your assets will pass to your parents if they are still living.  If they have already died, your assets will go to your siblings, then more remote relatives.

It is a very good idea for divorcing parties to update their Wills because:
  1. If you do have children you can nominate who you would want to look after them, although your former spouse will have rights before anyone you nominate.
  2. You decide where your assets go - you may not want them to go to (say) your siblings.
  3. You can make use of allowances to reduce the liability to Inheritance Tax*
  4. You can decide to leave money to a charity.
  5. Any new partner that you have but aren’t married to will get nothing unless you’ve made a Will saying what you want them to have.
  6. If you have no surviving relatives, your estate could pass to the Government.
*One of my colleagues still swears that the only reason her husband eventually married her was to avoid Inheritance Tax if she passed away first - they worked out he’d be handing around £40,000 to the Government if they weren’t married.  It’s not romantic, but it is sensible!

Anybody who has any assets should make a Will, so if this is something you think we could help with, please have a chat with our friendly Wills team, just give us a ring on 029 2039 5888 or visit our website.

Wednesday 3 December 2014

One in four face financial trouble following relationship split

Breaking up is hard to do and now there’s proof that it’s financially tough too.

According to a survey of separated British adults, published last week by Resolution,

28% say they turned to loans, overdrafts or credit cards after a breakup
16% admit to receiving or asking for help from friends or family
26% had to move in with friends or family after a split.

The research also reveals that people with children fare even worse.

The average british household income is £32,000 meaning that there isn't a lot to go around. This, combined with court costs, the huge financial burden of establishing a separate household as a single person and child care and maintenance costs, put many divorcing people at high risk of debt.

Some sensible advice for separating couples is:-

  • Don’t bury your head in the sand - keep an eye on the finances.
  • Talk to your bank - they can’t help if they don’t know what’s happening.
  • Talk to your mortgage lender - if one party is buying the other out, the mortgage company needs to know as they may not think one salary can afford the mortgage.  Chat to a mortgage broker as some lenders are more flexible than others.
  • Any debts held jointly are your joint responsibility and you are both responsible for paying them off.

Monday 24 November 2014

Definition of 'domestic violence' to be extended to include mind games

A new law on domestic violence, making it illegal for someone to exercise ‘coercive control’ over their partner, will be unveiled by the Government this week.

Home Secretary Theresa May is expected to announce new powers allowing the police to prosecute those who are guilty of psychological and emotional abuse.

It means for the first time men who control their partners through threats or by restricting their personal or financial freedom, could face prison in the same way as those who are violent towards them.

Campaigners have long called for a change in the law to put psychological exploitation on a par with physical violence, in the hope it will encourage more victims to come forward and report abuse in the home.

While the government’s definition of domestic violence recognises the impact of coercive control and threatening behaviour, this has not previously been reflected in law.

Police investigating reports of domestic abuse are often left frustrated as abusers are not prosecuted due to a lack of clear evidence or gaps in the legislation.

In cases where perpetrators are brought before the courts, they are often only charged with isolated crimes, with years of psychological and emotional abuse not taken into account.

The new law will be introduced as a series of amendments to the Serious Crime Bill, currently going through the House of Lords, and is expected to be on the statute books in the New Year.

Under the terms of the Bill a person convicted of coercive control could face up to 14-years in prison and there will be no statutory time limit for the offences, meaning abuse dating back years can be taken into account.

When similar laws were introduced in the United States it led to a 50 per cent rise in the number of women coming forward to report domestic abuse.

To read the whole of this article, which first appeared in The Telegraph, please click here

If you, or someone you know, has been the subject of coercive control, come and speak to us.  Sally Fitzherbert has experience with Womens Aid and domestic violence.

Monday 17 November 2014

First man jailed for 'revenge porn' post

Last month the Government announced that the posting of 'revenge porn' on social media would become a criminal offence under the Criminal Justice and Courts Bill, currently going through Parliament.

On Friday it emerged that 21 year old Liam King has been jailed for 12 weeks after posting intimate pictures, sent to him by his ex-girlfriend during their 3 year relationship, on social media sites.  He had also added offensive comments.

The pictures were originally taken by the woman, who sent them to King 'for his eyes only' when the relationship was going well.  Once the relationship broke down, the woman told police what she thought he might do but he ignored two police warnings not to share the X-rated images.

District Judge Andrew Davison said the King's actions were 'pernicious' and designed to cause 'maximum humiliation'.

Justice Secretary Chris Grayling has previously been quoted as saying 'We want those who fall victim to this type of disgusting behaviour to know that we are on their side and will do everything we can to bring offenders to justice.'

The charge faced by King was one of harassment.  If you believe you may be in a similar situation then do talk to us - the law is here to protect you.  The woman in this case has had her identity protected by the Court.

Interestingly, while we tend think of Twitter and Facebook as the usual social media sites, it was on WhatsApp that this offence took place - it seems we need to broaden our horizons when thinking of 'social media'.


Monday 10 November 2014

Mother given permission to change twin sons' surname

A woman has been given permission to change the surname of her three-year-old twin sons after telling a family court judge that they needed protecting from their father's internet blogging ''activities''.

Judge Ross Duggan gave his approval after raising concerns about the man's ''bizarre conduct''.

The judge said man had not seen the children for a year after separating from his wife and becoming embroiled in litigation about what contact he should have with them.
He said the man had a ''perception of martyrdom'' and had created a ''protest blog'' which he updated ''virtually daily''.

Judge Duggan said the man had ''taken to referring'' to his estranged wife as ''a drug-addicted alcoholic ... who suffered from sexually transmitted diseases'', had posted a medical report relating to one of his children, had posted ''extensive details'' of litigation issues and had posted his sons' names.

The judge said the man had ''let himself down'' - and said his ''activity'' had been ''severely damaging'' to the welfare of the children and concluded that allowing the woman to change the children's names was ''necessary and proportionate''.

Monday 3 November 2014

New law on 'parental involvement' comes into force despite anxiety from legal advisers

A new legal provision, contained within the Children and Families Act 2014, will impact on all separating couples with children.

Clause 11 of the Act, which came into force recently, requires courts making child arrangement orders to presume, unless otherwise shown, that the involvement of both separating parents in the life of a child will further its welfare.

However, legal advisers have campaigned to ensure this clause did not undermine section 1 of the Children Act 1989, which requires the child's welfare to be the court's paramount consideration when reaching decisions on their upbringing.

The campaign was successful and an amendment was inserted to make clear that 'parental involvement' does not mean 'shared parenting', and there is no presumption parents will 'share' their children on a 50/50 basis.

The amendment makes clear that 'parental involvement' is defined as 'involvement of some kind, either direct or indirect, but not any particular division of a child's time'.

Coram Children’s Legal Centre's director of international programmes and research, Professor Carolyn Hamilton, commented: "It is essential that the best interests of the child remain paramount in all decisions affecting children. Decisions about where a child should live and how much the child should see each parent should be made in accordance with the child's best interests and not on the basis of parental rights."

Professor Hamilton continued: "We campaigned hard for a definition of 'parental involvement' to be included in the Act so that it was clear to separating parents that neither mothers nor fathers are entitled to a legally binding presumption of shared parenting. Ninety per cent of cases relating to contact are settled out of court, so this amendment is crucial. It will make it clear on the face of the Act that the welfare of children remains paramount."

Monday 20 October 2014

Landmark ruling for cohabiting couples

Whilst judges are still calling for new legal rights for cohabitees, a woman who wasn’t married to a man she lived with has won £28,500 from him because he ‘promised her a home for life’.

The woman, Catherine Blackburn, moved in with David Southwell, a businessman, after they got together and started a relationship. She had two daughters by a previous relationship, and they moved into the shared house too.  Mr Southwell put £140,000 of his own money into buying the house and the couple took out a £100,000 mortgage, which Mr Southwell paid.  He claims to have also paid most of the household bills, bought her a new car and funded her way through university while she studied to become a speech and language therapist.

Now, in a landmark ruling, Ms Blackburn has been awarded £28,500 after the couple split and Mr Southwell changed the locks on the house, leaving her and her two daughters homeless.

The ruling could well open the floodgates for other similar claims.

Ironically, Mr Southwell didn’t commit to marrying Ms Blackburn because he feared the payout involved if they did marry and then split.

Monday 13 October 2014

What to do about Litigants in Person?

The Legal Aid and Advice Act 1949 established a scheme of legal aid intended to provide practical equality before the law 'for those of moderate means'.  At its height it cost around £2bn annually and was therefore incredibly expensive.  In 2012 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took away legal aid for parties in most family proceedings.  Since then, Judges have had to contend with Litigants in Person (LiPs) turning up with a bin liner full of papers and not really knowing what to do.  There has been a growing sense of 'something should be done'...

Recently, Sir James Munby, president of the Family Division looked at three cases.  In one case, about contact of a child, the father spoke no English, couldn't afford a translator and was therefore unable to cross-examine the social workers involved.  In both the other cases the mother accused the father of rape - in these cases, without legal representation, the fathers needed to challenge the accusations against them, and the mothers faced being cross-examined by their alleged assailants.

Legal Aid is still available in some cases where a party has suffered (or is at risk of suffering) domestic abuse and so in these three cases the mothers (and only the mothers) obtained representation.  This clearly brought about an inequality in the parties in court which goes directly against the Family Procedure Rules 2010 which requires the court to ensure 'in so far as practicable' that parties are 'on an equal footing'.

Sir James Munby came up with an unexpected solution - 'If there is no other properly available public purse, the cost will have to be born by HM Courts & Tribunals Service'.

At this stage this is simply a recommendation - no Judge has made such an order, and there is as yet no precedent.  It seems we continue as we are for the time being, LiPs will continue to struggle and the court system may clog up with unrepresented parties and their bin bags.

If you or someone you know finds yourself needing to be in court and without representation, do remember that we are happy to work on a 'pay as you go' basis for LiPs.  Have a look at our website or contact us for more information - we'd like to think we can help you.

Monday 6 October 2014

Couples converting from civil partnerships will get backdated marriage certificates

The government has confirmed that backdated marriage certificates will be issued to couples converting their civil partnerships to marriages.

After criticism earlier in the year about how conversions were to be carried out, the Government Equalities Office has this week confirmed that a full, backdated marriage certificate will be issued to couples – and not a ‘certificate of conversion’ as previously speculated.

The new marriage certificate has been developed in discussion with the LGBT Consortium and Stonewall and it will be almost identical to a marriage certificate issued without a conversion, but there will be a few necessary differences.

To ensure that there is no doubt that the marriage is to be treated as having subsisted since the date the original civil partnership was formed, as required by the Marriage (Same Sex Couples) Act 2013, the marriage certificate will show the ‘when married’ date as the date the original civil partnership was formed.  The certificate will also show the date the conversion took place.

This will ensure that there is no confusion over why the ‘when married’ date could be earlier than the first date it became legal for same sex couples to marry in England and Wales.

Couples in England and Wales will be able to convert their civil partnerships to marriages at registry offices from December 10.

To see the full article which appeared in the Pink News, click here

Monday 29 September 2014

Dating before a divorce is finalised might harm your financial position...

A High Court Judge has recently ruled that if a woman starts a relationship with another man whilst still sorting out the finances during a divorce, it may affect the settlement she receives.

In a case involving a Swansea couple, the husband’s legal team during their ‘routine investigations’ found out that the wife was dating, although not living with, another man.  Mr Justice Mostyn reasoned that "She says she is not going to live with him, although it is perfectly clear that the relationship is strong. Relationships like this always are a significant fly in the ointment in the assessment of need. One cannot make assumptions, if it is not full-blown cohabitation akin to marriage, that it will grow into that, because if it does not, the wife may be left stranded if the assumption is wrongly made. On the other hand, if one makes a needs assessment on the basis that she is a single woman and she soon cohabits, then the paying party can rightfully feel significantly aggrieved.”

In this case, and believing that the wife might soon live with her new partner, the Judge awarded £250,000.  However, he did say that if she didn’t end up living with him then £250,000 might not be enough.

Unless Judges are going to be equipped with crystal balls, there is no way of knowing how any fledgling relationship is going to turn out.

There’s a lesson to be learnt here - if you’re going through a divorce, be careful about new relationships and, if possible, steer clear until any settlement is finalised.

Monday 22 September 2014

Catholics to get easier divorce?

It has been reported this week that Pope Francis has ordered a group of theologians and lawyers to come up with ways to help Catholics divorce more easily.

The 11-member commission, announced on Saturday, will seek to "simplify the (annulment) procedure, making it more streamlined, while safeguarding the principle of the indissolubility of marriage," the Vatican said.

At the present time Catholics can obtain annulments if they can show their marriage was not valid in the first place, perhaps because a partner declined to have children.  However this process, through the church, can be complex and often costly.

If Catholics instead opt for a simpler civil divorce – which is not recognised by the Church – and then remarry, they can be refused communion because the Church considers them to be still married and living in sin.

Monday 15 September 2014

New protocol launched for tackling stalking and harassment

As stalking-related prosecutions rise, prosecutors and police are being reminded by the Crown Prosecution Service to focus on the devastating impact these crimes have on victims. Prosecutions for all stalking and harassment offences, using both new and older legislation, have increased by more than 20 per cent in 2013-14. In order to maintain this upward trend a new protocol was launched last week to ensure consistency of approach when tackling all forms of stalking.
The new Protocol focuses strongly on the needs of stalking victims and reminds police and prosecutors to:
  • ensure that in every case the victim has the opportunity to provide a Victim Personal Statement to court and is able to read this out personally should they wish;
  • fully investigate the reasons behind any victim withdrawing a complaint, ensuring it is not the result of pressure from others;
  • ensure that victims are consulted on issues such as bail and restraining orders.
Rachel Griffin, Director of the Suzy Lamplugh Trust, the charity that runs the National Stalking Helpline said:
“Stalking is a highly complex crime that has devastating impacts on a victim and because of this we are pleased that the very real issue of online stalking has been addressed in the protocols. The next steps have to be to ensure that all officers are trained to ensure that the guidance in the protocols become a reality for every victim of stalking."

If you are worried about a stalking or harassment issue, please do get in touch with us - Sally Fitzherbert has experience of womens' issues relating to violence.
To see the original article which appeared in Family Law Week, please click here


Monday 18 August 2014

Pay As You Go may be the way forward?

Following my blog back in May about unrepresented families in Court an article this week in the Law Society Gazette again highlights the issue.

Separating parents are giving up on the courts and may take the law into their own hands in trying to see their children, family lawyers have warned.

CAFCASS (Children and Family Court Advisory and Support Service) statistics show there was a 36% fall in private law cases on the same month last year.

Simon Bethel, Chair of Resolution’s children committee, said the figures suggest parents are not finding their way through the ‘maze’ of options regarding their children when they separate.

‘Rather than receiving expert help to try and secure working shared care arrangements for their children, they are giving up,’ he said.

Naomi Angell (chair of the Law Society’s family law committee) said that the lack of access to legal advice and to the courts may mean that while in many cases parents simply give up, in others they may abduct their children.

‘We were always worried that the cuts would mean that out of desperation people would take things into their own hands.  I am absolutely certain that children are being denied access to their parents – which seriously undermines the concept of shared parenting being introduced by the Children and Families Bill,’ she added.

However, there is a way forward - Pay As You Go law.  If you find that Legal Aid isn't available to help you through the court system or provide advice, you can simply access legal advice and pay as you go along.

This is something that we at Hopkins Law are very keen to promote, so if you think you could be helped in this way, either visit the Pay As You Go page on our website, or give us a call on 029 2039 5888.

Monday 4 August 2014

Charities warn that domestic refuge provision is at crisis point

Domestic violence refuges are being closed across the country in a crisis that is putting support for the most vulnerable women and children back 40 years, leading charities have warned.

Specialist safe houses for women and children – which were forged out of the feminist movement in the 1970s – are being forced to shut by some local authorities because they do not take in male victims.

In other areas, refuges are facing closure in favour of preventive work and support in the community or being replaced with accommodation provided by housing associations.

The threat comes from a competitive tendering process being adopted by local authorities, which charities say is weighted towards larger housing associations and businesses and ignores the lessons of four decades about the need to provide specialist, therapeutic support in refuges for women forced to flee for their lives.

Key concerns raised by women's groups include:
  • The breakdown of the national network of refuges through local authorities imposing limits on the numbers of non-local women able to stay in them.
  • Time limits on length of stay.
  • Funding cuts because refuges do not take men.
  • Refuges being shut without alternative accommodation being provided.
Local authorities are not obliged to put domestic violence services out to tender, but many are doing so increasingly in response to pressure on their budgets and in a desire to focus more prevention measures and early intervention work as part of a government strategy.

Councils, however, believe that the way forward lies in better support networks rather than refuges:

Councillor Brenda Dowding, of Cheshire West and Chester Council, says: "We are trying to move away from reactive services to get more proactive, to see if we can prevent the abuse or at least stop it at the point it is detected. When people have gone into refuges they have been there for quite a long time, and that is not desirable because they can become institutionalised."

A spokeswoman for Gloucestershire County Council says: "Where its appropriate its best to support people to stay in their own homes. Where that's not possible we provide a range of accommodation options including temporary accommodation with friends and family and emergency B&B accommodation with support. In the past refuges have not been able to provide support for all victims, particularly male victims."

if you are worried about domestic violence, or need advice on where to find a safe place, please do contact us - Sally Fitzherbert is experienced in dealing with domestic violence issues.

To read the original article, which appeared in The Guardian, please click here.

Monday 28 July 2014

PM says domestic violence could become a specific offence

David Cameron has said that his Government needs to get to grip on domestic abuse in Britain and make the justice system more “sympathetic” to victims.

Backbench MPs have called for a tough US-style law that would make domestic abuse a specific offence carrying up to 14 years in prison.

The campaign follows on from a successful effort to bring in new stalking laws in England and Wales.

They want a legal framework for domestic abuse allowing police and prosecutors to examine an offender's course of conduct over a period of time, not just an individual incident.

At the moment offenders who attack their partners are prosecuted for individual crimes such as rape or assault.

However if police could take account of the previous abusive behaviour of an offender supporters say more victims would report crimes before violence escalates.

The Prime Minister said: "We are looking very carefully at this, of course domestic violence is a crime if you beat someone, if you abuse someone, if you abuse them psychologically, if you stalk someone, if you threaten, those are all individual crimes.

“There's a question about whether we need to have a specific offence as well - and we're very happy to look at that.

He added: “I think the most important thing with domestic violence is to make sure that the police have the training and the understanding, so that when they get a call, they don't think 'well, it's a domestic, it's inside the house, there's nothing I can do'.

“It's a really important area of crime that we've got to get to grips with in our country.”

A new specific domestic violence offence would be an attempt to protect people who experience violence at the hands of their partners before it escalates to a lethal attack.

If you are worried about domestic violence at any time, please contact us - Sally Fitzherbert has experience with Womens Aid and domestic violence.

If you would like to read the original Telegraph article, please click here

Monday 21 July 2014

19,000 more unrepresented parents in courts

More than 19,000 more parents appeared in civil courts with no lawyer in cases about children in the year after legal aid cuts, it has emerged.  Legal aid helps with legal costs, such as hiring a solicitor, for people who cannot afford to pay.

Since April 2013, a range of civil cases including custody battles have not qualified for legal aid.  In 2013/14 66,388 people had no lawyer in child civil cases in England and Wales - compared to 47,214 in 2021/13.

The Ministry of Justice said there had always been many self-represented people, and mediation funding had been increased.

When the Ministry of Justice made the legal aid cuts it said courts should be a 'last resort', but the figures show the number of child civil cases in courts rose by more than a thousand to 114,000 in 2013/14 compared to the previous year.

A Ministry of Justice spokeswoman said:  "We've increased mediation funding as it's often more successful, less expensive and less stressful than going to court.  In some cases - such as where domestic violence is involved - court clearly is the only answer and we've made sure legal aid remains available here."

If you would like to read the full article on this issue, please click here

Monday 14 July 2014

The rise of the amateur lawyer can be harmful

The Law Society Gazette is this week reporting that MPs have voiced concern over the 'cult of the amateur lawyer' as the heard that thousands of vulnerable people are falling through the net of legal aid funding following cutbacks.

They highlighted as particular concerns the failings of the funding system, complex eligibility rules and forms, an over-restrictive domestic violence gateway threshold and the impact of family legal aid on children who are denied contact with a parent.

MPs warned of the dangers of untrained, uninsured and unregulated professional 'McKenzie friends', who have emerged to fill the gap as people are left without access to proper legal advice and representation.

MPs expressed concern at the growing phenomenon. Conservative MP Steve Brine called it the 'cult of the amateur', which Labour MP Jeremy Corbyn said is a 'dangerous scenario'.

Don't forget that if you have to go to Court, rather than an untrained (uninsured) person accompanying you, it's possible to have a solicitor act as an advocate.  We are one of the firms offering this service, so if it's something that is of use to you, please do get in touch.

Tuesday 8 July 2014

Pre-nups one stage closer?

Peers have given their backing to a law making it easier for divorcing couples to resolve financial issues and make pre-nuptial agreements binding.

The Divorce (Financial Provisions) Bill, introduced by Lady Deech in February, received its second reading in the Lords recently.  It amends the Matrimonial Causes Act 1973 with a provision to make pre- and post-nuptial agreements binding.

The bill would also share the net value of matrimonial property equally between the parties and limit to three years the length of maintenance payments.

Lady Deech said the area 'desperately needs public and parliamentary input' as the law has been developed by judges creating 'uncertainty in application'.  It will, she said, reintroduce 'transparency, democracy and understandability' to the law when marriages end.

Under her bill, Deech said there ought to be 'far less need for lawyers,' at least until the point of court appearance, and far fewer court hearings.

'It has the potential to save millions in litigation costs, whether met privately or by the state.  It will give a sensible basis for starting mediation and negotiation.  It will restore some dignity, certainty, economy and clarity to family law,' she said.

Justice Minister Lord Faulks said the provision to divide property equally may be 'potentially unfair and could cause hardship,' particularly for poorer families with children and the three-year limit for maintenance may also cause hardship and be 'inappropriate for many couples'.

The bill will now be considered by the committee of the whole house.

If you would like to see the original of this article, please click here

Monday 30 June 2014

Free DNA tests used to help speed up Court proceedings

Free DNA tests are being provided to speed up resolution of disputes over the paternity of children, the justice minister Simon Hughes has revealed.

Because of the cuts to Legal Aid last year, family courts are being inundated with people who have no legal representation.  Arguments over who the father is can sometimes take up to 3 days, so a simple DNA test could speed up the process.  Pilot programmes in both Taunton and Bristol are providing DNA tests free of charge in an attempt to find out if this is a workable solution.

The pilots are also providing free hair tests - used to assess whether individuals have been abusing alcohol or drugs.  The purpose is, similarly, to provide clear answers to common allegations and avoid hours of costly legal arguments and delays.

If you don't have a lawyer to represent you, you're known as a 'litigant in person' and it's not uncommon to feel nervous, anxious and stressed without legal support at your side.  Lengthy legal arguments over who the father is and whether somebody is, or is not, taking drugs simply make the problem worse.

If you have to go to Court and don't have formal legal representation, remember that we offer an advocacy service - we'll come to Court with you and help you through what can otherwise be a stressful process.

Have a look at our advocacy page and contact us if you think we can help.

Monday 16 June 2014

Criminalisation of forced marriage becomes law today

Parents who force their children to marry in England and Wales could be jailed for a maximum penalty of 7 years under the new laws.

From today, forcing someone into marriage will carry a maximum seven-year jail term under the 2014 Anti-Social Behaviour, Crime and Policing Act.

It is now a criminal offence to use violence, threats or any other form of coercion for the purpose of causing another person to enter into a forced marriage.

The legislation followed a consultation published in December 2011 which sought views on how the new offence should be framed.

A forced marriage is described as one in which one or both spouses do not consent to the marriage but are coerced into it by physical, psychological, financial, sexual or emotional pressure.  This is different from arranged marriages where the parents may have arranged the marriage but both parties have consented to the union but can still refuse to marry if they choose to.

As the new law came into effect, the Home Secretary, Theresa May, said that forced marriage is "a tragedy for each and every victim".  She added that forced marriage is an "appalling practice" and that criminalising it would send "a strong message that it will not be tolerated".  It is already illegal in Scotland.

Monday 2 June 2014

Forty-somethings shy away from marriage

It seems that forty-somethings are turning their backs on marriage faster than any other generation, a recent study has shown.

In the last decade the number of people cohabiting rose by a third, except for people in their 40s for whom it rose by a staggering 70%.  The Office for National Statistics, who produced the study, point out that this coincides with the peak age group for divorce.

Family lawyers are saying this is the 'once bitten, twice shy' mindset because of the pain of divorce.

Married people are a minority group for the first time, accounting for only 48% of the population, whereas cohabitation has been increasing quickly.

If you'd like to read the original press piece on this report from The Telegraph, please click here

Tuesday 27 May 2014

Top Judge recommends court-free divorce

Sir James Munby, the UK's most senior family law judge, has recently said that couples should be able to get a divorce simply by signing a form at the register office.  In a radical move, he said consenting couples should be able to end their marriage without the approval of a judge.

Whilst it is not always necessary to attend court in person, every divorce in the UK currently has to be assessed and approved by a judge.  These new proposals would do away with that process, with break-ups simply being recorded by a registrar in the same way as births, marriages and deaths.

Sir James also proposed a law that would see cohabiting couples being treated as though they were married after having lived together for a set number of years.

He said that in some countries divorce which is by consent and where there are no children is treated in a simply administrative manner "and it seems to work".  He did not advocate this system where there was no consent or where children were involved.

Any changes to divorce laws would need parliamentary legislation, and Sir James hasn't even run his ideas past ministers as yet, so they're not likely to come into practice any time soon.

Critics of the new 'administrative' divorce have said that the laws would be open to abuse and would mean an end to marriage itself.

For more details on this story from the BBC's news website, please click here

Monday 12 May 2014

Don't annoy the Judge...

Pauline Chai, the Miss Malaysia wife of Laura Ashley tycoon Khoo Kay Peng, had filed to divorce her husband in a £500m case - yet earlier this month the businessman failed to turn up at the High Court for the second time.

The judge expressed his disgust at Dr Peng's non-attendance and dismissed the tycoon's excuse - that a former Malaysian judge advised him to stay away - as "complete rubbish".  Mr Justice Holman concluded Dr Peng was treating the court with contempt and "playing games".

The former beauty queen, 66, and the business tycoon, 74, began the bitter proceedings - which could result in Britain's biggest divorce settlement - after their 43-year marriage broke down last year.

Dr Peng wants the case to be heard in a court in his native Malaysia, where it is believed that his wife would be entitled to less.

Besides having a 40% stake in Laura Ashley, Dr Peng is a director of the Corus Hotel chain and runs a global investment company.  Estimates have put his wealth at up to £1bn.

The collapse of the couple's marriage has resulted in a surreal situation at Rossway Park, their estate near Berkhamsted, Hertfordshire.  Ms Chai lives in the main 15-bedroom home, while her husband uses the nearby five-bedroom manor house.  Each has their own Gurkha protection team who guard their respective portions of the estate, which boasts a menagerie of exotic animals and two artificial lakes.

To read the original full article which appeared in The Independent, please click here

Tuesday 29 April 2014

Poker player wins case not to pay child maintenance from winnings

A professional poker player has won his case to NOT support his children from his winnings because his income is not from 'gainful employment'.

Three judges at the Appeal Court rules that his poker playing did not amount to a trade, business or profession and therefore did not fall within the regulations of child support.

The decision follows a four year dispute after the mother of the children claimed his gambling was a profession, like a professional sportsman, and asked the Child Support Agency to order him to pay maintenance.  An earlier hearing had concluded that his winnings DID constitute gainful employment and ruled that he should pay maintenance.

If you'd like to read the full story which originally appeared in the Telegraph, please click here

Tuesday 15 April 2014

Man kills wife's pet ram in bitter divorce battle

A man who killed his wife's pet ram has found himself in the divorce courts.  The marriage had already gone sour, but the killing by the husband was apparently the last straw for the wife.  The elderly couple (70 and 68 years old) are enormously wealthy and have houses in London, Austria and the south of France.  

The wife, who is claiming £390,000 in annual maintenance (including £70,000 for holidays) is hoping to have the full divorce case heard in England, where wives are perceived to receive more generous settlements.  The husband, meanwhile, is arguing that he is not domiciled here, and it is for a Judge to decide where the case will be heard.

It seems that the unfortunate ram lived in the south of France until his death - the couple had bought a house there after the wife said how much she disliked the cold and damp of the UK in the winter.

A Judge will now decide if the full divorce proceedings should go ahead in the UK.  In the meantime he has awarded the wife a pared-down sum of £170,000 a year to live on.

If you'd like to see the full story as it originally appeared in The Telegraph, click here

Tuesday 1 April 2014

A victory for the house-husband

A stay-at-home husband who claims he sacrificed his own career so his wife, an investment banker, could continue hers has triumphed in a crucial round of their impending £11million divorce battle.

House husband, Weng Choy, says he filed for divorce from his "breadwinner" wife, Lena Tan, in January 2012, after a blazing row days earlier on New Year's Eve proved the "final straw" proving, yet again, that January really is the time when most divorces can get started.

Ms Tan cited the fact that she needed to be in Malaysia and that the divorce should be heard there, despite over half the couple's wealth being invested in UK assets, including an unmortgaged £4.5m apartment in Kensington.

Ms Tan claimed that Mr Choy had no right to divorce in England as they had houses in Hong Kong, Malaysia and London.  However, three Appeal Court judges settled the debate in Mr Choy's favour, ruling that he had been "habitually resident" in this country for a year before he filed for divorce and therefore was entitled to fight his case before an English family judge.  English judges are renowned for their generosity to the partners of rich spouses.

If you would like to read the full story which originally appeared in The Telegraph, please click here

Monday 17 March 2014

Same sex couples can now marry

Since 13th March 2014 same sex couples in England and Wales have been able to give notice of their intention to marry to their local register office.  As 16 days is required for most marriages or civil partnerships, this means marriages can take place as early as 29th March 2014.  There might, however, be different requirements for religious ceremonies.

Same sex couples who married abroad under foreign law and are currently treated as civil partners will be recognised as being married in England and Wales from 13th March 2014.

Other notable dates for your diaries:


  • Same sex weddings in some British consulates and overseas armed forces bases will be possible, and arrangements for same sex weddings in military chapels will be in place from June 2014
  • Couples wishing to convert civil partnerships into marriages, and married people wanting to change their legal gender while remaining married will be able to do so before the end of 2014.


Thanks to the Marriage (Same Sex Couples) Act 2013 becoming law in July 2013 in England and Wales:

  • Same sex couples can now marry in civil ceremonies
  • Same sex couples can now marry in religious ceremonies provided the religious organisation has 'opted in' to conduct such ceremonies and the minister of religion agrees
  • Religious organisations and representatives who don't want to conduct same sex marriages are protected from successful legal challenge
  • Civil partners can now convert their partnership to a marriage

and

  • Married individuals can change their legal gender without having to end their marriage first.

Monday 10 March 2014

Clare's Law introduced to tackle domestic violence

A scheme to let people find out from police if their partner has a history of domestic violence has been brought in across England and Wales.
The Domestic Violence Disclosure Scheme - known as Clare's Law - is intended to provide information that could protect someone from being a victim of attack.
The initiative is named after 36-year-old Clare Wood who was murdered by her ex-boyfriend.
The scheme allows the police to disclose information on request about a partner's previous history of domestic violence or violent acts.
It has been introduced to coincide with International Women's Day, following pilot schemes in four areas - Greater Manchester, Gwent, Nottinghamshire and Wiltshire - since September 2012.
The Home Office said the pilots had provided more than 100 people with potentially life-saving information.
Clare Wood, a mother-of-one, was killed by her ex-boyfriend George Appleton, who unbeknown to her, had a history of violence to women.
Ms Wood was strangled and set on fire at her home in Salford, Greater Manchester, in February 2009 by George Appleton, who had a record of violence against women.
At the inquest into Miss Wood's death, Coroner Jennifer Leeming said women in abusive relationships should have the right to know about the violent past of the men they were with.
Her father, Michael Brown, who campaigned for the introduction of Clare's Law, is convinced she would still be alive had she known the full extent of Appleton's previous behaviour.
He said he was "absolutely delighted" that the scheme had come into force and urged women to make the most of the new scheme.

He said: "It's there to be used. Get it used, ask! If you are in a domestic violence situation or you think you could be seek advice and get out of there, because the ultimate is 120 women a year have lost their lives, mostly at a young age."
If you are worried about domestic violence please contact us - Sally Fitzherbert has experience with Womens Aid and domestic violence.
This article is taken from the BBC website.  To see the original full-length article, click here

Monday 3 March 2014

Law Commission recommends that ‘qualifying nuptial agreements’ should be enforceable

The Law Commission has published its much anticipated report Matrimonial Property Needs and Agreements. The report, which includes a draft Bill, recommends a set of measures to make it easier for couples to manage their financial affairs on divorce or at the end of a civil partnership. These are:
  • guidance to help couples assess and agree financial needs;
  • an assessment of the feasibility of using formulae to help agree financial settlements; and
  • 'qualifying nuptial agreements" to allow couples to decide how their assets should be shared if they separate.
The Law Commission believes that the objective of orders made in financial remedy cases on divorce should be to enable both partners eventually to achieve financial independence. The Law Commission believes that there is evidence of regional inconsistencies in how the courts approach orders for financial needs, which can make the outcome unpredictable. Furthermore, while the law is largely well-understood by family lawyers, it is not clear to the general public who are increasingly dealing with the financial consequences of separation without legal assistance.



Agreeing financial needs 
The Law Commission is recommending that the Family Justice Council produce authoritative guidance on financial needs. The guidance would explain the outcome a judge would aim for in determining a settlement, including achieving eventual financial independence. This would enable couples to reach an agreement that recognises their financial responsibilities to each other. The guidance would also help to bring more consistency to how the law is applied in the courts.



Making settlements more predictable
  Guidance from the Family Justice Council would provide an explanation of the sort of outcome that should be aimed for but it would not provide figures. The Law Commission is also recommending that the Government commission a long-term study to assess whether a workable, non-statutory formula could be produced that would give couples a clearer idea of the amounts that might need to be paid to meet needs. Formulae are already used successfully in other jurisdictions such as Canada, where they produce a guideline range of outcomes within which couples can negotiate.



Qualifying nuptial agreements
  The Law Commission is recommending the introduction of "qualifying nuptial agreements". 

Qualifying nuptial agreements would enable married couples and civil partners to make a binding agreement about how their property or finances should be shared if their relationship breaks down. The agreements would be enforceable as contracts but would apply only after both partners' financial needs, and any financial responsibilities towards children, have been met. And they would be binding only if, at the time of signing, both parties had disclosed material information about their financial situation and both received legal advice.
Under the current law, couples can make pre- and post-nuptial agreements. The courts may follow these agreements but they are not binding and the parties cannot be certain they will be upheld. 

Professor Elizabeth Cooke, Law Commissioner for property, family and trust law, said:
"We believe that married couples and civil partners should have the power to decide their own financial arrangements, but should not be able to contract out of their responsibilities for each other's financial needs, or for their children. The measures we are recommending would help couples understand and meet their financial responsibilities and, where appropriate, achieve financial independence. 

"Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect. Qualifying nuptial agreements would give couples autonomy and control, and make the financial outcome of separation more predictable. We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state."
The Law Commission's report, Matrimonial Property Needs and Agreements, includes a draft Bill that, if implemented, would bring qualifying nuptial agreements into effect.



Resolution reaction
  Resolution welcomed the report.

Resolution vice-chair (and chair-elect) Jo Edwards commented on the recommendations concerning pre-nuptial agreements:
"This latest development ... should give people confidence that marital agreements will be upheld. This should also help reduce the burden on the courts.

"We don't expect this measure to lead to every engaged couple in the country seeking a pre-nup, but for those couples who want to have one in place, it will make their legal situation much clearer and reduce uncertainty upon separation.

"It's also important to note that the court will still have the ability to review agreements in so far as they deal with people's financial needs.
"Individuals' financial needs – in particular those of any children – are still the overriding consideration, and couples will not be able to make binding agreements which allow them to avoid future consideration of financial needs.

"There is, therefore, a risk that we could end up with a two-tier arrangement, where one type of agreement is legally binding, and others still open to challenge – couples need to be aware of this, and that's why the recommendation that people are required to seek legal advice is so important.

"We would prefer to see change which would open up binding pre-nups to a wider group of people, with appropriate safeguards. Nevertheless, we welcome the fact that this will allow some couples to create certainty about their financial settlements should their marriage sadly come to an end."
On the need for further guidance on needs, she said:
"Guidance on needs should encourage consistency, dispel myths and manage expectations. This will help anyone going through separation, even if they don't have access to legal advice and support, or are trying to reach agreements on their own, during a very traumatic time."
However, she hoped for further reform of divorce law and financial provision on divorce:
"The last major reform to divorce law was in 1973, and we believe more changes are needed to make the law relevant to modern day. For example, Resolution wants to see the removal of the need to assign blame if a marriage breaks down, which can often ramp up the conflict and cause unnecessary emotional distress.

"We would also like to see more wholesale reform of the law about financial provision on divorce, to provide clearer guidance about likely outcomes. It's important that anyone going through a divorce has some degree of certainty about how long it will be before they achieve financial independence and have some degree of closure.

"Resolution is currently undertaking a major consultation exercise with its members in order to establish a series of policy proposals which will help support separating couples in England and Wales, and we will be publishing these later in the year."

This article first appeared in Family Law Week on 27th February 2014


Monday 24 February 2014

Decline of nuclear family may have benefits

The decline of the traditional nuclear family "may not be a bad thing”, a leading judge has argued, because a wider family made up of step-parents and half-siblings may provide a healthier environment for children.

Lord Wilson of Culworth, a justice in the Supreme Court since 2011, also gave his backing to gay marriage because it would strengthen, rather than weaken, the institution of marriage.

 “Death has always enabled the surviving spouse to remarry but the availability of divorce precipitates many more remarriages and in their wake come many more step-families and relationships of the half-blood,” Lord Wilson, 68, said.

“So the blended family now often replaces the nuclear family.  I am not convinced that it is a bad thing: might it not be healthier for children to learn at a very early age to cope with relationships in a mixed and wider family group?”

Lord Wilson pointed out that same sex marriage was “not a novel concept” and had been allowed in ancient Egypt and Republican Rome.

“Far from destroying marriage, I think that to allow same sex couples into it strengthens it; but in my view the most important benefit of same sex marriage is the symbol that it holds to the heterosexual community ... that each of the two types of intimate adult love is as valid as the other.

Lord Wilson argued that marriage was an “elastic” concept. For example, although polygamy was frowned upon in Western culture it was a “deeply rooted facet of marriage in other respected cultures”.

Marriage between first cousins is illegal in parts of the world but it is “inconceivable” that it should be banned in Britain because it is “deeply rooted in the culture of our Pakistani and Bangladeshi communities” despite the increased risk of genetic abnormalities in their offspring, he added.

Lord Wilson also pointed out that Australia allows a woman to wed her uncle, and France permits about 20 posthumous marriages to take place a year, if the surviving member of the couple can prove they were genuinely engaged.

He added: “It seems bizarre but, if it really helps the broken-hearted, we have at least to ask: why not?”


To read a full copy of this article, which first appeared in The Telegraph, please click here

Monday 17 February 2014

Pre-nup deals could be given legal status


  • Package is likely to recommend a shake-up of the divorce laws
  • Proposals also likely to include rules to combat 'gold-diggers'

A'pre-nup' law that allows a couple to set the terms of a divorce even before they get married is to go before ministers later this month.

The 'Matrimonial Property Needs and Agreements' proposals, drawn up by the Law Commission after more than four years of wrangling, will outline a new law 'to consider the treatment of pre-nuptial, post-nuptial and separation agreements'.  It will suggest new rules on how one marriage partner should meet the genuine financial needs of the other after divorce.

The package is also likely to include rules to combat 'gold-diggers', meaning that a bride or groom who brought their own assets into a marriage - such as a family-owned company or an inherited fortune - would not lose them in the event of divorce.

However, there is little likelihood of any change in the law before next year's general election.

Courts in England and Wales have traditionally ignored pre-nup agreements, with judges instead trying to divide a couple's assets on the merits of each case.

But the longstanding practice was undermined by the Radmacher ruling in the Supreme Court in 2010, when judges ruled that German heiress Katrin Radmacher should keep her £100million fortune after her divorce in accordance with the terms of her pre-nup.

Here at Hopkins Law we have helped many couples draw up pre-nup agreements - if you're lucky enough to have assets before you get married, give us a ring and have a chat!

More about this story can be found at the Mail Online website.

Monday 10 February 2014

Divorce statistics revealed for England and Wales

Divorces are down over the last decade, but up in the last year

The Office for National Statistics has released figures for divorces in England and Wales in 2012. The number of divorces was up 0.5% since 2011. The number of civil partnership dissolutions also increased. However, this is part of an upward trend which is partly explained by the fact that since civil partnerships are relatively new, the number of registered partnerships is increasing.


  • In 2012, 10.8 people divorced per thousand married population, a decrease of 19% compared with 13.3 in 2002.


  • The number of divorces in 2012 was highest among men and women aged 40 to 44.


  • For those married in 1972, 22% of marriages had ended in divorce by their 15th wedding anniversary whereas for those married in 1997, almost a third of marriages had ended by this time.
  • Almost half of all divorces in 2012 occurred in the first ten years of marriage and divorce was most likely to occur between the fourth and eighth wedding anniversary.


  • 48% of couples divorcing had at least one child aged under 16 living with the family. 

In the light of the increase in divorces, Family Justice Minister Simon Hughes has called on more parents and couples to use mediation rather than face the stressful experience of going to court. He said:
"Mediation works. We are committed to making sure that more people make use of it rather than go through the confrontational and stressful experience of going to court. 

"These figures show thousands of people are sadly still divorcing each year. We want them to do it in the least damaging way for everyone involved, especially children. That is why we want them to use the excellent mediation services available to agree a way forward, rather than have one forced upon them."
Liz Edwards, Chair of Resolution, said:
"It's disappointing to see the divorce rates rising, and we suspect there are a range of reasons why this has happened.

"What's interesting is looking beyond the headline figures, the vast majority of divorce petitions still involve one party assigning blame to the other – either in the form of adultery or unreasonable behaviour. 



"Resolution members see people day in, day out, who have mutually agreed to separate, but because of the divorce laws we currently have, are forced to apportion blame in the divorce petition. This is unhelpful, and often makes conflict and confrontation part and parcel of the divorce process.



"Our members believe separation and divorce should be as non-confrontational as possible, and where marriage has failed, couples should be able to bring it to an end with the minimum distress and conflict. Where there are children, their welfare should be the top priority.




"Resolution wants to see the law change to remove the need to assign blame if a marriage breaks down. This would not make divorce easier, but would recognise the fact that divorce is a sad fact of life for some people – to the tune of nearly a quarter of a million in 2012. They - and crucially, any children they may have - should be able to move forwards with their lives with as little distress as possible."

Tuesday 21 January 2014

Cohabiting couples may be losing out on rights

Research by the Co-operative Legal Services has uncovered growing confusion among the public about what rights people who live together unmarried have to property and contact with their children in the event of a break-up.

It found that people wrongly believe that couples who live together have the same financial rights as married couples because of a widespread belief in the notion of “common law” marriage.

At the same time they thought, again wrongly, that they would not have the same rights to see their children after a break-up as those who were married or formal civil partners.

Official figures have shown that cohabitation is becoming the norm, even for couples planning to start a family, with almost equal numbers of babies born in and outside of marriage.

Jenny Beck, Director of Family Law at The Co-operative Legal Services, said: “It’s clear that the modern family continues to evolve, but it’s concerning to see that understanding of our legal rights lags behind – meaning many of us could be left vulnerable.

“It is important to understand that couples who cohabit aren’t recognised in the same way as married couples are. The law is different and can be complicated, especially when a relationship ends and there are children involved.


If you’re cohabiting and considering separating come and talk to us - there are ways of safeguarding your rights, and your contact to your children.

If you want to read the full article, click here

Monday 13 January 2014

Divorce really does end your marriage

In an extraordinary case, a woman is claiming damages for professional negligence after saying that her lawyers didn't make it clear to her that divorce would end her marriage.

The woman said that her lawyers failed to regard her Roman Catholic faith and should have recommended a judicial separation (a step down from full divorce) as an alternative course of action.

Her case and appeal was later dismissed - you can read the full article here

If you're unclear about exactly what a divorce means, have a chat with us before going ahead.

Monday 6 January 2014

Domestic violence - 14 year sentences?

MPs from all parties are looking at an American style law that would see offenders in domestic violence cases being sentenced for up to 14 years.

At present there is no specific offence of domestic abuse as defined in criminal law.  Instead, offenders are prosecuted for the specific crime such as rape or assault.  In many cases previous abusive behaviour is not taken into account - this is of particular concern in domestic violence cases where the violence and abuse is often a pattern of behaviour.

The proposed law would make domestic abuse a specific offence and would allow for the law to look at an offender’s conduct over a period of time. The law would see domestic abuse categorised as both physical and psychological and perpetrated against the victim or the victim's children. It would define abuse as "intentionally, wilfully or recklessly causing, or attempting to cause, physical injury or psychological harm to a person" and introduce protective orders prohibiting an abuser from making contact with their victim.

The bill’s supporters believe that it will enjoy broad support in parliament and is likely to become law.


If you would like to read the full article please click here.