Alimony payments are awarded in order for one spouse to provide continued support to the other after the marriage has ended. It is awarded in certain circumstances to ensure that the recipient does not experience a dramatic decline in his or her standard of living as a result of the dissolution of marriage. The length of time that alimony payments must continue to be paid will vary depending on why the alimony is awarded and based on other factors, such as the length of the marriage.
Depending on the particular circumstances, alimony may be awarded on a temporary or permanent/ongoing basis.
Temporary alimony is ordered to be paid during the time period that the supported spouse is seeking education, training, and marketable job skills in order to establish a career or otherwise become self-supportive. Consideration of the responsibility for providing child care during the early years of a minor child factors into this determination. In other words, if the recipient of the alimony just needs a bit of time to get into a position that he or she can provide for himself, then temporary alimony will be awarded to give him that time.
Permanent alimony may be awarded if the supported spouse is of advanced age or suffers from a medical problem that would prevent this spouse from obtaining a career, thus preventing him/her from becoming self-supportive. Even permanent alimony is subject to future modification based upon a material change in circumstances, however. Permanent alimony will also generally end if the recipient gets remarried.
In addition, if there was a long-term marriage (in California, for example, a marriage of ten years or longer is considered a long term marriage), a court may have continuing jurisdiction over the issue of spousal support. With continuing jurisdiction, a court may change the amount or duration of alimony payments from one spouse to the other any time in the future, although a material change in circumstances is usually necessary.
In addition, a court order for alimony typically terminates upon the death or remarriage of the supported spouse. Alimony payments made under pre-2019 divorce agreements are considered to be income for the recipient, which means they are generally taxable. They are also considered a tax-deductible expense for the payor in most situations. However, those rules change starting January 1, 2019 when alimony payments to an ex-spouse will no longer be deductible by the payor and ex-spouses/recipients will no longer have to report the payments as taxable income.
To get help understanding the rules for alimony and for assistance in determining whether alimony may be awarded in your divorce, you should strongly consider speaking with a divorce lawyer for assistance.
Friday, 23 March 2018
Monday, 8 January 2018
Women should be told if new partner has abusive past, say victims’ groups
An article in The Guardian this weekend informs us that Victim support groups are calling on MPs to back a new law allowing police to take proactive measures to establish whether a serious offender has a new partner, and if so to inform them of his previous convictions. The call comes after the jailing of serial killer Theodore Johnson, 64, who strangled and battered his ex-girlfriend, Angela Best, 51. He was sentenced to life with a minimum of 26 years on Friday.
Johnson was first convicted of manslaughter in 1981 after throwing his then wife, Yvonne Johnson, off a ninth-floor balcony in Wolverhampton. In 1992 he strangled a second partner, Yvonne Bennett, and pleaded guilty to manslaughter on the grounds of diminished responsibility because of depression and a personality disorder. He was detained in a psychiatric hospital for just two years before being released back into the community.
He kept his past secret from his partner and was let out by a mental health tribunal in 1997 on condition that he agree to supervision in the community and to alert doctors and social workers if he formed any new relationships, something he repeatedly failed to do.
Johnson’s lawyer, Annette Henry, said the mental health tribunal’s condition on Johnson’s release was flawed as it relied on “self-reporting” any new relationship. “This was a dilemma and the tribunal found it was fraught with difficulty in trying to monitor,” she said.
Johnson is not an isolated case. Liliya Breha, the mother of a five-year-old boy beaten to death by her boyfriend, Marvyn Iheanacho, was never warned by probation officials that he had a history of domestic violence and had once tried to strangle a child.
Harry Fletcher, of the Victims Rights Campaign, which is leading calls for change to the laws on domestic violence disclosure, said he knew of many cases where women were unaware of the violent histories of their partners.
Theodore Johnson pleaded guilty to murdering his former girlfriend. He had previously been convicted of throwing his wife her off a balcony and strangling another former partner.
In 2016, according to the latest figures available, 113 women were killed by men in England, Wales and Northern Ireland – and 90% knew their killer, according to the latest Femicide Census. The British Crime Survey estimates 1.3 million women suffered domestic abuse in the year to March 2016. Over the same period there were just over 100,000 domestic abuse prosecutions.
Under “Clare’s law”, the domestic violence disclosure scheme introduced in 2014, police can inform a woman of a new partner’s past, but this depends on a woman making an inquiry.
“In a number of recent disturbing cases, women entering into new relationships have found out in tragic circumstances that their new partner has previous convictions for violence, even murder,” Fletcher said. “Victims can refer to Clare’s law and ask the police in specific circumstances if the potential partner has any relevant criminal convictions. However, not surprisingly, that power is rarely used.”
Under the new law that Plaid Cymru MP Liz Saville Roberts hopes to introduce via an amendment to the government’s domestic violence bill, police would be duty bound to create a database holding the convictions and cautions of anyone found guilty of offences including manslaughter, murder, rape or repeated instances of domestic violence or coercive control. Officers could make unannounced visits to offenders, who would face prison if they failed to inform the authorities they were in a new relationship. Police would then have the right to inform the woman of a new partner’s conviction
Johnson was first convicted of manslaughter in 1981 after throwing his then wife, Yvonne Johnson, off a ninth-floor balcony in Wolverhampton. In 1992 he strangled a second partner, Yvonne Bennett, and pleaded guilty to manslaughter on the grounds of diminished responsibility because of depression and a personality disorder. He was detained in a psychiatric hospital for just two years before being released back into the community.
He kept his past secret from his partner and was let out by a mental health tribunal in 1997 on condition that he agree to supervision in the community and to alert doctors and social workers if he formed any new relationships, something he repeatedly failed to do.
Johnson’s lawyer, Annette Henry, said the mental health tribunal’s condition on Johnson’s release was flawed as it relied on “self-reporting” any new relationship. “This was a dilemma and the tribunal found it was fraught with difficulty in trying to monitor,” she said.
Johnson is not an isolated case. Liliya Breha, the mother of a five-year-old boy beaten to death by her boyfriend, Marvyn Iheanacho, was never warned by probation officials that he had a history of domestic violence and had once tried to strangle a child.
Harry Fletcher, of the Victims Rights Campaign, which is leading calls for change to the laws on domestic violence disclosure, said he knew of many cases where women were unaware of the violent histories of their partners.
Theodore Johnson pleaded guilty to murdering his former girlfriend. He had previously been convicted of throwing his wife her off a balcony and strangling another former partner.
In 2016, according to the latest figures available, 113 women were killed by men in England, Wales and Northern Ireland – and 90% knew their killer, according to the latest Femicide Census. The British Crime Survey estimates 1.3 million women suffered domestic abuse in the year to March 2016. Over the same period there were just over 100,000 domestic abuse prosecutions.
Under “Clare’s law”, the domestic violence disclosure scheme introduced in 2014, police can inform a woman of a new partner’s past, but this depends on a woman making an inquiry.
“In a number of recent disturbing cases, women entering into new relationships have found out in tragic circumstances that their new partner has previous convictions for violence, even murder,” Fletcher said. “Victims can refer to Clare’s law and ask the police in specific circumstances if the potential partner has any relevant criminal convictions. However, not surprisingly, that power is rarely used.”
Under the new law that Plaid Cymru MP Liz Saville Roberts hopes to introduce via an amendment to the government’s domestic violence bill, police would be duty bound to create a database holding the convictions and cautions of anyone found guilty of offences including manslaughter, murder, rape or repeated instances of domestic violence or coercive control. Officers could make unannounced visits to offenders, who would face prison if they failed to inform the authorities they were in a new relationship. Police would then have the right to inform the woman of a new partner’s conviction
Monday, 27 November 2017
Protecting your interests outside marriage
In a recent article by Amy Foweather, she reiterates the importance of protecting yourself if you are in a relationship but not married. This was highlighted recently by a Channel 4 Programme.
A recent documentary on Channel 4 examined the legal effects of a traditional Islamic marriage (nikah) in this country. Whilst it may spark controversy and media attention, the subject is nothing new. Advocates in this area have been trying to raise awareness for years, albeit with differing opinions on what should happen. Should the nikah be automatically recognised as a legal marriage for example, or would it be better to try and raise awareness so people can make an informed choice about whether or not to ensure their marriage is fully recognised?
Having helped many women who were unaware their religious marriages weren’t valid under English law, the lack of awareness and the confusion is apparent. Many websites still in fact refer to the nikahas legal. Yet the consequences, both emotionally and financially, can be devastating when it transpires upon separation that this isn’t in fact the case. For the marriage to be legally recognised, it is necessary for it to be registered. There are many issues to explore, but this blog is focused on what to do if your marriage ends without registration.
What is sometimes overlooked is the mahr. This is the ‘"financial present"which a male will promise the woman for the nikah. As this is effectively a contract, it may be worth seeking advice on any potential civil claim if these funds are outstanding and are substantial enough to justify pursuing.
Not married? What are your options upon separation?
In the absence of a legally recognised marriage, parties have the same rights as the increasing number of couples who choose to cohabit rather than marry. In this situation, the relationship has no legal status and it can be difficult to claim a share in the family home or other assets. In contrast, if you are married you will have access to a financial settlement through the family courts. These permit a fair division of the matrimonial assets and try to ensure needs are met: in particular the needs of any children of the marriage.
However, what concerns many is the fear factor which can discourage some people in unrecognised marriages from even trying to pursue a claim. Whilst the law hasn’t caught up and the possibilities are limited, there are some options. The Guardian recently commented that in the absence of a registered marriage people are “unable to go to court for a division of the family home and spouse’s pension”. Whilst this is true in relation to any claims on pensions, it is not always true with regard to the family home. It is essential that people know some options are open to them, albeit much more limited ones than if they had been married for a long period of time. Legal advice should always be sought before concluding you are ‘unable’ to do anything.
It is possible in some cases to bring a civil claim for an interest in a property, usually the family home. Channel 4 does raise this, but also discusses a case which took five years and cost more than £100,000. It is essential this doesn’t scare people or prevent them from seeking legal advice. For a case to last that long or cost that much is rare: most are resolved much more quickly and cheaply. A family lawyer can advise on your individual case and provide an initial assessment of its strengths and likely costs. This advice should always be sought before walking away, if you think have a claim of any kind.
There are other possibilities too which you can discuss with your solicitor.
How to protect yourself
A number of legal measures can help to protect your interests if you are or were not in a legally recognized marriage. These include:
A cohabitation agreement
A declaration of trust
Making a will
The essential factor is knowledge and the resulting ability to make the best informed decision for your circumstances, within the remit of the law. To be sure, always seek advice.
A number of lawyers have called for change in this field and I hope we’ll see improvements with time. But, until then, be sure to explore those things you can do.
A recent documentary on Channel 4 examined the legal effects of a traditional Islamic marriage (nikah) in this country. Whilst it may spark controversy and media attention, the subject is nothing new. Advocates in this area have been trying to raise awareness for years, albeit with differing opinions on what should happen. Should the nikah be automatically recognised as a legal marriage for example, or would it be better to try and raise awareness so people can make an informed choice about whether or not to ensure their marriage is fully recognised?
Having helped many women who were unaware their religious marriages weren’t valid under English law, the lack of awareness and the confusion is apparent. Many websites still in fact refer to the nikahas legal. Yet the consequences, both emotionally and financially, can be devastating when it transpires upon separation that this isn’t in fact the case. For the marriage to be legally recognised, it is necessary for it to be registered. There are many issues to explore, but this blog is focused on what to do if your marriage ends without registration.
What is sometimes overlooked is the mahr. This is the ‘"financial present"which a male will promise the woman for the nikah. As this is effectively a contract, it may be worth seeking advice on any potential civil claim if these funds are outstanding and are substantial enough to justify pursuing.
Not married? What are your options upon separation?
In the absence of a legally recognised marriage, parties have the same rights as the increasing number of couples who choose to cohabit rather than marry. In this situation, the relationship has no legal status and it can be difficult to claim a share in the family home or other assets. In contrast, if you are married you will have access to a financial settlement through the family courts. These permit a fair division of the matrimonial assets and try to ensure needs are met: in particular the needs of any children of the marriage.
However, what concerns many is the fear factor which can discourage some people in unrecognised marriages from even trying to pursue a claim. Whilst the law hasn’t caught up and the possibilities are limited, there are some options. The Guardian recently commented that in the absence of a registered marriage people are “unable to go to court for a division of the family home and spouse’s pension”. Whilst this is true in relation to any claims on pensions, it is not always true with regard to the family home. It is essential that people know some options are open to them, albeit much more limited ones than if they had been married for a long period of time. Legal advice should always be sought before concluding you are ‘unable’ to do anything.
It is possible in some cases to bring a civil claim for an interest in a property, usually the family home. Channel 4 does raise this, but also discusses a case which took five years and cost more than £100,000. It is essential this doesn’t scare people or prevent them from seeking legal advice. For a case to last that long or cost that much is rare: most are resolved much more quickly and cheaply. A family lawyer can advise on your individual case and provide an initial assessment of its strengths and likely costs. This advice should always be sought before walking away, if you think have a claim of any kind.
There are other possibilities too which you can discuss with your solicitor.
How to protect yourself
A number of legal measures can help to protect your interests if you are or were not in a legally recognized marriage. These include:
A cohabitation agreement
A declaration of trust
Making a will
The essential factor is knowledge and the resulting ability to make the best informed decision for your circumstances, within the remit of the law. To be sure, always seek advice.
A number of lawyers have called for change in this field and I hope we’ll see improvements with time. But, until then, be sure to explore those things you can do.
Monday, 6 November 2017
Divorced women miss out on £5bn in pensions
Divorced women in the UK could be missing out on as much as £5 billion in pensions every year.
In a survey of more than 10,000 people, more than half of married people said they would fight for their fair share of any jointly-owned property in the event of a divorce. More than a third – 36 per cent – said they would also want their combined savings to be shared.
However there is a dramatic shift in attitudes when the question was pensions. Fewer than one in ten said they would seek a fair share in pensions even though the average retirement fund for a married couple is reportedly as much as £132,000.
Men are more likely to be financially prepared for retirement, the poll found, with 59 per cent of them having saved adequately for the future compared to just 52 per cent of women. Among divorced women, this figure is even lower and because they do not intend to claim a fair share of the pension fund, they can end up relying solely on the state.
The survey was conducted by investment and pension firm Scottish Widows. Retirement expert Catherine Stewart claimed that usually “women’s retirement prospects are worse than men’s” as a result of a “persistent gender pay gap, maternity leave and career breaks”.
Divorce only makes this problem worse she insisted, because not only can it “leave people really vulnerable”, the end of a marriage can also lead them to throw “significant sums of money down the drain”.
Stewart said it was important that both “men and women … better understand the legalities around what happens to pension pots during divorce proceedings, as often they are the second largest, if not the largest asset a couple owns”.
In a survey of more than 10,000 people, more than half of married people said they would fight for their fair share of any jointly-owned property in the event of a divorce. More than a third – 36 per cent – said they would also want their combined savings to be shared.
However there is a dramatic shift in attitudes when the question was pensions. Fewer than one in ten said they would seek a fair share in pensions even though the average retirement fund for a married couple is reportedly as much as £132,000.
Men are more likely to be financially prepared for retirement, the poll found, with 59 per cent of them having saved adequately for the future compared to just 52 per cent of women. Among divorced women, this figure is even lower and because they do not intend to claim a fair share of the pension fund, they can end up relying solely on the state.
The survey was conducted by investment and pension firm Scottish Widows. Retirement expert Catherine Stewart claimed that usually “women’s retirement prospects are worse than men’s” as a result of a “persistent gender pay gap, maternity leave and career breaks”.
Divorce only makes this problem worse she insisted, because not only can it “leave people really vulnerable”, the end of a marriage can also lead them to throw “significant sums of money down the drain”.
Stewart said it was important that both “men and women … better understand the legalities around what happens to pension pots during divorce proceedings, as often they are the second largest, if not the largest asset a couple owns”.
Monday, 30 October 2017
Government update on legal aid review imminent
The government is expected to make an announcement on its long-awaited review of its controversial legal aid reforms this afternoon.
The government has promised a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) by April 2018. The act, which came into force in April 2013, removed vast swaths of law from the scope of legal aid.
The then justice minister Sir Oliver Heald QC told an all-party parliamentary group on legal aid in January that the government had set the ball rolling. Last month, justice minister Dominic Raab told MPs that he was 'currently considering' the planned post-implementation review and he would be making an announcement 'in due course'.
The government has come under increasing pressure from MPs to ensure it conducts a thorough review of the act. An early day motion on the cuts attracted 82 signatures from MPs in the Labour, Liberal Democrats, Green, Plaid Cymru and Conservative parties.
The legal aid motions's primary sponsor is Green Party MP Caroline Lucas. Co-sponsors are Labour MPs Karen Buck and Andy Slaughter, Liberal Democrat MP Ed Davey, Plaid Cymru MP Liz Saville Roberts and Conservative MP Peter Bottomley.
Lord Bach, chair of the Bach Commission's report on access to justice, which was published last month, has called for cross party consensus on the issue. Senior Conservative politicians, including solicitor-general Robert Buckland, have already indicated that they are ready to support a rethink on legal aid policy.
For more information click here
Tuesday, 24 October 2017
Valuing pension rights on divorce
A recent article from Family Law, gives us food for thought.
The basis of valuation of the pension rights of a member (whether active or deferred) of an occupational pension scheme will be the ‘cash equivalent’, ie the ‘transfer value’ of the rights. The Trustees of the pension scheme are required to provide a transfer value to members who request them. The transfer value is an actuarially derived capital sum, which is normally computed when an individual transfers from one pension scheme to another. The capital sum is that which will fund the post-retirement pension benefits which have accumulated as a result of the transferring member’s service and/or contributions at the time of transfer. There are, however, various methods of calculating transfer values.
Many occupational schemes include widow’s pensions as a benefit in addition to a retirement pension for the husband. ‘At a Glance’, published by the Family Law Bar Association, provides a methodology for calculating the present value of a widow’s pension but this does not take into account the benefit which a divorcing wife might expect to have enjoyed from her husband’s pension during her husband’s retirement. It is possible that in some circumstances the capital sum which is required to compensate a divorcing wife for the loss of both this benefit and her widow’s pension may be more than 50% of the current transfer value of the husband’s pension, and forensic accountancy assistance may be needed in such cases.
Personal pensions
The self-employed and employees who are not eligible to join ‘defined benefit’ schemes may make provision for their retirement through personal pension plans, in which they contribute to funds which are normally managed by pension providers such as insurance companies. In these schemes, the level of benefits depends on the accumulated value of the contributions (net of charges levied by the product provider) which have been paid in by the scheme member, and, as appropriate, the scheme member’s employer.
As in the case of pension rights under occupational schemes, the use of transfer values is appropriate as the basis of valuation.
An important difference between ‘defined benefit’ pension schemes and personal pensions is that whereas contributions to the former are usually relatively fixed (subject to the actuarial valuation of the fund) at a pre-determined percentage of gross salary (albeit with opportunities for the member to make additional voluntary contributions), contributions to personal pension plans and ‘stakeholder’ pension schemes are at the member’s discretion. It is not unknown for a party to anticipate a divorce by reducing contributions to his or her pension plan, thus reducing the transfer value of the fund. In such cases, the actual use and destination of the funds which would otherwise have been contributed to the pension plan will need to be ascertained by forensic accountants.
Dealing with pension rights after valuation
The options in broad terms for most couples are: (i) to offset the value of pension rights against other assets in a settlement, eg one party retains the pension rights but the other party takes a greater share of the equity in the family home; or (ii) to divide the pension rights, either by ‘earmarking’ or pension sharing.
‘Earmarking’ has been possible since July 1996. This allows a pension attachment order to be made now against pension income arising on retirement. The court may also order that part of any lump sum arising should be paid on retirement. Earmarking is not, however, a ‘clean break’ in relation to pension rights since a proportion of one party’s benefits is in effect attached to the other party after retirement.
The basis of valuation of the pension rights of a member (whether active or deferred) of an occupational pension scheme will be the ‘cash equivalent’, ie the ‘transfer value’ of the rights. The Trustees of the pension scheme are required to provide a transfer value to members who request them. The transfer value is an actuarially derived capital sum, which is normally computed when an individual transfers from one pension scheme to another. The capital sum is that which will fund the post-retirement pension benefits which have accumulated as a result of the transferring member’s service and/or contributions at the time of transfer. There are, however, various methods of calculating transfer values.
Many occupational schemes include widow’s pensions as a benefit in addition to a retirement pension for the husband. ‘At a Glance’, published by the Family Law Bar Association, provides a methodology for calculating the present value of a widow’s pension but this does not take into account the benefit which a divorcing wife might expect to have enjoyed from her husband’s pension during her husband’s retirement. It is possible that in some circumstances the capital sum which is required to compensate a divorcing wife for the loss of both this benefit and her widow’s pension may be more than 50% of the current transfer value of the husband’s pension, and forensic accountancy assistance may be needed in such cases.
Personal pensions
The self-employed and employees who are not eligible to join ‘defined benefit’ schemes may make provision for their retirement through personal pension plans, in which they contribute to funds which are normally managed by pension providers such as insurance companies. In these schemes, the level of benefits depends on the accumulated value of the contributions (net of charges levied by the product provider) which have been paid in by the scheme member, and, as appropriate, the scheme member’s employer.
As in the case of pension rights under occupational schemes, the use of transfer values is appropriate as the basis of valuation.
An important difference between ‘defined benefit’ pension schemes and personal pensions is that whereas contributions to the former are usually relatively fixed (subject to the actuarial valuation of the fund) at a pre-determined percentage of gross salary (albeit with opportunities for the member to make additional voluntary contributions), contributions to personal pension plans and ‘stakeholder’ pension schemes are at the member’s discretion. It is not unknown for a party to anticipate a divorce by reducing contributions to his or her pension plan, thus reducing the transfer value of the fund. In such cases, the actual use and destination of the funds which would otherwise have been contributed to the pension plan will need to be ascertained by forensic accountants.
Dealing with pension rights after valuation
The options in broad terms for most couples are: (i) to offset the value of pension rights against other assets in a settlement, eg one party retains the pension rights but the other party takes a greater share of the equity in the family home; or (ii) to divide the pension rights, either by ‘earmarking’ or pension sharing.
‘Earmarking’ has been possible since July 1996. This allows a pension attachment order to be made now against pension income arising on retirement. The court may also order that part of any lump sum arising should be paid on retirement. Earmarking is not, however, a ‘clean break’ in relation to pension rights since a proportion of one party’s benefits is in effect attached to the other party after retirement.
Pension sharing was introduced by the Welfare Reform and Pensions Act 1999 and gives parties on divorce or on the dissolution of a civil partnership retirement benefits in their own right, as opposed to rights over one party’s pension income. However, despite pension sharing having been possible for more than 16 years, it appears that pension sharing orders represent only a small proportion of ‘financial remedy orders’. For instance, Family Court statistics for the quarter from January 2017 to March 2017 show that pension sharing orders represented only 14% of total ‘financial remedy disposals’. However, the lack of popularity of pension sharing should not obscure the fact that it may often be worth exploring, particularly if one party has an occupational pension and the other has no pension provision, and the couple’s only substantial assets are pension rights and the family home.
Conclusion
This is a complex subject and the above discussion is merely an overview of the way in which the problem of valuing a future stream of income may be tackled. It is clear that in many of these cases a forensic accountant who understands the issues could be of considerable assistance.
For more information click here
Monday, 25 September 2017
Bach Commission recommends bringing range of family law cases back into civil legal aid
Commission advocates a new Right to Justice Act
In its final report the Bach Commission, which is supported by the Labour Party leadership and the Fabian Society, calls on the government and other political parties to ensure minimum standards on access to justice are upheld through a new Right to Justice Act. The report will form part of the Labour Party's policy review.
The Commission, which has heard from more than 100 individuals and organisations over the past two years, has found that that cuts to legal aid have created a two-tier justice system where the poorest go without representation or advice.
The proposed Right to Justice Act will:
The Commission, which has heard from more than 100 individuals and organisations over the past two years, has found that that cuts to legal aid have created a two-tier justice system where the poorest go without representation or advice.
The proposed Right to Justice Act will:
- Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford
- Establish a set of principles that guide interpretation of this new right
- Establish a new body called the Justice Commission to monitor and enforce this new right.
To make the act a reality, the commission also sets out an immediate action plan for the government to: widen the scope of legal aid, with a focus on early legal help; reform the eligibility requirements for legal aid; replace the Legal Aid Agency with an independent body; and improve the public's understanding of the law.
In respect of family law, the Commission recommends:
In respect of family law, the Commission recommends:
- The government restores legal aid for early legal help to pre-LASPO levels for all social welfare law and family law.
- All matters concerning legal support for children should be brought back within the scope of civil legal aid.
- Family law cases with the following characteristics should brought back into the scope of civil legal aid, with respect to representation in court:
a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute)
b) cases involving an application to remove a child from the jurisdiction
c) cases where there is local authority involvement in private law children proceedings
d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it
e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute
f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.
b) cases involving an application to remove a child from the jurisdiction
c) cases where there is local authority involvement in private law children proceedings
d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it
e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute
f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.
- The exceptional case funding scheme has manifestly failed, and needs urgent review and reform.
- To read the report click here
Monday, 18 September 2017
CPS to issue first-ever guidance for prosecutors on handling male victims of sexual and domestic abuse
Olivia Rudgard, social affairs correspondent at The Telegraph informs us that there is now
guidance for dealing with male victims of abuse will be sent to prosecutors for the first time as the CPS says they need specific protection in the same way as LGBT and black and ethnic minority people.
Previously there had been no specialised guidance for prosecutors on dealing with male victims of crimes such as rape, sexual abuse and domestic violence.
Prosecutors hope the new documents will tackle attitudes which stop men coming forward for fear that they will be ignored and have their masculinity ridiculed.
While it says men have always been given equal footing with other victims, the document is the first time the CPS has directly addressed their issues.
It plans to update case studies and guidance to challenge myths and stereotypes and include the details of services which provide support for male victims.
Prosecutors will be sent information about the different issues faced by male victims, including the fact that boys are more likely to be sexually abused by "authority figures", while girls are more likely to be targeted by family members.
Boys who have experienced childhood abuse also tend to come forward at a younger average age of 13, compared to 16 for girls.
Forced-marriage and honour-based violence affects men too, the guidance will add, as they can be blamed for the behaviour of women or for not being masculine enough.
A spokesman said the CPS had "previously looked to develop guidance and information on issues
such as teenage relationship abuse, same sex abuse and older victim abuse.
For more information click here
guidance for dealing with male victims of abuse will be sent to prosecutors for the first time as the CPS says they need specific protection in the same way as LGBT and black and ethnic minority people.
Previously there had been no specialised guidance for prosecutors on dealing with male victims of crimes such as rape, sexual abuse and domestic violence.
Prosecutors hope the new documents will tackle attitudes which stop men coming forward for fear that they will be ignored and have their masculinity ridiculed.
While it says men have always been given equal footing with other victims, the document is the first time the CPS has directly addressed their issues.
It plans to update case studies and guidance to challenge myths and stereotypes and include the details of services which provide support for male victims.
Prosecutors will be sent information about the different issues faced by male victims, including the fact that boys are more likely to be sexually abused by "authority figures", while girls are more likely to be targeted by family members.
Boys who have experienced childhood abuse also tend to come forward at a younger average age of 13, compared to 16 for girls.
Forced-marriage and honour-based violence affects men too, the guidance will add, as they can be blamed for the behaviour of women or for not being masculine enough.
A spokesman said the CPS had "previously looked to develop guidance and information on issues
such as teenage relationship abuse, same sex abuse and older victim abuse.
For more information click here
Tuesday, 12 September 2017
Increase in care cases has created a crisis, agrees Lord Chief Justice
Lord Thomas’s final report reviews family court developments over last year
In his final annual report as Lord Chief Justice, Lord Thomas has agreed with the President of the Family Division, Sir James Munby, that the increase in care cases at a time of static judicial resources has created a crisis. In Section 6 of his report, devoted to family justice, he notes that between January and November 2016, the year-on-year increase in care cases averaged 20% on top of a similar scale of increase in 2015. Whilst the beginning of 2017 saw the rate of increase slowing, the trend is still upwards. There were 5,051 new public law applications in January to March 2017, up 5% on the equivalent quarter in 2016. Average case duration is beginning to move up again after a long and sustained fall, it now stands at 28 weeks after several quarters hovering around 27 weeks.
The Lord Chief Justice notes the leading role taken by the judiciary in seeking means of controlling the rise in public law cases through the pilot of settlement conferences and its support of other initiatives such as PAUSE, currently being piloted by LIFT which seek to tackle the problems which drive families into public law proceedings.
Lord Thomas states that an amended Practice Direction 12J is expected to come into force during this month.
He also notes that a protocol is currently being developed to promote closer co-operation between the judges of the Family Courts of England and Wales and their colleagues in Scotland. The protocol will cover a number of issues of mutual interest including how to approach care cases with a cross-jurisdictional element. It is hoped that, in time, the provisions of the protocol will be further developed and extended to support co-operation on care cases across the whole of the UK.
For more information click here
Monday, 4 September 2017
Can I buy a house for my mum to live in rent-free?
An article in today's Guardian caught my eye, there are so many of us who would like to help their relatives, but (understandably) are unsure about whose advice to follow. It reads:-
Q My mum is 52 and lives on her own on a low income in the north of England. I rent and work in London and am fortunate enough to be on a fairly good income. My mum, however, is struggling, so two years ago I started covering her mortgage payments. She has approximately £90,000 equity in her home and an outstanding mortgage of £50,000. She earns only £18,000 a year.
Given that I am already covering the mortgage payments I am considering buying the house and letting her live in it rent free. The benefit being that she can then release the equity and pay off her credit cards and enjoy some of her hard-earned money.
Should we buy as joint tenants or tenants in common?
I live in a rented flat and don’t currently have a mortgage, so this would be my first mortgage. I have no immediate plans to buy a place for myself, although may consider buying in or around London with my partner in a few years.
I would really love to remove the financial burden from my mum, knowing she could then have a nest egg to enjoy.
I have been speaking to a financial adviser who has advised me that I cannot purchase mum’s house and let her live in it as I won’t be living there myself, and that I can’t get a buy-to-let mortgage as she is a close relative. But otherwise he hasn’t been very helpful and I’m not sure whether he is giving me sound advice.
I have been doing my own research but information is very hard to understand and I read conflicting things.
A Your financial adviser is right to say you can’t take out a residential mortgage for a property in which you won’t be living. He is also right – up to a point – that you can’t take out a conventional buy-to-let mortgage because you would be letting to a close relative.
But according to independent mortgage adviser Niche Advice, if you were already a homeowner it might be possible to take out what is referred to as a regulated or consumer buy-to-let mortgage. These allow applications for such mortgages to be assessed according to the same strict affordability rules set by the Financial Conduct Authority (FCA) for residential mortgages if the property is to be let to a close relative.
The FCA defines “close relative” as a spouse, civil partner, mother, father, brother, sister, child, grandparent or grandchild. (So in theory you could take out a standard buy-to-let mortgage if you planned to let to a cousin, uncle, aunt, nephew or niece.)
Should I renegotiate my offer price after survey points to problems?
With standard buy-to-let mortgages taken out purely for business purposes, which are not regulated by the FCA, applications can be assessed by looking at rental income alone. Typically, if you have a sufficiently large deposit and the rent can cover the mortgage repayment by 125% your application will be accepted.
According to Niche Advice, however, the “key driver” of the two lenders that offer regulated buy-to-let mortgage is applicants’ affordability rather than rental income, and they are likely to insist the mortgage is repayment rather than interest-only, in line with the rules for residential mortgages.
In addition, to be eligible for a regulated buy-to-let mortgage Niche Advice says the key criteria are:
• a minimum income of £25,000 excluding state pension and other benefits
• a deposit of 40%, all of which must come from you
• you must be an owner-occupier rather than renting yourself
• an ability to cover the buy-to-let mortgage out of earned income
• rental coverage of 125% of the mortgage payment.
Given these criteria, it seems unlikely that a regulated buy-to-let mortgage is an option for
you to buy your mother’s home. There may be a small silver lining in that cloud in that, if you
were able to take out a mortgage to buy your mother’s home and something happened to you that
meant you were unable to keep up repayments on it, you mother could be made homeless if the
property had to be sold.
For the full article click here
Q My mum is 52 and lives on her own on a low income in the north of England. I rent and work in London and am fortunate enough to be on a fairly good income. My mum, however, is struggling, so two years ago I started covering her mortgage payments. She has approximately £90,000 equity in her home and an outstanding mortgage of £50,000. She earns only £18,000 a year.
Given that I am already covering the mortgage payments I am considering buying the house and letting her live in it rent free. The benefit being that she can then release the equity and pay off her credit cards and enjoy some of her hard-earned money.
Should we buy as joint tenants or tenants in common?
I live in a rented flat and don’t currently have a mortgage, so this would be my first mortgage. I have no immediate plans to buy a place for myself, although may consider buying in or around London with my partner in a few years.
I would really love to remove the financial burden from my mum, knowing she could then have a nest egg to enjoy.
I have been speaking to a financial adviser who has advised me that I cannot purchase mum’s house and let her live in it as I won’t be living there myself, and that I can’t get a buy-to-let mortgage as she is a close relative. But otherwise he hasn’t been very helpful and I’m not sure whether he is giving me sound advice.
I have been doing my own research but information is very hard to understand and I read conflicting things.
A Your financial adviser is right to say you can’t take out a residential mortgage for a property in which you won’t be living. He is also right – up to a point – that you can’t take out a conventional buy-to-let mortgage because you would be letting to a close relative.
But according to independent mortgage adviser Niche Advice, if you were already a homeowner it might be possible to take out what is referred to as a regulated or consumer buy-to-let mortgage. These allow applications for such mortgages to be assessed according to the same strict affordability rules set by the Financial Conduct Authority (FCA) for residential mortgages if the property is to be let to a close relative.
The FCA defines “close relative” as a spouse, civil partner, mother, father, brother, sister, child, grandparent or grandchild. (So in theory you could take out a standard buy-to-let mortgage if you planned to let to a cousin, uncle, aunt, nephew or niece.)
Should I renegotiate my offer price after survey points to problems?
With standard buy-to-let mortgages taken out purely for business purposes, which are not regulated by the FCA, applications can be assessed by looking at rental income alone. Typically, if you have a sufficiently large deposit and the rent can cover the mortgage repayment by 125% your application will be accepted.
According to Niche Advice, however, the “key driver” of the two lenders that offer regulated buy-to-let mortgage is applicants’ affordability rather than rental income, and they are likely to insist the mortgage is repayment rather than interest-only, in line with the rules for residential mortgages.
In addition, to be eligible for a regulated buy-to-let mortgage Niche Advice says the key criteria are:
• a minimum income of £25,000 excluding state pension and other benefits
• a deposit of 40%, all of which must come from you
• you must be an owner-occupier rather than renting yourself
• an ability to cover the buy-to-let mortgage out of earned income
• rental coverage of 125% of the mortgage payment.
Given these criteria, it seems unlikely that a regulated buy-to-let mortgage is an option for
you to buy your mother’s home. There may be a small silver lining in that cloud in that, if you
were able to take out a mortgage to buy your mother’s home and something happened to you that
meant you were unable to keep up repayments on it, you mother could be made homeless if the
property had to be sold.
For the full article click here
Wednesday, 16 August 2017
DIY divorce form could lead to more adultery accusations, lawyers warn
A new "DIY" divorce form designed to speed up the process could lead to thousands more people being accused of adultery, lawyers warn.
The new form, which was introduced on Monday, prominently includes a dedicated section for a petitioner to fill in the details of "the person your partner committed adultery with".
Anyone named on the form becomes party to the case and receives a letter letting them know why - leading to the possibility that many more people could receive documents telling them they have been accused of adultery.
Applicants do not have to name the person they believe tempted their partner to stray - but experts are concerned that many more could fill in the section either through misunderstanding or deliberately, to get back at their former partner
.Laura Guillon, an associate at law firm Hall Brown, said: "The idea is to try and make the process more user-friendly, because the court is inundated with people representing themselves.
"Without the benefit of advice we could get more people naming co-respondents, because they don't understand that they don't have to."
Previously the section for their name and address was at the bottom of the form in a section called "service details".
The term "adultery" was not used in this section, which instead described the person only as a "co-respondent".
Nigel Shepherd, chairman of family law group Resolution, said clients sometimes had to be "talked out of" naming their partner's new girlfriend or boyfriend.
"Sometimes people say 'I'd like to name her - it's her fault, or his fault'", he said.
The new paperwork is meant to make divorce an easier process for the rising number of people who do not hire a lawyer to manage it for them.
According to the most recent figures adultery was cited as the reason in 12,148 divorce cases in 2015.
Figures show that one in three petitions for divorce is now filed without legal advice, meaning thousands of people will be filling out the forms without guidance.
Previously the form included arcane legal language and references to statute but it is now set out more clearly with guidance for applicants.
It also contains more questions which can be answered through tick-boxes.
Experts say it is a step towards “digital divorce” which will eventually see couples able to manage the process entirely through filling in online forms.
But the change could also lead to legal and administrative delays as those who have been accused of tempting a married person to stray protest their innocence, causing an increase in "defended" divorces.
Rosie Schumm, partner in family law at law firm Forsters, said the section could have been written with "more thought" to avoid the issue.
"I think when people are filling this form out on automatic pilot that may mean that they are putting in more details than they used to," she said.
But, she added, the form brought other benefits, including an option for a petitioner to ask that their address be hidden from their former partner, which will help victims of domestic abuse who do not want to disclose where they are.
Mr Shepherd said Resolution would “petition quite strongly for change” if there was an increase in adultery accusations as a result of the new form, which he said was otherwise simpler and easier to use.
A Ministry of Justice spokesman said: “It has always been possible for a petitioner to name the person they believe their spouse has committed adultery with on divorce application forms.
“As set out in the previous form, and more clearly in the new form, there is obviously no obligation to do so. This is a relevant part of divorce proceedings."
For more information click here
The new form, which was introduced on Monday, prominently includes a dedicated section for a petitioner to fill in the details of "the person your partner committed adultery with".
Anyone named on the form becomes party to the case and receives a letter letting them know why - leading to the possibility that many more people could receive documents telling them they have been accused of adultery.
Applicants do not have to name the person they believe tempted their partner to stray - but experts are concerned that many more could fill in the section either through misunderstanding or deliberately, to get back at their former partner
.Laura Guillon, an associate at law firm Hall Brown, said: "The idea is to try and make the process more user-friendly, because the court is inundated with people representing themselves.
"Without the benefit of advice we could get more people naming co-respondents, because they don't understand that they don't have to."
Previously the section for their name and address was at the bottom of the form in a section called "service details".
The term "adultery" was not used in this section, which instead described the person only as a "co-respondent".
Nigel Shepherd, chairman of family law group Resolution, said clients sometimes had to be "talked out of" naming their partner's new girlfriend or boyfriend.
"Sometimes people say 'I'd like to name her - it's her fault, or his fault'", he said.
The new paperwork is meant to make divorce an easier process for the rising number of people who do not hire a lawyer to manage it for them.
According to the most recent figures adultery was cited as the reason in 12,148 divorce cases in 2015.
Figures show that one in three petitions for divorce is now filed without legal advice, meaning thousands of people will be filling out the forms without guidance.
Previously the form included arcane legal language and references to statute but it is now set out more clearly with guidance for applicants.
It also contains more questions which can be answered through tick-boxes.
Experts say it is a step towards “digital divorce” which will eventually see couples able to manage the process entirely through filling in online forms.
But the change could also lead to legal and administrative delays as those who have been accused of tempting a married person to stray protest their innocence, causing an increase in "defended" divorces.
Rosie Schumm, partner in family law at law firm Forsters, said the section could have been written with "more thought" to avoid the issue.
"I think when people are filling this form out on automatic pilot that may mean that they are putting in more details than they used to," she said.
But, she added, the form brought other benefits, including an option for a petitioner to ask that their address be hidden from their former partner, which will help victims of domestic abuse who do not want to disclose where they are.
Mr Shepherd said Resolution would “petition quite strongly for change” if there was an increase in adultery accusations as a result of the new form, which he said was otherwise simpler and easier to use.
A Ministry of Justice spokesman said: “It has always been possible for a petitioner to name the person they believe their spouse has committed adultery with on divorce application forms.
“As set out in the previous form, and more clearly in the new form, there is obviously no obligation to do so. This is a relevant part of divorce proceedings."
For more information click here
Friday, 28 July 2017
Tribunal Fees in the Supreme Court:
In perhaps the most important judgment in employment law of the last fifty years, a seven-person Supreme Court has found that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (Fees Order) prevents access to justice and is unlawful.
The immediate consequence is that the Fees Order is quashed, so that as of today fees cease to be payable for claims in the employment tribunal (ET) and appeals to the EAT, and fees paid in the past must be reimbursed. But the judgment is of much wider constitutional significance, underlining the high degree of protection given to access to justice by the common law and clarifying the principles which will be used to scrutinise impediments to that fundamental constitutional right.
The lawfulness of the Fees Order was challenged by UNISON, supported by the interveners, the Equality and Human Rights Commission. UNISON lost in two Divisional Court hearings below, and in the Court of Appeal.
Lord Reed gave the principal judgment with which all other SCJs agree. He first outlined the operation of the Fees Order and empirical evidence relevant to its effect – including the low level of most ET awards, the poor record of enforcement, and the dramatic impact of the Fees Order on the number of claims (and especially on low value claims). After noting that the Order had made a much less significant contribution to tribunal costs than expected, had failed to deter unmeritorious claims, and did not appear to have improved the proportion of cases which had settled through ACAS, Lord Reed turned to the issue which lay at the heart of the case – the importance of the constitutional right of access to the courts, as an essential element of the rule of law.
Lord Reed’s analysis is noteworthy in at least two respects: first, because he begins not with Article 6 EHRC but with the common law; second, because he emphasises that unimpeded access to the courts is a benefit to the public and not just to the parties themselves:
“Without [access to the courts], laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not provide a public service like any other”
Contrary to these fundamental principles, the government’s consultation papers had assumed that the justice system was only of value to “users” of the system.
Citing a letter written by a Lord Chancellor “of a previous generation”, Magna Carta, Sir Edward Coke, Blackstone and common law authorities on the rights of every citizen to unimpeded access to the court, Lord Reed concluded that the Fees Order would be unlawful if there was a “real risk” that it would effectively prevent persons from having access to justice. Alternatively, it will be unlawful if the degree of intrusion goes beyond what is justified by the objectives of the relevant provision – a test analogous to the proportionality test under the ECHR.
As to the first principle, Lord Reed concluded that the Fees Order did effectively prevent access to justice. The evidence showed that the fees were not set at a level that everyone could afford. This included: the sharp and sustained drop in the number of claims; the estimate in the recent Review that 10% of claimants did not bring proceedings because they could not afford the fees; and the hypothetical examples presented in evidence by Unison, of how fees impacted on claimants in low to middle incomes. The existence of the exceptional power of remission, which was exercised only about 51 times from July 2015 until December 2016, was no answer to this picture: the problem was systemic.
A number of other factors reinforced this conclusion. The fees were set at a level which rendered it futile or irrational to bring smaller claims. For example, no sensible person would pay a fee of £390 to bring a claim of £500 unless he was virtually certain to succeed, that he would be reimbursed his fees and that the award would be satisfied in full. But success can rarely be guaranteed, and only half of successful claimants receive payment in full. Little wonder that the statistics show that fees deter especially claims for low sums.
Turning to the second principle, Lord Reed concluded that it too was breached: fees were not justified as a necessary intrusion on the right of access to courts. The Government had not produced evidence to show why the fees had been set at the level they had, and had falsely assumed that the higher the fee, the higher the revenue (an assumption which contradicted “elementary economics and plain common sense” because the optimal price depends on the elasticity of demand). Nor had the Government shown that fees met the other objectives for their introduction, such as deterring weak claims. Finally, the Government had also failed to consider the public benefits flowing from the enforcement of rights conferred by Parliament.
Lord Reed supported his analysis of the common law by reference to the EU principles of effectiveness and effective judicial protection, and the case-law on Article 6 ECHR. These two jurisdictions now chime together, and require that any restriction on access to the courts must pursue a legitimate aim and be proportionate to the aim. Here, the Court of Appeal erred in assuming that the only question was whether it was impossible to pay fees in practice. Rather, the Strasbourg case-law showed that other factors were relevant to proportionality, including whether fees were proportionate to the sums at stake. In light of his conclusions based on the common law, Lord Reed considered that the Fees Order also imposed disproportionate restrictions for the purpose of EU law.
It followed, according to Lord Reed, that the Fees Order was unlawful under both domestic and EU law, and “since it had that effect as soon as it was made, it was therefore unlawful ab initio and must be quashed”.
Agreeing with Lord Reed’s analysis of the right of access to a court, Lady Hale also held that the Fees Order was indirectly discriminatory against those with a protected characteristic. The parties accepted that the Fees Order had a disparate impact upon women, so that the question was whether it was justified as a proportionate means of achieving a legitimate aim. Lady Hale, relying on similar reasoning to Lord Reed held that the treatment was not justified.
The short-term consequences of the judgment are that with immediate effect fees are no longer payable for claims before the ET or appeals to the EAT and, in accordance with an undertaking given by the Lord Chancellor to the courts below, all fees which were paid in the past must be reimbursed. The long-term consequence is that the Supreme Court has given the strongest possible endorsement to the fundamental public importance of access to justice, meaning that future restrictions of all kinds (and not just financial barriers) on access to the courts will be subjected to the closest scrutiny in accordance with the principles set out by Lord Reed.
Michael Ford QC, Mark Whitcombe and Spencer Keen were instructed by the Intervener, the Equality and Human Rights Commission (Rosemary Lloyd and Mike Young)
Read The Guardian's article by clicking here
Ex-wife begs judges to end her 16-year divorce battle with ‘evasive’ airline pilot
The ex-wife of a millionaire pilot who is locked in Britain’s longest divorce battle has pleaded with senior judges to end the “ghastly” 16-year legal fight.
Viki Maughan, 50, and her former partner, Richard Wilmot, 62, have been fighting over money since they split in 2001, with Mr Wilmot claiming that her daughter had been fathered by another man.
Mr Wilmot, an ex-British Airways captain, is “absolutely convinced” he is not the father. He accuses his ex-wife of fabricating evidence to try to extract maintenance payments from him.
Ms Maughan says he needs to “accept reality”. At the Court of Appeal, she asked judges to order Mr Wilmot to honour their 2001 divorce settlement.
Her barrister, Jonathan Swift, told the court: “A significant air of reality needs to descend in this case.” He said his client has a “sincere wish that this court should dispose of this matter with as many restraining directions as possible, so it may never be resurrected again”.
Lady Justice Black, Lord Justice Sales and Lord Justice Moylan heard the couple lived in an £800,000 country home, Hartley Oast, in Cranbrook, Kent, before they split in the late Nineties.
Mr Wilmot, who flies for Turkish Airlines, has remarried and lives in an £800,000 country house in Alcombe, Somerset. He also has a £500,000 18th-century listed house in Dunster, Somerset, and a property in Kirk Michael on the Isle of Man, the court heard.
He argues that £390,000 he has paid to Ms Maughan since their divorce was “obtained by fraud”, claiming that a 2000 DNA test — which concluded he was the father — is invalid and that the child’s birth certificate was a forgery.
He has now gone to the Appeal Court, asking the judges to block Ms Maughan’s claims for more money under the 2001 settlement. As well as not paying maintenance, he has also been accused by Ms Vaughan of being “evasive” and trying to dodge court papers.
esterday, he said he had not properly received court documents by email as he could only access “slow internet” abroad. Nicholas Bowen QC, for Mr Wilmot, said: “He only comes back to the UK for a few weekends a year. He is based in the air, all over the world.”
He did not want to receive documents at his Somerset home because he “didn’t want to be pursued by this ghastly case” and sought to protect his new wife “from the wreckage of the past”.
“He therefore told his wife that if anything turns up at Alcombe, just send it back,” said Mr Bowen.
At an earlier hearing, a judge told Mr Wilmot that the case “could bankrupt you”, as he could face years of maintenance back payments as well as a hefty costs bill if he lost. The Appeal Court judges have reserved their decision on Mr Wilmot’s appeal until a later date.
Viki Maughan, 50, and her former partner, Richard Wilmot, 62, have been fighting over money since they split in 2001, with Mr Wilmot claiming that her daughter had been fathered by another man.
Mr Wilmot, an ex-British Airways captain, is “absolutely convinced” he is not the father. He accuses his ex-wife of fabricating evidence to try to extract maintenance payments from him.
Ms Maughan says he needs to “accept reality”. At the Court of Appeal, she asked judges to order Mr Wilmot to honour their 2001 divorce settlement.
Her barrister, Jonathan Swift, told the court: “A significant air of reality needs to descend in this case.” He said his client has a “sincere wish that this court should dispose of this matter with as many restraining directions as possible, so it may never be resurrected again”.
Lady Justice Black, Lord Justice Sales and Lord Justice Moylan heard the couple lived in an £800,000 country home, Hartley Oast, in Cranbrook, Kent, before they split in the late Nineties.
Mr Wilmot, who flies for Turkish Airlines, has remarried and lives in an £800,000 country house in Alcombe, Somerset. He also has a £500,000 18th-century listed house in Dunster, Somerset, and a property in Kirk Michael on the Isle of Man, the court heard.
He argues that £390,000 he has paid to Ms Maughan since their divorce was “obtained by fraud”, claiming that a 2000 DNA test — which concluded he was the father — is invalid and that the child’s birth certificate was a forgery.
He has now gone to the Appeal Court, asking the judges to block Ms Maughan’s claims for more money under the 2001 settlement. As well as not paying maintenance, he has also been accused by Ms Vaughan of being “evasive” and trying to dodge court papers.
esterday, he said he had not properly received court documents by email as he could only access “slow internet” abroad. Nicholas Bowen QC, for Mr Wilmot, said: “He only comes back to the UK for a few weekends a year. He is based in the air, all over the world.”
He did not want to receive documents at his Somerset home because he “didn’t want to be pursued by this ghastly case” and sought to protect his new wife “from the wreckage of the past”.
“He therefore told his wife that if anything turns up at Alcombe, just send it back,” said Mr Bowen.
At an earlier hearing, a judge told Mr Wilmot that the case “could bankrupt you”, as he could face years of maintenance back payments as well as a hefty costs bill if he lost. The Appeal Court judges have reserved their decision on Mr Wilmot’s appeal until a later date.
Tuesday, 18 July 2017
Outdated law of wills ‘needs overhaul’ to reflect modern world
The outdated law of wills needs an overhaul according to the Law Commission.
The independent body say that Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their possessions after their death.
The Law Commission says that an estimated 40 per cent of adults die intestate each year and it is thought that the laws could be discouraging people from making a will.
As a result, the Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.
The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.
In a new consultation paper, the Law Commission proposes:
The independent body say that Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their possessions after their death.
The Law Commission says that an estimated 40 per cent of adults die intestate each year and it is thought that the laws could be discouraging people from making a will.
As a result, the Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.
The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.
In a new consultation paper, the Law Commission proposes:
- Giving the court power to recognise a will in cases where the formality rules have not been followed but the will-maker has made clear their intentions.
- An overhaul of the rules protecting those making a will from being unduly influenced by another person.
- Applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will.
- Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
- Giving the Lord Chancellor power to make provision for electronic wills.
- Lowering the age at which people are able to make a will from 18 to 16 years old.
The paper also asks whether the rule that marriage revokes a will should be retained or abolished.
Law Commissioner Professor Nick Hopkins said:
Law Commissioner Professor Nick Hopkins said:
"Making a will and passing on your possessions after you've died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.
"Even when it's obvious what someone wanted, if they haven't followed the strict rules, courts can't act on it. And conditions which affect decision-making – like dementia – aren't properly accounted for in the law.
"That's not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people's last wishes."
"Even when it's obvious what someone wanted, if they haven't followed the strict rules, courts can't act on it. And conditions which affect decision-making – like dementia – aren't properly accounted for in the law.
"That's not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people's last wishes."
For more information, click here
Monday, 19 June 2017
Financial proceedings to be 'de-linked' from divorce
Monidipa Fouzder of The Law Society writes, divorce and its financial consequences are to be
administratively separated in a move that is expected to save family solicitors weeks of delay.
Financial proceedings will be 'administratively de-linked' from divorce proceedings across courts nationally on 19 June following a
successful pilot, family division president Sir James Munby and HM Courts & Tribunals Service
deputy chief executive Kevin Sadler said, in a letter published today.
The administrative de-linking was piloted at the south west regional divorce centre in
Southampton last month.
Munby and Sadler said that the pilot achieved its aim of introducing a more streamlined process,
reducing by up to two weeks the delays experienced by court users as files are transferred
between courts.
Days before the pilot began, Munby and Sadler told family division liaison judges that the
centralisation of divorce and dissolution proceedings into 11 specialist divorce centres in 2015
had 'shone a spotlight on the way in which related financial applications are dealt with and it
is clear that this process can and should be improved'.
Currently, if a contested financial application is made, the whole proceedings are transferred
to a local court. The pilot administratively de-linked financial proceedings from divorce so that
the main divorce proceedings remained in the specialist centre; staff and judiciary at the local
hearing centres worked independently on the contested financial proceedings. Consent applications
remained at the divorce centres.
A separate financial remedy file, with the same case number as the divorce proceedings, was
created at the local hearing centre. HMCTS staff ensured the dates on any decree nisi or decree
absolute were highlighted on the file.
Munby, in his latest View from the President's Chambers, said the time had come for a 'complete
de-linking' of divorce and money, started and pursued by separate processes. However, he
acknowledged the timeline for ancillary relief would be determined by the progress of the
divorce.
However, Roe warned: 'On a wider note, whilst the president noted in his [latest update] that
only a minority of divorce cases give rise to a money claim, it is important for parties,
particularly litigants in person, to be aware of the implications that there may be by leaving
financial aspects unresolved, without a consent order dismissing potential claims.'
Roe cited the Supreme Court's 2015 decision in Wyatt v Vince, which allowed a former wife to
proceed with her financial remedy application several years after divorce.
Family law group Resolution also welcomed today's news. 'Any steps that reduce delay and make
the administration of family proceedings more efficient must be encouraged. This is just one
example of how quite simple changes can make a difference in practice,' it said.
The latest development does not affect the substantive law relating to divorce or financial
remedy proceedings, Resolution added.
administratively separated in a move that is expected to save family solicitors weeks of delay.
Financial proceedings will be 'administratively de-linked' from divorce proceedings across courts nationally on 19 June following a
successful pilot, family division president Sir James Munby and HM Courts & Tribunals Service
deputy chief executive Kevin Sadler said, in a letter published today.
The administrative de-linking was piloted at the south west regional divorce centre in
Southampton last month.
Munby and Sadler said that the pilot achieved its aim of introducing a more streamlined process,
reducing by up to two weeks the delays experienced by court users as files are transferred
between courts.
Days before the pilot began, Munby and Sadler told family division liaison judges that the
centralisation of divorce and dissolution proceedings into 11 specialist divorce centres in 2015
had 'shone a spotlight on the way in which related financial applications are dealt with and it
is clear that this process can and should be improved'.
Currently, if a contested financial application is made, the whole proceedings are transferred
to a local court. The pilot administratively de-linked financial proceedings from divorce so that
the main divorce proceedings remained in the specialist centre; staff and judiciary at the local
hearing centres worked independently on the contested financial proceedings. Consent applications
remained at the divorce centres.
A separate financial remedy file, with the same case number as the divorce proceedings, was
created at the local hearing centre. HMCTS staff ensured the dates on any decree nisi or decree
absolute were highlighted on the file.
Munby, in his latest View from the President's Chambers, said the time had come for a 'complete
de-linking' of divorce and money, started and pursued by separate processes. However, he
acknowledged the timeline for ancillary relief would be determined by the progress of the
divorce.
However, Roe warned: 'On a wider note, whilst the president noted in his [latest update] that
only a minority of divorce cases give rise to a money claim, it is important for parties,
particularly litigants in person, to be aware of the implications that there may be by leaving
financial aspects unresolved, without a consent order dismissing potential claims.'
Roe cited the Supreme Court's 2015 decision in Wyatt v Vince, which allowed a former wife to
proceed with her financial remedy application several years after divorce.
Family law group Resolution also welcomed today's news. 'Any steps that reduce delay and make
the administration of family proceedings more efficient must be encouraged. This is just one
example of how quite simple changes can make a difference in practice,' it said.
The latest development does not affect the substantive law relating to divorce or financial
remedy proceedings, Resolution added.
For more information click here
Friday, 19 May 2017
Three Girls, a chilling finale put the legal system in the dock
The Telegraph today reviews the final episode of the harrowing story of the Rochade Child Abuse case.
There was no catharsis or closure in the concluding episode of Three Girls, Nicole Taylor’s gripping, damning dramatisation of the Rochdale child grooming scandal. If anything, the sense of injustice reverberated stronger than ever as the final credits revealed whistle-blowing child welfare worker Sara Rowbotham (Maxine Peake) had been quietly scapegoated – and ultimately made redundant – after exposing the authorities’s endemic indifference towards the trafficking of vulnerable teenagers.
Ending on a downtempo note was a courageous gesture from a series that has neither flinched from nor wallowed in the horrors chronicled on screen. A glibber drama would have seized the Hollywood conclusion that beckoned after rape victims Ruby Bowen (Liv Hill) and Holly Winshaw (Molly Windsor) bravely testified by video link regarding their abuse and the accused were duly found guilty. Fade to black and the whole affair would have been wrapped up with a shiny bow.
But it was in its gently devastating coda that Three Girls landed its hardest punches. While the sex offenders cultivating and preying upon the young women were obviously monsters, the facile villainy of the legal system was also placed in the dock. The mendacity – all verified by official sources – was in places breathtaking.
When Ruby’s older sister Amber (Ria Zmitrowicz) was judged an unreliable witness, the prosecution discreetly listed her as a defendant alongside the men standing trial so that her evidence would be placed before the jury anyway. She would only be made aware of the fact when child services, noting she had been prosecuted for sex offences, tried to take her infant away.
The court-room scenes were grim and riveting, with Holly refusing to be cowed by a parade of smug, preening defence barristers. A chilling insight was also offered into the mindset of the assailants – something about which Three Girls had until now proved oddly incurious.
In the witness stand, Holly’s rapist “Daddy” (a unnervingly indignant Simon Nagra) embarked on a rant about the white community’s attitudes towards sex and appropriate behavior of young women. White people, he shouted, trained girls in “drinking and sex” from a young age. Even when confronted with evidence of his crimes, he couldn’t see he had done wrong.
Racial divisions stoked by the cases were sensitively touched upon, too. Far-right extremists chanted and waved placards outside court; later at a town hall meeting, members of the Pakistani community complained they were being collectively held accountable for the crimes of a few. This was the stagiest sequence of the three hours – but a necessary acknowledgment of the tensions framing the prosecutions and their aftermath.
Peake, so devastating in parts one and two, was more peripheral in the final hour as her character receded somewhat. However, there were absorbing turns by Paul Kaye as Holly’s emotionally tortured father and, especially, by Hill and Winshaw as Ruby and Holly.
The outcome of their cases is already known. But the suspense was nonetheless excruciating as they blinked their way through the tears and the defence's inference that they were glorified prostitutes vindictively trying to restore their reputations.
Amid the darkness of the subject matter and the web of official incompetence, their courage was a beacon burning brightly.
To read more click here
Friday, 21 April 2017
Child victims of sexual abuse in families let down by system
An article in yesterday's Guardian informs us that the Children’s commissioner for England
catalogs series of failings and calls for urgent changes to services provided.
Child victims of sexual abuse within families are being let down by the system, the children’s commissioner for England has said.
Young people are often left to report the abuse themselves when the authorities fail to pick up on signs, a report by the commissioner’s office found.
Even after their experiences are disclosed, investigations into sexual offences against children tend to take an average of 100 days longer than those against adults, it said.
Victims also often face long waits for therapy, and many are blocked from having counselling in the run-up to their court cases.
Abuse within family environments is thought to make up two-thirds of all child sexual abuse, and as few as one in eight victims come to the attention of authorities, previous research by the commissioner’s office found.
Some survivors have now described feeling abandoned after telling their families about the trauma they had suffered, and in powerful testimonies they spoke of their frustrations at a lack of support.
The commissioner’s office released three reports on Thursday, looking at how child sexual abuse is investigated, the role of schools in preventing it and things to be learned from survivors.
One 19-year-old woman said giving video evidence about the abuse she suffered was “like it’s going on again, the whole thing’s happening again”.
In partnership with the NSPCC, researchers from the University of Bedfordshire spoke to young people aged between five and 19 about their experiences of abuse within a family setting.
Using information from the Home Office and Crown Prosecution Service, the commissioner’s office also found that a rise in the reporting of sexual offences was placing a strain on the justice system.
Many teachers feel confident they are able to recognise the signs of abuse, but schools do not always fulfil their potential roles in preventing incidents by educating children about seeking help, one of the reports said.
The commissioner, Anne Longfield, called for urgent changes to the system and looked to the approach in Iceland, where child victims are offered specific services to deal with their trauma.
“It is clear from this research and the heart-breaking stories told by young people within it, that many child sexual abuse victims are being let down by the system,” she said.
“Professionals remain dedicated to supporting the victims of abuse, but urgent changes need to be made to the way it is reported, the role of schools in preventing it and the criminal justice process in child sexual abuse cases.
“The Icelandic ‘Barnahaus’ approach, where services ranging from medical examination to therapy are provided to victims under one roof, has been proven to be successful in overcoming some of these hurdles and I hope it will be trialled in England.”
Dr Camille Warrington from the University of Bedfordshire and lead author of the Making Noise report, said: “We know that child sexual abuse flourishes in cultures of silence.
“Undertaking the Making Noise research project highlighted only too well children’s own appetite and ability to help break that silence.
“It also emphasises the need for us as adults and professionals to improve the way we listen to and talk with children to prevent and respond to abuse - and the benefits that come from doing so.”
Barnardo’s chief executive, Javed Khan, called for compulsory lessons in schools to include topics such as sexting, consent and online grooming.
He said children should be assigned an independent advocate to help them navigate the court system when their abusers are brought to trial.
“We hear every day how much children and young people at risk of, or who have experienced, sexual abuse need and benefit from our specialist services, but we know many more need our help too,” he said.
For more information click here
catalogs series of failings and calls for urgent changes to services provided.
Child victims of sexual abuse within families are being let down by the system, the children’s commissioner for England has said.
Young people are often left to report the abuse themselves when the authorities fail to pick up on signs, a report by the commissioner’s office found.
Even after their experiences are disclosed, investigations into sexual offences against children tend to take an average of 100 days longer than those against adults, it said.
Victims also often face long waits for therapy, and many are blocked from having counselling in the run-up to their court cases.
Abuse within family environments is thought to make up two-thirds of all child sexual abuse, and as few as one in eight victims come to the attention of authorities, previous research by the commissioner’s office found.
Some survivors have now described feeling abandoned after telling their families about the trauma they had suffered, and in powerful testimonies they spoke of their frustrations at a lack of support.
The commissioner’s office released three reports on Thursday, looking at how child sexual abuse is investigated, the role of schools in preventing it and things to be learned from survivors.
One 19-year-old woman said giving video evidence about the abuse she suffered was “like it’s going on again, the whole thing’s happening again”.
In partnership with the NSPCC, researchers from the University of Bedfordshire spoke to young people aged between five and 19 about their experiences of abuse within a family setting.
Using information from the Home Office and Crown Prosecution Service, the commissioner’s office also found that a rise in the reporting of sexual offences was placing a strain on the justice system.
Many teachers feel confident they are able to recognise the signs of abuse, but schools do not always fulfil their potential roles in preventing incidents by educating children about seeking help, one of the reports said.
The commissioner, Anne Longfield, called for urgent changes to the system and looked to the approach in Iceland, where child victims are offered specific services to deal with their trauma.
“It is clear from this research and the heart-breaking stories told by young people within it, that many child sexual abuse victims are being let down by the system,” she said.
“Professionals remain dedicated to supporting the victims of abuse, but urgent changes need to be made to the way it is reported, the role of schools in preventing it and the criminal justice process in child sexual abuse cases.
“The Icelandic ‘Barnahaus’ approach, where services ranging from medical examination to therapy are provided to victims under one roof, has been proven to be successful in overcoming some of these hurdles and I hope it will be trialled in England.”
Dr Camille Warrington from the University of Bedfordshire and lead author of the Making Noise report, said: “We know that child sexual abuse flourishes in cultures of silence.
“Undertaking the Making Noise research project highlighted only too well children’s own appetite and ability to help break that silence.
“It also emphasises the need for us as adults and professionals to improve the way we listen to and talk with children to prevent and respond to abuse - and the benefits that come from doing so.”
Barnardo’s chief executive, Javed Khan, called for compulsory lessons in schools to include topics such as sexting, consent and online grooming.
He said children should be assigned an independent advocate to help them navigate the court system when their abusers are brought to trial.
“We hear every day how much children and young people at risk of, or who have experienced, sexual abuse need and benefit from our specialist services, but we know many more need our help too,” he said.
For more information click here
Wednesday, 5 April 2017
Domestic abuser must tell police if he gets a new girlfriend
An article in The Guardian caught my eye yesterday
A man who violently abused two former partners is believed to be the first person in England and
Wales who must tell police if he gets a new girlfriend.
Under the seven-year criminal behavior order, Kylle Godfrey must inform police if he is in a
relationship for more than 14 days, while officers can tell new partners about his previous
violent behavior under the domestic violence disclosure scheme.
It is thought the specific requirement to notify police about developments in his private life –
made under the Antisocial Behaviour, Crime and Police Act 2014 – is a legal first.
Godfrey, 30, from Neasden, north-west London, who is serving a three-year prison sentence for
two counts of actual bodily harm, perverting the course of justice and witness intimidation,
throttled one victim and banged her head on the floor, causing trauma injuries to her head. The
attacks took place over several days in October last year.
He continued to intimidate her while on bail and assaulted a second woman he was in a
relationship with, Wood Green crown court in north London was told.
The order was made last week after Godfrey admitted the attacks during a court hearing on 14
February.
DI Jane Topping, of the Hackney community safety unit, said: “This order gives us a new way of
protecting victims of domestic abuse and prevents other women from suffering at the hands of
people like Godfrey, and helps our efforts to tackle domestic violence.
“The victim in Godfrey’s case was subjected to a horrendous ordeal by him following a sustained
campaign of domestic violence. She has shown incredible bravery in supporting our investigation,
and I hope she feels safer now Godfrey is behind bars and will be subject to closer scrutiny.”
Last year a man was given a court order requiring him to inform police 24 hours before any sexual
contact with a woman, despite being cleared of rape.
Magistrates in York said the man, who could not be named for legal reasons, was also subject to
restrictions online and was required to declare to police any phone he owned that was capable of
accessing the internet, calling or texting people.
He was acquitted of raping a woman at a retrial in 2015 after claiming that the alleged victim
had consented.
For more information click here
Friday, 24 March 2017
Wife of 39 years fails in divorce refusal appeal
Reports from the BBC today inform us of a woman who says she is "desperately unhappy" in her
marriage has lost the latest round of an "extraordinarily unusual" court fight.
Tini Owens, 66, asked the Court of Appeal to overturn a family court ruling, which said she
could not divorce her husband Hugh Owens, 78.
But the appeal judges, led by Sir James Munby, upheld the original ruling.
However, Sir James did point out that some people would feel unhappiness should be grounds for
divorce.
The decision means Mrs Owens will have to remain married, although after five years of
separation she would be eligible for a divorce even if her husband still objected.
The couple married in 1978 and lived in Broadway, Worcestershire.
The Court of Appeal heard that Mrs Owens' case was that the marriage had broken down, although
Mr Owens disagreed, saying that the couple still had a "few years" to enjoy.
Mrs Owens contended that she had been left in a "wretched predicament", locked in a "loveless
and desperately unhappy" marriage.
She had made 27 allegations about the way Mr Owens treated her, including that he was
"insensitive" in his "manner and tone" and said she was "constantly mistrusted" and felt unloved.
Opposing a family court ruling made last year by Judge Robin Tolson, who refused to grant a
divorce petition on the basis her allegations were "of the kind to be expected in marriage", she
took the case to the Court of Appeal.
But on Friday, Sir James - the most senior family court judge in England and Wales - said: "We
cannot interfere with Judge Tolson's decision, and refuse the wife the decree of divorce she
sought."
He said Judge Tolson had correctly concluded that the marriage had not "in law" irretrievably
broken down.
Grounds for divorce in England and Wales:
When you apply for a divorce you must prove your marriage has broken down and give one of the
following five reasons:
Adultery
Unreasonable behaviour
Desertion
You have lived apart for more than two years and both agree to the divorce
You have lived apart for at least five years, even if your husband or wife disagrees
However, Sir James added: "Parliament has decreed that it is not a ground for divorce that you
find yourself in a wretchedly unhappy marriage, though some people may say it should be."
Appeal judges analysed the case at a hearing in London last month and announced their decision
to dismiss the appeal in a written ruling
For more information click here
Monday, 20 March 2017
Unpaid child maintenance backlog in UK is £3.8bn
A report by Nicola Ress for the BBC today reveals that there is a UK backlog of more than £3.8bn in uncollected child maintenance payments, figures have
revealed.
The money is owed by non-resident parents and has built up over 23 years, with figures showing
about 1.2 million people are owed child maintenance.
The Department for Work and Pensions said a new system was "actively pursuing" unpaid child
maintenance.
But Janet Allbeson, from the charity Gingerbread, called for parents waiting for money to
receive compensation.
The latest figures, revealed by the Victoria Derbyshire programme, show the vast majority of
unpaid maintenance money was accumulated under the Child Support Agency (CSA) - which was set up
in 1993.
The system was replaced in 2012 after mistakes were made with assessments and absent parents were
not tracked down.
However, a further £93m of unpaid child maintenance has already developed under the new Child
Maintenance Service (CMS) system.
It comes as the findings of a Work and Pensions Committee inquiry into CMS are due to be
published next week.
MPs on the committee are expected to be highly critical of the new scheme.
For more information click here
revealed.
The money is owed by non-resident parents and has built up over 23 years, with figures showing
about 1.2 million people are owed child maintenance.
The Department for Work and Pensions said a new system was "actively pursuing" unpaid child
maintenance.
But Janet Allbeson, from the charity Gingerbread, called for parents waiting for money to
receive compensation.
The latest figures, revealed by the Victoria Derbyshire programme, show the vast majority of
unpaid maintenance money was accumulated under the Child Support Agency (CSA) - which was set up
in 1993.
The system was replaced in 2012 after mistakes were made with assessments and absent parents were
not tracked down.
However, a further £93m of unpaid child maintenance has already developed under the new Child
Maintenance Service (CMS) system.
It comes as the findings of a Work and Pensions Committee inquiry into CMS are due to be
published next week.
MPs on the committee are expected to be highly critical of the new scheme.
For more information click here
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