Month: April 2019

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What should I do if my husband/wife is having an affair?

Finding out that your spouse is having an affair can be devastating and place a severe strain on a relationship. Sometimes it spells the end of the marriage. Other times, couples repair the relationship, often making it stronger.

There is no right or wrong answer here. However, if you are married, there are some legal considerations for you if you partner has an affair. So, we asked Gabby Read-Thomas from our Altrincham office to take us through what you need to do if you find out your spouse has / is having an affair.

“Shocked, betrayed and confused are just some of the emotions that I see my clients dealing with when their relationship has broken down due to an affair.

In the beginning, I advise them to allow themselves some time to consider next steps rather than lashing out in an act of retaliation which they may later regret.

Once the initial dust has settled, communication is crucial, whether you want to try and save the relationship or have decided it is over and need to plan a way forward.

Staying together

Relationship counselling can be extremely helpful in supporting couples to open-up, explore the problems between them and get back on track.

There are many counselling services available, such as Relate, and a simple Google search should help you locate someone in your area or try the National Counselling Society, find a counsellor directory.

Separating

If there is no way back following an affair, then I would recommend taking early advice on the divorce process.

In English law there is only one ground to petition for divorce and that is that the marriage has irretrievably broken down. Although there has been a lot in the news about the new era of ‘no fault divorce’, it is likely to take some time for parliament to ratify the necessary legislation.  So for now, to prove this, you must currently rely on one of 5 facts and one of these is adultery.

Specifically, the law states that you can petition for a divorce based on adultery if your spouse has committed adultery and you find it intolerable to live with them.  Importantly however, same-sex spouses cannot use this fact to prove irretrievable breakdown (and would instead need to allege ‘unreasonable behaviour’).  Importantly, adultery can be committed and used for a reason to divorce, even after a married couple have separated.

Even if adultery is applicable, it isn’t necessarily that straight forward. What the court recognise as adultery and what you consider to be an affair are not always the same thing.

The law relating to adultery

The court considers adultery to be the voluntary sexual intercourse between a man and a woman. A close relationship which you may consider inappropriate, involving dates, messages, emails (but without actually having sex with that person) is not recognised legally as adultery.

However, whilst the court would not recognise it as adultery, such behaviour can be used as an example of unreasonable behaviour and a divorce petition can be presented on this basis instead, as it can with same-sex spouses who discover their spouse is conducting a relationship with a third party

It should also be pointed out that if you continue to live with your spouse for a period of 6 months or more after you found out about the adultery then you cannot use that adultery as the basis for a divorce petition, unless that adultery is continuing  If so,  the 6 month period begins to run from the last adulterous incident. If however it was a ‘one-off’ which took place more than 6 months before you found out, or your spouse denies having committed adultery, your safer option is to proceed on the basis of their behaviour.

Getting divorced

Citing adultery in a divorce petition requires the spouse to admit to the adultery in the paperwork. From a practical point of view, it is worthwhile asking their spouse  to sign a  statement confirming their agreement before proceedings are issued. In the long-run this will help reduce the risk of costly defended divorce proceedings. Again, if your spouse is unwilling to sign a statement, you should consider presenting your petition on the basis of unreasonable behaviour.

If you continue with the adultery petition and the divorce is defended it is the court that will decide whether there is evidence to show that the adultery has been committed, and let’s face it, short of hiring a private investigator (which can be done) it  is unlikely that you will have any direct evidence of the adultery.  However, if there is enough circumstantial evidence to show opportunity and an inclination to commit adultery, the court should be able to draw inferences that the adultery has been proved and the petition can proceed on that basis.

If you have concerns your spouse is having an affair and would like some initial legal advice, please contact our Client Care Team here or at the number below. All enquiries are strictly confidential.

 

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Author: Gabrielle Read Thomas

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Two weeks in family law: An anniversary, sobering statistics, and inefficient courts

It’s been a predictably quiet couple of weeks in family law, with the Easter break. However, there were one or two interesting stories that cropped up, of which the following are my picks.

To mark the 30th anniversary of the Children Act the Department for Education has announced that children in and on the edge of care will benefit from £84 million of new investment for projects designed to strengthen and support families, reaffirming the Act’s core principle that, where possible, children are best brought up with their parents. Up to 20 councils will receive funding to help improve their practice, supporting families to stay together wherever appropriate, so that fewer children need to be taken into care, and giving them the best chance to succeed in life. Three ‘early adopters’ have been unveiled to deliver one of three landmark projects originally run through the Department for Education’s Innovation Programme: Darlington, Cambridgeshire and Middlesbrough. The launch of the government’s Strengthening Families, Protecting Children programme will start work to roll out the three successful projects to other eligible councils, where there are persistently high numbers of children being taken into care. Commenting upon the announcement Education Secretary Damian Hinds said: “We must assist those parents facing difficulties and work with them to strengthen their family relationships so they can properly support their children. In the year that sees the 30th anniversary of the Children’s Act, we must stay true to its heart – that where possible and safe, children are best brought up, loved and supported by their parents.” Amen to that.

Next, as I reported here, the Department for Work and Pensions (‘DWP’) has published statistics about the separated family population. As I said, the statistics, which are for the period April 2014 to March 2017, show that at any point during that time there were around 2.5 million separated families in Great Britain, which included about 3.9 million children. Sobering stuff. The statistics were produced to provide information on child maintenance arrangements between parents in separated families, showing that in 2016/17 around 48% of those families had a child maintenance arrangement, whether voluntary or arranged through the Child Maintenance Service (‘CMS’). As for the other 52%, who knows?

Still on the subject of child maintenance, the DWP has also published statistics on cases processed under the current child maintenance scheme administered by the CMS, for the period August 2013 to December 2018. The ‘main stories’ revealed by the statistics were that: 671,300 children are covered by CMS arrangements, 432,500 through ‘Direct Pay’ arrangements (where the CMS calculates the amount of maintenance to be paid and the parents arrange the payments between themselves), and 238,800 through the ‘Collect & Pay Service’ (where the CMS collects the maintenance); and that an estimated £237.4 million child maintenance was due to be paid between October and December 2018, £45.8 million more than the same period in 2017. If you are so inclined, you can find the full statistics here.

And finally, you can’t keep a good man down: the former President of the Family Division Sir James Munby has been back in the news. Hearing applications by the Queen’s Proctor for the setting aside of divorce decrees in four different cases on the ground that the petitions had been presented before the expiration of the period of one year from the date of the marriage, Sir James took the opportunity to comment upon how well the regional divorce centres are working (or not, as the case may be). For the uninitiated, the eleven regional centres were established in 2015, taking over the work of dealing with divorce (but not matters ancillary to divorce, such as sorting out finances) from some 110 divorce county courts spread around England and Wales. When that happened, there were concerns expressed by many as to how the centres would deal with their huge workloads, and it seems that those concerns have been proved to be well founded. Sir James commented in the case (which you can read here) that: “It is, unhappily, notorious that some Regional Divorce Units have become bywords for delay and inefficiency, essentially because HM Courts and Tribunals Service has been unable or unwilling to furnish them with adequate numbers of staff and judges.” Ouch.

Have a good weekend.

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Author: John Bolch

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The Central–Mid-Levels Escalator

A portion of Hong Kong's Central–Mid-Levels Escalator

Hong Kong’s moving landmark

I have very fond memories of my first (and only, so far) visit to Hong Kong in 2007. I was extremely impressed by the architecture and scenery, and by the vibrant street life on display throughout its many neighborhoods. As a first-time visitor, I also appreciated how easy it was to navigate, and how technology was used to solve problems in novel ways.

I first got a sense of this when I passed through Immigration, and had my body temperature scanned remotely to see if I was running a fever (important for a region that was then dealing with avian flu). I was further impressed with Hong Kong’s technological prowess when I discovered I could purchase a stored-value transit pass, called an Octopus card, which I could not only use on trains, buses, and trams, but could also use to buy snacks from a convenience store or food from certain restaurants. I found out later that locals can also buy rings, watches, and even cell phones that contain the Octopus chip, enabling them to simply wave their hands (or phones) over the special card readers to make a purchase. That may all sound unimpressive nowadays, but it was pretty advanced for 2007, to say nothing of 1997, when it was introduced.

While all these things are wonderful, my favorite piece of technology that makes life easier for visitors (and residents of course) is the Central–Mid-Levels Escalator. Stretching from the Central district of Hong Kong Island up to the heights of the Mid-Levels residential neighborhoods, the escalator is a godsend for footsore travelers.

Escalating the Situation

The Central–Mid-Levels escalator system, which opened in 1993, consists of 18 escalators and three moving sidewalks, and measures 800 meters (1/2 mile) in length, making it the longest outdoor covered escalator in the world. It takes about 20 minutes to ride the escalators from the bottom to the top (or vice versa), but it takes less than that if you walk while they move, as most people do.

The escalators run from 6 A.M. to midnight, descending for the first 4 hours (bringing morning commuters down from upper levels), and then reversing direction around 10:00 A.M. to carry passengers up the hill. There are entrances and exits at each street it intersects, making it easy to stop at whichever level you choose.

Up, Up and Hooray

During the time we spent in Hong Kong, we rode the escalators almost every day, finding them an extremely useful way to get from our hotel midway up the slope of Victoria Peak to the center of activity downtown and back again. One of the things I enjoyed most about riding the escalators was the opportunity to peek at the activity taking place on either side, from apartment life on the upper levels to the bustling bars, restaurants, and stores on the levels closer to the center of the city.

While for many people who rode the escalators alongside us, it was just an ordinary commute to work, we found the journey to be a fascinating glimpse of urban life in Hong Kong. Not only that, but the ease, efficiency, and simplicity of the system made us, foreigners though we were, feel right at home.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on February 26, 2007.


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Author: Morgen Jahnke

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Homemade Paleo Bagels Recipe — Gluten Free, Grain Free, Vegan Option

I haven’t had a good bagel in far too long. Ever since going gluten free, it’s been hard to get bagels, and when I do, they tend to be the texture of regular bread, just shaped like a bagel. I saw this recipe for gluten free bagels and it looked awesome, especially since it is grain free and paleo friendly, and suitable for the holiday of Passover. Most paleo recipes using almond flour also


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Author: Penniless Parenting

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How To Secure A Pay Rise

Sometimes if you need to be bringing in more money, you don’t need to find a new job or work more hours. Sometimes all that is necessary is to get your salary increased via a pay raise. Here’s a post from a reader with suggestions as to how to do that.

Getting a pay rise can be one of those things that seems impossible. First of all, you don’t want to ask your boss for one, as you don’t want to


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Author: Penniless Parenting

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Wendy Williams files for divorce from husband of 22 years

Some marriages cannot stand the test of time. Even if a couple has decades of a happy marriage, this does not safeguard a couple from encountering marital problems. No matter the reason or cause for dissolution, ending a marriage can be a very emotional and complex time. This is especially true for those seeking to protect assets and property from being divided during the process.

Recent reports revealed that talk show host Wendy Williams filed for divorce from her husband of 22 years. It is speculated that this decision is based on infidelity on his part. Rumors have circulated about these cheating allegations, claiming that he fathered a child with his long-time mistress.

Together Williams and her husband built an empire together. It is estimated that together their net worth is nearly $60 million. With he talk show, books and endorsements, it is estimated that Wendy takes home around $15 million a year.

An issue that this divorcing couple may face deals with property division. Specifically, she is likely to gain royalties and have endorsements vest in the future. While these funds will likely be gained after the divorce is finalized, because these contracts were entered into during marriage, these could be viewed at as community property. This could make the divorce process messy and complicated because if there is no marital document that details how these assets will be treated in the event of a divorce, they will likely be divided equally.

There are many divorce legal issues to sort through. Whether a couple is able to reach an agreement on these issues through mediation or requires the litigation process and the court to make decisions for them, it is important to fully understand your issues at hand. This not only helps move the process forward but it ensures your rights and interests are also protected.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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Wife fails to have financial remedies order set aside

I’m sure I’ve said it here before, but I’ll say it again: financial remedy orders are intended to be final. A party is not usually entitled to have a ‘second bite of the cherry’. Accordingly, unless there are grounds for an appeal, the order will usually bring the financial remedy proceedings to a conclusion, save for any action necessary to enforce the order. Anyone who is aggrieved at the contents of a financial remedies order will therefore find it very hard to have the order set aside, and that is especially so if they consented to the terms of the order.

That, however, is what the wife sought to do in the recent case W v H.

The relevant facts of the case (for the purpose of this post – I am simplifying matters to keep the post to a reasonable length) were as follows. The parties were married in 2008 and they have two children. They separated in about July 2013. The husband issued divorce proceedings in that month, and the wife issued her own petition in August 2013. Financial remedy proceedings ensued, agreement was reached, and a consent order was drawn up, setting out the terms of the agreement. The order was approved by the court in May 2015. It provided, amongst other things, for the wife to receive a lump sum of £1.6 million, plus maintenance. The divorce was then finalised, in July 2015.

In September 2018 the wife applied to set aside the consent order, giving four grounds for the application:

  1. That she had been subjected to undue influence by the husband;
  2. That she had been subjected to duress by the husband;
  3. That there had been fraudulent non-disclosure on the part of the husband; and
  4. That she had not received proper legal advice on the terms of the agreement.

The application was heard by District Judge Duddridge in the Central Family Court in London. He dealt with the wife’s grounds as follows.

As to point 4, he explained that bad legal advice can never be a ground for setting aside a final financial remedies order, whether made by consent or otherwise. This was because “the interest in finality of decisions outweighed the risk of injustice to a party who had received defective advice”, and also because the consent order would have been approved by the court. The wife’s complaint, however, was not that she had received bad legal advice, but rather that she received no advice about the fairness of the consent order. This was not accepted as a good ground by District Judge Duddridge: the wife was receiving advice from a solicitor at the time of the consent order, and the point about bad advice applied equally to incomplete or insufficient legal advice.

As to points I and 2, District Judge Duddridge found that the wife’s allegations (which I will not detail here) could not amount to duress. They were capable of amounting to undue influence, but did not do so, as her actions revealed that she was acting under her own agency, and were inconsistent with her case that she was compelled by any threats by the husband to agree to the terms he presented her with.

Which leaves point 3, non-disclosure by the husband. Here, District Judge Duddridge found that, before the consent order was approved, the wife was actually aware of most of the matters she claimed that the husband had failed to disclose, and that other matters were of such “doubtful materiality” that he considered that the wife would not succeed in having the consent order set aside on that basis.

There was also the issue of the wife’s delay in making her application. In relation to this, District Judge Duddridge said that he had to consider whether there was a good explanation for the delay. In particular, if the wife was subjected to undue influence or duress, her obligation to act promptly had to be measured by reference to the point in time when she became free from that undue influence or duress. He found that this was likely to be by July 2017, when she sought advice about the implementation of the consent order, but was at the latest by February 2018, almost seven months before she made her application, when she instructed new solicitors. That delay was unexplained and inordinate, and would mean that the application should be struck out, even if, contrary to District Judge Duddridge’s findings as set out above, it had any real prospect of success.

Accordingly, the application was dismissed.

The full judgment can be read here.

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Author: John Bolch

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Divorce in the public eye

News of Adele’s separation from her husband, Simon Konecki, has dominated the media over the last few days. Whilst, perhaps, given her success, this is no surprise but ti did make me pause and think, how often do any of us ever stop to think what it must be like for those involved?

The breakdown of any relationship, marriage or civil partnership, is one of the most stressful experiences any of us will ever have to endure.

How much harder it must be to live out that experience under the glare of publicity.

Figures vary as to how much Adele’s fortune might be worth, ranging from US$200million to US$180million and £145 million. There is frenetic speculation as to whether Adele will need to agree to share that equally with her husband.

In reality, we will probably never know but the case does raise a number of important and interesting issues.

The first of those is whether the divorce will take place in England and Wales or in California where the couple has lived and where they have property, even though both are British.

If a divorce were to take place in California, there may well have to be an equal division of their net assets.

The choice of jurisdiction is increasingly an issue which couples must deal with immediately after or even before they decide to separate. It is vital that they receive expert advice from lawyers who specialise in international family work.

If a divorce were to take place in this country, it does not necessarily follow that there would be an equal division.

One point that seems to have been overlooked by the media is that the Court would look at the total capital which had been built up during the marriage not just by Adele but by both parties and then decide how that should be divided.

The “starting point” might be equal division but might not be the result.

The reasons for that are various:

Firstly, English law is based on achieving a fair resolution which does not always mean equality.

Secondly, the couple married in 2016 and appear to have separated towards the end of 2018. Before they married, they had been together for 4 or 5 years.

A relationship of 7 years or so is quite substantially less than the average length of a marriage in this country which is between 11 and 12 years. That might be a reason why an equal division would not be fair.

Perhaps the most important reason why an equal division would not be fair is because of the enormous success which Adele has had, very largely through her own efforts.

She may well be able to successfully suggest that she has made such a special or “stellar” contribution building up a substantial wealth in a very short period of time through her own talent and ability that an equal division would simply not be fair.

Finally, the situation in which Adele and her husband now find themselves could quite easily have been avoided if they had entered into a prenuptial agreement. Such an agreement could have been drafted so it was binding no matter where the couple lived during the marriage and no matter where they might choose to get divorced.

It would set out clearly what they each wished to happen in the event of a separation and divorce.

Prenuptial agreements have a growing status under English law, although judges are not automatically bound to enforce them. They do carry an enormous amount of weight. Apart from setting out what the couple would like to happen regarding their finances and the arrangements for any children they may have.

Graham Coy, London Chancery Lane, graham.coy@stowefamilylaw.co.uk

 

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Author: Graham Coy

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Planning Your Own Funeral

A coffin borne by pallbearers

Having the last laugh first

When my mother returned from a vacation to Florida with her sister several years ago, I called to ask how it went. “Oh, we had the best time!” she said. “We spent most of the trip planning our funerals. It was hilarious!” Well, that wasn’t quite what I was expecting to hear. On previous vacations my mom has gone on cruises, and even tried parasailing, and I thought I had a pretty good idea of what activities she considered fun. Funeral planning was a bit of a surprise. It’s not that she’s ill or expecting to die soon. But, as she put it, “If you want something done right, you have to do it yourself.”

I’ve seen some of those late-night commercials trying to sell funeral insurance, with the idea being that you can save your grieving loved ones the considerable expense associated with funerals and burial. But that wasn’t what my mother had in mind at all. (In fact, she made a point of saying that since she’d relieved the family of the burden of funeral planning, the least we could do is pay for it!) Rather, she’d gone to some local funeral parlors and asked them for pre-planning forms she could fill out, detailing her background and family contact information, and specifying her wishes for things like burial versus cremation, type of casket, a minister to preside over the ceremony, and so on.

Survivor: The Afterlife

What made this all so funny? For starters, these forms—which, mind you, are intended to be filled out by the person on whose behalf the services will be performed—often begin by asking you to list your survivors. That whole idea gave Mom and Aunt Ruth the giggles—how would they know, now, who will survive them? But even though you may have to leave a few sections blank, planning your own funeral gives you the chance to approach the details of how your death will be observed with a rare mixture of detachment and subjectivity. In other words, while you’re alive and healthy, you can have fun with the activity in a way that your bereaved loved ones, under the stress of the moment, never could.

Most pre-planning forms ask for basic things like whether you’d prefer a religious, secular, or military funeral. But you can get as detailed as you’d like. List the music you want to have played or sung. What kinds of flowers you want, if any. Scripture passages, poems, or other readings you’d like to have presented. Names of potential pallbearers. And even details about what clothes or jewelry you’ll be wearing while lying in that casket, whether you’ll have your glasses on, and what items should be added or removed before the casket goes in the ground. (My dad always joked that he wanted to be buried with a plate of spare ribs. I’m sorry to say the family didn’t oblige. On the other hand, my mom, whose first name is Grace, has insisted in writing that the song “Amazing Grace” not be sung at her funeral under any circumstances. I feel pretty certain that wish will be honored.)

Lay-Away Plan

Although it has always been possible to state your own funeral preferences, either in a will or elsewhere, the trend of doing more involved funeral planning for oneself seems to be picking up steam. The topic is covered in various books and websites, and of course most funeral directors can supply you with brochures, forms, and other information about their particular services. But for some people, merely planning out a memorial service is not enough. Among the other things you can now arrange are the following:

  • Rebuild Atlantis. I am absolutely not making this up. You can have your ashes encased in concrete and used as one of the building blocks of an artificial reef being constructed off the coast of Miami. The Neptune Memorial Reef was designed as an underwater garden that looks like some artist’s idea of Atlantis, and you can spend eternity there if you want.

  • Go into space. It’s not just for celebrity zillionaires and starship engineers. You, too, can have a small portion of your ashes sent into space by Celestis Memorial Spaceflights. Prices start at just $2,495 for a brief trip into zero gravity and back; $4,995 for a lengthy stay in orbit; or $12,500 to have your ashes sent to the moon—or even into deep space on a spacecraft powered by a solar sail.

  • Cut glass. If you’d like to keep your eternal remains close to home, you can have your ashes compressed into an artificial diamond by a company called LifeGem. That’s right: you can wear Grandma around your neck. Prices start at $2,490 and go up to $24,999. Only slightly less creepy: the same company can make gems from a lock of someone’s hair—dead or alive.

One step my mother has not yet taken—but plans to—is writing her own obituary. She wants to make sure it hits all the most interesting and important highlights. Unfortunately, you can’t control everything that will happen after your death. Maybe it’ll rain the day you’re buried; maybe the cat will knock over your urn of ashes; maybe your eulogy will have irritating grammatical errors. These things happen. You may not get the very last laugh, but you can at least make the Reaper a bit less grim.

A final tip, if I may. Even the most thorough will or funeral plan may omit details about what should happen to your digital assets when you die—all your photos, email, social media accounts, files, backups, and so on. I deal with all of the above in my book Take Control of Your Digital Legacy, and as a reader of Interesting Thing of the Day you can get it for 30% off. Enjoy!

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on August 13, 2007.

Image credit: Pixabay


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Author: Joe Kissell