Tulsa Family Lawyer and Mediator
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Author: Penniless Parenting
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Author: Penniless Parenting
What a week it has been in family law as the government finally announced its plans for reform to the current divorce law in England and Wales.
Welcomed by us all at Stowe, the reform will see the introduction of “no-fault” divorce and the removal of the need to allocate blame on one party.
Mark Christie from our Harrogate office, has over 35 years family law experience with a focus on divorce, separation and private law children disputes. He joins us today to share his views on the reform of our current “somewhat archaic grounds for divorce.”
This week, the government, after much lobbying from Resolution-First for Family Law, the organisation representing specialist family lawyers for a reform of the somewhat archaic grounds for divorce, announced that it will legislate to reform the grounds for divorce.
The current law necessitates a couple who wish to have a divorce, relying upon one of five separate facts, three of which are fault-based, i.e. adultery, behaviour (often colloquially referred to as unreasonable behaviour) and two years desertion.
In this new announcement, which has been long awaited and which will see the biggest reform in our divorce laws for 50 years, it is proposed that the law will be changed to remove the fault-based facts and for the parties to simply provide a statement to the effect that the marriage has broken down irretrievably.
It is also proposed that the ability to defend a divorce will be removed and that couples can jointly apply to the Court for a divorce.
Once such legislation is passed, it is hoped that couples will be able to obtain a divorce in a much less hostile environment without having to blame each other, and which currently causes unnecessary emotional turmoil to not only the couple divorcing but also to any children of the marriage.
Once it is possible to obtain a divorce without having to blame each other, couples will be able to bring their marriage to an end in a much more amicable manner, which will enhance the prospect of them retaining a reasonable relationship with each other, and so enable them to better co-parent their children and agree on a financial settlement.
Of course, there will be the usual traditionalist criticism of such a move, arguing that making divorce easier undermines the institute of marriage.
The reality, however, is that the proposed legislation will not make the obtaining of divorce any easier but will just remove the “blame game” from the process to the benefit of all parties and any children concerned.
It may be that once the changes come into effect, there will be an initial spike in the divorce rate, but this will only be short lived.
It is to be hoped that the legislation will come into force as quickly as possible, though, considering the current Brexit situation, it is anyone’s guess as to when there will be sufficient parliamentary time available to pass the requisite legislation.
The post No fault divorce, at last appeared first on Stowe Family Law.
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Author: Mark Christie
As the Ministry of Justice releases family court statistics that show a 3% increase in new cases and an average 3-week increase in the time to reach a final order (2017 v 2018), it is clear that the courts are struggling to cope with demand.
To relieve some of this pressure, other alternative methods to reaching a resolve in family court matters must be more widely considered.
Faster and more flexible, family arbitration is one of the approaches that could help you and your ex-partner to make final and legally binding decisions whilst avoiding the over-stretched courts.
So how does arbitration work and what are the benefits? We asked Angela Sussens, Partner at our Leeds office to join us on the blog to explain further.
Arbitration is a form of dispute resolution and involves a third party (the arbitrator) adopting the role of Judge. The arbitrator will decide on the issues they are appointed to deal with after reviewing and hearing evidence from both parties in the same way that a Judge would at a final hearing.
When conducting an arbitration, arbitrators are required to apply the law of England and Wales. The arbitrator’s final decision is binding on both parties and is known as an Award (financial matters) or a Determination (children matters). The decision can then be embodied into a Court Order and submitted to Court for approval by a Judge.
To proceed with arbitration, both parties must agree that they are willing to proceed in this way. They are required to sign a document which sets out the rules of arbitration and by signing the document, the parties agree to be bound by the arbitrator’s final decision.
Neither party can subsequently decide that they do not want to arbitrate unless the other party also agrees to terminate the process. Once the arbitrator has accepted the appointment, the arbitration process formally begins. If there are Court proceedings, those proceedings will be put on hold to await the outcome of the arbitration.
The parties can jointly appoint an arbitrator or alternatively, they can elect for the Institute of Family Law Arbitrators (IFLA) to select one for them. There are separate panels for arbitrators who deal with finance or children matters but some arbitrators are members of both panels. Details of trained and accredited arbitrators can be found on the IFLA website. Those listed are experienced family law practitioners who have also completed the family arbitration training course.
How can an arbitrator help you?
Arbitrators can deal with most financial and property disputes arising from family/relationship breakdowns in the same way that a Judge can. Arbitrators are not however able to deal with financial matters where there is an issue over jurisdiction or cases involving the recognition of a foreign marriage or divorce.
Arbitrators can deal with many matters relating to children where the parties have parental responsibility including, but not limited to, where a child is to live, contact arrangements and decisions over education.
Usually, although not always, there will be an initial meeting between the arbitrator and the parties to agree on the steps needed to get the case ready. The arbitrator has the power to make case management and interim decisions such as deciding what evidence is to be provided and whether there is a need for expert evidence.
The arbitrator also has the power to make an order for one party to make maintenance payments to the other pending the outcome of the arbitration if the interim financial arrangements are not agreed.
After the final arbitration meeting, the arbitrator will issue an Award or Determination setting out their decision which is the equivalent of a final judgment and is binding on the parties. The parties are then required to apply to the court for an order replicating the Award or Determination. Only in very rare cases will an Award or Determination not be upheld. The recent decision of Ambrose J in the case of BC v BG [2019] EWFC 7 reaffirmed this point
‘Any application to resile from an arbitration award should be unusual. Applications using the “notice to show cause” procedure or an application for no order to be made (as adopted in this case) should be exceptional for the reasons given in S v S and DB v DLJ’.
What are the benefits?
There are many benefits of arbitration when compared to the traditional court process.
Take less time
Firstly, arbitration is an opportunity to expedite the case and avoid lengthy court delays. It often takes the Court several weeks to issue an application and then a further delay is encountered when listing the matter for hearings. The parties and the arbitrator have total control over the timetable. There is also less risk of a hearing being adjourned or cancelled due to a judge becoming unavailable which happens increasingly often in court proceedings.
More cost-effective
Another benefit is that the arbitration process is often more cost-effective than the Court process although parties are required to meet the arbitrator’s fees which will vary from case to case.
The parties can also elect for arbitration to be completed on paper, if appropriate, which may further reduce costs.
Confidentiality
Confidentiality is also a benefit and arbitration is protected by strict confidentiality rules.
Greater control of the case
Arbitration provides the parties with greater control and flexibility over how the case is managed. The parties can define the scope of their arbitration and if there are specific issues in dispute, while other issues are agreed, the parties can limit arbitration to the issues in dispute.
The parties also decide when and where the hearings are to take place, albeit subject to the arbitrator’s availability. One of the main benefits of arbitration is the ability to appoint an experienced family law practitioner who will deal with the case from start to finish. There are a number of highly regarded family lawyers who are trained as arbitrators, thus giving the parties complete confidence that their dispute will be resolved by someone with the appropriate experience.
Arbitration in action
I was recently involved in an arbitration case dealing with the financial arrangements following the breakdown of the parties’ marriage. In that case, the parties agreed to use arbitration to resolve the issues in dispute between them. The arbitration process was concluded within c.16 weeks. It could easily have taken a year to reach a final hearing within the court process.
The final arbitration ‘hearing’ was dealt with in one day but is likely to have required two days in Court. Costs were contained after we were able to agree on the case management directions with the opposing party and the arbitrator thereby avoiding the need for an interim meeting or telephone appointment. The total costs were considerably less than they would otherwise have been if the matter was dealt with in the standard court process.
While arbitration provides a reliable and comprehensive alternative to the court process, it still involves handing over the final decision to a third party which is not ideal. If there is any scope for the parties to reach an agreement over the issues in dispute through negotiation, this will always be preferable to passing control to someone else.
Get in touch
If you would like some advice on arbitration and how it could help you please do contact me at angela.sussens@stowefamilylaw.co.uk
Details of all of our arbitrators and the work they do can be found here.
The post Stowe comment: Arbitration v Court appeared first on Stowe Family Law.
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Author: Angela Sussens
And quite a week it has been too.
Firstly, the trends in new public and private law children cases is continuing, with the former decreasing, and the latter increasing. Cafcass has reported that in March it received 1,117 new care applications. This is 9.9 per cent (123 applications) lower than March 2018. In the last twelve months Cafcass received 13,536 new care applications; this is a fall of 4.8 per cent (685 applications) from the previous twelve months. As to private law demand, Cafcass received 4,166 new cases during March 2019. This is 18.2 per cent (640 cases) higher than March 2018 and the highest March on record. Cafcass has experienced a steep increase in demand in the last two months. The previous month Cafcass saw the highest level of demand in February since 2013. Prior to that new private law cases had been 3.8 per cent higher than the same period previous year.
As I reported here, Mr Justice Mostyn has held that no weight should be given to a pre-nuptial agreement, in a divorce involving the great-granddaughter of the founder of Avon cosmetics. The parties entered into the agreement when they married in 2005. The marriage broke down in 2016. The husband subsequently issued a financial remedies application within divorce proceedings. The wife is the beneficiary of family trusts in the USA, with an overall value of at least $65 million, and the husband earns about £35,000 gross, with no net capital. Hearing the application, Mr Justice Mostyn held that it would be wholly unfair to hold the husband to the agreement, which would have left him with nothing. Instead, he awarded the husband a lump sum of £1,333,500, of which £375,000 was subject to a charge-back to the wife (or her estate), on the death of the husband. A reminder that our courts are not bound by pre-nuptial agreements, and will not uphold them if they think they are unfair.
As I also reported here, the President of the Family Division Sir Andrew McFarlane has provided an update on the changes currently happening in the family justice system, in a keynote address to the annual conference of Resolution, the association of family lawyers. I say ‘currently’, as it seems to me that there are always changes happening these days. Perhaps the biggest headline from his speech was when he informed his listeners that it will soon be possible to deal with all stages of the divorce process online. He said that the remaining parts of the divorce process, namely decree nisi and degree absolute, will be online “in the next few months.” Once the process is fully up and running, solicitors will be able to log on from anywhere, at any time, and see the state of an individual divorce case as it moves forward. They will also be able to file documents and communicate with the court and/or the other parties remotely through the system. By the end of 2019, he said, it is anticipated that the vast majority of divorce proceedings will be conducted online, or, if paper-based, will be scanned and converted to online. It sounds quite wonderful, but there is of course one problem with all of this: the whole system will have to be completely re-done if and when we get no-fault divorce.
Which brings me to my last story, and the biggest family law news of the week, which of course relates to divorce reform. Although whether we can actually call it ‘news’, I’m not so sure. Early on Tuesday the story broke that the Justice Secretary, David Gauke, had pledged that legislation for no-fault divorce will be introduced as soon as parliamentary time becomes available. This was not really news, as back in February it had been reported that Mr Gauke confirmed he would “bring in legislation enacting the reform in the next session of parliament”. A little later, however, there was something more concrete, when the Ministry of Justice published the Government’s response to the consultation on reform of the legal requirements for divorce. I haven’t studied the response, but it seems that the consultation has not changed the minds of those in government about the essential features of reform that they proposed in the original consultation document. Whatever, I suppose we must be grateful that we are hopefully going to get a system of no-fault divorce after all of these years, even if it may not be exactly what some of us had hoped for. I say ‘hopefully’, as there are still some hurdles for any legislation to get over. In particular, the Government does have the small matter of Brexit to deal with, which could derail any reform of divorce, for example if there is a general election. Let us just hope that the legislation stays on track.
Have a good weekend.
The post A week in family law: Cafcass figures, family justice changes, no-fault divorce, and more appeared first on Stowe Family Law.
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Author: John Bolch
I’ve never been much of a camping enthusiast. It’s not that I don’t appreciate all the great gadgets associated with camping, and I certainly enjoy hiking, fresh air, and getting away from it all. But after toting all our high-tech apparatus into the middle of nowhere, setting up a tent, and rolling out the sleeping bags, I invariably think to myself: this is an awful lot of work for very little comfort. At home I would have had a nice squishy mattress, a flush toilet, clean water, and no mosquitoes. Why am I doing this again? Then it comes time to build a fire and I discover some cruel corollary of Murphy’s Law at work. On those rare days I ever have to attempt this task, it’s always windy, damp, or both. Of course, I know that when matches fail, I can always bring out some specially flammable substance designed expressly for the pyrotechnically challenged. But the latest rage in fire-starting equipment is actually centuries old and uses no chemicals, sparks, or even metal components. Meet the fire piston: a deceptively simple tool that uses compressed air to start a blaze in just seconds.
A fire piston is a small cylindrical object usually made of wood, bone, or plastic. It consists of two main parts: an outer casing, which is hollow but closed on one end, and the piston itself—a rod or plunger that fits the hole in the casing perfectly and whose tip reaches almost, but not quite, to the stoppered end of the tube. The tip of the piston has a small indentation or hole, and just behind the tip is usually a gasket of some kind to ensure an airtight seal—perhaps a rubber O-ring or simply some waxed string. In other words, very basic parts that require little technological sophistication to create.
To use a fire piston, you put a tiny piece of tinder in the indentation at the tip of the piston, and perhaps apply a dab of grease to the gasket for lubrication. Then you place the plunger into the tube and smack it down rapidly. This compresses the air inside, which raises its temperature. Within less than a second, the temperature at the tip of the piston can reach more than 800°F (about 425°C)—enough to turn the tinder into a glowing ember. The pressure also, conveniently, works as a spring that forces the piston back out of the casing. Transfer the ember to a larger pile of tinder, blow for a few seconds, and poof! You’ve got fire.
In an earlier version of this article, I made the rookie mistake of believing something I read on some random webpage, and then compounded the problem by repeating that claim. The claim was that fire pistons work according to a principle called Charles’s law, but that is not only wrong, it’s pretty much the opposite of right. (Charles’s law has to do with the relationship between a gas’s pressure and its temperature, as in rising temperatures make the gas expand.) I hereby repent of my faulty reporting.
In fact, what’s going on is an adiabatic heating process, in which the rapid compression of the air increases its temperature as the pressure increases, and the system doesn’t leave that heat anywhere else to go. You can approximate this effect by inflating a tire with a manual tire pump—yet another piston design—and notice that the pump gets hot as you use it (although that type of design does provide an outlet for most of the heat). This very principle is what makes diesel engines work: the fuel is ignited by rapidly compressed air, not by a spark as in conventional internal-combustion engines. In fact, some people believe Rudolf Diesel may have gotten the idea for his engine from seeing a fire piston being demonstrated.
No one knows who invented the first fire piston. Although the device was patented in England in the early 1800s, a similar design (albeit made from different materials) was apparently in use long before that in Indonesia, the Philippines, and several other southeast Asian nations. The prevailing theory is that in the process of hollowing out a long tube to make a blowgun, a hunter inadvertently ignited some sawdust.
In any case, just as fire pistons were beginning to catch on in Europe, matches hit the scene, and quickly took over as the most popular method of making a flame. And so fire pistons were all but forgotten—at least in the western world—for the better part of two centuries.
But under certain conditions, matches are still no match for a fire piston. Because fire pistons create a watertight seal, they’re virtually weatherproof. And because you’re working with a glowing ember rather than an open flame, wind can actually work in your favor. You do, of course, have to have dry material to burn, but that’s pretty much a given if you’re going to start a fire by any means.
I first heard about fire pistons in an email from one of the many readers who regularly supplement my list of interesting things to research. After browsing a few websites—and, especially, watching some videos of the devices in action—I was simply astonished. I couldn’t believe that something so simple, effective, and useful wasn’t part of every camper’s gear. It might have been, had matches not been invented at just the right (or wrong) time.
Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on April 3, 2005.
Image credit: Chocolateoak [CC BY-SA 3.0], via Wikimedia Commons
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Author: Joe Kissell
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We have published a number of articles previously on the blog about the myths of cohabitation and the lack of legal rights for unmarried couples. (You can have a read here.)
One fact that is correct though is that there is some opportunity for financial provision for any children of the separating parents (although it does come with strict criteria).
To help explain, we invited James Scarborough from our St Alban’s office to join us on the blog to look at what financial provision, if any, is available for unmarried separating parents.
“I often find, when advising clients who are parents but not married, that they are unaware there is scope for receiving or paying maintenance for the children.
This is a complicated area of family law, but it is often to my client’s surprise when I explain there is legislation (Section 15 and schedule 1 of the Children Act 1989 if you need the details) that provides for the parent with day to day care of the child the potential to apply for:
Maintenance
Lump sum
Transfer or settlement of property
I have encountered confusion from my clients in relation to the first point on this list, as they rightly explain they thought that payments for the benefit of children are regulated by the Child Maintenance Service (CMS).
However, the court does have the power to consider a claim for maintenance in the following very specific circumstances:
The non-resident parent’s income is higher than the limit where the CMS deals with maintenance (currently £156k pa gross);
or
in respect of educational expenses;
or
for expenses connected with a child’s disability;
It is worth me reiterating that there is no automatic entitlement to additional maintenance through the courts, simply by meeting the above criteria. For example, if one parent earns £157k pa, it does not automatically mean that the other party should expect the court to award additional maintenance to that they would have to pay under the CMS.
In considering any claims for maintenance (if the above criteria are met), lump sums or transfer/settlement of property, the court will consider:
The income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future.
The financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
The financial needs of the child;
The income, earning capacity (if any), property and other financial resources of the child;
Any physical or mental disability of the child;
The way the child was being, or was expected to be, educated.
It is important to remember that the sole intention of this legislation is to provide for any children. As a result, except in special circumstances, any order is only likely to provide until the youngest child is 18 or finishes secondary education.
Married or divorced parents can also make these applications although they are more likely to rely upon separate legislation. Therefore, I find that it is cohabiting / unmarried parents who benefit most from this advice.
Get in touch,
Our specialist family lawyers frequently advise unmarried couples who are separating to understand their rights. If you would like to speak to a member of client care team you can make an online enquiry here or call the number below.
You can contact James Scarborough here.
The post Not married and maintenance: what are you entitled to? appeared first on Stowe Family Law.
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Author: James Scarborough
Sometimes one comes across cases that are quite different, or that have an element about them that is quite different, from most other cases one normally comes across. The recent High Court case P v O is one such case.
The remarkable feature of P v O was highlighted by Mr Justice Williams in the second paragraph of his judgment:
“This is a case which when it first entered my list and I looked at the case number (FD00P00001) I thought there must be some mistake because that case reference dates back to the year 2000, now some nineteen years ago. But, no, it was not. It related then to a girl called S, who was born on 18 April 1997 and so who is twenty-one now and will be twenty-two in April of this year. Litigation concerning her has been going on, on and off, in this country and in Australia for most of her life, I think, including her father being imprisoned in Australia for, I think, two charges of either making threats to kill or conspiracy to kill the mother.”
So we have a case which goes back nearly twenty years, and relates to a child who is now several years into her adulthood. What can there be left to argue about?
A clue to the answer lies in the last sentence of the above quote. In April 2015 the High Court made a non-molestation order which prohibited the father from communicating or making contact with the mother or S by letter, telephone, Skype, text message, e-mail, any means of electronic communication or through any social networking sites, including Facebook, save through the offices of the mother’s solicitors. Unusually, the order was not time limited, because of the highly exceptional circumstances of the case.
So to this judgment. In October last year the father applied to vary the terms of the order to allow him to communicate with S via the police force in Australia, with the intention of seeing whether S wished to communicate with or contact him.
The application was heard by Mr Justice Williams in the High Court. As he explained, the situation was further complicated by the fact that in May 2016 Bexley Magistrates’ Court made a ‘violent offender order’, which prevented the father or an agent acting on his behalf from contacting nine named individuals, including the mother and S. The violent offender order recorded that the father:
“is a qualifying offender because he has been convicted of the incitement to murder of the mother; and, whilst awaiting sentence, further conspired with others again to have her killed; and has acted in such a way that there is reasonable cause to believe it is necessary for the order to be made on the ground that the mother now lives in fear of her life and her family and friends have been subjected to threats; and she has now been placed under protective services to threats worldwide to protect her identity.”
Accordingly, as Mr Justice Williams pointed out to the father, an amendment to the non-molestation order would not help him, as he would still be bound by the violent offender order, which prevented him from having any contact at all with S. The father has apparently applied to have the violent offender order varied as well.
Unsurprisingly, both the mother and S opposed the father’s application, S making it clear that she wished to have nothing to do with her father at the present time. Mr Justice Williams accepted this.
Accordingly, Mr Justice Williams found that there was no basis upon which to vary the order. In any event, the order of course contained a clear mechanism by which the father could contact S, i.e. through the mother’s solicitors. The father’s application was therefore dismissed.
Now, there is nothing in the judgment to indicate that the father’s true motive for making the application was other than as he stated. However, in a case with such a serious history, it is not difficult to imagine that such an application would in reality be nothing more than another attempt to harass the daughter and/or the mother. In such circumstances I’m sure that the court would be very wary indeed about acceding to such an application, without the agreement of the person or persons that the order was designed to protect.
You can read the full judgment here.
The post Violent father’s application to communicate with adult daughter refused appeared first on Stowe Family Law.
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Author: John Bolch
