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Getting married is a big deal. It is not just two people in love devoting their lives to one another. It is two separate lives, each having their own past, property and financial history, joining together as one. This can cause many concerns and complications. Money can be a significant factor. And, in efforts to protect assets and property in case the union ends in divorce, many couples intending to get married decide to include a prenuptial agreement in their marriage.

Understanding whether or not a prenuptial agreement is right for you means understanding what a prenup is. In simple terms, it is an agreement between two people intending to marry that addresses various issues that focus on property rights and assets. For some, the purpose is to provide protection in the event of a divorce. For others, this document helps ease the divorce process, helping to address many of the divorce issues.

A common misconception about prenuptial agreements is that a person needs to be wealthy to enter into one. This is not true. Taking the step to protect property is not exclusive to the rich and famous. Wanting to leave a marriage with what one brought into it is a common desire and the prenup can help one achieve this goal.

Whether you seek to just protect yourself in case of a divorce, are on a subsequent marriage or are trying to invalidate or enforce a current marital agreement, it is important to understand how best to navigate these matters. A prenuptial or postnuptial agreement may be in your best interest and it is important to understand how these could benefit you.

As I have often said here, I don’t usually comment upon cases dealing with public law matters, i.e. children cases involving a local authority, in particular care proceedings. However, the recent case London Borough of Wandsworth v Lennard clearly has lessons for anyone involved in any type of children proceedings.

The case has two aspects: the factual one and the legal one. I’ll come to the legal one in a moment, but the factual one is perhaps of greater interest to readers. It concerns the all too common circumstance of the parent, frustrated with the way that the ‘system’ is dealing with their case, losing their temper and taking matters into their own hands. It also concerns the serious issue of protecting all of the professionals working within the family justice system, be they social workers, as in this case, Cafcass officers, judges, court staff or even lawyers dealing with cases.

We are told at the beginning of the judgment in the case that the Defendant, the father of the children concerned in the case, was in July last year made subject to an injunction order prohibiting him from using offensive, foul, threatening words or behaviour towards two social workers employed by the Applicant local authority, the London Borough of Wandsworth. Unfortunately, the judgment does not explain why that order was made, but we can assume that it was because the Defendant had previously behaved in such a way towards the social workers.

We are then told that in February this year, as he admitted, the Defendant attended Wandworth Town Hall, and detained two other social workers, by preventing them from leaving a room. It was alleged that in the course of the incident he made threats of harm towards one of the social workers named in the order.

The named social worker was not present during the incident, but the local authority nevertheless sought to have the Defendant committed to prison for breach of the order, the sole alleged breach being the threat towards that social worker. The committal application was heard by Mr Justice MacDonald in the High Court.

OK, let’s just pause there. The Defendant has now, it would seem, behaved completely inappropriately, to put it at its mildest, towards social workers on at least two occasions. In so doing, he has of course done himself and his case no favours. He risks being sent to prison for his behaviour, and he has no doubt seriously damaged his case (for details of what the case was about, see the report).

Meanwhile, looking at things from the perspective of the professionals involved, they have been subjected to abusive language, threats and more. They obviously should be entitled to go about their work free from such things, and are clearly entitled to the full protection of the law.

But then, so does the father, and this is where the legal aspect of the case comes in. Committing someone to prison, curtailing the liberty of the citizen, is obviously a very serious step for a court to take. It will only therefore be taken when there is a clear breach of an order, and provided that strict procedural requirements have been complied with. The effect of this is that the terms of the order are narrowly interpreted, to ensure that they are not used to cover more than was intended.

Here, Mr Justice MacDonald construed the order in the narrow sense that the word “towards” meant that the words used by the Defendant should have been used in the ‘presence’ and directed at the named social worker. The social worker hearing the words from others did not count. Note, however, that if the words had, for example, been published on social media and the named social worker read them then they would be caught by the order.

Mr Justice MacDonald accepted that this narrow interpretation may be said to reduce the protective efficacy of the injunction. However, the penal consequences of the injunction argued against extending the effect of the injunction to words that were not spoken in the presence of the person protected by the order.

Accordingly, there was no breach of the injunction, and the committal application was therefore dismissed.

That is not necessarily the end of the matter, however. The judgment ends with Mr Justice MacDonald saying: “Given the conduct that has been admitted by [the Defendant] in his statements before the court, I will hear submissions on whether the terms of the current injunction should be extended either in their ambit, their duration or both.” I would be surprised if the injunction was not extended, in both ways.

You can read the full judgment here.

The post Lessons for all from a contempt case appeared first on Stowe Family Law.

As I’m sure the reader will be aware by now, last Thursday the Lord Chancellor David Gauke introduced the Divorce, Dissolution and Separation Bill into the House of Commons. The Bill intends to amend the law on divorce, civil partnership dissolution and judicial separation by doing away with the need to attribute blame, or fault, for the breakdown of the marriage/civil partnership (in the case of divorce and dissolution), and as a ground for obtaining a judicial separation. I mentioned the Bill in my weekly review post here last Friday, and now I thought I would take a closer look.

The Bill is actually quite short, containing just nine sections and a schedule, setting out the amendments that the Bill makes to previous statutes. The Bill is in three parts, headed “Divorce and judicial separation”, “Civil partnership: dissolution and separation”, and “General”. I will deal with each in turn, although as you may have guessed, the second part is just the civil partnership ‘version’ of the first part, so I won’t be spending much time repeating myself: just take it as read that whatever applies to divorce applies also to civil partnership dissolution. And I won’t be spending much time at all on the third part either.

OK, to section 1. This essentially states the new basis for a divorce, and the basic procedure.

As to the former, we are told that either or both parties to a marriage may apply to the court for a “divorce order”, which dissolves the marriage on the ground that the marriage has broken down irretrievably (i.e. the same ground as at present). Such an application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably, and the court must take the statement to be conclusive evidence that the marriage has broken down irretrievably, and therefore make a divorce order. This “conclusive evidence” point has some lawyers and academics in a bit of a spin: surely, you can’t tell a court whether a thing is true – it must be up to the court to decide? Well, yes that is usually the case. But the point here is that the law will at last recognise that once one party decides that the marriage is over, then unless they change their mind it is over, and there is nothing that the court, or the law, or the state itself, can do about it.

Although not mentioned in section 1, it should be noted that the bar on petitions/applications for divorce within one year of marriage will remain.

As to the procedure, this will be in two stages, as at present, with the first stage culminating in a ‘conditional’ order (equivalent to the present decree nisi), and the second stage culminating in that conditional order being made final (equivalent to the present decree absolute). Again, there must be a six week gap between the two, but the big difference is that the conditional order cannot be made unless the applicant or applicants confirm that they wish the application to proceed, such confirmation having to be made after twenty weeks have elapsed since the proceedings were started. This is the so-called “period for reflection”, designed to give the parties time to reconsider. Personally, I think it is rather patronising for the state to think that they will have applied for a divorce without having already given the matter full consideration. I also think that twenty weeks is a very long time, meaning that even if everything is completely straightforward the quickest divorce is going to take at least six months. Why should people have to put their lives on hold for so long, just because the state says so? The Bill does provide that the periods can be shortened by the court “in a particular case”. Presumably, this would include those cases where one party has a terminal illness, and may not live long enough to get divorced before they die. The Lord Chancellor may also at a later date shorten or adjust the time periods, so long as together they do not exceed six months.

One other point of interest in section one is that an application made jointly by both spouses may subsequently proceed as an application by one spouse only, if one of the spouses changes their mind.

Moving on, section 2 deals with judicial separation. Again, there will be a modernisation of the terminology. The old ‘decree of judicial separation’ will be replaced by a ‘judicial separation order’. As one would expect, an application for an order may be made by either or both parties to the marriage, and must be accompanied by a statement that they seek to be judicially separated (no need to allege fault, etc.). The only other thing to say is that, once again, the court has no choice: upon receipt of an application the court must make a judicial separation order.

Moving on again, section 3 deals with dissolution of civil partnerships, and section 4 deals with separation orders for civil partners. I’ve had a look through both, and as far as I can see the amendments to the existing law are exactly as one would expect, matching the amendments to divorce and judicial separation law.

Finally, the last part of the Bill deals with general matters, in particular consequential amendments to the various pieces of affected legislation, most of which are to do with the terminology changes.

You can read the Bill as introduced, here.

The post A closer look at the new Divorce, Dissolution and Separation Bill appeared first on Stowe Family Law.