The Ministry of Justice have today published a report looking at the needs and experiences of people who are no longer eligible for legal aid in family law proceedings and are having to represent themselves.
Drastic cuts were made to the availability of Legal Aid in 2013 and the fallout from these is becoming increasingly clear. Basically the report says that those who are having to navigate the family justice system with no or little support are finding it quite difficult… er … Isn’t that kind of obvious?
Recommendations are made at the end of the report which may be helpful (in the probably unlikely event that they are implemented in full) but in all likelihood those who no longer qualify for legal aid and who cannot afford full service legal advice will continue to struggle. The risk remains that injustices will occur. In the family justice system the stakes are not just those of parents but can outcomes significantly impact upon the couple’s children.
We have recently assisted a father who would have received legal aid under the old system but not under the present system. The child’s mother made allegations against the father which allowed her to gain legal aid. These allegations were never tested in court. The outcome was that the mother was legally aided and father not. The father felt he was disadvantaged in trying to negotiate fair and long-term arrangements through which he would be able to see his children.
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The rate of marriage has increased steadily over the last five years whilst the rate of divorce appears to be steady in the same period. Although over a ten-year period that has been a significant decline in the number of divorces. This is information that can be found in the answers to a Freedom of Information Act request published on the website of the office of National statistics on the 22 September 2014. We have reproduced the questions and answers below in italics but (more…)
I reproduce below a news release from the Family Solicitors Organisation Resolution together with a link to the Article.
Isn’t it shocking that in 2014 children whose parents have not married are much more vulnerable if their parents separate and isn’t it shocking that people don’t realise how out of date the law is! Law reform please?
Resolution Press Release on Cohabitation
In recent weeks there has been a groundswell of support for much needed reform of the law on how unmarried couples are treated when they separate. Senior members of the judiciary, including President of the Family Division Sir James Munby and Justice Nicholas Mostyn, have in recent weeks called for law reform on cohabitation
Resolution supports their views, which echo what we have long been calling for – bringing the law up to date with modern society by giving cohabiting couples greater legal protection if they separate.
Jo Edwards, Chair of Resolution says: “Many people don’t realise that cohabitees don’t have the same legal rights as married people, and that ‘common-law’ relationships aren’t recognised in this country. It can lead to (more…)
In the last of months I have successfully mediated a couple of cases where the answer to this was starkly illustrated.
In the first case, the couple had instructed solicitors from London and the South East. The couple had assets of several million pounds, including a number of properties and other investments. In less than 12 months they had between them accumulated legal costs exceeding £20,000.
In the second case, the couple had significantly less resources, but in a period of six years since separating they had accumulated between them legal costs of in excess of £25,000.
No financial agreement had been reached in either case. No applications had been made to the Court asking for a Financial Orders either. There had been a lot of letters written. Financial documents had been exchanged and in one case there had been a meeting between each client with their Solicitors; but no agreement.
As a solicitor, my philosophy is always to explore whether a case can be resolved quickly and amicably. If this is not possible then an application should be made to the Court. Negotiations can continue, but if there is no agreement, the Court will make a decision. I seek to avoid drift. When the final agreement/order is achieved there is finality and the costs stop.
But Mediation is quicker than a Court process. In the above mediation cases we found a solution to all outstanding issues in two and three joint meetings. All four of my clients were very pleased with the outcomes and these were completed for a fraction of the costs they had already incurred, and for a fraction of their likely costs should be cases have proceeded to Court. (more…)
On 20 August 2014 the government published a document called “A brighter future for Family Justice”
This describes itself as “a round up of what’s happened since the Family Justice Review”
Here is a link to the full document which can be downloaded from the government website. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/346005/family-justice-review-update.pdf
There is not a lot that is new in this document, the publication of which, coincided with an announcement by the Minister Simon Hughes to make the first actual mediation session free of charge to both parties provided that one of them could prove they were eligible to receive legal aid. I published a post about that announcement yesterday which included a link to the relevant press release.
Amongst the data contained within the first part of “A brighter future for Family Justice” were statistics showing that real progress was being made in completing childcare cases if possible/normally/(unless there is an exceptional reason why not) within a 26 week period.
These type of cases routinely used to take over a year to complete. (more…)
Below is a press release from the Family Mediators Association/FMA on the subject of meeting with children as part of the mediation process. the FMA press release is in response to a recent change in government policy.
I myself, am a member of the FMA and served for a short spell on their board of governors. I also a mediator who is trained to meet with children as part of the mediation process. The training that I undertook to be able to do this was through the family solicitors organisation Resolution, but was led by Lisa Parkinson, who was one of the founders of the FMA and who is a very well-known and respected mediator.
As a solicitor, I have been a member of the Law Society Children Panel or Law Society Child Law Panel, as it is more correctly known these days, since 1996. This means that I have represented both children and parents in complex court cases brought by social services and involving every permutation of child safety issue that you could possibly think of, over a very long period. I am also accredited by resolution as an expert on domestic abuse.
I agree with the idea that where appropriate (more…)
Hooray! The schools have now broken up and my own children are happily at home enjoying what they do best, which is arguing with each other!
Generally speaking separated parents will by now have reached agreements (including through mediation) or made applications to the Court about how their children will spend time with the different parts of their family during the school summer holiday. It is always much better if these things can be agreed. It is much much better for children if holiday contact can be agreed well in advance in order to allow the children to look forward to spending time with each parent and to going on whatever holidays have been arranged.
Below is an info graphic produced by the family solicitors organisation: Resolution, which includes five tips for stressed out parents of all varieties.
Resolution is (more…)
In October 2013 I met a new client who was the grandmother of a child who was subject to care proceedings. The local authority in question had reached the conclusion that the child’s parents were not going to be able to provide their child with good enough care and were looking at alternative options, including adoption. At the point in time when we were instructed the child was about to be moved from a placement with a different family member into foster care.
My client had received a cursory viability assessment from a social worker who had immediately left the employment of the local authority and was not being looked at as a possible carer for the child, either in the short term, or in the long term.
My client disagreed with the negative viability assessment. She was confident that she would be able to provide a secure and loving home for her granddaughter. She did not feel that she had been fairly assessed and (more…)
A Prenuptial Agreement is an agreement between a couple, before marriage, which intends to regulate what is to happen about property and finances if they separate.
The Law of Divorce means that any agreement between the couple is not binding until it has been approved by a Court. The Court has discretion and the Judge needs to be satisfied that the agreement is reasonable.
The Court has a wide discretion and this is deliberate, in order to ensure that the weaker of the couple is protected from unfairness. The Court will also wish to ensure that the needs of any minor children are also met. This said the Court is increasingly unlikely to disallow an agreement which has been reached in a fair way and where the implementation of the Agreement in full would lead to an outcome which it would not be fair to hold the couple to.
Lord Philips of the Supreme Court explained in 2010 in the case of Radmacher (formerly Granatino) v Granatino:
‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.
In a nutshell, the couple need to show;
1. The contracts were entered into freely and voluntarily; 2. Both parties had the benefit of independent, competent legal advice; and 3. Full disclosure was made of all relevant, financial and other circumstances.
What the Court will look at when it is asked to approve the terms of the Agreement
The Supreme Court said there were also three issues that needed to be considered by the Court when deciding whether to give effect to a Prenuptial Agreement
1. Were there circumstances attending the making of the agreement which should detract from the weight which should be accorded to it? 2. Did the foreign elements of the case enhance the weight that should be accorded to the agreement? 3. Did the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement?
So far as point 3 is concerned a significant event such as the birth of children in the relationship may supersede the agreement.
The Court would also be interested to know if one or both of the couple were from a country where such agreements are more common than in this country. Can you cut corners?
If you try to cut corners, you will not find out if you have succeeded until it is too late.
If a Prenuptial agreement is right for you, it is worth investing the the time to get it done properly in order to ensure enforceability. You could save a few hundred pounds now and it could cost you thousands, even hundreds of thousands of pounds later.
Is it better to build a house of straw or a house of bricks?
In theory anyone might benefit from having a Pre-Nup. We would particularly suggest older couples, perhaps entering into a second marriage, where one or both have children and where one or both have assets of some value.
They are not romantic, but they are pragmatic and realistic. Going into a marriage with open eyes does not mean that that the marriage is being undermined. You could argue, that by having serious discussions about money in advance of a wedding will mean that a couple have a better sense of the strength of their relationship and better understanding of each other’s attitudes toward money. Perhaps those are ingredients for a more durable and successful union?
In the spring of 2014 the Law Commission reported on the subject of Prenuptial Agreements. No changes to the current law have been made as yet. The essence of what was proposed was a clearer system which might encourage greater use. However the need to do go through an open process to allow both of the couple to make informed decisions with Legal Advice and disclosure remain key.
In short we would say yes. Luckily we are Family Law Solicitors in Honiton, Exeter and Taunton who undertake this work.
Below is our forthcoming article in East Devon’s Midweek Herald Newspaper. I like the Midweek Herald which covers Honiton, Axminster, Seaton, Ottery St Mary, Beer and Sidmouth. I have been a regular reader since we moved to East Devon 15 years ago. I have reproduced the article in full.
April 2014 has seen big changes in how disputes between separating partners and about children should be dealt with. These include the introduction of a Unified Family Court; the abolition of Residence and Contact Orders (Child Arrangements Orders instead) and a greater expectation that couples should resolve their disputes out of Court with the assistance of a professional mediator.
It is now a Legal requirement that (more…)
