It is claimed by some that January is the busiest month for family lawyers, when more people than ever seek a divorce, following family breakdown over Christmas. And if you find yourself seeking a divorce in January, then that is the perfect time to consider family law mediation as a means of sorting out arrangements for children and finances post-separation.
In fact, it is not at all clear that more people seek a divorce in January than at any other time of the year. However, the simple truth is that whenever a marriage breaks down is the perfect time to consider family law mediation as a means of sorting out children and financial arrangements.
And if your relationship has already broken down and there are still arrangements to be sorted out, why not make a New Year’s resolution to use family law mediation to sort out those arrangements?
But why should you use mediation? What arrangements need to be sorted out, and what is wrong with just going to court and sorting things out in the ‘normal way’?
If there are dependent children then the parents will need to sort out where they will live post-separation. This can be with just one parent, or a shared care arrangement, whereby the children share their time between their parents. And if the children are to live with just one parent then arrangements will need to be sorted out for them to have contact with the other parent.
There may also be other matters to be sorted out regarding the children, such as holiday arrangements and what schools they should attend.
In addition, arrangements will be sorted out as to the payment of child maintenance and school fees, if appropriate, including how much will be paid, and how often.
As to other financial arrangements, exactly what needs to be sorted out depends upon whether the parties were married (or in a civil partnership), or were simply cohabiting.
If the parties were married then all financial arrangements will need to be sorted out, including what is to happen to the former matrimonial home, how any other assets should be divided, and what should happen regarding pensions.
If the parties were not married there may still be property matters to resolve regarding any property that was jointly owned, or where it was owned by one party but the other party claims a share.
And if the unmarried couple have dependent children, then it may be necessary to make financial provision for the children, for example to ensure that they have somewhere suitable to live.
As will be seen, there can be a lot to sort out following separation or divorce!
It is absolutely vital that all of these arrangements are sorted out between the parties by agreement, if at all possible.
If they can’t be sorted out by agreement then it will obviously be necessary to have someone else sort them out for you. This will usually mean going to court, but this has serious disadvantages for all concerned, including:
1. Cost – Contested court proceedings are prohibitively expensive. It is far better to preserve precious assets for the family, rather than fritter them away on unnecessary legal costs.
2. Time – Contested court proceedings can take many months, and sometimes even years, to be dealt with, preventing the family from moving on with their lives.
3. Stress – Contested court proceedings can be extremely stressful for all involved.
4. Animosity – Contested court proceedings will often create or exacerbate animosity between the parties, to the great detriment of everyone involved, including any children.
5. Bad outcomes – Lastly, the court will impose a decision upon the parties that they may not agree with.
All of these disadvantages can be removed or reduced if arrangements can be sorted out by agreement.
It is all very well recommending that separated couples sort out arrangements for children and finances by agreement. But what if they try to do so, whether by speaking to one another directly or negotiating through solicitor, but they are unable to reach agreement?
This is where mediation comes in.
Often, all it needs for the parties to reach agreement is someone to help them in the process of negotiation. Someone who can steer them in the right direction, making sure that both parties approach the negotiation in a reasonable fashion, and that neither party seeks to force their views upon the other.
And that someone is a trained mediator.
So how exactly does mediation work?
Family mediation is a process whereby the parties endeavour to sort out arrangements for children and/or finances, with the assistance of a family law mediator.
Whilst anyone can call themselves a mediator, you should choose one who has undergone professional mediation training, and has a recognised accreditation, for example from the Family Mediation Council.
The mediation process will normally consist of a number of meetings, over a period of several weeks, or a few months. Meetings will typically last about 90 minutes.
If the mediation relates to financial arrangements on divorce then, before the process can begin, the parties will be required to make full disclosure of their means so that everyone, including the mediator, knows what is involved, and can form a view as to what would be a reasonable settlement.
If the parties can reach agreement in mediation then a written memorandum of the agreement will be prepared by the mediator. If the agreement relates to divorce finances, then the agreement will need to be incorporated into a consent court order, so that it is both final and enforceable. The order can usually be obtained without the necessity of a court attendance.
And even if a full agreement cannot be reached, it will often be possible to agree some matters in mediation, thereby reducing the number of issues to be argued before the court.
There is a cost involved in mediation, but this is usually shared between the parties, and will almost certainly be considerably less than the cost of contested court proceedings. Legal aid may be available for mediation, subject to eligibility.
It is important to understand that the mediator cannot provide legal advice to the parties, even if the mediator is legally trained (many mediators are solicitors). The parties should therefore seek their own legal advice as they go through the mediation process (see also Solicitor Inclusive Mediation, mentioned below).
It is also important to understand that mediation is entirely voluntary. This therefore means that both parties will have to agree to go to mediation, before mediation can happen. No one can be forced into mediation, although if there are court proceedings the court may take a dim view of anyone who refuses to go to mediation without good reason, and can even impose costs penalties upon them.
It should also be noted that anyone wishing to make an application to a family court to sort out arrangements for children should first attend a Mediation Information and Assessment Meeting, or ‘MIAM’, unless they are exempt. The purpose of the MIAM is to explain how mediation works, and to assess whether the case is suitable for mediation.
Mediation is suitable for most separating couples, but there are cases in which it will not be suitable, in particular where there has been a history of domestic abuse.
In the autumn of 2019 the Family Mediation Council conducted a survey to find out whether family mediation works.
The survey involved 122 Family Mediation Council-registered family mediators, who had carried out mediation in 2161 cases over a six-month period. The issues being mediated comprised 46% children arrangements, 25% property and finance arrangements, and 29% all issues (i.e. arrangements for both children and finances).
The survey found that those who participated in mediation succeeded in reaching complete or partial agreement in over 70% of cases, with 50% of people reaching a complete, written agreement, and the remaining 20% reaching an agreement on some issues, or on all issues, but choosing for this not to be written down.
The survey also showed that where both of the people separating go and see a mediator for an initial meeting, three quarters choose to go on to mediate. This is despite the fact that many don’t know anything about mediation, or think their partner is so unreasonable that mediation will never work.
In short, mediation works, certainly in the majority of cases, and often in cases where it initially seems highly unlikely that it will work. Mediation should definitely be considered by all separating couples as a means of sorting out arrangements for children and finances, and January is the perfect time to begin mediation!
Walker Family Law offer a range of mediation services, including Child Inclusive Mediation (to ensure that the voices of older children are heard and considered during the mediation process), Solicitor Inclusive Mediation (providing support and guidance to clients with legal representation throughout the mediation process), and Online Mediation, allowing clients to participate from the comfort of a location of their choice.
To find out more about how we can help you with our mediation services, see this page.
There is a stereotype that family lawyers are only interested in conflict, which both increases their fees, and aims to achieve the outcome that their client seeks, whatever the cost.
But whilst some such family lawyers may still exist, most believe that there is a better way to approach divorce and other family dispute resolution.
And many of those lawyers belong to Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way.
All of our family lawyers are members of Resolution
So what exactly is Resolution – how did it come about, and what does it do?
For lawyers involved in non-family civil litigation their job is simply to do everything they reasonably can to achieve the best possible outcome for their client, largely irrespective of the effect of their actions upon the other party, or anyone else. This can often mean taking a very robust, confrontational, and sometimes even aggressive, stance, which is obviously more likely to result in heavily contested court proceedings.
And until relatively recent times that was the approach that most family lawyers took to their work. Indeed many, and perhaps even most, lawyers who did family work were civil litigators who did not specialise in family law, and therefore used the same techniques for all of their litigation work.
But around the late 1970s and early 1980s some family lawyers began to recognise that, whilst a robust approach may be appropriate in some family cases, for example where there is domestic abuse or the other party is refusing to cooperate, in many family cases there was a better way.
Obviously, an aggressive confrontational approach to family litigation is highly likely to enflame feelings between the parties, which may already be running high. Increasing the animosity in this way may not only be damaging for the welfare of the parties, it may more importantly be damaging for the welfare of any children involved. It will also, of course, make it much more difficult for the issues between the parties to be resolved by agreement, thus increasing the likelihood of contested court proceedings, with all of the stress, time and cost that they entail.
Thus in the early 1980s some enlightened family lawyers felt that it would be better to take a more constructive and less adversarial approach to family disputes.
The initiative took shape in September 1982 when a London based family lawyer, John Cornwell, gathered together a group of 30 family law solicitors who established the Solicitors Family Law Association (‘SFLA’). A Code of Practice (see below) was then drawn up, setting out the approach that all members of the association should take to their work.
Soon after this regional groups of the SFLA were formed in various parts of England and Wales.
In 2005 the name of the organisation was changed to Resolution, a name which it was felt reflected its ethos. It also reflected the fact that membership of the organisation had widened. No longer was it restricted to solicitors – a wider range of family justice professionals were joining the organisation, including barristers, family mediators and financial advisers.
Today Resolution has a membership of more than 6,500 family justice professionals.
Central to everything that Resolution does is its Code of Practice, to which all members must sign up
The Code aims to promote a constructive approach to family issues, and to consider the needs of the whole family.
To this end, the Code requires that members:
Alongside the Code, Resolution has created a number of Guides to Good Practice, covering such matters as how members should communicate with others, what should and shouldn’t be contained in their correspondence, dealing with cases involving domestic abuse, and dealing with litigants in person. Members are required to use the Guides in their day-to-day work.
A large part of what Resolution does is provide training and accreditation for members.
The training includes conferences, seminars, webinars, online courses and written books and publications, including guidance notes and a bi-monthly member magazine.
The training covers every aspect of family law, and the practice of family law. Examples of recent training event topics include advocacy, domestic abuse, non-court dispute resolution, and family finance.
More specifically, Resolution provides foundation training for those wishing to become a family mediator.
Resolution also offers training for the new Resolution Together service – see below.
In addition to training, Resolution runs a Specialist Accreditation Scheme, which recognises members who demonstrate skilled expertise in specific areas of family law or family finances, and follow the Code of Practice. Resolution describe their specialist accreditation as: “a mark of excellence in practice, recognised by the public, fellow professionals, the judiciary and the Legal Aid Agency.”
Resolution has accreditation schemes for lawyers and for financial advisors. Lawyer members applying for Specialist Accreditation must demonstrate a thorough knowledge of law, procedure and practice. Their skills, proficiency and experience in specialist areas of family law are also assessed. Specialist areas include such subjects as children law, complex financial remedy cases, domestic abuse, and international cases.
Resolution currently has more than 1,200 accredited specialists, who are recognised for having superior expertise in their given specialism of family law.
Another large part of what Resolution does is campaign for important changes to the law in relation to family justice.
One of Resolution’s longest-running campaigns was for the introduction of a no-fault divorce system. Resolution campaigned for this for many years, lobbying parliament, working with ministers and generally explaining the benefits of no-fault divorce to the public. Happily, the campaign was ultimately successful, when the Divorce, Dissolution and Separation Act was passed in 2020, bringing in the new no-fault system in April 2022.
Another long-running campaign seeks basic financial rights for cohabitees on relationship breakdown. As Resolution explains: “Cohabiting couples may make up the fastest growing family type, but the law doesn’t recognise these couples in the same way as those who are married or in a civil partnership.” Many people in cohabiting relationships do not realise that they do not have the same rights as married couples, often erroneously believing in the myth of the “common law marriage”. As a result, many former cohabitees are surprised to find that they are unable to make any financial claims against their former partners, and suffer severe economic hardship as a result. Resolution’s campaign seeks to put this right, by giving cohabiting couples basic rights on relationship breakdown. The campaign also seeks to raise awareness so that cohabiting couples can take measures to protect themselves, for example by entering into cohabitation agreements.
Another campaign follows Resolution’s ground-breaking recent report on domestic abuse in financial remedy cases. The report found that 80% of family justice professionals believe that domestic abuse, and specifically economic abuse, is not sufficiently taken into account in financial remedy proceedings. Particular concerns include abusers failing to provide full disclosure of their means and failing to comply with final court orders, so as to frustrate the financial claims being made against them. Resolution is calling for a cultural shift from all family justice professionals to better meet the needs of victim-survivors of domestic abuse seeking the resolution of finances on divorce. It has also made a raft of recommendations to policy, legislation and processes in order to identify and improve how domestic abuse is addressed in financial proceedings relating to families and their children.
Resolution also runs an annual Awareness Week, held in the last week of November each year. During the week Resolution will promote the benefits of its constructive approach, and will often campaign on a particular policy issue.
In addition to its campaigns Resolution will often use its expertise to provide responses to proposed changes to the law and procedure relating to family justice. If, for example, the government launches a consultation upon a proposed change in the area of family law, Resolution will consider the proposal and publish its response to the consultation.
Finally, Resolution has recently developed a revolutionary new way of working with couples jointly through separation or divorce.
Called ‘Resolution Together’, the service enables couples who want to manage their separation together to seek joint legal advice, rather than separate advice, therefore approaching their divorce in as constructive a way as possible, making jointly agreed arrangements for finances and children based on their shared interests.
This keeps costs down, and aims to steer couples away from the adversarial approach, that so often ends up with contested court proceedings.
Walker Family Law offer the Resolution Together service. For more details, see this page.
The term ‘fathers’ rights’ crops up quite frequently in family law discussions, but exactly what ‘rights’ do fathers have, and how do they differ from the rights of a mother?
To answer the question, we must look at two matters: firstly, the issue of parental responsibility, and secondly the question of what arrangements should be made for the child to live with, or spend time with, each parent.
Before we look at the first of those matters, we should say something about the use of the word ‘rights’ in relation to children.
Despite the fact that, as we will see in a moment, the word ‘rights’ does appear in the legal definition of parental responsibility, judges do not in general like to use that term, preferring instead to talk in terms of a parent’s responsibilities towards their child. Parents do not really have ‘rights’ in respect of their children, but they certainly have responsibilities.
There is an awful lot of confusion and misunderstanding as to what the term ‘parental responsibility’ actually means.
The legal definition of parental responsibility is: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and [their] property.”
As will be noticed, the definition does not include any list of parental responsibilities. The reason for this is that it would be very difficult to provide a definitive list, particularly as ideas of what may be included are likely to change as society changes.
However, certain things are generally accepted to be included, such as choosing which school the child should attend, making decisions as to the child’s religious upbringing, and making decision regarding the child’s medical treatment.
Obviously, most fathers would want to have a say regarding such matters, and if they have parental responsibility then they will have a say (if a matter is not agreed with the mother then the court can be requested to decide it).
So how does a father acquire parental responsibility?
This is the one area where the laws regarding the ‘rights’ of mothers and fathers differ. A mother will always automatically acquire parental responsibility for their child, but a father will not necessarily acquire it without taking certain action.
There are basically four ways in which a father can acquire parental responsibility:
1. Where the child’s father and mother were married to, or civil partners of, each other at the time of the child’s birth, then the father will automatically acquire parental responsibility for the child.
2. Where the child’s parents were not married and the father is named as the father on the child’s birth certificate then he will acquire parental responsibility for the child.
3. Where the child’s mother and father make an agreement (a “parental responsibility agreement”) providing for the father to have parental responsibility for the child.
4. Lastly, where the court, on the father’s application, orders that he shall have parental responsibility for the child. Here, it should be said that in the vast majority of cases the court will award the father parental responsibility. The law takes the view that it will usually be best for the child if both of their parents have parental responsibility, and therefore a father’s parental responsibility application will only be refused if there is a very good reason.
Having parental responsibility is unlikely to make any practical difference to a father from one day to the next. In most cases, the exercise of parental responsibility is only likely to happen on an occasional basis, when some particular matter arises in relation to the child’s upbringing.
But what will make a difference is the arrangements as to how much time the child spends with each parent. If the parents are unable to agree these arrangements then either of them can ask the court to decide the matter, by making a child arrangements order.
The term ‘child arrangements order’ is defined to mean an order regulating arrangements relating to any of the following:
(a) With whom a child is to live, spend time or otherwise have contact, and
(b) When a child is to live, spend time or otherwise have contact with any person.
In many cases the order will cover two things: which parent the child should live with, and what contact the other parent should have with the child. However, it is quite possible for the order to state that the child should share its time with both parents, in which case there will be no ‘contact’ element of the order.
So how does the court decide what the child arrangements order should contain?
The first thing to note is that the child’s welfare is the court’s paramount consideration. In other words, whatever decision the court makes will be based upon what it considers to be best for the welfare of the child.
The second thing to note, and this can be of particular relevance to fathers, is that the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare. This does not mean, as is sometimes thought, that each parent is entitled to have the child spend an equal amount of time with them but simply that the child should usually spend time with both of their parents, unless there is a good reason why this should not be so.
And the last thing to note is that, when deciding upon what order to make, the court must have regard in particular to certain specific matters, set out in what is known as the ‘welfare checklist’. Those matters include the following:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus with an older child the court is likely to give greater weight to the child’s wishes, and with a teenaged child their wishes may determine the outcome of the case. But this will only apply if the court is happy that they are the child’s genuine wishes – if, for example, the court believes that the child is only saying what the mother has coached them to say, then what the child says may carry little or no weight. There have even been cases where the court has transferred the residence of a child from the mother to the father, following a finding that the mother has sought to alienate the child from the father.
2. The child’s physical, emotional and educational needs. If the child has any special needs then the capability of each parent to meet those needs will obviously be a greater factor – see paragraph 6 below.
3. The likely effect on the child of any change in their circumstances. This refers to the situation where the order is likely to change the child’s circumstances, for example by stating that the child should have contact with a parent for the first time, or after a long period with no contact. Obviously, therefore, if a father has been denied contact by the mother he should seek to have the contact re-established as quickly as possible.
4. The child’s age, sex, background and any characteristics which the court considers relevant. This does not mean, as is sometimes believed, that the court will automatically favour a mother with a very young child, or with a female child, just that the court should take into account these matters, if it considers that they are relevant.
5. Any harm which the child has suffered or is at risk of suffering. Obviously, if the court finds that the child has suffered, or is at risk of suffering, harm at the hands of one parent then this will be a major factor in its decision making. If one party alleges that the child has suffered harm due to the behaviour of the other party then the court will determine the truth of those allegations, usually at a ‘fact-finding’ hearing, before making its final decision. Thus, for example, if a father applies for contact with his child and the mother alleges that the she or the child has been abused by the father, then the court will investigate the mother’s allegations, and decide if they are true. If they are found to be true then the court may, for example, decide that the father should only have supervised contact with the child, or even only indirect contact, for example via email and telephone calls.
6. Lastly, how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
It will be seen from all of the above that the law in relation to child arrangements orders does not differentiate between mothers and fathers. Both are treated equally. It may of course be that courts more often make orders that children should live with their mothers than with their fathers, but that is simply because it is more common for a court to find that the child’s welfare will be best served by living with their mother.
There is one more important thing to mention before we leave child arrangements orders, and that is that the orders must of course be obeyed. If, for example, a father has an order that he have contact with his child and the mother fails to obey the order then the father should ask the court to enforce the order. The court will normally take enforcement action, unless there are good reasons why the order has not been obeyed.
To summarise, most fathers will have exactly the same rights as mothers. The law does not differentiate – it treats mothers and fathers in exactly the same way.
As we have seen, the only difference, and in most cases it is no more than a technicality, relates to the way in which fathers acquire parental responsibility for their children.
But as we have also seen, most fathers will get parental responsibility, and that just leaves the matter of child arrangements, where there is no difference at all between the ways that the law treats each parent.
For more information about child arrangements orders, see this page.
Until relatively recent times the conventional idea of a ‘family’ was a mother, a father, and their children, all living together in one household.
But these days it is recognised that there are many different types of families apart from this ‘conventional’ type, such as lone-parent families, same-sex partnership families and, the subject of this post, blended families.
Blended families are a very significant family type. In 2022 the Children’s Commissioner stated that about 10% of families in the UK were blended families. The practical and legal issues that can arise with blended families are therefore of considerable importance.
In this post we will look at some of those issues.
But before we do so, we will first consider exactly what is meant by the term ‘blended family’.
As the name suggests, a ‘blended family’ is a blend of two families, where not all of the members of the family unit are linked by blood or personal relationship ties.
A blended family will begin with a lone-parent family, where the children live with just one of their parents, either because their parents never lived together, or because they separated.
Obviously, a lone parent may enter into a new relationship, and form a family with their new partner. We then have what is commonly known as a ‘stepfamily’, with the new partner being a step-parent to the children (who we will call the ‘stepchildren’).
But what if the parent and their new partner then have children of their own? Then we have a blended family: a combination of a stepfamily and a ‘conventional’ family’.
The Cambridge Dictionary defines a blended family as “a family that consists of two adults, the child or children that they have had together, and one or more children that they have had with previous partners”.
It should be noted that the definition does not require that the two adults be married to one another – they just have to be partners.
Having established exactly what a blended family is, we will now look at the issues that can arise with them, beginning with the practical issues.
It is not difficult to imagine that a blended family can bring with it certain practical issues not experienced by a ‘conventional’ family.
Perhaps the most obvious issue is the difficulty that the step-children may have in coming to terms with the fact that they now have siblings who do not share both of their parents. Whilst many children will have no problem adapting to this new circumstance, careful consideration should be given to how both the natural parent with whom the children are living and the step-parent handle the situation, particularly when the step-children are older, but not yet old enough to fully understand.
Another possible issue is the risk of cutting out the other natural parent from the lives of the step-children. It may be tempting to take the view that the blended family is now a ‘complete’ family unit, but the role of the other natural parent must never be forgotten. And if the natural parent and the stepparent decide to marry, it should be made clear to the stepchildren that in doing so they are not intending to cut the other natural parent out of their lives.
And by the same token the step-children may increasingly want to spend their time with their new siblings, especially as they get older, rather than spend time with the other natural parent. Both the natural parent and the step-parent should be alert to this and make sure, for example, that the stepchildren do not miss out on special activities with their siblings, whilst they are having contact with their other natural parent.
Having said that, the other natural parent should be alert to the possibility that their children want to spend more time with their new siblings, and take this into account with future living and contact arrangements.
There are, of course, other practical issues that can arise with blended families, but hopefully these examples will give a flavour of what all three of the adults involved can expect.
These practical issues can, of course, give rise to legal issues, in particular regarding arrangements between the natural parents regarding the time that the children should spend with each of them. Hopefully, the natural parents will be able to sort out arrangements by agreement between themselves, but if they cannot then it may be necessary for one of them to ask the court to resolve the matter.
We will now move on to the other legal issues that can arise with blended families.
Parental responsibility comprises “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. This will include such matters as making decisions concerning the child’s schooling and medical treatment.
A step-parent will not automatically acquire parental responsibility for the stepchildren, even if they marry the natural parent, and will not therefore be able to have an input in the making of such decisions.
Parental responsibility will normally be shared by the mother and the father. The mother will have acquired it automatically when the child was born, and the father will have acquired it if he was married to the mother, or if he obtained it by agreement with the mother, or via a court order.
Not having parental responsibility for the stepchildren will not normally be an issue for the step-parent, as there are very few occasions in the lives of most children when important decisions arise requiring the exercise of parental responsibility, and most step-parents will simply leave decisions such as what school the stepchild should attend to the natural parents.
But there could be times when it would be beneficial for a step-parent to have parental responsibility for a stepchild, for example when the child is in the sole care of the step-parent and needs emergency medical treatment – there may simply not be time for the step-parent to consult the natural parents.
It is, in fact, possible for a step-parent to acquire parental responsibility for a stepchild, and there are two main ways of doing this.
Firstly, if the mother and the father (assuming he has parental responsibility) agree, then they and the step-parent may enter into a parental responsibility agreement, so that the step-parent will share parental responsibility with them.
Secondly, the step-parent may apply to the court for an order granting them parental responsibility. The court will make the order if it considers that that would be best for the welfare of the child.
But sometimes the step-parent will want to have a much fuller legal relationship with the stepchild, especially in cases where the child has no relationship with the other natural parent. In such circumstances the step-parent can seek to adopt the child.
A step-parent adoption, or ‘partner adoption’ as it is sometimes called, has the effect of making the step-parent the legal parent of the child, and ends the legal relationship between the child and the other natural parent.
A step-parent adoption is actually made jointly by the natural parent with whom the child is living and the step-parent. The application can only be made if the child has been living with both of them at all times during the period of six months preceding the application.
The court will only be able to make the adoption order if the other natural parent consents, or if the court dispenses with their consent.
The court can only dispense with their consent if they cannot be found, they are incapable of giving consent, or the welfare of the child requires their consent to be dispensed with.
In many step-parent adoptions the other natural parent, most commonly the father, cannot be found, in some other cases they will be incapable of consenting, and in some cases they will give their consent.
But sometimes they will oppose the making of the adoption order, in which case an adoption order will only be made of the court considers that it is in the best interests of the child to dispense with their consent.
Inheritance issues can arise in blended family situations. These issues can be quite complex, so we will only deal with them very briefly here.
Perhaps the most important point to understand is that if the step-parent does not make a will then the stepchildren will receive no part of their estate. The intestacy rules apply to estates where there is no will, and whilst natural children may inherit under the rules, step-children will not.
It is possible for a stepchild who has not been provided for by their step-parent to make a claim against the step-parent’s estate, but obviously this scenario should be avoided if possible.
Accordingly, if a step-parent wishes to leave all or part of their estate to their stepchildren then they will have to make a will providing for this.
The last legal issue that we will discuss is in relation to the stepchild’s surname.
Obviously, the stepchild will likely have a different surname from the step-parent. And, if the step-parent is the father of any child born to the stepfamily then it is likely that that child will be given his surname, with the result that the children in the blended family will have two different surnames.
It is not unusual that the parents in the blended family will wish to ‘rectify’ this situation, by changing the surname of the stepchild to that of the stepparent.
However, they can only do so with the agreement of the other natural parent, or an order of the court.
The court may agree to make such an order, if it considers that it would be best for the welfare of the child.
However, the courts nowadays do not consider it as important as it once was that all children in a family share the same surname, and the increase in blended families is part of the reason for that. Indeed, in 2016 the Court of Appeal commented that “the increase in blended families means that it is … no longer the universal norm for a family living together all to share the same surname”.
Accordingly, the court may be reluctant to agree to the name change.
As will be seen, blended families can raise various legal and practical issues, some of which may entail recourse to the Family Court. If any of the legal issues apply to you then you should ask an expert family lawyer to help you navigate your way through them. To speak to one of our specialist family lawyers, complete the form on this page.
It is sadly the case that domestic abuse allegations are often raised in the course of family court proceedings.
A victim of abuse can ask the court to grant them protection from the abuse, for example by applying for an order restraining the abuser from molesting them (a ‘non-molestation order’), or for an order requiring the abuser to leave the matrimonial home (an ‘occupation order’).
Such applications are normally dealt with by the court on their own, but domestic abuse can of course be raised in connection with other issues between the parties, such as the divorce (in relation to sorting out divorce finances), and arrangements for any children.
But how exactly do domestic abuse allegations impact upon these issues?
Before we answer the question we first need to look at exactly what ‘domestic abuse’ means, particularly as the term is often mistakenly believed to refer only to physical violence.
The term ‘domestic abuse’ refers to much more than just physical violence.
The legal definition of domestic abuse says that behaviour of one person towards another is domestic abuse if the two people are each over 16 and are personally connected to each other (e.g. married or in a personal relationship), and the behaviour is abusive.
The definition goes on to state that behaviour is abusive if it consists of any of the following:
(a) Physical or sexual abuse;
(b) Violent or threatening behaviour;
(c) Controlling or coercive behaviour;
(d) Economic abuse (see below); or
(e) Psychological, emotional or other abuse.
Note that it does not matter whether the behaviour consists of a single incident, or a course of conduct.
“Economic abuse” is defined to mean any behaviour that has a substantial adverse effect on the victim’s ability to:
(a) Acquire, use or maintain money or other property, or
(b) Obtain goods or services.
As will be seen, the definition covers a far wider range of abusive behaviours than just physical violence.
And this is very important to know, as often a victim will not realise that their partner’s behaviour amounts to domestic abuse, and will not therefore seek the legal protections to which they are entitled.
So, now that we know exactly what domestic abuse is, we can look at how allegations of abuse can impact upon divorce and child arrangements. We will begin with divorce, although we will first look at a matter that can arise in any kind of family court proceedings where allegations of domestic abuse have been made.
Obviously, a party who has been a victim of domestic abuse can be in a very vulnerable position if they have to face their abuser in court.
Accordingly, the court rules provide special protections for abuse victims, and other vulnerable parties, known as ‘participation directions’
The rules impose a duty upon the court to consider whether a party is vulnerable, and whether it needs to give directions to protect them.
The directions can include such things as having a screen in court to prevent the parties from seeing each other, allowing the vulnerable party to participate in hearings via a live link, and providing for the vulnerable party to participate in proceedings with the assistance of an intermediary.
In addition to these directions, the law states that in family proceedings where one party adduces evidence that they have been a victim of domestic abuse at the hands of the other party, then the other party may not cross-examine the victim in person. And if the alleged abuser does not have a lawyer then the court may appoint a qualified legal representative to conduct the cross-examination in place of the alleged abuser.
We will now look specifically at the impact of domestic abuse allegations on divorce, and financial remedy proceedings connected to the divorce.
The first thing to make clear is that domestic abuse allegations will have no impact upon the legal process of the divorce itself. The behaviour of one party is no longer relevant to divorce proceedings – all that is required to apply for a divorce is a statement that the marriage has irretrievably broken down – the court is not concerned as to why it broke down.
But what of divorce finances (‘financial remedies’)? Can domestic abuse allegations have an impact upon the financial settlement?
The answer is that they can, at least in theory.
When a court considers what financial orders to make on divorce it is required to consider a number of factors, such as the parties’ income, their capital, their needs and their ages.
One of the factors is the conduct of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
But the law states that conduct will only have a bearing upon the settlement if it is particularly serious. In order to have a bearing it must be “both obvious and gross, so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice.”
What this means in practice is that the conduct must be considerably more serious than the type of conduct that may occur in many divorces. Accordingly, cases in which conduct has a bearing upon the divorce settlement are very rare.
In the circumstances domestic abuse allegations, if proved, could amount to conduct that it would be inequitable for the court to disregard, but the abuse would have to be of a particularly serious nature.
There is however another, indirect, way in which domestic abuse could affect a financial settlement on divorce.
If the abuse has had an effect upon the victim’s financial circumstances having, for example, restricted them from following a career, or been economic abuse (see above), then the victim may be in a worse financial position than they would have been if the abuse had not occurred, and the court may therefore award them a more generous settlement as a result.
We will now finally move on to consider the impact of domestic abuse allegations on proceedings between parents concerning the arrangements for their children.
Domestic abuse allegations are unfortunately a common factor in court proceedings between parents concerning the arrangements for their children. It is not at all unusual, for example, for one parent to apply to the court for an order that they have contact with the children, only for the other party to raise allegations of domestic abuse against them.
Clearly, the court will want to know the truth of the allegations.
When a court considers what child arrangements order to make, if any, it must in particular consider a number of relevant matters, set out in what is known as the ‘welfare checklist’. One of those factors, and obviously a very important one, is any harm which the child has suffered, or is at risk of suffering.
If the child has been a victim of the abuse, or has witnessed the abuse, then clearly they will have suffered harm as a result. In fact, it is recognised that merely living in the same home where abuse has taken place is likely to have harmed the child. And if abuse has occurred then there is obviously a risk that the child will suffer harm in the future.
Domestic abuse can therefore have a direct impact upon what kind of child arrangements order, if any, the court will make (we will see an example of exactly how in a moment), and therefore it is imperative that the court first decides whether any abuse allegations are true, before deciding what order to make.
The way in which the court goes about ascertaining the truth of abuse allegations is a matter for the court to decide, but often it will fix a specific hearing for the purpose of considering the allegations. Such a hearing is known as a ‘fact-finding hearing’.
At the fact-finding hearing the court will consider each of the allegations of domestic abuse, hear the evidence of both parties, and decide whether each of the allegations are true. Obviously, it may decide that some of the allegations are true, that they are all true, or that none of them are true. Whatever the findings are, they will be taken into account at any final hearing, when the court decides what child arrangements order, if any, it should make.
We will end by looking at a recent case which demonstrated how findings of domestic abuse may affect what child arrangements order a court makes.
The case related to proceedings between the parents over arrangements for their daughter, who was born in 2020. The parents separated in 2022 and child arrangements proceedings took place. Within the proceedings the father wanted the child, who was then living with the mother, to spend half of her time with him.
The mother made various allegations of domestic abuse against the father, and the court fixed a fact-finding hearing, to determine the truth of the allegations. At the hearing the court found the mother’s allegations to be proved. The father had subjected the mother to physical abuse, emotional abuse, psychological abuse, and coercive control, had subjected the child to emotional abuse, and had exposed the child to his abuse of the mother.
In the light of these findings the court was not prepared to allow the father to have any direct contact with the child. The only contact that he could have was indirect, by way of emails, letters, cards, photographs or presents. In addition, and in order to prevent the father from subjecting the mother and the child to coercive and controlling behaviour in relation to the exercise of parental responsibility, the court ordered that the mother could make all decisions about the child’s education and healthcare without the need for input and consent from the father.
Clearly, allegations of domestic abuse can have a very serious impact upon arrangements for children. Accordingly, if you are involved in child arrangements proceedings involving allegations of domestic abuse it is essential that you seek expert legal advice, at the earliest opportunity. If you or someone you care about is being affected by domestic abuse, please reach out.
Spousal maintenance, where the court orders one spouse to pay maintenance to the other, is synonymous with separation and divorce, but how is it calculated and, more importantly, when is it awarded?
The first thing to note about spousal maintenance is that, as the above indicates, it can be awarded when the parties separate. It is not dependent upon the parties divorcing. It is quite possible for the maintenance to continue for as long as both parties remain alive, even if they never divorce.
Another important point to remember is that either party to a marriage or civil partnership may seek maintenance for themselves, including husbands, wives and partners in opposite-sex marriages and civil partnerships, and either party in same-sex marriages and civil partnerships. When we talk of spousal maintenance we usually think of wives seeking it from husbands in opposite-sex marriages as that is the most common scenario, but it is not the only one. However, for the sake of simplicity we will generally use that scenario in this article, hence we will refer to ‘spousal maintenance’, and to wives seeking it from their (ex-) husbands.
Having got those things out of the way, the first question we must answer is: what is spousal maintenance?
A spousal maintenance order is an order requiring one spouse to make periodical payments to the other. The payments may, for example, require the paying spouse to pay a specific sum to the other spouse each month.
The payments can be secured or unsecured. Secured spousal maintenance orders can be made where the court is concerned that the maintenance may not be paid. In such a case the payments are secured against an asset or property of the paying party, so that the asset may be used to cover any unpaid maintenance. Secured spousal maintenance orders are actually quite rare, and any party asking for one will have to justify it, for example by showing that the other party is unlikely to pay and lives abroad (thereby making it difficult to enforce the order – see below).
Another type of spousal maintenance is ‘maintenance pending suit’, sometimes referred to as ‘interim maintenance’. As the name suggests, maintenance pending suit is a temporary maintenance order which lasts until the divorce is concluded. It is designed to provide for the income needs of the recipient spouse while the divorce is proceeding, and before the court makes a full inquiry into the income needs of the parties, which it will do when it makes a final financial remedies order.
Contrary to what many may think, spousal maintenance orders are not made in every divorce. In fact, in recent times orders for more than a nominal sum (see below) have actually become comparatively unusual.
In simple terms a spousal maintenance order will be made in cases where one party does not have sufficient income to meet their needs, and the other party has sufficient surplus income above their needs to be able to afford to pay the maintenance.
The ‘classic’ situation here would be where the husband is the ‘breadwinner’ and the wife is the ‘homemaker’, who has not worked during the marriage, in order to look after the home and bring up the children. In such circumstances the wife may not have the earning capacity to meet her income needs, at least in the short term, and the husband may be ordered to pay spousal maintenance to cover those needs.
And here we see a reason why spousal maintenance orders are made less frequently now than in the past: far more wives are now working than in previous times. They may thus have their own financial independence, and therefore not require maintenance.
Spousal maintenance orders made in the course of the marriage have an additional requirement: that the paying spouse has failed to provide reasonable maintenance for the recipient spouse. In practice, however, this requirement makes little difference.
As mentioned above, the court can make a spousal maintenance order for a nominal sum. The purpose of such an order is to cover any future possibility that the recipient spouse may need maintenance (in other cases when no maintenance order is made the court will dismiss all maintenance claims by either party, so that no such claims can be made in future).
The most common scenario where nominal maintenance is awarded is where the children live with the recipient spouse and the other spouse pays child support maintenance for them. The court of course has no control over the child support, which is dealt with by the Child Maintenance Service, if it is not agreed between the parents. Accordingly, some judges may be concerned that the parent looking after the children may suffer financial hardship if the child support is not paid, so they make a nominal spousal maintenance order in that parent’s favour, thus giving them the possibility to apply to the court to increase the maintenance at a later date (see below).
A spousal maintenance order can begin on the date that the application for maintenance was made. Accordingly, the order can be backdated, as it will usually be made some time after the application.
In the case of an unsecured spousal maintenance order, it will last until the death of either of the parties, until the remarriage of the recipient spouse, until such date as the court may specify, or until further order of the court.
In the case of a secured spousal maintenance order, the duration of the order is the same, save that it can continue beyond the death of the paying spouse.
As to an order made for a specified duration, the court may, for example, specify that the maintenance should last until any children complete their education, or until a date by which it considers that the recipient spouse should have achieved their own financial independence.
As we will see in a moment, a party can apply to the court at a later date for the duration, or term, of an order to be extended. However, they cannot do so if, at the time of making the order, the court has directed that neither party shall be entitled to apply for an extension of the term of the order.
In deciding the amount of a spousal maintenance order the court will take into account all of the circumstances of the case including, in particular, the incomes (or earning capacities) of both parties, and their income needs, or outgoings.
The court will of course require evidence of both parties’ incomes and outgoings.
As to the parties’ needs, this will be assessed by reference to the standard of living enjoyed by the parties during the marriage, although in many cases it will be expected that there may have to be a reduction in the standard of living post-separation.
Having said that, the court will not necessarily accept all of a party’s claimed outgoings. Outgoings that the court considers to be unreasonable will be ‘disallowed’.
Once the court has considered all of the circumstances it will decide how much maintenance the recipient reasonably requires, and how much the payer can afford.
It should also be noted that the court can specify that the amount of the maintenance should increase or decrease at a certain point in the future, to reflect anticipated changes in the parties’ circumstances.
Spousal maintenance orders can be varied at a later date, both as to the amount of the order and (unless the court has directed otherwise – see above) the duration, or term, of the order.
Before the court varies the order it will want to know that there has been some significant change in the circumstances of one or both of the parties, such that the original order is no longer appropriate.
The variation may, for example, be to increase the amount of the maintenance because the recipient’s needs have increased, or the payer’s income has increased. Or it may be to reduce the amount of the maintenance because the payer can no longer afford to pay the amount of the original order (in which case the court may also remit any arrears that have accrued under the order).
And the term of an order may be extended if, for example, the recipient is taking longer to secure her financial independence than was anticipated when the original order was made.
A common reason for a paying party to ask the court to vary a spousal maintenance order is that the recipient spouse is now cohabiting with another person, and that person is supporting them. Note that, whilst this may be a reason to reduce the amount of the maintenance, possibly to a nominal sum, it will not necessarily be a reason to stop the maintenance entirely.
Spousal maintenance orders, like all other court orders, must be obeyed. But what can the recipient of the maintenance do if the other party fails to pay it?
The answer is to request the court to take enforcement action.
There are various methods of enforcement available, but often the best way to enforce a spousal maintenance order is by way of an attachment of earnings order.
An attachment of earnings order requires the payer’s employer to deduct a regular sum from the payer’s wages, which will be paid towards the maintenance. The court will decide how much the deductions will be, based upon how much it believes the payer can afford. The deductions will usually be the amount of the maintenance, plus a sum towards any arrears that have accrued.
Of course, attachment of earnings will not be possible where the payer is self-employed, in which case another method of enforcement should be used, such as a third party debt order, which freezes money in the payer’s bank account and orders that it be paid to the recipient of the maintenance.
If you have a spousal maintenance issue then you should seek expert legal advice. We have a team of expert family lawyers who can provide you with the advice that you need. To speak to one of our specialist lawyers, complete the form on this page.
It is often the most important question in the mind of anyone facing divorce: how will their assets be divided?
Whether you are extremely wealthy and wish to preserve as much of that wealth as possible or, at the other end of the scale, you are simply anxious to keep what few assets you possess, you will want to know the answer to the question.
And to provide the answer we must look at the law that the court will apply when deciding how to divide the assets.
The starting-point is that, when coming to its decision, the court must have regard to all of the circumstances of the case, the first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
Thus, the fact that there is a dependent child will have a bearing. And in a case involving modest assets, it might be decisive. If, for example, the child is to live with one parent then that parent may need the lion’s share of the assets, in order to provide the child with suitable accommodation.
Most cases, however, are not so straightforward.
But saying that the court must have regard to “all of the circumstances of the case” is not very informative.
Thankfully, parliament has provided some assistance by setting out a list of matters to which the court should in particular have regard.
And there are also other principles that the courts themselves have devised to assist in the decision-making process.
We will begin by looking at the matters to which the court should in particular have regard.
Parliament has set out a statutory list of eight such matters, as follows:
1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire. Obviously, the court will need to know what assets each party possesses, before it can make a decision as to how the assets should be divided. And it is also obvious that if a party already has significant assets of their own then, all other things being equal, they are likely to receive less of the other assets of the marriage.
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future. The two main such needs in most cases are income and housing needs. Many cases, especially those involving more modest assets, will be decided upon the basis of needs. Thus, for example, if one party’s needs are greater than the other party’s needs then the party with the greater needs may be awarded a greater share of the assets.
3. The standard of living enjoyed by the family before the breakdown of the marriage. If the parties enjoyed a high standard of living during the marriage then the court will attempt to divide the assets so that they can each continue to enjoy the same standard of living after the marriage. Of course, this may not be possible in many cases, with the same assets having to support two households, rather than just one.
4. The age of each party to the marriage and the duration of the marriage. Age can obviously be relevant to the question of needs, especially if a party is over, or approaching, retirement age. The duration of the marriage will, generally speaking, have little bearing upon how the assets are divided, although if it was a very short childless marriage then the court could take the view that the parties should simply be returned to the position they were in before the marriage took place.
5. Any physical or mental disability of either of the parties to the marriage. This could obviously be relevant to the needs of the disabled party.
6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family. Note that ‘contributions’ does not just refer to financial contributions. Note also that there is a general principle of non-discrimination between the different roles assumed by each party during the marriage. Thus, the financial contribution of a money-earning party will not usually be considered to be more valuable than the contribution of a ‘hone-maker’ or a ‘child-carer’. Even a very substantial financial contribution is unlikely to entitle the party who made it to more of the assets, unless that contribution was truly exceptional (such a situation is extremely rare, and would only be likely to occur in very big-money cases).
7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it. It is quite often the case that one party to a divorce will be aggrieved at the conduct of the other party, and will consider that the conduct should result in the other party receiving less of the assets. However, to have a bearing upon the financial settlement the conduct will have to be of a particularly serious nature. Conduct is therefore very rarely a factor in the division of the assets.
8. Lastly, in the case of proceedings for divorce or nullity of marriage (i.e. not in the case of a judicial separation), the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. The main such benefit will be in relation to the other party’s pension. Pensions will usually be dealt with by way of a pension sharing order, whereby all or part of one party’s pension will be transferred into a pension belonging to the other party. They can also be dealt with by an off-setting arrangement, whereby one party keeps their pension and the other party receives a greater share of other assets, in compensation. Pensions are usually divided in the same proportions as other assets, so that if the other assets are divided equally then the pensions will also be divided equally.
As mentioned above, there are other principles that the courts use to decide how to divide assets on divorce. One of these is the principle of ‘matrimonial assets’ (or ‘matrimonial property’).
‘Matrimonial assets’ are the assets that will always be divided between the parties on divorce. Non-matrimonial assets will usually not be divided, (save as mentioned below), and will therefore remain in the possession of the party who owns them.
The matrimonial assets are those assets that were acquired during the marriage, through the joint efforts of the parties to the marriage. Accordingly, assets acquired before the marriage, or after the parties separated, are considered to be ‘non-matrimonial’, as are inheritances and gifts to one party.
The exception to the rule that non-matrimonial assets will not be divided is where they are required to meet the needs of a party. In such cases that party may be awarded a share of the other party’s non-matrimonial assets.
Another principle that the courts use to decide how to divide assets on divorce, and perhaps the most important principle of all, is the ‘sharing principle’.
The sharing principle states that, as a general guide, an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is good reason for doing so.
Many cases are decided by the application of the sharing principle, with the matrimonial assets simply being divided equally between the parties.
The question then is: what is a good reason to depart from the sharing principle? Well, the most common reason is needs. Where the needs of one party are greater than the needs of the other party then the party with the greater needs are likely to receive more than half of the assets.
The above summary sets out the most important matters and principles that affect how assets are divided on divorce.
As will be seen, there is no formula to decide how assets are divided. Each case will be decided upon the basis of its own facts. Further, the law is designed to give judges some leeway, so that there is often no definitive answer to the question.
It is therefore impossible in an article like this to provide a conclusive answer to the question, although hopefully we have provided some useful guidelines.
For a more full answer as to how you assets are likely to be divided on divorce you will need the advice of a specialist family lawyer, tailored to your particular case. We can provide you with such advice. To speak to one of our specialist lawyers, complete the form on this page.
There is a general principle of finality in litigation. This means that the court’s final order is intended to bring the matter to a conclusion. In other words, litigation is not to last forever.
The principle applies to final financial remedies orders in the same way as it applies to final orders in other types of proceedings. Accordingly, once a divorce settlement (whether agreed or decided by the court) is incorporated into a sealed final order then the financial remedy proceedings are at an end.
But are there any circumstances in which divorce settlements can be reopened, after the order has been made?
The answer to this is that there are. A financial settlement can be reopened, but only in very limited circumstances. The principle of finality will only be put aside if there is a good reason to do so.
There are essentially three categories of cases in which a financial remedies order may be reopened:
1. Where the judge making the order fell into error;
2. Where there has been no error by the judge, but there is some issue with the material that was before the court when the order was made; and
3. Where subsequent events have changed a fundamental aspect of the order.
We will now look at each of these in turn.
Where a party believes that the judge who made the order fell into error then they can seek to appeal against the order. However, anyone considering an appeal should be aware that the law provides a high bar to appeals, as we will see in a moment, in part because of the principle of finality, referred to above. As a result, a successful appeal against a financial remedy order is quite unusual.
Before pursuing an appeal it can be a good idea to raise the possibility that they fell into error with the judge, as it is possible for the judge to change their mind.
If the judge does not change their mind and correct the error then if the party is still not satisfied they will need to apply for permission to appeal. Permission will only be granted if there is a real (realistic as opposed to fanciful) prospect of the appeal being successful, or there is some other compelling reason to hear the appeal.
If permission is granted then the party can proceed with the appeal.
Financial remedy appeals must be made within 21 days of the order that is being appealed, unless the court agrees to extend that time.
An appeal may be allowed where the decision was wrong or unjust for procedural irregularity.
The court may conclude a decision is wrong or procedurally unjust where:
1. An error of law has been made; or
2. A conclusion on the facts which was not open to the judge on the evidence has been reached; or
3. The judge has clearly failed to give due weight to some very significant matter, or has clearly given undue weight to some matter; or
4. A process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust; or
5. A discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible. (Judges deciding financial remedy cases will often have quite a wide discretion as to exactly what order they may make so that, for example, it may in a particular case be within their discretion to award a party anything between one half and two-thirds of the assets.)
So, appealing is one way to reopen a divorce settlement, albeit unusual. What of the other ways?
The second way of reopening a divorce settlement involves having the financial remedies order set aside.
This relates not to the judge making an error, but rather the situation where there is some issue with the material that was before the court when the order was made.
There are various types of such issues.
One type of issue is where there has been fraud on the part of one party, for example where that party presented forged documents to the court. Where fraud is established it is highly likely that the order will be set aside, unless the perpetrator of the fraud can show that at the time the order was made the fraud would not have influenced a reasonable person.
Another, rather more common, type of issue is where there has been non-disclosure by one party, so that the court did not have all of the information it should have had when it made the decision. If the non-disclosure had been innocent and would not have made a significant difference to the outcome of the case then the court may decline to set aside the order. But if the non-disclosure had been on purpose and would have made a significant difference then it is likely that the order will be set aside, so that the court can reconsider the settlement.
A third type of issue is where there has been undue influence. This can happen, for example, where one party has sought to influence the other to agree to a settlement that is unfavourable to them, or to agree not to pursue a claim against certain assets.
Another example is where there has been a mistake at the hearing when the order was made, for example a mistake as to the value of an asset. Obviously, the mistake will have to be proved, and will have to be so significant that it was likely to have altered the order that the court made.
Getting an order set aside for one of these reasons is again quite unusual, as the judge making the original decision is obviously likely to have been aware of any fraud or non-disclosure, and will have guarded against any undue influence or mistake.
The final category of cases where a financial remedies order may be reopened is where subsequent events have changed a fundamental aspect of the order.
Once again, there are strict rules about this, and the circumstances in which an order may be set aside because of subsequent events are quite limited.
An application to set aside an order because of subsequent events is called a ‘Barder application’, after a 1988 House of Lords case by that name, and the subsequent event is known as a ‘Barder event’.
If a Barder event is proved, then the court will allow the party making the application to appeal against the order out of time.
In the Barder case the House of Lords set out four conditions that would have to be satisfied before the court would grant permission to appeal out of time:
1. That the new events that occurred since the making of the order invalidate the basis, or fundamental assumption, from which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed.
2. That the new events have occurred within a relatively short time of the order having been made.
3. That the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
4. That the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order (for example where the matrimonial home was sold under the terms of the order).
So what type of events have satisfied these conditions?
One example occurred in the Barder case itself.
In the case the husband and wife agreed a settlement whereby the husband was to transfer his interest in the former matrimonial home to the wife, who would be looking after the parties’ two children, in full and final settlement. The settlement was incorporated into a consent court order.
Tragically, only five weeks after the order was made, and before the transfer had been put into effect, the wife killed the children and then committed suicide. In her will, she left her estate to her mother. Her mother then sought to enforce the order, and the husband sought to appeal against the order out of time.
The House of Lords held that these exceptional facts did fulfil the four conditions above. In particular, the fundamental assumption behind the order was that the wife and the two children would, for years to come, require a suitable home in which to reside. That assumption was totally invalidated by the deaths of the children and the wife within five weeks of the order being made, and accordingly the appeal was allowed.
Since 1988 there have been other successful Barder appeals, arguing various Barder events, such as changes in the value of assets, cohabitation or remarriage of a party, and even changes in the law. However the courts, mindful of the principle of finality, have generally been reluctant to grant them, with the result that relatively few have been successful.
As we have seen, divorce settlements can be reopened, but only in very limited circumstances.
If you want to have divorce settlements reopened it is essential that you first seek expert legal advice. Attempting to have divorce settlements reopened can be very expensive, often with little or no prospect of success.
We can provide you with the advice you require. To speak to one of our specialist lawyers complete the form on this page.
Parental alienation is a term that comes up frequently in a family law context, including in the mainstream media, and especially on social media.
But the term is often quite misunderstood, and few non-lawyers will know how the family court will deal with a claim by one parent that the other parent has alienated their child against them.
Such claims will normally be made in the course of child arrangements proceedings, when one parent has applied to the court for an order that the child live with, or have contact with, them.
But before we look in detail at how the court deals with parental alienation claims we first need to examine what exactly is meant by the term ‘parental alienation’.
As mentioned above, the term ‘parental alienation’ is often misunderstood.
For example, it is often referred to as a ‘syndrome’, as if it was capable of being diagnosed.
But this is not how parental alienation is viewed by the courts.
There is in fact no legal definition of ‘parental alienation’. Perhaps the closest thing to an ‘official’ definition is the approach taken by the Children and Family Court Advisory and Support Service (“Cafcass”), which uses the term “alienating behaviours” to describe behaviours where one parent or carer expresses an ongoing pattern of negative attitudes and communication about the other parent or carer, that have the potential or intention to undermine or even destroy the child’s relationship with their other parent or carer.
Cafcass also say that: “These behaviours can result from a parent’s feelings of unresolved anger and a desire, conscious or not, to punish the other parent or carer. Alienating behaviours range in intensity and their impact on children.”
As to exactly what type of behaviours can be involved, it has been said that: “These behaviours can include negative attitudes, communications and beliefs that denigrate, demean, vilify, malign, ridicule or dismiss the child’s other parent. It includes conveying false beliefs or stories to, and withholding positive information from, the child about the other parent, together with the relative absence of observable positive attitudes and behaviours.” (Johnston and Sullivan, 2020).
Whether there have been any such behaviours by one parent is simply a matter of fact for the court to decide. As the President of the Family Division has said:
“What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
The court will deal with allegations of parental alienation in a similar way to any other allegations that one parent might make against the other. In short, it will be all about the evidence.
The evidence will generally take two forms: the evidence of the parties (and any other witnesses they may call), and expert evidence.
The parties will give their evidence in two ways: in the form of written statements and orally in court, when the other party will have the opportunity to cross-examine them.
Whether or not an expert (for example a psychologist) is instructed to give evidence is a matter for the court to decide. If the court does direct that an expert be instructed, it will usually give detailed directions as to who should be instructed, and the remit of their instructions. The expert will carry out those instructions, prepare a report, and give evidence orally in court.
The court will normally decide the truth of the parental alienation allegations at a ‘fact-finding’ hearing. At the hearing the court will go over the allegations in detail, and decide whether they have been proved.
The findings will then be used at the final hearing, when the court will decide what order or orders should be made on the child arrangements application.
The way that the court deals with parental alienation allegations can be illustrated by two case studies from real cases, one in which the allegations were found to be proved, and one in which they were not proved.
The first case concerned a father’s application for a child arrangements order, for his son to live with him.
The background to the case was as follows.
The parties were unmarried. They had an on/off relationship, which ended when their son was born in 2016. Thereafter, the father had extensive contact with his son, including staying contact.
In or around December 2020, the mother made an allegation to her GP that the father had inappropriately touched the child. She also informed the father that he may not be the biological father, and that she was moving away.
According to the father, this coincided with him requesting parental responsibility. The father stopped seeing the child in January 2021, when the mother suddenly relocated from Kent to Manchester, without giving the father her new address.
The father then made his application, in April 2021.
The court ordered a psychological assessment of the family and for the local authority to investigate the case and prepare a report.
Both the psychological assessment and the report were clear that there had been parental alienation on the part of the mother which would cause significant harm to the child, and that the child had already suffered emotional and psychological harm in the care of his mother.
The local authority also very clearly recommended a change of residence for the child, from the mother to the father.
The mother had been found to have been continually reporting that the child had been sexually harmed by his father, despite an investigation by Children’s Services finding no evidence of this. The allegations against the father had been made in order to alienate the father after he had indicated to the mother that he wanted to be named on the child’s birth certificate, to enable him to have parental responsibility.
In the light of these findings the court made an order in June 2022 that the child should be moved to live with his father, pending further assessment and a final hearing.
The final hearing took place in March this year.
The evidence at the final hearing was clear: the child had suffered, and would continue to suffer, from significant emotional harm if returned to the care of his mother.
Accordingly, the judge had no hesitation in concluding that the child should remain living with his father. She therefore ordered that the child should live with the father.
The second case illustrates a not uncommon phenomenon: an allegation of alienating behaviour being used as a counter-allegation to an allegation of domestic abuse.
The case concerned a mother’s application for a child arrangements order for the children, who were aged 12 and 9, to live with her. At the time the children were having no direct contact with their father, consistent with their expressed wishes.
In connection with her application the mother made numerous allegations of serious domestic abuse against the father. The father, in turn, alleged that the mother had alienated the children against him.
The court fixed a fact-finding hearing to determine the truth of the parties’ allegations against each other. The hearing took place over six days, in March this year.
The full findings after such a long hearing would obviously take some time to repeat. In short, the court made findings of fact in respect of the father’s use of coercive controlling behaviour towards the children and towards the mother, neglect of the younger child’s medical needs, financial control over the mother, making major decisions about the children’s lives without the mother’s consent, providing misleading information to the court and using court proceedings to emotionally torment the children and the mother.
Further, and most significantly, the court made findings that the father had raped the mother.
Meanwhile, the court found none of the father’s allegations to be proved.
It should also be noted that the court made an order that the father pay the mother’s legal costs, which were assessed at £50,445.40.
At the next hearing, a Dispute Resolution Appointment, the father indicated that he did not accept the court’s findings, but did accept that until and unless the findings were successfully appealed they were binding on all parties, and for that reason he did “not oppose anything.”
Accordingly, the court made an order that the children live with the mother, and have indirect contact only with the father.
But that was not all. The court also made an order permitting the mother to change the children’s surname, an order restricting the father’s parental responsibility for the children (including prohibiting him from communicating with their schools), and an order barring the father from making any application in relation to the children without the court’s permission, until the youngest child attains the age of 16.
Obviously, this case was just as much about domestic abuse as parental alienation, but it does demonstrate the lengths that the court is prepared to go to establish the truth of allegations by one parent against the other. Parental alienation allegations are a serious matter, and the truth of the allegations is likely to have a considerable bearing upon the outcome of the case.
The world of family law can be something of a mystery to the uninitiated, and everyone coming into contact with a family law issue has a question to ask. Here, we will endeavour to shed a little light upon the subject, by providing answers to ten of the most commonly asked questions.
Divorce can obviously be extremely stressful, so many people going through it will be anxious to know how long it will take.
Unfortunately, there is no fixed answer to how long a divorce will take, as it depends upon the circumstances.
And it is not just about the process of dissolving the marriage. There will often be other issues to deal with. In particular, it will usually be necessary to sort out arrangements regarding finances and property. Those arrangements will often take considerably longer than the divorce process.
As to the divorce process, this will take place in two stages: up to the conditional divorce order, and up to the final divorce order.
The process up to the conditional divorce order is begun by issuing the divorce application. After that, twenty weeks must elapse before the party or parties who issued the application can apply for the conditional order.
And then a further six weeks must elapse after the conditional order before an application can be made for the final order.
Accordingly, the divorce process will take at least twenty-six weeks, or six months, from start to finish.
But as we mentioned earlier, there may also be arrangements for finances and property to sort out, and it is usually advisable not to apply for the final divorce order until those arrangements have been dealt with, which could take several more months, or longer.
For the vast majority of cases, the answer to this question is simple: it is not possible to defend a divorce under the current divorce law (it was possible under the old law, which was replaced in April 2022).
To give a little more detail, there is only one ground for divorce, and that is that the marriage has broken down irretrievably. The court will accept a statement from the party who applied for the divorce that the marriage has broken down irretrievably as proof of that fact. The other party therefore does not have the opportunity to argue that the marriage has not broken down.
There are however three situations where the other party can oppose the divorce, but they are very unusual: where they do not believe that the court has jurisdiction to deal with the divorce, if they can prove that the marriage was never valid, or if the marriage has already legally ended.
Again, this question has a simple answer: yes, it is possible for both parties to the marriage to apply jointly for the divorce.
Such joint applications were first made possible by the introduction of the new law on divorce in April 2022.
Joint divorce applications proceed in a similar way to applications by one party, save for one point.
Where the conditional divorce order (see above) was made in favour of both parties, but the application for the final divorce order is to be made by one party only, that party must first give the other party 14 days’ notice of their intention to apply to the court for the conditional order to be made final.
The answer to this question is once again: it depends upon the circumstances.
The first thing to understand is that the assets that are divided between the parties on divorce are those assets that are considered to be ‘matrimonial’. Matrimonial assets are those assets that were acquired during the marriage, through the joint efforts of both parties to the marriage. Accordingly, assets acquired before the marriage, after the parties separated, or by way of gifts or inheritances acquired by one party, are not ‘matrimonial’. Non-matrimonial assets will only be awarded to the party who did not acquire them if they are required to meet that party’s needs (more of which in a moment).
The next thing to understand is that there is a general principle that the courts use when deciding upon the division of the matrimonial assets. It is known as the ‘sharing principle’. The sharing principle states that an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is a good reason for doing so.
The sharing principle means that in many cases the assets will indeed be divided equally on divorce.
However, in many other cases there is a good reason to depart from equal division. The most common such reason is the financial needs of the parties, in particular in relation to their housing and income. Those needs may well mean that one party should receive more of the assets than the other party.
You may well be entitled to a share of your spouse’s pension on divorce, particularly if the pension was accrued during the course of the marriage, and your spouse has greater pension provision than you.
Pensions are often one of the most valuable assets on divorce, and it is therefore essential that they are taken into account in the divorce settlement.
Exactly how the pensions are taken into account will depend upon the circumstances, but the ‘sharing principle’ mentioned above still applies. This means that it is not uncommon for pensions to be ‘equalised’ between the parties, so that each party is left with the same pension provision.
Pensions can be dealt with in there ways: by a pension sharing order, which transfers all or part of one party’s pension into a pension belonging to the other party; by a pension attachment order, which states that one party will receive part of the other party’s pension, when the other party receives it; or by an offsetting arrangement, whereby the pension owning party keeps the pension, and the other party receives more of the other assets, in compensation.
It is certainly advisable that an order be obtained, to ensure that the agreement is both final and enforceable.
Such an order is usually referred to as a ‘consent order’. Consent orders are technical legal documents, which should be prepared by a specialist family lawyer.
Consent orders can normally be obtained without the necessity of attending court, but the court will require details of each party’s means, so that it can be sure that the order is broadly reasonable. In rare cases the court might refuse to make the order, so it is best for both parties to seek legal advice before applying for the order, to ensure that the terms of the agreement are reasonable.
Parental responsibility is defined by the law as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
There is no definitive list of parental responsibilities, but they include such things as the duty to maintain the child, the duty to educate the child, the decision to have medical treatment administered to the child, and the right to choose the child’s name.
Where the parents are married, both automatically acquire parental responsibility. Where they are not married, only the mother automatically acquires it – the father can acquire it by being registered as the father on the child’s birth certificate, with the mother’s agreement, or by obtaining a parental responsibility order from the court.
There are essentially three types of orders that the court can make in private law children cases (i.e. cases not involving social services):
The answer to this is simple: there is no such thing as a common law marriage. An unmarried couple will never acquire the status of marriage simply by living together, no matter how long they do so.
Importantly, this means that anyone who lives together without getting married will not acquire the rights of a married person to make financial claims against the other party, in the event that the relationship breaks down.
Everyone will understand that domestic abuse includes violence by one party against the other, but it also includes much more.
Domestic abuse consists of any of the following:
Needless to say, if you have been the victim of any type of domestic abuse then you should seek urgent advice upon how you can obtain the protection of the law.
It is hoped that the above was useful, but obviously there is no substitute for detailed advice, tailored to your particular issue. We can provide you with that advice. To speak to one of our specialist family lawyers, complete the form on this page.
