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Tempted to read your spouse’s emails? Don’t - and here’s why

It’s not unusual in relationships that are breaking down for one party to suspect the other of wrongdoing.

That may relate to the suspicion of adultery, concealment of financial assets or more general concerns about behaviour affecting the marriage.

It may be tempting for a spouse to search for evidence to support their feelings that all is not right. Living under the same roof it may be all too easy to access private documents belonging to your spouse to gain certainty.

Stop.

The fact you are married does not entitle you to do this and the possibility the documents are easily accessible is not an excuse.

A recent case in Switzerland serves as warning of the potential ramifications of accessing a spouse’s private emails, or any other private documents.

In this case the wife, who was not named, logged on to her husband’s new, second email account. She used a password she already knew as the couple shared passwords, or noted them down next to their computer.

The wife discovered the partner had been having various extramarital affairs. She subsequently confronted him about this, and the couple separated.

The matter came to the attention of the authorities and the wife was charged with unauthorised intrusion into her husband’s data. She was convicted and given a hefty fine.

On appeal the conviction was upheld, although the fine was reduced because she only had to “exploit her husband’s carelessness” and thus exert “minimal criminal energy” to gain access to the emails.

The case serves as a sage reminder to husbands and wives in England & Wales that they too are not entitled to freely access their spouse’s private documents, including emails. The issue was dealt with in 2010 by the Court of Appeal in London in the Imerman case. In this instance the more common situation of one spouse believing the other is hiding financial assets from the court was the issue.

Here, the wife feared her husband would conceal his assets in divorce proceedings, and therefore obtained financial documents belonging to him from a computer in an office he shared with her brothers.

The Court of Appeal held she had to return the documents and not retain copies. She was also not allowed to use any information she had gained from them within the divorce proceedings.

In this case the wife did not suffer any criminal penalty for her actions. However, in his judgment, Lord Neuberger, said: “the surreptitious removal of papers may, depending of course upon the circumstances, involve offences such as theft or burglary”.

He went on: “But where, as in this case, information is surreptitiously downloaded from a computer, there may also be criminal offences under the Computer Misuse Act 1990 and the Data Protection Act 1998.”

In other words, a spouse in this country could face a similar fate to the wife in Switzerland.

Further to this, said Lord Neuberger, the spouse whose documents had been taken could sue the ‘guilty’ spouse for breach of confidence. This could result in the ‘guilty’ spouse being ordered to pay damages.

If you fear a spouse is going to conceal assets, the law offers some protection.

In any financial remedy proceedings both parties are under a duty to make full disclosure of their means to the court and the other party. If you believe that your spouse has not done so, then you should take up the matter with the court through your legal representative.

The court can order specific disclosure, and can even assume they own undisclosed assets, if it believes the truth has not been told.

So, as we approach what the media has in recent years termed ‘Divorce Day’, remember the simple rule is, don’t be tempted to access private emails or documents belonging to your spouse whatever your suspicions. Instead, rather than risk later action against you, seek legal advice.

For professional legal advice contact one of our solicitors on 0161 838 5410.

(This blog was posted on 03 January 2018)

#divorceday #familylaw #knowyourrights

Christmas Survival Guide

Kate Thorpe discusses 'The First Christmas'… and offers up 5 practical ways to get through your first Christmas after a break up.

Kate is a practicing Psychotherapist specialising in Stress and Anxiety issues.

Christmas is a magical time… except when it’s not! A family break-up or divorce is life changing, and the impact of emotions such as loss, loneliness, financial worries, and fears of coping as a single or absent parent, are often underestimated. Christmas, traditionally seen as a time for family and togetherness, can seem like just another slap in the face.

Yes, your first Christmas after a break up will be an adjustment, and as with any new situation, the first time is always the most difficult. But it doesn’t have to be a foregone conclusion that this Christmas will be awful, and in fact, you could even make it a great one! Here are some suggestions of what you can do to make this first Christmas as good as it can be for you and your children:

1. Take yourself out

Uplift and re-energise yourself by taking a trip in nature, whether that’s the local park, a bicycle trail, or up into the hills (always be safe). Exercise and fresh air are Nature’s remedies for much that ails the mind and spirit. While outdoors, notice everything around you, truly take in the beauty and wonder of the natural world, and allow your mind to recharge. Enjoy being refreshed and invigorated, and who knows, it might even be the start of a new, healthy habit for the New Year.

If you prefer company, consider joining a local organised walk, and for runners, there is often a Park Run organised on Christmas Day. Whatever you do, get yourself outdoors and get going. Your mind and body will thank you!

2. Avoid the Christmas Competition

When sharing the children on Christmas Day, it can sometimes feel like a competition with the ex in terms of who can provide the better day, the best presents, the biggest tree, etc, all of which can make Christmas seem more like a battleground than a joyous festival. It may be healthier all round to simply ignore what your ex does, and focus just on you and your children. Indulge in some past favourite Christmas traditions, but also, create some new ones that you can all enjoy in your new circumstances. Make new and happy memories for the kids to take with them, and give them something extra to look forward to next year.

Importantly, plan both for the time you have with them, and for the time you are alone, so you can make the most of both.

3. Indulge yourself

If you’re spending Christmas day (or part of it) alone, be completely self-indulgent. You have total control of the TV remote, and everything else! Eat all the food that you want. Binge watch Netflix or your favourite movie collection. Spend time on your hobbies. Wear pyjamas all day if it suits you. Really pamper yourself. Make the most of this opportunity to be completely selfish, and relish it, guilt free!

4. Be Productive

Use that extra time on your hands to good advantage and finish those jobs that you just haven’t had time for. A good clear out and checking things off can be cathartic, bringing a wonderfully gratifying sense of achievement.

5. Help others

Volunteering is a way of connecting with others in a way that you might never have done before, and can be immensely satisfying. If you have the time, many organisations will welcome you with open arms and friendly smiles, and you will be helping to give others a better Christmas.

Check your local newspaper or community centre, or try these links:

https://www.salvationarmy.org.uk/volunteer-for-us

https://do-it.org/

While the run up to Christmas can be a crazy time, Christmas itself is just one day; so quickly it has come then it's gone, the New Year arrives, and normality returns. In moments of struggle this year, try to remember; “This Too Shall Pass”.

To contact Kate, please call 07913 721 071 / 01457 761 229, email [email protected], or check her soon to be live new website https://katethorpeconsulting.com.

If social media is your thing perhaps #Joinin with Sarah Millican on Twitter @SarahMillican75

#joinin #familylaw #christmas

Why we all identify with London’s not so perfect families

Tired of those perfect TV families? Wish someone would portray parenthood as you recognise it? Motherland is likely the series for you.

If alpha mums, car pool envy, hopeless in-laws and absent spouses feature in your life then a) you’re not alone and b) it’s good therapy to laugh about them. Motherland’s depiction of life as a primary school parent in London is brutally frank. Its central character, Julia (Anna Maxwell Martin), is hanging on for grim life and frequently left wondering why she bothers. In most scenes she’s harassed and hurried, late taking her children to school, late for work, late for picking up from school, late for life.

Her plight is not helped by those alpha mums, the stay at home ones who get the best table at the coffee shop, who are perfectly made up at the school gate and who aren’t perpetually stressed, nor wracked with doubt and guilt (at least not on the surface).

Families can be your biggest support, but don’t ever take them for granted. Julia’s problems worsen after her own put upon mother tires of her role as unpaid babysitter while Julia dashes from one missed appointment to the next. With that support withdrawn Julia turns to her ‘mum friends’ to take on similar responsibilities.

One of the many things Julia is crying out for is some matrimonial advice. Hilariously – not so funny if it were real life – her partner is only spied at stag dos, the football or go-karting on a company bonding day. What a drag. Meanwhile Julia frets over keeping up with the Queen’s Park Joneses, finding the cheapest priced nanny and the constant juggling and logistical nightmares with which all parents will identify. If you’ve ever thought that joining a carpool would be a life-changing event for you, you can empathise with Julia.

What she needs is someone to listen to her and give her some sound advice. One of those mum friend’s, Liz (Diane Morgan), has her own ways of dealing with being a single parent. She’s a laidback, life-hacker keeping stress at bay with cheats, fixes and a to-be-admired it’ll be alright attitude.

Want to know how to throw a party for 30 children, survive a school fund-raiser or get your children into the oversubscribed breakfast club? Then Liz is your lady. Many of us would relish a Liz to sort out those little mysteries of modern life.

The laughs come from the excruciating – and real – scrapes these parents get themselves into. It may not be perfect, but that’s life in all its muddle of extended families, tangled relationships and thwarted aspirations.

If you’ve not yet caught up with Motherland – it’s on BBC2 on Tuesdays at 10pm – there’s good news. You can have a school night binge on all six episodes on the BBC iplayer.

https://www.youtube.com/watch?v=OsCiuS2GJE4

If life ever feels like one chaotic round of appointments and disappointments it might just make you feel better.

Merrick Legal takes #LawtoDoor to London every month and we’ll be there again on January 5. Talk to us on 0161 838 5410.

#Motherland #London #familylaw

We’re offering a home delivery service with #LawtoDoor

Merrick is rolling out a Cumbria ‘home delivery’ service for people needing expert legal help.

Amanda Merrick and her team are looking to break the mould in taking their services on the road to meet potential clients at venues and times that suit them.The service is called #LawtoDoor and it is in Cumbria this Friday (Dec 8).

Amanda has been a Manchester-based family lawyer for 28 years and has successfully developed #LawtoDoor to further extend her work in London. Cumbria is the second area to be chosen for the service.

Amanda, who has strong family connections in the Lake District, said it was vital those in rural areas had good access to the range of skills and experience that were often needed in times of intense stress, such as divorce and family breakdowns.

She said: “I have a long-held passion for the law and firmly believe in access to justice.

“Cumbria is a part of the world that is very close to my heart and I understand that while it’s the isolation and rural beauty that makes it unique, that can also cause problems for people when they need services that are often only found in our bigger cities.

“#LawtoDoor is my way of trying to make those services more accessible. No longer do we sit expecting you to come to us. Thanks to a membership of the Institute of Directors we now have use of meeting rooms nationwide; we can meet with you at home instead if you prefer, or at work, if space and the boss allow.

“I’m also partial to a cuppa if you want to meet first on a more informal basis.”

Anyone in need of Merrick’s professional help should get in touch for an appointment on 0161 838 5410 or email [email protected]

Amanda has extensive experience in cases of high net worth but she hasn’t lost her long-held passion for the law and access to justice ensuring that MERRICK remains committed aswell to #lawforgood. The firm has, therefore, recently developed its own AccessUs scheme, which aims to ensure good quality legal representation is also available at an affordable level.

Amanda, who developed a love of the Lakes through her father, Tony, a former long-term licensee at the Queen’s Head Hotel in Hawkshead, said: “There are lots of people who can’t get advice because they can’t afford it.

“We are, therefore, rolling out AccessUs, a case-managed service intended to enable access to justice and every member of the Merrick team is tasked with dedicating a certain percentage of their time to it.”

Posted 04.12.2017

#Cumbria #LawtoDoor #FamilyLaw #Merrick #lawforgood

A Word about wonderful families

Family, Manchester and The Lake District. Three things we know and love all have a starring role in a current piece of prime BBC drama.

The trials and tribulations of The A Word’s Hughes and Scott families are back on our screens - alternately making us smile and tugging at our heartstrings.

When it comes to strained relationships, this has it all. The central theme may be the family trying to come to terms with seven-year-old Joe’s autism, but add to that separating couples, serious illness, single parenting, new relationships and the stress of launching a business. For family lawyers, it’s a bit of a busman’s holiday.

The six-part drama revisits the messy, mixed-up lives of families struggling to do their best as parents and people when nothing ever feels normal. Change to a routine or personal circumstance can be difficult for us all. For an autistic child it has the potential to throw their whole life - and therefore the lives of all those close to them - upside down.

It’s impossible not to be gripped by the conflicting parental emotions of wanting to protect and keep close and knowing that in this situation expert help is what’s required.

There's undoubted love and concern running right through this fictional family but there’s also the realism that living in a beautiful part of the UK doesn’t grant immunity from life’s body blows.

The stunning backdrop of the fells and tantalising glimpses of Keswick, Coniston and Thirlmere certainly grab the attention. In fact, it’s the strength of the Lakes, it’s unspoiled, breath-taking landscape, that breeds the isolation that can be felt by those who need services only a big city can offer.

So it is for Joe and his family, who now face a daily 190-mile round trip to get him to a school in Manchester where he can access the support he needs.

This is where the drama pitches it so right. It mixes the uncertainty and heartache of Joe’s family with moments of everyday humour - mum and son making paper hats in the back of their broken down car - being a case in point.

The link with the big city ran right through the first series and is now established in the second. No surprise really given that writer Peter Bowker is a favourite son of Manchester.

While the physical aspects of the city are less frequently seen than those of the Lakes - and there’s no traffic! - there’s a clear message that it’s the place where specialist help is available.

As a video teaser for the series neatly sums up ‘we are complicated, we are clueless, we are dysfunctional, we are family.’ Yes, we are, all those things and more.

Merrick Legal takes #lawtodoor to Cumbria every month and we’ll be there again on December 8. Talk to us on 0161 838 5410. Follow us @MerrickLegal on Twitter www.merrick-solicitors.com

#TheAWord #Manchester #LakeDistrict #familylaw

INEQUALITY IS THE NEW EQUALITY

Marriage, it is often said, is a partnership of equals. It took English law a long time to give effect to that expression, but it has done so (or tried to do so, if it can) since 2000 and the case of White v White in the House of Lords. Six years later, in the cases of Miller and MacFarlane the same court explained that sharing – and usually equal sharing – of the fruits of the marital partnership was one of the rationales for a redistribution of property on the ending of a marriage.

The sharing principle does not mean that the starting-point in all cases is that the assets of a marriage should be shared equally. However, any proposed settlement should be measured against the “yardstick of equality”, to determine whether it is fair in the circumstances of the case. To the extent that there is a departure from equality, it will have to be justified and explained.

To put it another way, the effect of the sharing principle is that the assets of a marriage should be divided equally, unless there is a good reason why an equal division would be unfair. So the question is: when is an equal division unfair? Two recent Court of Appeal cases demonstrate circumstances in which the court considered that there should be a departure from equality.

The first case was Sharp v Sharp. The facts in the case were that the parties lived together from 2007, and were married in 2009. There were no children of the marriage. For most of their time together they both worked and earned similar salaries, but the wife received bonuses totalling £10.5 million, whereas any bonuses that the husband’s employment brought were “comparatively trivial”.

The wife commenced divorce proceedings in 2013 and issued a financial remedies application. At the time that the application was heard by Sir Peter Singer in the High Court the total assets held by either party amounted to £6.9 million, although the husband accepted that a property acquired by the wife prior to the marriage should be left out of the pot of “matrimonial assets” for division between the parties. The total value of the matrimonial assets was £5.45 million. Sir Peter Singer decided that that sum should be divided equally, and therefore awarded the husband £2.725 million.

The wife appealed against this decision, to the Court of Appeal. She argued that an equal division of the matrimonial assets was not appropriate, because of the short duration of the marriage and the fact that the parties had largely kept their finances separate. The wife’s appeal was allowed.

The leading judgment of the Court of Appeal was given by Lord Justice McFarlane. He described the relevant factors as being that “the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and… one of them has been paid very substantial bonuses during their time together.” As to the source of the bonuses, the court of appeal found that the husband had made no contribution to the source of the bonuses (which derived from favourable trading conditions fortuitously enjoyed during the marriage) and that their domestic contribution had otherwise been equal. The judgment is critical of the trial judge, and of the profession, for departing from the majority of the House of Lords in Miller and simply applying the yardstick of equality to everything built up during the marriage, without sufficient recognition of the way the parties themselves arranged their finances. On a proper view of the majority in Miller, there was scope for, and it was appropriate to, depart from equality where the parties themselves had done so in the arrangements they had put in place. There was no principle that departure from equality in such circumstances could only take place where the parties had expressly agreed to do so in a properly-constituted nuptial agreement. Thus the husband’s award was reduced to £2 million, to reflect a combination of the following three factors: (a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he was to retain; and (c) some share in the assets held by the wife.

The other case was Hart v Hart. The facts in this case were very different. The parties were married in 1987. At the time of the marriage the wife had no significant assets but the husband, a property developer, was already a man of substance. The very long marriage produced two children, both of whom are now grown up. They separated in 2006 and divorce proceedings were commenced in 2011.

A financial remedies hearing took place in the High Court in 2015, at which time the assets were valued at £9.4 million. At the husband’s behest, the focus of the trial was on the husband’s wealth at the time of the marriage. However, the husband’s litigation misconduct – a combination of non-disclosure and deliberately misleading disclosure – made it impossible for the court to form any view as to the scale of the husband’s pre-marital wealth. This, in turn, made it impossible to establish the true scale of the matrimonial acquest (to which the wife was entitled to an equal share) or to contend that pre-acquired property had become nuptialised, and so matrimonial on character. The judge resolved the resulting dilemma by making an award quantified solely by reference to the wife’s needs (which he held to be c. £3.5 million).

The wife appealed. She argued that, after a long marriage, it was for the husband to establish a satisfactory evidential foundation for the substantial departure from equality that he sought, and that he had failed to do so. The argument was supported by the requirement that, in every case, the court should make findings as to the matrimonial property, and that such findings required the court to consider not only the scale of any pre-acquired property, but also the use that had been made of it during the marriage (to determine whether it had become mingled, shared or otherwise nuptialised). Second, the husband’s litigation misconduct had made it impossible for the wife to quantify her sharing claim and it was unfair in those circumstances for her award to be restricted to needs in circumstances where the husband’s non-disclosure had made it impossible for the wife to evidence that she had a sharing claim which would found a higher award.

The Court of Appeal dismissed the wife’s appeal. The lead judgment was given by Lord Justice Moylan. He accepted that there were ‘deficiencies’ in the husband’s evidence about the extent of his assets. However, he dismissed the suggestion that the current law on matrimonial property required the court, in every case, to make detailed findings as to its extent. The investigations which it was reasonable to conduct, and whether the enquiry required a precise arithmetical approach (as in Jones v Jones) or a more laissez-faire approach (as in C v C) was for case management, and required consideration of proportionality and reasonableness. In this case, the wife’s concession that the husband was a man of means at the start of the marriage entitled the judge to conclude that an equal division would be unfair to the husband and, equally, that an unequal division would be fair to the wife. Although the court expressed considerable reservation at the judge’s decision to confine the wife’s award to her needs, after much reflection it could not say that this fell outside the generous ambit of the judge’s discretion.

To many practitioners both these cases are shocking in their different ways; Sharp because it elevates what was an unspoken agreement to maintain largely separately finances to the same realm as a properly negotiated and executed pre-nuptial agreement, but with none of the safeguards; and Hart because the husband’s litigation misconduct was permitted to obliterate the wife’s own sharing claim. Certainly, whenever a case involves a short marriage, or pre-marital property, parties and practitioners are going to have to think hard about the arguments they advance. Neither decision sits comfortably with the need to discourage litigation by adopting an easily understood and comprehensible approach to two commonly-encountered situations, or to encouraging parties to settle their disputes as quickly and cheaply as possible.

For professional legal advice contact one of our solicitors on 0161 838 5410.

(This blog was posted on 19 October 2017)

#equality #familylaw #divorce

Civil partnerships for all – dispelling some myths about cohabitation

In 2004 the Government introduced civil partnership for same-sex couples in England and Wales, for the first time enabling them to enter into a formal legal relationship (although the law did not come into effect until December 2005). Civil partnership gives same-sex couples similar rights to married couples, the primary difference being simply one of terminology. That difference was subsequently ‘rectified’ in 2013 when the Government passed the Marriage (Same Sex Couples) Act, giving same-sex couples the right to marry.

What the Government has not done, however, is give opposite-sex couples the right to enter into a civil partnership. That omission has been challenged in court by one opposite-sex couple in particular, who want to enter a civil partnership rather than get married.

Rebecca Steinfeld and Charles Keidan are a young couple in a committed long-term relationship. They have a daughter, and another child on the way. As Mrs Justice Andrews explained in the High Court: “They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to the institution of marriage, based upon what they consider to be its historically patriarchal nature. They wish, instead, to enter into a civil partnership, a status which they consider reflects their values and gives due recognition to the equality of their relationship. However, they are currently unable to do so.” Accordingly, Ms Steinfeld and Mr Keidan took the matter to the court. They sought a judicial review of the Government’s decision not to extend civil partnership to opposite-sex couples, and a declaration that the law is incompatible with Article 14 of the European Convention on Human Rights. The latter prohibits discrimination on the basis of sex (amongst other things), taken in conjunction with Article 8 of the Convention (the right to respect for private and family life).

The case went before the High Court in January 2016. Mrs Justice Andrews found that the law was not incompatible with Article 14. She held that the difference in treatment between same-sex couples and opposite-sex couples did not infringe the right to private life. Opposite-sex couples can achieve exactly the same recognition of their relationship and the same rights, benefits and protections by getting married, as they always could. Accordingly, the application failed.

Ms Steinfeld and Mr Keidan then appealed, to the Court of Appeal. The Court of Appeal agreed that the law is discriminatory, but two of the three judges held that the discrimination was justified because the Government is looking into changing the law, and needed more time to consider the matter.* The appeal was therefore dismissed.

Not prepared to wait for the Government to change the law, the couple sought permission to appeal to the Supreme Court. That permission has now been granted, although a date for the Supreme Court hearing has not yet been fixed. So what exactly would it mean for cohabiting couples if the Supreme Court finds in their favour? To answer this we need to look a little more deeply at their reasons for preferring civil partnership to marriage, and for wishing to enter into a civil partnership at all, rather than simply continuing to cohabit. Those reasons were perhaps best set out in a statement from a witness supporting their case, who has been in a relationship with her partner for thirty-five years. She stated that she wants to enter a civil partnership to gain the same protection under the law as married or civil partnered couples, adding:

“We have chosen not to get married for thirty-five years on principle. I do consider marriage to be a patriarchal institution and unnecessary for me to feel either committed or secure in my relationship. …I believe that many young cohabitees with children, where the property rights are not as clearly set out as they might be, are being left without the chance of protection at a time when their children are most vulnerable. The law should protect these families in the same way as it would protect families of same sex couples who opt for civil partnerships or indeed of married couples.”

In short, then, some cohabitees do wish to have a legally binding relationship but choose not to marry because they do not like the institution of marriage. Expanding civil partnership to heterosexual couples could provide a way to formalise such relationships, with all the associated legal protections. In the meantime, there remain a number of myths surrounding the legal rights of cohabitees, including:

1. The myth of the common law marriage: A very high proportion of the population believe that if you cohabit with another person for long enough you will become their ‘common law’ spouse, with the same rights as if you were married, such as the right to seek maintenance or other financial provision when the relationship breaks down. This is simply not true. There is no such thing as a common law marriage, and no length of cohabitation will make you your partner’s ‘spouse’.

2. I will get a share of my partner's property simply by living there: Afraid not. Many cohabitees live in a property owned by their partner. They do not acquire any interest in the property simply by living there. If they were married or in a civil partnership then, when the marriage or civil partnership is dissolved, they have a right to seek a share of the other party’s property. No such right exists for cohabitees. As a result it is quite possible when cohabitation breaks down for the non-owning party to be left homeless.

3. Having children gives cohabitees further rights: It does not. The rights of cohabitees (or lack of them) do not alter when they have children. It may be possible for the party looking after the children after the relationship breaks down to seek financial provision for the children, but that does not mean that they can seek financial provision for themselves.

4. If the cohabiting couple have children, the father will automatically get parental responsibility for them: No. Whereas if the couple are married the father will automatically acquire parental responsibility, this is not the case if the couple are not married. For unmarried couples the father will only acquire parental responsibility if he is registered on the child’s birth certificate, with the written agreement of the mother, or by getting a court order. Note that civil partners do not automatically acquire parental responsibility, although this would probably change if civil partnership was extended to opposite-sex couples.

5. Cohabitees automatically inherit each other’s assets on death: They do not. If the deceased partner did not make provision for the surviving partner in a will then the rules of intestacy will apply. Whereas the rules of intestacy make provision for married and civil partners, they make no provision for unmarried cohabitees. Many surviving cohabitees therefore suffer great financial hardship because their deceased partner did not leave a valid will making provision for them.

According to the Office for National Statistics, there were some 12.7 million married or civil partner couple families in the UK in 2016. The second largest family type was the cohabiting couple family (3.3 million). Surely, it is time for those people to be able to choose a legal status for their relationship which is right for them. The alternative, it would seem, is to abolish civil partnerships – but what of those people who have entered in to them over the last 12 years and what would that say about a 21st century society that professes to be equal, diverse and progressive?

*The Cohabitation Rights Bill [HL] 2014-15 had its second reading in the House of Lords on 12.12.2014.

For professional legal advice contact one of our solicitors on 0161 838 5410.

(This blog was posted on 12 September 2017)

#cohabitation #familylaw #civil partnership #equality

TO DIVORCE, OR NOT TO DIVORCE: THAT IS THE QUESTION

1 September 2017

News and gossip columns of late have been rife with stories of celebrity divorces, separations and possible reconciliations, the most recent being that of Brad Pitt and Angelina Jolie (‘Brangelina’). The latest rumours suggest they may be attempting reconciliation. Of course, their proceedings are being conducted in Los Angeles but it has caused us to ponder the issues they would need to address in these circumstances if they were getting divorced here in England & Wales.

The first question must be: How can the divorce process be stopped once commenced? The answer very much depends on what stage the proceedings have reached when the decision to reconcile is taken.

At this juncture, we must pause to dispel a couple of family law myths repeatedly promoted by the media: 1. the pronouncement of a decree nisi does NOT bestow divorce; and 2. there is no such a thing as a ‘quickie divorce’; fast as he was in his day, not even Ryan Giggs can avoid the prescribed minimum period of six weeks and one day which has to pass AFTER a decree nisi pronouncement BEFORE decree absolute can be granted. So, it is, that the decree absolute is the last part of the divorce procedure and it is this decree (NOT the decree nisi) that brings a marriage to an end.

Therefore, if the decision to reconcile is made BEFORE decree absolute has been granted there is no need to take any action to stop the divorce in the event of reconciliation. The court will not advance the proceedings unless one of the parties (usually the petitioner) takes the necessary steps to proceed with it.

AFTER the decree absolute has been granted, save for a procedural irregularity, it cannot be set aside and it is then too late to avoid divorce.

If the reconciliation proves to be successful can the proceedings be withdrawn? Once again, timing is everything.

If the decree nisi is yet to be pronounced then the parties can apply by consent to have the divorce petition dismissed. Once done it is as if the proceedings had never been issued.

If the decree nisi has already been pronounced then it is not quite so simple, as the parties will also need to ensure the decree nisi is rescinded.

There is a little-used provision in the law that enables the court to adjourn divorce proceedings for such period as it thinks fit if at any stage it appears there is a reasonable prospect of reconciliation and so enable those attempts to be made. This might be useful in defended proceedings which in practice are rare but occur when a divorce petition is issued and either the other party does not accept the marriage has irretrievably broken down (see our previous post Owens v Owens – a child’s perspective) or does not accept the grounds upon which the petition is based. However, most divorce petitions issued today proceed on an undefended basis.

Should the proceedings be withdrawn in these circumstances? In brief, to avoid any bar to the issue of future divorce proceedings the existing proceedings should be withdrawn. Failing that, if you sadly find yourself once again sat across the desk from a divorce lawyer you must remember to tell them about the previous proceedings.

What if the reconciliation is not successful; does any period of resumed cohabitation affect pre-existing divorce proceedings? The six-month rule applies to all five grounds currently available to any party seeking to prove an irretrievable breakdown of their marriage.

Cohabitation for more than six months after learning of an act of adultery is assumed acceptance and it can no longer be relied on for the purpose of obtaining a divorce. Any period of cohabitation not exceeding six months will be disregarded.

A particular act of unreasonable behaviour can be relied on as long as you do not live with your spouse as man and wife for more than six months after it occurred. This does not, however, prevent the court from looking at the history of your marriage and the cumulative effect of conduct over time.

As for desertion, two years’ separation with consent or five years’ separation, periods of cohabitation of less than six months will not be taken into account, but cannot be counted as part of the period of desertion or separation. Periods of cohabitation in excess of six months serve to break the continuity of the separation.

Finally, how does reconciliation affect any financial application that may have been issued within the divorce proceedings? The simple answer is that dismissal of the divorce proceedings will also serve to dismiss any associated application for financial remedy and frustrate the effectiveness of any final financial order that has been made.

So what of Brangelina? It now looks like the delay in their divorce may in fact be due to complications relating to their financial settlement. If this is true, then perhaps the pre-nuptial agreement they reportedly entered into before they married did not cover every eventuality – a topic for another post on another day perhaps!

The above is only a brief summary of the relevant law. For detailed legal advice on any of the issues raised in this post we recommend you consult with one of our specialist family lawyers on 0161 838 5410 – it’s always good to talk!

#divorce #reconciliation

Owens v Owens – A Child’s Perspective

15 August 2017

Most of us won’t know when it was that we first started to verbalise our many thoughts, though it's fairly inconceivable that it would have been before the age of 6 months. This is the age when the first ‘mama’ or ‘dada’ is often gurgled out, much to parents’ delight. Recent evidence has shown however that babies can understand the meaning of words from the age of 6 months. So it is then, listening to rowing parents, that children learn to normalise arguing before they learn how to ask their parents to stop. If, as has often been suggested, the policy behind refusing no-fault divorces is to preserve the sanctity of family, what thought has been given to preserving children's innocence?

Children are very aware of what is going on between parents and understand the nuances of their behaviour far more than we might expect; indeed, no doubt by school age they already comprehend the notorious “I’m fine”. Children are generally sensitive to parents’ feelings and it’s possible they understand how unhappy mum or dad is before they do themselves. Experiencing their parents’ relationship, children develop their first perception of married life. It goes without saying then that if parents are happy and caring of one another this will be a positive perception. In cases of unhappy marriages though, children endure rather than enjoy their parents’ relationship. Surely, this cannot be the intention behind the desire to preserve marriage and family?

A parent might decide it is better to wait until children have grown up in the belief they are doing what is best for them. Within this vacuum the thoughtless spouse can become accustomed to their behaviour being accepted and take this for granted such that when the other spouse finally makes the decision to seek a divorce it is likely to be met with astonishment. Indeed, the decisions to date in the case of Owens v Owens, would suggest an unhappy spouse in these circumstances may not be so entitled.

As is already well-known, in this case the husband argues that the allegations of behaviour set out in the wife’s petition are simply the ‘stuff of everyday married life’, and not serious enough to prove an irretrievable breakdown of the marriage. Thus far the courts have agreed with him, refusing Mrs Owens a divorce.

The reality is, the end of a relationship cannot always be pinpointed to one event or series of recent events. It often happens slowly, over many years, when the devotion once felt is chipped away until one of the parties reaches the conclusion that they just don't love the other anymore. In such a case, why should freedom be denied, and what effect does this have on any children in the meantime? The Owens’ children are now adults but their parents’ situation is not confined to marriages of long duration.

What is clear is that the case of Owens underlines the urgent need for no-fault divorce to be allowed in the law of England and Wales, bringing us in line with many other countries around the world. Indeed, the legislation permitting this was drafted up in the Family Law Act as long ago as 1996, but has since never been enacted. A No-Fault Divorce Bill was introduced in 2015 but after being delayed, the end of the parliamentary session resulted in it making no further progress.

In a modern world where relationships, family units and even gender are being redefined what should prevent this reform? And what of any children? Perhaps at the top of the list of reasons in favour of it should be a concern for their unnecessary exposure to a negative experience of marriage. Better still the enabling of their parents to avoid the need for mud-slinging and thus preserve what remains of their relationship to assist future co-parenting.

Mrs Owens has now been granted permission to appeal to the Supreme Court. Time will tell what, if any, the changes to this area of the law their decision will bring but a child-focused approach would surely promote much needed reform.

If any of the issues in this blog effect you contact our specialist divorce team on 0161 838 5410 and we’ll be happy to help you.

#familylaw #divorce #childrenfirst

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