Home and/or away….

Where do you consider yourself to be habitually resident? Australia? India? Iceland? What determines habitual residence, is it where you were born? Where you currently live? Where you pay your taxes? Given our increasingly globalised lifestyles and ‘suitcase culture’, is it even possible to geographically pin-point ‘where you live’. Indeed, to stretch this thought experiment is it possible for me to consider myself habitually resident in Barbados even though I have never visited the island? Sure it’s a social place, a social country, an outdoor culture, and a place where people greet you with a smile but the fact I want to settle there, is that enough? The issue of habitual residence was considered in the recent and desperately sad child abduction case ZA & PA v NA.

Facts:

The father and mother were married in 1999 in Pakistan and relocated soon after to the UK. They  separated in 2006 after what was an abusive and violent relationship. Their three eldest children had been born in England. In 2009, the mother took the three eldest children to Pakistan for a holiday, intending to return to England. However, she was coerced into staying by the father and the children were entered into schools in Pakistan. She was effectively kept under house arrest. The youngest child (H) was born in Pakistan in 2010. Following H’s birth, the mother returned to England without him but obtained an order for the immediate return of all four children on the basis that they were all habitually resident in England. The judge held that H had acquired habitual residence in England at birth.

The father appealed this order in respect of all four children specifically making the point that as H had never been to England it was nonsensical to say that he was habitually resident here.

Judgement:

The Court of Appeal agreed with the lower court that the three eldest children were habitually resident in England. Their habitual residence flowed from that of the mother and she only ceased residing in England under duress and so remained habitually resident in England at all material times.

However, when turning to the position of H, the Court of Appeal, with, one surmises, some regret, found that without a child ever having been physically present in this country he could not be said to be habitually resident here.

In a dissenting speech, LJ Thorpe strongly argued that H should be deemed to be habitually resident in England because in some very narrow situations a new-born could acquire the habitual residence of its parent without ever having been in a country.

Distilling the lessons:

The Court of Appeal found that habitual residence is a matter of fact and while the result in this case may have been deeply unsatisfactory to the conscience of many the ruling does work to simplify a previously obscure legal concept into a straightforward factual analysis.

The perfect mix of contact….

Sussex University recently published a study that looks at what makes contact successful. It is the first large-scale study in the UK to study children’s contact arrangements from the point-of-view of adults who had experienced them in their youth. This being the case, it allows you to see what happens when contact arrangements are established. The court may think it is good for the non-resident parent to have contact after separation but this is pure guesswork. Unless a review hearing is scheduled or Cafcass (a court appointed social worker) is asked to monitor arrangements, no-one follows up a court order to see what happens. The study asked adults to reflect on how contact affected them.

So what did they find?

The better the pre-separation relationship between child and non-resident parent, the better the post-separation relationship.

This finding is important in light of government present intention to promote shared care arrangements by amending the law to include a presumption of involvement of both parents.

Continuity of contact is more important than quantity of contact.

It is often argued that the relationship suffers because the non-resident parent does not see the child often enough. The study found that actually regular and continuous contact was a better predictor of a good contact experience. This finding is again important as calls for a change in care arrangements are based on the assumption that equal sharing of a child’s time will be more beneficial.

Children want to be heard

Many of those questioned felt they knew better what was best for them than parents. Some of those not consulted voted with their feet when older enough to do so.

In summary, the study suggests that children benefit from contact arrangements tailored to suit them, and generalised assumptions about what is best will not work. Does this all then call into question the government’s plans to introduce a presumption of shared parenting?

A copy of the report can be found by clicking here.

Law and a New Order

The question of gay marriage has dominated headlines but what will the impact be on English family law and will same-sex couples have the same rights as hetrosexual couples?  

There has been much debate on the topic of gay marriage, which unsurprisingly creates a divide of strong opinions and, indeed emotions, on both sides.

Here I aim to put right some common misconceptions as there are many who believe the change in status of the relationship will create further rights for the couple.

If we look solely at the rights of couples when separating and within family law and separation – the rights of civil partners are almost the same as those of married couples.

The Civil Partnership Act 2004 effectively mirrors the Matrimonial Causes Act 1973 providing the same financial remedies to civil partners which already existed in relation to married couples such as the ability to claim maintenance for yourself (as opposed to for your children) if there is a large earning disparity, or have a share of your partner’s pension if it is a valuable asset of the relationship.

The only difference for separation are the terms used within the Court documents i.e., Decree Nisi and Decree Absolute for marriage being Conditional Order and Final Order for dissolution of a civil partnership.

The parties who really lose out financially when relationships fail, are primarily those who live together but are not married or civil partners but that opens another can of worms.

People often wonder about their rights with respect to children as well. Again the Civil Partnership Act amends the Children Act 1989 and Adoption & Children Act 2002 allowing civil partners, as parents, the same rights over the children of the family as married couples.

They also have financial remedies available to them for support of the children, whether through the Child Support Agency or through a court order.

There are therefore, in reality very few differences in terms of legal rights between the two, and more particularly legal rights when it comes to the breakdown of the relationship.

The human right to being able to marry, is of course an entirely different matter.

Among the few legal differences in the breakdown of a relationship, which still baffles many on the basis of morality and indeed common sense, are the grounds for a divorce/dissolution.

When preparing a divorce petition you must show that the marriage has irretrievably broken down and there are five facts to prove this:-

Adultery

Unreasonable behaviour

Two years separation and consent of both parties to the divorce

Two years desertion

Five years separation without consent of both parties

The same ground – showing the civil partnership has irretrievably broken down applies and all, bar one fact are the same for the dissolution of a civil partnership which does not recognise adultery as a reason to end the relationship.

Why? The legal definition of adultery is “voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is a married person”. Therefore if a homosexual woman has sex with another woman it is not adultery under that definition as they are of the same sex.

But this in turn raises further questions – what if a bi-sexual woman entered into a civil partnership and then had an affair with a man? This would pass the test ‘between man and a woman’ and, if the man was married, or even if the law has changed and the woman had entered into a gay marriage then this would pass the second test ‘one of which is married’.

I am uncertain of this argument ever having been run; certainly the cost of doing so would far  outweigh any benefit given that you would be able to cite infidelity in a civil partnership within the ground of unreasonable behaviour but many parties who have been cheated on by their loved one feel that they wish to use this ground out of principle.

But it is an interesting loop hole that exists in our current law, and that will arguably, some may say, only be exacerbated by marriage being recognised universally.

The other difference is that of nullity. There are many ways to get a marriage annulled and most of these apply also to civil partnerships – save for lack of consummation. The reason again seems to be the definition used – ‘to make (a marriage) legal by sexual intercourse’.

Will this have to change with gay marriages as this would now fall within the word ‘marriage’? Although again, the definition of marriage is written as the ‘state or relationship of being husband and wife’ so this is a moot point. 

Will there have to be two definitions of marriage – and, if so, some may say the point for many of having gay marriage is thus diminished as there would be no equality.

Perhaps the difficulty there would not be the marriage part but the act of having sex and how it is defined, which for the purposes of this article I will leave to those of you who wish to look it up!

With these considerations what will the future hold for the law – will the Civil Partnership or Matrimonial Causes Acts have to change or will a third set of laws governing relationship breakdown emerge – The Marriage (Same Sex Couples) Act? Or, do we simply merge them all, create one act and re-write the English language (or at least a couple of terms).

We shall all wait with baited breath …

VS

Judges do make bo-bo’s…

The recent case of AMV and RM highlights an instance where the judge got it plain wrong.

Facts:

After the breakdown of her marriage, the mother took her two young children to live with her parents.  The mother now claimed to be living in her own accommodation, albeit within walking distance of the maternal grandparents. The father of the two children believes this to be untrue, that the mother continues to live with her parents and that this is unsuitable accommodation for the children.

This was just one issue in a case that focused on the future care of the two children, but what is of interest is the bizarre ‘solution’ the judge proposed to help with her determination.

Judgement:

At the hearing, the District Judge of her own motion decided to conduct an unannounced visit of the two properties. The mother and her barrister were given 15 minutes to decide whether they agreed with the proposed course of action. They mother agreed although she had not been able to reach her parents.

Picture it, the District Judge traveling in the car of the father’s barrister with mother in the back. The mother’s barrister was a passenger in the father’s car. The group travelled to both properties and a thorough search was conducted including opening draws and cupboards and even looking through bins. The judge concluded that the mother and children were living in their own property. Perhaps it was that soiled nappy that tipped the balance in favour mum….

The appeal:

Quite rightly, the mother appealed and was successful. The entire procedure was wholly unacceptable. The decision to visit the properties was made so soon after the opening of the hearing that time was not available for a proper consideration of the implications. The mother had to agree for fear that a negative response would draw an adverse inference from the court. This alone is a breach of the mother’s human rights. Then there is the breach of the maternal grandparents’ rights when the Judge-led group turned up at their house for an inspection. Wonder if the grandparents had a shoes-off policy?

You will all be glad to know that the methods used by the judge will not be repeated in the future. Ideally the High Court said there should have been a report completed either by social services or CAFCASS ( the Children and Family Court Advisory and Support Service) focusing on the issue of residence. The Judge should have then made a finding based on the report.

An instalment of lump sums or a lump sum by instalments…

The same thing right? Well, err no.  We lawyers like to make our distinctions and this is a perfect example of the importance of getting the wording of a financial settlement right. In the recent case of Hamilton and Hamilton much turned – £210,000 in fact – on whether the settlement agreed to by the parties included an instalment of lump sums or a lump sum by instalments.

Facts

On divorce, wife agreed to pay husband ‘the following lump sums’ consisting of five sums on five different dates amounting in total to £450,000. On payment of the first lump sum, the husband was to transfer his share of the matrimonial home to the wife, and there would be a full clean break in life and death. This kind of order is quite common with people finding it increasingly difficult to raise significant sums of money by way of re-mortgage or unsecured lending, options that were readily available pre 2008.

Wife paid the husband £240,000 but after her business went into administration she could not afford to pay the balance of £210,000. Wife applied for permission to appeal the consent order.

Issue:

The main issue was whether the agreement was for an instalment of lump sums or a lump sum by instalments. The former cannot be varied by the court save for timing, while in the latter case the court may “vary, discharge or suspend temporarily and revive any suspension”. Husband of course said the former was the case.

Judgement:

In the lower courts it was decided an order for payment of money over a period of time could only ever be an order for a lump sum payable by instalments and could always be varied. The order in this case was therefore variable.

The Court of Appeal (CoA) decided that the lower courts had made an error of law. It is equally open to the parties and the court, in making an order for the payment of money over time, to make an order for the payment of lump sums which would not be variable, as it is to make an installment order which is variable.

The CoA went on to say that where there is a disagreement over the wording of the order, the court can looking beyond words to “assess what the parties agreed against the objective factual matrix of what occurred during the relevant period”. In doing so, the CoA agreed that it in this case the order was for a lump sum by installments.

Despite finding that the order could be varied, the court did not extinguish the wife’s obligation to pay. It varied the order by deferring the payment of the remaining sums whilst adding interest to preserve the value of the money to be received by the husband.

Distilling the lessons:

This case shows just how important it is to seek expert advice on the financial implications of divorce and separation. Parties need to make the exact nature of the agreement clear, in order to avoid subsequent disputes. It is possible in a consent order, a document which records the financial settlement agreed by the parties, to insert a recital (a promise to the court in effect) which makes it clear that (i) the lump sums are capable of variation until fully paid or (ii) the instalment of lumps sums are not capable of variation. This would put the matter beyond doubt.

To discuss your financial arrangements following divorce, or for more information on family law, contact Rebecca Silcock or Victoria Strode today.

The cohabitation conundrum

As the number of cohabitants has increased over the past three decades the incidence of marriage has declined. The law however in relation to separating cohabitants has failed to respond to these changes in lifestyle as highlighted by the recent case of Miss Curran and Mr Collins.

Facts:

Miss Curran entered into a relationship with Mr Collins some 30 years ago. The couple began their relationship as teenagers in the 70s, and remained ‘an item’ until their split three years ago. On their separation, Mr Collins owned the family home and family business, Haven Boarding Kennels and Cattery.  Altogether these were worth £750k. Miss Curran, who worked hard in developing the kennel business, applied to the courts for a share in the business and the home.

Judgement:

To be successful, Miss Curran would need to show either that she acted to her detriment or that she contributed financially to the buying of the home or that there was a common intention that the ownership of the property would be shared.

In the event, it was decided that Miss Curran has no interest in the home or the business. As Miss Curran’s name was not on any of the property deeds or any business agreement she was not entitled to anything. Furthermore, while Miss Curran said that she ‘trusted’ Mr Collins that if ever they separated she would get her fair share of the home and business, no such ‘trust’ in the legal sense could be found by the Court. It would have been good to have something in writing such as a Declaration of Trust or a cohabitation agreement which specifies the parties’ interests though this appears to have been overlooked by the parties to Miss Curran’s detriment.

Miss Curran has recently been granted leave to appeal the above decision. In granting her leave, Lord Justice Toulson commented:

‘Sadly, the appellant found herself in the classic position of a woman jilted in her early 50s, having very much made her life with the respondent for over 30 years. The law of property can be harsh on people, usually women, in that situation. Bluntly, the law remains unfair to people in the appellant’s position, but the judge was constrained to apply the law as it is’. 

Distilling the lessons:

The law operates a dual system of justice for those that are married on the one hand and those that are cohabiting on the other. It in effect gives new significance to the Beyoncé line “if you liked it, then you shoulda put a ring on it” for the financially weaker cohabitant. However, gone are the days when cohabiting was frowned upon and the law should reflect this change in attitude. Family cases such as these call for special considerations and concessions, not a hard-and-fast application of property, trust and company law. The commitment shown between couples who are married is the same as that exhibited by long-term cohabitants and this should be accounted for when deciding how property claims are settled.

It also interesting to note that in this case, Miss Curran and Mr Collins were both in their 50s. Cohabitation is increasingly being seen as a credible alternative to marriage for the middle-aged and above.   The fact that older cohabitants are more likely to have sizeable assets capable of being scarified only adds strength to the view that our law is outdated.  The lack of any change on the horizon then is greatly unfortunate.

When family law meets healthcare…

In keeping with the previous post regarding Neon Roberts and the theme of healthcare, the focus of this blog will be on the issue of accessing medical records.

The Medical Protection Society (MPS), an insurer for the medical profession, recently reported that requests by non-resident parents for the medical records of their children are on the increase. As a result, the MPS is increasingly finding itself having to advise concerned GPs on what to do in such situations.

Essentially, if a parent has parental responsibility (PR), that is the rights and duties that are conferred on a parent by law, they are entitled to access the records. So who has PR for any given child?  Mothers automatically have parental responsibility regardless of their marital status. Married fathers also acquire parental responsibility automatically by virtue of birth. Unmarried fathers, on the other hand, can acquire PR by one of three ways: (i) by registration as father on the child’s birth certificate; (i) by agreement of the mother or (iii) by agreement of the court. The court has been quite forthcoming in awarding PR as it is seen as good for the self-esteem of both the child and the adult concerned.

The crucial thing to note here is that once acquired PR is not lost through divorce or separation. PR can only be removed by order of the court in quite serious cases i.e. cases of serious abuse, neglect.  Therefore, non-resident parents with PR are entitled to access the records.

There is an additional factor here that needs to be borne in mind which many parents often overlook. If the child concerned is judged to be Gillick competent then the doctor will need to obtain the permission of that child before any disclosure is made. Gillick competent refers to young people under 16 who can consent to medical intervention if they understand what is proposed. It is up to the doctor to decide whether the child is mature and intelligent enough to fully understand the nature of the treatment.