In July 2017 Fam Law 000 I wrote an article on the approach the family court was taking to issues of publicity in financial remedy proceedings. This followed the keynote address by Mr Justice Sir Michael Keehan at Resolution’s national conference. Keehan J reflected there on the ding dong merrily in the High Court between Mr Justice Mostyn and Mr Justice Holman in relation to how publicity should be dealt with in financial remedy proceedings. At the time of the address an appeal to the Court of Appeal of a decision by Moor J ([2016] EWHC 2073 (Fam) concerning publicity was eagerly awaited. That appeal decision is now at hand with the principal judgment being given by Lord Justice McFarlane in R v R and Times Newspapers Ltd [2017 EWCA Civ 1588]. The judgment, handed down on 17 October 2017, followed a hearing on 25 July 2017 and was expected to produce valuable commentary on the opposing approaches by Mostyn J and Holman J in their various reported decisions. Family lawyers eagerly awaited finding which approach the Court of Appeal favoured.
Was it to be the approach of Mostyn J to the relevant rules concerning publicity set out in FPR r 27.10 which states that proceedings “will be held in private except (a) where these rules or any other enactment provide otherwise; or (b) subject to any enactment, where the court directs otherwise. In the DL v SL (Financial remedy proceedings: privacy) [2015] EWHC2621 (FAM) Mostyn J considered the principle of open justice and the hearing of financial remedy cases in public. He concluded that, unless there are exceptions, these cases should be heard in private and not reported. He argued that FPR r 27.10 specifically provided that the proceedings shall be heard in private and the media may attend the hearing pursuant to FPR r 27.11 but that does not make the hearing public. Further that the family proceedings process involves the extraction of highly personal and private information and that in almost every case where anonymisation is sought, the right to privacy would trump the right to unfettered freedom of expression. Further that financial remedy proceedings are “quintessentially private business and therefore protected by the anomality principle”. Mostyn J found support from Robert J in Cooper-Hohn v Hohn [2014] EWHC2314 (Fam). Here the judge was concerned that some litigants might be less than open in the witness box if they found their answers would be on the “nations breakfast tables the following morning”.
However, the opposing view was trumpeted loud and clear by Holman J in Luckwell v Limata [2014] EWHC502. His approach was:
“In my view the effect of rule 27.10(1) read with sub paragraph (b) is as follows. It provides a starting point or a default position that in the absence of the court directing otherwise proceedings for financial remedy after divorce will be held in private “duly accredited representatives of news gatherer reporting organisations”. Normally being permitted to be present pursuant to rule 27.11 but not ordinary members of the public. In my view rule 27.10 does not contain any presumption of financial remedy proceedings should be heard in private – it is no more than a starting point – a question of whether a given case should or should not be is entirely the discretion of the court.”
However, the Court of Appeal has disappointed us if, with respect, I may say so. The appeal decision focused on relatively narrow points and there was no broader discussion of the manner in which first instance decisions should be reported in terms of privacy.
The appeal related to a decision by Moor J as long ago as 20 July 2016 where he made a short judgment at the end of High Court matrimonial proceedings concerning a married couple who were divorced in Russia in 2013 but the wife pursued an application under Part III of the Matrimonial Causes Act 1973 and provision under the Children Act 1989. Moor J made fairly extensive reporting restrictions in respect of the original judgment but the husband sought to have these further extended. The judgment of the Court of Appeal is limited in detail of the circumstances because they decided to uphold the original reporting restrictions. The closed judgment, however, sets out the full reasoning. The husband argued a number of points including that Art 2 of ECHR which protects the right to life was engaged. The Court of Appeal found that there was no basis for any inference as regards Art 2 in respect of the original judgment.
McFarlane LJ then went on to consider Art 10 of ECHR. The husband argued that Moor J had erred in his approach to the balancing exercise. It was accepted law that s 97 of the Children Act 1989 prohibits publication of any material which is likely to identify any child involved in proceedings under that act. However, that restriction is only available if the proceedings are still live. The Children Act proceedings had come to an end some time ago and all Children Act orders had been discharged. One of the points of appeal was the judge failed to give adequate reasons for dismissing Arts 8 and 10 submissions but the Court of Appeal said that that duty fell upon the representatives to raise with the judge and ask him to amplify and clarify his reasons. No such request was made. The Court of Appeal endorsed their previous approach in the case of Norman v Norman [2017] EWCA Civ 49 which was published after Moor J gave his judgment. This reinforced the position that anonymity in appeal cases could not be guaranteed and was different to the approach in first instant decisions. The principle of open justice in appeals carried great weight.
The Court of Appeal in R v R considered in para 26 that:
“… it is plain that, in reliance upon the general approach of the Court of Appeal which was well known prior to Norman, Moor J, with admirable prescience gave priority to the importance of the principle of open justice with respect to the Court of Appeal judgment in a manner which was, as it turned out, entirely in line with the approached endorsed in Norman. Mr Sherborne does not submit that Moor J’s analysis was incompatible with that which was now required by Norman; his case is simply that on the facts that present case, it is not possible to afford priority to open justice to the court of appeal process whilst at the same time, adhering to the judge’s order.”
In this case the Court of Appeal considered that this was not a case sustainable if proper account were taken of the pre-judgment submissions. Here Moor J had properly balanced the issues in favour of publication with respect to the Court of Appeal proceedings and he had achieved an overall outcome which rightly looked to cause minimum impairment of a principle of open justice with respect to those proceedings. The Appeal Court therefore endorsed Moor J’s approach which appears to have allowed some description of personal details but far less than would have been allowed by Holman J. The husband sought for further restrictions to be imposed on the brief details that were given but the Court of Appeal did not agree with this approach. The fact that this appeal has taken more than a year to be published since Moor J’s original decision may well have benefitted the appellant in any event.
I attended a wedding a while ago where the atmosphere was tense rather than joyful because the bride’s parents had divorced ten years previously and animosity between them still reigned.
Although the divorce rate has stabilised at around 100 in 7,000 couples and despite the increase in cohabitation, the bad feeling that lingers after an adversarial divorce continues to spoil the atmosphere of family gatherings.
In this case, even ten years after the bride’s parents had divorced, the wedding was a source of tension.
So what can a divorcing couple do to make sure they attend their children’s weddings without ruining the happy day?
Mediation is the obvious dispute resolution option. It is a civilised way of resolving separation and relationship issues, such as the timing of divorce, grounds for a divorce, parenting arrangements and finance. It has nothing to do with reconciliation or counselling. A trained mediator meets with a couple and helps them identify the areas of disagreement and to explore the areas for settlement. The process is confidential and both parties are encouraged to take independent legal advice. Ultimately, they take control of their own divorce.
A good example is a mediation I conducted recently with Susanna and Alan. They had accepted that their marriage was over but were still living in the same house and wanted to reach an agreement about their children.
Alan had a new relationship and this had upset Susanna. She was also worried about how it would affect the children.
In mediation, it was possible to agree a pattern of contact so that Alan was spending frequent time with the children. He agreed that the children should not be brought into contact with his girlfriend until after he had separated from Susanna. The couple then went on to agree that the family home should be sold but Susanna would receive a greater proportion of the proceeds to reflect the fact that Alan had more pension provision. Both Alan and Susanna had independent legal advice but their legal fees were kept in check as most of the hard work was done in the mediation process. An agreement was reached without them having to go through expensive and emotionally traumatic legal proceedings.
Mediation isn’t just for people who are going through divorce. It is equally valuable for cohabiting couples and those ending civil partnerships.
Kim Beatson was one of the first solicitors in the country to qualify as a mediator. She was the first person to win the prestigious Family Law ADR Practitioner of the Year (2011). For information about her mediation service please contact her at Kim Beatson 020 7940 4011.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
Christmas is the season of joy for many, but for those less fortunate the festive season can be one of sadness and fraught with difficulties.
There is no better time than Christmas to take the opportunity to help those who need it most and at Anthony Gold we are proud to have taken part in a number of local initiatives to help those in need locally to our offices and also further afield.
Earlier in November, staff from each of our offices kindly donated several bags full of second hand coats for the Wrap Up London campaign and hand delivered these to the volunteers based at London Bridge station – so many bags, it needed two members of staff to carry them all! Doing our bit to help keep Londoners warm this winter.
In keeping with the spirit of giving, we also took part in the Team London Bridge Community Christmas Campaign. Over 50 gifts were donated across our three offices, and delivered to Team London Bridge offices on 5 December for wrapping and donating to local residents via a number of local charities, being Bede House, Manna Centre, Stones End Day Centre, South London Cares, CoolTan Arts, Time and Talents, Beormund Centre, Camberwell After School Project, Riverside Parents and Carers Association, Look Ahead Southwark Young People Service, Salmon Youth Centre, South London Mission and Oasis Waterloo. We were overwhelmed with the number of amazing gifts donated by our staff, which will go a long way towards making someone’s Christmas that little bit more enjoyable. One member of staff also went above and beyond to purchase a number of items which had been specifically requested by local charity South London Cares as part of the A Really Happy Christmas campaign. South London Cares is a community network that connects older neighbours in Southwark and Lambeth with younger professionals who help to support them. They requested brand new thermal slippers, blankets, and flasks for their Winter Wellbeing project, which our member of staff kindly purchased, much to the charity’s delight. The Team London Bridge Community Christmas Campaign was their most successful yet, with the focus on quality over quantity, yet also seeing over 1700 presents donated, and we look forward to become more involved in this campaign in future years.
On Friday 15 December 2017 we held our last national charity day fundraiser of the year in the office, proudly taking part in the Save the Children Christmas Jumper Day campaign to help save children’s lives. The money raised could help give a child living in a refugee camp clothes to keep them warm through winter, buy nutritious food and safe drinking water for a family, or set up a safe space for children caught up in disaster. It is a very worthwhile case, and we made a real difference just by wearing silly jumpers and getting in the festive spirit in advance of our Christmas party! We are still counting the final amounts raised but have so far raised just over £277.
And lastly, on Tuesday 19 December 2017 the Anthony Gold choir joined forces with singers from the Robert Poulton Foundation to perform everyone’s favourite Christmas carols in Hays Galleria during their lunch break. The Robert Poulton Foundation was set up by Phillipa Poulton in memory of her late husband who sadly died following a car crash in 2012. Anthony Gold became involved with the Foundation following the successful completion of a personal injury claim by Jenny Kennedy and her team. The firm has raised money for this charity ever since, through various events, and we enjoy getting together at Christmas to sing carols for such a good cause. We raised over £140 this year, not bad for spending an hour singing during lunch, and a fabulous time was had by all involved, tempting the crowds away from their last minute Christmas shopping to enjoy the performance.
This was a great way to end the year, and we are already looking forward to our calendar of CSR events lined up for 2018 – watch this space!
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
In January the Health and Safety Executive (HSE) consulted on amending the Gas Safety (Installation and Use) Regulations 1998 (GSIUR) and these changes are now expected to come into force next year. The amendments do not substantively change landlords’ responsibilities regarding gas safety rather they are designed to make it easier for landlords to comply with their current duties. The consultation document can be accessed here.
Regulation 36 of the GSIUR sets out the responsibilities of landlords. These include a duty:
to ensure that gas fittings and flues are maintained in a safe condition; and
to ensure that an annual gas safety check is carried out on each gas appliance/flue by a Gas Safe registered engineer.
Once a gas safety record is issued it is valid for a period of 12 months. It is a criminal offence not to comply with the gas safety requirements and non-compliant landlords can be prosecuted and fined or even imprisoned. Furthermore, there are now restrictions on a landlord’s ability to regain possession of a property let on an assured shorthold tenancy where the tenant has not been given a gas safety certificate. This is because a section 21 notice cannot be given in these circumstances.
The proposed changes will amend Regulation 36 of GSIUR in the following ways:
Clarify that only gas safety defects should be recorded on the gas safety record; and
Introduce flexibility in the timing of landlords’ annual gas safety checks
The first amendment is a minor change to the wording of the regulations to clarify that only gas safety defects need to be recorded on a gas safety record.
The second amendment is more significant. Currently landlords are required to carry out gas safety checks at intervals of no more than 12 months since the last check. To ensure that a check is completed before the previous record expires many landlords carry out renewal checks early, for example, at 10-11 months from the last check rather than just before the 12-month expiry limit. A new record is then issued from the date of the check bringing the expiry date of the new record forward and shortening the safety check cycle each year. The result is that over a period of 9 years a landlord may end up carrying out 10 checks instead of 9.
The amendments seek to address this problem by giving landlords a window between 10-12 months after the last check in which to carry out a repeat check. Importantly, any check carried out within this window will be deemed to have been completed on the last day before the previous check expires. This means a landlord can obtain a new gas safety record up to two months before the current record expires and keep the same expiry date. On some occasions, therefore, the period between gas safety checks could be as long as 14 months instead of the usual 12 months.
For example, once the amendments are in force, a landlord whose gas safety record expires on 1 September will be able to carry out a check from 1 July the following year and keep the same expiry date of 1 September. The system is similar to that used in vehicle MOT tests. If a check is carried out earlier than 10 months from the previous check than this will re-set the clock and the expiry date will be 12 months from the date of the last check.
The aim of the change is to give landlords more flexibility and make it easier for them to comply with their duties particularly in cases where access is an issue. A landlord concerned about gaining entry to a property before the gas safety record expires can now start the process of arranging the check earlier without losing the original expiry date.
The changes are designed to help landlords but are not compulsory. Landlords do not have to take advantage of the amendments and can continue with their current arrangements for carrying out gas safety checks provided these meet the minimum requirements set out in the regulations. Landlords who do take advantage of the new flexibility will need to ensure that they retain records to demonstrate that checks have been carried out within the required timeframes.
It is important to note that the gas safety regulations do not give landlords the power to enter a property to carry out a gas safety check if the tenant is refusing access to the property. The rights of landlords to enter a tenanted property to carry out repairs and maintenance are usually set out in the tenancy agreement although there are also terms relating to access implied into certain tenancies whether the agreement is in writing or not.
Leave a notice at the property stating that an attempt was made to carry out a gas safety check and leave contact details so the tenant knows who to contact;
Write to the tenant explaining that it is a legal requirement to carry out a check and it is for the tenant’s own safety;
Give the tenant the opportunity to arrange an appointment at a time of their choosing;
Ensure that repeated attempts have been made to carry out the check and retain records of all correspondence with the tenant.
Landlords are strictly prohibited from using force to gain entry to a tenant’s property. A landlord who cannot obtain access may need to consider whether it is necessary to apply to Court for an injunction to gain entry to the property. Tenants should be very careful about obstructing a landlord’s right of access. Not only could such action lead to a claim for an injunction against the tenant but the landlord may commence possession proceedings for breach of tenancy.
The above changes to the GSIUR are expected to come into force in April 2018 and the HSE’s updated GSIUR Approved Code of Practice should be available early next year.
On a separate note the contract with Gas Safe Register ends in 2019. The HSE is expected to conduct a brief tender for the replacement of that contract in 2018. It is unclear who will apply. While it is important to have transparency in procurement it will annoy many landlords and agents to have the brand name of the relevant gas safety organisation potentially changing in 2019. There is also a risk that it will confuse tenants and increase the risk of rogue operators infiltrating the sector.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
While your name remains on a joint mortgage, you remain jointly liable for the payments. It is also unlikely that you will be able to obtain a mortgage on another property unless you can satisfy the lender that you can afford the payments for both properties. This could result in a substantial delay in you being able to purchase a property to meet your needs.
What practical steps should I take if I am considering transferring a jointly owned property to my spouse?
It is a good idea to check with the lender in advance whether they will agree to release you from the mortgage. If it is clear that you cannot be released at that stage, it would be usual to obtain an undertaking (a legally binding promise) from your spouse that they will use their ‘best endeavours’ to procure your release from any liability under the mortgage within a certain period of time and before completion of the property transfer. It is also appropriate to seek an undertaking that they will indemnify you. Breach of an undertaking is a serious matter. It is contempt of court and is punishable by imprisonment, in extreme cases.
The use of the term ‘best endeavours’ means that your spouse is only ordered to do what is within their power and thus is not penalised for breaching an order through no fault of their own. When drafting a financial settlement, it is a good idea to set out what ‘best endeavours’ should include. For instance, it could include finding a guarantor, down paying part of the mortgage, discharging arrears that have been accumulated and/or re-mortgaging at a higher percentage rate if necessary. You may want to provide for your spouse to update you on any progress made at regular intervals.
Particularly in the current economic climate, where mortgages are more difficult to come by, you run the risk that there could be a lengthy delay in you being released from your mortgage obligations on a jointly owned property. When drafting a financial settlement, you should also consider whether provision should be made for the property to be sold, if you have not been released from the mortgage by a specific date. Alternatively, you may want to postpone the dismissal of your future financial claims against your spouse until you have been released from the mortgage, so that it is still an option for you to seek a sale of the property at a later date.
What is the position if my spouse refuses to give an undertaking to release me from a mortgage or fails to cooperate in court proceedings?
The recent case of CH v WH [2007] EWHC 2379 [Fam] confirms that the court has the power to order a spouse to make payments and/or indemnify the other spouse against non-payment of a mortgage.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
When you are on the receiving end of this conversation, your world may feel like it has been turned upside down. You may have seen it coming or it may have hit you like a bolt out of the blue. Whatever happens, you do need to take stock and look after yourself. Here’s how to have a good divorce or separation:
Before getting divorced or separating
Support from friends and family
When going through a separation process, family and friends can be great support for you. They are usually prepared to give the time to listen to your problems and the usual case is a problem shared is a problem halved. Friends can help boost your confidence and if they have been through a similar situation themselves, they can offer help and guidance.
Beware however sometimes family and friends are just not a help. Blindly supporting you and encouraging you to take extreme confrontational positions will not help and is likely to result in an expensive separation in terms of both money and emotion.
Counselling with your partner
It may not be over. Many relationships break down because couples forget to talk and more importantly forget to listen. Proper professional relationship counselling can often help couples give direction and purpose to mending their relationship.
There are many couple counselling agencies available on the web and the most well-known are Relate and if you are based in London, Tavistock Relationships.
Personal counselling
Irrespective of whether you choose couple counselling, it is often a very good idea to seek the professional support and guidance of a divorce or separation coach or individual counsellor.
These people are experienced at understanding and explaining the different moods and emotions that you will be feeling as you go through the separation process.
This advice is confidential and tailored especially for you. It means that you can be honest without fear of your thoughts and history being talked about elsewhere.
Whether you are a married couple or cohabiting, there will inevitably be legal implications to your separation, especially if there are children and finances involved.
Obtaining the advice of a resolution-accredited family lawyer is likely to be one of the best things you do. You do not need necessarily to instruct a lawyer to conduct every aspect of your separation.
It is however money well spent to sit down for an hour or so with a family law expert who will listen to all the facts and give you a detailed analysis of the relevant law, procedure and likely outcome.
This will give you confidence in the discussions you have with your ex-partner and will also give you peace of mind that many of your anxieties and concerns can be dealt with.
Resolution is an organisation of family law professionals dedicated to resolving disputes positively and without confrontation. You can use Resolution’s excellent tool to find a member of Resolution near you or contact the family law team at Anthony Gold Solicitors by calling on 020 4950 4060.
Do not tolerate domestic abuse
If any sort of domestic abuse is happening then do not tolerate it. Your children also should not have to tolerate living in a home where there is domestic abuse. You do not have to tolerate it and help is at hand. Domestic abuse includes coercive and controlling behaviour, which is now a criminal offence.
Many Resolution family lawyers can give you speedy, confidential advice about how to solve this problem. Read more useful advice related to domestic abuse provided by Resolution.
Focus on your health
It is important to look after your health during separation – not just physical health but mental health too. You can obtain information regarding counselling and emotional support to deal with what you are going through, including anger and stress. Useful resources for mental health support can be found at Mind, Saneline, Supportline and Hub of Hope.
Consider different aspects related to your children
In any separation often the biggest concern is what will happen with the children, particularly how will they cope with the separation and how can each parent will maintain a safe, meaningful and supportive relationship with the children after separation. You can use the very useful Cafcass parenting plan – this prompts you to consider all the different aspects that you are likely to come across in dealing with the children.
Obtaining good advice from the outset can mean that, although separating, both parents will be able to work together collaboratively in what is a lifelong responsibility for bringing up and supporting the children. Research shows overwhelming evidence that where separating couples work together in respect of the children, then the children thrive and benefit.
Practical arrangements can be put in place for the children to spend time both seeing each parent and living with each parent where it is safe to do so, as well as working out arrangements for school holidays, holidays abroad and financial support for the children.
Information about child maintenance can be found by visiting the Child Support Agency (CSA), although now known officially as the Child Maintenance Service. Children are usually far more resilient and better equipped to deal with separation than adults are. However, some children may need support and help from counselling.
How to resolve issues between you and your partner
There are various ways in which disputes relating to the children and the finances can be resolved.
The best place to obtain advice is by visiting a lawyer who will set out the different options available, their advantages, their disadvantages and the likely cost. These include:
Do it yourself
There is a lot of information available on the internet and, armed with this, it is possible to sit down with your ex and try and work out constructively what the arrangements for the children and the finances might be. It is important though to get legal advice at the outset here so that you do not make any mistakes or enter into settlements that are unfair, and unworkable and ones that would not be approved by a court.
There are a variety of ways in which separating couples can be assisted in resolving issues and making decisions. Initial advice from family law specialists can really help Much depends on how well each communicates with the other, it can be the case that even couples that are able to communicate in a very civil way about routine day-to-day matters find talking about the wider more important issues of the children and the finances then communication can be difficult or unproductive.
Where separating couples want and are able to communicate in a constructive way
In this situation, there are a number of methods of professional help and resolution methods that can give assistance and structure to that communication. These include:
Mediation
A Mediator joins a couple in meetings to assist them to communicate better with one another and reach their own agreed and informed decisions typically relating to some, or all, of the issues relating to separation, divorce, children, finance or property by negotiation.
Mediators are trained to help resolve disputes over all issues faced by separating couples, or specific issues such as arrangements for any children. A mediator will meet with the separating couple and will identify those issues that cannot be agreed upon and help the separating couple to try and reach an agreement. All sessions are without prejudice so people can talk freely.
Mediators are neutral and will not take sides, so they cannot give advice to the separating couple. They will usually recommend that the separating couple each obtain separate legal advice alongside the mediation process and will guide the separating couple as to when this should happen.
However, Resolution trained lawyer mediators will provide general and in some cases, extensive legal information to the separating couple within the mediation if this is appropriate. Some are qualified to consult with children in mediation.
Mediators listen to find out what is important to the separating couple and help them make their choices and decisions about the best way forward. They will help the separating couple reach practical solutions that work. There. There will normally be 3 to 5 sessions of about 2 hours. Any agreed proposals in mediation can be turned into a binding agreement or court order with assistance.
Specialist forms of mediation include:
Hybrid mediation
Hybrid mediation is where other professionals and experts are brought into the process to help in complex and difficult mediation cases. More commonly, hybrid involves the mediation participants and their lawyers being involved in the session, which can be a benefit in supporting the clients and enabling cases with complex facts or law to be moved forward. Other experts can include accountants, financial advisers, counsellors and child experts.
Shuttle mediation
Shuttle mediation, a form of hybrid mediation, is where the two parties in dispute sit in different rooms or Zooms, while the mediator moves or ‘shuttles’ between them. The mediator does so while trying to reach an agreement. The shuttle mediation can be undertaken remotely or even on different days.
Shuttle mediation may be used in the case where domestic abuse has occurred or the couple’s relationship has broken down to such an extent they cannot communicate easily and freely when in sight of each other. But caution is still required that this represents a safe process. It can also be used where the mediator is able to make more progress by speaking to the parties individually as they feel more comfortable discussing matters that way. A thorough screening process, mediators specially trained in domestic abuse and an ongoing assessment of any potential risk are essential.
Collaborative practice
In a collaborative process, each person appoints their own collaboratively trained lawyer and the separating couple, and respective lawyers all meet together to work things out face to face or by Zoom. Each will have their lawyer by your side throughout the process and so the separating couple will have their support and legal advice as they go.
Besides the lawyer, the separating couple will have the opportunity to work with an independent financial adviser, a family consultant, a child specialist or an accountant, who will provide the separating couple with specialist help regarding financial matters and those concerning children, parenting, communication and emotional support if and when needed. All these professionals will collectively make up the collaborative team.
Both mediation and collaborative practice have the advantage that it is the separating couple who are making the decisions about their own finances and children. The issues and the timetable can be set by the individuals rather than a rigid and long-running, expensive court process.
Counselling and therapy intervention that can run alongside any of the above
Expert help and guidance is available for individuals, couples and families. Therapy sessions and workshops help people who are separating to develop practical functioning relationships and navigate challenging life experiences. People seek help for various reasons. They may need support to address life changes such as divorce. Perhaps some help with mental health conditions, such as depression.
Where issues are unresolved after reasonable attempts to agree or communication is extremely difficult then the following are options:
Early neutral evaluation/private financial dispute/private dispute resolution in children-realted cases
A private financial dispute resolution (PFDR) or early neutral evaluation (ENE) is a simple concept principally, that a family law expert (a barrister, solicitor or retired family judge) is paid to act as an evaluator or private ‘judge’ in a financial dispute resolution or a private dispute resolution in a children case.
A financial dispute resolution is designed to enable the parties, with the assistance of the judge to identify and seek to resolve the real issues in their case, with the aim of limiting the overall financial costs and lessening the emotional and practical strain on the parties.
The PFDR is a meeting held for the purposes of discussion and negotiation where the parties should use their best endeavours to reach an agreement on the main issues between them.
Usually written and oral submissions are made to the PFDR judge, and the judge gives their opinion as to the likely outcome if the parties were foolish enough to go to a final hearing. The views of the ‘judge’ are not binding but are invariably influential and persuasive.
The PFDR process is without prejudice to any final court hearing, enabling the parties to be more open and involved in trying to resolve cases.
The judge is not to determine issues of fact, but the judge can offer their views on the likely outcome of disputed matters where appropriate. The key benefit of the PFDR is when the ‘judge’ gives their opinion as to how the law would apply to the parties’ individual circumstances.
Sometimes, the judge can give a definitive view or certainly a range of outcomes. The parties, with the benefit of their lawyers, are then encouraged to negotiate a settlement with the benefit of the opinion of the ‘judge’.
The ‘judge’s’ opinion can be sought by way of further clarification as the negotiations progress.
The PFDR takes place at a time convenient to the parties. This can include parties who are based abroad or even the appointment itself taking place abroad on a face-to-face basis. This often can be the solicitors or the barrister’s chambers and a full day is set aside to maximise the prospects of settlement. PFDRs conducted by Zoom or other video platforms have proved successful especially when the parties are in the same room as their own lawyer.
In family arbitration, the separating couple both agree to appoint an arbitrator, who will make a decision that will be final and binding between the parties, on any financial and property disputes or some child-related issues arising from family relationships.
Family arbitration enables couples going through family breakdown to resolve disputes more quickly, confidentially and in a more flexible and less formal setting than a courtroom.
The same arbitrator will deal with all stages of the case from start to finish the separating couple have the major say in how the proceedings are run. This could include, for example, choosing the venue, whether to meet face to face or through writing only, or whether to use the arbitrator for the whole process or just parts of it that you are stuck on.
The separating couple usually each appoint a solicitor and a barrister to help them prepare the case to be put before the arbitrator.
The flexibility and the fact that you will get a final decision much more quickly can make arbitration more cost-effective than court.
There are some situations where arbitration might not be suitable, for example, if you need to get evidence from third parties or there is a risk that your partner might try to hide assets, but arbitration is a genuine alternative to going to court for most family cases.
All of these processes are invariably quicker, more cost-effective, more focused on the separating couple, and do not involve the possibility of access by the public or the press.
One Solicitor Solution is a way of working that allows lawyers to work with and advise couples jointly, including providing appropriate legal advice, through an amicable and good divorce or separation.
Resolution and Anthony Gold have developed a new approach to serve separating couples. This reflects the change in legislation and the desire to reduce unnecessary conflict between individuals to benefit all those involved.
It will work by allowing a single legal solicitor to provide advice to a separating couple who want to manage their separation together. It is suitable for those whose joint aim is to reach an outcome that meets their needs and if they are parents, the needs of their children. A key feature is that individuals must give their informed consent to disclosing all the relevant factual and financial information required in order to reach their decisions together, to one another and to the legal professional who will be advising and guiding them towards their final outcome.
Some of the principles relating to One Solicitor Solution are closely aligned with other dispute resolution approaches, such as mediation. However, One Solicitor Solution provides an advice-based service where both clients are able to receive advice, including legal advice on a jointly beneficial basis. Generally, those who choose this option will not be in a dispute or have a ‘conflict’ as known within the law and the professional they are working with must adhere to regulations in respect to conflict of interest/s.
Their appointed legal professional will provide advice and may also suggest that advice and assistance be obtained from others as part of the team assisting the couple. The aim is that they will reach a decision that will be recorded in a draft order and the legal professional will assist them to obtain an approved order.
From time to time, it may well be the case that a ‘conflict’ or issues arise that the couple cannot resolve, perhaps due to strongly held views of one or both of the couple. When that is the case, it will need to be explored and if it cannot be appropriately resolved, then it will be necessary to cease acting as their legal professional and to consider next steps with the clients, which might include referring to mediation, or separate legal advice and representation for both or arbitration.
If you cannot resolve matters through collaborative law or mediation, then you may have to go to court. The Family Court has the power to deal with applications relating to children under section 8 of the Children Act 1989 and issues concerning divorce and finance under the Matrimonial Causes Act 1973.
The advantage to the court is that at the end of the day, a judge is going to make a decision about the issues in dispute and it is one that will be fundamentally fair after listening to all of the evidence.
However, as a result of both budget cuts and Covid-19, the Court Service is seriously under-resourced and cases can take more than 12 to 18 months to reach a final hearing.
Sometimes court applications are necessary where there are safeguarding issues relating to domestic abuse or protecting finances. Many people find the court process stressful – be prepared for it to be slow and expensive.
Summary and Advice – where to get it
So, it is possible to have assistance in resolving and not feel that court proceedings are the only option. There is a way forward that involves help with a constructive dialogue.
Anthony Gold Solicitors LLP offers an introductory fixed fee detailed session with an expert family lawyer who will advise you on the law and procedure, and how this relates to your personal circumstances. We will also give advice as to how issues can be resolved and strategies for achieving success. Contact Anthony Gold Solicitors on 020 7940 4060.
Anthony Gold’s family team are all expert family lawyers who are accredited by Resolution as experts in their field. The team has a number of qualified collaborative lawyers and mediators best equipped to resolve difficult and challenging disputes. They are experienced in dealing with financial and children applications within the Family Courts too.
About the Author:
David Emmerson OBE is a family solicitor, a trained hybrid and accredited mediator, a collaborative practitioner and a part-time judge with a specialist accreditation to deal with complex financial remedy cases and private law children cases.
I recently attended an International Family Law Conference in Iceland and learnt that the post separation parenting experience is based on shared parenting (50/50) and that the children of separated parents usually spend one week on and one week off with each parent.
The Scandinavian experience is very similar. In the 1980s around 1% of Swedish children experienced shared parenting but it is now close to 50% and increases year on year. This can be compared with 9-12% of post separation shared parenting arrangements in England.
Of equal interest is the fact that only 2% of parenting disputes end up in the Swedish courts.
Context is everything so why is the Scandinavian experience so different to ours? It must have something to do with the fact that maternity/paternity leave has been available to both parents since 1974 so that there is a legal right to stay at home until the child is 18 months old, 16 months of which are paid. In practice, each parent might elect to take 8 months off work. There is also a legal right to work part-time until the child reaches 8 years, with sick leave until the child is age 12 years.
Pre-school child care is widely available and used by most parents. Co-parenting is the norm and the Swedish take research on child development and parenting very seriously with regular population studies around the quality of life for children, both physical, psychological and social. The studies, particularly by the Karolinska Institutet, lend support to the promotion of shared parenting arrangements. These demonstrate that children experience their relationship with each parent as similar to that experienced by children in nuclear families.
I specialise in parenting arrangements both as a lawyer and as a mediator. I perceive that the English law is moving in the direction of shared parenting where both parents are able and available. It is now usual to obtain parenting orders which divide the school term time 6 nights/8 nights out of 14 with holidays divided equally.
For any assistance on parenting issues please contact Kim Beatson or on 020 7940 4011.
If Simon hid money from Gemma when they were agreeing their financial settlement on divorce, is there anything she can do about it?
Possibly.
During divorce negotiations and before reaching an agreement Simon and Gemma will have been required to exchange details of their respective financial positions. Lawyers call this “financial disclosure.” When a court order is made which makes the agreement binding, it is usually final. However, Gemma could make an application to “set aside” that order on the basis of Simon’s material non-disclosure. To succeed in this she would need clear evidence that he had hidden assets from her and, if so, that the outcome would have been “substantially different” had those assets been disclosed and taken into consideration.
What about arrangements for Tom?
If Gemma and Simon cannot reach an agreement about Tom then the Family Court has jurisdiction to make an order setting out with whom Tom will live and also arrangements for him to spend time with the other parent. The court’s priority will be to ensure Tom’s welfare and they will take a number of factors into account in determining the outcome. These factors are known as the “welfare checklist” and include Tom’s physical, educational and emotional needs and the capability of Gemma and Simon of meeting these needs, any risk of harm to Tom, the likely effect on Tom of any change in circumstances, his age, sex and background and his own wishes and feelings.
As Tom is 15 his wishes and feelings are likely to be very important in influencing the outcome. In fact, some Judges tend not to make orders at all in respect of children in their mid-teens, on the basis that they are probably old enough to make their own decisions and will do as they wish regardless of what the court says.
However, it is Tom’s welfare and not his opinion that will be the paramount consideration. Also, in cases where there is parental alienation or, like this one, very high conflict between parents, it may be difficult to ascertain what a child truly feels. If this case was before a court then a Judge may consider it appropriate for an Independent Social Worker to spend time with Tom and his parents and prepare a detailed report making recommendations for Tom. Tom, Gemma and Simon may also benefit from ongoing intervention and support from a family therapist, who could help Gemma and Simon reduce acrimony and ensure they put Tom first.
Simon and his new wife Kate’s new house is in Kate’s name only. Now that Kate has left him does that mean Simon has no rights in respect of their family home?
In short, no. On divorce all assets and liabilities are taken into account, regardless of whose name they are in.
As Simon and Kate’s marriage lasted for only two years it is unlikely that Simon would be able to bring any significant claim on Kate’s assets, especially if they were acquired before the marriage and/or they came from her family. However, the court also recognises that the family home should be treated differently to other assets and Simon has what are known as “home rights”. More generally, the court would want to ensure Simon’s needs were met and if he has limited assets himself then they would look to give him a share of Kate’s assets to get him back on his feet. That he has behaved very badly towards her does not make any difference to this.
Can Kate really take her and Simon’s daughter Amelie to France and make sure he “never sees her again”?
If Simon has Parental Responsibility for Amelie (either by being married to Kate when Amelie was born or, if Amelie was born before they were married, by being registered on her birth certificate) then Kate is not permitted to remove Amelie from England and Wales without Simon’s consent and to do so would constitute child abduction. This would be treated very seriously by the police both in the UK and in France. Both countries are members of the Hague Convention, which is an agreement entered into by multiple nations that they will work together against child abduction.
Kate is understandably very angry with Simon, but the court’s approach will be that unless there is a risk of harm to Amelie, Amelie has the right to have a full relationship with both her parents regardless of their feelings towards one another. Kate and Simon should therefore try and reach an agreement for Simon to spend time with Amelie so that their father/daughter relationship is maintained. It may be that the best way to do this is through mediation, so that they can find a way forward that both of them can live with and that prioritises Amelie’s best interests.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
On Saturday 16 September 2017 Anthony Gold was privileged to be one of the local businesses sponsoring the Bermondsey Street Festival.
As a South London based firm it is important to us that we support the local community and charities in the area. It was our pleasure to be able to sponsor the Bermondsey Street Festival for the second time and this year to be able to offer an adjoining stall to Prostate Cancer UK, a charity whose offices occupy a floor above our London Bridge office at The Counting House.
On the day we had a great location on the main bustling street which gave us the opportunity to meet a number of local residents, businesses and causes, as well as people who had travelled from further afield to enjoy all that the festival has to offer.
We also teamed up with Prostate Cancer UK to host a raffle with a number of tempting prizes provided by Anthony Gold, raising a total of £361 on the day which was matched by the firm to give a total of £722 to this very worthwhile charity.
There were several volunteers from Prostate Cancer UK who provided the opportunity to learn more about the important work they do in raising awareness of the signs of prostate cancer and supporting those who have been diagnosed. We were inspired to know that the money being raised was going to support such crucial work.
Many members of staff from Anthony Gold took part in the day, selling raffle tickets, and handing out a range of Anthony Gold treats to passers-by, including cloth bags filled with pens, jelly babies, balloons and key rings for the young (and young at heart!) There were also Anthony Gold beanies, which provided welcome warmth for those on the stall throughout the day.
The festival is a brilliant day out with family and friends and a great opportunity for local businesses and residents to get to know each other better. There is also a wide range of entertainment on offer, not to mention the abundance of delicious locally sourced food and drinks!
There was a great sense of community on the day and we hope to be able to continue to support the Bermondsey Street Festival in future years.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
If you are married you automatically share “parental responsibility” with your spouse or former spouse.
The same applies to the majority of unmarried couples where both are named on the birth certificate.
In these circumstances no person may:
Cause the child to be known by a new surname.
Remove the child from England and Wales.
without the consent of the other parent or a court order.
Parental responsibility as a concept includes important issues such as where a child is educated. The courts have often said that consultation on choice of school is required. In practice this means schools will want to see the involvement of both parents.
If there is a dispute regarding choice of school the initial step would be to consider mediation. If that is unsuccessful the last resort will be an application for a “specific issue” order using Form C100. The issue to be decided by the court is which school serves the best interests of the child.
For further advice on education and specific issue applications contact Kim Beatson by email to kim.beatson@anthonygold.co.uk or by telephone 020 7940 4000.
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
