It is not uncommon in longer marriages, cases where there are children or just very wealthy people, that one party can expect to receive maintenance for a number of years and sometimes indefinitely. Maintenance often bridges the gap where there is a disparity of income or simply where one party is not able to make up the difference between what they need to live on and earnings that they can attain through their own work. Maintenance is often paid for a defined period of time and typically can finish or be reduced when the children transfer to secondary education.

But receiving maintenance can be unreliable. It can be fraught with difficulties such as a separating husband who remains bitter and untrustworthy and so misses payments or ceases altogether. Enforcement of maintenance orders can be difficult and costly. There may be good reason why one party stops paying maintenance such as loss of a job or becomes too ill and cannot work at the same level as before.

In some situations, therefore it may be preferable for the potential receiver of maintenance to consider capitalising the maintenance and receiving a lump sum or perhaps additional properties as an alternative to maintenance.

How do family lawyers or the courts assess what a capitalised maintenance figure might be?  Many years ago there was a reported family finance case called Duxbury in which the court heard evidence from expert mathematicians on the basis of how you can capitalise maintenance. The calculation is complex and took into account the age of the wife, life expectancy, inflation and the advantages of having the money upfront which can be invested and produce both an income and growth. The lump sum that he has paid can be drawn in regular monthly instalments to meet the needs of the wife.

However, the method of calculating such lump sums using the Duxbury method has come in for some criticism as not being fair to the wife. A more progressive method of calculating can be found using a more detailed calculation by Bailey and Lung. This can be found via enquiries@divorcecalculator.co.uk. The calculation here is much more detailed and takes into account more relevant factors. The calculation makes a fair attempt to apportion the risk between the two parties and does not push the receiving party into making such higher risk investments. The pair have advised on a number of divorces but as yet the method has yet to be put through its paces in a contested hearing before a judge. Suspect only a matter of time. It is certainly a factor we consider when advising in a divorce.

* 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.*

The 18th Century Diarist Samuel Johnson referred to second marriage as “triumph of hope over experience”.

There is considerable evidence to show that the problems which arose during a first marriage will be carried forward into the second marriage which may explain the rise of second marriage divorces year after year.  Further pressure arises as a result of continuing disputes and litigation over children and finance from the first marriage.

Typical Issues That Arise After A Second Marriage

The “Remarriage Trap”

Many former spouses retain some financial connection with each other after they have obtained a divorce as they have not formally obtained and/or applied for a financial order. However, a second marriage can have serious consequences if there are unresolved claims.

Remarriage can result in the loss of being able to apply for a lump sum, spousal maintenance or property adjustment order from a former spouse. There are a few exceptions to this rule. A spouse who has remarried may still be able to make an application for a pension sharing order and may still assert their right to a financial claim if they indicated on their divorce application/petition that they would be seeking a financial order or if they applied for a financial order before their second marriage.

Dependent Former Spouse

A dependent former spouse (typically a first wife) may seek a variation of her maintenance or capitalisation.  That could arise in conjunction with a second marriage but it is commonplace at the time of a second divorce.

The 2010 case of Vaughan [EWCA Civ. 349] emphasised the importance of striking a balance between obligations to a first spouse and the freedom to enter into a fresh financial commitment with the second marriage.  In summary it said that priority would not be given to one spouse over another where there had been more than one marriage.

Child Support

The new child support regime is based on the gross income of the non-resident parent but deductions arise from that gross income where there are other children living in the non-resident parent’s household. That could mean children with a new wife/partner or step-children.  It follows that a second marriage will inevitably lead to a review of financial obligations to the children of a first marriage.

Friction Over Children’s Educational Choices

Particular friction can arise over educational choices for children of different relationships.  A non-resident father (for example) may feel that he can no longer afford to privately educate the children of his first marriage as a result of his financial obligations in his second marriage.  He will not take kindly to being told that a Court is likely to favour the status quo and may regard continuity of education as a paramount concern.

A second wife may feel equally resentful if her children are obliged to attend state schools whilst the children of a first marriage are privately educated.

Things To Focus On After A Second Marriage

Re-Examine Wills and Inheritance

A second marriage is an opportune time to re-examine Wills and inheritance, particularly nominations under life insurance/death in service policies and dependency nominations under pensions.

Often these will have not been revised following the end of a first marriage and it is important to ensure a workable solution in the event of the death of a parent who has obligations to two families.

In relation to inheritance, a parent may believe or want to ensure that their children from their first marriage will be left with adequate provision from their estate when they die. However, under the rules of intestacy, if the parent dies without making a Will the estate will automatically pass on to the second spouse.

Consider the Benefits of a Pre-Nuptial Agreement

Anyone embarking on a second marriage would be wise to consider the benefits of a Pre-Nuptial Agreement.

We might assume that second marriages have a higher success, having learnt from the mistakes of the first marriage.  It is not true and a second divorce can be far more painful than the first time round.

For advice on divorce, pre-nuptial agreements and financial provision, please contact Trainee Solicitor, Lola Ajayi at ova@anthonygold.co.uk or on 020 7940 3903 to arrange an appointment with one of our expert solicitors.

* 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.*

This blog was updated on January 27th, 2023.

In many cases particularly where there are young children, maintenance is payable to the wife as part of the divorce settlement until she remarries, dies or “further order”.  If the wife subsequently moves in (cohabits) with a new partner this is likely to result in her ex-husband applying to vary the maintenance order under section 31 of the Matrimonial Causes Act 1973.  The maintenance can be increased or decreased on variation and can also be capitalised to enable a clean break to take place.  This would involve the husband paying the ex-wife a lump sum in exchange for termination of her maintenance claim.

Cohabitation counts as one of the circumstances of the case which would be looked at under section 21(1) of the Matrimonial Causes Act 1973 but it does not have any greater importance than any of the other factors.  It can often be very difficult for ex-husbands to accept that their ex-wife’s cohabitation does not automatically disentitle her from receiving maintenance under the court order.

The 1995 case of Atkinson v Atkinson established that when assessing the relevance of a wife’s cohabitation it was important to consider the financial circumstances of the wife’s cohabitee and “his capacity to make a reasonable contribution in return for the benefits of the provision of a home”.  Later, in the 2003 case of Fleming v Fleming [2003] EWCA Civ 1841 the Court of Appeal stated that cohabitation should not be equated with marriage even though society’s attitudes had changed.  It also stated that in a case where there had been lengthy cohabitation the range of discretion held by the judge allowed the court to place considerable weight on that factor.

More recently in the case of AB v CB [2014] EWH C2998 (Fam) Mostyn J warned wives of the potential legal difficulties arising from entering into new relationships before their financial settlements on divorce are sorted out.  In this case, the parties were married for 10 years and had 2 adopted children.  In 2005 they moved into a farmhouse owned by the husband’s wealthy family.  In 2009 a trust was set up in respect of the farmhouse, the principal beneficiary of which was the husband and the main discretionary beneficiaries the children.  After the trust was established the parties spent funds on refurbishing the property.  In 2012 the marriage broke down and the wife (who was a journalist) went to live with her parents, the husband remaining in the farmhouse where he lived with his new partner.  Mostyn J found that the wife knew it was intended that the farmhouse would stay in the husband’s family and after it had been used by them it would revert to the family estate.  The wife did not disclose the fact that she had a new relationship and this was only discovered by “investigations” by the husband’s lawyers.  The wife claimed that nonetheless, she had no intention of cohabiting.  She was awarded £23,000 from the trust outright (in respect of her contributions) and £134,000 on the terms of a life tenancy.  In his judgment, Mostyn J stated “Relationships like this always are a significant fly in the ointment in the assessment of needs.  One cannot make assumptions if it is not a full-blown cohabitation akin to marriage, that it will grow into that, because if it does not, the wife may be left stranded between Scylla v Charybdis if the assumption is wrongly made.  On the other hand, if one makes a needs assessment on the basis she is a single woman and she soon cohabits, then the paying party….. can rightfully feel significantly aggrieved”.

Taking all the facts into account the judge concluded that £250,000 would be enough to meet the wife’s needs stating that he could not “ignore the existence of her relationship”.

The Court of Appeal has recently considered Mostyn J’s decision in the case of Hart v Hart [2016] EWCA Civ 497. In his judgment Munby LJ found that Mostyn J’s judgment  in AB v CB does not lay down any principle of law and that these matters are “quintessentially matters of fact where the trial judge has to have regard to the totality of the evidence, including the nuance of that evidence, before coming to a conclusion as to whether the prospects of remarriage or indeed the future prospects of the relationship, should or should not, and if they should to what extent they should, be taken into account.”

In conclusion, it is clear that if a spouse or civil partner is found to be cohabiting the existence of that relationship will not be ignored even if no financial support is being provided by the cohabitee.  The case law shows that the court’s approach is to focus on what the cohabitee should be contributing rather than his or her actual contribution.  This is obviously a factor which anyone in receipt of maintenance under a maintenance order needs to take into account before moving in with a new partner.

* 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.*

Many people think of their pet – whether it be a dog, cat or a rabbit– as part of the family. This is why “custody” of a pet can form part of family financial proceedings and negotiations.

In England and Wales, the legal treatment of a pet is as personal property, just like cars, jewellery and other personal belongings.

The property test involves considerations including:-

•  Who paid for the pet?
• The Certificate of Registration.
• Who paid for animal insurance?
•  Who paid for the vet?
• Who paid for food, litter and supplies?

Although pets are treated as property, people often have strong emotional bonds with their pets and think of them more like children. This can lead to long and expensive arguments over ownership during divorce proceedings. It may also explain why there are few reported cases in England and Wales.

By contrast, other countries adopt a “best interest” test towards family pets. There are several reported cases in the US and Israel, and Switzerland has even amended the Civil Code to clarify this matter.

The “best interest” test is one that family lawyers are familiar with as it is normally applied to disputes concerning children.  The following factors could be important:-

• Living arrangements.  If one party keeps the family home then the pet will have familiar surroundings.Where will the children live – presumably with the family dog?
• Who does the animal have a strong bond with – who feeds the animal!
• Which claimant is able to give more time to the animal?

An expert in animal law at Northumbria Law School has recently called for change in how decisions about the custody of pets are made in divorce proceedings. In her recent paper she called for a more flexible approach that includes aspects of the animal’s welfare.

To avoid disputes over pets which can be extremely bitter and costly, couples are increasingly including provisions for their pets within prenuptial agreements. For expert advice on any aspect of your divorce, separation please contact the Family and Relationships department at Anthony Gold Solicitors mail@anthonygold.co.uk or by telephone on 020 7940 4060.

* 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.*

So Brad Pitt and Angelina Jolie are to divorce according to the press and social media. Their divorce, like their relationship and marriage, will be the focus of huge media attention. How can they resolve important issues concerning the divorce, the finances and crucially the children in the best way possible?

Here are the options:-

Collaborative law

Brad and Angelina would appoint lawyers who instead of conducting negotiations by letter and going to court,  would meet face-to-face with Brad and Angelina in a series of meetings to find constructive lasting solutions to issues concerning the finances and the children.  If needed expert help from counsellors, financial advisers, accountants and divorce coaches can be brought in. Brad and Angelina will set the agenda and with the help of their lawyers and other professionals, find solutions which enable them to move forward. Collaborative law is one of the best ways of minimising conflict and preparing a framework by which Brad and Angelina could communicate and play a joint role in their children’s lives despite being separated. Collaborative lawyers are specially trained, not only as expert family lawyers, but also with negotiation and mediation skills.

All meetings are completely confidential and the press cannot demand access to the meetings or the documents. Satisfaction feedback from those who have undertaken collaborative law is very high.

Mediation

Brad and Angelina could in conjunction with their lawyers appoint a mediator to help them resolve difficult issues between them concerning the children and finances. Mediators are specifically trained to deal in conflict management and assist the parties in finding solutions. Mediators are independent and impartial.  Mediators cannot give legal advice and cannot make decisions. Mediators would facilitate Brad and Angelina in exploring each other’s positions, different options and the various ways forwards. As with collaborative law, counsellors, divorce coaches and financial experts can be drafted in to assist with particular aspects. Angelina and Brad would stay close to their family lawyers during this process so that they had the benefit of legal advice and support. Mediation is confidential.

Going to Court

Either Angelina or Brad could issue applications with the court to resolve issues concerning the children and the finances and not just the divorce itself. Such cases are conducted in accordance with procedural rules and family law. The advantage of court litigation is that at the end of the day the judge will make a decision and impose a judgment and order. However, this may not be a solution which suits either party and court proceedings can be very stressful and take many months to resolve. Also the press can ask to sit in during the court process and report what happens. This can be difficult, challenging and embarrassing for Brad and Angelina as well as their children.

Arbitration

If both Brad and Angelina agree to appoint an arbitrator, then they can choose a particular arbitrator who will make a binding decision about issues that Brad and Angelina choose to refer to the arbitrator. Arbitrators are usually very experienced solicitors, barristers or retired judges. The process is more informal than the court process and substantially quicker and cheaper. However, at the end of the day, the arbitrator is imposing a decision which might not be as good as a decision negotiated by Brad and Angelina in collaborative law or mediation.

Arbitrators, if suitably trained, can deal with both children and finance issues. Arbitration is confidential and the press are not allowed to view the process.

DIY

Brad and Angelina could simply dispense with the courts and lawyers and try and resolve matters between themselves. If they succeed then that may be fine, however without the benefit of legal advice in the first place, neither Brad nor Angelina will know what the law is and what the likely legal outcomes are. Secondly separating couples tend to find it extremely difficult to talk constructively about issues such as the children and finance despite on the face of it a keenness to do so. That is after all probably one of the main reasons why they have split up in the first place. Expert collaborative family lawyers and family law mediators are skilled at ensuring separating couples are able to talk about important issues and crucially listen and understand what the other person’s point of view is.

Brad and Angelina have chosen to go to court. Angelina is apparently not making a financial claim but is asking the court to decide issues concerning the children.

Many couples who have undertaken mediation and collaborative law find that it is far more effective, produces better solutions, is less stressful and far cheaper and quicker than any other process.

* 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 22 April 2014 a number of changes will come into force which will ‘revolutionise’ the family court system as we know it.

In the words of Sir James Munby, the President of the Family Division, ‘we are on the cusp of history’ as ‘22 April 2014 marks the largest reform of the family justice system any of us have seen or will see in our professional lifetimes’.

Family law practitioners across the country are busy grappling with these procedural changes as they are being published (at a rapid rate!) to ensure that mistakes are not made and the transition to the new system goes as smoothly as possible from next week.

So, what does this mean for those who are currently in the midst of family law proceedings and/or who will require use of the family court in the future?

Some of the most significant changes to be aware of (in no particular order) are: –

• Mediation. Attendance at a MIAM (Mediation Information and Assessment Meeting) will be compulsory for the prospective Applicant. The prospective Respondent is now also expected to attend.  If a Respondent has refused to attend a MIAM the Court can order that they do so and can adjourn proceedings until this requirement has been satisfied. There are limited exemptions, most significantly where there has been domestic violence or where the application is urgent and/or to prevent risk of harm. However, the Court can make enquiries as to whether any exemption claimed is valid. If an exemption is not considered valid, attendance at a MIAM can be ordered.

• Child Arrangement Orders. There are no longer ‘Contact’ or ‘Residence’ orders in proceedings regarding children. Instead, these orders are now collectively referred to ‘Child Arrangement Orders’. These Orders set out with whom and when a child is to live, spend time or otherwise have contact with a person. There will be a Child Arrangements Program (CAP) in place which applies wherever there is a dispute about arrangements concerning children (Practice Direction 12(b)). The aim of the CAP is to ensure that all matters regarding children are either dealt with by non-Court dispute resolution (i.e. mediation, collaborative or through parenting programmes) or if dealt with in Court are dealt with as swiftly as possible. The CAP reinforces the welfare principle. It confirms that the child’s welfare ‘must be the highest priority’, that the process must be ‘child-focused’, and that a child should feel their wishes and feelings have been considered. Practice Direction 12(j) contains a presumption that the involvement of a parent in a child’s life will further the child’s welfare, but only ‘so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm’. The CAP makes it clear that the first hearing (FHDRA) is not privileged.

• No more ‘Statement of Arrangements’. There is no longer a requirement for a Divorce Petition to be accompanied by a Statement of Arrangements form when there are children involved. Instead, only the Petition will be needed to start the divorce proceedings. This means that the arguments and anxiety which can be caused by completion of the form will be avoided. If there is an issue about the arrangements to be made for a child then it is for the parents to resolve this either through non-Court dispute resolution, or through the Court’s.

• Single Family Court. There will be a ‘single’ Family Court system to replace the three tier court system of the County Court, the Family Proceedings Court and the High Court. The single Family Court will include the High Court and will group together District Judge’s, Circuit Judges, lay Magistrates, and High Court Judges. All applications must be issued at a Designated Family Centre. In London there will be three Designated Family Centres, the Central London Family Court at First Avenue House on High Holborn (currently the PRFD), the West London Designated Family Centre at Hatton Cross, and the East London Designated Family Centre, the location of which is still to be confirmed. Once the application is issued it will be allocated to the appropriate Hearing Centre where the appropriate Judge will deal with the application. A case will only be allocated to the High Court if there are good reasons for this. There will be a ‘centralised and unified administration’, involving a centralised back office, gate keeping and allocation team, and listing system, to cover the single Family Court. There will be Gatekeepers who will allocate all applications the next working day after they are issued. The Gatekeepers also have the power to make directions on issue, such as requiring parties to attend a MIAM if they have not done so or their exemption claimed is not accepted as valid, directions for an accelerated hearing if there is an urgent issue, or directions for the filing of evidence in exceptional circumstances.

• Continuity. The aim is to provide ‘continuity of judicial involvement’. In children proceedings, this means that the same Judge should deal with every hearing, from the first hearing (FHDRA) to the Final Hearing. In financial proceedings, this means that the same Judge should deal with the first hearing (FDA) and any interim hearings until the FDR, and then, if the matter is not settled at FDR a Judge will be allocated to the Final Hearing and will attend all interim hearings in between.

• Bundles. A new Practice Direction has been issued in relation to the preparation of Court Bundles, which all family law practitioners must take careful note of. If the Practice Direction is not followed the Court has the power to make a Wasted Costs Order and re-list the hearing. This Practice Direction requires all Court bundles to be limited to one lever arch file and contain only those documents which are relevant and necessary and will be referred to at that hearing, unless the Court orders otherwise. The bundle is to be agreed four working days prior to the hearing, lodged at Court two working days prior to the hearing, and all preliminary documents lodged by 11am the day before the hearing. The Practice Direction also sets out specific requirements as to the order and pagination of documents and the length and content of certain documents. It is an essential read for every family law practitioner (Practice Direction 27A) and also deals with how to remove or re-lodge a bundle, and how to take cases out of the list. Whilst the Practice Direction is in force from 22 April 2014, the requirements that a bundle be limited to one lever arch file and that certain documents should not be included unless ordered by the Court are not in force until 31 July 2014. However, it would be good practice to comply with the entirety of the Practice Direction from the outset.

And, things still to come….

• Transparency. On 16 January 2014 Practice Guidance on Transparency in the Family Courts was issued. This emphasised a greater need for transparency of family proceedings to improve the public’s understanding of, and confidence in, the Court system. To achieve this, the Practice Guidance aimed to increase the number of Judgments available for publication. Sir James Munby will be soon be issuing a further draft Practice Guidance dealing with the disclosure to the media of certain categories of document, subject to appropriate restrictions and safeguards, to achieve greater transparency.

• Arbitration. Sir James Munby proposes in the near future to issue a draft rule change to enable applications under the Arbitration Act 1996 to be made in the Family Court and to prepare draft guidance on the procedure for such applications.

• Orders. Sir Nicholas Mostyn, working with a team of family law experts, has already produced a first batch of draft precedent orders and will shortly be issuing a second batch for discussion and comment. This change will not take place until after April 2014. Once the precedent orders are finalised it is intended that implementation of this change will be staged.

All in all, this is set to be an interesting and challenging time for those involved in the Family Court system. Here’s hoping that this is a revolution for the better!

*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.*