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Divorce & Family Law at Emmetts Solicitors
Unfortunately, not all relationships or marriages are successful. In the event that such relationships fail, as well as the emotional upset involved there are practical issues to consider such as the impact Divorce or Separation will have on children, the provision of housing and finances. Our dedicated team at Emmetts Solicitors understand that the breakdown of a relationship is one of the most traumatic events in a person's life and in such circumstances sensible and practical advice is of paramount importance. Emmetts Solicitors are here to provide you with specialist advice on all aspects of Divorce and Separation and the financial consequences. We understand that Family Law demands discretion, sensitivity and a clear understanding of a clients needs.
Emmetts Solicitors understand your needs
In an area of a law such as Family Law, Emmetts Solicitors recognise the need for discretion, along with a sympathetic yet realistic approach. Apart from bereavement, divorce is probably the most traumatic experience confronting any family. It is important when facing these problems you have specialist representation, peace of mind is essential.
Divorce and separation can have far reaching implications. The trauma of having to deal with the financial aspects, possibly domestic violence and the effects that it has on the children and the family can be a lot for any family to bear. There is also a great deal to sort out. It is essential that people in such predicaments take proper advice from a specialist solicitor.
From dealing with divorce, financial settlements and child care matters, the benefits of instructing a solicitor at Emmetts is that you would have peace of mind to ensure that your case is handled properly.
Family Matters
Family law is a broad area of the law that covers topics such as:
• marriage, civil partnership and cohabitation
• divorce, dissolution and separation
• relationships between parents and their children
• inheritance and succession
Emmetts Solicitors cover all these topics and would be happy to advise any of our clients on any of the above, in the strictest confidence, and in a professional manner. We aim to provide the highest level of service to all our clients and help you resolve your problem effectively.
Call Emmetts Solicitors today on our freephone number, 0800 180 4383 or click here to submit a query and one of our family lawyers will get back to you.
Government Abandons Plans to Protect Cohabitees
Emmetts Solicitors - 24/04/2008
The Government has announced that it does not, for the time being at any rate, intend to proceed with reforms to the law that would have given cohabiting partners similar rights to married couples or civil partners on the breakdown of their relationship.
This unexpected announcement was made by Justice Minister Bridget Prentice and is all the more surprising given the inconsistency of rulings made by the courts in this problematic area.
The Law Commission had spent two years working on proposals to give protection to couples who live together. If introduced, these would have set out the respective rights of cohabitees as regards the financial arrangements on the termination of a relationship.
The number of people who are living together in a relationship but who are neither married nor civil partners continues to rise. Many of these people are probably completely unaware that they have few rights in the event of a break-up of their relationship and that such rights as they do have centre around any children of the relationship.
“The problem stems from the fact that, contrary to popular belief, in law there is no such thing as a ‘common law spouse’,” says Lindsay Emmett. “Couples who live together do not acquire legal rights and there are no set rules for how their assets should be divided if they split up. With over 2.5 million people currently living together informally, the courts are seeing a flood of disputes about who owns what when such relationships end.”
One common problem is where partners have lived together for a long time but the property they share continues to be held in the name of only one of the couple. If the couple then split up, this may give rise to a claim that the property should belong to both parties. The issues involved are often complex and such disputes can be very expensive to resolve in court. In some cases, people who have made a very substantial contribution to the financing and improvement of a shared home have been left with little or nothing for their efforts.
The review of the law in this area was intended to create more certainty in such cases, but the Government has chosen instead to wait to see what are the effects of planned reforms to the law in Scotland before any changes are made to the law in England and Wales.
“Meanwhile, the position of cohabitees is best protected by having a formal written agreement, which should be made with the benefit of independent legal advice on both sides,” says Lindsay Emmett. “This is particularly important where the assets involved are substantial, so that in the event that the relationship founders, a drawn out and acrimonious dispute can be avoided.”
Evasiveness Shows True Intentions
Emmetts Solicitors - 22/04/2008
There have been several cases before the courts in recent years which arose because a house or property was purchased in the name of one of an unmarried couple and then when the couple split up, the ‘non-owner’ claimed that they were entitled to an equitable share in the property concerned.
In general, where it can be demonstrated that a couple’s intention was to hold the property jointly, the courts will accept such claims. However, a recent case shows that not having the right sort of evidence of the intention can lead to what seems, on the face of it, to be a very unfair result.
Sharon James lived with Peter Thomas, who was an agricultural contractor. She worked in his business, but received no payment. All the income from the business went into an account in Mr Thomas’s name and all the couple’s expenses were paid from this account, including the mortgage on the cottage they shared. The property had been purchased by Mr Thomas before he and Ms James started living together. Ms James had carried out improvements to the cottage which had enhanced its value. A piece of adjoining land was also acquired in Mr Thomas’s sole name, payment for this being made in kind by work done by the couple.
The business was reconstituted as a partnership in 1999 and the bank account was made a joint account in 2002.
In 2004, after 15 years together, the couple separated and shortly after that the partnership was dissolved. Ms James claimed that she had a beneficial interest in the cottage, arguing that Mr Thomas had said she would be ‘well provided for’. Interestingly, the court heard evidence that when the subject of formal joint ownership of the property was raised, Mr Thomas had been evasive. This was taken to mean that he had no intention of parting with an equitable share in the property. The court also considered that Mr Thomas’s comment that Ms James would be well provided for was a general statement of a beneficial outcome, rather than a commitment to share ownership.
The court ruled that her claim failed, leaving her with only a share in the partnership assets on the dissolution of the business.
Cohabiting couples are often unaware that they do not have the same legal rights as married couples or civil partners and this case is proof of the wisdom of unmarried couples setting out in clear terms what their financial arrangements are to be. This is easily done by creating a ‘living together agreement’. Contact us if you need advice on protecting your financial position in the event of a break-up of your relationship.
Victory for Pre-Nuptial Agreements
Emmetts Solicitors - 19/04/2008
Pre-nuptial agreements have been given a boost following a recent case involving a ‘serial divorcee’.
A pre-nuptial agreement is an agreement made by a couple before they marry specifying how their assets are to be divided in the event that they divorce. They are commonly made by wealthy people, especially where the assets of the couple prior to the marriage are very unequal.
However, UK law does not (in theory) recognise pre-nuptial agreements – the argument being that marriage is to be encouraged in the public benefit, so an agreement which presupposes divorce is contrary to the public good. However, ‘pre-nups.’ are having more influence as the courts increasingly accept that they are indications of a couple’s intentions at the outset of their relationship.
In the case in point, thrice-divorced Susan Crossley abandoned her claim to a share of the fortune of her property developer fourth husband Stuart after their 14-month marriage broke up. Mrs Crossley had received £18 million in divorce settlements from her previous husbands. Prior to her marriage to Mr Crossley, she had signed a pre-nuptial agreement stating that in the event of the failure of their marriage, she would receive nothing. Hours before a scheduled hearing at the High Court, Mrs Crossley abandoned her claim, accepting that she had little or no chance of persuading the Court that the pre-nuptial agreement was invalid.
Mrs Crossley had claimed that the agreement was invalid because her husband, whose wealth is estimated at £45 million, had not disclosed to her ‘tens of millions’ of pounds held in offshore accounts. In an earlier hearing, however, the Court of Appeal ruled that the pre-nuptial agreement should be considered by the Court before looking at any other claim Mrs Crossley might have.
Says Lindsay Emmett, “The courts are having to cope with increasing numbers of divorces involving wealthy clients, which can take up large amounts of court time, so they are becoming more willing to give weight to pre-nuptial agreements. If you are considering marriage and have, or are likely to have, wealth to protect, a pre-nuptial agreement is worth consideration. Contact us for advice on all family and wealth preservation matters.”
Uncertainty Prevents Revision of Divorce Arrangements
Emmetts Solicitors - 17/04/2008
One factor that comes into play when decisions are being made about the financial arrangements following a divorce is the earning capacity of the couple.
A problem that can arise in such cases is what to do when the earning capacity of one of the ex-spouses is uncertain. In a recent case, which also involved a number of other issues, the wife of an airline pilot went to court over the level of the maintenance payments she received.
Her ex-husband had suffered a severe depressive illness and he had been suspended from flying duties by his airline. The financial arrangements made in the District Court took account of the uncertainty of his future employment prospects.
Some time later, his condition appeared to improve and he was able to return to ground duties, receiving a captain’s basic salary. An occupational physician’s report concluded that it was possible that he might be able to return to flying duties in due course.
The Court of Appeal, however, concluded that the uncertainty surrounding the man’s future employment had to be taken into account. His current earnings were no guide to his future level of earnings. The original decision regarding the division of assets therefore had to stand.
Says Lindsay Emmett, “This decision will be of interest to anyone in similar circumstances and indicates that in the absence of hard and fast evidence of changed circumstances, an appeal is unlikely to change the considered decision of the judge in a lower court.”
Remarriage Not Ground for Alteration of Divorce Settlement
Emmetts Solicitors - 12/04/2008
When financial arrangements are being made on divorce, the issue of the payment of maintenance is often in point. One of the concerns from the point of view of the payer is that if the ex-spouse remarries, their circumstances may well change significantly, so that the payment of maintenance is no longer appropriate.
Another issue which often arises is what happens when the person paying maintenance retires, as this can also affect the appropriate amount of maintenance payable.
Recently, a case was heard which dealt with both these issues. A man had been paying maintenance to his ex-wife for 12 years. As he was coming up for retirement, he sought to pay her a lump sum instead of continuing to pay maintenance. He enquired on more than one occasion whether she was cohabiting or intended to remarry and was informed that neither circumstance applied. In 2005 he therefore agreed to a consent order, as a result of which he paid his ex-wife a lump sum of £125,000 in lieu of future maintenance payments.
In 2006 his ex-wife remarried. He went to court to make an application for the consent order to be set aside on the basis that her remarriage had made the assumptions on which it had been based invalid.
For such an action to succeed, it is necessary that:
since the order was made there has been a supervening event which has led to a change of circumstances which undermines or invalidates the basis of the order;
the events are such that if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed; and
the new events have occurred within a relatively short time of the order having been made.
The court ruled that the man’s ex-wife had not planned to remarry at the time the settlement was negotiated and therefore the settlement stood. The man appealed to the Court of Appeal. The Court considered that the payment of the lump sum was intended to provide for a ‘clean break’. That in turn depended on the intentions of the parties at the time. The purpose of the husband’s enquiries regarding his ex-wife’s domestic situation was to assure himself that she was not cohabiting, rather than to protect himself from the risk of her remarrying. At the time of the agreement, she had no intention of remarrying, but that carried no implications regarding her future intentions. There was no basis for making the assumption that she would not remarry in any particular period, nor had the agreement between them provided for any variation in the event that she did remarry within a particular time frame.
On a majority decision, the Court of Appeal rejected the man’s appeal.
“This case shows how difficult it can be to alter financial arrangements designed to achieve a clean break and proves again that in such matters you get what you negotiate, not necessarily what you deserve,” says Lindsay Emmett.
McCartney Split – Implications for Divorcing Couples
Emmetts Solicitors - 10/04/2008
The much-publicised divorce of Paul McCartney and Heather Mills has led to a settlement in favour of Ms Mills of £24.3 million. Press speculation was rife that she might be awarded anything up to £60 million from Sir Paul’s fortune, which is estimated to be £400 million – the figure presented by his side in the proceedings and accepted by the court. Ms Mills, who represented herself, claims that he is worth £800 million.
What is significant about the judgment is that the award is based only on the needs of Ms Mills and the couple’s daughter. The implication of this is that the judge clearly considered that Ms Mills had added nothing of significance to the wealth of the McCartney household during their four years of marriage.
The decision contrasts with the July 2007 divorce of insurance magnate John Charman and his wife Beverley, who received £48 million from Mr Charman’s £130 million-plus fortune.
“The difference between the cases in legal terms is that Mrs Charman was considered to have made a much greater ‘special contribution’ to the couple’s 28-year marriage and to the acquisition of marital assets during that time than Ms Mills had made during her four-year marriage to the former Beatle,” says Lindsay Emmett.
The McCartney settlement follows a recent case in which a thrice-divorced woman, who on marrying for the fourth time had signed a pre-nuptial agreement to the effect that in the event of divorce neither she nor her husband would make any financial claim against the other, withdrew her claim for a share of her ex-husband’s fortune when the couple divorced, after the judge issued a preliminary ruling that the pre-nuptial agreement would be of material importance to the case.
It appears the courts are looking much more closely not only at the stated intentions of people going into a marriage but also at their relative contributions to the wealth created during the marriage. This does not mean that ‘stay at home’ spouses will necessarily receive a small settlement. If they can demonstrate that they provided the environment and support which enabled or assisted the ‘go getter’ to amass wealth, then there is every chance of them being awarded a significant proportion of the marital assets, particularly if the marriage has lasted several years.
The other factor the court will consider is the wealth brought into the marriage by each party. By and large, the ‘non-marital assets’ are divided in the proportion in which each spouse or civil partner introduced them.
From Times Online
March 19, 2008
Judges reject Islamic 'phone marriage' with woman in Bangladesh
The Court of Appeal has refused to recognise a marriage involving an autistic British man that is legal under sharia
Times Online and PA
Three senior appeal judges have refused to recognise an “over the telephone” Muslim marriage between an autistic British man and a woman in Bangladesh — even though the union is valid according to sharia or Islamic law.
The 26-year-old man, domiciled in England and identified only as IC, does not function above the level of a three-year-old and is said to be highly suggestible and vulnerable.
His parents, originating from Bangladesh but resident in England for many years, arranged for him to be married by telephone link to a bride chosen by them in Bangladesh with a view to his new wife, referred to as NK, obtaining a visa and joining him in this country.
The marriage was valid under sharia and the law of Bangladesh and, according to Islamic law, had taken place in Bangladesh.
Giving judgment in a case brought by Westminster Social and Community Services Department, which provides care for the man, the Court of Appeal said IC was unable to give valid consent to marriage under English law.
He lacked the capacity to marry and consent to sexual intercourse.
In some previous cases, the courts had recognised foreign marriages on the basis that the law which applied was either that of the intended matrimonial home or the country to which the marriage had the greater connection.
The appeal judges said that, were either of these tests to be applied in this case, the relevant law would still be English law, under which IC’s marriage could not be recognised due to his incapacity.
IC’s future welfare will be decided by a High Court judge later this year.
IC and NK have never met and are unlikely ever to meet. A court order prevents contact.
The judges refused the parents permission to appeal to the House of Lords.
Lord Justice Thorpe, sitting with Lord Justice Wall and Lady Justice Hallett, said the local authority had been supporting and protecting IC since the age of four. He received home care five mornings a week before attending a day centre, plus a high level of respite care.
“The role of marriage in the life of one so handicapped is inconceivable in our society, and as a matter of law marriage is precluded,” the judge said.
The Muslim ceremony took place in September 2006.
The judge said the marriage arranged by IC’s parents was “potentially highly injurious”.
IC lacked the capacity to understand the introduction of NK into his life, which would be “likely to destroy his equilibrium or destabilise his emotional state”, he said.
“Were IC’s parents to permit or encourage sexual intercourse between IC and NK, NK would be guilty of the crime of rape under the Sexual Offences Act.
“Their engineering of the telephonic marriage is potentially if not actually abusive of IC. It is the duty of the court to protect IC from that potential abuse.”
Lord Justice Wall pointed out that, in Bangladeshi culture and Islamic principles of welfare, the marriage was a means of protecting IC and ensuring he was properly cared for within the family when his parents were no longer able to do so.
By contrast, to the mind of an English lawyer such a marriage was exploitative and abusive.
The judge held that the marriage was “sufficiently offensive to the conscience of the English court that it should refuse to recognise it and should refuse to give effect to the law of Bangladesh and sharia”.
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