Month: May 2018

Five thoughts on ‘no fault divorce’

Posted on May 23, 2018 by Merrick Solicitors - DIVORCE

The highest court in the land – the Supreme Court – is considering its judgment in the case of Owens v Owens.

This high-profile and long-running case has provoked huge debate as it raises important questions about our divorce laws. Many in the legal profession believe the law is out of step with modern life and needs reforming.

In England and Wales since the 1970s, there is only one legal ground for divorce, which is that the marriage has irretrievably broken down.

The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Mrs Owens’ divorce petition has been contested by her husband – something that happens in only a small percentage of cases. The High Court and the Court of Appeal have rejected Mrs Owens’ claims. She has appealed to the Supreme Court in the hope of getting the divorce she wants.

Campaigners have highlighted the Owens case as proof the system needs to be changed. Otherwise, people in similar situations can find themselves trapped in a marriage they no longer wish to be in.

In approximately 60% of cases, the system relies on one party to blame the other for the marriage failure. Many have argued that it is time for ‘no fault divorce’.

Campaigners argue that marriages sometimes just run their course with no one party any more to blame than the other. And surely no one should be forced to stay in a marriage when they are unhappy?

The Supreme Court will deliver its verdict later in the year.

In the meantime, here are five points raised by the Owens case and the much talked of ‘no fault’ divorces.

Unnecessary conflict

Under the current system, the requirement to cite adultery or unreasonable behaviour can provoke unnecessary conflict in proceedings. Waiting two years isn’t always the best option when there are financial issues to be resolved too.
It may be that the marriage has just run its course. But unless the parties are prepared to wait the only option is for one to make allegations against the other. While in some cases this may seem like a means to an end, it frequently soon escalates when written allegations against a partner are prepared for submission to court. Many practitioners argue the system should move away from the confrontational, particularly if there are children.

The current system is hypocritical

Sir James Munby, when President of the Family Division, denounced the current law as “based on hypocrisy and lack of intellectual honesty”.
After ruling on Owens, he said couples must engage in “consensual, collusive, manipulation” of the law to gain a divorce.
This led to concern amongst family lawyers that the ruling would lead to couples making more lurid allegations against each other to ensure a divorce was granted. Research published last year by the Nuffield Foundation showed our divorce laws incentivise people to exaggerate claims of unreasonable behaviour or adultery to get a quicker divorce.

Sir James Munby said divorce law was based on hypocrisy

No fault divorce: Conciliation isn’t for everyone

For all the talk in the media and amongst the profession no-one yet knows what ‘no-fault’ divorce really means or how it will work. Is it to be an addition to our existing laws or a wholesale replacement? And what would that mean for those cases in which there has been conduct relevant also to the associated financial or children issues? Under current legislation the decree nisi acts as a finding of fact on the contents of the petition.

Man has been laying blame since the beginning of time. Adam blamed Eve and God for his fall from the Garden of Eden and Eve in turn looked to the serpent for encouraging her to take the forbidden fruit.
Conciliation isn’t for everyone and in some cases the blame game can provide its own form of catharsis. A blanket removal of the existing grounds for divorce may not provide the panacea that is expected.

Many in unhappy marriages look to divorce to give them a fresh start in life. They require the cathartic experience of being able to say why exactly their marriage failed. And, to put it bluntly, they want to name the party they believe was to blame. And also recite the poor treatment that resulted in their marriage irretrievably breaking down. To deny that experience could serve to cause more conflict (not less) when dealing with associated financial or children issues.

The Family Court is entrusted with a very wide discretion for a reason; because no one solution fits all. It’s a principle that perhaps should not be overlooked when deciding the part no fault divorce should play in modern day relationship breakdown.

The Supreme Court doesn’t make new laws

Those looking for a ruling in Owens v Owens to lead directly to a law change are very likely to be disappointed.
The Supreme Court’s president, Baroness Hale, has already said: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Government action is therefore needed

Parliamentarians should be watching what is happening and getting ready to step in. Divorce law in England and Wales is out of step with our nearest neighbours Scotland, most other countries in Europe, and North America.
Despite numerous calls to change the law, successive governments have failed to do so. An attempt to introduce no-fault divorces in 1996 failed after it was described by the Government as unworkable. A Private Members Bill in 2015 failed to win backing, though Baroness Butler-Sloss has signalled her intention to try again.

Government inaction is possibly because they don’t want divorce to look too easy. But in the real world couples do split up. Surely there should be a mechanism to make sure, where both parties are agreed, unnecessary obstacles aren’t placed in the way, causing additional suffering for all concerned?

Family law reform in spotlight at Supreme Court

Posted on May 11, 2018 by Merrick Solicitors - CHILDREN, DIVORCE, RELATIONSHIPS

Court 1, The Supreme Court - Family law reform

Two cases with potentially far-reaching consequences for family law reform will be heard at the Supreme Court this week.

The hearings could shape the future look of divorce and civil partnerships.

Owens v Owens

The case of Owens v Owens underlines the need for no-fault divorce to finally be adopted in England and Wales.

Tini Owens claims she’s “locked in” to her marriage with farmer Hugh Owens which broke down after she had an affair. She filed for divorce, but Mr Owens represented himself and opposed the petition. Her request was denied.

Her appeal was rejected by the High Court and then the Court of Appeal. She was, however, given leave to appeal to the Supreme Court and this is due to be heard on Thursday.

Family lawyers group Resolution has been given permission to make representations, given the importance of the likely ruling.

Family law reform?

As the law stands, the requirement to allege adultery or unreasonable behaviour provokes unnecessary conflict. Reducing that hostility must be a better way forward and would assist in making divorce law fit for purpose.

Previously we looked at this from the all-important perspective of a child.

Currently, Mrs Owens is forced to stay in a marriage that she no longer wants to be in. She’s having to appeal to the highest court in the land to grant her wish.

Whether this case will lead to direct reform, only time will tell.

At the Court of Appeal, Sir James Munby ruled: “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, although some people may say it should be.”

Baroness Hale, President of the Supreme Court

And the President of the Supreme Court, Baroness Hale, said only last month: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Hence, all eyes will be on the Supreme Court on Thursday.

That will follow a case at the start of the week with potentially far-reaching consequences for civil partnerships and co-habitees.

Steinfeld

Same-sex couples have had the right to enter into a civil partnership since 2005 and to marry since 2014. No such right to civil partnership exists for opposite-sex couples.

This omission has been challenged by Rebecca Steinfeld and Charles Keidan, a couple in a long-term relationship. They wish to formalise their arrangement but have an ideological objection to marriage, based on what they consider to be its patriarchal nature.

The couple sought a judicial review of the government’s decision not to offer civil partnerships to opposite-sex couples. Both the High Court and Court of Appeal ruled against them.

While the government has been looking at whether a change in the law is required, the couple are now to have their case heard by the Supreme Court.

At the heart of this is the truth that some co-habitees want a legally binding relationship other than marriage that affords protection in the event of a relationship breakdown or death.

Previously we explained the lack of legal protection for co-habitees and some of the myths surrounding their ‘rights’.

There are more than three million co-habiting couple families in the UK. Surely it is right that they have the option to choose a legal status right for their beliefs?

Court 1 of the Supreme Court will be the testing ground for reform.

Baroness Hale: By University of Salford Press Office [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Why Prince Harry and Meghan should consider a pre-nup

Posted on May 2, 2018 by Merrick Solicitors - FINANCES, RELATIONSHIPS

Prince Harry and Meghan Markle should embrace a modern marriage trend and sign a pre-nuptial agreement before stepping down the aisle at Windsor Castle.

That’s the view of leading family lawyer Edward Boydell who said pre-nuptial agreements that specify what will happen to income and assets in the event of a marriage ending have increased dramatically in recent years.

There has been speculation the couple might have one drawn up as both have experienced the aftermath of divorce. Princess Diana and Prince Charles split when Harry was 11 and Ms Markle’s parents when she was six. Her own first marriage ended after just two years.

Many observers insist it’s not the ‘royal way’. But Mr Boydell, barrister and head of the family finance team at London’s Pump Court Chambers, says there are many reasons why it would make sense.

Edward Boydell says royals should consider a pre-nup

Pump Court Chambers’ Edward Boydell

Mr Boydell told Merrick Solicitors: “It’s a really good idea for people with complicated lives and complicated finances to have thought through what they would want if the marriage ended, rather than having to battle for it at that time.

“I would say of all the young couples getting married this year Harry and Meghan have the most complications. Of course, we all wish them a long and happy marriage but being a thoroughly modern young couple, they may well have taken steps along this line.”

Pre-nups no guarantee, but…

There is no absolute guarantee that a pre-nuptial agreement will determine the financial provision made at the end of a marriage. But since precedent set in 2010, a pre-nup can significantly improve the case of anyone relying on it.

Mr Boydell said: “Up until that point they had been viewed with distaste and were seen as rather anti-marriage. Since 2010 there have been thousands signed.”

The starting point for the division of finances in divorce is generally equality of property and assets.

However, 21st century relationships come in various shapes and sizes meaning that no one solution fits all. With people living and working longer many families reflect not one, but two or more significant relationships.

So how can a ‘pre-nup’ help?

It can ringfence assets which have, for example, been built up in a family over generations.
It can look to safeguard assets for dependents from a previous relationship.
Where both parties are established financially, it can set out terms for any sharing of their existing and future wealth.
It can short-circuit expensive litigation following separation

But Mr Boydell said finances aren’t the only concern. Often it is the arrival of children and planning their futures that is also uppermost in people’s minds.

Mr Boydell said: “Sometimes where the couple are going to live can be an issue. They may meet and marry in London, but part of the agreement is they live overseas within, say, five years.

“In the case of the royal couple, there could be thought as to where any future offspring should be raised given Ms Markle’s American roots.”

Have Meghan Markle and Prince Harry discussed a pre-nup?

Looking ahead: The happy couple

In marriages in later years the only provision might be around future care needs. Favourite pets also figure highly on some people’s list of concerns.

Mr Boydell said: “I had a case where both parties brought dogs into the marriage. The pre-nup stated that in the event of divorce they each kept their own dog. The marriage didn’t last and that’s exactly what happened.”

Challenging a pre-nup

If the pre-nup is entered into properly it leaves limited room for challenge. Common grounds for doing so have been if the pre-nup was unfair from the outset, a party didn’t have good, or any, legal advice or there wasn’t full disclosure of assets.

Mr Boydell said there was now a greater challenge around ‘need’. This may be because separating couples frequently enjoy greater financial wealth during the course of the marriage than at the time of their wedding.

He said: “We are seeing more attacks based on need. For example, ‘the agreement signed doesn’t now meet my needs because we have since lived for many years in a £5m house’.”

Neither are pre-nups the preserve of the fabulously wealthy. Though Mr Boydell said often they were used when both people bring assets into the marriage, there were also many occasions when there is a relative in the background keen to protect the family wealth.

He said: “If the family want to hand over assets at some stage during their life they may also want to make sure it can’t land up in the hands of some ne’er do well son-in-law or daughter-in-law.”

With the countdown on to May 19 the royal couple have probably left it too late if they haven’t yet signed a pre-nup.

Mr Boydell said: “The venue is booked, Meghan’s family have their plane tickets, the guests have been invited. There would be enormous pressure to sign an agreement now which would run the risk of causing duress. These things must therefore be done in plenty of time before a wedding.”

Pre-nups aren’t romantic

Amanda Merrick echoed this sentiment.

She said: “Pre-nuptial agreements are not romantic. They force a challenging discussion about issues many would prefer to ignore at a time when the focus is ‘til death do us part rather than divorce.”

Amanda Merrick

She advocates time and space well in advance of the big day to allow for proper consideration. This gives any agreement the best chance of holding good in the face of a subsequent relationship breakdown.

Miss Merrick added: “Lack of financial compatibility has long been cited as one of the most common reasons couples break-up. Meaningful discussions in anticipation of a pre-nuptial agreement can therefore provide an opportunity for a much-needed dialogue.”

‘Marriage is fragile. Financial harmony is critical for validation, freedom, power, respect, security and happiness. Couples must realise the great importance that money has in their relationships and learn to define guidelines for money management’
– Washburn, Carolyn and Darlene Christensen. 2008. Financial harmony: A key component of successful marriage relationship

Royal photo By Mark Jones [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

We’re hiring! Could you be our next family lawyer?

Posted on May 1, 2018 by Merrick Solicitors - HIRING, Merrick News, WORK

Family Law Vacancy

We thought we’d show you the Magnificent Seven – our brand values here at Merrick Solicitors.
They’re important to us, we work by them every day.

Unless you can relate to them, we’re probably not the firm for you.

If you don’t believe that client care is the central core of what a family lawyer does, then we’re definitely not the firm for you.

We know some may be thinking ‘brand values? Corporate twaddle more like’.

But that’s another thing you should know about us. We don’t do corporate twaddle.

We don’t do across the board legal services either.

Expertise in family law, delivered with a touch of northern realism, that’s what we do.