Author: Merrick Solicitors

Mr Owens’ barrister: It takes two to make a marriage

Posted on October 25, 2018 by Merrick Solicitors - DIVORCE, RELATIONSHIPS

The barrister who successfully defended the year’s most high-profile divorce petition told Merrick Solicitors it took both spouses’ participation to make a marriage.

Nigel Dyer QC represented Hugh Owens in the Supreme Court when the UK’s highest court dismissed his wife Tini’s appeal against the lower courts’ refusal to grant her a decree nisi.

The landmark ruling prompted widespread publicity and renewed calls from family law solicitors for the introduction of ‘no fault’ divorce.

Mrs Owens’ petition relied upon her allegations about her husband’s behaviour to prove that she could not reasonably be expected to live with him and that the marriage had irretrievably broken down. But the Supreme Court agreed with both the original trial judge and the Court of Appeal in deciding that she had not sufficiently proved her case.

The Government subsequently opened a consultation on divorce law inviting submissions by December 10.

Mr Dyer, of London’s 1 Hare Court Chambers, said: “I think it’s difficult to see how a marriage can continue when one spouse refuses to participate in it.

“It’s got to be a consortium, and absent one party playing a role I don’t think that is a marriage.

Divorce reform necessary

“I do think divorce reform is necessary. The statute is outdated in contemporary society. It has its foundations in the matrimonial offences of the 19^th century.”

Asked for his view of the outcome in the Supreme Court judgment, he said: “The Supreme Court has made it clear that the current law has been misinterpreted for many years by practitioners and judges using the expression ‘unreasonable behaviour” when referring to a petition relying on section 1(2)b (behaviour) and looking to attribute blame.

“But as the Supreme Court explained section 1(2)(b) is conduct based rather than fault based, and the behaviour complained about does not have to have caused the breakdown of the marriage.

“I think there has been a lot of misconception in the interpretation and application of the law.

“For example, a government website giving the public advice about issuing a petition provided a commentary on section 1(2)b. This stated that in order to succeed on the fact of unreasonable behaviour you have to prove quite serious fault and gave the example of domestic violence.

Linguistic trap

“The point made in the Supreme Court is that in using the expression ‘unreasonable behaviour’, lawyers and judges fell into a ‘linguistic trap’. They saw the behaviour in terms of having to prove fault when this was not necessary.

“I think that over time this misconception became commonplace. Because there are very few contested divorces the lawyers didn’t have to think about what section 1(2)b actually meant when they filled in a divorce petition. No contested divorce case went to the House of Lords and it took the Supreme Court to provide judicial guidance.”

Contested divorce cases are rare. In the Court of Appeal the President of the Family Division said that of the 114,000 divorce petitions in 2016, only 800 answers were filed. He estimated around 0.015% – less than 17 – went to a final, contested hearing.

Mr Dyer has acted in just five such contested hearings in 35 years at the Bar.

He said: “Although the case of Owens caught the nation’s attention, in reality it is relevant to only a very small minority of cases.

“It was a big noise about a very small area of family law.”

The second part of this interview with Nigel Dyer QC covering the Government’s divorce law consultation will be published shortly.

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Manchester and proud for 30 years

Posted on October 4, 2018 by Merrick Solicitors - FINANCES

Are you proud of where you work? I know I am.

It’s not often we think about that but last week Merrick was fortunate enough to be nominated in the family law category of this year’s Talk of Manchester awards #TOMs.

And this week marks the 30^th anniversary of my working life in Manchester. It was 3 October 1988 when as a rookie lawyer I joined the firm of Grover Smith & Moss to complete my articles.

It seems like a lifetime ago, but also like it was only yesterday.

The Manchester of those earlier years was undoubtedly a northern city with some clout.

Together we have since gratefully survived the three bomb attacks (at my desk for the first two) and Madchester. We have commiserated the failed Olympic bid and celebrated the Commonwealth Games. And always United during the downs as well as the ups!

Upwards and outwards

Today the city has become an economic juggernaut that continually spreads upwards and outwards. A fact that is clearly reflected in this year’s 30+ categories and 250+ #TOMs nominations.

Some of the sector industries included weren’t around three decades ago, never mind the individual companies that are shortlisted.

Given the challenges currently faced by lots of businesses I am particularly struck by the ‘entrepreneurs’ sections. Firstly, because it’s such a burgeoning collection. A quick Google search throws up profiles of people doing great in advertising, fashion, technology, travel and many other areas.

Secondly, the award for Female Entrepreneur of the Year. We all know girls are the equal of boys, right, but sometimes we have to work harder and shout that bit louder to get ourselves noticed.

Perhaps no surprise then that Manchester is a city brimming with excellent female businesswomen; the legal sector particularly enjoying more than its fair share. But even so it’s always nice when those achievements are recognised.

So as someone proud to call Manchester home and who has a long working relationship with the city, I’d like to say, you’re simply the best!

And to those women whose business acumen has been recognised in the #TOMs this year it’s a helluva big bravo from me. There’s more of you around than 30 years ago and I’ll definitely be raising a glass to that on awards night in December!

Amanda J Merrick
Principal

Divorce law consultation needs real families

Posted on September 18, 2018 by Merrick Solicitors - DIVORCE

A consultation is now under way on proposals to change Britain’s outdated divorce law.

The government wants to end the ‘blame game’ for separating couples and reduce unnecessary conflict in the divorce process.

At present, divorcing couples are forced into blaming each other for the marriage breakdown. They must cite unreasonable behaviour, adultery or desertion on the part of their spouse, unless they have been separated for a minimum of two years. If the divorce is opposed, then couples currently must wait five years before a divorce is granted.

Critics say the need for one party to be blamed for the breakdown of the relationship creates additional tensions, at an already stressful time for couples and any children affected.

Demands for change have increased since the Supreme Court ruled in July that Mrs Tini Owens should be prevented from divorcing her husband, until five years had elapsed. This was despite living apart from Hugh Owens since 2015.

No fault divorce

The most eye-catching aspect of the new proposals is the introduction of a new notification process which would remove the opportunity for the other spouse to contest divorce. This is the reason the change is referred to as ‘no fault divorce’.

Other proposals in the consultation include:

Retaining the irretrievable breakdown of a marriage as the sole ground for divorce.
Removing the need to show evidence of the other spouse’s conduct, or a period of living apart.
Introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce.
Testing a six-month minimum timeframe between the two stages of divorce. This would give couples the stability to plan as well as to consider the implications of the decision.

Introducing the consultation, Justice Secretary David Gauke said: “When a marriage has irretrievably broken down, the law should not frustrate achieving better outcomes, especially for children.

“That is why we are consulting on the detail of our reform proposal, so that a revised legal process can help people find greater stability to consider the implications of the decision to divorce and help them to reach agreement about arrangements for the future.

“Last year, nearly 110,000 couples divorced, all of them constrained by a requirement in place for nearly half a century. The damaging effects of this requirement are not always apparent to people who have not themselves been affected by divorce.”

Merrick view

Merrick principal Amanda Merrick said: “It has long been argued that our divorce laws are no longer fit for purpose and overdue for reform. What people have now is an opportunity to put forward views on how we move to something better.

“In particular, I really hope that those who have been through the process make their views known. Having been divorced with the law as it currently stands, they are uniquely placed to give testament to what works and what needs to change.”

Have your say in the consultation

Divorce facts

Only about 2% of respondents contest the petitioner’s decision to seek a divorce. Of these, only a handful go on to defend the divorce at a court hearing.

At present, six weeks and a day must elapse before a decree nisi can be made absolute. In practice divorces take much longer to go through.

In 2017, behaviour accounted for nearly half of all petitions (46.8%, or 47.3% when combined with adultery).

Last year almost 110,000 people petitioned for divorce in England and Wales.

The consultation closes on 10 December 2018.

We’ve written about no fault divorce previously.

Enterprising women urged to catch up the Davids

Posted on September 17, 2018 by Merrick Solicitors - WORK

That was a stark fact from 2018 research into the way in which corporate Britain is still dominated by men.

According to the research reported on in March and conducted by Involve, a group that champions diversity and inclusion in business, there were five ethnic minority and seven female chief executives of FTSE 100 companies. There were nine Davids and four Steves.

And this time last year, the newly-elected mayor of Liverpool, Steve Rotheram, was being taken to task publicly for having an all-male regional cabinet ruling on the city region’s biggest decisions.

Both these events serve to highlight the disparity between the sexes at the top of many of our most important institutions and businesses.

Having successful role models to learn from is crucial if women are to aspire to positions of leadership.

Here in the North West we are fortunate to have very strong models. And some of them are headline names at an upcoming conference on the subject.

The Institute of Directors’ Enterprising Women conference celebrates the best in female business leadership and talent across the region. It marks its eighth year when it opens at Stockport Plaza on October 11.

IoD Enterprising Women 2018: inspiring women

This year’s conference theme is ‘Inspiring Leaders’ and delegates will hear from influential and inspirational experts from across the UK. It aims to help enhance leadership skills, further build business acumen and strengthen personal impact.

The IoD’s North West director Claire Ebrey says it’s needed as much now as when it was first set up.

She said: “This is a tricky time with Brexit, devolved government, the Northern Powerhouse and road and rail infrastructure issues. We also have problems with low productivity, skills shortage and a brain drain away from the region.

“We need the best leaders to be coming through. It’s true that the majority of our leaders are still middle-aged, white, middle class, heterosexual, men.

“Many of the most successful companies benefit from having diverse boards. They not only have a mix of the sexes but of ethnicity and backgrounds.

“It is a call not just to women to step up and be brave. It is also a call to men to go for it in terms of actively helping women and people from diverse backgrounds to get into those leadership positions.”

Among this year’s big-name speakers are:
Rebecca Long-Bailey MP, Shadow Business Secretary and MP – Salford and Eccles
Jess Moore, Executive Director, Corporate Responsibility – Warner Bros
Tom Bloxham MBE, Chairman – Urban Splash Group Ltd
Kate Willard, Head of Corporate Projects – Stobart Group
Vanda Murray, Manchester Airport Group

Merrick Life readers can book tickets for the conference at a specially discounted price of £75+VAT (normal price £90+VAT)
by emailing info@merrick-solicitors.com

Mills gives some clarity on spousal maintenance

Posted on August 20, 2018 by Merrick Solicitors - DIVORCE

Does the recent Supreme Court ruling in Mills v Mills mark the end of the ‘meal ticket for life’?

The QC who successfully persuaded law lords to overturn a previous Court of Appeal decision believes that it has clarified only one aspect of variation of maintenance orders.

Philip Cayford told Merrick Solicitors it would take more cases testing maintenance arrangements for there to be a real end to the so-called meal ticket for life. Currently neither the Supreme Court nor Parliament appear to be in the mood to take a proactive stance on modernisation.

In July, the court unanimously allowed the appeal of Mr Mills. It said the judge at the first court hearing had been entitled to decline to vary an order for the ex-wife’s spousal maintenance. The variation would have required him to pay all her rental costs.

Court of Appeal analysis rejected

The Court of Appeal had backed the ex-wife’s request to increase periodical payments for this purpose.

Mrs Mills received a lump sum of £230,000 in settlement of her capital claims, plus annual spousal maintenance of £13,200 when the couple divorced in 2002, after a 15-year marriage.

After a series of unwise property purchases, the ex-wife was forced to move into rental accommodation and had debts of more than £40,000. She also had a £4,000 shortfall per year between her outgoings and the spousal maintenance paid by her ex-husband.

The Supreme Court rejected the Court of Appeal’s case analysis. It ruled the original judge had given a clear reason for refusing the ex-wife’s claim, namely her unwise financial decisions. And that it was consequently unfair to expect the husband to meet these increased needs.

Many in the legal profession have welcomed clarity that a spouse should not be responsible for a former partner’s future housing needs where a capital settlement intended to meet those needs has been mismanaged.

Puts down a marker

Mr Cayford QC, head of chambers at London’s 29 Bedford Row, said: “I think it puts down a marker regarding financial conduct. If the payee gets into trouble – not that they’ve been profligate or wanton – they cannot argue that’s it’s not their fault. You have to take the slings and arrows of outrageous fortune.

“It clears up one issue and it helps Graham Mills. But after that we’re not much clearer on variation applications.”

Mr Mills was given limited grounds to appeal the Court of Appeal decision. At the Supreme Court hearing Mr Cayford was reminded of the need to limit his argument to that one point.

He said: “I do think there were aspects that could have been dealt with. But the Supreme Court determined not to engage in debate, not in a proactive way. Our appeal was a success because the Court of Appeal was plainly wrong and should have considered previous cases (Pearce, North and Yates).

“To see real reform in this area we have to ask, is Parliament in the mood to make a bold announcement?

People want fairness

“99% of online comments in forums backed Graham Mills. Fairness is what people really want in this area.

“They plainly feel it is a nonsense that a spouse should be required to pay not once, but twice, when the ex-partner can be self-sufficient. It is ridiculous to carry on in this way.”

Mr Cayford said in the absence of any intervention by Parliament, it would take more cases to further test and define what society wants from its laws in this area.

On Mills, Mr Cayford said in theory his client was now entitled to go back to the first court for a variation if he had new evidence to present.

Legal commentary since the ruling has said the Mills case has been helpful and fits with a general trend towards limiting indefinite maintenance arrangements.

Clean break preferred result

Amanda Merrick, principal at Merrick Solicitors, said there is a statutory obligation on the court to consider if a clean break can be achieved in every case and that is the preferred result.

Spousal maintenance is payable where there is a need to be met and insufficient capital assets to facilitate financial independence.

On whatever basis an order for spousal maintenance is made, the amount being paid can always be varied. This is either by agreement or following an application to the court. This can result in payments being increased or reduced. In that way spousal maintenance payments can reflect the changing financial fortunes of both the payer and the recipient.

Miss Merrick said: “The issue was Mrs Mills had already received a capital sum to meet her housing needs. Should a subsequent change in her circumstances make Mr Mills responsible via his ongoing maintenance obligations. Ie. should he have to pay her rent?

“The Supreme Court said not. But would their decision have been the same had there been dependent children of the family? The court’s first consideration in any financial remedy application is the welfare of any child under the age of 18. It is hard to imagine duplication trumping that.”

Link to judgment https://www.supremecourt.uk/cases/docs/uksc-2017-0040-judgment.pdf

Divorce law reforms must be for the better

Posted on July 26, 2018 by Merrick Solicitors - DIVORCE, RELATIONSHIPS

Supreme Court’s decision to deny Tini Owens a divorce has understandably hit a nerve with many.

Five judges of the UK’s highest court this week upheld rulings by the Family Court and the Court of Appeal that she must stay married despite her complaint that the marriage is loveless and has broken down.

Divorce law reform

The case has provoked widespread comment about the need for divorce law reform and a move to ‘no fault divorce’. Many in the legal profession have described it as a missed opportunity.

The Supreme Court, however, was never likely to grant the divorce. As its president Baroness Hale had said previously, the court is there to interpret and apply laws made by Parliament, not to change those laws.

Nevertheless, Lady Hale said she found the Owens divorce case “very troubling”.

She said “expectations” of whether it was “reasonable to expect one spouse to continue to live with the other, in the light of the way the latter has behaved” had changed over the past half century.

“The social norm which has changed most obviously is the recognition that marriage is a partnership of equal,” she said.

Question for Parliament

In delivering the judgement, Lord Wilson, said the justices had ruled against Mrs Owens “with reluctance”.

He said the “question for Parliament” was whether the law governing entitlement to divorce remained “satisfactory”.

So there we have the ball once again passed squarely back to the law makers.

Will they now find the resolve and time to re-evaluate laws that have stood for half a century?

What must be ensured amid the clamour of this particular case is that any changes improve the system and are not simply a knee jerk reaction.

No one could argue that what we have now is perfect.

And some have already said that what we may see next are instances where divorcing parties feel they must embellish grounds for divorce to ensure that applications proceed without issues as in the Owens’ case. That would not be good for anyone.

Under current law there is only one legal ground for divorce, 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).

Hence, Mrs Owens will have her divorce five years post-separation in 2020. In the meantime changes in society rightly mean there is no stigma associated with her separated status.

So how would replacing this with a ‘no fault’ option improve Mrs Owens’ lot? Surely Mr Owens should still have a say…it’s his marriage too.

And what of the cathartic experience of laying blame; such an acknowledgement can be a powerful part of the healing process for some.

Can ‘one size fits all’ work?

Is society at a point where it is appropriate for one party to turn their back on a marriage because they have decided it’s no longer for them. Are we ready to dispense with the notion of ‘for better or worse’; the principle of commitment?

None of this is intended to minimise the angst felt by Mrs Owens, or anyone else who sadly finds themselves in a similar situation. But given that no two relationships are the same can a “one size fits all” approach to divorce, really work?

The complex nature of relationships means that every couple’s breakdown brings with it its own challenges.

In asking Parliament to move us away from something imperfect and ripe for reform this should not be forgotten.

We’ve previously written about no fault divorce here.

Ruling on civil partnerships welcomed

Posted on June 27, 2018 by Merrick Solicitors - FINANCES

The millions of people in a co-habiting relationship should have an alternative to marriage to protect their rights.

So we welcome today’s Supreme Court ruling that a heterosexual couple were discriminated against by not being allowed a civil partnership.

The UK’s highest court unanimously allowed an appeal by Rebecca Steinfeld, 37, and Charles Keidan, 41.

They were prevented from having a civil partnership because the Civil Partnership Act 2004 says only same-sex couples are eligible.

The judges granted a declaration that the 2004 Act was “incompatible” with human rights laws on discrimination and the right to a private and family life.

Merrick principal Amanda Merrick said: “It’s only right that this option is opened up to all couples.

“There are more than three million co-habiting couple families in the UK and it will be very interesting to see what happens next.

Government action needed

“The court was scathing on the Government’s failure to address the issue and we can only hope now for the required action.

“Undoubtedly within the millions of co-habitees there will be many others who, for whatever reason, do not wish to get married but would like their relationship legally recognised.”

She said there is a lack of legal protection for co-habitees and many myths surrounding their ‘rights’.

She added: “A high proportion of the population believe that if you cohabit with another person for long enough you will become their ‘common law’ spouse, with the same rights as if you were married. This is simply not true.

“There is no such thing as a common law marriage. No length of cohabitation will make you your partner’s ‘spouse’.

“Similarly, many co-habitees live in a property owned by their partner. They do not acquire any interest in the property simply by living there.

“When a marriage or civil partnership is dissolved, they would have an automatic right to seek a share of the other party’s property. Additionally, on death there would be inheritance rights.

“No such rights exist for co-habitees. As a result, it is quite possible on the death of the property owner or when cohabitation breaks down for the non-owning party to be left homeless.

“It’s only right and fair that the Government now takes note of the Supreme Court’s judgement and acts to level the legal playing field as soon as possible.”

Tolerance of discrimination on civil partnership

In today’s judgement, Lord Kerr said the Government did not seek to justify the difference in treatment between same sex and different sex couples.

He added: “To the contrary, it accepts that the difference cannot be justified.”

What the Government sought was “tolerance of the discrimination while it sorts out how to deal with it”.

He concluded: “That cannot be characterised as a legitimate aim.”

Lord Kerr said it was “salutary to recall that a declaration of incompatibility does not oblige the Government or Parliament to do anything”.

Rebecca Steinfeld and Charles Keidan, who have two daughters aged nine months and two, had claimed the Government’s position was “incompatible with equality law”.

The court was told they had a deep-rooted ideological objection to what they saw as the historical patriarchy of marriage.

Previously the Court of Appeal had agreed the couple had established a potential violation of Article 14 of the European Convention on Human Rights, which relates to discrimination, taken with Article 8, which refers to respect for private and family life.

But, by a majority of two to one, the judges said the interference was justified by the Government’s policy of “wait and evaluate”.

Some 16 months later the Supreme Court decided the Government’s time is up.

Posted on June 21, 2018 by Merrick Solicitors - Merrick News

We’re delighted to reveal that Merrick has won an award for its client services.

The practice has been named Divorce Law Firm of the Year in England in the Global Law Expert (GLE) Awards 2018.

Shortlisted candidates were judged on client testimonials, key cases, legal rankings, overall reputation, publication contributions, speaking engagements and the general performance and standing of teams and individuals.

GLE said it conducted an extensive nomination and research process for its 9th annual awards

Year of development

The recognition tops a busy year of development for Merrick which has launched a series of initiatives to transform the business.

To counter the erosion of legal aid available in divorce cases we’ve started #AccessUs.

This is a unique case-managed service supervised by our experienced team. It delivers advice where there is a case to answer and limited resources to meet it.

Our monthly Merrick Life newsletter gives practical support and advice for those going through relationship breakdown.

And we now take our services on the road to Cumbria and London. Our #LawtoDoor service means we can meet clients wherever is most convenient for them.

Principal Amanda Merrick said: “We know that relationship breakdown is tough. We want our clients to understand that we’re with them throughout the whole process.

“From the feedback we get we know that is very much appreciated. To have that approach recognised by a formal award is the cherry on the cake.”

Legal recommendations

A GLE spokesman said: “During the recommendations stage we received more than 180,000 responses. These were from business directors, in-house legal counsel, independent law firms, business consultants, high net-worth individuals, bar association members, visitors to the GLE website and LinkedIn users.

“These recommendations were combined with GLE’s own independent research in order to create a shortlist for each award category.”

Don’t struggle alone with financial information

Posted on June 20, 2018 by Merrick Solicitors - FINANCES

Alison Porter, Managing Director of PennyWise Consultants, with some sage advice on how to get to grips with household finances in divorce.

Financial stresses in divorce

Some of the most stressful situations we encounter in life are marriage, moving home, divorce and death.

During a divorce it is likely you will encounter two of these at once – divorce and moving home.

Divorce in isolation can be stressful, frightening, lonely, painful and heart-breaking enough, never mind having to move house as well. It is not something you want to do alone.

Some years ago, I managed a removal company. We provided a bespoke service and alleviated stress through providing an efficient, reliable and professional service. Now, at PennyWise Consultants, we apply the same principles in helping our clients navigate the expenditure and income needs sections of their Form Es.

Filling in a Form E

For those who haven’t come across a Form E, it is the document which both spouses are required to complete if either applies to court about financial matters. It is a detailed document used to set out information about your financial position.

It is also frequently used by solicitors as the means of providing financial information when there are no court proceedings, as it ensures that both people give the same level of detail about their position.

PennyWise Consultants provide clients with an analysis and/or budget for their Form E.

With our considerable experience in this sector, we achieve outstanding results that consistently help secure our clients’ future financial security. Historically our budgets have been adopted by judges because they are clear, detailed, factual and impartial.

There are many aspects to consider when preparing for the financial element of divorce proceedings and it is important to be informed and in control of one’s finances. Once you feel in control, you will also feel empowered and less panic-stricken, certain in the knowledge that you have completed your Form E to properly reflect your needs.

10 things to consider when approaching financial proceedings/settlement

Gain access to and put in order all bank and credit card statements issued to you, or on your behalf, in the past 12 months.
Also, start annotating your bank and credit card statements. You think you will remember what you bought in a given department store, but when it comes to analysing a year’s worth of expenditure you won’t. Whatever the money was spent on it will need to be allocated to a category in your Form E.
If this is not possible and you do not have access to any financial statements, start making a detailed list of your weekly expenditure. It doesn’t matter how insignificant the purchase might seem. For example, a medium Costa Coffee latte a day, five days a week, 48 weeks of the year equals £588!
Cash withdrawals need to be allocated to categories in your Form E. Keep a note of what you spend your cash on. Every penny.
Make a list of the utility companies providing services to your home, e.g. gas, electricity, telephone, broadband etc. If possible, make copies of a year’s statements.
If you pay your spouse’s or partner’s credit card bill, keep track of the amounts.
When you have joint bank and/or credit card accounts with your spouse/partner start annotating their expenditure. It will make it quicker and easier to separate out later.
If you are feeling dejected and depressed don’t stop your usual spending; it will affect your Form E expenditure analysis.
Equally, do not start inflating your expenditure. You will be found out!
If you are separated and the only adult over 18 in your household, contact your local council tax office and request a 25% discount. Some councils will backdate this to the date of separation. Refunds are always welcome!

There is no need to go through the divorce finances process alone

Our service is suitable for you if:

Your partner has submitted an inflated budget.
You think the budget you have created is insufficient and will not provide you with proper financial security.
Your partner is denying you access to financial statements.
You wish to secure adequate interim maintenance.
You believe you should be reimbursed for money your partner spent inappropriately.

If you would like some help, please call our friendly team on 01531 640988 or email us at info@pennywiseconsultants.co.uk