Legislation on same-sex marriage to be deferred?

In March 2012, a public consultation was launched by the Home Office setting out the government’s proposals for same sex couples and civil marriage.

The main proposals of the consultation were:

To enable same-sex couples to have a civil marriage (in a register office or approved premises, for example, a hotel).

• No changes to be made to religious marriages. This would continue to be only legally possible between a man and a woman.
• Civil partnerships to be retained for same sex couples though those couples already in a civil partnership to become able to convert this into a marriage.
• Civil partnership registrations on religious premises to continue as they currently are (i.e. on a voluntary basis for faith groups and with no religious content).
• Individuals will be able to legally change their gender without being required to end their marriage.

Under current law, marriage is only available to couples consisting of a man and a woman. If you are in a same sex relationship you are able to enter into a civil partnership and following the introduction of the Civil Partnerships Act 2004, civil partnerships have identical rights and responsibilities as marriage.

Whilst there was no mention of the above proposals in the Queen’s Speech on 9 May 2012 and there has been reported pressure from the Conservative backbench MPs, the Liberal Democrat Equalities Minister has stated that they are committed as a government to legislate on this by 2015.

Paul Lancaster
Partner, Family Mediator and Collaborative Lawyer
PLancaster@LawBlacks.com

“Clare’s Law” – Women win right to know violent past of their partner

The scheme Clare’s Law is to be piloted in 4 areas.

The scheme will allow a person to ascertain from the Police whether their partner has a history of domestic violence.

The proposed legislation follows the campaign launched by the father of Clare Wood who was murdered in February 2009 by George Appleton whom she met through Facebook. Unknown to her he had a record of domestic violence against previous partners.

However domestic violence group Refuge has criticised the scheme saying it will do little to protect victims as the majority of  abusers are not known to the police and that the Home Office should start by improving how the police respond to calls for help.

Ms Horley from Relate has stated that it is highly unlikely Clare Brown died because police did not inform her about her ex partner’s previous convictions and more likely that she died because the police did not respond to her emergency 999 call for help.

The scheme is based on the child sex offender disclosure scheme which is in place across all police forces in England & Wales and was the result of a long running campaign by Sara Payne whose daughter Sarah was murdered by a known paedophile.

Jane Ingleby
Family Solicitor
JIngleby@LawBlacks.com

Potential Reform Could Introduce Presumption of Shared Parenting

A legal duty may be placed on Courts to ensure that both parents are given access to children in divorce settlements under new plans being drawn up by the Government. These plans are said to be supported by Deputy Prime Minster, Nick Clegg and Welfare Secretary, Iain Duncan Smith.

The most common outcome in the family court under the present system is that children live with their mothers. The Office of National Statistics has found that one in three children live without their father.

The law could potentially be altered by inserting a presumption of shared parenting into the Children Act 1989. Alternatively, the Government could support a backbench bill which would require courts and councils to “operate under the presumption that the rights of a child include growing up knowing and having access to and contact with both parents involved.”

The proposed reforms have been viewed as a big step forward by campaigners active in promoting the role of fathers. However, the reforms could potentially face opposition from those in favour of the Family Justice Review findings which did not include these reforms claiming they would put too much pressure on judges, preferring instead to continue with the current system of cases being determined at the discretion of the judge.

Whilst only time will tell whether these specific reforms will come into practice, it has been made clear by the Government that they support the position of the Family Justice Review – “that the vast majority of children benefit from a continuing relationship with both parents after separation”.

Charlotte Capes
Solicitor
CCapes@LawBlacks.com 0113 2279205

New Child Maintenance Proposals Published

The government hopes that most separated couples will in future be able to agree child maintenance directly between them but there will always be cases when that is not possible. Proposals for the new statutory child maintenance scheme have therefore just been published which attempt to address failings with the current system.

The new scheme is intended as a fall-back option for parents who cannot agree and is intended to be quicker in terms of making assessments, fairer to parents and less costly to operate to the tax payer. It will also include measures which make assessments less reliant upon what non-resident parents disclose about their incomes as payments will be assessed on their latest tax year income, with that information provided directly by HMRC. It is hoped that this will speed up the assessment process and avoid delays associated with non-resident parents providing information about their income.

Unlike the previous scheme the level of maintenance payments will be reviewed every year to ensure that they remain fair and correct. Likewise parents who share the care of their children exactly equally will no longer be required to pay maintenance to the other. At the present time the parent not in receipt of the child benefits is still expected to pay something, albeit a significantly reduced amount.

Finally, there will be an on-line service which will enable parents using the scheme to see a detailed history of their case, to check the progress of their application and to make payments.

We feel that the new proposals will help address the inherent problems with the existing system but only time will tell if these measures will be regarded as a success. Many separated parents however have little faith in the existing scheme and will welcome the government’s efforts to improve the system.

Paul Lancaster
Partner
Family Law Department
Email: PLancaster@LawBlacks.com

Cohabiting Couples Continue to Wait for Reform

On 6 September the government announced that during this current parliamentary term it would not take forward the Law Commission’s recommendations for reform of the law that applies to cohabitants when they separate.

Many clients wrongly believe that if they have lived together for a certain period of time but have not married that they will still be able to make financial claims against their partner in the event of separation. This is simply not the case and contrary to the popular myth there is no such thing as a “common law marriage”

As the law stands at the moment couples who separate and are not married are limited to pursuing claims in respect of jointly owned property or claims on behalf of children. In limited circumstances claims can also be brought against a property held in the sole name of one party but this is involves making a claim under trust and equity law principles and is notoriously difficult and costly to establish. Unmarried couples have no rights to pursue claims for a share of their former partner’s savings, investments or pensions as would have been the case had they been married. Likewise whilst maintenance claims can be brought for children, there is no entitlement to any maintenance if there are no children or if the children have grown up.

There has been talk for many years about reforming this area of law to give people who live together but do not marry greater legal rights in the event of separation. After the recent Law Commission report which recommended reform it finally appears that a change was on the cards. However it would seem that the government have now kicked this in the long grass and no changes are now expected within the current parliamentary term.  There is still a need for reform but one must wonder after so many years of talking about change, will this actually ever happen?

Paul Lancaster
Partner
Family Law Department
Email: PLancaster@LawBlacks.com

Jones -v- Kernott – Further Uncertainty for Unmarried Couples who Separate

The long awaited decision of the Supreme Court in Jones v Kernott [2011] UKSC 53 has finally been released today.  This case illustrates the continuing uncertainly that continues to surround cases involving unmarried couples who separate.

If a married couple split up and they own a property jointly or in one party’s sole name the Court has a wide ranging discretion to determine what a fair outcome should be.  In doing so they can take into account factors such as the welfare of any children, the contributions each party has made to the marriage, the income and outgoings of the parties and so on.  However it is very different for parties who are not married as they then have to rely upon property and trust law principles where the Court does not have the same discretion.  Factors which would be highly relevant if the parties were married simply carry no weight.

With unmarried couples when they buy a house the most important aspect of the case has always been to see how the parties purchased the property.  If one party is putting in more money than the other and they don’t want to own the house equally then they really need to have a Declaration of Trust drawn up to safeguard their position.  In the absence of that the inference is that parties intended equal ownership and that remains the same even if one party had contributed more money or they split up.

If an unmarried couple separate with one of them staying in the house and making all mortgage payments then they can be given credit in any later division of the property by such amount as they have reduced the mortgage balance by.  The same principle applies to post-separation home improvements, such as building an extension or new conservatory.  This is what is commonly known as “equitable accounting.”

What the Court has decided in Kernott –v- Jones goes beyond “equitable accounting.”  In this case the parties separated in 1993 when Mr Kernott moved out and effectively stopped contributing towards the property.  The Court inferred that although the property was initially purchased in equal shares, in the subsequent 14 years that followed separation the parties’ common intention had changed from equal ownership.  The Court decided that Mr Kernott was then only entitled to 10%.

The implications of this decision are likely to lead to more cases in which an argument will be run that the intention of the parties may well have been 50/50 at the time of purchase but for some reason the intention changed at a later date with the court being asked to infer that as they did in this case.  We think that this will, however, always been difficult to prove and this is why we would always recommend that if there is any intention to own a property in unequal shares the parties should take specialist legal advice and have a Declaration of Trust drawn up clearly showing the proportions in which they intend to own the property.

Paul Lancaster
Partner, Family Mediator and Collaborative Lawyer
Blacks Solicitors LLP

PLancaster@LawBlacks.com

Record Number of Children Benefiting from CSA

Despite receiving severe and repeated criticism in the past it has recently been reported that the CSA have collected or arranged a total of £1,159.6 million from June 2010 to June 2011.

The Courts have imposed  suspended prison sentences on more than 1,000 parents who refused to pay child maintenance during 2010 to 2011.  A further 165 parents received suspended driving bans.

More than £2.0 million has been forcibly deducted from bank accounts of non paying parents.

950 parents have been told that they are at risk of losing their homes if they do not pay child maintenance.

As a result of the above a record of 868,700 children are now benefiting from CSA payments.

However, the government is about to completely overhaul the child maintenance system.  Under the new system parents will be given the option of whether to make their own family based arrangements or to use the new child maintenance service for which there will be a charge.

In cases where people have suffered domestic violence their case will be fast tracked directly onto the statutory service and no payment will be required to enter the system.

This represents the biggest overhaul of the system since it was first set up in 1993.

There is concern that the government’s new plans will make it hard for many to get child maintenance.  This is in spite of the Prime Minister himself having recognised the need to support single parents dealing with “runaway” ex-partners.

Jane Ingleby
Solicitor – Family Department
email: JIngleby@LawBlacks.com

Game Over?

The recent rise in the popularity of video games has had a somewhat surprising impact upon marriages.

‘Divorce Online’ recently conducted a survey of 200 cases in which women had cited unreasonable behaviour as the reason for the breakdown of their marriage.  Out of those cases, a staggering 15% stated that their husband spent an excessive amount of time playing video games.

One female Petitioner claimed that her husband was spending up to 8 hours a day playing on games such as ‘World of Warcraft’ and ‘Call of Duty’.  It would seem that the increasing amount of time being spent on games consoles is now being included more frequently as an example of unreasonable behaviour in divorce.  However, it is likely that further evidence will be required by the Court to prove that one party finds it intolerable to live with the other.  Nevertheless, to be on the safe side, it may be an idea to get rid of that console gentleman, or the wife may get rid of you!

Charlotte Capes
Trainee Solicitor
Family Department

Legal Aid Cuts

The Legal Aid, Sentencing and Punishment of Offenders Bill was published by the Ministry of Justice last week.  There are serious concerns that cuts to Legal Aid will leave many vulnerable people without the benefit of legal advice and representation. Legal Aid will no longer be routinely available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits.  The government have said that public funds will only remain for cases where people’s life or liberty is at stake, where they are at risk of serious physical harm or where children might be taken into care.

In respect of my own area of Family Law, there is a caveat that Legal Aid will still be available when there is domestic violence involved.  Cases involving children with special educational needs is also to remain in the scope of the Legal Aid scheme.  We are however concerned that these restrictions will limit access to justice for many individuals who may now be unable to obtain Legal Aid but also unable to afford to pay for advice privately.  This could also have the effect of making cases more difficult and take longer to resolve.  In our experience when one party does not have the benefit of legal advice then it often makes it more rather than less difficult to resolve matters before having to go to Court as they do not have the benefit of a Solicitor giving them sensible and pragmatic advice on what a Judge might decide in the event of contested proceedings.  This often leads people to taking unrealistic positions and reduces the chance of reaching a negotiated settlement.

Paul Lancaster
Partner
Blacks Solicitors LLP

Facebook Increasingly Relevant in Family Law Cases

Love it or hate it Facebook is now clearly a part of everyday life for a vast proportion of us.  Recent statistics show that one in thirteen people on earth hold a Facebook account with over 50% of those logging in every day.  It is perhaps unsurprising therefore that industry insiders claim that one in five divorce petitions now contain a reference to Facebook.  This statistic has been reflected in our work here in the Family department as we have seen a steady increase in references to Facebook in all areas of our Family work.

Perhaps the most common reference to Facebook appears following the breakdown of a relationship and when considering the relevant ‘fact’ upon which to draft the divorce petition.  The ill thought out “congratulations” posted on the ex-spouse’s Facebook ‘wall’ by friends and family upon the ex-spouse moving in with their new partner can help establish reliance on the fact of adultery.  The same is true of the even more ill considered change of relationship status from ‘single’ to ‘in a relationship’.  Unpleasant ‘posts’ about the ex-spouse can also be cited in order to bolster an unreasonable behaviour petition, as can the cruel public airing on Facebook of what went wrong.      

References are also made to Facebook in resolving financial issues.  An increasing number of separating spouses now bring us Facebook ‘evidence’ (in the form of sunny holiday snaps) of the number of exotic holidays taken by the ex who has been pleading poverty.  The Facebook wall also catches many out with family members posting congratulations about a new job or even a win on the horses!  Whilst this ‘evidence’ is not conclusive in itself, it provides us with a good starting point for further investigation.

Facebook is also increasingly referred to in Children Act cases, particularly by separated parents who are concerned about the nature of their children’s photographs which have been publicly posted, or even complaining that their child has a Facebook account of his or her own before the age of thirteen (the age restriction set by Facebook itself).  On the plus side Facebook can be a great source of communicating and maintaining regular indirect contact between a separated parent and their teenage child, particularly when the child has been moved overseas or even when they are on a long overseas holiday with the other parent.

Whether we like or it or not Facebook is here to stay and Facebook members should appreciate that anything posted by them or their ‘friends’ is accessible to others and may be used in a different context to that originally intended.

Victoria Lungu
Solicitor
Family Law Department