Family Blog

 With the increase in ‘non traditional family arrangements’ the question arises as to what is the role to be played by a ‘sperm donor’ or a surrogate mother.

Arrangements for sperm donors and surrogates are on the increase and a number of cases are now being seen in the family courts.

 Questions arise as to what is the donors role in the child’s upbringing, is this a matter of a meaningful relationship or purely a sense of identity?, should the donor share parental responsibility or should that be shared by the parents in a relationship to whom the donor is assisting in order to preserve the ‘nuclear family’. Is the donor’s role secondary to this? Should contact be dealt with in the same way as an absent parent?

Whilst not necessarily binding on the Court consideration should be given to co-parenting agreements which ideally should be considered prior to conception and may help to narrow any future issues and ultimately assist in the avoidance of litigation at a later date.

There can be an important and significant role for the third parent and parties getting involved in such arrangements should be clear on their intentions and expectations of such arrangements and consider the various different eventualities that may arise before making a final decision.

It is also important to consider the non biological parent and the role they should play if the relationship were to breakdown as well as the role to be played for siblings and the wider maternal and paternal families as well as the family of the non biological parent?

Who will be the primary carer? Who will be the decision maker? How often will contact take place and at what level of frequency and duration?

What should always be remembered is that it is what is in the childs best interests that is the paramount consideration and anyone entering into these arrangements needs to be clear on what everyone’s intentions are in order to eliminate any issues in the future.

If you are considering being a donor or surrogate or are looking to start a family in this way and wish to obtain some family advice please do not hesitate to contact me by telephone on 01623 688432 or by email, npotter@fidler.co.uk.

Natalie

 I have now become a Member of Women’s Aid.  As an adviser to women who are victims of domestic violence, I felt that it was important that I was aware of the aims and objectives of the Organisation.

ACT is the Award Winning Campaign of Women’s Aid which was launched in 2007.

The aim of the Campaign is to “ACT until women and children are safe”.

Admit its a problem – victims often feel too scared or ashamed to tell anyone, or feel that no-one can help.

Call it by its name – domestic violence – It is not just physical but can also be emotional, sexual or financial.

Talk to someone – If you think you are experiencing domestic violence, seek help.

If you should wish to talk to someone in confidence and obtain advice and support then please do not hesitate to contact me on 01623 451111 or by e-mail mfowler@fidler.co.uk.  I am here to help.

If you are in immediate danger and seek refuge accommodation, I would suggest that you contact Women’s Aid on 0808 2000 247 which is a Freephone 24 Hour National Domestic Violence Helpline.

Michelle Fowler

I have previously talked about what constitutes Domestic Violence and Abuse.

As part of my job as a legal advisor, it is extremely vital to obtain full information from a client before being able to provide the appropriate advice.  Many women that I speak to often tell me that they were not aware about their partner’s background for example, criminal convictions. 

There is proposed legislation, termed Clare’s Law by the press, which follows the campaign launched by the father of Clare Wood who was murdered in February 2009 by George Appleton whom she met through Facebook.  It transpired that, unknown to her, he had a record of domestic violence against previous partners.

The Home Secretary, Theresa May said in October 2011:

“This Scheme would be based on recognised and consistent processes that could enable new partners of previously violent suspects to know more about their partner’s history of abuse.  They could then make informed choices about how and whether they take that relationship forward”.

The Police already have common-law powers to disclose information relating to previous convictions or charges to the public where there is a “pressing need for disclosure” to prevent crime.

Research shows that in Nottingham last year more than 23,900 incidents of domestic violence were reported to Police.  Between April 2011 and January 2012, there were 372 serious cases.  Of these 361 were women.  The Man Enough Campaign aims to get 10,000 people in Notts to sign the White Ribbon Pledge to not commit, condone or remain silent about domestic violence.  The Campaign aims for Nottingham to become the first city to take civil action against abusive partners without involving victims.  It would see the City Council taking out Injunctions without asking victims to be involved or pay legal costs.

The Campaign is run with Women’s Aid Integrated Services, Nottingham Crime and Drugs Partnership, Nottingham City Homes, Nottingham Forest, Notts Domestic Violence Forum, the Safer Notts Board and local Councils.

 If you are experiencing domestic violence and require legal advice then please do not hesitate to contact me in the Family Department on 01623 451111 or by e-mail mfowler@fidler.co.uk.

Michelle

 I often get asked what constitutes Domestic Violence and Abuse.

The Government defines Domestic Violence as “any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality”.

Did you know that Domestic Violence can include but is not limited to: physical abuse (pushing, slapping, or intimidation);  sexual abuse (including female genital mutilation); psychological abuse (harassment, pestering,  shouting) and controlling behaviour (financial control and social isolation); forced marriage and causing a child to witness abuse?  This may be a series of acts forming a pattern of behaviour or a single act.

If you are suffering from domestic violence and abuse, there is help and support you can access.

The Domestic Violence, Crime and Victims Act 2004 makes the offence of common assault an arrestable one and so the Police can deal with an abuser more easily than in the past.  If a person is charged with an offence, bail conditions may be imposed that prevent the offender from contacting or visiting you.

If, however, the Police are not able to take action against the offender, you may wish to make an Application for a Non-Molestation Order. 

A Non-Molestation Order will contain a provision prohibiting the Respondent from using or threatening violence against you, harassing, pestering and intimidating you and, if necessary, protect any relevant child[ren].

An Occupation Order will stipulate who should reside in the family home and the Court may impose additional Orders for example, obligations to pay rent/mortgage or other outgoings etc.

If you require additional practical advice on: housing; welfare benefits; help from the police or social services; debt and financial problems; immigration status and support servies, e.g. local refuges then please see details on the Domestic Violence and Abuse Card.

If you are a victim of domestic violence and abuse and require assistance, please contact our dedicated Family Team on 01623 451111 or family@fidler.co.uk   We are here to help you through a difficult time.

Michelle

There is confusion in the divorce courts over the division of matrimonial assets in England and Wales with the news that the High Court has refused to award a man a half-share of his ex-wife’s lottery prize but elsewhere the Court of Appeal has included a husband’s inherited wealth in a payout to an ex wife.

The two decisions have added to the confusion of English case law on the distinction between matrimonial and non-matrimonial assets and experts are saying that the family courts are so unpredictable in such matters, that it’s difficult to plan ahead.

And the message seems to be that the introduction of outside money, whatever its source, is made at your peril. 

In the case of S v AG, a porter claimed half of his wife’s £500,000 lottery win when the marriage broke down.  The wife had bought the lottery ticket with a friend, paid for it out of her own money and without telling her husband. When the two friends won a £1m prize, it was kept secret from the husband, but the wife bought a house in her sole name for £275,000 which became the family home for the next four years until her husband, who was a violent alcoholic, was removed from the house by the police.

When the case went to court, the judge held that the lottery winnings were not matrimonial property because the husband did not participate in any way in the lottery. However, previous judgments which had set down that the matrimonial home was always a matrimonial asset, no matter whose name it was in and no matter who provided the money to buy it; this made the husband entitled to a share of the house. Taking into account the length of the marriage, when the property was bought, and the age and circumstances of the wife and husband, he concluded that the husband should be awarded £85,000 out of the property, to provide a pension, well short of a fifty per cent half share.

At the other end of the property scale, the Court of Appeal gave its judgment in the case of Grubb v Grubb.  Mr Grubb had built up  a £12 million fortune, partly in the course of his career as a surveyor, but mostly from inherited wealth. He contributed all the capital during the marriage, but none of it was ring-fenced and so the courts treated it all as family assets.

When the court had to decide what would be reasonable provision for Mrs Grubb’s needs who was 55 with just one of their five children still at school, they awarded her a nine bedroom house with 40 acres – which had been the family home before Mr Grubb came into his inheritance – plus £75,000 to restore it, £1.65 million as a pension pot, and £75,000 per year for child maintenance.

Mr Grubb appealed, but the ruling was upheld, with the judge saying that the award was not unreasonable, a decision which has left Mr Grubb with around two-thirds of his ancestral wealth. 

The outcome in financial relief cases is becoming very unpredictable.  In the Grubb case, reasonable needs for a divorced wife means about £4.4 million, whereas in S v AG reasonable needs for a 55 year-old porter with no pension provision means £85,000.   What is consistent is that once assets have been put into the family pot, they are there to be counted.  What is not consistent is the ratio in which they will be divided.   For both of these cases, they did not receive a fifty per cent share; rather they had what was judged ‘fair’ in the circumstances.

The case law behind the judgments was created in 2001 in White v White and further developed in 2006 in Miller and McFarlane, where the judgment said that the matrimonial home should always be designated matrimonial property, whatever its source.

For those wanting to protect against this sort of outcome, there is no clear way forward.  Pre or post nuptial agreements are increasingly being taken into account by the Courts, but they are not binding in England and Wales.  The other potential route to protect inheritance would be through parents leaving property and assets in trust for their children and that’s not just something for the very wealthy like the Grubbs, since property prices have increased so dramatically.  That would be one way to keep it separate from the marriage pot.

For more information and family law advice  please contact us on  01623 451111

Natalie

For the majority of people, Facebook is a harmless way to keep in touch with friends and family.  However, it also allows users to make new friends and find out about former partners online, something that is being blamed for an increasing number of people separating.

Over the last year there has been a dramatic increase of “unreasonable behaviour” petitions during 2011 which refer to Facebook.

When you get divorced you have to rely on one of five facts being adultery, unreasonable behaviour, desertion, 2 years separation with consent and 5 years separation without consent.

“Unreasonable behaviour” covers a lot of different things but would often involve violence or just behaving unreasonably.  More recently however more and more Divorce Petitions have contained allegations referring to Facebook including inappropriate messages to members of the opposite sex, separated spouses posting nasty comments about each other and Facebook friends reporting spouse’s behaviour.  Suspicious spouses have also used the websites to find evidence of flirting and even affairs which have led to divorce.

Twitter has also used as part of behaviour allegations, but a lot less than Facebook, and again it was the use of Twitter as a communication tool to make comments about the other party that featured in most tweets.

So you need to be careful what you write on your ”wall” as Solicitors and the Courts are seeing these posts being produced as evidence not only in children cases but also in divorce and financial disputes.

If you require family law advice following the breakdown of your marriage, then please call our dedicated family team at Fidler & Pepper on 01623 451111 or via e-mail family@fidler.co.uk.

Clients involved in court cases regarding residence and contact often ask for the child concerned to be heard at Court before a decision is made.

The Children Act states that the paramount consideration when making decisions is what is in the childs best interests and welfare. However, it is unusual for the Judges to meet the children that those decisions effect. Many parents involved in these proceedings expect to be able to bring the children and for them to be heard.

So why doesn’t this happen?

The  Court proceedings can be a stressful  experience that can bring on anxiety for the adults involved let alone the children. The Children Act promotes protecting the childs welfare and bringing them into a stressful situation would completely go against this. It would put the child in the centre of the adults dispute and place them in an extremely difficult situation.

A child often wants to please both parent and therefore putting them in a situation where one parent is going to be dissapointed could have an emotional impact on the child.

 This is why CAFCASS are involved in most cases. This is the Children and Family Reporter who recommends to the Court what is in the childs best interests.

When making decisions the Court has to consider the ‘Welfare Checklist’ and one of the considerations under the checklist is the child’s wishes and feelings, although this of course has to be weighed against the child’s age and understanding.

There are a number of considerations under the checklist and if you are considering commencing court proceedings this should be considered carefully. If you require any family law advice regarding this please do not hesitate to contact us.

 Divorce rates have increased in the over 60’s! It appears that following retirement a number of couples are separating and initiating divorce proceedings, having re-evaluated their relationships and having the desire for a fresh start. Often couples stay together for the sake of their children but as they get older and the children are leading their own lives it leads to the re-evaluation of what people want.

In order to obtain a divorce there must be an irretrievable breakdown of the marriage and this is supported by one of five facts;

1. Adultery
2. Unreasonable behaviour
3. Two years separation with consent
4. Five Yeas separation
5. Desertion

If the decision to separate has been made there are a number of matters to be considered particularly in relation to financial matters, such as what will happen with the former matrimonial home, will it be sold? will one party continue to live there? what are the future needs of the parties and can the available assets from the marriage ensure that these needs are met?

The starting point when looking at the finances on separation is an equal divsiion but this depends upon a number of factors that have to be carefully considered and fully explored. This can be done with the benefit of independent legal advice.

If you require family law advice in order to discuss these issues please do not hesitate to contact us.

Following a landmark ruling by the Supreme Court upholding a pre-nuptial agreement it is important to give this serious consideration before entering into marriage.

Do you have unequal assets? Is one of you bringing a large amount of capital into the marriage?

A pre-nuptial agreement enables decisions to be made about what should happen if there is an unfortunate breakdown in your marriage and allows the protection of unequal contributions.

 This may seem cynical and unromantic but it is a practical and important consideration.

Without an agreement the starting point for dividing marital assets which includes assets in your sole and joint names is 50:50.

There is a number of requirements and considerations when drawing up such agreements and therefore if you require some family law advice please do not hesitate to get in touch.

Natalie

Recently married but things haven’t worked out?

This is a difficult and upsetting time for anybody in this situation and you may be aware that a divorce cannot be applied for until you have been married for at least twelve months.

However, you are able to apply for a judicial separation in order to bring the marriage to an end.

Some people prefer to apply for judicial separation due to religious reasons and others wish to apply because they have been married for less than 12 months.

Instigating judicial separation also allows the Court to look into and help to resolve financial matters.

If you want some family law advice then please get in touch.

Natalie