FamilyBlawgFamily law news and intelligence from family lawyers and family law professionals.
Familial issues are faced by everyone in today’s world. Luckily we’re in that phase, when all matters are governed by the law, even the personal matters. All personal concerns do become legal issues if they reach a particular level of seriousness. Here, we will explore exactly what is included in the context of family law, with a particular focus on Italy.
One of the reasons that divorce law is so complex is that very often the rules are a matter of fine interpretation. Deciding what is the best case for a child as young as two or three can come down to a few difficult paragraphs of wording or just a better argued case.
Sometimes, however, the law is perfectly clear cut and in an attempt to simplify divorce legislation, the government has recently put through an amendment which will ‘enshrine’ the rights of both parents to have access to a child. In essence, what was once a complex and subtle issue is to be made explicit and the law will serve the rights of both parents in most circumstances. So do these changes make sense? Has the government made the right move?
Protecting Fathers
Though at all times family law experts attempts to set out the proper, just way of dealing with an issue, this amendment will undoubtedly benefit fathers seeking access rights. In just under 10% of divorce cases children reside ‘mainly’ with their father and this legislation seeks to correct this bias.
Of course, this should not overrule what is in the child’s immediate interest if, say, a father or mother is violent or unfit for the role, but it does give genuinely willing fathers a leg-up.
Admin over Justice
Plenty of family law solicitors have expressed their discontent with the changes and they claim that the new legislation is simply not required – in calculating the interests of the child, courts already take into account the benefits of having influence from both parents.
When parents are given rights to access, disputes start arising over whether the right to access should be equal or properly apportioned. Undoubtedly, this will put a good deal of extra strain on courts for what will be more or less the same end result.
The Paramountcy Principle
After all is said and done, what realistically and legally matters is the interest of the child – this is the paramountcy principle. Though there are many cases in which both mothers and fathers fall unfortunately the wrong side of the legislation, family law experts do understand and appreciate the benefit of enabling joint access wherever possible. Though these changes might redress the balance between those living with dad and those living with mum, the statistics really aren’t the point – what matters is the child’s well-being and at the moment, judges do all they can to ensure fair access to children.
Though we’ll have to wait and see what the real effects of these changes will be, it’s likely that they will be pretty unpopular throughout the justice system and, as happened in Australia, we might well see a reversal of the law in the future.
Clough and Willis Solicitors have a dedicated team of family law specialists who are headed by a Resolution accredited specialist who can advise on divorce settlements and agreements. We can also advise on the appropriateness of referring the dispute to a mediator and deal with negotiation of child arrangements on your behalf. If required, we represent both parents and grandparents within Court proceedings.
When dealing with divorce or the breakdown of a family, everything becomes a balancing act for a solicitor. Unlike in more straightforward property cases or employment disputes, there are often three parties involved in divorce and family law solicitors see a huge number of cases which involve one or more children.
The difficulty for family law experts is finding where the right balance. The law in the UK says very little about the rights of children and because of this most cases involving children are settled out of court with the help of a family law solicitor. Compare this to family law in somewhere like Australia, though, where a new reform bill means that the safety and rights of children will be paramount in disputes between couples and the outcomes of complicated cases will be decided by a court of law.
Of course, it’s a very complicated matter, but does the law do enough for children in the UK? What does the law say and how are children protected? Should we move towards a system where children are given explicit legal rights or does our system do the job?
Well, the first concern for the family law expert in any relationship breakdown is violence. The UK law states that the courts will only make an order against a particular parent having access to their child if not making that order would be more detrimental. Where one parent has demonstrated the willingness to commit violent acts against children the courts in the UK can still be firm and clear and it will become very hard for a violent parent to gain any access to their child at all.
It’s an equally common view amongst family law solicitors that children are happier if both parents have an influence in parenting. This is, of course, the ideal, but often negligent parents impose a negative influence on children and this is where out of court agreement really do work. A system where the child’s right or desire to its own joint care results in a parent who is disinterested being forced by a court to take charge could be potentially very dangerous.
Of course the Australian system is fraught with problems and the administrative costs of allowing courts to have such power in deciding what is right or wrong for a child can come at a massive time cost. It’s well known that divorces can take up to two years to resolve and dragging out what is potentially a very difficult time for all is not desirable for anyone.
The way that children are protected in the UK relies on both parents putting their own personal views of each other behind them and agreeing to come to a sensible arrangement. The law provides for the occasions when the parents are unable to do this and courts will step in if they need to. Really this way provides an adequate solution in difficult circumstances and when children’s well-being is at stake, a more powerful but administratively costly court just doesn’t seem to be the right solution.
Clough & Willis Solicitors are based in Bury, Manchester and the specialist Family Law team at Clough & Willis have extensive experience in divorce law, maintenance payments, financial settlements and child custody and can advise on all aspects of your situation. All Clough & Willis divorce solicitors are members of The Law Society Family Panel and Resolution.
Divorce not only costs money and family but also friends. While going through divorce you will be able to discover people whom you actually called friends. There is a tendency among human beings to look for support while going through sad times. While going through divorce you might find people who once called themselves your friends shying away from you. It is just one of the example of side effects of divorce that is just not limited to one’s family but also to friends and extended family. On an average you will lose around 8 friends during the the whole process of divorce. While going through a divorce, it comes as an eye opener while fighting the battle with the person who was once the most loved person in your life and managing things if there are any children involved.
There are multiple types of friends who you can easily recognize while going for a divorce
The divorce was meant for you and your spouse but your friends leaving you in between divorce is some thing you never saw coming. Once this happens, you fly solo.
Post divorce life is the first time you will start choosing friends for yourself without any influence. While we were children it was your parent’s choice who you will we make friends with. They did so because they feared that if you choose wrong people, we will become like them . If you are comfortable hanging around with people who are successful and are happy soon you will turn like them .
One of the divorce aftershocks is that a person starts to feel that she/he is a piece of junk or a useless person . Making friends with people who understand your value and respect you for what you are will help a lot in getting out of this negativity and lead a normal life.
Getting out of the self containment box is important as it will only develop negativity and the feelings of being worthless develops destructive feelings and you might end up causing harm to yourself. If you do not get out of this box then very soon you will be found in another box heading toward grave.
Get hold of your life once through with divorce and make the best use of this time , surf online information on divorce when you have only you to cater. Go out and start living your life. You will eventually make new friends but this time you will be more careful choosing correct person as friends.
Author Bio:
I am Lisa Levis, working as a content writer since 2010. I am helping edivorcepapers.com. Here I am managing its blog and article sections.
If negotiations over child residence or contact via family solicitors or direct fail, then the may be no other option than to proceed via the court system. For example, where a non resident parent considers that the resident parent has become unfit to care for the children or where they wish to have the children reside with them, they may consider applying for a residence order themselves, but the court will take in to account the following factors to ensure that the child’s best interests are at the forefront of any decision:
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)his physical, emotional and educational needs;
(c)the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e)any harm which he has suffered or is at risk of suffering;
(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g)the range of powers available to the court under this Act in the proceedings in question.
This is called the welfare checklist and is governed by section 1 of the children act 1989. A court will have regard to this when a party applies for any order involving a child of the family. Such order could include a residence or contact order, as detailed above, a prohibited steps order, where one party wishes to prevent the other from taking certain actions in relation to the child, or a specific issues order. This type of order is usually made when the parties cannot agree on the course of action to be taken as to a certain issue, such as the schooling of the child or the medical needs of the child.
Another order that may be made is a parental responsibility order, which is an order to give parental responsibility to a person, who has not acquired this automatically. If a resident parent is worried about the threat of violence or harassment from the other party, they may wish to apply for a non molestation order, this would cover the resident parent as well as the children of the family.
For any other family law enquiries, Darlingtons Solicitors can help.
What To Look For When Seeking a Family Lawyer
If you’ve never been through the legal process before, realizing the amount of time, effort, and stress that go into it can be more than daunting. Hiring a lawyer alone is intimidating; how can you determine a good lawyer from a bad one if you’ve never had to hire one before? Below you’ll find the qualities you should look for when seeking the right lawyer for your family law case.
Background Information on the Practice of Law
There’s a misconception that a lawyer is a lawyer, in the sense that they all have the same knowledge and practice law. However, this is simply not the case. There are three types of lawyers you’ll come across on your lawyer search. Specialized lawyers are those whose practice is specialized in a specific type of law, such as personal injury law. General lawyers, i.e. lawyers that practice a broader area of law, might practice personal injury law and business law simultaneously. Then there are Referral lawyers. These lawyers may be either specialized or general lawyers, but they advertise as if they practice various types of law. When clients come to them in a specialty outside of their practice area, which is typical due to referral lawyers affinity to advertise a broad range of specialties, referral lawyers then refer the client to another attorney. The reason they do this is because referral lawyers get a percentage of the lawyer fees for all cases they refer out. For instance, Lawyer A refers a client to Lawyer B. When Lawyer B wins the case, Lawyer B must forfeit a percentage of his/her fees from the case. So, put bluntly, referral lawyers get paid for doing absolutely nothing in a case they’ve referred to another lawyer.
Qualities You Want in a Family Lawyer
You should look for three factors when determining if a lawyer is right for your divorce, separation, will, children’s rights or divorce settlement legal needs.
First, you should look for a lawyer who has experience handling family law cases. You will want to avoid “referral lawyers” as the fees they take can deter the lawyers they refer your case to from actually taking it; lawyers, like any professional, are in it for the money and if they have to forfeit percentage of their winnings on a case that already isn’t worth that much, they aren’t going to take it. You should seek out lawyers who have a long history of experience with family law cases and who have been successful with such cases. While a general attorney might have a lot of experience with family law cases, you should generally look for a lawyer who specializes in family law as he/she is the more likely to be adept to the legal procedures of such a case.
And do not rely on lawyer rating sites, like Super Lawyers, AVVO, and Best Lawyers to give you reliable information on a lawyer’s success rate and the like. These sites’ “rankings” are determined by how much a lawyer is willing to pay and the information on the lawyers is not generally verified by the lawyers themselves. For example, attorney John Smith might be stated as a family lawyer on a lawyer ranking site when in fact he is a slip and fall lawyer. You don’t want a personal injury lawyer handling your family law case, do you? It would be like having an accountant acting as your stock market investment advisor; it’s simply the wrong specialist handling the wrong specialty.
Second, you need a lawyer who is capable of giving your case the time and attention it deserves. And third, you need a lawyer with knowledge about your case type. General lawyers handle many different types of cases, which means they must have a vast working knowledge of different laws and law procedures. For instance, a general lawyer handling a business law case, a personal injury case, and a criminal case will need to know the necessary laws for each of those law specialties as well as the procedures required by each. That’s a lot of work and knowledge that a single person must endure and retain. A general lawyer may be less knowledgeable about your case type and less able to spend time on your case because he/she is handling so many different types of cases.
Amber Paley is a guest post and article writer bringing to us what qualities one should look for when seeking a family lawyer. Outraged by the prevalence of elder neglect in the U.S., Amber spends much of her professional life writing education articles to help those affected another’s negligible care find good nursing home abuse attorneys.
Vardags Solicitors are a Top Divorce Lawyer based in Central London that specialise in complex and substantial cases
Expert witness reports are often necessary in the course of proceedings to assist the Court in determining issues which require special expertise and usually where the parties are unable to agree those issues between them. In financial proceedings, for instance, experts are regularly called upon to prepare reports to determine the value of real property and businesses. In children’s cases, the Court may often direct that an expert psychologist assess and interview a family and prepare a report to assist in determining the most appropriate living arrangements for children in light of parental separation.
Part 25 of the Family Procedure Rules 2010 (“FPRs”) and the accompanying Practice Direction 25A set out the applicable rules and guidelines with respect to the appointment, duties and obligations of expert witnesses in family law Court proceedings. Part 25 is reflective of Part 35 of the Civil Procedure Rules (“CPRs”) which was applied in respect of experts in family law proceedings until the FPRs came into effect in this jurisdiction on 6 April 2011.
Rule 25.7 of the FPRs sets out the Court’s power to direct that expert evidence be given by a “Single Joint Expert”; in other words, a single expert witness who is instructed jointly by the parties rather than each party instructing their own separate expert. The fees of a Single Joint Expert are normally shared equally between the parties.
In the vast majority of cases the appointment of a Single Joint Expert will be the starting point for the determination of issues requiring expert evidence. The introduction of the CPRs was intended to bring about the end of “trial by separate experts”, with Courts being under a duty to restrict the use of expert evidence. Following the introduction of the CPRs, as a general principle the Courts have promoted the use of Single Joint Experts sought to resist parties to a case instructing their own experts.
However, it is arguable that the Court of Appeal decision of Daniels v Walker [2000] 1 WLR 1382 has significantly eroded the foundations of the general principle regarding Single Joint Experts. In this case, the Court of Appeal stated that where there is a Single Joint Expert report, a party is not necessarily prevented from obtaining a further report from their own expert. Subject to the Court’s discretion, a party should be given leave and permitted to obtain further a further expert report when they can satisfy the following criteria:
A party will normally be solely responsible for the fees of their own separate expert.
In light of the decision in Daniels v Walker, the instruction of a Single Joint Expert may be considered to be the first stage in a more extensive valuation process that can potentially develop over the course of litigation.
Yet does this mean that the continuing standard practice in family law proceedings of obtaining a report from a Single Joint Expert has been rendered obsolete and is now effectively a “waste of money”? Furthermore, can the use of Single Joint Experts deliver a fair and just outcome?
Certainly the decision of the Court of Appeal may have encouraged parties to seek the appointment of their own experts, which in turn gives rise to the possibility of increased costs in the already expensive process of litigation. Yet it would be a step too far to suggest that Single Joint Experts are now a simply a waste of time and money and produce unsatisfactory outcomes.
Firstly, the authority in Daniels v Walker is not a guarantee that a party may instruct their own separate expert whenever they choose. The criteria set out by the Court of Appeal in that case must be satisfied, and most importantly, the decision to grant leave to party to obtain a further expert report remains within the discretion of the Court. There will be many instances in which the Court will not grant permission as it considers further expert evidence to be unnecessary, inappropriate, or too expensive in the context of the case.
The primary basis of support for the continued use of Single Joint Experts by divorce lawyers on both sides, however, is that in a significant proportion of cases the parties will not seek to adduce further evidence from their own expert. There are various reasons for this; for instance, both parties may be satisfied with the report of the Single Joint Expert and accordingly will have no reason to seek a “second opinion”. Even where a party is somewhat dissatisfied with a Single Joint Expert report, they may dismiss the idea of seeking a further expert evidence on the basis that a more favourable report will not greatly affect the overall outcome of the case or the costs of obtaining further expert evidence will outweigh the potential advantages. Frequently one party will be happier with a report of a Single Joint Expert than the other; however, the latter party will nonetheless be able to “live” with that report.
Further, an inherent risk of seeking a second expert report is that there is no guarantee their opinion will be favourable to the party instructing them. There will often be a range of acceptable expert opinions in respect of an identical scenario (for instance, the potential market value of a property), and even a fundamentally flawed expert approach or methodology may still produce a similar result to that produced using the correct approach or methodology. Single Joint Experts and separate experts alike have an overriding duty to the Court to provide an opinion that is entirely independent of either party.
It therefore follows that in most cases where neither party wishes to depart from the Single Joint Expert report and obtain a further expert report, it can be assumed that the use of the Single Joint Expert has indeed been effective in producing an outcome that is acceptable to the parties and therefore fair and “just”. Overarching this is the likely cost saving advantage; usually the fees of a Single Joint Expert which are shared between the parties equally will be less overall than the fees of separate experts paid for by each party respectively.
Of course, it must not be forgotten that the use of Single Joint Experts represents an evolution of the law and procedure from a time when the use of separate experts was the norm. A proliferation of experts within a case can significantly increase the time, costs and complexity of the issues at hand – and can also ultimately fail to assist the Court in making a decision and produce a result that is fair and just. There are, one might suggest, sound reasons for the continued use of Single Joint Experts which have been developed over many years of litigation experience and history.
Finally, what might occur in a scenario where there is a Single Joint Expert and it has been identified that there are legitimate errors and other issues within their report?
Unless the Court directs otherwise, the Single Joint Expert will continue their role in the case and the parties will remain jointly and severally liable to pay the fees arising from the Single Joint Expert’s work – even if those fees are incurred by the Single Joint Expert in “rectifying” their initial report (for instance, after a party has raised questions of the expert).
If the parties are genuinely dissatisfied with the work and level of fees of the Single Joint Expert and cannot resolve these issues with the expert directly, they may seek to obtain appropriate relief outside the family law proceedings.
To find out more about Vardags Solicitors, visit their website.
Below are 20 of the best family law blogs and news posts from around the web in the past week. If you have published or found a useful family law-related post that hasn’t been spotted, please do add a link to the comments section below.
Wanted: family justice narratives – Lucy Reed in the Guardian
Editor of the Pink Tape family law blog, Lucy Reed invites readers to share their experiences of working in the family justice system.
‘No good arguments against no fault divorce’, top judge says – Telegraph
Renewed calls for “no fault divorce” from Britain’s leading family law judge, Sir Nicholas Wall.
Launch of Family Law arbitration scheme marked by IFLA event – Family Law Week
On Monday 26 March 2012 the Institute of Family Law Arbitrators (IFLA) marked the launch of the new Family Law Arbitration Scheme.
Other blogs on the family law arbitration scheme:-
Family Law Arbitration in the UK – womeninlaw.com
Russell-Cooke welcomes the new Family Law Arbitration Scheme (26/03/12) – News – Russell-Cooke
Knights in shining armour? Family law arbitration rides to the rescue | jonesmyers blog
Lawrence v Gallagher [2012] EWCA Civ 394 – Family Law Week
The Court of Appeal has ruled in Lawrence v Gallagher that the division of assets in a civil partnership ‘divorce’ should be treated in a similar way to those in a heterosexual divorce.
More blogs on Lawrence v Gallagher:
Divorce principles to apply to civil partnership breakup – FLB
Court of Appeal cuts civil partnership ‘divorce’ settlement- Gregorian Emerson
Fifty years in family law: Staffordshire University Conference – Marilyn Stowe Blog
Marilyn visited the Staffordshire University Law School’s Annual Family Law Conference this weekend and produces a comprehensive account of the event.
New Rules for Families? – Cotswold Family Law
Discussion and comment on The Family Justice Review (“FJR”).
New family laws are divorced from reality – Tehelka
Flavia Agnes takes a look at India’s family laws in this opinion piece, noting that moves to make divorces easier may look good on paper but may end up giving a raw deal to women who are not financially independent.
Surge in demand for domestic abuse advice during Old Firm match – CBC Blog
Shelter Scotland has reported a sharp rise in the number of visits to its website from women looking for help and advice on domestic abuse following its recent Facebook advertising campaign.
Conflict and violence in families – Austin Lafferty
National charity, 4Children, has recently published the results of its research into conflict and violence in families.
You Can’t Always Get What You Want – Marshall Chambers
A lesson for litigants: answers provided by the Court may not be the answers desired by the litigant; or any of the litigants!
Rise in international child flee cases – Pannone Family Law Blog
There has been a significant rise in child abduction cases in England and Wales, as per a Report out this week by Lord Justice Thorpe, chief of the Office of the Head of International Family Justice.
The report of Grubb v Grubb [2012] EWCA Civ 398, published on Bailii this week may be brief but it is not without interest. Family Lore comments.
Jennifer Brandt: Your First Meeting With A Divorce Lawyer
‘Getting a divorce is never a fun experience, but picking the right lawyer will help you cope with the process while getting a fair and equitable result’ says Jennifer Brandt. Her tips are blogged at the Huffington Post.
Mega-rich divorcees in court squabble over loose change | News.com.au
One from Australia: Having split the family’s $151,037,015 wealth with his ex-wife, a businessman realised he had overpaid and went to the Family Court to get his money back.
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In October 2008, Clare Wood ended her relationship with George Appleton. Her rejection sparked a campaign of abuse, resulting in her horrific murder four months later. Appleton had a history of violence against women, including harassment, threats and kidnapping a former girlfriend at knifepoint.
Despite a number of complaints to the police, resulting in a panic button being fitted in her home, this was not enough to save Clare. Her murder made clear that the treatment of domestic crime requires improvement. This led to a government proposal, named ‘Clare’s Law’, enabling the police to disclose information to partners of those with histories of domestic violence.
The pilot scheme, announced on 5th March 2012, will begin this summer. It follows a government consultation published in October 2011 which investigated whether a national disclosure scheme could improve the safety of people in relationships with previous offenders. The initial consultation raised important issues, such as how much information should be released and in which circumstances, and how malicious requests will be avoided. The government seeks to address these matters during the scheme’s trial.
The pilot is testing two processes for disclosing information about a partner’s violent history; the first is triggered by a query from a member of the public (‘The Right To Ask’); the second is where police disclose information in order to protect a potential victim (‘The Right To Know’). Taking into account the amount of government and police time, and taxpayers’ money spent on this issue, it is important to consider the implications of this scheme.
Two people are killed by their partner each week in England and Wales; domestic violence is the cause of nearly 40 per cent of all female[1] UK homicides[2]. Evidently, government attention in this area is required, but is Clare’s Law the answer to reducing these figures? Refuge, one of the UK’s longest running domestic violence charities does not think so. The charity has criticised the proposed disclosure laws as ‘reactive rather than proactive’.
The theory behind the Government’s scheme is that if someone told that their partner has a history of domestic violence, they can then make an informed decision whether to continue with the relationship. This, however, raises many problems; if, like Clare Wood, a woman had no previous indication of her partner’s violent behaviour, then she would be unlikely to make an enquiry. Also, it is extremely doubtful that the scheme anticipates all those embarking on a new romance to carry out a police background check – it is simply unrealistic and doesn’t reflect reality.
Further, it is often on ending the relationship that people turn violent, as was the case with Wood and Appleton. Considering this, what is a woman to do when burdened with the information of her partner’s history? Many in such relationships stay with their partners out of fear for what would happen should they leave. Others might not leave because of love and belief that their partner can change. Would a woman be blamed for not leaving her partner when informed of his violent past?
The proposed ‘Right To Know’ process means police will inform potential victims of domestic violence. Statistics show that 44 per cent of victims are involved in more than one incident[3], so certainly many victims are already aware of what their partners are capable of, without being informed by the police. Knowing that their partners terrorised others before them would provide little solace.
Additionally, how would the police determine who they should inform? Appleton trawled social networking sites looking for his women. Are the police to follow these men from relationship to relationship, or message all their Facebook friends issuing warnings; for surely any one of them could be his potential victim. If a woman was able to escape an abusive relationship as a result of police disclosure, the perpetrator would simply be able to move onto his next victim. The problem is thereby displaced rather than prevented.
The police can only inform on the basis of information they have available: the details of those previously convicted. Considering that less than 40 per cent of domestic violence cases are reported to the police, a minor proportion of offenders will have police records, making it extremely unlikely for those making enquiries under ‘The Right To Know’ to obtain accurate information.
Having considered the implications of the proposed scheme, I think the most important thing is the way in which the police handle the disclosures. Potentially life-changing and life-threatening information is dangerous if unaccompanied by police support and intervention. Because the majority of cases go unreported, police time would be better spent conducting thorough investigations into allegations of abuse and monitoring those with troublesome histories. In a less than ideal world where prevention is impossible, protection should be key.
By Judy Benmayer of HighStreetLawyer.com
HighStreetLawyer offers advice in all areas of law, including Family Law problems.
[1] Although it is recognised that men also suffer from domestic violence, it is primarily an issue affecting women, (a third of domestic violence victims are men according to the National Centre for Domestic Violence). It is currently unclear whether Clare’s Law would apply to male and female victims, as so this article has been written from a female-centric perspective.
[2] (Povey, (ed.), 2005; Home Office, 1999; Department of Health, 2005.)
[3] Dodd et al
Vardags Solicitors are a Top Divorce Lawyer based in Central London that specialise in complex and substantial cases
Lawyers who specialise in divorce require skills and knowledge that are not often associated with commercial lawyers. Whilst skills such as communication, working as a team or working to deadlines are needed by any legal specialist, a lawyer dealing with relationship dissolution needs more than these attributes to cope with the challenging situations that may arise.
Understanding the complexities of adult relationships is key. A top lawyer must be capable of dealing with clients undergoing such emotional upheaval with dignity and respect. This will include being capable of appreciating significant factors in the divorce outside monetary issues, namely children who would be adversely affected by a drawn out adversarial litigation.
A divorce lawyer must accept that there are two halves to any divorce proceedings, and the desires of each party will likely conflict. Compromise will be necessary and that needs to be communicated to the client, whose vulnerable position may cloud their view of the situation. Many clients will come seeking to withhold everything from their former partner, motivated by spite or fear of losing what their earnings. The client needs to be reassured that they will be protected, and with competent legal professionals, each party should be left content. Total reluctance to negotiate with the other party will only lead to negative effects to any children involved, who have been shown to suffer as a result of the uncertainty and upheaval involved in divorce proceedings.
Expert knowledge of Family Law is an obvious requirement. The lawyer needs to be able to advise their clients about the existence of the “clean break” principle, the precedents set by cases such as White v White and other relevant case law, s.25 of the Matrimonial Causes Act 1973, and other legal principles which would affect the clients position in the event that the issue should come before a judge. Even before this, the top divorce lawyer will need to be able to convey the availability of alternative dispute resolution such as mediation or collaborative law, especially with the weight given to the ADR process by the government, the courts and organisations such as Resolution. Aside from being the cheaper option, ADR is often considered the more holistic method of dealing with a divorce, with financial, housing and custody issues being looked at as one complete issue.
It is important that the client has faith in their lawyer to do the best they can, to protect their interests and to provide the best legal advice. To ensure this the lawyer must show a determined and professional demeanour throughout the process.
The main issue to be dealt with by a lawyer dealing with divorce is turning a sensitive situation into something that the client is happy with and as a result the client will be able to move forward and build a better future. If a lawyer can do this, then they would be considered a top divorce lawyer.
Below are ten of last week’s best family law blogs and news posts from around the web:-
The Attorney General has said that the current ban on gay and unmarried couples should remain in place until the Stormont Assembly decides otherwise.
Family Law Week presents Steve Crompton & David Kitson of RSM Tenon who review the Chancellor’s 2012 Budget announcements.
Refusal to allow a woman to adopt her same-sex partner’s child was not discriminatory according to The European Court of Human Rights’ ruling in the case of Gas and Dubois v. France.
Think-tank the Centre for Social Justice (CSJ) has accused the Government of missing a chance in its latest budget to tackle the problem of family breakdown.
Some of Wales’ most vulnerable children and young people are unaware of their statutory right to an independent professional ‘voice’.
Jordan Publishing has announced the return of the Family Law Awards, which will be held on 10 October 2012.
A recent study by FindLaw.com has revealed that March sees a spike in the number of divorce queries (although January is generally thought of as “Divorce Month” by divorce lawyers).
Mills & Reeve to launch an online know-how and training package for family lawyers.
Guest family law blog summarising the Court of Appeal decision of Imerman v Tchenguiz [2010] 2 FLR 814.
Some doctors breaking the law by “pre-signing” abortion consent forms, the Government has said.
If you have published or found a useful family law-related post that hasn’t been spotted, please do add a link to the comments section below.
Below is a guest blawg post on how to divorce, explaining the divorce process. Please note that the terms are relevant to the laws of England and Wales. If you’d like to submit a guest family law blog post, please get in touch through the contact form.
Deciding to pursue a divorce can be a daunting challenge, fraught with a range of perils. There are a lot of things to consider, such how the divorce process works, what you’re entitled to and who gets the rights to any children you may have.
In order to get a divorce, you will have to undertake a range of steps in order to come to an agreement with your partner. These include your reasons for divorce, which of you will take care of the children and how you’ll split up your money, property and possessions.
One of the first ports when considering a divorce is hiring legal help. You may consider hiring divorce solicitors in Kent, or wherever you are based, who will act on your behalf in divorce proceedings.
The good news is that if you and your spouse agree on these points then the divorce process can be completed in as quickly as 4 months. If not, then divorce proceedings can drag on for much longer.
There are four formal stages to divorce in the UK:
You can only divorce under UK law if your marriage has ‘irretrievably’ broken down and you have been married for a least a year. You will be required to prove this to the court by relaying the ‘facts’ of why your marriage has ended. These facts can include reasons such as adultery, unreasonable behaviour and desertion.
To start divorce proceedings you will need to fill out three copies of a D8 form, also known as a ‘divorce petition’. You will also have to pay a fee of £340, but you could be entitled to a discount if you have a low income or are on benefits. Once the forms are completed, you will need to send them to the court.
A notice of divorce will then eventually be served to your husband/wife. Your partner can then choose to either accept or argue against the divorce. If your spouse chooses to fight against the divorce then proceedings can be delayed significantly. If no agreement can be made then this is where divorce solicitors will step in to negotiate with your partner to try to reach an agreement.
Once you both agree on the divorce you can then apply for a ‘decree nisi’ – a document from the court which says that it can’t see any reason why you can’t divorce. A judge will consider whether there is enough evidence to allow the divorce to proceed and review all your paperwork, such as any arrangements you’re proposing for your children.
If the judge gives permission for the divorce to continue then you are able to apply for a ‘decree absolute’ 6 weeks after you have been issued with your decree nisi. Once you have the decree absolute, you are officially divorced.
Vardags Solicitors are a Top Divorce Lawyer based in Central London that specialise in complex and substantial cases
The Court of Appeal decision of Imerman v Tchenguiz [2010] 2 FLR 814 confirmed various principles, including but not limited to the following, in summary:
If a party does have possession of confidential documents, they must promptly return those documents to the other party and destroy any copies they have made. If the party is represented by solicitors, those solicitors must not look at the documents nor retain copies (or else they may be required to cease acting for their client). In default of compliance, the aggrieved party will be able to seek appropriate injunctive relief with possible costs and other consequences.
However, there are corresponding obligations in respect of the owner of the confidential documents. The breach of confidence does not override the obligation to make full and frank disclosure of all relevant documents within the family law proceedings. If the owner of the confidential documents is represented by solicitors, those solicitors are obliged to take reasonable steps to consider and advise on the documents, with a view to ensuring that their client complies with their obligations of disclosure. If the owner of the documents ceases to instruct their solicitors, then those solicitors are obliged to retain copies of the documents unless otherwise agreed or ordered. These obligations are designed to ensure the preservation of the confidential documents, with a view to a party complying with their obligations of disclosure or alternatively the other party seeking the production of the documents by way of an application to the Court.
Clearly a great deal hinges upon the solicitors for each party doing the “right” thing and following the correct protocol. Is it therefore appropriate to rely on the integrity of the solicitors who are obliged to retain the Imerman documents?
Unless there is significant and persuasive evidence to suggest otherwise, it must be assumed that the relevant solicitors will comply with their obligations to retain copies of the documents and advise their clients to make any relevant disclosure. Solicitors are under strict professional and ethical obligations, and their duties to the Court extend beyond even their duties to their client.
This, however, may be of little comfort to the party who came across the confidential documents, particularly where the matter is fiercely contested as can often be the case in family law cases and associated litigation.
An alternative approach going forward might be to require that Imerman documents be lodged with independent third party solicitors. This may provide the party returning the confidential documents with some peace of mind and ensure that the issue is dealt with, at least at first instance, by solicitors entirely independent of the parties and removed from the adversarial process.
However, one can also perceive some possible difficulties with this approach. For instance, to what extent would the third party solicitor be involved in the process of reviewing, considering and advising on the relevance of the documents? It may be that they are simply required to prepare a list of the confidential documents, but this in turn gives rise to further questions regarding the subsequent disclosure of that list and the appropriate procedure going forward. Finally, the use of independent third party solicitors is likely to increase the costs of the case by some degree (which could be significant depending on the extent of their role) and will be even more problematic when the parties are self-represented or on legal aid.
An alternative to the use of independent third party solicitors might be for the confidential documents to be lodged with and considered by a Judge, who can then make appropriate directions. This idea is also problematic for various reasons, not least because wide-spread use of such an approach might inundate the Court system with significant numbers of applications in respect of documents with little or no relevance to the case.
There is little doubt that the issue of Imerman documents and related procedure is and will continue to be fraught with difficulty – and many agree that greater direction and clarity is required to enable parties and practitioners alike to navigate this challenging legal obstacle course with greater confidence.
To find out more about Vardags Solicitors, visit their website.
The Divorce Process
Divorce is the legal process through which two people end their marriage and the legal status that it provides. It is usually an extremely emotional time for the parties involved and also for their children, if they have any. The best way to make your divorce process as smooth as possible is to find a solicitor who you can trust and work comfortably with.
It is important that both parties understand their legal position on divorce and know exactly to what they are entitled. A divorce solicitor can make sure finances and property are properly distributed and arrangements are made for children, leaving no room for disagreements.
Petitioning for divorce
In order to begin the process of divorce one party to the marriage must present a petition for divorce on the grounds that the marriage has broken down irretrievably. It is important to note that the parties must have been married for at least a year before they are able to make such a petition.
Whether the marriage is broken down irretrievably is not simply a matter of opinion, and there is legislation stating that at least one of five factors must be present before any court will make a ruling that the marriage has in fact broken down irretrievably. These five grounds for divorce are as follows: unreasonable behaviour, adultery, living apart for two years and both parties consent to the divorce, living apart for five years, and desertion.
Acknowledgment of service
A copy of the petition must be sent to the other party along with a statement of arrangements for the children (if applicable) and an acknowledgment of service. The respondent must inform the petitioner in the acknowledgment of service whether they will be contesting the divorce. The acknowledgment of service is therefore an extremely important document as it shows the court that the other party is aware of the petition. If the other party refuses to return the acknowledgment of service you may have to arrange for a process server or bailiff to serve the document and make an affidavit stating that they have done so.
Decree nisi
If the court is satisfied that there are valid grounds for divorce it may well grant what is known as a decree nisi. A decree nisi will generally be granted when a divorce is not being contested and there are valid grounds for divorce. The party who made the petition must then apply to have the decree made absolute which they cannot do until at least six weeks and one day from the date of the decree nisi.
Decree absolute
The decree absolute is what actually ends the marriage, as opposed to the decree nisi which merely declares there are satisfactory grounds. Once the decree absolute has been pronounced the marriage has officially ended and usually the parties will begin ancillary relief proceedings: the name given for deciding how the matrimonial assets should be split.
Ancillary relief proceedings
The ancillary relief proceedings are often fiercely contested as a judge will rule on who should have what from the matrimonial assets. The ancillary relief process can be quite long and usually involves three trips to court.
With the potential for several court visits, it is in both parties’ interests to try to facilitate an early settlement to avoid significant legal costs.
In Divorce Law the term divorce means that a marriage has been irretrievably broken down. It may be that in your situation this is not the case and you are not looking for a final decision but rather an agreement not to carry out your marital obligations or to benefit from your marriage in any way until you make a decision whether to officially divorce or not.
If this is the case you should write a separation agreement. A separation agreement is not a divorce; it is merely an order of court which dissolves the obligations or benefits brought on by a marriage. In such cases you and your spouse will agree beforehand about any financial agreements, the children and the planned divorce. This agreement is binding on you and your spouse until the divorce commences during which time the courts will make an order confirming the terms of the separation agreement.
If you are seeking to carry out a separation agreement, it is advisable that both you and your spouse employ the services if a divorce lawyer or family solicitor before agreeing to any of the terms you intend to set out in the agreement. The separation agreement identifies the parties to the agreement and confirms that both you and your spouse have received legal advice on the matter. Both parties will then agree in the separation agreement that the marriage has broken down irretrievably and that they are planning their divorce.
It is prudent at this stage to get legal advice on your division of your matrimonial assets, such as your finances and child support. This will make it easier for you to carry out an uncontested divorce when you wish to go through with the procedure. It should be noted however that a court may change your separation agreement if it considers it to be unreasonable or, in the case of a child, if it is not in the child’s best interests.
For further legal advice on divorce and separation agreements, you are advised to speak to a divorce solicitor or family law solicitor. They can answer your questions and help you to get through this difficult time.
The result of a divorce or separation is that two households will often have to exist on the same amount of money as one did previously. This is unfortunately made worse by the costs that will flow from your divorce. There are three main ways in which you can reduce on your legal costs in this procedure.
The first method would be to attempt to carry out the divorce informally, known as informal separation. If you and your partner are married, you can separate by such an informal arrangement. If you and your partner agree, you can also make arrangements about children, money, housing and other property without going to court. However, any informal arrangement made when you separate may affect future decisions if you do ever go to court. You should be aware that a court may change an arrangement you and your spouse made if it considers it to be unreasonable or, in the case of a child, not in their best interests.
Another method that can be employed to reduce legal costs is through what is known as a separation agreement. This is a written agreement between you and your spouse when you intend to stop living together. It sets out how you wish to sort out financial arrangements, property, and arrangements for the children. It is advisable to consult a divorce lawyer when drawing up a separation agreement, but you should work out in advance the general areas you want to cover. This will help to reduce your legal costs.
A final method that may be used in such circumstances would be for you to utilize the services of Legal Help. Legal Help allows people with a low income to get free legal advice and help from a specialist divorce solicitor or an experienced legal adviser. The solicitor or adviser must have a contract with the Legal Services Commission (LSC) to be able to provide Legal Help. You should be aware that in such cases the divorce solicitor will only be able to help you with legal advice and not with the drafting or endorsement of any legal documents.
With the opening of borders across Europe and the recent growth of the internet and cheap travel, it is becoming increasingly common for children to have parents who are of different nationality to one another. However, should the parents separate, what happens if one parent wants to return to their home country with the child?
This is a question I am frequently asked as a family lawyer and it is understandably a highly emotive issue between parents. Should a parent leave the country with their child without the other parent’s consent they could face criminal charges for child abduction. Therefore consent is essential and if it is not forthcoming from the other parent you will need to apply to the court for a judge to decide.
When the court considers whether such a move with the child should be allowed, the child’s welfare is paramount and the court will apply what is known as the welfare checklist. The checklist includes factors such as the physical, emotional and educational needs of the child, the wishes and feelings of the child, the capability of the parent to meet the child’s needs and the likely effect on the child. The proposed arrangements need to be considered carefully and the greater part the parent who would be left behind plays in the child’s life, the greater impact/damage upon the child if the move is allowed.
If you wish to make the move with your child, preparation and research is imperative. Also focus on how your child’s relationship with their other parent can be maintained if the move is allowed. The court needs to be sure that the proposed move is genuine, realistic and above all in the child’s best interests.
It is a very difficult issue with many factors to consider. Whether you are the parent wishing to make the move or the parent opposing the move, early legal advice is essential.
This was a guest post by Patricia Robinson Senior Associate at divorce solicitors Pannone LLP. For more information visit their website at http://www.pannone.com/.
Guest blawg post by Gavin Ward as posted to WardblawG
On Wednesday 30th March, I attended a Relationships Scotland event, hosted by HBJ Gateley Wareing in Glasgow and attended by family law professionals across Scotland. The event was of particular interest given the recent review of family law in England and Wales, one element of which concerns the fact that mediation for divorcing couples shall, as of 6 April 2011, be compulsory prior to them attending Court, subject to limited exceptions. For further information on this see a blog post by a family law firm in Liverpool. While mediation for divorcing couples is not yet compulsory in Scotland, it is becoming more widely available.
What is Parenting Apart?
Parenting Apart groups give parents the skills and confidence to communicate with their children about their separation or divorce in child-friendly language. Importantly, parents get the chance to chat with others going through the same as them. Groups are hosted by two family mediators giving parents the chance to speak to a qualified professional about any issues around parenting their children or their relationship with their ex-partner following their split.
Key Speakers at the Event
Although I have seldom practised family law myself (although I do now work with family lawyers), I still found the event very informative with speakers conveying ideas with clear expression.
Speakers included the following people who should be contacted should you wish further information on any of the topics discussed:-
– HBJ Gateley Wareing’s family law partner, Shona Templeton, who set the scene, exploring the changing face of collaborative family law within Scotland;
– Mark Stalker, who is a service manager with Family Mediation South Lanarkshire. A former solicitor, Mark discussed the the impact of the Parenting Apart project throughout South Lanarkshire;
– National Development Manager with Families Need Fathers, Ian Maxwell discussed how fathers can become involved in the collaborative process. I would also add that I met one of Ian’s colleagues, John Forsyth, who is a support and development worker with Families Need Fathers and is contributing greatly to the Scottish family justice system; and
– Stuart Valentine, the Chief Executive of Relationships Scotland, who explained how Parenting Apart fits in to the wider national picture of family support.
Further Information
For further information on Relationships Scotland and their work, see Relationships Scotland’s Blog here, their twitter account here and watch the video below.
If you have any specific queries on family law in Scotland, get in touch via the contact a solicitor form at the top right of this page.
Welcome to Family Blawg, a legal news blog on family law for family lawyers, the general public and potential clients of family solicitors.
A complex area requiring advice from specialist solicitors with an understanding and appreciation of sensitive issues, family law and practice involves divorce, separation, wills, children’s rights and divorce settlements.