Family Law

What is mediation?
20 March, 2017

What is mediation and how does it work?

Mediation is actively encouraged by the courts and is a voluntary, non-confrontational process for resolving family disputes. Almost all family disputes can be resolved in mediation including, but not limited to, disputes concerning divorce and separation, financial claims on divorce and issues concerning children.

Mediation usually consists of a number of meetings with one neutral mediator and couples meet together with the mediator to discuss the issues between them. The mediation sessions offer a safe and confidential environment for couples and family members to talk openly, clarify issues and explore options. Any agreement that is reached can be made into a legally binding agreement.

What are the benefits of mediation?

  • Mediation can take place at any stage of the proceedings, although it is often better to begin mediating as early as possible
  • Flexible outcomes that are tailored to a couple’s particular needs
  • Mediation is safe and confidential from the court process, encouraging discussions and negotiations that would not otherwise be possible
  • The time and timing of mediation sessions are within a couple’s control, unlike the strict court timetable that would otherwise be imposed
  • Mediation avoids the stress and threat of court proceedings
  • Mediation is considerably cheaper than any legal process

Is mediation suitable for everyone?

Mediation is not suitable for every couple. In order for mediation to be successful, both parties must be prepared to resolve issues by agreement and outside of the court process. This will require a degree of commitment and willingness to compromise.

Mediation will usually take place with the couple and mediators in the same room. However, if this is not possible (e.g. if communication has broken down to such an extent or where there is a power imbalance), the mediator can move between different rooms to ensure that the couple have little or no contact.

If you would like further information in relation to anything discusses in this post, or any aspect of family law, contact Katy-Louise Allen on 01892 506 305 or at katy-louise.allen@cripps.co.uk


Government rejects plans to reform divorce law
1 March, 2017

Current divorce law

Under current law, the sole ground for divorce is the irretrievable breakdown of a marriage. In order to establish that the marriage has irretrievably broken down, the petitioner must place reliance on one of five facts:

  • That their spouse has committed adultery;
  • That their spouse has behaved in such a way that they cannot reasonably be expected to live with them;
  • That they have been abandoned;
  • That they have been separated for two years and they agree that they should divorce; or
  • That they have been separated for five years.

The argument in favour of the two and five year timeframes is that it protects against couples from divorcing too quickly. However, the overwhelming view amongst family practitioners is that the current law encourages people to file fault-based divorce petitions, rather than separating and waiting for two years to file a petition to which both parties mutually consent.

The result is that couples are being forced to apportion blame for the breakdown of their marriage, by citing particulars of unreasonable behaviour or incidents of adultery. This often increases tension and animosity during an already difficult and emotional time.

Reforms

In an age where mediation and non-conflict based resolution is actively encouraged by the courts, practitioners have been exhaustively calling for the government to review current divorce legislation.

However, the government has recently announced that it has no current plans to review the fault-based divorce system, leaving many to wonder when, if ever, this will become a government priority.

The government’s announcement comes in the wake of the high profile case of Tini Owens, who asked the Court of Appeal to overturn a family court ruling that she could not divorce her husband, despite feeling “locked in” to her marriage. Those in favour of reform argue that this case is a clear demonstration of why a no-fault based divorce system is in desperate need of being introduced. The outcome of the hearing is awaited.

 


Are public divorce hearings the way forward?
2 February, 2017

The current principle in family disputes is that hearings are held in private. This means that unless cases are appealed in the Court of Appeal, details of hearings and pay outs are not made available to the media. However, under radical new reforms proposed by Sir James Munby, the President of the Family Division of the High Court, family hearings could soon be taking place under the glare of the public eye.

Munby has been calling for greater transparency in family proceedings for many years, believing that there is a need for greater openness to improve people’s understanding and confidence in the court system. His proposals are formed of two strands. Firstly, to launch a trial in which some hearings will be held in public and secondly, to make certain documents available to the media. In formulating his proposal, Munby has worked closely with judges in Australia, where family proceedings have been held in public for the last 30 years.

There is however widespread opposition to Munby’s proposals, with critics arguing that public hearings could stop vulnerable women from bringing and taking part in family proceedings. There is particular concern in relation to the safeguarding of children’s interests with organisations such as Resolution arguing that such reforms could result in lasting harm to children, who may end up with details of their private family life blazoned across the press, never to be retrieved.

If public proceedings are deemed to be the way forward, families will at least have the certainty to make informed decisions as to whether they wish to proceed in privacy and confidence with alternative dispute resolution options, or whether they wish to battle it out in an open court. On the other hand, only time will tell what, if any, impact public hearings will have on both children and adults.

Further guidance on Munby’s proposals is expected to be released early this year.

If you would like further information in relation to anything discussed in this post, or any aspect of family law, contact Claire Tollefson on 01892 506191 or at claire.tollefson@cripps.co.uk.

 


What rights and obligations do step-parents have on divorce?
26 January, 2017

Step-parents are often heavily involved in their step-children’s upbringings and want that to continue, even if their relationship with the children’s biological parent breaks down.

In reality, the rights and responsibilities that they have will depend on whether or not they have acquired ‘parental responsibility’. Parental responsibility is “all of the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” What does this mean?  Those with parental responsibility can be involved in important decisions in relation to the child, including those relating to education, medical treatment and religion.

But step-parents do not automatically acquire parental responsibility. They can only acquire it either with the consent of all those who do have parental responsibility, or by order of the court.

Contact

Following the breakdown of a relationship, it is always preferable to try to reach an amicable agreement regarding the children’s on-going care and contact arrangements, without recourse to the courts.

However, step-parents who are unable to reach agreement with their ex-partners about the level of involvement they continue to have in their step-children’s lives may make an application to the court for a child arrangements order regulating with whom the children are to live, spend time or otherwise have contact with.

When determining the application, the court’s paramount consideration will be the children’s welfare.

Financial provision

The Child Maintenance Service (formally the Child Support Agency) cannot enforce maintenance payments from step-parents. Instead, an application can be made to the court as part of the divorce and financial remedy proceedings.  The courts have the power to order child maintenance payments from step-parents if the children were treated as ‘children of the family.’

If you have any questions in relation to anything discussed in this post, or about any aspect of family law, contact Claire Tollefson on 01892 506191 or at claire.tollefson@cripps.co.uk.

 


What happens if, following divorce, your ex won’t collect their things?
19 January, 2017

On divorce, you and your spouse will need to reach agreement about how you split your personal possessions. This can be difficult if you both want the same things, but another difficulty can arise if you stay in the family home and your spouse fails to collect their possessions.

In a case which was recently reported in the legal press, the wife was awarded the former matrimonial home but the husband, who had been operating a plant hire business from the house, left his rusty old machinery on the land. The wife repeatedly asked him to come and collect the machinery but he was uncooperative so after a 2 year wait, she had them taken away as scrap. A further 7 years later her ex-husband decided to sue her, arguing that the machinery was worth £170,000.  What followed was a lengthy court battle during which she racked up legal costs of £108,000.  Why? Because she had become an ‘involuntary bailee’.

What is an involuntary bailee?

An involuntary bailee is a person who has, without their consent, ended up in possession of somebody else’s belongings. The owner retains the rights to the goods but the bailee owes certain duties.    

What duties?

An involuntary bailee must “do what is right and reasonable.” If you find yourself in this position, you must not deliberately or recklessly damage or destroy the goods and if you try to return them via a third party, you must ensure that the third party has your ex’s authority to receive the goods.

But if my ex has abandoned the goods, do they not now belong to me?

If the goods have truly been abandoned then they may do, but the difficulty is in establishing that they have actually been abandoned.

Can I charge for storage costs?

The law is unclear in this area. In certain circumstances, a bailee might be able to recover costs incurred safeguarding the goods from deterioration, but the scope of that ability is uncertain and you should consider how likely it is that your ex will pay.   

How can I get rid of the goods?

You can serve a statutory notice on your ex to come and collect the goods. If the notice is correctly served and he or she fails to get in touch, then you can assume that the goods have been abandoned and may dispose of them. Do make sure that you retain evidence of all steps that you take so that you can defend a future claim.

The wife in the above case was ultimately successful in defending her ex-husband’s claim against her and he was ordered to pay her legal costs, but had she served a notice on him before disposing of the machinery, she could have avoided the stress of further litigation.

If you need assistance in serving a notice, or with any aspect of your divorce and financial remedy proceedings, please contact Associate, Claire Tollefson on 01892 506191.


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