Family law

Parental alienation
12 July, 2018

Parental alienation, at its most severe, has caused children to think their alienated father is a cannibal. This may be an extreme example but demonstrates the effect that parental alienation can have.

Parental alienation is a phenomenon whereby one parent damages their children’s perceptions of the other parent through brainwashing and demonising that parent. In other words, they effectively turn the child against the other parent and seek to exclude that parent from the life of the child.

It is thought that around 11-15% of all UK divorce cases involving children are affected by parental alienation. Needless to say, parental alienation can be very damaging to a child’s development and can adversely affect the child into adulthood. However, the role of the family court, and other professionals, in identifying this phenomenon is challenging because it is sometimes difficult to distinguish parental alienation from the issues that can arise in setting up successful contact arrangements, following a strained and bitter divorce i.e. where parental alienation has not taken place.

So what can be done for children, where alienation has already taken grip and has resulted in the child saying they do not wish to see the alienated parent?

As a starting point, parents should acknowledge the bitterness of the divorce and do all that they can to reduce the psychological impact of that conflict on their children.

Whilst the law says that the wishes and feelings of a child must be taken into account by the court, judges must be prepared to attach less weight to the child’s views where parental alienation has taken place. The general approach of the court will be to look to factors such as the age and maturity of the child; the older and more mature they are, the more weight the court may give to their wishes. With younger children this can be more complicated. The court has to bear in mind that what a child wants and what is best for their welfare is not always the same. The court’s duty to promote contact has been reiterated in a recent and important case (Re M (Children)[2017] EWCA Civ 2164), where it was confirmed that stopping contact with a parent really is a last resort and will only be ordered when it is clear that the child will not benefit from contact.

In this case, the Court of Appeal overturned an order for indirect contact between the children from an ultra-orthodox Jewish community and their transgender father. The case confirms that the courts have to take into account the fact that contact is a fundamental element of family life and that it is almost always in the interests of the child. The issue here was the risk of the children being ostracised from their community if they had direct contact with their father, but the Court of Appeal recognised its positive duty to promote contact and acted accordingly.

Bearing in mind the court’s duty to promote contact, how can the court deal with an extreme parental alienation case ?

Ultimately, the court may have to use the fairly draconian sanction of changing the residence of the child such that he/she will live with the alienated parent. A starting point may be a suspended residence order, directing that the child reside with the alienated parent, whereby the  order is made but suspended on the condition that the alienating parent  does all that he/she can to ensure that contact takes place. The use of suspended orders is becoming more frequent by the court. 

Whilst the change of residence sanction is infrequently used, such orders are made by the court in these cases and may increase in frequency as the spotlight on parental alienation continues to grow.

If you would like to discuss any issue arising out of the above please contact Benjamin Carter by email at the following address: benjamin.carter@cripps.co.uk


Civil Partnerships for all
28 June, 2018

Yesterday the Supreme Court ruled unanimously in favour of a heterosexual couple to have the right to enter into a civil partnership rather than a marriage.

The Supreme Court ruled that The Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights Article 14 (no discrimination) and Article 8 (the right to respect for private life) as it only applies to homosexual couples. 

Currently, heterosexual couples have one option; marriage. Whereas homosexual couples have two options; civil partnerships and civil marriages. A civil partnership is a legally recognised relationship between homosexual couples; it confers the same rights and responsibilities as marriage.

So why would a heterosexual couple choose a civil partnership over marriage?

The applicants in the case heard by the Supreme Court had genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that a civil partnership reflects their views and gives due recognition to the equal nature of their relationship.

Other couples say that they do not want to take each other as husband and wife and that marriage is a patriarchal system, for example having to put your father’s name and occupation on the marriage certificate but not your mother’s.

Unmarried heterosexual couples describe the current arrangement as grossly unfair as they are denied the legal rights of a civil partnership.

What are the benefits of being in a civil partnership or married?

In 2017, 3.3 million families were cohabiting. Cohabiting couples do not have the same legal rights as civil partners or married couples.

There are tax perks of marriage and civil partnerships, for example gifts on death to a spouse are exempt from inheritance tax. A deceased spouse or civil partner can pass an estate of any worth to the surviving spouse without immediate tax consequences. There are then further tax reliefs on the surviving spouse/civil partner’s death.

In the event of separation of cohabitees, the primary child carer has no entitlement to receive financial support from their former partner, whereas spouses and civil partners do.

In addition, some organisations do not recognise partners in cohabiting couples as next of kin. A spouse or civil partner will always have authority to act as next of kin.

It should be noted that although the Supreme Court judgment is a step in the right direction, it does not oblige the government to change the law.

Alex Davies, head of the family team, discussed the ruling on the Julia George show on BBC Radio Kent.  You can listen to the recorded version here: https://www.bbc.co.uk/radiokent. If you would like to discuss any of the issues above, or indeed any other aspect of family law, then please contact Alex on Alex.Davies@cripps.co.uk  or 01892 506 326 for a free, no obligation telephone call.


January blues? Looking forward
26 January, 2018

Statistics show that the number of separating couples regularly spikes in January. This is perhaps not surprising. Christmas is an intense period, carrying high expectations for fun, frivolity and wonderful presents, all fuelled by the power of advertising.  Immediate and extended family are thrown together, present buying in overcrowded shops is costly and stressful, the cold and dreary weather doesn’t help and neither do all the winter illnesses; it can all conspire to bring a relationship to breaking point.

 

So, what are your options if you find yourself in this unfortunate situation?

 

Try taking some time out for yourself, and for each other. Sometimes, a short holiday away, separately or together, can allow you both to gain some perspective, remember what made the relationship work in the first place, and what you need to do to fix it. This need not be a holiday to the Caribbean or even a local walking holiday together, a few hours out at a time on a regular basis, away from the usual routine and pressures, can help you both reconnect.

 

You could go and see a relationship counsellor. Counselling can be helpful because it gives you time away from your situation, and to view and understand your circumstances from a fresh perspective, with some helpful guidance from a trained outsider. It also allows you and your partner to discuss complex and confidential issues in a reassuring and confidential environment. An initial session with a counsellor can be all that is needed to gain some clarity, and to work on bringing new life to a relationship, or, to take the appropriate steps to bring it to an end.

 

Have a discussion with a family solicitor anyway, whatever option you may choose. This need not spell the definite end of a relationship but can be a one off meeting to discuss what life might look like financially and with arrangements for any children should the relationship be brought to an end. It can help you feel more in control and informed about the consequences of ending a relationship and realities of life after that. It is important that if you are considering ending your relationship, you know exactly what this entails.

 

Our family team appreciates that separations can be distressing. Our approach is sensitive and explains your options and their consequences clearly and carefully. All our family solicitors belong to Resolution, an organisation committed to the constructive resolution of relationship disputes.

 

If you would like further information in relation to the contents of this post, or any aspect of family law, please contact Sophie Barrett on 01892 506249 or sophie.barrett@cripps.co.uk.


Cohabitants are the fastest growing family type
14 November, 2017

According to the latest statistics from the Office of National Statistics, cohabitants number 3.3 million of 19 million families in the UK, having more than doubled from 1.5 million families in 1996.    The latest Families and Households statistical bulletin suggests that this can be explained by an increasing trend to cohabit instead of marry, or to cohabit before marriage, particularly at younger ages.

This trend makes it all the more necessary to consider the financial impact of the breakdown of the relationship.  As the law stands, it is possible to live together for years, and even have children together, and then leave when the relationship breaks down with no responsibility taken for those left behind, save for child maintenance.  This can cause great difficulties for the financially weaker party, and is in stark contrast to the protection provided for married couples by law.

Resolution, the national organisation of family lawyers, has called for the introduction of some rights for cohabiting couples when they separate.  Other countries such as Australia, Canada and Scotland already provide legal protection. 

There is a balance to be struck however, between those who make a deliberate decision to cohabit, and who do not want or need the protection of legislation, and those who don’t.  A key issue that needs to be addressed is ensuring that those who cohabit are aware at the outset exactly what rights they have.  According to research in 2013, almost half the British public believe in the myth of ‘common law marriage’ – that cohabitants have the same or similar rights as married people.  This is untrue.  It will be interesting to see whether legislation addressing the disparity between provision for cohabitants and married couples will be forthcoming.  

If you would like any information about cohabitation and what steps can be taken to protect you or your family on the breakdown of your relationship please contact Claire Tollefson on 01892 506191.


Divorce agreements which can go wrong !
19 October, 2017

Many divorcing couples think that once they have obtained their decree absolute of divorce, and divided their assets, then this will bring to an end the legal obligations that they have to each other. Unfortunately, this is not always the case.

There was a high profile case last year, called Briers and Briers (2017 EWCA Civ 15)

Mr and Mrs Briers divorced in 2005 with Mr Briers transferring to his wife the family home, which had an approximate value of £700,000, and providing a lump sum of £150,000 to pay off the mortgage.  In exchange, Mr Briers retained his business which he had started, in the garage of the family home in 1998, with the sum of £81.  Both Mr and Mrs Briers were full time teachers at the time. 

In 2013, eight years after the divorce, Mrs Briers made an application to the court for the financial issues arising out of the earlier divorce to be decided.

The critical factor was that Mr Briers, in the interim period, had managed to transform his fledgling business into a major fashion chain, incorporating well known brands, such as Lambretta and Vision Street Wear, with an annual turnover up to £30 million ! Whilst Mr Briers was building up his fashion empire, Mrs Briers continued to teach and look after the children of the family. 

Mr Briers argued in court that there was a verbal agreement between him and his former wife, which provided for him to transfer the family home to her etc, and that he should not therefore have to pay anything more.

When the case reached the Court of Appeal, the court said that there had been no agreement between the husband and wife in 2005 that would prevent the wife from making a financial claim and that whilst the delay on her part was relevant, this did not knock out her claims.

The court said that the wife had continued to contribute, after the divorce, to the family by looking after the children, and this was a highly relevant factor.  On this basis, the court agreed that Mrs Briers was entitled to approximately one third of Mr Briers’ current assets/wealth.

The crucial step that a divorcing couple should take, once they have agreed how to divide the assets, is to obtain a court order which confirms that the agreement is in full and final satisfaction of the financial claims of the wife and husband. This will prevent either spouse from being able to go back to court many years later to ask for more money.

Such court orders, known as “consent orders”, are relatively easy to obtain and having one brings certainty that the agreement reached can not be undone many years later.

If you would like to discuss any issue arising out of the above, please contact Benjamin Carter by email at benjamin.carter@ cripps.co.uk


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