Marriage is here to stay.

Further to my post Could this be the end of marriage  it would appear not after the High Court today rejected the claims of Ms Steinfeld and Mr Keidan to change the law to allow them to enter a civil partnership.

Mrs Justice Andrews dismissed their claim for judicial review on the basis that the different treatment of gay and opposite sex couples did not infringe upon their right to a private and family life enshrined in Article 8 of the European Convention of Human Rights.

She clarified by saying even if it did that the different treatment was justified as opposite sex couples can enter civil marriages, which are egalitarian and encompass the core principles of family life.

The government has indicated at past hearings that the future of civil partnerships has not been decided and that it was waiting to see how extending marriage to same-sex couples impacted upon the number of civil partnerships before making a decision on the future of civil partnerships.  The government did not want to enter into a costly and complex exercise of extending civil partnerships in the interim where there is a possibility they may be abolished or phased out in a few years.

Mrs Justice Andrews said “opposite couples are not disadvantaged by the hiatus, because they can achieve exactly the same recognition of their relationship and the same rights and benefits and protections by getting married”

The couple have indicated that the fight will go on and we will await news of any decision upon whether they intend to appeal.

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Apology from Ministry of Justice over Form E error.

Shortly before Christmas my colleague Sarah Green posted an article Form E frenzy – a storm in a teacup upon LinkedIn regarding the media frenzy over the fact that a software error had been picked up in the Court produced document and so financial settlements within divorce proceedings could be wrong.

We now have the results of the investigation by the Ministry of Justice and an apology contained in a written statement to Parliament.

Should you be one of the individuals affected by the error or have concerns then please do contact me at mark.sage@tltsolicitors.com

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Could this be the end of marriage?

Opportunity ahead sign - Firm WideOver the next two days the High Court in London will consider whether a heterosexual couple can enter into a civil partnership.

So far, civil partnerships have only been available to same-sex couples. Charles Keidan and Rebecca Steinfeld are asking the court to allow them to enter a civil partnership and in practice campaigning for a change in law to make it available to all couples.

The case began in 2014 when Mr Keidan and Ms Steinfeld were refused permission by a registrar to enter into a civil partnership.

As a result of the refusal the couple decided to take the government to court and have sought a review of the law on the basis that it breached the European Convention on Human Rights (Article 14), which states that everyone should be treated equally under the law without discrimination on any ground. They also say that the refusal to allow them to participate in a civil partnership amounts to discrimination, breaching their right to a family life under Article 8 of the European Convention on Human Rights.

The Civil Partnership Act 2004 was introduced in 2005 and gave same-sex couples the right to have their relationships recognised. This fell short of marriage but created legal rights. Following further pressure, the government introduced same-sex marriage in 2013.

The couple are supported by a petition containing 34,000 signatures, and another couple Jimmy Pierce and Laura Cochrane, who also want their relationships to be officially recognised legally without the requirement to marry.

There is clearly support for an extension of civil partnerships to opposite sex couples – the government’s own consultation paper in 2012 saw over 78,000 people confirming their support of the extension of civil partnerships. With increasing numbers of couples co-habiting as opposed to getting married, a change in the law has long been recognised by society. However, unfortunately formal reform has always been shelved by successive governments – clearly it is an unlikely vote winner and so not a priority.

So what is the difference?

Fundamentally there are not significant differences between civil partnerships and marriage but the main two are as follows:

  • Civil partners cannot call themselves “married” for legal purposes.
  • Adultery cannot be used as a reason to dissolve a Civil Partnership. In marriage, if one party is unfaithful this can be a fact to be relied upon to prove that the marriage has irretrievably broken down. The legal definition of adultery mentions opposite sex couples only, meaning that it cannot apply to civil partnerships.

Why it would benefit cohabitants? 

At present cohabitants have no obligations to support each other upon separation, no matter how long they have lived together. Unless provision is made within a will for a cohabitant or by nomination of death benefits, there is no automatic right of provision upon death.

A civil partnership affords individuals certain legal rights akin to a marriage, so they will become their partner’s next of kin and they will have financial claims against the other upon separation and also in the event that provision is not made upon death.

Opinion

We support equality for all and believe that the same opportunities should be available to all couples regardless of their sexual orientation. This would enable cohabiting same-sex couples to enter a civil partnership creating legal obligations and rights, without the requirement to enter into a marriage, if this is their preference.

We await the High Court’s decision with interest.

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Unbundled services in family cases supported by Court of Appeal

The recent case of Minkin v Landsberg (Practising as Barnet Family Law) [2015] EWCA Civ 1152 recognises the inevitability of family practitioners providing ‘unbundled’ and bespoke services in the wake of legal aid cuts.

The facts
Mr & Mrs Minkin separated in 2007 although remained living under the same roof. Mr Minkin was a financial advisor and his wife was an accountant. During the next year or so they negotiated a financial settlement without solicitor involvement.

In early 2009 an agreement was reached and was recorded in a document headed “Minutes of Agreement to Consent Order”, which was drafted by one of the parties without a solicitor.

It outlined the following:

The house would be sold and after payment of debts, the proceeds would be divided 67% to the wife and 33% to the husband.The husband would retain the Spanish flat.The husband would pay the wife £800 per month child support.The husband would pay the wife £300 per month maintenance.
However shortly after the document was drawn up, the wife had second thoughts and sought advice from Tilley & Co.

Tilley & Co wrote to the wife in February 2009, setting out terms upon which they were willing to act;

“On a preliminary review of the settlement proposals it does not seem to be a satisfactory offer but would need further disclosure to back this advice up. I advised you that if you felt comfortable with the offer and felt that it was a good deal then you could of course accept it. However, the other options available to you are:
dealing with this matter through mediation without the advice of solicitors;negotiations through solicitors without any disclosure; andan application to the court with the requirement for full and frank disclosure before a settlement could be reached.”
The husband was not happy with the wife’s actions. A letter was sent by Tilley & Co to Tynan Solicitors (who were acting for the husband) saying that “the wife had signed the Agreement under duress, [and that] she was withdrawing her consent and requesting the court be notified immediately”.

Despite this, a consent order was lodged with Barnet County Court and at a hearing in March 2009. DDJ Maunder refused to approve the consent order, seeking clarification of the amount of debts to be repaid from the sale proceeds of the family home, and adjourned matters to a hearing on 7 April 2009.

Following the hearing, the wife approached a different solicitor from Barnet Family Law, and requested that they amend the order and put into the correct format for the court to approve. Barnet Family Law confirmed the instructions in writing, which were in turn confirmed by the wife, who said:

“I know the risks for maintenance if Gary is overseas but I don’t think he will agree to capitalise my maintenance and I just want to bring this all to an end as swiftly as possible.”

Barnet Family Law corresponded with Tynan Solicitors and the revised document was submitted to the court. Tilley & Co, who had finished acting for the wife, sent their file to Barnet Family Law. This arrived on 6 April 2009, after the revised document was sent to court.

On 7 April 2009, the husband and wife attended Barnet County Court without solicitors and the court approved the consent order.

Subsequently there were further problems between the husband and wife and litigation ensued. The wife blamed Barnet Family Law and commenced proceedings for damages for professional negligence against Lesley Landsberg, practising as Barnet Family Law.

Professional negligence claim
The main thrust of the wife’s argument was that Ms Landsberg was negligent in the advice provided prior to the order being made. The wife thought that she would have had a better settlement if she had not agreed to the order. She further alleged that Ms Landsberg’s conduct of subsequent litigation was poor, as costs orders were made against the wife.

The central issue to the case was the scope of the retainer. Ms Landsberg’s case was that it was strictly limited to simply redrafting the order.

After a four day trial, the District Judge dismissed the wife’s claims on the following points:

Ms Landsberg acted under a limited retainer, namely draw up the matters agreed between the husband and the wife in a consent order which the court would approve;The wife’s instructions to Ms Landsberg required her to finalise the consent order swiftly before the husband departed to America;The wife did not on any occasion before 7 April 2009 tell Ms Landsberg that she had agreed to the terms of the draft consent order under duress from her husband, or that she wanted to resile from what she had agreed;Ms Landsberg received the file from Tilley & Co on 6 April 2009, which contained Tilley & Co’s letter dated 23 February 2009. This was the first intimation sent to Ms Landsberg of the wife’s wish to resile from the agreement. Ms Landsberg did not read through Tilley’s file on the day when it arrived;The wife was an intelligent woman, who knew her own mind and understood the legal issues. She did not appear to be subservient to the husband;Ms Landsberg performed her duties under the retainer. She was not under a duty to advise on the merits of the agreement reached between the husband and the wife;If Ms Landsberg was negligent, the wife’s claim would have failed because the damages claimed were speculative; andMs Landsberg handled the litigation after March 2009 competently. She was not responsible for the costs orders which the court made against the wife.
The wife was not happy with the decision of the District Judge. She appealed to the Court of Appeal on the basis that the retainer was not limited to the extent held and that Ms Landsberg was under a duty to give broader advice, which she did not perform.

Court of Appeal decision
The Court of Appeal examined the evidence and dismissed the wife’s appeal. Lord Justice Jackson confirmed that the defendant had been acting upon the basis of a limited retainer and was under no duty to give broader advice or warnings.

Lady Justice King agreed but emphasised to practitioners that now legal aid has been removed from financial remedy cases, individuals will expect and want solicitors to draw up agreements reflecting their wishes or other bespoke pieces of work. She recognised that this was invaluable for the smooth running of the court system and it would be detrimental to litigants in person and the courts if solicitors were not able to undertake such work for fear of being sued.

But King LJ highlighted that where a solicitor acts upon a limited retainer the supporting client care letter, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client’s specific instructions.

Comment
At TLT the Family team continue to offer both a full service to clients and where appropriate an unbundled service to suit a client’s requirements. Such requirements are always discussed and agreed in advance. Many clients are able to manage their own cases but prefer to have a legal advisor to hand if needs be.

This article first appeared on TLT website on 16 December 2015

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Divorcees must act fast to protect pension earmarking order

The front page of today’s Daily Telegraph warns that those with pension earmarking orders should take urgent advice to ensure that any financial order obtained in divorce or judicial separation proceedings adequately protects their interests.

An unexpected consequence of the recent pension legislation reforms is that those with earmarking orders could potentially be at risk of losing benefits unless their orders are drafted properly.

Earmarking orders typically provide for a percentage of the lump sum to be paid or a percentage of the income at the time of retirement. As the pension remained in the sole name of the individual, the control of when such benefits were taken were out of the hands of the individual with the benefit of the order.

At the time most pensions provided for a cash lump sum to be taken and for the remaining fund to be used to purchase an annuity. But the new reforms mean that individuals can now take out the whole fund subject to a relevant tax charge.

This could mean that an embittered spouse could seek to deprive the other by withdrawing the fund as capital so that no fund remains to purchase an annuity or income stream. This may seem extreme, given the tax consequences that may follow. But unfortunately some spouses will go to considerable lengths to prevent the other getting assets.

Earmarking orders were introduced in 1996 and at the time provided a way for spouses to secure an interest in the other’s pension benefits. These orders were replaced from 1 December 2000 with the introduction of pension sharing.

However, for those who divorced after 1 July 1996 but before 1 December 2000, or for those with a judicial separation after 1 July 1996 who secured an earmarking order, it is worth checking the terms of the order. This is to ensure that the pension benefits to be shared are adequately protected in light of the new pension freedoms, which were clearly not considered possible 20 years ago.

Please contact me on 0333 00 60847 or by email mark.sage@tltsolicitors.com with a copy of your order to ensure that the appropriate safeguards are in place.

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Enforcement of Family Financial Orders

On 11th March 2015, the Law Commission published a consultation paper on the enforcement of family financial orders in England and Wales. The Commission had been told that the current enforcement proceedings were “hopelessly complex and procedurally tortuous”. The laws were found in various statutes and rules of court which meant that their efficiency and effectiveness was limited against debtors who choose not to pay.

With the significant changes taking place in family law with the introduction of the single Family Court, but the reduction of availability of legal aid in private family proceedings this has placed an onus upon Government to ensure that there is a reform of the law which could offer a clear set of rules and hopefully the opportunity for individuals to access a full range of enforcement options without the need for multiple court hearings.

It is hoped that such reform would enable the court to consider enforcement against a wide range of assets. It could also allow the enforcement regime to work effectively when small amounts are owed so that parties are not forced to wait until large arrears are due before enforcing orders in their favour.

It should be noted that the consultation does not include the enforcement of child maintenance calculated by the Child Maintenance Service where additional remedies such as “disqualification of driving” already exist as a potential remedy of last resort.

The Commission is looking at the enforcement of spousal maintenance arrears, payment of lump sums, property transfers and orders for the sale of properties. The impact of non-payment of family financial orders is different to that of most civil debts. Most orders are designed to support the recipient and quite often children within a home. The non-payment can lead to other tensions within the family sparking off other litigation such as injunction proceedings for domestic violence and or Children Act proceedings.

The project which opened on 11th March will remain open until July 2015 after which the Law Commission estimates publishing a report with final recommendations to Government by Summer 2017.

To respond to the consultation you can download a copy of the consultation paper here

http://lawcommission.justice.gov.uk/consultations/enforcement_family_financial_orders.htm

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THE 3 STEP DIY UNDEFENDED DIVORCE FLOWCHART

With Legal Aid going many individuals may seek to undertake the divorce themselves, here is a very basic guide where couples have agreed. If in any doubt then please contact me.

STEP 1

Warning: If you are not domiciled or habitually resident in England or Wales then please seek legal advice.

The only ground for a divorce is that the marriage has irretrievably broken down.

To demonstrate this, the Petitioner (person issuing the petition) must prove one of the following five facts:
a) the Respondent has committed adultery and that the Petitioner finds it intolerable to live with the Respondent
b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent
c) The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
d) The parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted
e) The parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Warning: The parties must have been married for at least one year before commencing divorce proceedings.

Petition is prepared setting out basic details and background information upon the fact relied upon.  For more info click on the Guidance notes  

Once the papers have been completed they will need to be filed at a Regional Divorce Centre. You need to send:

1. The Petition in triplicate
2. Original marriage certificate – Warning: a photocopy will not be acceptable
3. Fee currently £410 made payable to HMCTS – If you are on a low-income you could be exempt from paying the fee. You will need to complete the Fee Exemption form

The court will issue the Petition by sealing the documents and adding a case number. It will:-

1. Post a copy to the Respondent enclosing an Acknowledgement of Service Form
2. Post a copy of the sealed documents back to you for your records
3. Retain a set for the court’s records.

The Respondent should within 8 days return the Acknowledgement of Service to the court, who will forward a copy to you.

Warning: this flowchart is for undefended divorces only and assumes cooperation by the Respondent. If there is no cooperation then seek legal advice. It can sometimes take the court a number of days to send the completed Acknowledgement of Service to you.

STEP 2

The Petitioner then exhibits a copy of the Acknowledgement of Service to a Statement in support of the Application for Decree Nisi and files it with the court – Warning there are 5 different forms depending upon which fact is relied upon, you will need to choose the one relevant to your petition.

Adultery

Behaviour

Desertion

2 Years separation

5 years separation

Once filed with the court it will consider the papers and if in order the District Judge will certify that the marriage has irretrievably broken down by issuing a certificate and will set a date for pronouncement of Decree Nisi. 

There is no need to attend court for pronouncement which will take place in open court. If costs have been claimed then attendance may be necessary if this has not been agreed.

Warning: Take advice regarding financial matters before obtaining the Decree Absolute as certain pension and other spousal benefits can be lost.

STEP 3

6 weeks and a day after pronouncement of the Decree Nisi – complete and send the Application for Decree Absolute form to the court requesting the decree nisi to be made Absolute.

The vast majority of divorces are undefended and require no attendance at court. An estimated timescale from start to finish will be 3-4 months depending on which area you live in the country.

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