The case concerns the contact arrangements for a two-year old boy who has a gay father and a lesbian mother, who lives with her partner. The boy lives with his mother, but the father, who was a sperm doner, wants to pay a fuller role in his son’s life and is seeking contact with him; however, the mother claims that prior to conception, the father had agreed that the mother and her partner would be the main parents of the child and that he would not seek to enforce his paternal rights.

This is an important case, so the Court of Appeal has reserved its decision until an unspecified later date.

The article looks at both the Government’s recent announcement that it intends to compel the courts to ensure that each parent is able to see their children regularly (or even equally) following a separation or divorce and the Norgrove report which advised against a presumption of equality for parents.

So who is right?

Whilst the number of divorces in the UK is generally on the decrease, divorces amongst the over 60s is on the rise. But why?

I recently had an article published on this issue in Mature Times, and it can be read here.

The couple had been married for over 25 years and had two adult children. Some years ago the wife had a windfall of some £500,000 on the lottery. She used part of these funds to purchase a home for herself and her family, including her husband. He lived in the family home for about three years and the couple then separated.

Within the divorce proceedings, Mr Mostyn was asked to decide whether the lottery win was a matrimonial asset or not. If it was, arguably it was available for division in the usual way with the starting point being a 50:50 split. If not, then arguably it could be ring-fenced.   

The Judge decided that at the time it was received it would have been a non-marital asset, but that immediately it had been used to purchase the family home, that element of the windfall had been converted into a marital asset. Luckily for the wife, the Court used its discretion to take into account the fact that the husband had made no contribution to this asset and had only lived in the house for three years. He was therefore awarded only £85,000 out of a potential £500,000 asset. 

The question is, where does this leave us?  

The case seems to suggest that if the wife had not used the money for her family, she would have been able to retain the money on divorce. Taking it one step further, does it not suggest that a husband using money to gamble - rather than to provide for his family - could then benefit from the subsequent windfall at the expense of his family? Even more concerning, does it not suggest that whilst the legal profession are doing their best to avoid conflict, this decision rather suggests that the arguments over who should be financially responsible for the family should start whilst they are still happily married?

This important judgment has understandably provoked a lot of interest and concern amongst lawyers and the general public alike (particularly if you happen to be a lottery winner!)

Following the publication of the judgment, I was asked by The Daily Telegraph newspaper to comment on the decision (click here to read it) and on Tuesday 18^th October discussed the case and its implications with Vanessa Feltz on her BBC London radio show.

We will have to wait a while to discover the full consequences of this ruling, but it may very well encourage individuals to keep their assets separate from their spouses/partners.

If you have any concerns about non-matrimonial property and/or how the judgment may affect you, please contact me at amanda.melton@mablaw.com.

The new rules set up an EU-wide system for facilitating the recovery of maintenance payments when one parent lives abroad and refuses to provide financial help to the child(ren) and/or the former spouse. However, the definition of ‘maintenance’ is much wider than periodical child or spousal maintenance payments: ‘maintenance’ has been interpreted by the European Court of Justice as relating to the “needs” of the spouse or child(ren). This means maintenance could cover, for example, transfers of real property.

The vast majority of maintenance claims involve children and, in the past, it has proved difficult to recover unpaid child maintenance from a parent living in another EU country. However, the new rules will now enable the recovery of maintenance in cross-border situations, meaning parents will no longer be able to flee abroad to avoid making payments.

In most cases, a decision on maintenance obligations in one EU country will be enforceable in another one without any further procedure, such as registration. This should speed up procedures and save parents money. The rules will also set up laws on co-operation between central authorities, to provide assistance in relation to maintenance applications.

However, whilst the new rules simplify the enforcement of maintenance agreements and orders across the EU, there are potential problems. For example, what will happen in relation to decisions between an EU member state and a third state? Could English courts be prevented from making a maintenance order if couples have entered into a foreign prenuptial agreement or marital contract?

We will have to wait and see the true impact these new rules will have on the English courts.

Baroness Deech shared the view that the current state of the law is unsatisfactory but showed greater concern for the gender issues, and offered the opinion that a Commission was a poor alternative, taking too long and covering moral as well as legal issues.

Where John Hemming and the speakers were agreed was in the observation that Parliament is noticeably reluctant to engage in this area, crying out for reform. Why is that and what form should that reform take?

To spark off your comments, my own view on the former is that its not a vote winner but a potential vote loser and any MP raising their voice on the subject in Parliament would have to anticipate a gruelling examination of  his or her private life as such a debate hots up!

Anyway, with only the Law Commission’s report in 2011 on marital agreements to look forward to as a signpost to reform, if you’re not happy with the current law on marriage, separation and divorce, this Parliamentary Group looks like one of the better focus points at the moment, so contact it, attend its meetings and express your views – it can’t do any harm! As far as I know, until the movement gathers pace, your contact point is John Hemming MP,  House of Commons. See you at the next meeting.

This continues the trend in recent years of grandparents picking up increasingly more of the burden, both financially and in terms of time.

Unless your kids are really demanding, you probably won’t need to consult your solicitor to get you out of babysitting for the little darlings.  However, if you are a grandparent providing financial support (for example, school fees) there are a number of steps you can take to reduce the cost of helping.

For example, many grandparents put money or investments on trust for their grandchildren.  Any growth in the fund gives rise to tax on the grandchildren (which in most cases will mean that there is effectively no tax).  This may also be effective inheritance tax planning.

If you would like to discuss tax planning to provide for your grandchildren, please contact me or any member of the Wealth Management team on 01923 20 20 20.

If you miss the deadline it could be costly, as paper returns filed after this date could mean a £100 penalty.

An alternative to paper-filing is to file your return online, which benefits from a January deadline.

If you would like assistance in preparing and filing your tax returns, please contact James Odds on 01923 202020 or james.odds@mablaw.com.

The Treasury have just now issused the following press release, which we will consider in more detail and comment on in due course.

Financial Secretary to the Treasury announces changes to restricting pensions tax relief

Financial Secretary to the Treasury, Mark Hoban MP, announced today that the annual allowance for tax-privileged pension saving will be reduced from £255,000 to £50,000, and the lifetime allowance will be reduced from £1.8 million to £1.5 million. This will replace the complex proposal legislated for by the last Government in the Finance Act 2010.

This measure will raise £4 billion per annum in steady state and will help reduce the record Budget deficit that this Government inherited. It will be targeted at those who make the most significant pension savings. An annual allowance of £50,000 will affect 100,000 pension savers 80% of those will have incomes over £100,000.

The Government is committed to protecting individuals on low and moderate incomes as far as possible. To protect individuals who exceed the annual allowance due to one-off “spikes” in accrual, the Government will allow individuals to offset this against unused allowance from previous years.

We will also consult on options enabling people to meet tax charges out of their pensions in November.

In order to protect the public finances it is necessary to introduce the reduced annual allowance from April 2011. The Government plans to introduce the reduction in the lifetime allowance from April 2012.

Mark Hoban said:

We have abandoned the previous Government’s complex proposals and developed a solution that will help to tackle the deficit but not hit those on low and moderate incomes. We have taken a tough but fair decision.

The Coalition Government believes that our system is fair, will preserve incentives to save and – compared to the last Government’s approach – will help UK businesses to attract and retain talent.

“Respect” to LSE’s marketing because somehow, despite the dull label, this caught the attention of the Press and we had the Dail Mirror tell us “Home help husbands stop splits” (14 May 2010), The Independent “Divorce less likely if fathers help out” (Ellen Branagh, 14 May 2010), The Daily Telegraph “Divorce twice as likely when husbands neglect housework” (Martin Beckford, 14 May 2010) and Timesonline “Husbands who help in house less likely to divorce” (13 May 2010). Significant and serious stuff then.

Seeking further detail, partly in the hope of  having some of my better personal traits highlighted and partly of adding to my already significant  battery of gratuitous after-the-event advice for clients, I found and read a copy of the 23 page report. Leaving aside some dodgy spelling this side of the Atlantic (“labor” in various manifestations) and quite a lot of jargon (try on ”cross-sectional and time-series studies” for size), my first discovery was that the data  related to heterosexual married families with small children (“The British Cohort Study”); no lessons there for the childless then.  Secondly, the couples concerned had their first child (there were 16,000 such children  just in case that thought crossed your mind) during one week in 1970, 40 years ago (the same year Mick Jagger, as he then was, was fined for cannabis possession and teenagers could vote for the first time) ; count out the under 60s then. Thirdly,  the data relied on was gathered from the mid-1970s to early 1980s in 3 tranches 1975 (Microsoft was founded as was Jamie Oliver), 1980 (British Leyland launched the Metro and Mr and Mrs Button launched Jenson) and 1986 (witnessed the Chernobyl disaster and the birth of Lady Gaga); anybody included in the study was divorced over 25 years ago! Allowing for losses of various sorts along the way and excluding (or including) certain couples for reasons  explained in the paper such as those couples not married at the birth of their first child, but which I confess I mostly didn’t comprehend, the sample number of families used in reaching the study’s final conclusion was cropped to 3,540; not, you might think, a large number from which to draw many or significant patterns.

What contribution did those qualifying husbands make? Turns out that was defined as the mother in the couple admitting that the father had carried out one or more of four mostly child-related tasks (I didn’t say chores) in the week before the survey! The four tasks were helping with the housework (putting out the dustbin?) or shopping (buying the beer?), helping looking after the children when the mother was doing something else (“Have you finished your bath yet, this one’s crying?”), helping with babysitting in the evening (“Sit down and watch this programme”) and helping put the children to bed (“Go to bed!”). Significant input then.

For those of you still reading this, and if I was handy at statistical analysis I could probably drum up a prediction of a very small number, things get a little more exclusive yet. Turns out the remaining couples were subdivided into different categories, the “control” (that sample against which all the other categories are measured) being the couple with a mother who hasn’t worked since the first child was born, who was aged 21 when she married (!), had a daughter for the first birth and subsequently gave birth to a boy ( 48% of the cases).  The next category was couples where the mother worked full-time (4.5% of the cases), the third category a full-time working mother where the father was credited with doing three or four of the task types (25% 0f the cases) , and the last being a couple where the mother works full-time, the father does the four task types and he looks after the children whilst the mother works (14.5% of the cases). The control group had a predicted probability of divorce of 0.033, the group where the mother works full-time (and the father’s employed) 0.065, the group where both parents work full-time and the father does all four tasks 0.045, and the group where the mother works full-time and the father’s unemployed looking after the kids 0.032. That’s it then, that’s where the recommendation that housework saves marriages comes from!

Call me cynical perhaps, but that’s some fairly over-extracted  statistical interpretation, and only one of several possible conclusions, all of historical interest. You might just as well say that if you didn’t want to get divorced in 1975 and you want to have children, don’t let their mother return to work! I  was more taken with the extrapolation that in 1975 a significant 51.39% of those wives questioned reported that their husbands did none or no more than one of the four tasks identified in the week before they were asked!

Reportedly, one million children are denied contact with their grandparents, following family feuds, separation, divorce or adoption.  On the other hand, it is estimated that there are around 200,000 grandparent cares, keeping those children out of local authority care of some sort.

In a case full of cringeworthy allegations Sala said she had known Reeves since she was a child as Marty Spencer, that over 25 years he had fathered her 4 adult children (whilst disguised as her husband) and should pay her C$150,000 a month child support, backdated to 1988.  Aside from this involvement in her life, Sala swore Reeves/Spencer had helped her move house and that she had recently seen him in her local McDonald’s and No Frills grocery store.

Reeves, ever the reasonable man, apparently agreed to DNA testing, the results of which confirmed – guess what? Not the father.  Sala’s response? Faked results. The Ontario Court judge, Fred Graham, felt it safe, at this somewhat advanced stage, to dismisss Sala’s case!

Could such a thing happen here? Hopefully not. Sala’s evidence bears all the hallmarks of a mentally troubled person, whose case might better have been dealt with, on these facts, by a psychiatric report and some basic diary cross-referencing.

Emma, 13, lives with her father, who has been threatened by the CSA with enforcement proceedings to recover the £43,000 of arrears of child maintenance said to be owing to Emma’s mother since 2006.

The Daily Telegraph of 10 January 2010 reports that Mr Chapelhow has received a letter telling him the Agency will take no further action until Emma is 16. As Mr Chapelhow observes, this is a mixed blessing. Emma now fears her father will be imprisoned on her 16 birthday. Unsurprisingly, Emma is reported as saying she will proceed with her threatened action against the CSA in the meantime.

The UK resident British mother of a 9 year old British boy, living with his British father ‘s relatives in Pakistan since 2004, successfully overturned an earlier decision of the Court of Appeal that had concluded that an English court did not have jursidiction to hear such a contact application.

Lady Hale observedthat “…the difficulties of enforcement must also be taken into account…The court is bound to view with some scepticism the protestations of a father, who has the benefit of an order that the child is to live with him, that he will be unable in practice to secure the child’s compliance with an order for contact with the mother. It may be so but it is not very likely.”

Lady Hale, delivering the Supreme Court’s conclusion, said that there was nothing in articles 12.1 or 12.3 of Brussels II Revised to limit the Court’s jurisdiction to children resident within the EU, the father having unequivocally accepted that jurisdiction before and after the proceedings began.

He warned of dire consequences if the current under-resourcing of the family justice system continues. “In my judgement, the time has come for the judiciary to make clear the effect that this lack of sufficient resources will have in the cases for which they are responsible.

“Government must realise that, if it fails properly to fund the system, there will undoubtedly be greater delays, poorer justice, too few judges, and many litigants in person left to struggle on their own… But above all – and this is without doubt the most important point – it is the children who will suffer.”

Lord Justice Wall concluded: “If all this happens, politicians should not blame practitioners. We have done what has been asked of us… Politicians are very happy to take the credit when things go well, and equally reluctant to take the blame when they go badly. But let there be no mistake; if the Family Justice System is not properly funded it will implode, and it is the children who will suffer most.”