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.

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.

This new requirement, which has been added to the Family Procedure Rules 2010 and will come into force on 6 April 2011, will require divorcing couples to arrange a mediation information and assessment meeting at their own expense. Couples whose divorce is publicly funded already have to mediate.

If the parties refuse to attend a mediation meeting together, separate meetings can be held. However, if the mediator or either party believes that mediation is unsuitable in their case, or if there is a risk to anyone’s safety, the parties can be exempted and the case will continue to court. This new protocol will not apply to cases involving domestic violence or child protection – these cases will progress straight to court.

The Government hopes that the use of mediation will allow couples the opportunity to amicably resolve their disputes, without the need for costly, stressful and time-consuming court hearings.

Whilst this move towards mediation should be broadly welcomed, it is not an overarching solution to all family disputes. It can only work if both parties fully embrace the process and come to the table as equals; it cannot work if one party wields more power, or if one party is being deliberately obstructive. If mediation doesn’t work, it will inevitably add more cost, stress and time to the divorce process – which is exactly what the Government is trying to avoid.

Regardless of whether proceedings are conducted through mediation or through the courts, divorce and separation will always be an emotional and painful event. It is therefore essential that couples consider all of their options before making such a decision.

If you would like to know more about your options, or want to discuss how the mediation process works, please contact me at amanda.melton@mablaw.com.

Under the proposals, separating parents will have to take more responsibility for the welfare of their children and pay for the state to help them reach agreement on child maintenance issues.

If the Government goes ahead with its proposals, parents will initially receive free help and information on the range of options available to them; they will then have to decide whether to make their own child maintenance arrangements, using the help they have received, or to use the statutory service for which there will be a £100 charge (or £50 for parents on state benefits, though only £20 will have to be paid up front.) Where individuals have suffered domestic violence, their case will be fast-tracked directly onto the statutory service and no payment will be required.

The Government hopes that these changes will reduce conflict between separating parents, by encouraging them to reach their own agreement on child maintenance and other issues related to their children, without state intervention.

The consultation will run until 7 April 2011.

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.

The Prenuptial Agreement was prepared in Germany, the Wife’s country of origin. It provided that there would be no provision for each other in the event of a subsequent divorce. The prime reasons for entering into the Agreement were that Ms Radmacher’s father wanted her to do so (the suggestion being that if she did not have a Prenuptial Agreement, he may disinherit her from family money), the fact that she was set to become wealthier following their marriage, and, according to her own position, that she wanted to be married for love rather than for her money.

The parties married in 1998, having entered into the Prenuptial Agreement and subsequently separated in 2006, by which time they were the parents of two children.

During their marriage, at his peak, the Husband was earning as much as £330,000 per annum but had subsequently given this up, returning to study. Needless to say, he sought, on divorce proceedings, to extricate himself from the Agreement, saying that the document had been prepared in German, without a translation; that he had not had independent legal advice; that there had been no disclosure of Ms Radmacher’s financial circumstances and, perhaps most importantly, that the document provided for no provision even in the case of severe financial hardship.

At the initial hearing, the Husband was awarded £5.56m to provide him with a home, capitalised maintenance for the remainder of his life and other smaller sums to meet his overall requirements. The reasoning given for this decision was that because the German Agreement was in existence, the Court had to look at the lower end of what they might otherwise order, in divorce proceedings exhibiting similar circumstances.

Ms Radmacher appealed this decision and the Court of Appeal agreed. They highlighted the problems of different approaches within Europe and, in particular, the fact that had the parties divorced in Germany or France, it is fair to say that Mr Granatino would have received nothing because of the existence of the standard property regimes which exist there. In England and Wales, however, where matters are dealt with under the common law system, the courts of course still have a very wide discretion.

It is pertinent to note that only a short while ago, namely 1995, the Court’s view was that contracts such as Prenuptial Agreements would be of limited significance.  By 2008, the Courts were saying that in cases of short marriage and with no children, a Prenuptial Agreement was of significant importance.  We are now in 2010 and the Supreme Court’s decision today seemingly says that the existence of a Prenuptial Agreement is able to override most other factors.

The earlier Court of Appeal decision took the view that whilst it was correct to discount the entitlement awarded to the Husband to the lower end of what would otherwise be the likely Order, this discount should be attributed solely to the period during which the children continued to be dependent. Essentially, therefore, rather than providing a home for Mr Granatino, together with maintenance for the reminder of his life, they provided that he should receive a property in which he could reside during the children’s minority but which would, at the end of that minority, pass back to Ms Radmacher. In addition, the capitalised maintenance element was still awarded but limited to a period during which the children would remain dependent.

Historically, the courts have been reluctant to change the law in this area, feeling that it was a matter for legislation (currently under review by the Law Commission). However, the courts have for some time now been mentioning changing morals and the requirement of the law to keep up-to-date with modern life. Gradually, they have taken a less “paternalistic” approach and obviously there is also the need to bring England and Wales into line with the rest of the world, particularly Europe. In this case, the Court has taken the matter way beyond any previous attempts to achieve this. In this particular instance, there were many factors which could have been used by the Court to find in favour of Mr Granatino, not least the fact that he had not received independent legal advice, did not know the extent of the Wife’s assets and does not appear to have even had the document translated before he signed the same. What is even more important is the fact that the Court has essentially held, that the existence of the Prenuptial Agreement, is such that it is no longer fatal to its existence even if there is no provision for a parent with children. This case essentially provides for Mr Granatino to receive what would ordinarily be made available to the parent of an unmarried couple, for example, under a Schedule 1 claim, representing the only option available to unmarried parents seeking provision for the children of that relationship.

The decision will highlight concerns, not least because the instant case is perhaps not the most usual. Mr Granatino was not so weak as to be vulnerable. In most cases, where Prenuptial Agreements are entered into, in fact the weaker party would be a Wife with limited earning capacity and perhaps one or two children, with the vast majority of the wealth, or indeed all of the wealth, being attributed to her Husband. In those circumstances, where a Wife, as the weaker party, enters into such an Agreement, is it realistic or indeed fair for that to be upheld by the Court? Her circumstances are of course considerably at variance with those of Mr Granatino, who essentially was at one stage an extremely successful individual in his own right.

It will, in those circumstances, be interesting to read the full Judgment and analyse the Court’s reasoning behind the decision in this matter.

Whilst not directly asked to consider cost cutting by ministers, this is clearly one of the objectives of the Review. David Norgrove, Chair, suggested that it may be appropriate for the introduction of a compulsory mediation stage prior to financial and custodial hearings. With the family justice system currently costing in excess of £1.6bn, Mr Norgrove anticipates that this approach could see a reduction in legal aid costs of up to £100m.  The average childcare case lasts 56 weeks and often involves experts.  The hope is that mediation will see this timeframe significantly reduced and less experts being instructed.

Another alternative to mediation is Parenting Classes which has been trialed in some areas in the UK already. These have not been without problems, however, as it can prove costly for parties to fund the classes. Higher levels of participation would be required to see such classes being cost effective.

The Review was, however, intentionally asked to avoid considering the issue of pre-nuptial agreements becoming binding, which was canvassed by the Conservatives prior to the election.  Furthermore, it was not to discuss the possibility of no-fault divorces, nor look at the rights of cohabitants as presented by the Liberal Democrats in their campaign manifesto. 

The door closed on the consultation period on 30 September 2010 and an interim report is due early 2011, although no date has been set for the final report as yet.

“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.”