NEW FAMILY MEMBER

We’ve welcomed a new associate solicitor to our team, who will also be contributing to our blog.

Kathryn Hulmes, 32, from Bury, brings experience in dealing with international child abduction cases involving Hague Convention proceedings and advising clients when the Hague Convention does not apply. 

Kathryn is also an expert in divorce, financial settlements, cohabitation disputes, children matters and domestic violence.

Kathryn has returned to the north following seven years at a firm in West Sussex.

She is an excellent addition to the team.  Her experience in international child abduction cases is new to the firm and something that we plan to incorporate into our service offer.

With the UK becoming home for an increasing number of foreign nationals and a rise in international marriages and relationships this is an area of work that we foresee growing in the future and Kathryn’s track record  provides us with a solid foundation from which to build a client base in this area.

Stay tuned for future blogs from Kathryn.

Sally Leaman

Understanding the impact of Universal Credits

Universal Credits are set to replace a variety of existing benefits next month, with pilots running in a handful of regions. The new regime is the biggest overhaul of the benefits system in decades and is intended to streamline the benefits system.

It is important that those divorcing and claiming the main means-tested state benefits including tax credits understand how the new Universal Credit regime is likely to impact on them when negotiating a financial settlement within divorce proceedings, in particular if they are seeking to claim spousal maintenance.

Spousal maintenance is awarded if one spouse cannot adequately support themselves without financial support from the other spouse after the divorce.  Under the current benefits system, those receiving Tax Credits for example, would not suffer a reduction in their Tax Credit award simply because their ex pays them spousal maintenance; this is however all set to change under the new Universal Credit system.

If a wife, for example, is reliant on her Tax credits it is important that she is aware that under the new regime, her Universal Credit award will be subject to a pound for pound reduction by the amount of spousal maintenance she receives from her ex. Child maintenance payments received by the wife on the other hand will not reduce her Universal Credit award.

The Universal Credit Regulations suggest that if a spouse receives significant spousal periodical payments, then this may mean that he or she is unable to receive Universal Credit or that the Universal Credit award may be claimed only for a limited period. This must be considered when calculating an appropriate amount of spousal maintenance where a Universal Credit award will also be relied on. If claiming spousal maintenance and Universal Credits, there may be the possibility of receiving greater child maintenance payments (which will not reduce the Universal credit award) with lesser spousal periodical payments with a view to avoiding a reduced Universal Credit award.

At this stage there will be an element of crystal ball gazing to predict the payments that will be received after the new regime has been implemented or when the changes will take effect regionally, however it is important that recipients of a means tested benefit such as Tax Credits take account that a spousal maintenance award made in divorce proceedings will impact on their ability to claim the new Universal Credit.

Kerry Russell

Associate Solicitor at Gorvins.

Gorvins Fashion event at Angela Beers

We co-hosted a glamorous night to remember at the North West’s leading ladies fashion store Angela Beer in Bramhall yesterday.  Here are some pictures from the night.  Thanks to all the generous attendees who helped raise over £650 for Claire House Children’s Hospice.

 

 

 

Prenups...not just for celebrities

It has been reported that Catherine Zeta Jones and Michael Douglas are to split after 13 years of marriage. Although the couple are yet to confirm plans to divorce, it is reported that they have signed a Prenuptial Agreement ("a Prenup") which should assist them both on making the financial settlement more straightforward should they go on to divorce. In happier news it has been reported that Zahn Malik of boy band One Direction is to marry Little Mix band member Perrie Edwards. With the 1D boys having an estimated combined value of £26.33 million and with a new movie just out, the boys are expected to earn an estimated $1 billion (£640 million) by the end of this year and Malik would therefore be well advised to consider a prenup should the worse happen.   A prenup is not just for the rich and famous. It is a formal agreement entered into by a couple before they marry or enter into a Civil Partnership which sets out what is to happen to their assets in the event of a divorce or dissolution. Prenups may not be considered romantic however a properly drafted agreement may offer greater certainty to a couple should they go on to divorce. Prenups, although enforceable in most US States and elsewhere in the world, are not legally binding in England and Wales. In 2010 however the Supreme Court in the case of Radmacher -v- Granatino held that prenups should be persuasive and ought to have a significant bearing on the financial outcome of a divorce as long as they have been properly drawn up and would not be unjust to either spouse. Divorce courts have a very wide discretion when it comes to dividing assets and courts tend to consider the value of assets in existence at the time of the divorce and divide those assets between a couple in light of their respective needs and those of any children and in line with other guidelines set out by the divorce laws and case law. This can often lead to an uncertain outcome with the wealthier spouse potentially having to give away a substantial amount of his or her wealth to the other spouse. A prenup, if properly drafted can therefore offer some financial safeguards in the event of a divorce and may help in avoiding lengthy and costly legal disputes.   Kerry Russell Associate Solicitor - Gorvins

Divorce makes you happier apparently….

Researchers at Kingston University have recently published the results of a study in the journal Economica which shows that women are significantly happier for up to 5 years after their divorce.

Men apparently feel slightly happier after their divorce, but the increase in happiness is not as marked as for women.

The study involved 10,000 participants over 20 years who were asked to rate their happiness before and after major events in their lives. Divorce it would seem makes you happier.  The study revealed that unemployment is the one major life event which has a long term negative impact on the well being of both men and women, surprisingly more so than being widowed.

Commenting on why divorce may make women happier than men, Professor Yannis Georgellis of Kingston Business School said “One explanation could be that women who enter into an unhappy marriage feel much more liberated after divorce than their male counterparts.”

The ONS latest statistics on divorce reveals that the most common ground for women to seek a divorce is unreasonable behaviour; 54%  of divorces granted to women are on this ground as against 36% of divorces granted to men on the same ground. Perhaps these statistics explain a little why women’s perception of divorce is different to men’s.

Either way the findings of this study show that not only is there life after divorce, but it should be a happier life too.  

 

Sally Leaman

Head of Family Law Gorvins

The Quickest and the Biggest UK Divorces ever?

It seems as though you can barely open a newspaper or magazine nowadays without reading details of another celebrity couple to divorce. Nigella Lawson’s divorce was reported recently as being granted only weeks after pictures of Charles Saatchi apparently assaulting her outside a London restaurant made headline news. Often when the press reports a divorce as having been granted it is referring to the decree nisi in the divorce rather than the decree absolute which finalises the dissolution of the marriage. Either way the Lawson / Saatchi divorce has proceeded very quickly, and this is no doubt attributable to the fact that neither party is making a financial claim against the other.

The Law Society has recently issued a warning that celebrity divorces are unrealistic for the rest of us, and as  most divorces will involve a financial claim being made (even if that is ultimately settled by agreement) parties should not assume their divorce can be finalised with the  same speed as Lawson and Saatchi.

In the same statement the President of the Law Society warns that a cut price online managed divorce could end up costing more in time, money and stress in the long run. He advises it is crucial to take advice from a specialist family law solicitor particularly where there are children and / or financial assets  where an online process is not going to give you important tactical advice as to the options open to you.

Also making headlines this week is a £54 million divorce which has just been ordered in the High Court and which is being described as the biggest divorce pay out in contested UK proceedings. As yet no further details of the case have been released, although I would hazard a guess given there have been little prior press reports about the case that for once it is not about a celebrity couple’s separation.

Sally Leaman

Head of Family Law Gorvins

‘Til death us do part from our matrimonial assets?

A recent case that appeared in the media in May of 2013 highlights the real need for caution and attention to the fine print when it comes to keeping a claim to matrimonial assets alive.

The case was that of a 71 year old man, Mr McIntosh, whose divorce had been made final by decree absolute in 2009 after a 16 year marriage to his wife who later died in 2011.

At the time of the divorce, a financial settlement order was also made by consent that provided for a “clean break” whereby each spouse was to retain those assets already held in their sole names and not be permitted to make any further financial claim against the other – or the others estate – in the future.  This is not an unusual type of order to see.

The oddity here was that Mr McIntosh claimed he did not realise that he was divorced and did not know what the papers he had signed were, because he struggled with literacy.  Supportive of this stated belief was the fact that Mr McIntosh and his wife had continued to live together until Mrs McIntosh’s later death from cancer some two years after the divorce.

The impact upon Mr McIntosh of being both divorced and having the financial settlement order, was that there was no legal basis for him to claim anything from his former wife’s estate.  His former wife’s estate in this case included the matrimonial home itself which she had purchased in her sole name and which is now worth in the region of £350,000.

The house went to Mrs McIntosh’s estate on her death which means that Mrs McIntosh was either intestate or, if she had made a Will, subsequent to the divorce, that it had not made provision for her former spouse.  As there had been a divorce, Mr McIntosh was not her next of kin for intestacy purposes.

Was there anything Mr McIntosh could do?  The answer is no, albeit he did attempt to do so by making an application to the Court to have the decree absolute of his divorce set aside.  His application was refused and indeed such applications would very rarely be granted.  The exact reasons of Lord Justice Ryder who dealt with the matter have yet to be given. 

What should be taken away and filed from this case?

1.    Do not sign anything that you do not fully understand.  You would fully expect a Solicitor to say it, but it makes absolute sense to take independent legal advice first to ensure a reasonable and fair outcome (which may or may not include a right to claim after the other spouse’s death).

 

2.    If you do want to achieve a full and final financial settlement from a spouse then be aware that it is a two step process that requires both (i) a concluded divorce where a decree absolute has been pronounced and (ii) a financial settlement order that has been approved and sealed by the Court.

The reasons for requiring both of these are:-

·         It is not possible to have a financial settlement order without a divorce as a Court cannot consider or approve a financial agreement reached as a Court Order until such time as the mid-point (decree nisi) of a divorce has been reached and

·         It is only the decree absolute of a divorce that makes any financial order final and binding

It is for the above two reasons, that Mr McIntosh’s representatives attempted to attack the decree absolute itself

3.    If you do want to benefit your former spouse or provide for them upon your death but have made no specific provision for this within a financial settlement order (which is possible) then look to your Will provision and be aware that a divorce has the impact of rendering any pre existing Will that benefits your former spouse as void insofar as any reference to that individual appears upon the face of the Will.

So no, it is not death alone that parts you from your matrimonial assets, it could well be a failure to obtain and act upon sound legal advice! 

Nicola Fraser

Senior Associate
Gorvins Solicitors

Avoid a Holiday Headache

It is that time of year…the school summer break and a chance to take the children abroad on holiday. Caution however needs to be exercised in the run up to a family holiday abroad as many parents are unaware of the legalities involving the removal of a child from the country.

 

Disputes in relation to the family trip abroad tend to peak at this time of the year. It is common for separated or divorced parents not to know that they are required to obtain the permission of the other parent or person with parental responsibility regardless of whether it is for a day trip to the continent or a fortnight’s trip to the States.

 

If a child is taken abroad without written permission from the other parent or person with parental responsibility then technically this is child abduction and it is entirely possible for the other parent to instigate child abduction court proceedings because of what is nothing more than an innocent family holiday.

 

If a parent or person with parental responsibility refuses to provide their permission then a court application for permission to take a child on holiday aboard without the others permission will be necessary. When considering such an application, the court will be expecting to see documents confirming the travel plans, reasons for the trip and contact details for the travelling parent and child.

 

It is important that a parent or person with parental responsibility does not automatically assume that they have the permission of the other parent or that permission is not required. Written permission should always be obtained well in advance of any proposed trips abroad as last minute disputes may cause upset to the child and may increase the acrimony between the parents which may have a detrimental effect on the child in terms of agreeing the future arrangements for contact.

 

It is important to note that the situation is very different if a mother alone has parental responsibility and there is no Residence Order concerning a child. If this is the case, permission from the other parent is not strictly necessary although it is always good practice to consult with the other parent. Where a person seeking to take the child abroad has a Residence Order, they are able to take the child abroad without the written permission of the other for up to one month, again however, good practice would be to consult with the other parent.

 

When dealing with children issues, it is extremely important to seek specialist legal advice at an early stage to ensure that there are no difficulties or last minute changes to the family holiday arrangements.

 

Kerry Russell

Divorce rates soar among baby boomers

The results of a recent study I saw showed some interesting facts about an increase in divorces in the baby boomer generation.  It stated that the number of over 60s getting divorced is rising each year, with the number of men in their 60s getting divorced having doubled in 20 years.  There are many reasons which may explain this. People are living longer and enjoying a longer retirement and may not be prepared to put up with an unhappy relationship at a time when they should be able to enjoy themselves without the demands of work or growing children.  Sometimes it can be the reality of spending every day together, precisely because such demands have gone, that can make couples realise they no longer have anything in common.

It is said baby boomers hold 80% of the UK’s wealth and many couples will decide it is not worth struggling on in a difficult marriage when there are sufficient assets for them both to go their separate ways. Whilst it is not true of every case, some clients I have seen in this situation are able to manage their divorce in a very amicable way and are able to remain good friends afterwards. People are more aware now I think of the effect of stress on their health and well being, and are not prepared to put up with a stressful relationship which is making them unwell. Younger couples may decide to stay together for the sake of the children or because financially it is difficult to separate to two households, but where the children have grown up and a good asset base has been built up, those practical considerations are no longer a concern.

A report by Relate stated older people are far more likely to be living on their own than previous generations and were concerned that could lead to isolation and loneliness. Whilst obviously I would not want to detract from those concerns, I have to say my experience of clients in this generation going through divorce is that they  seem to have a strong network of friends and family around them and I often see grown up children giving a lot of support to a parent going through divorce proceedings. Given the rise in divorces of this age group they are also more likely to have other friends or relatives that have been through a similar experience.

 

Sally Leaman

A potential game changer?

A recent high court battle has set a precedent when it comes to including business assets in a divorce settlement.

Michael and Yasmin Prest divorced in 2008 after 15 years of marriage, during which they had four children.

Michael Prest’s limited companies, in the Petrodel Group, were the legal owners of several properties and a court battle has taken place to rule whether these properties should be included as part of the husband’s assets in the divorce settlement.

Despite the fact that the properties were legally owned by the companies and not the husband himself, the High Court initially decided that the properties were assets which the husband did have an entitlement to and therefore awarded the wife various properties as part of the divorce settlement.

The Petrodel Group successfully appealed this ruling at the Court of Appeal, only for the wife to have that ruling over-turned at the Supreme Court. It upheld the original decision that various properties owned by the Petrodel Group of Companies were to be transferred to the wife in order to satisfy her £17.5 million award.

As the husband had purchased the properties using his own funds the Court decided that he did have an interest in them and thy therefore should be considered in the settlement.

Having looked into this case, it is pretty unique. The Supreme Court took a lot of particulars of this case into account and inferred that the husband’s reluctance to comply with court orders and his behaviour during the marriage played a part in its decision.

However, this ruling shows that putting assets into a company structure doesn’t necessarily mean they are protected against divorce claims.

This is a fair ruling and shows that a dishonest party cannot hide assets behind company structures. But it’s also important to stress that the ruling has not ignored the principles of Company Law, but it clarifies the law on the circumstances in which courts can lift the corporate veil.

When going through a divorce with a spouse who has a business involvement, it is important to get specialist family law advice.

Kerry Russell

A victory for common sense….and a cautionary tale!

A recent high profile case has brought to light the importance of having a financial clean break order as part of a divorce to avoid unwanted claims from an ex-spouse later down the line.

Dale Vince, a self-made millionaire, thanks to his green energy company Ecotricity, was recently taken to court by his ex-wife of 20 years who was seeking a capital sum and lifelong maintenance, despite the fact Mr Vince made his fortune many years after the couple divorced.

The couple married in 1981, when both were receiving state benefits.  They had a son together and the wife had a daughter from a previous relationship.  They then separated in 1984 and their divorce was finalised in 1992.  Both moved on to other partners who they had children with, Mr Vince having married his new partner in 2006.

 

Mr Vince’s company was launched in 1995 and is now estimated by the Sunday Times Rich List to be worth £90m.

The wife brought a claim for financial remedy against Mr Vince in May 2011, 18 years after they divorced.  Despite her delay in bringing the claim and the lack of any marital assets at the time of the separation the High Court ordered in December 2012 that Ms Wyatt’s claim could proceed to trial.  It also ordered that Mr Vince fund her legal costs of £125,000 to bring the claim.  But in May 2013 the Court of Appeal reversed that decision, struck out Ms Wyatt’s claim and reversed the order for payment of Ms Wyatt’s legal costs.

Two things really strike me about this case:

1. The court should not allow people to be harassed by claims for financial relief that were issued many years after the divorce and had no real prospect of success.
2. There needs to be a clear and accurate financial order at the time of divorce proceedings.  A court order to be dealt with during the divorce process, which records the way in which any marital assets are to be divided between the parties and, more importantly, the dealing of future financial claims would have avoided the costs of the court proceedings.

Thankfully, common sense prevailed in the end and the wife was criticised by the judge for bringing the case to court, but it shows that this kind of action can happen, so people do need to protect themselves from future claims during their divorce. A millionaire lifestyle may be in your future….make sure you protect it!

Kerry Russell  

There's no such thing as a 'quickie divorce'

Myleene Klass is the latest in a long line of celebrities reported to have completed a ‘quickie divorce’ by the press, with media quoting that it took just 100 seconds for a judge to end her marriage to former partner Graham Quinn.

While the media loves these stories, the reality is that there is no such thing as a ‘quickie divorce’.  So although Miss Klass’ marriage was officially ended in 100 seconds last week, it will have been months in the making.

Whether you’re a multi-millionaire celebrity or your average Joe the process of getting a divorce in England and Wales is exactly the same: 

The person seeking a divorce (the Petitioner) must prove that their marriage has ‘broken down irretrievably’. This can be done by providing proof of one of the following: adultery, unreasonable behaviour, two years’ desertion, two years’ separation with consent or five years’ separation.

For any of the above reasons, the Petitioner will need to provide examples to the court.

Once the divorce request, known as the Petition, is lodged with the Court the other spouse, known as the respondent, receives a copy of it from the court and is given seven days to contest or agree to the divorce.

Following this, the Petitioner can apply for the first stage of the divorce process – the decree nisi, which usually takes a couple of months, depending on the court. 

A judge will then pronounce it in court alongside a number of other cases – this is the part the media picks up on.  Then there will be a further wait of six weeks and one day before applying for the decree absolute.  Once this has been pronounced they are legally divorced and both parties will be issued with a certificate.

Finalising finances

It’s worth pointing out that the above process doesn’t include dividing a couple’s assets, which is often the more complicated and time consuming element of a divorce.  This is why the skills of a specialist family lawyer are most needed in order to complete the divorce successfully and protect their client’s assets.

The ‘quickie divorce’ simply doesn’t exist, but a great family lawyer will complete their client’s divorce efficiently, while always protecting their best interests.

Kerry Russell

MYTH BUSTING

When clients first visit me to discuss getting a divorce I’m often surprised at how many myths surround divorce.  There are quite a few untruths that seem to have become considered ‘fact’, thanks largely to the media   

So, here are my top ten divorce myths and the facts behind the fiction…
 
1.  You can become a ‘common law spouse’ by living together for a certain amount of time.

 Untrue – there is no such thing as a common law spouse. You only become a spouse by going through a legally recognised ceremony of marriage

 2. The divorce finalises any financial claims and once decree absolute is pronounced my ex-spouse can’t make any claims against me.

 Untrue – the divorce dissolves the marriage, however to achieve a binding financial settlement a financial order needs to be made by the court (which can be by consent). Without that order your ex-spouse may be able to make a financial claim against you potentially months or even years after decree absolute.

 3. If I am already separated from my spouse when I start a new relationship that isn’t adultery.

Untrue – if you have a sexual relationship with another person whilst still married the law would class that as adultery even though you are separated (even if it is not therefore the reason for the marriage breakdown).

 4. My spouse committed adultery so the court will award me a greater share of assets as a consequence to punish them.

 Untrue – the fact one party has committed adultery will not entitle the other to a bigger award as a result.

 5. If I wait two years to get divorced, the procedure is quicker and easier than divorcing on the grounds of adultery or unreasonable behaviour

 Untrue – the procedure and timescale is the same regardless of the reason.

6. I can get divorced on the grounds of irreconcilable difficulties.

 Untrue – there is only one ‘ground’ for divorce which is that the marriage has irretrievably broken down and which has to be evidenced by one of 5 facts – adultery, unreasonable behaviour, separation of 2 years with consent, separation of 5 years and desertion.

 7. If I had assets before the marriage or acquired after we separated, I do not need to disclose them and they will never be relevant to the settlement.

 Untrue – there is a duty on both parties to disclose fully details of all their assets irrespective of when they were acquired. If they were acquired before the marriage or after separation the court may treat them differently to other assets acquired during the marriage, (and for instance ultimately leave them out of the ‘matrimonial pot’ for division) but they still have to be disclosed and ultimately if agreement can’t be reached it will be down to the discretion of the court how to deal with these assets, depending on the particular circumstances of your case.

 8. Spousal maintenance is always time limited

 Untrue – in some circumstances the court can order it be paid during joint lives i.e. until one party dies– it all depends on the circumstances of the case

 9. I can’t commence divorce proceedings until I have been to mediation

 Untrue – it is not necessary to attend mediation to get divorced.

 10. It will be cheaper if I don’t instruct a lawyer for my divorce and financial settlement.

 Not necessarily - whilst this may seem cheaper in the short term, in the long term it could prove to be much more expensive if you do not take legal advice. Sometimes the long term effects of a financial settlement can be unexpected and you should take advice as to what is an appropriate settlement for you. Getting advice as to your rights to secure your future is money well spent!

Sally Leaman

Paying a High Price

A recent news story caught my attention concerning an American couple - Jenifer and Mark Evans – who split in 2010 following 25 years of marriage.  Having started off penniless, they amassed a £40 million fortune principally from their financial IT company.

 

Following highly acrimonious proceedings in England, Mrs Evans was awarded just over £18 million (45% of the assets). The Court departed from sharing the assets equally to reflect Mr Evans ‘post separation endeavour’ in the business.

 

The judge criticised the couple saying their dispute had descended into ‘forensic point scoring’ as they became entangled in a bitter battle.

 

Divorce is an emotional process, where resentment and anger can sometimes cloud rational decision making.

 

In the end, the couple has paid a high price for their acrimonious divorce. 

 

They have racked up over £2 million in legal fees and the judge criticised them both for the way they had handled the case and said they were ‘both to blame’ for their ‘unacceptable and disproportionate’ level of  legal costs. He also said that the offers each had put forward to resolve the case were unrealistic.

 

It’s a cautionary tale for feuding couples.  Whilst it is obviously important to achieve a fair outcome to your divorce and it is imperative to get proper legal advice, if you can then achieve a negotiated settlement with the help of your solicitor you could save a lot of money on legal costs and avoid the uncertainty of having a decision imposed on you.