Challenge to Northern Ireland same-sex marriage ban dismissed as ban ‘does not violate the rights of LGBT couples in the region’.

Same-sex marriage is now legal in the Irish Republic, England, Scotland and Wales however same-sex couples are still banned from marrying in Northern Ireland.

Two legal challenges to the same-sex marriage ban in Northern Ireland have been dismissed by Mr Justice O’Hara in the High Court. O’Hara J said that the ban did not violate the rights of LGBT couples in the region and that it was for the Stormont Assembly to decide on issues of social policy. In delivering his judgment O’Hara J stated:

‘It is not at all difficult to understand how gay men and lesbians who have suffered discrimination, rejection and exclusion feel so strongly about the maintenance in Northern Ireland of the barrier to same-sex marriage’

‘The judgment which I have to reach is not based on social policy but on the law’.

The ruling applied to two cases, the first case was brought by the first female couple and first male couples to have their civil partnership recognised in Northern Ireland. The second case (known as Petition X) involved two men who were married in London in 2014 and were trying to get their union recognised in Northern Ireland as when they moved to Northern Ireland their marriage was changed to a civil partnership in law.

Earlier this month the Irish Prime Minister visited a gay rights event in Belfast and said the legalisation of same-sex marriage in Northern Ireland was just a matter of time.

Categories: Gay Marriage, Lund Bennett, Same-Sex Marriage

When Taking Children on Holiday Can Be Viewed As Abduction

For most people, taking the children abroad on holiday is something to look forward to both for children and their parents and many fond memories will be gained from the quality time everyone spends together. Unfortunately, things are not quite so straightforward in case where there is confusion over parental responsibility or when the correct permission hasn’t been sought by those who don’t have responsibility.  

If you do take a child under the age of 16 away for a holiday and you don’t have permission from the person with parental responsibility, the you can run the risk of being charged with child abduction which is a criminal offence the definition of which is found in the Child Abduction Act 1984. 

Parental Responsibility 

According to the law in England and Wales, the mother of the child will automatically have parental responsibility for her child and this will be shared by parents if the child is born when they are married.  

In cases where the mother and father were not married when the child was born, the parental responsibility belongs only to the mother and the father must enter into a parental responsibility agreement which must be ordered by the court. There may also be cases where the father can become a guardian or adopt a child.  

If you are travelling abroad with a child under 16 and don’t have parental responsibility, you must request permission in writing from the person who has that responsibility.   

It is possible to make an application to the court under the Children Act 1989 for permission to take a child on holiday however you will need to prove to the court that you are taking the child on holiday rather than taking them away indefinitely. This can take time so should be prepared well in advance. 

Channels of communication must remain open between the person taking the child on holiday and the mother or father to ensure there is no confusion and potential legal issues to deal with.

Categories: Abduction, Child Law, Lund Bennett

What Is Unreasonable Behaviour?

‘Unreasonable behaviour’ is one of the most common reasons used for divorce in the UK but this doesn’t mean that it is considered an acceptable reason in all cases.  

The law in England and Wales doesn’t currently have a ‘no fault divorce’ system which means divorces can only happen for one of the following reasons:  

  • Adultery  
  • Unreasonable behaviour  
  • 2 years’ of separation with consent  
  • 5 years’ separation  
  • Desertion   

Of the five methods mentioned above, ‘unreasonable behaviour’ is the least clear cut but in most cases offers a faster and easier route out of a marriage.  

You don’t need the consent of your spouse to when using unreasonable behaviour as a reason for divorce and there are no long waits for a petition to be issued.     

The only difficulty lies in proving unreasonable behaviour. Unreasonable behaviour can either be violence towards a partner or mental abuse. In either case it must be stated what the nature of the abuse was and the effect of it on the petitioner.  

Sometimes what the petitioner considers to be unreasonable behaviour is viewed as not unreasonable enough to be used as a reason for divorce. This can effectively trap a person in a marriage for several more years before a divorce can take place.  

It is important therefore to seek advice early in the process to ensure that a divorce being sought on the basis of unreasonable behaviour is seen as such by the court rather than an attempt to find an easy way out of a marriage.

Categories: Lund Bennett

Supreme Court allows wife’s appeal in Birch v Birch – Court may hear wife’s application to be released from undertaking to sell former matrimonial home.

Background

In Birch v Birch [2017] UKSC 53, the Supreme Court (by a majority of 4:1) has granted the wife’s appeal and remitted for urgent hearing her application to be released from an undertaking in recitals to a consent order made on 28th July 2010. In this recital the wife undertook that if the husband had not been released from the mortgage covenants by 30th September 2012, the wife would secure his release by placing the former matrimonial home on the market for sale.

The wife had (and still has) duly discharged the mortgage payments and in November 2011 she issued an application to vary the undertaking outlined above. The wife explained that she had not been able to secure the husband’s release from his mortgage covenants and would not be able to do so by 30th September 2012.

The wife’s application referred to the fact that the children of the family were in schools in the vicinity of their home and it would be gravely damaging for them to have to move home while still at school. In such circumstances, the wife sought a variation so as to postpone her obligation to secure the husband’s release from his covenants until the date of their son’s 18th birthday.

The reasoning behind the Supreme Court judgment

The Supreme Court held that the description of the application as being to ‘vary’ the wife’s undertaking has been confused. The court’s power is only to grant or refuse an application for release from the undertaking. Although the court’s exercise of its power may result in something which looks like a ‘variation’ of an undertaking, if it decides to accept a further undertaking this is the product of a different process of reasoning.

 

The Supreme Court decided that the courts below had wrongly concluded that they did not have jurisdiction to release the wife from her undertaking.

 

The Supreme Court have confirmed that the case will now be sent to HHJ Waller to look into whether the court’s jurisdiction to vary the undertaking should be exercised. In light of the equivalence of the wife’s undertaking with an order for sale, HHJ Waller’s inquiry will be conducted in accordance with section 31(7) of the Matrimonial Causes Act. In doing so, he will give consideration to:

  1. The welfare of the two children (however this is only a consideration which may be outweighed by other factors).
  2. All relevant circumstances, including in particular:
    1. Whether the wife can establish a significant change of circumstances since her undertaking was given; and
    2. Whether the husband has suffered, and is likely to continue to suffer, prejudice by remaining liable under his mortgage covenants.

 

If the court finds that the husband has suffered, and/or would be likely to suffer, prejudice as a result of delay in selling the home, one approach the court may take is to request that the wife compensates him by making provision for him out of the net proceeds of sale as a condition of release from the undertaking.

 

If you are concerned about the sale, occupancy or ownership of the matrimonial home post-separation or the impact of a financial order, please do not hesitate to contact a member of our specialist Family Law team today on 0161 927 3118.

Categories: Uncategorized

Recent study reveals many ‘unhappy’ couples stay together in order to secure home ownership

A recent study produced by L&C Mortgages has revealed that some 1.8million adults in the UK have primarily stayed or would stay in a relationship in order to get on to the property ladder.

They found that 1.8million people had stayed with a partner in order to pay for the mortgage or a deposit. On average, 44% of the 1.8million remained in their relationship for at least a year longer than they would have if there were no financial consideration and a further 15% stayed for more than two years and 40% said they were still with their partner now.

David Hollingworth from L&C Mortgages said the results of the study were ‘indicative of the struggle people face when buying their first home’ and that it ‘isn’t right that people are sacrificing their emotional wellbeing in order to focus on financial stability’.

If you are considering purchasing a property with your partner it is important to think clearly when it comes to such an important financial decision. Once the deposit has been paid and a mortgage entered into, what happens to the family home upon separation may be more complicated if you have never married.

If you are buying a house with your current partner, make sure that you have a Cohabitation Agreement in place so that both of you are very clear about who walks away with what in terms of ownership. To speak with one of our specialist Family Law solicitors about a Cohabitation Agreement  please call 0161 927 3118.

Categories: Divorce Law, Divorce rate, Family Law, Lund Bennett, Marriage, Matrimonial Law

Judge publishes ruling in the form of written letter to 14 year-old-boy in relocation case

Mr Justice Peter Jackson provided judgment in Re A (Letter to a Young Person) [2017] EWFC 48, which apart from the first few introductory paragraphs, comprises a letter sent to a 14-year-old-boy, referred to in the judgment as ‘Sam’.

Sam was the subject of proceedings to determine whether he should be permitted to move to Scandinavia with his father and, if not, what contact arrangements should be going forward.

Sam wished to go to Scandinavia however his mother objected to the proposed move and the Judge in this case refused permission for removal from the jurisdiction. At the end of the hearing, Mr Justice Peter Jackson gave his decision in the form of a letter to Sam which he read to his parents and gave to his solicitors to give to Sam and discuss with him.

Written in an informal, accessible language, the judgment explains why Mr Justice Peter Jackson concluded that the move would not be in Sam’s best interests. The letter also encouraged Sam to Google the Children Act 1989, which states that the welfare of children in family cases must be the judge’s first priority.

Mr Justice Peter Jackson notes that Sam received the decision with apparent equanimity. Mr Justice Peter Jackson has been praised for using simple phrases in previous a judgment to enable the mother and the older children to follow it. This judgment also reproduced an ‘emoji’ which featured as a point of evidence.

To read the full judgment and letter from Mr Justice Peter Jackson in Re A (Letter to a Young Person), click here: http://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html

Categories: Child Law, Family Law, Lund Bennett