The general rule in civil proceedings is that the ‘loser’ should pay the ‘winner’s’ costs however in family proceedings, this rule does not usually apply, particularly in proceedings that involve children. However, in the recent case of S v S this position changed.
The case of S v S involved an application made by a father for his two sons (aged 15 and 13) to live with him in Switzerland. The application was opposed by the mother with whom the boy had always lived.
During the course of the proceedings, there was a report produced by an Independent Social Worker who advised that ‘given the strength of the boys’ feelings and wish to live with their father, I believe that there is no alternative to agree to his application’.
The father’s application was granted however due to the highly exceptional nature of these proceedings, a costs order was made against the father. Initially both parties applied for their costs however the father retracted his claim and invited the court to make ‘no order for costs’ whereas the mother continued to pursue her application.
The court held that although the father had ‘won’ his application, his behaviour was reprehensible in certain respects in a way which directly fed into the manner in which the proceedings arose, the way in which they were pursued and the fact that the matter had led to a final hearing. The parties’ total costs came to £938,000 and the court ordered that the father pay £150,000 towards the mother’s costs.
Costs orders in children proceedings are exceptional, however, this recent case is a reminder that it is possible to penalise unreasonable conduct within children proceedings with an order for costs.
Reconciliation contracts are a relatively popular in the US but over here in the UK, they are less well known. The contract can often help a couple sort out their differences by pressing pause on a divorce, allowing time to sort out the terms of any future split if attempts at reconciliation ultimately fail.
Whether a reconciliation contract could be seen as an alternative to divorce depends on how far a married couple are away from making a final decision to divorce. To be useful for both parties there should be some chance of a reconciliation as the name of the contract suggests.
The contract can be used not only for financial agreements but also to provide an opportunity to press the reset button with commitments given to curb the behaviour that led to divorce proceedings in the first place such as adultery, or addictive behaviour.
This can bring the added benefit of allowing couples to make a fresh start and feel more secure in a relationship where they feel the partner at fault is making a genuine commitment to changing their behaviour. The reconciliation contract will make clear the consequences of any breach and the practical details of a future split will already be included, simplifying the process of divorce.
Mr. Asif Aziz, a billionaire London property developer, has claimed that he was never married to Mrs. Aziz, his ‘wife’ of 14 years, who is claiming a share of £1.1 billion in financial remedy proceedings in the High Court.
The Decree Nisi of divorce was pronounced in 2016 however Mr Aziz wishes for this decision to be reversed on the grounds that they were never actually married.
Mrs Aziz claims that a Muslim ceremony of marriage took place in Malawi in 2002 however Mr Aziz has said that this ceremony never took place and has also alleged that the marriage was based on a fake certificate which was obtained so a child they adopted could get a passport.
Even if Mr. Aziz is successful in proving that the marriage was not recognised in Malawi and therefore invalid in this country, it would dangerous for him to assume that this will mean that Mrs. Aziz will not be entitled to any financial relief.
Mr. and Mrs. Aziz’s relationship lasted 14 years and they have 4 children together. As long as Mrs. Aziz has sufficient evidence to show that they both intended to be married and lived their life as man and wife, then her financial claims against him will remain open.
If Mrs. Aziz obtains a Decree of Nullity (i.e. the marriage is annulled) then she is still entitled to ask the Court to make financial orders in the same way as if there had been a divorce.
Mr. Aziz is not the first person to try and get out of sharing his wealth on the grounds of a marriage being invalid. The most famous of all was in 1999 when Mick Jagger tried to claim that he had never been married to Jerry Hall. In the end Jagger and Hall agreed to have their marriage annulled on the basis that the marriage ceremony was not valid according to Indonesian law thus not recognised in England. Recently there has been speculation that Elle Macpherson and her husband Jeffrey Soffer’s nuptials in Fiji were legally invalid.
If you are unsure as to your legal marital status or have any questions about foreign marriages and their recognition in England, please contact a member of our team today on 0161 927 3118.
The effects of divorce on children are still the subject of a whole range of studies. Some find that the effects are present even in adulthood when children grow up into adults statistically more likely to end up divorced themselves.
This conclusion is an easy one to make. Parents are a primary influence on the behaviour of their children and they will help set the examples to follow in adulthood. If parents end up divorced or separated, then the assumption is that when their children grow into adults, they will be more likely to consider divorce themselves.
This link has indeed been well established over the years, however a recent study by the Virginia Commonwealth University (VCU) and Lund University in Sweden has found that that this link doesn’t exist for one particular group of children.
The study found that divorce rates among adopted individuals is more closely aligned with their biological parents than it is with the parents who brought them up.
This presents compelling evidence that the likelihood of divorce is linked to genetics rather than environmental impacts and the normalisation of divorce.
So the unfortunate conclusion to be drawn from the study is, that if you are considering marriage, then the chances of that marriage failing will be higher if the biological parents of your spouse kept their marriage together.
The latest Ministry of Justice figures show 13,029 new private family law applications were made between April and June 2017. In 36% of these applications neither the Applicant nor the Respondent were legally represented.
The lord chief justice, Lord Thomas of Cymgiedd, told the House of Commons justice committee that the rise in private law cases was ‘deeply worrying’.
Lord Thomas also quite rightly said that forcing parties to family disputes to confront each other in court without lawyers can often make matters between them even worse. The prospect of even more litigants in person in the family courts has also raised concerns that violent partners may use the courts to bully their victims.
The court is also faced with the difficult task of explaining issues to litigants in person that lawyers would routinely know about and that the Court cannot advise them what to do. Many litigants in person may do their case damage by adopting the wrong approach and making applications which are without any merit or not complying with the correct procedures.
If you are worried about going through the court process and need representation from a professional family law solicitor contact a member of our team today on 0161 927 3118.