Category: Court Law

Am I eligible to apply for an occupation order?

An occupation order can enforce safe living arrangement for victims of domestic abuse.

If you have suffered domestic abuse you may feel unsafe living in the same house as your perpetrator. An occupation order can be used to provide you with a safe place to live by regulating who can live in your family home.

How can an occupation order be used?

Occupation orders are flexible and can be used in a variety of ways to offer victims protection. Some of the commonest ways in which occupation orders are used in domestic abuse cases include:

  • To exclude someone from the family home.
  • To enforce the right to remain in or return to the family home.
  • To set out who pays for expenses relating to the family home.
  • To exclude someone from a defined area around the family home.

Eligibility to apply for an occupation order

In order to be eligible to apply for an occupation order you must be ‘associated’ with the other person in one of the following ways:

  • Married, in a civil partnership, or engaged.
  • Previously married or in a civil partnership.
  • Cohabiting in a family scenario.
  • In an intimate physical relationship for a significant length of time.
  • Have parental responsibility for the same child.

Occupation orders are only applicable in very serious cases as they can grant access to a property that a victim does not have a legal entitlement to and deny access to a perpetrator with legal entitlement.

The court will assess whether an occupation order is suitable for your individual case by applying two tests. The tests are called the balance of harm test and the core criteria test. These tests take into consideration the health, safety and well-being of the victim and any children involved and their related housing and resource needs.

If you require help, support, or legal advice relating to domestic abuseor occupation orders, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

Do I need consent from my ex to change our child’s name?

If a parent wishes to change their child’s surname, they should first seek the consent of any other person with parental responsibility.

There are several reasons why a parent may wish to change their child’s name after a separation or divorce. If the parents were married, then it is quite common for one party to revert to their maiden name. Similarly, if one person remarries, they may wish for the child to take their new family name.

Whatever the reason for the name change, everyone with parental responsibility should consent to the change in writing before it can be changed.

When there is consent

If all parties with parental responsibility are happy with the proposed name change then the change can be made via deed poll. If the child in question is aged between 16 and 18 then they too must sign the deed poll to consent to the change of name.

When there isn’t consent

If your ex disagrees with the name change and you cannot get their consent, then you will need to apply for a Specific Issue Order to change the child’s name.

The court will then decide whether the name change is in the best interests of the child. A few factors that will influence their decision includes the length of time the child has had their existing name, the reasons for the change, the effect changing or not changing their name could have on the child, and the child’s wishes.

Specific Issue Orders can also be requested by the opposing parent in order to prevent the name change.

Requesting a Specific Issue Order

If you require a Specific Issue Order to either apply to change your child’s name or prevent it being changed, get in touch with our team of specialist family law solicitors here at Lund Bennett by calling us on 0161 927 3118.

Court of Appeal judgment determines 50/50 division of matrimonial assets is unfair in short marriage.

The recent case of Sharp v Sharp shows a departure from the longstanding principle that in financial proceedings the starting point is that capital built up during the course of a marriage should be split down the middle, regardless of the length of the marriage – also known as the ‘sharing principle’. Mrs Sharp has been successful in her appeal against a court order which awarded £2.725million (which represented exactly 50% of the total matrimonial assets) to her husband. The award to Mr Sharp has now been reduced to £2million.

The couple in this case were both in their 40s, married for four years and had no children. Mrs Sharp discovered that her husband was having an affair in September 2013 and petitioned for Divorce in December 2013. When they met, they were both earning around £100,000 per annum however Mrs Sharp’s career then took off due to a significant increase in the energy market and she received bonuses totalling £10.5million over 5 years. Throughout their time together the couple maintained largely separate finances and there was no ‘intermingling’ of their money during the marriage.

The Court of Appeal considered all the facts of the case and decided that the Mr Sharp should receive 50% of the value of the parties’ two properties (circa £1.3million) and an additional award of £700,000 to reflect the combination of the following three factors:

  1. The standard of living during the marriage;
  2. The need for a modest capital fund in order to live in the property that he is to retain;
  3. Some share in the assets held unilaterally by Mrs Sharp.

The Court of Appeal went on to state that:

‘if…the equal sharing principle of 50/50 allocation is now applied by the courts and practitioners, in cases which are not pre-determined by ‘needs’, to all relevant assets in every marriage, without exception, from the moment the couple leave the church or the Register Office, this would seem to be a very significant and wholly unjustified development’.

This judgment confirms that the Court will not automatically apply the equal sharing principle to every case. The decision opens up the Court’s discretion particularly if there are no children and both parties are in full time employment and kept their financial affairs separate throughout the marriage.

Despite this judgment there are still many questions which remain unanswered, such as: ‘how long does a marriage have to be to be defined as ‘short’?’ and ‘when does my partner become entitled to share in the wealth I have generated?’. In light of Mrs Sharp’s recent success it is likely that the Courts will see an increase in arguments about the length of a marriage and period of cohabitation. In order to avoid uncertainty, the best advice remains to have a pre-nuptial agreement in place which clearly sets out your intentions in the event of separation.

If you are concerned about the division of assets upon separation or other issues relating to divorce please contact a member of our team for more advice today on 0161 927 3118.

Miss Estrada may have to sue her own step-daughter in order to recover her multi-million pound financial settlement after former husband’s death

The facts of the case of Christina Estrada and her former husband Sheikh Walid Juffali are set out in our blog post earlier last month:

In summary, in a judgment on 8th July 2016, Mrs Justice Roberts gave Dr Juffali three weeks to pay a settlement to Miss Estrada worth just over £75million which included a cash payment of £53 million. On 20th July 2016 Dr Juffali lost his battle with cancer, just nine days before the deadline set by the High Court to pay the settlement to Christina Estrada. The Telegraph has reported that the court deadline has come and gone and Miss Estrada is still yet to receive her multi-million pound settlement, made up of cash and assets.

Two years prior to his death, Dr Juffali entered into a contract by which he purported to ‘sell’ the bulk of his Saudi assets to his three daughters (one of them being the child of Miss Estrada) under Sharia or Islamic law for just under £512million. Miss Estrada is therefore now left with the prospect of suing her own 13 year-old daughter together with her two step-daughters in order to recover her court settlement.

The divorce of Dr Juffali and Miss Estrada was known as one of the most acrimonious in the High Court in London as Dr Juffali had unsuccessfully sought to avoid financial hearings by claiming diplomatic immunity. Even from beyond the grave Dr Juffali appears to continue to cause difficulties for Miss Estrada and although she has been awarded a financial settlement, Miss Estrada now faces another challenge before she can receive the same.

The case of Estrada and Juffali highlights the fact that enforcement issues can often be as complex, if not more so than getting the financial order in the first place. If you are concerned about reaching a financial settlement upon separation or other issues related to the enforcement of an existing order please contact a member of our team for more advice today on 0161 927 3118.

Does Divorce Still Have A Strong Impact On Child Psychological Wellbeing?

Various studies into the psychological effects of divorce on children over many years have often revealed negative impacts on wellbeing. A recent article in the independent highlights that despite many positive changes that consider the impact on children, long term effects are remain present leading to poor educational attainment and emotional difficulties.

While some of these effects may not be exclusively due to divorce, evidence from recent studies show that it is a factor. The article highlights that a study on children with exceptionally high IQs which began in the 1920s showed a negative effect on how long those subjects lived even if it didn’t have an effect on their IQs.

The effects in this study were shown to be long term and less obvious as those who took part showed no noticeable differences to the children who hadn’t seen their parents’ divorce.

A study which covers an even longer period starting in Sweden in the 19th century and covering more than a century showed that there has been little change in educational attainment and psychological wellbeing in children of divorced parents in that time.

The conclusion to draw from this is that while divorce is unavoidable for many couples, the welfare of children involved should always be considered a top priority.

What Impact Will Brexit Have on Family Law?

Now that the dust seems to have settled on Brexit, what we are left with is what Michael Heseltine recently referred to as a ‘dark cloud’. This dark cloud is filled with uncertainty not just concerning politics and economics but also our laws.

Family law is one area that could see significant changes in the coming years when EU laws will need to be replaced. While the cross border elements of family law will inevitably see changes, so too will cases involving exclusively UK nationals.

The risk in all of this is that there will be holes left if amendments and new domestic legislation is not made in time, once the UK government gives formal notice of its intention to leave the EU.
Things may get particularly complex for the many relationships and marriages between UK nationals and EU citizens. Then there will be the issue of settlements and how volatility in the financial markets might impact on the fairness of those settlements.

While Brexit presents challenges there might also be opportunities for the reform of existing laws imposed by the EU. Some EU laws currently impose regulations that have a major impact on UK laws when it comes to jurisdiction and enforcement of any decisions.

Judge says more children should have their voices heard and be allowed to give evidence in Family Court

Sir James Munby, Court of Appeal Judge, has said that more children should have their voices heard to explain their feelings in court. The judge outlined his thoughts in a ruling on a Court of Appeal case which involved a 14 year old girl who complained that a judge had not met with her and she was deprived of her right to participate.

Sir James Munby said that judges’ approach to the issue of children giving evidence in Family Court hearings must change ‘sooner rather than later’.

Six years ago, a Supreme Court Justice said there had been a presumption against children giving evidence. Lady Hale, during a Supreme Court ruling said that such a presumption raised significant human rights issues and judges should not presume that a child should not give evidence. Sir James Munby referred to the fact that Lady Hale’s analysis had led to discussions among senior judges and new guidelines being published however he also stated that sometimes judges had been slow to recognise the need for change.

Sir James Munby then went on to say ‘one thing is clear: that proper adherence to the principles laid down (by the Supreme Court) will see ever increasing numbers of children giving evidence in family proceedings.’.

Vatican Softens On Divorce But Not Gay Marriage

There are signs that the Catholic Church is beginning to soften its stance on a range of issues including divorce but there remains a strong conservative undercurrent.

While divorce continues to be something that is far from welcomed by the Catholic church, it should come as some relief that the church will look into divorcees receiving communion even if they will do so on a case by case basis.

Even this move was passed by just a single vote as Pope Francis set about turning the Catholic church into what he describes as a “field hospital for wounded souls.”
The issue of gay marriage, however, remains a contentious one with bishops strongly opposed to gay marriage. A total of 270 Catholic bishops gathered for debates which took 90 hours to complete with 400 speeches related to the pastoral care of Catholic families.

The issue of divorce for Catholic couples has historically been a barrier to unhappy couples divorcing from partners who may have been abusive. Remaining trapped in those marriages by their religion is not something that progressive members of the church see as an option.

Allowing people to take communion after going through a divorce is seen as a highly significant step in removing barriers to participation in services. Millions of people who may have felt excluded following a divorce which not have been wholly their fault will now be looking forward to the possibility of having a full role in the life of their church.

Gay couples on the other hand will probably have longer to wait for any sign of acceptance in the Catholic church.

Couples Could End Up Trapped In Bad Marriages By Hikes In Divorce Fees

The government has already announced plans to hike fees for divorce but this is likely to do more harm than good for those people who may have no option other than to remain in unhappy marriages because they can’t afford to divorce.

Many people who fall between the cracks when it comes to help with paying for a divorce and having the means to pay solicitor’s fees could end up trapped until they can afford to proceed with their case.

Top judges have already highlighted the risk of people staying in abusive marriages which raises the possibility of a knock-on effect to the physical and mental health of the people involved.

Fees are set to rise by 34% and while this will be a significant hit to the finances of many married couples it may also have an impact on their children. Husbands or wives who wish to end their marriage will be asked to pay £550, which marks a rise of £140.

On top of this, fees are set to be doubled for cases related to asylum and immigration. Various other fees are being reviewed with the potential for more increases in the near future as the government seeks to save money and reduce the deficit.

Family Court proceedings – private and confidential?

News reports have been discussing the current regulations concerning media reports of divorcing couples’ financial hearings. The high-profile separation of pop singers Liam Gallagher and Nicole Appleton has brought this issue to a head. The former couple applied jointly for an injunction to exclude the press from their family court hearing.

Mr Justice Mostyn in hearing this application stated that ‘to say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess would be a serious understatement’. Mr Justice Mostyn felt that maintaining an injunction allowing Liam Gallagher and Nicole Appleton to be named but no-one else was unrealistic given the press comment on the reasons for the breakdown of the marriage. It was decided that only the children of the parties should not be named. Mr Justice Mostyn’s ruling on the application for an injunction has relaxed the injunction and left the door open for the judge who heard the case to provide further details in his final judgment.

The current rules on transparency in the Family Court

In 2009, legislation introduced new rules on media attendance in cases before a family court. Previously, the media had been able to attend family court cases only in family proceedings courts; the provisions in force since 2009 now allow for media attendance in the county courts and High Court and these rules now apply to the Family Court. The press are however not allowed to attend any placement or adoption proceedings, proceedings relating to a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 or any conciliation or financial dispute resolution appointments (where the judge is helping the parties on a ‘without prejudice’ basis to reach an agreement in their dispute). The press are also not allowed to identify children who are involved in family proceedings and Children Act proceedings must remain private.

The provisions concerning privacy in the family courts have been criticised by family groups, Members of Parliament and the media. Fathers’ rights groups have claimed that the hearing of child contact and residence cases in private has added to the perception of court bias against fathers.

The House of Commons Library has recently published a briefing paper focusing on the issue of confidentiality and openness in the Family Court. The paper discusses reforms in this area, in particular the Government’s support to increasing the openness of the Family Court and the President of the Family Division, Sir James Munby, issuing a consultation in August 2014 seeking views on ways to improve transparency in the family courts, including the possibility of public access.

The Conservative Government has yet to make any policy changes in respect of transparency in the Family Court; it may be that they are awaiting the outcome of the President’s consultation. However, its position on this matter has been outlined as ‘supporting steps to increase openness whilst remaining mindful of the rights to privacy of those involved in such personal proceedings’. What is clear from recent debate is that the government must intervene and decide just how transparent the family law courts should be to address the current ‘mess’ Mr Justice Mostyn refers to.