Category: Matrimonial Property Rules

Is It Worth Getting Married These Days?

Marriage is being brought into question more than ever these days and for some couples, simply living together is preferable. Some people view marriage as a huge expense just for a piece if paper. They me even live together for decades and have children in the process. So, is entering into a marriage or civil partnership worth it?  

The short answer from a legal perspective is yes if you want to protect areas such as inheritance and save on huge tax bills either for those left behind when you die or a partner die. While this is not an article designed to promote marriage, indeed for some couples it can be preferable not to pass on their assets to a partner when they die, let’s highlight how being married can save a number of legal headaches.  

Perhaps the biggest consideration for mature unmarried couples is the will. If your partner dies you won’t inherit anything and the best you can hope for is some provision towards living costs. If you had children together inheritance will pass to them. If there are no children then your partners family members will be next in line to inherit as part of Intestacy Rules.  

The next potential issue is inheritance tax. Couples who marry will and leave everything to their spouse will have ensured no inheritance tax is due on the estate. The opposite is true for unmarried couples where IHT can take away a significant chunk of the inheritance.  

These potential outcomes are avoided if a couple decides to marry and there have been some high-profile cases where a person has decided to marry just before death for this very reason.

Latest ONS Marriage Figures Reveal Ticking Time Bomb

Marriages between opposite sex couples continue to decline according to the latest figures released by the ONS leading to calls for legal reform as more and more couples appear to be choosing to cohabit rather than tie the knot.  

The report covers marriages in England and Wales that took place in 2015 which also happened to be the first year marriages were also recorded for same sex couples. According to the ONS, the report is the latest in a steady decline in the number of opposite sex marriages which has been taking place since the 1970s. On current evidence the trend is unlikely to be reversing with the number of marriages down 3.4% on the year before.  

These figures have raised concerns among experts that co-habiting couples are mistakenly believing they will have the same rights as married couples if they break up. This belief has been cultivated by the myth of common law marriage where people believe that they have the same entitlements to a share of assets when this is not the case.  

The only way to protect rights in these cases is to have a formal cohabitation agreement in place which outlines entitlements in the event of the relationship breaking down. There are also calls to make changes to marriage so that it better meets the needs of today’s couples.  

Changes to existing matrimonial law being considered by the House of Lords

The Divorce (Financial Provision) Bill received its second reading in the House of Lords last week. The Bill is a Private Members Bill introduced by Baroness Deech (Crossbench) and proposes to replace section 25 (2) of the Matrimonial Causes Act 1973.

Setting out the proposals to the Bill, Baroness Deech explained:

‘The purpose of this Bill is to reform the law relating to the splitting of assets on divorce.  The current law is the Matrimonial Causes Act 1973, section 25, which has not been thoroughly debated by Parliament for 40 years despite radical changes in society and families, and which has been the subject of calls for reform from the Law Commission, Resolution and the Centre for Social Justice. Reform is urgent because the law is uncertain. It is largely judge-made law, which bears little resemblance to the statute. Judicial discretion has led to unpredictability and conflicting decisions, which make it hard for parties to negotiate and lead to disproportionate costs. Legal aid has been removed and parties of modest means are left unrepresented with little guidance as to the right outcome. The Bill would implement provisions very similar to those of Scottish law, and the laws of most European and North American states. It would introduce as a fair starting point the equal division of all the property and pensions acquired by the couple after marriage; provision for short term maintenance; flexibility to allow the home to be retained for the carer and children; and binding prenuptial agreements. This is intended to facilitate mediation, reduce litigation and costs, and recognise equal partnership in marriage.’

The Bill is a long way off becoming law and may not even make it onto the statute books at all.

If you need to speak to a specialist family lawyer call us on 0161 927 3118.

67-year-old millionaire ordered by the Court to leave his home due to accusations of physical and emotional abuse towards Wife

The Family Division at the High Court heard that the Wife in this case, who is in her late 70s, was frightened of her husband, a 67-year-old millionaire from Essex, and took legal action against him. Judge Catriona Murfitt concluded that the Wife was likely to suffer ‘significant harm’ if the Husband stayed in the property any longer and therefore he was ordered to vacate the property.

The Husband went on to appeal this decision, stating that the ruling was ‘unfair’. Mr Justice Baker dismissed this appeal and told the Husband that he had ‘no prospect’ of overturning Judge Murfitt’s initial ruling. Mr Justice Baker went on to say that the Wife claimed ‘that for the duration of the marriage, she had been the emotional punch bag for his insecurities and frustrations’.

Mr Justice Baker said that Judge Murfitt held that the Wife was likely to suffer significant harm if an order was not made and that harm was greater than any harm which the Husband was likely to suffer from having to leave the property and he upheld this decision.

Occupation orders

If you are experiencing abuse following your separation or your former partner is acting in a vengeful manner and causing you to fear for your safety in the family home, as outlined in the case above, the Court can issue an occupation order against your former spouse.

An occupation order is an order setting out who has the right to stay, return, or be excluded from a family home. An occupation order doesn’t change the financial ownership of a home, it is usually a short-term measure and the length of time an occupation order lasts will depend on your circumstances. In many cases an order will last for between 6-12 months and some can be renewed. An occupation order can only be made for a property where you both live, did live, or intended to live in as the ‘family home’.

Our Family Law specialists are here to help and can provide the proper advice and guidance you need. You can talk to us in complete confidence about the legal steps you can take to bring your abuser to justice, to feel safe in the former matrimonial home and to legally end your relationship. Please contact us for an initial consultation today on 0161 927 3118.

One in 10 Couples Consider Divorce According to Research

According to research from Relate, one in 10 couples consider divorce at some point as everyday stresses take their toll on relationships.

While not every couple who consider divorce actually end up going through with it, many end up drifting towards divorce when relationships could have been saved. The research includes both married and co-habiting couples. Overall the findings suggest that 1.4 million families are already at their breaking point.

The most common problems triggering thoughts of divorce include the stress of parenting and financial pressures. The latter has been a major issue in recent years as people have struggled following the recent recession and the knock-on effect this has had on family finances.

The ultimate decision on whether or not to divorce depends a lot on individual circumstances and the reasons given. Often marital difficulties can be sorted out with counselling. Couples have the opportunity to seek help before differences become entrenched and there is little hope of saving the marriage.

It is also important to consider the wellbeing of children who can suffer just as much from being caught in the middle of conflict in a relationship as they would if their parents were to divorce.

Personal Injury compensation and Divorce – how divorce can impact upon damages received

A number of news articles have reported that there is a possibility that Simon Vaughan, a soldier who was severely injured in Afghanistan, will face losing some of his £1.1m compensation in his divorce. The final financial hearing in this case started on 21st September 2015. The outcome of this decision will depend upon the details of the family’s situation (which the media has not reported on).

In 2008, Simon Vaughan received a £1.1million payout after an attack in Afghanistan left him severely brain damaged. Simon and his former wife Donna separated in 2013. Mrs Vaughan has issued financial proceedings so that the court can consider the parties’ finances as a whole to enable her to raise the two children of the family. The mixture of monies from the military and insurance payouts has now reduced from £1.1million to £250,000 and Mr Vaughan is concerned that he could face losing some of this in the financial proceedings as he needs such funds for his ongoing care costs.

This case raises the issue of how injury compensation is treated in family law and in relation to the interpretation of ‘needs’ in financial proceedings. Mr Vaughan’s representation is hopeful that the outcome of this case will identify and test these principles fully for the benefit of others who are in a similar position to Mr Vaughan.

When the court are considering the impact of divorce on a damages award, compensation is not ring-fenced and is brought into the balance sheet just like shares or savings. The court do however undertake a balancing exercise and consider factors such as the welfare of the children, their standard of living, or in Mr Vaughan’s case, his disability will be a relevant factor that needs to be taken into account when considering the parties’ respective ‘needs’.

For advice and guidance on how personal injury awards are treated in financial arrangements on separation, or to discuss your current situation, please contact our specialist Family Law lawyers on 0161 927 3118 for a free 20 minute consultation.

Court of Appeal overturns decision as focused too much on ‘gender discriminatory’ guidance in Payne v Payne – change the court’s approach to relocation cases

The latest Court of Appeal decision on international relocation (Re F (International Relocation Cases) [2015]) has overturned an experienced judge’s decision because they focussed too much on the Payne criteria and not enough on the overall assessment of welfare. In the first instance in Re F, the mother was granted leave to remove the child to Germany. Lord Justice McFarlane held that the harm of separating the child from their father had not been properly evaluated.

Prior to this decision, the guidance in Payne v Payne was the first thing to be considered by a judge in hearing an application for relocation. Payne v Payne was a Court of Appeal decision in 2001 in which a father’s appeal against the removal of his child to New Zealand was rejected. The guidance given in Payne referred to questions which needed to be asked in relocation cases such as:

– Is the relocating parent’s application genuine, realistic and well researched?
– Is the parent’s opposition motivated by genuine concern or an ulterior motive?
– What would be the extent of detriment to the father and his future relationship with the child if the application were granted?
– What would be the impact to the relocating parent of the refusal of her realistic proposal?

The guidance in this case has been criticised for placing too great an emphasis on the wishes and feelings of the relocating parent and that the guidance usually assumed that the mother was the caring parent and usually the one who sought to relocate.

The guidance in Payne v Payne has been described as a gender discriminatory approach and Lord Justice McFarlane stated in Re F ‘in the decade or more since Payne it would seem odd indeed for this Court to use guidance which is out of context which was intended is redolent with gender based assumptions as to the role in relationships with a child’. Lord Justice McFarlane went on to say ‘the questions identified in Payne may not be relevant on the facts of an individual case and the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it.’

The effect of Re F is not that the guidance Payne v Payne had been overturned or set aside, instead it has been re-aligned as just one of the decisions based upon the welfare of the child. The guidance is still useful in some cases, however Re F clarifies that a court should never base its entire decision upon the questions identified in Payne v Payne. Re F shows the courts acknowledging the importance of the erosion of the quality of the relationship between the relocated child and the left behind parent.

This is a highly emotional area of family law for the entire family. Whether the relocation of a child is to another continent or in Europe, these cases present sensitive issues. It is essential to seek advice early, if possible at the time of separation as early decisions may affect how things turn out later on. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Wife who turned £2million home into a ‘fortress’ ordered to leave by Court of Appeal Judge.

Therese St Clair Marshall and Nicholas Marshall separated after a seven-year marriage and Nicholas moved in with his parents. During financial remedy proceedings following divorce, an order was made in December 2013 for the £2million house to be sold and proceeds divided by the parties in order to achieve a clean break between the parties.

Mrs Marshall subsequently locked Mr Marshall out of the house and refused entry to estate agents. In November 2014 the court held Mrs Marshall was in contempt of court and an order was made for her arrest and bailiffs were instructed. When bailiffs attended the property they too were refused access and the Evening Standard reports that upon their attendance one of the bailiffs was injured ‘by a concrete bird feeder falling on his head from a top floor window’.

Mrs Marshall then made an application to challenge the original order and a further order for costs in the sum of £75,000 which had been made against her. Ann Hussey QC, Mr Marshall’s representative, informed the court that Mrs Marshall had admitted to ‘game-playing’ and the court should not indulge this any further. Mr Marshall had been continuing to discharge the mortgage and this was causing financial strain. Ms Hussey noted that the former matrimonial home should have already been sold so that both parties could be re-housed and start their new lives. McFarlane LJ agreed with this argument and saw no merit at all in Mrs Marshall’s appeals, therefore her appeal was dismissed and McFarlane LJ felt the order must be enforced and Mrs Marshall was also ordered to pay £5,000 towards Mr Marshall’s costs of the appeal.

During financial settlement upon separation it can often feel difficult to sell the family home due to memories or emotional ties. It is important for parties to acknowledge that in most cases it holds the majority of funds available and selling the former matrimonial home can often be necessary to enable both parties to re-house and provide a clean break. There are a number of different options to take when trying to resolve financial matters, and both parties are required to provide full and frank disclosure of their finances to enable an agreement to be reached. It is extremely important to take legal advice to ensure that you reach a fair financial settlement.

If you are considering dealing with your finances upon separation or experiencing difficulty with your former partner failing to comply with a financial order our specialist lawyers in our Altrincham or Manchester offices can talk you through your options and help you to decide which option would be the right decision for your situation. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Arguing over the reason for the marriage breakdown is unnecessary, hurtful and will result in time consuming litigation.

In the recent case of Lindner v Rawlins, there was a considerable amount of litigation between the parties including divorce proceedings in which each petitioned against the other on the basis of unreasonable behaviour. In this case, Mr Lindner sought to reply on the alleged ‘unreasonable behaviour’ of his wife however she denied his accusations and this caused a great deal of ongoing conflict, litigation and costs since their separation in 2012.

Before concluding the judgment in Lindner v Rawlins, Lady Justice Black attempted to point the parties in the right direction by stating:

“More than two years have now elapsed since they separated. They could now be divorced by consent without the need to engage in hurtful, time consuming and distracting litigation over how they behaved during the marriage. I encourage them to take this course in their own interest and those of their children.”

The important ground for divorce as far as the courts are concerned is that the marriage has broken down irretrievably; this is proved by establishing the existence of one of five facts. One of these facts is that your partner has behaved in such a way that it would be unreasonable to expect you to continue to leave with them. Although it matters to the parties, the reasons for the breakdown are usually of limited importance. Trying to prove that the breakdown of the marriage was due to the fault of the other party will not change the fact that the marriage has broken down. It is also extremely unlikely to affect the outcome of related proceedings such as financial applications or arrangements for the children.

Lord Justice Aikens commented on the fact that neither Mr Lindner nor Mrs Rawlins were legally represented and that this case was an example of how costs can be unnecessarily incurred and that cases such as this run the risk that ‘a correct result will not be reached because the court does not have the legal assistance of counsel that it should have’.

Dealing with marriage and relationship breakdown is incredibly difficult, and emotions run high, many people seek to gain ‘revenge’ however arguing over the reason for the breakdown will simply increase costs an unnecessarily delay the process.

Our experienced legal team can advise you of your options following the breakdown of your marriage and are here help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Resolution Backs Law Commission for Reform on Matrimonial Property Rules

Resolution has backed the Law Commission’s call for a reform of matrimonial property law. This confirms that the current rules are ‘not sustainable’

Resolution has responded to the Law Commission’s consultation in this area. The group talked of a ‘reformed discretionary approach’ to the calculation of the payment of spousal support, stating:

“We are concerned that limits should not cause hardship to wives over 55 years of age who have not worked during the marriage. We also consider that there is merit in reform to prompt the courts to fully and properly consider the exercise of their powers. For example, the experience of some of our members is that the courts simply ignore the question of any increase in earning capacity which it would be reasonable to expect a party to take steps to acquire.”

Resolution’s 6,500 members are family lawyers and other professionals committed to the constructive resolution of family disputes.