Month: April 2015

Research shows divorce can reduce retirement income

Prudential insurers undertake a study which tracks future plans and aspirations of people planning to retire in the next 12 months every year and the report is now in its eighth year. This year, the research found that amongst divorcees the average expected retirement income as £15,700 and amongst those who had not been through a marriage breakdown if was £17,800. Prudential’s results also showed that people approaching retirement who had been divorced (13%) are more likely to delay the date of their retirement compared with those who have never been divorced (11%).

Clare Moffat, pensions specialist at Prudential, has highlighted the importance of the support of a professional financial advisor to help ensure that any financial decisions taken during divorce proceedings have the least possible impact on incomes later in life.

A pension fund is often the largest and most complicated assets a couple have to consider when separating. Considering the research undertaken by Prudential and the recent changes to pensions legislation it is vital that those who are approaching retirement with a substantial pension consider seeking updated financial advice on any post-retirement plans they may have made under the previous rules.

Mother of teenage girls opposing spending time with father should do more to encourage contact– President of the Family Division reminds parents of their obligations.

In the recent case of Re H-B (Contact) [2015] Sir James Munby, the President of the Family Division heard an appeal in a case in which the father had not had direct contact with his two daughters (aged 16 and 14) since 2008. The father appealed against the refusal of his application for direct contact. The cessation of contact was following an incident between the father’s wife and the older daughter, during which she grabbed her and caused a superficial injury. Since this incident the father had only had indirect contact with the girls. Prior to the incident they used to stay with the father on alternate weekends and he was involved in doing some of the school runs.

Lord Justice Black, gave the leading judgment and referred to the fact both parents had ‘behaved in ways that are destructive to the prospects of contact’. Lord Justice Black was of the opinion that the father had been ‘startling unwise’ and there had been a lack of effective maternal support for direct contact and a failure on the part of the mother to properly support the therapy which had been recommended. He stated that there are some cases which the courts cannot solve despite all their endeavours and this was one such case. He said that the solution to most issues often lies in the hands of the parents and in particular:

‘Whatever the rights and wrongs in the past, the parent who is likely now to be able to influence things for the better is the mother. The girls have a close relationship with her and, if she changes her tune, there is a very good chance that they will listen. She owes it to them to try. She also owes it to herself to try because if she does not help the girls to gain a more accurate picture of their father and to make contact with him and his family again, it may have consequences for their relationship with her sooner or later.’

The President also stated that there are many things which children do not want to do which they ought to do and it is the parent’s job to use techniques which may include use of ‘both the carrot and the stick’ to get the child to do what they do not want to do. The President concluded by expressing his hope that this case would be a ‘catalyst for change’ as he thought it was ‘simply too dreadful to imagine a future where both parents are estranged from their daughters’.

Italian parliament passes law which to make divorce quicker and easier.

Italy has significantly reduced the time it will take to get a divorce to 6 months from 3 years. The Italian Prime Minister tweeted last Wednesday ‘Another promise kept. Let’s move forward’. It is believed the change is part of Prime Minister Matteo Renzi’s efforts to tame the country’s much-hated bureaucracy. The quick passage of the law also shows how the Catholic Church is gradually losing its influence on life and politics in Italian culture.

Divorce was not legal in Italy until 1970 and the initial law imposed a mandatory five-year separation period intended to make couples reconsider however in 1978 this was reduced to three years. Due to the expansion of the European Union, many Italians would set up false residences in countries where a quicker divorce was possible, such as the UK, due to the restrictions in Italy. Once the divorce was completed they would apply to have the divorce recognised in Italy. Last year, 180 divorces of Italian couples were annulled after the President of the Family Division declared they were obtained fraudulently. This was one of many reasons for the divorce processing changes in the UK which took place late last year.

Parental leave extended to surrogacy parents

From 8th April 2015, parental leave is available to couples in the UK expecting a child through surrogacy. Reforms under the Children and Families Act 2014 (which came into force on 5th April 2015) extend adoption leave to surrogacy, so that same sex and heterosexual parents through surrogacy can claim the equivalent of full maternity/paternity leave and pay.

The new rules apply to parents who intend to apply for a parental order (a court order which makes them legal parents of a child born through surrogacy). Parents will be entitled to a maximum of one year off work and the same rates of pay as those received during conventional maternity leave, which is 90% of salary for the first six weeks, followed by the statutory rate thereafter.

This parental leave is a form of adoption leave, and will enable the parents to choose who takes the main leave and the other partner is entitled to paternity leave. Both parents will also be entitled to time off during the pregnancy to attend two antenatal appointments.

Baroness Hale calls for ‘no-blame divorce’

Baroness Hale of Richmond, the deputy president of the Supreme Court, has said that divorce laws in England and Wales should remove the need for allegations of adultery and blame as she wants to see the bitterness taken out of matrimonial disputes so that former partners do not need to be held at fault in order to obtain a divorce.

In the UK, in order to obtain a divorce it is necessary to prove that the marriage has irretrievably broken down by citing 1 of 5 facts:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion for two or more years
  4. Two years’ separation with consent
  5. Five years’ separation without consent

In a number of other countries, it is possible to petition for divorce without citing a specific reason such as adultery. Many critics are of the view that citing unfaithfulness or unreasonable behaviour during the marriage encourages conflict between former partners and that petitioning for a divorce without citing a specific reason would help to minimise bitterness between divorcing spouses.

Baroness Hale also suggested that financial settlements and arrangements for children should be resolved before a divorce is granted. However, it seems that this may create lengthy delays in parties obtaining a divorce despite the fact their marriage had broken down. Baroness Hale suggested a one-year ‘cooling off period’ after declaring that their marriage had irretrievably broken down in order to enable separating couples to sort out arrangements.

Specialist family lawyers have given their support to the introduction of a no-fault divorce in England and Wales as it will enable couples to maintain their focus on dealing with financial arrangements and arrangements for the children rather than developing animosity regarding who is to blame for the breakdown of the marriage.

It remains to be seen whether these changes will be implemented, as Conservative MPs have stated that removing fault would undermine the concept of marriage. However, what has been widely recognised is that parties undergoing separation need to look forward rather than what has happened in the past and focus on agreeing future arrangements between themselves in order to remove the animosity between them and work together for the benefit of themselves and any children of the family.

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

More than half of under-35s getting married consider a pre-nuptial agreement

A recent study has shown that more than half under-35s would consider getting a pre-nuptial agreement drawn up before they get married. Despite once being only considered relevant to the ‘super rich’, pre-nuptial agreements are becoming an increasingly popular choice not only for young couples but also those marrying later in life in order to protect their assets. The agreements are also increasingly being used in second marriages between people of equal wealth.

A pre-nuptial agreement is an agreement entered into by a couple before they get married which sets out how they will organise their finances during the marriage and what they would wish to happen in relation to financial matters in the event of separation.

When considering marriage, it is understandable that the first thing on peoples’ minds is not usually protecting themselves in case things go wrong. However, particularly those marrying later in life, or with considerable assets or inheritance, may want to exclude certain assets being brought into the ‘marital pot’. Some individuals taking part in the study claimed they would consider a prenuptial agreement due to the fact their partner was ‘not very good with money’. Others also mentioned the fact that had received very little financially in previous relationships and wanted to avoid history repeating itself.

Pre-nuptial agreements are becoming increasingly popular with under-35s but also with those later in life as people are showing a desire to protect their assets and wealth accrued prior to marriage. Recent decisions of the courts have also endorsed such agreements and the Law Commission recommended earlier last year that pre-nuptial agreements should be legally binding in divorce settlements, after the needs of the separating couple and any children have been taken into account.

Pre-nuptial agreements need to be entered into with proper legal safeguards and both parties will need independent advice. Such agreements are a useful way of protecting assets and providing for how finances would be dealt with in the event of divorce. For advice and guidance on pre-nuptial agreements or financial arrangements on marriage or separation, or to discuss your current situation, please contact our specialist Family Law lawyers on 0161 927 3118 for a free 20 minute consultation.

Wife’s application for financial provision despite the existence of a Post-Nuptial Agreement which she claimed was ‘vitiated by duress’ rejected.

In the recent case of Hopkins v Hopkins [2015] EWHC 812 (Fam) the High Court of Justice considered Mrs Hopkin’s application for financial provision on top of the provision contained in a Post-Nuptial Agreement which she has received but for the implementation of an agreed pension sharing order.

Mr Hopkins (66) and Mrs Hopkins (62) married in 2009 and separated in 2011. They had however known each other for a long time and met when they were 28 and 25 at which time they were involved in an affair and during this extramarital relationship they had a son. When they eventually married in 2009, both parties already had 2 older children in their respective marriages. In August 2011 the parties reached an agreement signed a Post-Nuptial Agreement upon separation which defined the appropriate provision in the event of marital breakdown.

A key principle developed in case law in relation to contractual agreements is that the objective is to ensure that the influence of one person over another is not abused and that all agreements are entered into freely by each party with a full appreciation of its implications. Considering this, it was Mrs Hopkins’ argument that, despite the fact she had received prior legal advice, the Post-Nuptial Agreement had been ‘vitiated by duress, or undue pressure, or the exploitation of the husband of a dominant position over the wife, after taking into account the wife’s emotional state and the pressures which it is said she was feeling under at the time’.

The Judge in this case found it difficult to accept that Mr Hopkin’s ‘bullying’ behaviour via letters was not sufficient to vitiate Mrs Hopkins to sign the agreement and also made reference to the fact that it was not until the end of November 2012 that Mrs Hopkins finally decided she would challenge the Post-Nuptial Agreement. Amongst other factors, based on this the Judge rejected Mrs Hopkin’s claim that she was acting under undue influence when she entered into the agreement.

To see the full judgment click here:

A Post-Nuptial Agreement is a contract which provides details of how assets and property will be divided in the event of separation, divorce or upon death. This recent case highlights that it is important that both parties obtain independent legal advice and are fully aware of the implications of the agreement. We can discuss in detail both Pre and Post-Nuptial Agreements and ensure that everything important to you is covered and help you consider anything that may change in the future. Contact our specialist Family Law lawyers at our Altrincham or Manchester offices today on 0161 927 3118 for a free 20 minute consultation.

Pension changes 2015 – what you need to know

Pension changes are just around the corner. Under previous rules, most people retiring have often bought an annuity, which provides an income for life. However, from the start of the new tax year on 6th April 2015 those aged 55 or over will be able to access the entirety of their pension pots.

A summary of the changes are as follows:

  • People aged 55 and over can withdraw any amount from a Defined Contribution scheme subject to income tax
  • Tax changes make it easier to pass pension savings on to family members
  • Many people with Defined Benefit schemes will be allowed to transfer to Defined Contribution plans

Existing annuity holders are unaffected for the time being however it is thought that there are plans for them to be able to sell their annuity. Considering these changes it seems that there will be a greater deal of flexibility with pension dealings as there are more options available; however it is important that people take time to consider how they use these options in a way which will work for them. For example, any lump sum of cash withdrawn from a pension will be treated as income and will therefore have income tax implications. It is vital to consult a financial expert or consult the free guidance which is being offered from the government’s Pension Wise service online.

A pension in divorce and separation is very significant. After the value of the former matrimonial home, pension provision of one or both spouses may be the largest capital asset of the marriage. The court has the power to take pensions into account in dividing up the matrimonial assets and there are a variety of different methods to ‘compensate’ a former partner for their lack of pension entitlement. It is therefore important to be aware of the changes to pensions and the implications of these changes in your current situation.

For advice on your rights on pension settlement in divorce proceedings contact our specialist Family Law lawyers now on 0161 927 3118 for a free 20 minute consultation.

Successful appeal by Father as Judge did not properly explain the reasons for his decision

The recent case of V (A Child) [2015] EWCA Civ 274 was an appeal by a father following a fact-finding hearing in private law children proceedings. A fact-finding hearing is often used where allegations of domestic violence are raised in Children Act cases. Such allegations need to be considered by the court before it can proceed to consider making any orders in relation to the children. Fact finding hearings allow for the court to draw a line under allegations raised, and focuses the parent’s attention on the issue of welfare and the best interests of the children. The fact-finding hearing in this case was deemed necessary as the mother made a number of allegations about the father including making reference to the fact he was aggressive to her.

The Judge found against the father at the fact-finding hearing and in delivering the judgment, the Judge simply recited the evidence and announced his conclusions without explaining the reasons behind the decision. When the father’s solicitors applied for permission to appeal, Lady Justice Black invited them to return the matter to the original Judge and ask him to provide his reasons. However, the reasons provided amounted to less than one side of A4 and Black LJ was of the opinion that the reasons were still sufficiently lacking that permission to appeal should be granted.

During the father’s appeal, the Court of Appeal noted that the judge did not deal with the disputes between the parents in relation to the history of their relationship despite the fact many of the allegations on which he was being asked to make findings was during a period when the parties disputed as to whether they were still in a relationship. The judge also made no findings of fact in relation to the quality of the contact/ relationship the father had had with his son.

In this case, it was noted that a basic, short description of the matters considered and the factors that give rise to the conclusions are all that is required in judgments. The father was granted his appeal and the case has been sent back to the lower courts for a rehearing to consider which of the allegations, if any, are relevant to the issue of contact.

To see the full judgment, click here:

Facebook is now cited in a third of all divorce cases and often used to discredit parents in Children Act proceedings – think twice before you post online

Research has shown that Facebook has been cited in a third of all divorce cases and is increasingly relied upon as proof of inappropriate behaviour. Whether it is used to prove that a former partner is in another relationship, living an extravagant lifestyle or to show contact is being facilitated between a parent and child, Facebook and other forms of social media are increasingly being used as a weapon following relationship breakdown.

It is important to consider from the outset what information you are posting on social networking sites, as a former partner would normally be interested in finding out about significant updates in your life such as a new partner, moving into a new property or even a new job offer. Many of these updates are often referred to on social media and may be used as evidence that an individual is not telling the truth about their financial position.

In recent Children Act cases the use of social media has taken a more serious turn, and some parties have begun internet campaigns intended at seriously damaging another’s reputation or post hurtful comments simply aimed at ‘getting back’ at the other party. Despite the fact the court may penalise such behaviour it is difficult once such comments have been posted, for them to ever go away due to the nature of the internet items can often be repeated online.

Whatever the nature of proceedings, it is important to consider the information you post on social media and to refrain from malicious use of the internet in family disputes as this can be particularly damaging for all of the family.