Month: May 2015

Children born through surrogacy who lack a court’s parental order could become ‘stateless and parentless’ with birth mother remaining legal parent – warns High Court judge.

Mrs Justice Theis has warned when speaking at a conference ‘Surrogacy Symposium’ in London, that failure by parents to obtain parental orders in respect of the majority of children born through surrogacy agreements has created a ‘ticking legal timebomb’.

A parental order transfers parental responsibility for the child to the parents. Without this court-sanctioned parental order children may end up stateless and parentless. It is estimated that as many as 2,000 children a year are born to surrogate mothers (mainly overseas) before being given to British parents. However, last year according to CAFCASS (Children and Family Court Advisory and Support Service) statistics, only 241 applications were made for parental orders in the UK.

Section 45 of the Human Fertilisation and Embryology Act 2008 sets out the conditions with which those applying for a parental order must comply. Click here for a summary of the conditions:

Mrs Justice Theis went on to emphasise the issues that may arise later on if a parental order is not made such as deaths, inheritance issues, parents splitting up or even renewing passports. Unless the child’s status is registered, it may not inherit from its new parents and would still have a claim on the estate of the birth mother. A parental order extinguishes the rights and responsibilities of the surrogate mother, who, in the absence of a parental order, would be recognised in law as the true parent.

In a parliamentary debate earlier this year there was a call for legislation to be updated in order to help intended parents and surrogates and those considering written agreements within an international legal framework. The health minister has said she will consider requests to change the law.

Judge urges couple to stop ‘boxing match’ divorce proceedings and settle their differences as legal costs have soared to £1million

Ekaterina Parfenova, 42, beauty queen and actress and her husband Richard Fields, 59, an international lawyer based in Miami married in 2002 and have two children. The couple divorced in March 2013, however Decree Absolute is yet to be pronounced as they have been in dispute over Mr Fields’ £6million fortune. Miss Parfenova has been married twice and Mr Fields have been married five times, and between them they have already ran up an estimated £1million in legal costs.

Mr Justice Holman said he was driven to ‘despair’ at the lack of cooperation of the parties and issued a desperate plea for them to settle the case outside of the court. Mr Justice Holman went on to describe the former couple’s behaviour to that of a boxing match stating the fact they had spent £1million pounds was ‘very very unedifying’. Despite the judge’s remarks, the ten-day trial has gone ahead.

One of the key issues between Miss Parfenova and Mr Fields is the question of where Ms Parfenova and their two children will live. Miss Parfenova is seeking a £2.6million share of their estimated £6million assets and an annual payment of up to £750,000. This payment is said to include mortgage payments for a £5.5million flat near Kensington Palace. Miss Parfenova has stated that she feels that this is ‘appropriate’ to her needs. Mr Fields has offered to pay Miss Parfenova £2.2million and payments of £230,000 a year and suggested that she live in a £2million home in Battersea in South West London, where properties are less expensive.

This is the first case of its kind to be heard in open court in London and during the 4th day of the hearing Mr Fields gave evidence stating that Miss Partenova asked him to ‘give her £500,000 before she left her former husband for him’. Mr Fields went on to state that he complied with the request as he was ‘madly in love’.

During final speeches, Mr Marks QC, Counsel for Miss Parfenova took the opportunity in the High Court to suggest that both his client and Mr Fields ‘are not rich people’ and that there was not enough money for them to continue living the standard of life they once had. He also made reference to the fact that they would have to ‘cut their cloth’ adding that it had been agreed that Miss Parfenova’s hopes of buying a £5.5m home were unrealistic.

The judge is expected to reserve his decision until next month.

Does Child or Spousal Maintenance affect Universal Credit?

What is Universal Credit?

Universal Credit was introduced by the government in 2012 and has already been introduced in many areas. Universal Credit is a new single benefit which will gradually replace most of the means-tested benefits. Universal Credit was introduced in selected Jobcentre Plus areas and even more will be added from May 2015. The new areas are listed on the website. Click here to see when your area will be affected

What happens to other benefits?

As Universal Credit is intended to be a single benefit. This benefit will gradually replace most of the means-tested benefits including income-based Jobseeker’s Allowance, tax credits and Housing Benefit.

What is the impact of Universal Credit on the receipt of Child or Spousal Maintenance payments?

Under the current benefits system of tax credits, any child or spousal maintenance payments are not taken into account when calculating tax credit entitlement. However, whilst child maintenance will continue to be ignored, the calculation of Universal Credit will take into account any spousal maintenance a claimant is receiving. Spousal maintenance (along with all other unearned income) will be deducted in a pound for pound way from any Universal Credit calculation.

By way of example, if a claimant is receiving credit of £800 per month and spousal maintenance of £400 per month. Under the previous rules they would receive a total of £1,200 per month. However under the new Universal Credit rules the spousal maintenance would be deducted and the claimant would receive a total of £800 per month (£400 per month in maintenance and £400 for Universal Credit (£1,200 – £400).

How will this affect financial settlements in divorce proceedings?

It is now vital, given the expansion of Universal Credit that the impact of Universal Credit is considered in any settlement. The court, in considering any financial settlement upon separation, will need to review whether it is affordable for an ex-spouse to ‘bridge the gap’ created by Universal Credit, as outlined above.

In respect of financial settlements made prior to Universal Credit being introduced, this may create further disputes as orders would have been made when parties would have considered that any spousal maintenance payments would be supported by tax credits. The amount of spousal maintenance may now no longer be sufficient when Universal Credit is introduced.

Universal Credit is already available to those living in Altrincham, and many of the surrounding areas and there are plans for Universal Credit to reach many more areas over the next few months. Universal Credit will have a significant effect on separating couples. If you need any help and are concerned about the impact of Universal Credit on your current situation, in respect of previous financial settlements or future separation agreements please do not hesitate to contact our experienced legal team on 0161 927 3118 for a free 20 minute consultation.

Curran v Collins [2015] – woman unable to establish beneficial interest in her former partner’s properties or business after 33 year relationship.

When couples divorce, businesses and properties (regardless of whose name they are in) form part of the assets to be shared and are a central part of financial proceedings and discussions on divorce. However, when cohabiting couples separate, the position is not as straightforward. The recent case of Curran v Collins [2015] shows the legal burden which is placed upon former cohabiting couples during separation as they are required to prove that they are entitled to a share of any assets solely owned by their previous partner.

The case concerned the 32/33 year relationship of Ms Curran and Mr Collins. Ms Curran sought to assert a beneficial interest in a property named ‘The Haven’ and that she was in fact a partner in a kennelling business. As the properties were in Mr Collins’ sole name, due to case-law and existing legal principles, Ms Curran had to prove that she was entitled to a share and show:

  1. That she reasonably believed that the parties’ common intention, to be deduced from the whole course of their conduct in relation to the properties, was that she was to have a share in the properties.
  2. That she had acted to her detriment in reliance of that common intention.

Ms Curran’s case was that there was an agreement that she would have a half share in the properties and that due to this agreement she made financial contributions including paying household bills, mortgage repayments etc. However, the judge made no finding to support this. Ms Curran also sought to use evidence in the form of Mr Collins’ Will which left his estate to Ms Curran on death however this argument was not raised at trial. Ms Curran also mentioned that when she confronted Mr Collins about why she was not a joint owner he provided the excuse on the basis of the cost of life insurance policies. Ms Curran argued that this excuse implied that he considered her to be a joint owner of the properties.

In relation to the business, the judge in the first hearing found that Ms Curran’s argument that she had ‘done all of the paperwork’ was not correct and all she had done in relation to the business was attend to the registration of the dogs whereas Mr Collins had done the accounting records and tax returns.

Ms Curran sought to appeal the decision made by HHJ Marshall QC at the first hearing however her appeal has now been unanimously dismissed and during the appeal decision Lewison LJ considered that Mr Collins’ excuse in relation to life insurance policies was simply an excuse rather than an intention that Ms Curran was a joint owner of the said property. Lewison LJ also found that Mr Collins’ Will merely showed that Ms Curran would have an interest on Mr Collins’ death and this was not an assurance that she had a present interest in the property. In his conclusion, Lewison LJ referred to the observation made by Lady Hale in the case of Stack v Dowden:

“The burden will therefore be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way. This is not a task to be lightly embarked upon. In family disputes, strong feelings are aroused when couples split up. These often lead the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms. They also lead people to spend far more on the legal battle than is warranted by the sums actually at stake. A full examination of the facts is likely to involve disproportionate costs.”

In “single name” cases between former cohabiting couples, such as Curran v Collins, it is increasingly difficult to satisfy the burden of proof and prove a common intention and detrimental reliance on that intention. A Cohabitation Agreement is a way to avoid such uncertainty over ownership and sets out clearly who owns what and what would happen if the relationship were to end.

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

Growing number of grandparents are seeking help and advice after being denied access to their grandchildren

There are many grandparents, who for a variety of reasons, are stopped from seeing their grandchildren and the effect of this can be devastating. Earlier this year the Justice Minister confirmed that last year there were seven applications a day by grandparents for a court order to see a grandchild after the divorce or separation of the child’s parents.

The lack of contact between grandparents and grandchildren may not necessarily be the grandparents fault, as the children’s parents may have gone through divorce, been involved in domestic violence, drugs, or imprisonment. One of the most difficult situations can be when grandparents who have previously been a major part of their grandchildren’s lives, are not allowed any contact if perhaps the son-in-law or daughter-in-law has a new partner or has moved away following separation. Figures reported by the BBC show that the Grandparents Association received more than 8,000 calls in 2014 from grandparents who had lost contact with their grandchildren.

Many grandparents may think that they cannot apply to the court as they do not have ‘parental responsibility’ for the child however, it is possible to apply to the court for a child arrangements order which sets out time to spend with grandchildren. The fact that a grandparent does not have parental responsibility for the grandchild simply means that they will have to first obtain the permission of the court to proceed with their application. As long as permission is given the application will be heard. In considering an application for permission to proceed the court will consider the factors set out in section 10 of the Children Act 1989, namely:

  1. The nature of the proposed application
  2. The applicant’s connection with the child
  3. Any risk there might be of the proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
  4. Where the child is being looked after by a local authority –
    1. The authority’s plans for the child’s future; and
    2. The wishes and feelings of the child’s parents

This is a highly emotional area of family law for the entire family. Our specialist team can advise on applications about what time a child should spend with their grandparents. 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’s successful appeal for variation of financial order on the basis that husband’s inheritance was a ‘Barder’ event.

A Barder event is a principle that was established in the case of Barder v Barder (Calouri intervening) [1987]. This principle, means that in certain circumstances, if ‘qualifying’ post-financial order events (known as ‘Barder events’) are present, the court can grant permission for either party to appeal the financial order made despite the fact they are ‘out of time’ to do so.

The conditions that would have to be satisfied before the court would grant permission to appeal out of time are as follows:

  1. That the new events that occurred since the making of the order invalidate the basis, or fundamental assumption, from which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed.
  2. That the new events have occurred within a relatively short time of the order having been made.
  3. That the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
  4. That the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.

In the recent case of Critchell v Critchell [2015] EWCA Civ 436, the wife sought to appeal a financial order which had been agreed on the basis that within a month of the order the husband received an inheritance from his father of £180,000. The wife argued that this was a Barder event which invalidated the basis upon which the financial order had been made.

The original order provided that the wife retained the former matrimonial home (worth £190,000) and there was a charge in favour of the husband of 45% of the equity in the property.

Her Honour Judge Wright allowed the wife’s appeal and varied the consent order by extinguishing the husband’s charge over the former matrimonial home. Her Honour Judge Wright considered the four conditions in Barder and held that the husband’s inheritance had invalidated the basis of the consent order.

Lady Justice Black agreed with the reasoning of Her Honour Judge Wright in that the impact of his inheritance so soon after the order was that the husband no longer needed his charge on the matrimonial home to discharge his existing debts and this was considered a fundamental change in the needs of the parties.

Baby girl should be removed from her mother and live with her father and his boyfriend – Ms Justice Russell rules.

The main issue in this case was over the nature of the parents’ agreement when the child was conceived. The mother stated that they had agreed she would be the main parent, however, the father, who donated the sperm, said the mother had agreed to be the gay couple’s surrogate. In the judgment Ms Justice Russell found that the mother really wanted a baby for herself and this was evidenced by the fact she had secretly named the girl and had her baptised in defiance of a court order.

Ms Justice Russell said that it was in the ‘best interests’ of the girl to live with her father. Ms Justice Russell also referred to the fact that the mother had used ‘stereotypical images and descriptions of gay men’ and has said that they were ‘sexually disloyal to each other’. The Judge also referred to the fact that the mother had publicised her case on Facebook and social media to try and recruit the support of others.

Ms Justice Russell found that the mother’s actions had ‘always been of a woman determined to treat the child as solely her own’ and ruled that the girl living with her father and his partner reflected the reality of her conception and accords with her identity and her ‘place within the family’.

This High Court case was heard earlier this year; however the decision has just been published.

This case is another example of how agreements reached between parents in relation to the children go wrong and cause great distress to the biological parents and their spouses or partners. This is a highly emotional area of family law for the entire family. Our specialist team can advise on applications about what time a child should spend with each parent. Consulting our specialist lawyers is a great first step, we can talk you through options, and help you to decide what the right decision for your situation is. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Pension reforms may have unintended consequences for divorcees

A pension earmarking order provides an ex-spouse with a fixed percentage of the pension income. According to Old Mutual Wealth, a large financial services company, a consequence of the recent pension reforms is that any divorcee with a pension earmarking order may need to act fast to protect their benefits.

Those with the benefit of a pension earmarking order which pays them a fixed percentage of the pension income should check immediately to see if their rights are protected now that the member no longer needs to take their pension as income and can decide to withdraw all their pension as cash. If the member takes their pension as a cash lump sum, then the ex-spouse with the benefit of an earmarking order may not receive their correct entitlement.

If you are in possession of an earmarking order it is vital that the wording of an earmarking order protects individuals from this. It is important to act promptly, especially if your ex-spouse is approaching retirement age, to check that your rights are protected. It is strongly recommended that you seek legal advice to ascertain whether any amendments can be made to the order. Our specialist team can advise on financial provision and pension settlement in divorce proceedings. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. Please contact us on 0161 927 3118 for a free 20 minute consultation.