Month: July 2015

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.

Court of Appeal upholds judgment summons in respect of non-payment of maintenance arrears – Prest v Prest to return to Supreme Court

The Court of Appeal in Prest v Prest [2015] upheld a judgment summons in respect of non-payment of maintenance arrears. The former couple had 4 children, were married for 15 years and separated in 2008. The final order made at the end of financial remedy proceedings provided for the husband to pay a lump sum to the wife of £17.5m (by way of property transfer) and pending this lump sum to pay periodical payments to the wife at the rate of 2% per annum on the amount outstanding in relation to the lump sum.

The wife made an application for judgment summons alleging non-payment of arrears and Mr Justice Moylan granted a judgment summons and imposed a penalty of 4 weeks imprisonment but suspended that sentence provided the husband paid the arrears due within 3 months. The Husband appealed this decision and the Court of Appeal upheld the decision. As part of the appeal the husband asserted that the judge’s refusal to adjourn and investigate the husband’s ill health denied him a fair trial however the Court of Appeal found that the judge approached the matter properly. The Court of Appeal also rejected the argument that the husband’s application to vary the order remained outstanding therefore a judgment summons application could not proceed. The Court of Appeal also found that a 4 week prison sentence was not excessive considering the arrears due totalled £320,000.

Mrs Prest’s solicitors have said that the decision confirms judicial findings which have been made against Mr Prest and rightly considered his persistent breaches of court orders. The solicitors for Mr Prest have indicated that their client intends to appeal against the Court of Appeal’s decision and take the matter to the Supreme Court.

We have a lot of experience in dealing with the enforcement of financial orders. If your former partner or their solicitor has accused you of failing to comply with the terms of a financial order, or your former partner has breached the terms of an order then we strongly recommend that you seek legal advice immediately. Our specialist team can advise on whether you or your former partner are in breach of the order and, if so, what the consequences of this may be. 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.

Channel Islands Drop Same Sex Adoption Restrictions

Both Jersey and Guernsey have decided to drop laws that prevented same sex couples from adopting children.

Guernsey decided that its adoption law, which was introduced in the mid- 1960s to prevent same sex couples from adopting children was now inappropriate. The recent change in the law will see same sex couples being free to adopt children for the first time in Guernsey and Jersey.

The change in the law allowing same sex couples to adopt will be viewed as a major step forward and put an end to discrimination as well as bring the Channel Islands into line with the UK and most other European countries.

The laws over same sex adoption while liberal in most countries are still under debate or ambiguous in some countries particularly in many Eastern European countries and Italy.
In Jersey, children aged 14 will be able to veto adoption orders and the law change also means that unmarried same sex couples can now jointly adopt a child even if a child aged 14 or over needs to be in agreement for the adoption to commence.

As reported on the BBC website Andrew Green, Health and Social Services Minister of Jersey said, “It makes Jersey’s law fit for purpose and compliant with our own discrimination laws. At the heart of the legislation is the welfare of the child and the right to a loving and secure home.”

Court of Appeal decision to order husband to hand over 100% of fortune to former wife – exceptional but fair

Dr Essam Aly, an Anaethetist, separated from his wife Enas, a GP, in 2011 and moved to Bahrain. The couple were married in 2002 and had two children prior to separation. Dr Aly has not paid any maintenance or child support since 2012. During his time in Bahrain, Dr Aly started a relationship with another woman and had an Islamic marriage ceremony with her and they had a child together. It was feared that Dr Aly would never support his ex-wife and two children again and therefore Family Court Judge Mark Rogers made a ruling that the entire £550,000 of the family assets should go to Enas. The Court of Appeal have recently upheld this decision and dismissed Dr Aly’s appeal.

Dr Aly’s barrister, Louise McCabe, argued at the appeal hearing that there was substantive unfairness in giving the wife 100% of the couple’s assets and she felt that the judgement failed to consider Dr Aly’s needs. Ms McCabe also referred to the fact that Dr Aly was hoping to return to the UK and had applied for jobs and had previously informed Enas he was willing to pay £40 per week support for each child.

This decision is an extraordinary departure from equality and in upholding the decision Lord Justice McFarlane questioned what else a judge should do when ‘faced with a serial defaulter, to make proper provision for this family?’ and referred to the fact the wife was looking after the children and the father had ‘washed his hands of them’. Lord Justice McFarlane felt that there was no realistic expectation of getting any further maintenance from Dr Aly as he was beyond the reach of enforcement of courts in this country and the welfare of the two children had to be of paramount consideration.
The Court of Appeal concluded that Enas should have the larger share, if not all, of the assets as she needed them to house herself in appropriate accommodation and make provision for the children of the family.

Although it is not unusual for there to be a departure from equality in financial proceedings an award of 100% of the matrimonial assets is very unusual. Lund Bennett Law have a great deal of experience in this area of law and have come across an ‘unusual’ case similar to that of Essam and Enas Aly. We previously acted for a woman whose former husband moved abroad and refused to engage in financial proceedings and failed to attend court hearings. There were no children of the family. In this case the court ordered the wife should have all the assets in the UK and those which were available abroad due to her former husband’s failure to engage in the court process. These cases demonstrate the flexibility of the family court and the discretionary powers which can be used to protect the interests of a disadvantaged party when dealing with, as Lord Justice McFarlane put it, a ‘serial defaulter’.

Our specialist team can advise on applications for financial provision and financial settlement upon separation. 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

Figures from the Office of National Statistics show long-term rise in divorce rates

The Office of National Statistics recently released their latest figures for the marital status and living arrangements of individuals living in England & Wales. These statistics show:

– In 2014, 51.5% of adults were married or in a civil partnership and 33.9% were single, never married.

– Between 2002 and 2014, the proportion of adults who were single or divorced increased and the proportion of adults who were married or widowed decreased.

– The increase between 2002 and 2014 in the percentage of the population who were divorced was driven by those aged 45 and over, with the largest percentages divorced at ages 50 to 64 in 2014.

– In 2014 around 1 in 8 adults in England and Wales were living in a couple but not currently married or civil partnered and cohabitation is most common in the 30 to 34 age group.

The rise in divorce amongst older couples has been a trend for a few years. This can be explained by the change in social attitudes towards divorce. It has been suggested that older generations have realised that they can separate without conflict and lead happier lives. Divorce is much more acceptable than it once was and the availability of internet dating and increased use of social media is believed to have contributed to helping people find new ways to find others who share their hobbies and interests.

The increase in younger couples cohabiting can also be explained by social perceptions and attitudes towards cohabiting changing and also financial issues due to the economic crisis and the rising cost of housing. However it is important to that cohabitants are aware that there is no such thing as a ‘common law partner’ and they do not automatically have rights in the event of separation in the same way that married couples do. One way to avoid these issues is to get a Cohabitation Agreement, this will regulate how property and other assets are divided in the event of separation.

If you need advice on divorce, cohabitation or any other area of family law please do not hesitate to contact our experienced legal team on 0161 927 3118 for a free 20 minute consultation.

£30 Million Pledge To ‘Speed Up’ Adoptions In UK

The government has decided to help speed up the adoption process with a £30 million pledge reports the BBC, which is likely to maintain the recent rise in the numbers of children being placed with adoptive parents.

The main barrier for local authorities finding adoptive parents for children in care has been the cost which normally adds up to about £27,000 per child. Despite this, the number of children adopted has risen from 3,200 in 2010 to 5,050 according to the most recent data from 2013/14.

The average time it takes for local authorities to find adoptive parents has also fallen from 656 days in 2012/13 to 533 in 2013/14 according to the BBC. Yet there are still said to be difficulties in placing children that have special needs and it is this that the government hopes its pledge will help so that children are given every chance of finding a stable loving home.

Commenting on the pledge, The Prime Minister David Cameron “I am determined to tear down the barriers to children in care being found loving adoptive parents. The average time it takes to place a child with a new family has been falling and I am delighted we are able to offer this funding to try to ensure it falls further.”

Mother faces committal proceedings after defying two court orders and running away with son

The case of Rebecca Minnock, a mother who went missing with her three-year-old son Ethan, has been the subject of great publicity over the past few weeks. On 27th May, a district judge ordered that Ethan should live with his father, Roger Williams after finding that Miss Minnock had exposed her son to emotional harm and obstructed contact between Mr Williams and his son. It has been reported that a child psychiatrist, a social worker and a guardian recommended that Ethan should live with his father and have supervised contact with his mother. Prior to this hearing Ethan had been spending four nights a week with his father and three with his mother. It was 27th May when Miss Minnock disappeared with Ethan.

Miss Minnock handed herself and her son in to the police on 12th June, after 17 days of living ‘on the run’ and contacted The Sun to inform them that her child is well but she has lost trust in the justice system.

His Honour Judge Wildblood QC lifted reporting restrictions around the case in an effort to find the mother and child. He has responded to Miss Minnock’s comments and stated that ‘it is important the public understands the seriousness with which the court approaches the task of ensuring, if at all possible, that both parents maintain an effective relationship with the child’.

Earlier this month Miss Minnock’s mother and her mother’s partner were jailed for withholding information about Ethan’s disappearance, both have since been released. Miss Minnock acted in complete disregard of an order of the court and will face committal proceedings later this week.

There was a directions hearing on Wednesday 24th June ahead of the full hearing on Friday 26th June and His Honour Judge Wildblood QC has said that both these hearings will be held in public at Bristol Magistrates’ Court.

US Supreme Court rules that same-sex marriage is a legal right across the United States

In a 5-4 majority decision, the Supreme Court made it legal for same-sex couples to marry in all 50 states. Prior to this decision, only 37 states permitted same-sex marriage. Following this decision, the 14 states with bans on same-sex marriage will no longer be able to enforce them. It has been reported that same-sex couples in the affected states including Georgia, Michigan, Ohio and Texas rushed to get married on Friday 26th June.

President Barack Obama has said the ruling was a ‘victory for America’ and tweeted that day stating ‘Today is a big step in our march toward equality. Gay and lesbian couples now have the right to marry, just like anyone else. #LoveWins’.

Justice Anthony Kennedy in delivering his opinion for the majority stated that the right to marry was ‘based on history, tradition and other constitutional liberties inherent in this intimate bond’. Although many were delighted, the Supreme Court decision has also angered many opponents of gay marriage.

The case considered by the Supreme Court concerned Mr Obergefell, who lived in Ohio, and was not recognised as the legal widower of his late husband. In recent years, a number of legal rulings and a dramatic shift in public opinion has expanded gay marriage in the United States and this decision reinforces this shift in opinion.

Wife’s application to require husband to pay £8.49m plus interest and fees to enable the completion of a property purchase allowed.

In the case of DH v HN [2014] EWHC 3435 (Fam) the husband (unnamed) was ordered to pay £8.49 million to enable the wife to purchase a property.

The wife in this case applied for what is called an ‘interlocutory injunction’ to require her husband to pay this sum. An ‘interlocutory injunction’ is an order made during ongoing court proceedings which requires someone to do or to refrain from doing certain things.

The parties married in 1997 and the marriage broke down in November 2011. Decree Nisi was pronounced on 20th July 2012 and in April 2013 the wife commenced financial remedy proceedings. The husband and wife were engaged in ongoing financial remedy proceedings and the wife’s claim for an injunction was brought as a civil rather than as a claim in family law proceedings. The wife’s argument was that the payment was enforceable under contract law however the husband disputed this.

The husband wished to sell the former matrimonial home and the wife agreed, on the basis that he would finance the purchase of a new home for her and the children. It was the wife’s case that in Autumn 2013 the husband informed her that he would fund the purchase of an alternative home for her and the children and indicated how funding would be obtained. The wife made an offer on a property in London worth £16.7million and after discussing with the husband’s solicitors this arrangement offered £16.25 million and this offer was accepted.

The mortgage was to be guaranteed by the husband but taken out in the wife’s name. The husband’s solicitors were informed that the sum of £8.49 million was required to complete the sale however the husband did not make the payment required due to disagreements during the financial proceedings. The husband tried to argue that the financial settlement and the property agreement were linked and one could not be completed without the other.

The wife stated that the property agreement was a binding Xydhias agreement. These agreements are agreements reached during the course of proceedings which are still valid despite not yet being complete. Mr Justice Moylan concluded that the agreement made in relation to the property was separate to financial proceedings. He also added:

‘Conversely, if completion takes place, there will be an asset which has been purchased for just under £11 million. It will provide the security which, currently, a property in Central London appears to provide. It is accepted that it is only part of the wife’s claims. I do not see that the husband will suffer any financial prejudice or injustice, at all, if I make the order sought by the wife.’

Accordingly an order was made for the husband to pay the sum required to complete the purchase, namely £8.49 million plus interest and fees.