Month: May 2016

Domestic violence victims in England and Wales are still being ‘let down’ by the police

Domestic violence and abuse is defined by the government as controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members, regardless of gender or sexuality.

Theresa May, home secretary, has said that there have been improvements in how the police deal with victims of domestic violence and abuse since a review in 2013 however ‘examples of the same shameful attitude’ persist. The home secretary spoke at the Police Federation’s annual conference and said ‘Victims of abuse are still being let down and reports are not being taken seriously enough’.

The findings of the review in 2013, by Her Majesty’s Inspectorate of Constabulary (HMIC), into the way police handled domestic abuse found victims were not treated with respect and one example was a victim who overhead a responding officer say: “it’s a DV, we’ll be a few minutes and we’ll go on to the next job”.

The Home Secretary said that more victims are coming forward and crimes are being properly recorded which is resulting in more convictions however she commented that ‘we continue to see examples of the same shameful attitude that HMIC uncovered in 2013’. The Home Secretary has therefore now asked the HMIC to investigate this issue.

If you are experiencing abuse following your separation or fear that your former partner is acting in a vengeful manner, you can talk to us in complete confidence about the legal steps you can take to bring your abuser to justice and to legally end your relationship. Our Family Law specialists will handle your case with sensitivity and provide the proper advice and guidance you need. Please contact us for a free 20 minute consultation on 0161 927 3118.

Family Division President declares that UK law discriminates against single parents with children born through surrogacy

Sir James Munby, President of the High Court Family Division, has made a formal declaration that UK law unfairly discriminates against single parents with children born through surrogacy and is incompatible with their human rights.

In Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam) an application was brought by the biological father of a 21 month old boy born through a recognised US surrogacy arrangement who lives with his British single father in the UK. Last year, the High Court ruled that it could not grant a UK parental order (the order which is required to extinguish the parental responsibilities of the surrogate and to issue a UK birth certificate for the child), because at present, UK surrogacy law only allows couples, not single parents, to apply. The High Court ruled that the surrogate who carried the child had sole decision-making rights in the UK. The child was therefore made a ward of court.

The High Court has now said that the decision, although legally necessary, was incompatible with the father and the child’s human rights and that the law unfairly discriminates against both the father and the child.

The Secretary of State for Health has also conceded that the law is incompatible with human rights legislation. The government has not yet said whether it plans to take action to change the law. Although it is for Parliament to change the law, declarations of incompatibility from the High Court carry significant weight in prompting legal change.

The father of the child responded to the recent judgment and said:

‘I am delighted by today’s ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy. I have a son who I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court.’

To read the full judgment click here:

‘Divorce mortgages’ could be introduced by the end of the year

Reports are being made that lenders have engaged in discussions to introduce an innovative ‘divorce mortgage’ to deal with the increase in over 50s having to sell their homes after separation. Over 50s account for the largest increase in the divorce rate and according to research from Nationwide, 28% of divorcing couples end up having to sell the former matrimonial home.

Divorcing couples often have to sell the former matrimonial home due to the fact that if one partner decides to remain in the home, lenders will often insist on a larger deposit (usually 25%). The partner who remains in the former matrimonial home person may well rely on maintenance payments from their ex-spouse to be able to afford the mortgage and most lenders require a court order stipulating maintenance payments in order to satisfy themselves that the former partner can afford to pay the mortgage. Some lenders will accept evidence of private (non-court) agreements however they will require proof of six months of maintenance income to offer the loan.

Experts have also reported that affordability checks introduced two years ago have made keeping the family home even more difficult after separation.

It is hoped that the ‘divorce mortgage’ would allow one partner to borrow enough money to buy their former partner out for a set period of time, so one half of the couple can stay in the former matrimonial home. This arrangement would be particularly useful for couples with dependant children or where there is a mutual agreement that one partner should stay in the former matrimonial home for financial reasons.

The ‘divorce mortgage’ does not yet exist, however it has been reported that lenders are considering it and have said that it could be introduced by the end of the year.

If you are considering dealing with your finances upon separation 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

Women Can Benefit From Unfaithful Partners In The Long Term

A partner being unfaithful can come as a huge shock and often a blow to the self-esteem of those involved but a new study provides hope for the future if you happen to be a woman.

The study which looked at nearly 6,000 people across multiple countries by University College London and Binghamton University in New York State who had experienced their partners being unfaithful found that the women involved in the breakups were the most likely to benefit.

With adultery being one of the main reasons for divorce, couples often breakup as a result of infidelity. One consolation for the women involved with unfaithful partners is that they ended up happier in the long term following the end of the relationship.

Unfortunately this gender advantage didn’t stretch to the ‘other woman’. They were often less happy with their new partners due to them having already demonstrated their potential to be unfaithful.

The researchers concluded that women who have come through relationships where a former partner has been unfaithful will be choosier the next time. It was even speculated that this response from women could be part of some evolutionary benefit linked to higher mating intelligence.

Islamic marriage and divorce

What constitutes a valid Islamic marriage?

– A valid Islamic marriage requires mutual agreement, two adult witnesses and a marriage gift (mahr) to be paid by the groom to the bride.

– Many muslim couples also have a marriage contract (nikah) in which they seek to agree terms and conditions of their future together.

The above conditions are sufficient to create an Islamic marriage in accordance with Sharia law. If the marriage takes place in a country which recognises Sharia marriages as valid then in the eyes of English law the marriage will be valid. However, if the marriage takes place in England, it will not be recognised as valid unless the marriage takes place at a registered venue, such as a registered mosque.

Divorce under Islamic law
A talaq or ‘declaration of divorce’ is used to end an Islamic marriage. The rules vary significantly depending on the country in which this is performed. Under Islamic law, following the talaq, a period of waiting (90 days) (iddah) is also required, during which the couple are supposed to try and reconcile. Should the 90 day period come to an end without reconciliation, under Islamic law the couple will be divorced.

If the former Wife wants an Islamic divorce she must approach the Sharia council, complete an application form with a copy of her nikah (contract) or a sworn statement with evidence that the marriage took place. This attracts a fee. Where there have been parallel civil proceedings the Islamic divorce is swiftly granted, upon obtaining a decree absolute from the court, either party may apply to the Sharia Council to obtain an Islamic divorce, there is a fee for this and a copy of the decree absolute certificate should be filed with evidence. The Sharia Council will then issue an Islamic divorce.

For more information on whether your talaq will be recognised in the UK, you can read our previous blog on this matter at:

Divorce under English/Civil law
In England, whilst the talaq is the religious decree involved in divorce, a decree of divorce under the Matrimonial Causes Act 1973 must also be obtained to end any civilly recognised marriage.

Finances following divorce under Islamic law
Following an Islamic divorce, under Sharia law the husband will no longer be financially responsible for the wife, and will not have to pay her any capital or spousal maintenance. As such, it is sensible to try to time the religious divorce to coincide with any arrangement for financial provision if possible, whether that is by agreement or in relation to the English civil law proceedings required to bring the civil marriage to an end.

For advice and guidance on this area of family law or to discuss your current situation please contact our specialist lawyers on 0161 927 3118 to arrange an appointment.

Saudi Arabian wives given the right to a copy of their marriage contract

The kingdom’s justice ministry in Saudi Arabia has announced that Saudi brides will now get a copy of their marriage contracts, a privilege that was previously exclusive to men.

According to a directorate issued by the justice minister, Walid al-Samaani, clerks who register marriage contracts will now have to hand a copy to the bride as well as the groom ‘to ensure her awareness of her rights and the terms of the contract’. This decision has been brought about to protect the rights of women and facilitate procedures for them.

The kingdom’s justice ministry has also said that the decision to extend this right took into consideration the fact that a woman would need a copy of her marriage contract in the event of a dispute with her husband during divorce and financial proceedings.

The first annual decline in marriages since 2009

The Office for National Statistics has released statistics relating to marriages in England and Wales in 2013. These statistics shows that the number of marriages in 2013 fell by 8% and this is the first decline since 2009.

Of all marriages in 2013, civil ceremonies accounted for 72%, religious ceremonies had decreased by 14% and civil ceremonies by 6% in 2013. The average age for marriage was 36.7 years for men and 34.3 years for women in 2013. The statistics also showed that those aged 65 and over were more likely to marry in 2013 compared with 2003, with the greatest increase among women.

Elizabeth McLaren, from the Vital Statistics Outputs Branch in the Office for National Statistics has commented on the change:

“Fewer people got married in England and Wales in 2013, the first decrease in marriages since 2009. The fall could indicate the continuation of the long-term decline in marriages or could be due to couples choosing to postpone their marriage to avoid the number 13 which is perceived as unlucky by many cultures.”

To see a full copy of the statistics report click here:

Parents recording conversations during contact handovers – do the risks outweigh the benefits?

An increasing area for disputes during family separation is about what was said and how things went during contact, especially during the handovers of children from one parent to another. Secretly recording what occurs during that time can be viewed as an invasion of privacy and trust between parents and family members; however some are of the opinion that there are possible benefits of recording conversations and events covertly.

There can be legitimate reasons for recordings to be made in Children Act proceedings. These can include:

– A parent not wanting to rely on memory of events such as a meeting or contact visit.
– A recording of events as evidence is a record of the other parent’s behaviour and that of the children during a contact handover. This information can be vital where it is alleged that the children are not happy to go for contact with another parent or where there are allegations of abusive behaviour by a parent.

CAFCASS have stated in its Operating Framework document, in relation to covert recording of a parent’s conversation with CAFCASS that:

“We have nothing to fear from covert re cording. Our attitude should be “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts”

CAFCASS have also identified recording that practitioners may be asked to watch or hear. These include: a recording of a contact session with a child without the other party’s knowledge or the consent of the Court and a recording of a telephone conversation with the other party or another person. CAFCASS guidance for practitioners in this position gives several considerations that should be taken into account including:

– There is a possibility that records may not be authentic, accurate or complete;
– In accepting the recording, the practitioner may appear to be influenced by one party over another;
– Once the practitioner has seen/head the recording, it must be provided to the parties and the court, if it is relied upon.

CAFCASS guidance further states that if a practitioner is offered such material, they need to be aware that whether it is admitted into evidence will be a decision of the court and there may be issues raised by other parties about the validity of the material. The guidance recognises that while it may be appropriate to read/listen to the recordings the practitioner should decline to accept it until the recording has been brought to the attention of the court and the court’s decisions have been obtained. To see a full copy of the Operating Framework and guidance click here:

The main statute in relation to cover recording is the Data Protection Act 1998. However, this does not prohibit covert recordings for personal or family use (section 36 of the Data Protection Act).

Possible problems with covert recording is that the child may discover that they are being recorded and ask why, if a child discovers that they are being recorded they may find this distressing and by angry and upset by it. Another difficulty is that covert recording is likely to result in resentment and damage to relationships between the parents from loss of trust. Covert recording is often regarded as an infringement of privacy at a personal level, regardless of legal principles. The Court’s attitude towards covert recording varies enormously and there have been cases which indicate that the fact of recording, either covertly or overtly, at handovers or family arrangements is capable of attracting a non-molestation order where it amounts to harassment (Re C (a child) [2015] EWCA 1096).

In conclusion, parents who covertly record events such as conversations with professionals, during contact handovers or contact itself, are not necessarily contravening any statute or rule of law. Many factual disputes between parents are about children’s attitudes towards contact handovers and contact itself. Provided that there is no risk of significant harm to a child in covertly recording and the recording is made for the purpose of providing proof of the truth, there is a good argument in favour of such recording where necessary, especially as in any event the court would control the subsequent use of such recordings.

High Court rules three children of mother who tried to take them to Isis controlled territory must stay with their grandmother in the UK

In the recent case of Leicester City Council v T [2016] EWFC 20, the High Court has ruled that the three children (aged between 4 and 12) of a woman who tried to take them to an area of Syria controlled by the Islamic State must live with their maternal grandmother.

The mother was arrested at Birmingham Airport having checked in nine suitcases on a flight to Munich. The mother initially stated that she and the children were taking a holiday to see their father in Munich and then travel to France. However, the mother’s luggage showed an itinerary which contradicted this and showed a plan to travel onward from Germany to Turkey, where she had booked three nights’ accommodation in Istanbul.

A mobile phone belonging to the woman was also seized after her arrest last summer which contained images of children carrying firearms and wearing balaclavas bearing the Isis emblem. A further examination of electronic devise and mobile phones at the family’s home indicated that the mother had been in conversation with a large number of people known to be linked to the Islamic State.

After initially being taken from the woman under a police protection order and placed into temporary foster care, Mr Justice Keehan, who sits in the family division of the High Court, said that it would not be in the children’s best interests to return them to their mother’s care and ruled that they should live with their maternal grandparents.

No specific order was made in respect of contact and the judge gave no indication as to whether the woman had faced criminal charges.

Isle of Man Approves Gay Marriage

The Isle of Man parliament has recently voted to approve gay marriage on the island, which leaves just one country in the British Isles opposed to gay marriage.

The bill to legalise gay marriage was approved in April by the High Court of Tynwald which is responsible for setting laws on the island. The Isle of Man has the freedom to make its own laws due to its status as a crown dependency.

The decision to legalise gay marriage on the island marks the final step on the journey to acceptance of gay relationships. The island had a reputation in the 80s and 90s for its opposition to homosexuality and only legalised same sex relationships as recently as 1992 – becoming the last part of the British Isles to do so.

This has not been the case with gay marriage however, and the decision to make it legal, subject to the law receiving Royal Assent, means that only Northern Ireland remains opposed to gay marriage in the British Isles.

Commenting on the change in the law, chief minister of the Isle of Man, Alan Bell, said “It’s a totally logical human right and human expectation that straight couples and gay couples should be able to enjoy life with the partner that they choose and I totally support that.”