DIVORCE PROCEEDINGS AND POST SEPARATION INCOME / ASSET ACCRUAL

We have a lot of enquiries as to what happens with income and assets that have been accrued after parties have separated from their spouse but prior to Divorce. Examples could include salary, bonuses, redundancy payments, inheritance or another property.

The law states that all assets accrued during the marriage and indeed cohabitation (when the parties live together before they are married) form part of the ‘matrimonial pot’ and are capable of being shared. So what happens to post separation assets as technically you are still married although you are no longer in a relationship?

There have been a large amount of cases through the Courts that have considered this issue.

In the recent case of Hart v Hart [2017) EWCA Civ 1306, Lord Justice Moylan set out a three-stage approach to this question;

  1. The court must determine whether there is non- matrimonial property. It is open to the court to find there is not non-matrimonial property in view of its materiality and / or relevance.
  2. If there is a “clear dividing line” between non-matrimonial property and matrimonial property then the court can apply that distinction i.e. clearly separate the assets accrued in the marriage and the assets accrued after separation. However if this is not possible the court should undertake a broad evidential assessment and leave questions of division until stage 3 (below).
  3. The court must then undertake an overall assessment of fairness with reference to the section 25 factors of the Matrimonial Causes Act 1925.

It seems that if the accruals are deemed non – matrimonial and can be clearly shown that they are post separation and not relevant to the marriage that they then should not be subject to being shared with your spouse.

However, in a more recent case of C v C [2018] Roberts J stated that point 3 (above) is likely to be limited to considerations of need and compensation (as per the s25 factors).

In simple terms therefore the approach can be set out as follows:

  1. The Court will look at whether they can determine what assets have been accrued post separation and have not been mingled with matrimonial assets (i.e. assets obtained after the parties have separated).
  2. If the Court can distinguish this then the Court can draw a line to separate the assets accordingly and exclude them from the ‘matrimonial pot’. However, if it cannot be distinguished (i.e. the lines are blurred for example in a business venture that was started before the marriage which the other spouse supported) then the Court will look at the facts of each case and the assets overall to determine what will be a fair division.
  3. However, the Courts will consider need as the paramount concern i.e. whether one party has a higher need than the other for a larger share of the assets (for example due to a large difference in income, earning capacity, housing requirements etc) OR whether someone should be compensated (i.e. for a loss of pension rights due to the separation as you were relying on your spouse’s pension to support you when you reached retirement age, or you gave up your career to support your spouse’s business or to care for the children etc). Therefore, if it is found that the spouse who has not accrued the post separation assets has a need or is entitled to compensation, then the post separation accrual will not be excluded and the assets will remain in the matrimonial pot for sharing.

The law surrounding financial division of assets can be difficult and complex to understand. Therefore, our team of specialist family solicitors are on hand to assist you.  We offer 30 minutes free initial advice appointments and also offer payment plans. 

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Unfaithful Friday?

We have woken up to the news that a survey has been released by a dating website for married people, revealing that there is increased activity today in those searching for an extra-marital affair. The media has dubbed this day “unfaithful Friday.”

So what can you do if you have found your husband or wife to have been unfaithful?

This doesn’t have to signal the end of your marriage. Relate is an organisation which can help couples through difficult times, provide counselling and other services to help you with your marriage. More information can be found on their website at www.relate.org.uk.

However, if your marriage has come to an end, adultery is one of the five facts upon which you can rely upon in divorce proceedings to prove the irretrievable breakdown of your marriage. The third party does not have to be named within the divorce proceedings but in order for the petition to proceed smoothly, the party who has committed the adultery will need to confess to this.

Going through divorce proceedings can be extremely upsetting, particularly when one party feels that they have done nothing wrong and adultery can come as a shock. However, here at McCarthy Bennett Holland our family Solicitors are trained members of Resolution and we will assist you through this difficult time by providing advice to assist you in reducing conflict, looking at ways to put the children’s interests first, and provide you with all options available. We can also refer you to mediation in order to help you sit together and discuss how you will separate to provide an amicable resolution for all.

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Should I Stay or Should I Go? Ant McPartlin “Told Off” by High Court Judge for Non-Attendance at Hearing

We have seen many a news story recently regarding the divorce of Ant and Lisa. Indeed, many of us, family lawyers included, have been glued to our mobile phones awaiting the next ‘breaking news’ alert. It seems that the couple are now in financial proceedings to resolve their financial matters after being granted Decree Nisi last month. The parties remain married until Decree Absolute is pronounced.

The latest news is that the couple were due to attend a “preliminary hearing” so that the Court can begin analysing issues relating to the division of their assets. This is most likely to be the First Directions Appointment, the first hearing in a three-tier hearing system for the parties to resolve the issues surrounding their matrimonial finances.

However, it is reported that Ant did not attend the hearing and has received a “telling off” from the Judge. The Judge is reported to have said “there isn’t one law for the famous and one for the rest of the community.” Indeed, Family Law Procedure Rule 27.3 tells us that all parties must attend a hearing of which they have been given notice, unless the Court directs otherwise.

Anyone going through a similar situation should heed this warning; the Court can make any Order that they see fit during the course of the proceedings. To ensure that you have your opportunity to put forward your side to the Court, even if you are legally represented, you must attend a hearing or risk an Order being made in your absence which you may not be happy with – even if you are part of the rich and famous!

If you require any advice regarding your finances following your separation / Divorce or help and assistance throughout the Court process, please contact our specialist family team on 01942 206060.

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Civil Partnerships for All!

Further to our blog in June this year, Theresa May has today announced that heterosexual couples in England and Wales will be able to choose to enter into a civil partnership rather than to enter into a marriage. This is previously a choice which was not available for heterosexual couples and means that a change in the law will now take place.

The government says that the change in this law will provide greater security for unmarried couples who wish to formalise their relationship but do not wish to be married. Unmarried couples do not have the same rights as married couples in relation to financial matters such as pensions and inheritance. However, the change in the law will mean that those in a civil partnership will be able to enjoy the same rights as married couples, without the restriction of marriage, whether they are same-sex or heterosexual.

This announcement has been eagerly anticipated following the ruling of the Supreme Court earlier this year in the case of Rebecca Steinfeld and Charles Keidan whereby the Court ruled that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights as it did not provide equal rights for same-sex and heterosexual couples.

The Prime Minister has said the move would give all couples the same choices in life.

The Equalities Minister has said that the change in the law would need to be fully considered but that it will happen “as swiftly as possible”.

Keep an eye out on McCarthy Bennett Holland’s blogs for more updates as and when they happen!

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Should you re-register a child’s birth if you later marry?

The first thing you should consider is whether the father has parental responsibility.

What is Parental Responsibility?

Section 3 of the Children Act 1989 defines this as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

What Does this Mean in Practical Terms?

This means that all persons with Parental Responsibility should have input in relation to important decisions in relation to the child. For example this will include:-

  1. Education;
  2. Choice of name or future change of name;
  3. Medical treatments;
  4. Religion;
  5. Holidays (particularly abroad)

However, having Parental Responsibility does not automatically entitle a parent to have contact with a child. The right to enjoy a relationship with their parent(s) lies with the child. However, the responsibility to make decisions and safeguard a child lies with the parent(s). Does a Father have Automatic Parental Responsibility?A mother will automatically have Parental Responsibility. However, this is not the case for fathers.

A father will have Parental Responsibility if:

  1. He is named on the birth certificate (post 1st December 2003);
  2. He is married to the mother at the time of the birth (this is not lost upon any subsequent divorce).

A natural father will also gain Parental Responsibility by virtue of marrying the mother (this does not apply to step-parents). However, it is little known to many parents that it is necessary to re-register the birth under the Legitimacy Act 1976 with the Registrar General. Section 9 states:-

  1.  It shall be the duty of the parents… to furnish to the Registrar General information with a view to obtaining the re-registration of the birth of that person within 3 months after the date of the marriage.
  2. The failure of the parents or either of them to furnish information as required by subjection (1) above in respect of any legitimated person shall not affect the legitimation of that person.
  3. Any parent who fails to give information as required by this section shall be liable on summary conviction to a fine not exceeding £2.T

his appears to be an issue in relation to matters of inheritance. Parents may be advised that if they do not re-register the birth after marriage, should they go on to have further children in their marriage, such children have more ‘rights’ when it comes to inheritance of the estate on death.

 

 

However, this does not appear to necessarily be the case. Point two above clearly states that the failure to re-register will not affect the legitimisation of that child.

If you die without leaving a Will, and your children were to inherit under the intestacy rules all children of the parent who has died intestate will be able to inherit equally from the estate under the Family Law Reform Act.

Therefore, it would appear that the only situation where the legitimacy of a child may affect their inheritance is if a parent were to specifically write in to his or her Will a clause which only allows legitimate children to inherit to avoid any “secret” children being able to inherit, or if only specific children were named, but even then a child may still be able to argue that they should be able to make a claim upon the estate. In any event, any child born prior to the marriage (illegitimate) would become legitimised by the marriage of their parents, whether or not they re-register.

There are no known cases to us here at McCarthy Bennett Holland where a parent has incurred the £2 fine set out above.

It should be noted that there are other ways that a father may gain Parental Responsibility’ which are:-

  1. Having his name registered on the birth certificate if his name is not already registered or re-registered for example if the child was born pre – 1st December 2003;
  2. Entering into a Parental Responsibility Agreement with the mother;
  3. Making an application to the Family Court for and obtaining:-
    • A Parental Responsibility Order;
    • A Residence Order;
    • A Child Arrangements Order and being named as the resident parent.

If you require any further information or assistance, please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

Stuck In An Unhappy Marriage – Literally

It has been in the headlines recently regarding a couple who wished to Divorce but did not pass the test of unreasonable behaviour and as such the Courts refused to grant them a Decree of Divorce.

The Law

Under the current law in England and Wales, to obtain a Divorce you must prove your marriage has irretrievably broken down based upon one of five facts; adultery, unreasonable behaviour, desertion, two years’ separation with consent of your spouse or, lastly, the only other way to obtain a divorce without your spouse’s consent is to live apart for a period of five years.

Owens v Owens

In this case, Tini Owens, 68, has been denied a divorce from her husband, Hugh Owens. The Supreme Court ruled that a joyless marriage is not a sufficient reason without the consent of both parties.

It is not unusual to hear of couples separating because they’ve fallen out of love or simply don’t see eye to eye anymore. However, the law currently states that these reasons would not be sufficient grounds for a divorce. Mrs Owens petitioned the Court for a divorce in May 2015 based upon unreasonable behaviour claiming that her husband prioritised work over family life, no longer treated her with affection, and was often moody and argumentative. She was denied her divorce as it was said that she hadn’t provided evidence that her marriage had, in the legal sense, irretrievably broken down.

Mr Owens, 80, defended the divorce denying the unreasonable behaviour cited in the petition, and stating that if the marriage had in fact broken down, it was the fault of Mrs Owens, not him.

As Mr Owens would not provide his consent to petition based on 2 years’ separation and after exhausting all of her possible appeal routes, Mrs Owens now has no option but to remain in the marriage until at least the year 2020 when the couple will have been separated for 5 years and the consent of Mr Owens is no longer required for her to divorce him.

The Future

Family Lawyers in England and Wales have been eagerly awaiting the outcome of this case as they have campaigned for a change to the law to introduce a ‘no fault’ divorce so couples who have simply fallen out of love can proceed to issue divorce proceedings. It is hoped that this case will highlight how important a change in the law could be for couples going through divorce so that they can both move on with as little distress as possible.

Keep an eye on Resolutions website and Twitter feed for further updates regarding their campaign for no fault divorce.

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors