Do you think court proceedings are the only option now mediation has broken down? Think again. Think family Arbitration. Ask your solicitor for information. 

Don’t believe that family arbitration is more expensive than court it can actually work out cheaper. It’s confidential, binding and quicker.  Why spend 12-18 months minimum in court if you can avoid it? 

Your solicitor should be talking to you about arbitration as a much better alternative to court. It can also work with mediation if the mediation breaks down because there is something you can’t agree on. 

Even if you are in court proceedings now and are angry and frustrated by delays and the Court’s mismanagement of your case you can choose arbitration. You and your ex can agree to suspend the court process to have the case decided by arbitration. 

Arbitration works. 

Just spent a day in court unexpectedly conducting a final hearing!
I took on a financial case where the couple have been acting for themselves over the last two years with very little success. They had managed to make virtually no progress in their case and seemed no closer to achieving a result despite a number of court hearings and directions orders. 
The wife had consulted me a couple of times this year and finally decided to take the plunge and make a payment to my firm using her credit card. I understand how difficult that was for her as she is a full-time student and she was anxious about the cost of involving a solicitor.

I was therefore instructed only two weeks ago and with a long list of court ordered directions that had not been complied with. It looked very unlikely that the hearing would proceed and I told my client so. I wrote to the husband suggesting an adjournment but he refused.

I did not have all of the papers as many documents have not been saved by the parties and I had had no control over the financial documents that had been prepared in the case. Further I had not had the opportunity of ensuring that all of the directions orders had been complied with. 

The information given to me suggested that the hearing today was to be a directions hearing. That is what I initially prepared for although some crucial documents were only served on me yesterday. When reviewing the file last night I realised this was not the case. The hearing that I was preparing for was the final hearing listed for a whole day.

Needless to say the judge was very unhappy at how poorly prepared the case was because of all the missing documents that the couple had not provided when they were acting for themselves. There was a great deal of missing evidence from the husband and the evidence bundles were therefore incomplete. It was a difficult call for the judge to decide whether or not to hear the case or adjourn it yet again. She was understandably reluctant to delay this case any further as it has been going on for two years and the final hearing had already been adjourned once. Despite her concerns the judge decided to hear the case today which I think was absolutely the right decision. As the judge pointed out if she put the case back for the outstanding evidence to be prepared there was no guarantee that it would be given that this couple had failed to comply with court orders in the past.

So I have been cross examining the respondent all afternoon. I’m exhausted but I enjoyed it. I’d forgotten how rewarding it is to flush out the evidence and how much I enjoy cross examining a witness. 

It was a good day and we got the right result. 

So delighted. I have just received notice I passed the children arbitration course and am now qualified in children disputes #arbitration. I’ve waited a while for this so couldn’t be more pleased. 

The Children Arbitration Scheme was launched on Monday.  This means that it is now possible for couples to avoid court (and mediation) when attempting to resolve disputes concerning their children.  Unlike mediation arbitration is binding and it is a cheaper less unpleasant and more user friendly alternative to court.  It also works well for unrepresented couples who cannot afford to be represented by solicitors.

All qualified children arbitrators are listed on the IFLA website (Institute of Family Law Arbitrators) and most are willing to offer fixed fee packages.  Arbitrators are highly qualified lawyers with many years experience in family law.  You and your former partner can choose the arbitrator yourself or ask IFLA  ifla.org.uk  choose an arbitrator for you.  You work with the arbitrator to decide on the best way of dealing with the dispute.  There are many options available and you have control over the process and the costs involved.  If you have a solicitor he or she works with the arbitrator through out the process.

Arbitration can also be used to help you decide on a single or discrete issue if mediation breaks down for any reason.  It may be that you have agreed on everything except how Christmas should be shared (for example) and the arbitrator can make this decision for you.

Arbitration is now available for disputes involving money and children.  The costs of Arbitration are usually shared equally.

Arbitrators are also available to assist you with an early neutral evaluation (ENE) of your case.  This is particularly helpful for unrepresented couples and can be used in children and money disputes.  Instead of a binding decision you can use one arbitrator to give you guidance on how to resolve your dispute.    The information that you provide the arbitrator is confidential and without prejudice which means it cannot be used against you in court at a later date.  The arbitrator’s guidance or ENE  is also confidential and without prejudice.  It is not binding and its purpose is to help you try and avoid court by having an indication of what type of order the court would be likely to make in your case.  If you accept the arbitrator’s guidance the arbitrator can then go on to make an award which will be binding and can be turned into a court order.   However you are not bound to accept the arbitrator’s guidance.  An early neutral evaluation can be used in all kinds of cases and in conjunction with court proceedings and mediation.

Woman denied the security of being a wife awarded a property by Judge

“A mother-of-three whose ‘dominating’ older partner refused to marry her ‘in case someone better came along‘ has been awarded the profits from the sale of his £1million house.

A court heard Kirsty Cahill, 33, was still at school when she met property developer, Stephen George Farrer, 53, and was ‘besotted by, wholly dependent on and trusting of him’.

Mr Farrer put almost £140,000 into buying the Colliers Wood house in 2007, which cost nearly £500,000, and the judge said there was ‘no doubt’ it was an investment property. 

She had three of his children but he ‘publicly humiliated’ her by getting down on bended knee in front of the whole family – before whispering in her ear that he wouldn’t marry her.”

This is an important decision which indicates the way in which the courts now look at cohabitation particularly where there are children involved.  However, it is not to be taken as saying that in all cases the court will make a similar decision.  Each case is fact specific and cases involving unmarried couples are not family cases (unless the application is made under the Children Act) and strict civil law rules apply.  This means the court does not have the extensive discretion available to a family court judge.  No doubt the judge in this case took into account the age of Ms Cahill when she formed her relationship with Mr Farrer, his overall wealth, his controlling and  manipulative behaviour  but perhaps most importantly the fact that they have children together.   I doubt the court would have reached the same conclusion if they had not had children.  What this case does highlight is the lack of security that an unmarried mother has when compared to a wife.

Funding for legal fees is available from a small number of specialist finance providers. They offer loans to help clients pay their legal bills. Funding is also available for mediation and family law arbitration.

Generally, you should expect to pay a higher rate of interest then on a High Street loan. However, some providers do not expect you to make any payments towards the loan until the conclusion of the case. This has very obvious advantages for clients who are on a low or no income.

The finance company has to be satisfied that you will be in a position to pay off the loan at the conclusion of the case and will rely on the information provided by your solicitor.

Many solicitors are in a position to assist you in obtaining legal finance. I have a number of clients who would have been unable to pursue their claims successfully without this finance.

For richer and poorer

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Mr and Mrs Rapp had a shared fortune of around £14m built up as a result of the husband’s success as an oil trader. However Mr Rapp was addicted to cocaine, alcohol, gambling and prostitutes. As a result his wife got more than half of the assets on divorce. He said she had marred him in sickness and in health and that his addiction was a sickness. However Mrs Rapp may well have considered those other wedding vows – for richer and poorer.

The judge explained why he considered it fair to the parties to depart from an equal division of assets -

“The first reason was that it was necessary in order to cater for the wife’s needs and would still leave the husband with sufficient to meet his needs.

“The second reason was the husband’s conduct, which the judge accepted had led to the reckless frittering away of family money.”

Conduct is often a difficult argument to run in family cases and as we can see from this one it really does have to be very extreme before the court will take it into account. In this case the court estimated that Mr Rapp had spent aorund £600K on his “life style” of drink, drugs and prostitutes between the date separation in December 2014 and the date of trial. It was also said that when sober he was a rainmaker capable of making a great deal of money with a substantial earning capacity. No doubt the court felt that Mr Rapp would quickly recover the additional £1.2 million received by his wife.

The court felt this was a needs case in which the wife was entitled to maintain the standard of living enjoyed during their 16 year marriage but would not be able to do so by working herself. Presumably the court also felt that it would not be fair to ignore Mr Rapp’s behaviour which had itself depleted the financial pot. He had been spending around £200K a year on his lifestyle and that money would have been available to Mrs Rapp if her husband had acted differently.

We will pay for your wedding but you can’t get divorced

A Seattle tech startup company in the US said it would pay up to $10,000 for engaged couples to marry on the condition that, if the marriage later broke down and ended in divorce the couples agreed to repay the total cost of their wedding with interest.  Sound too good to be true?  Well it was.  The company was inundated with applications (what a surprise) and would have had to pay nearly $2 billion to cover the wedding costs of all the applicants.   Unsurprisingly this overwhelming demand could not be met and the company was forced to retract its offer. Continue reading

Court finds in favour of the “common law wife”

I published this story in an earlier post on cohabitation. Joy Williams lived with Norman Martin for 18 years in a property which they jointly owned.  However,  when they purchased the property they registered it as tenants in common rather than joint tenants.   There is an important difference between tenants in common and joint tenants.

As tenants in common  Mr Martin and Ms Williams each owned a share of the property which they were free to leave to a friend or relative etc in their will.    In the absence of a will the property would pass to their next of kin.  If   Mr Martin and Ms Williams had bought the property as joint tenants  they would each have owned the whole property and on Mr Martin’s death  the property would have passed to Ms Williams.

If you own a property with your partner as tenants in common then you each have a divisible share of the property which could be 50-50 but not necessarily.  The shares are decided at the date of purchase and recorded at the Land Registry.  Whatever your share of the property you are free to leave it to whomever you choose in your will.  If you do not make a will then as your share of the property forms part of your estate on death it will pass in accordance with the intestacy rules.

In this case Mr Martin and Ms Williams owned the property as tenants in common in equal shares.  However Mr Martin was still married at the date of his death to his estranged wife Maureen Martin and he did not leave a will.  Therefore on his death his share of the property passed to his next-of-kin Maureen Martin.  Mrs Martin would also have had claims against her husband’s share of the property if they had embarked on divorce proceedings.    Further, even if Mr Martin had made a will leaving his share of the property to Ms Williams his estranged wife would have been able to make a claim against his estate if she had been dependent upon him at the date of his death and this is usually evidenced by the payment of spousal maintenance.

Even though Joy Williams has won her case it has cost her £100,000 in legal fees.  The court has ordered Mrs Martin to pay these costs but this is subject to an assessment of the costs which could well result in  Ms Williams receiving considerably less than £100,000.  Further, Mrs Martin has said that she intends to appeal the decision and in my humble opinion she may well have grounds to do so.  Ms Williams has won this battle but she may not yet have won the war.

All of this misery could have been avoided if Mr Martin had:

a.  Divorced his wife at some point during his 18 year relationship with Ms Williams; or

b.  Registered the property as joint tenants in the first place; or

c.  Made a living together agreement; or

d. Made a will which would have cost perhaps in the region of £200 considerably less than the £100,000 which Joy Williams spent in trying to keep her home.

There are so many ways this situation could have been avoided and although it is true to say that hindsight is a marvellous thing so is a little forethought.

 

Allow people to divorce without blame

How can we make divorce easier and should we?

I have advised so many people who are surprised to learn that they can’t just call it quits on their marriage without having to name and shame their spouse. It is such an outdated notion that you have to cast blame or wait two years (and even then you need your spouses consent) before you can call time on your marriage. Sometimes it just stops working and it really should not be necessary to scratch around for allegations to satisfy a divorce petition.

At the moment you can only get divorced if you can prove either that your spouse has cheated on you, behaved so unreasonably that you should not have to live with them any more, deserted you (and that is a pretty tricky one to prove) or that you have been continuously separated for two years or five years. Even then if you rely on two-year’s separation you need your spouses consent and cooperation.  If you are in a civil partnership then you cannot even rely on adultery.

This is all pretty contradictory given that as a family lawyer I am expected to keep things as amicable as possible and not to make a bad situation worse. So as family lawyers we are supposed to try and keep things friendly. It really is quite difficult to do that when you are sending someone a divorce petition which accuses them of behaving so badly they and they alone are single-handedly responsible for the breakdown of the marriage!    Irreconcilable differences (with or without consent) sounds like a good alternative to me.

It really is about time that the government brought this outdated law into the 21st-century. This was supposed to have happen sometime ago but we have had  a   succession of governments which have been too cowardly to do anything about it. They are frightened that if they make it easier for you to get divorced there will be a stampede to the divorce courts which is clearly nonsense. No one goes through the expense and trauma of getting divorced without a very good reason. Marriage is an institution which most of us support and want to experience at least once in our lives. I do not think people will get divorced simply because divorce is easier and cheaper. However if the government is worried about supporting marriage perhaps they should consider that more people might get married if weddings were not so expensive and they might stay married for longer if we had more realistic expectations of our spouses.

Although it is good for your health I do not think marriage will ever become available on the NHS.   Making it easier for people to get divorced when the marriage has come to an end  could be good for marriage.