Government to bring forward an amendment to the Domestic Abuse Bill

The Government is bringing forward an amendment to the Domestic Abuse Bill inserting a new clause that would ensure that victims of domestic abuse are automatically eligible for access to special measures in family proceedings without the need for any determination of the victim’s vulnerability

This includes a new clause  given the Court the power to give a direction prohibiting cross-examination in person.

The direction will be given where such cross examination is likely to diminish the quality of the victim’s evidence or would cause significant distress to the witness

The court would have the power to appoint a legal representative to conduct cross examination on behalf of the perpetrator with payment made from central funds.

Further guidance is awaited.

This news is welcome. For too long, victims have been subject to cross examination by perpetrators. Currently, the Judge has limited powers only to prevent direct questioning, but this has the effect of making the process longer and more difficult.

The family courts make decision with lifelong consequences for children and it is essential that evidence is given that ensure a safe, lasting and satisfactory outcome for the child to ensure justice is done for all involved.

Graeme Fraser, Partner & Head of Family comments as follows:

This is welcome news, particularly at a time when domestic abuse has manifestly increased as a result of the Covid19 disruption and lockdown. We hope that these measures can be brought into force imminently so that justice can be done to all those affected.

 For information and advice in relation to domestic abuse issues, please contact the OGR Stock Denton Family Team.

No fault divorce bill to receive royal assent

Yesterday evening (17th June), the Divorce, Dissolution and Separation Bill completed its passage through Parliament, and Royal Assent is imminent. The new law means that divorce will be possible after a 6 month period by notification without the need for either a husband or wife to find fault. The requirement to find fault unless a couple have been separated for a prolonged period has caused much unnecessary hostility and impaired the ability of couples to move on from their separation, impacting on their children too. Implementation is expected by Autumn 2021 with the first divorces to go through in 2022 after the new 6 month notification period.

Graeme Fraser, Head of Family at OGR Stock Denton and member of Resolution’s Family Law Reform Group commented as follows:

This is great news for all those who adopt Resolution’s principled approach towards reducing confrontation and a real tipping point for reducing conflict in family law generally. In recent years, Resolution’s campaign for no fault divorce created an irreversible momentum for change. I am delighted that our clients will be able to soon benefit from this important improvement to divorce law.

The new law will mean that couples can take better advantage of non-court options including collaborative law, mediation and arbitration which promote fairer outcomes with a reduced level of conflict. For further details about these options, all of which are fully serviced by the Family Law team at OGR Stock Denton, please contact Graeme Fraser.

Reflections on divorce and financial remedies after lockdown

Last week we hosted a webinar with guest speaker Max Lewis of 29 Bedford Row, where we discussed financial remedies on divorce and the future for family practitioners after lockdown which Graeme summarises for readers in this update.

The financial impact of the lockdown could lead to a spike in marriage rates, as well as divorce rates. We should not read too much into a surge in divorce filing in Wuhan immediately after lockdown. This is because remote filing is not possible in Wuhan and therefore the filing that took place on the first day resulted from the 3 month wait to leave the house. It is also believed that marital preservation is an immediate response to mortal threat which relaxes once the threat is less acute. People refrain from making major life changes under conditions of extreme stress, uncertainty and threat.

The impact of the lockdown may mean that those who were planning further children to delay. Once the lockdown has ended, there will be a return to social life, and the opportunities for marital infidelity. However, because Covid-19 will be in the community after lockdown ends, there will continue to be much uncertainty.

In order to reopen new cases, there must have been new events since the order which invalidate the basis or fundamental assumption on which the order was made, the events should have occurred within a relatively short time of the order being made, mainly not more than a few months, and the application should be made promptly (Barder). The turning point for the lockdown would appear to have been 22 February, when a dozen Italian towns in Northern Italy closed schools and businesses, so the time frame remains short perhaps back to the Summer of 2019.

Differences in value can arise however through “natural process of price fluctuation” which however dramatic can still fall within this principle (Cornick). This means that “what has soared may plunge and what has plunged may soar again”(Myerson) to the extent that shares that are not liquidated may mean that losses are not crystallised.

Where a settlement provides for a clean break, the Court retains complete jurisdiction until the order is put into effect (Thwaite). If there is some significant change in circumstances since the order was made, the Court may have jurisdiction to adjust a final order (L v L). Where any such revision is made, it should reflect the underlying and original intention of the parties (US v SR)

However, the assessment of assets must be those available at trial (Cowan) and this is the usual rule unless serious injustice would be demonstrated (FZ v SZ). It is entirely predictable that company or property valuers, be they accountants or surveyors, will soon be saying soon that it is quite impossible to put any meaningful figure on the value.

Applications for variation under S31 seem very likely, particularly in relation to income orders. Where orders for sale are being varied, that is likely to relate as much to the  process of the sale rather than the distribution of the sale proceeds.

Traditionally, the approach towards variation was to look at everything de novo (Lewis v Lewis) but the modern approach means that a light touch review is used where appropriate (Morris v Morris).

Issues likely to arise in future cases include earning capacity. Some sectors are more vulnerable than others as we emerge from lockdown. There may be arguments about schools and the payment of school fees. Can schools afford to continue if parents don’t pay fees? This is likely to further encourage use of term orders. Remote mediation seems a greater possibility in the sense that the couple need not be in the same room.

The early signs are that there are downsides to remote litigation, for example, being unable to look people in the eyes. The use of remote litigation is likely to be here to stay for directions appointment. Some of the technology has been a great success including electronic bundles, which may lead to greater e-disclosure and better use of document management software.

For future information or if you have any questions please do not hesitate to contact us.

Government funding for victims of domestic abuse

The government announces this week that it will pledge £76 million of funding to help support the victims of domestic abuse, a decision that has been welcomed by many including myself as a family solicitor. Whilst this is welcome start, it has been long overdue and comes at a time were many have been forced to adhere to lockdown measures and isolate with their abusive partner.

Government resources and funding for those suffering domestic abuse has been scarce, long overdue and insufficient for far too long now. It is a shame that it has taken the pandemic to shed light on the prevalence of domestic abuse and the fact that it occurs across all kinds of households and within many different familial relationships. I very much hope the Government maintains its support and focus on this issue once lockdown measures are eased but domestic abuse continues throughout our communities. It is important to note that whilst domestic abuse is overwhelmingly perpetrated against women and girls, it can also affect men and there have been a growing number of domestic abuse cases to illustrate this.

Those experiencing domestic abuse should know that they are not alone and they have a number of options available to them, during this pandemic and beyond it. Their safety, and those of any children, is the paramount consideration. I as a family solicitor understand that sensitive situations like this are complex and therefore require a tailored approach depending on the circumstances of each case.

We are here and able to assist you with legal advice that is best for you and your family.

Reducing conflict for child arrangements during the lockdown

There are unprecedented pressures on family law professionals, parents, and the Family Court.  Rather than throwing up our hands in horror, family lawyers have opportunities now to reduce conflict when negotiating child arrangements for separated families.

The CoVid19 Outbreak has created a significant increase in confusion and distress for parents. Family lawyers have received multiple enquiries about where children should stay, amid complaints that neither children are being returned nor being made available to spend time or live with the other parent. The social distancing measures are challenging enough for children who face disruption to their education, health and care arrangements, without the added burden of parental conflict.

On 24th March, Sir Andrew McFarlane, President of the Family Division, clarified that while children under 18 can be moved between their parent’s homes under the government guidance issued alongside the Stay at Home rules, this did not mean children must be moved between homes. If in agreement, parents could informally vary an order during the lockdown. However, if there is disagreement and one parent is concerned, that parent may exercise their parental responsibility and unilaterally vary the arrangement to one they consider is safe. Parental responsibility “rests with the child’s parents and not with the court”. The Family Court will only be able to look at the position retrospectively in deciding whether each parent acted reasonably.

The Remote Access Family Court announcement on 23 March, just prior to the Prime Minister’s lockdown announcement, purported “to continue substantially the full operation of the family justice system… notwithstanding the COVID-19 pandemic”. But following the above McFarlane guidance, HMCTS issued its Civil Court listing priorities on 1st April which emphasised that only priority work must be done. The upshot of all this, and my experience so far, is that many Family Court hearings are being postponed.

Child arrangements processes are in any event being steered away from court. On 2 April, The Private Law Working Group (PWLG) recommended a “radical system change for the benefit of future generations”. Sir Andrew McFarlane called for public education about the effects of parental conflict and professional support for families other than lawyers or judges so that courts should be seen as the last port of call when disputes arise.

None of these measures by themselves will prevent parents in dispute being positioned or hostile during the lockdown.  What can be done? There are useful approaches that can be taken now, that reduce adult conflict and ameliorate the pressures created by the lockdown and beyond.

Firstly, the CAFCASS guidance issued on 20th March provides helpful tips for co-parenting. These include:  maintaining a sense of routine for children, including meal and bed times; maintaining the child’s usual routine of spending time with each parent; complying with a Child Arrangements Order unless it would put the child or others at risk; and communicating clearly and honestly with the other parent if one parent is unable to maintain the child’s routine due to illness, self-isolation and non-availability of people who ordinarily support the child’s contact.

Secondly, there are a multitude of family law dispute resolution processes available where parents feel unable to negotiate without help. These include not only the established practices of mediation, collaborative law and arbitration, but newer methods such as parenting co-ordination. A therapeutic approach can be especially beneficial in resolving child arrangement disputes.

Finally, I am hopeful the collaborative approach needed to reduce confrontation and conflict between parents during the lockdown, because of the limited availability of the Family Court, may prove a lasting and kinder way to achieve better outcomes for the children of separating families.

 

 

Coronavirus likely to lead to a need to review spousal maintenance orders

Thousands of people in the UK are facing the prospect of a reduced income as a result of the Covid-19 pandemic and this is likely to result in many being left unable to meet their regular spousal maintenance payments.

These payments mustn’t be stopped, as it will be seen as a breach of the original court order. So, what steps should divorced couples and dissolved civil partnerships be taking in light of the current crisis?

To help we have looked at some of the common queries around these payments and the impact that the pandemic is likely to have on them.

What is a spousal maintenance/periodical payments order? 

Spousal maintenance is paid by a husband or a wife (or civil partner) to their former spouse/civil partner following a divorce to meet their needs that otherwise would have been fulfilled by the relationship.  Formally it is called a periodical payments order.

Maintenance is typically paid monthly and continues either for a defined period or for the remainder of the parties’ lives.  You will know if there is a Court Order requiring you or your former partner to be making payments.  If there is no Court Order, then any payments agreed are voluntary.

These types of orders will only usually end when the recipient remarries or if either party dies, but any maintenance order can be varied or dismissed by the courts on a change in circumstances, such as a reduction in income.

How are the payment amounts set? 

In determining whether and how much spousal maintenance should be paid the court has regard to the overall circumstances in the past, present and future.  Clearly the Covid 19 crisis may be a change of circumstances if it has affected income.

I cannot pay my spousal maintenance order due to the economic impact of coronavirus. What should I do?

Thousands are likely to find themselves in this position as a result of this pandemic. Guidance suggests that parties should first seek to reach an agreement without going through the courts.

The onus is on the paying party to ask for a reduction in payments and this should be agreed in writing, clearly setting out how long the reduction will last for and any conditions for increasing payments in future.

Due to the current social distancing requirements, it is believed that an email should suffice in lieu of a more formal document, but it may be best to seek advice and keep a record of all correspondence to prevent a dispute arising in future.

My ex-partner will not agree to a reduction in maintenance payments, OR my ex-partner has reduced maintenance without my agreement.  What can I do?

You could initially attempt mediation to see if, with the assistance of a third party, you can come to an agreement without going to court.

However, if no agreement can be reached then either party can apply to the court to vary the maintenance upwards or downwards, to reflect the change in circumstances.

If a person loses their job as a result of the pandemic or sees a significant cut in their income and they are unable to reach an agreement they can apply to the court for a suspension or downward variation of the maintenance, however, if alternative employment is found or income increases again, the recipient can also seek an upward variation to reflect this change in circumstances.

Those attempting to seek a downward variation or suspension of payments via the court will be required to evidence their claims in detail.

The Courts are likely to be overwhelmed with these applications.  The time for getting any form of hearing is going to be months away.  However you need to file an application if you can’t reach agreement as any variation can only apply from the date an application is made.  Having made the application to the Court you then need to consider whether you and you partner will agree to binding arbitration – essentially a private judge – who can make a fully binding award.

How do I do all of this

Making an application to vary and order can be as complicated as the original court applications for maintenance.  You must seek specialist advice to ensure you follow the correct procedures when seeking a downward variation.

Similarly, if you are in receipt of an order and are approached by a former partner to suspend or vary payments it may be best to seek advice to ensure the request is fair and appropriate.

What does Stay at Home mean for children with more than one home?

The Stay at Home requirements announced by the Government strictly limit the circumstances in which any of us can leave our homes and, of course, that includes children.

The requirement to stay home is a challenge for all of us, but especially for parents whose children have more than one home because their parents live apart.

To help you navigate the challenges of Stay at Home for children who have more than one home, we have compiled some answers to  frequently asked questions:

Q. Do Child Arrangement Orders (CAOs) still apply during the Stay at Home guidance?

A. Yes. CAOs continue to apply and the Government has confirmed that a child travelling between their parents’ homes is necessary travel as part of the guidance.

Q. What should I do if I don’t think it is safe for my child to travel to the home of their other parent?

A. The most senior family judge in England and Wales, the President of the Family Division has said that in the first instance, you should discuss the issue with the other parent and see if you can agree between yourselves to vary the terms of the CAO temporarily. If you decide to do this, you should record the agreement in writing and send it to the other parent as an email or text message. However, you should not see the current situation as an opportunity to reduce the time the other parent has with the child/ren. If a parent stops the other parent from having time that is contained in an Order it will be a breach of the order, despite the President’s guidance, and a Court could later confirm you have been unreasonable and impose sanctions. See below.

Q. What should I do if I cannot agree with the other parent to vary the CAO temporarily?

A. If you are unable to agree with the other parent to vary the CAO temporarily, you may decide to vary the terms unilaterally.

In these circumstances, you should aim to restrict the time that your child spends with the other parent as little as you possibly can and for the shortest time possible. You should also look to make alternative arrangements, such as regular video calls with the other parent.

In taking a unilateral decision to vary a CAO temporarily, the courts will expect you to have acted reasonably and according to the relevant public health advice.

As with a joint agreement to vary the terms of a CAO, you should record the change and the reasons for it in writing and send them to the other parent.

Mediation can take place via Zoom and can be extremely helpful in helping you both to reach an agreement.

Q. What situations could justify the temporary variation of a CAO?

A. It is not possible to produce a definitive list of circumstances that could warrant a variation of a CAO, because doing so will very much depend on the specific situation in question.

However, examples might include people in the other household self-isolating or showing symptoms, or people in a vulnerable group living in either household.

For more information about varying a Child Arrangement Order or about Mediation, please contact us today.