Archive for May, 2010

Redefining “a good outcome” in divorce

It is an old belief that what constitutes a good financial settlement on divorce is getting more of the assets or income than the other spouse.

That belief is ripe for challenge and is being challenged particularly with the growth of collaborative divorces.  It is obvious when you think about it. A divorce affects us in so many different ways and only one of those ways is monetary.

Separation has emotional, spiritual, familial, physical and practical, legal, parental and social aspects as well as financial and yet it is primarily in the financial arena that most of the time and effort is put to achieve a “good outcome”.

All these different aspects are interconnected. A bad or good experience in one area will often impact on another. An obvious example of this is a legal dispute over children. This has a direct affect on the physical and mental health of both parents, it upsets their wider families and, worst of all, it impacts on the ability of parents to co-parent and thus impacts adversely on the children. The same is true in respect of disputes about the family finances.

The adversarial systems in countries across the western world do nothing to alleviate the problem but feed into, and magnify, the problem – molehills turn into mountains, storms in teacups turn into raging seas to the detriment of the family as a whole.

One of the reasons why the court systems fail is because they are designed only to take into account the legal, financial and, to some small extent, parental aspects of a divorce and separation. The emotional, physical, familial, social and spiritual aspects are ignored almost entirely.

Just because these aspects are ignored by the court does not mean they have to be ignored by the separating couple and their lawyers. In fact they should not be ignored as attention to them is a vital part of the recovery process. They are also vital to the negotiation process and including them in the process bring about a change in perception of what constitutes a “good outcome”.  Suddenly, an outcome where both parties can look each other in the eye and say “I’m OK, You’re OK and our children are OK” is a real possibility. The benefits of generosity are self evident – for example, a more generous maintenance settlement will have a direct and lasting impact on familial and social relationships, amongst other things. An understanding of the need for children to spend time being cared for (including all the boring bits) by each parent will have a direct and lasting impact on children’s ability to thrive.

Suddenly having a greater share of the monetary divorce is less important.

The processes which support and encourage the re-definition of a “good outcome” best are mediation and collaborative divorce. In these processes the couple’s voices are the loudest voices round the table and it is their interests and needs in all the different aspects of separation that are at the forefront of the discussions.

For more information about mediation and collaborative divorce contact info@flip.co.uk

To find mediators and collaboratively trained lawyers in your area visit www.resolution.org.uk/find_a_member/

“A Client’s Guide to Collaborative Divorce – putting your family first” can be purchased online at www.flip.co.uk/about/downloads.asp

Top tips for child support problems

What a difference a year – well 17 years really – makes. When the Child Support Agency arrived as an unwelcome guest for most separating families in 1993 in England and Wales, it was almost universally vilified … over the following few years the agency came to deserve the loathing that so many people had for it, with an unrealistic formula and, for too many families, either inactivity or lost files (and where there was activity, too often the work was riddled with mistakes).

The mid 90s saw suicides, razor blades in the post to child support officials, hunger strikes and cut benefits for already impoverished parents with care … some of us were starting to give up hope for change.

But change there has been … the policy departments of the Child Maintenance and Enforcement Commission seem suddenly to be full of bright and impressive people, eager to create a service that separating families need.  Progress is hampered by the enormous history of debt that the current regime has inherited, however, bit by bit our child support administration may at last be building into the service that those of us have been seeking over the years. Surely, all that can stop it now is probably funding cuts.  Let us hope that the new administration is not so pressed that it allows this to happen.

But whilst the machinery is suddenly whirring closer to the original design the great flaw in the middle of the system remains: beneath superficial simplicity lies bewildering complexity within which are many unanswered questions – hence the continued stream of litigation, tribunal decisions and court judgments.  Even those of us who have been working with it since before its start still find quirks and nuances tucked away in the corner of the 1,000 pages of regulation that form this clockwork interior.  And what this can mean for some families is unprincipled action and endless rounds of appeal where one or both parents elect to get stuck into micro-management of the claims and exploit some of the weak points of the structure.  At FLiP we have produced an information pack to try and help (email us at jp@flip.co.uk for a copy).  Some of the basics include:

  1. Don’t miss the deadlines for appeals – you may have only 28 days from a decision to do so
  2. Don’t ignore the agency because it is ignoring you – eventually it will catch up with things and it may then be too late to tell it about all the changes of circumstances since the original decision that should have been taken into account
  3. Don’t get so overwhelmed with “winning” within the system that you overlook what this is about: solving the question of child support and providing a good enough stream of maintenance to meet children’s needs
  4. Don’t get wound up with the unfairness that the system produces for you – the system just is and sometimes there is nothing that can be done about it: where is a set of rules that operates unfairly and an effective machinery to apply them, you may risk adding to the damage to your family by fighting it all; but
  5. Remember also that this operates within a context of other claims … it may be possible to step to one side and use a different system to agree what works for the family overall
  6. Finally, when it all gets too difficult, think about different answers entirely –sit down with the other parent and with help (consider mediation or collaborative law), put the child support system to one side and see whether you can’t agree a structure covering all aspects of family life, including child support that could work better for you all as a family.

 

 For more information please contact info@flip.co.uk

Please Sir, can we have our costs orders back?

A few years back, we could make hidden offers to settle our cases.  At the end of the day, when the court had made its financial award, it would “open the box” and see if one side had made a realistic offer – they would usually get a contribution of around three quarters of their legal costs for being right.

The system seemed arbitrary.  A reform seemed to come out of nowhere and was rushed through to abolish the system.  Wouldn’t that be fairer ?

The law of unintended consequences has seen things deteriorate sharply … the ‘unreconstructed’ or plain furious spouse is free to litigate as insanely as the rules permit (and that can be pretty extreme) without real fear of penalty.  Each side is left to pick up their own costs and pretty much this always means that costs are met out of capital before division.  The voice of reason is left with the choice of rescuing the family before hard-built resources are burned in the fires of litigation or pursuing justice in an outcome that may ultimately prove to be pyrrhic. 

Isn’t it time that the court took back control and awarded costs where litigants fail to try to settle their cases at an earlier stage ?  There may be injustice for a few at court but the majority are forced to focus from the outset on the realistic settlement zone from the beginning … spouses are better off … cases finish sooner and at lower cost and the courts are not overburdened by cases fighting over increasingly diminishing resources.

 For more information about the costs on divorce contact info@fliup.co.uk

Binding Pre Nuptial agreements in England? The Family Law world holds its breath!

The case of

    Radmacher v Granatino

was recently heard in the Supreme Court in what was Nicholas Mostyn QC’s last case as an advocate before taking up a full time position as a High Court Judge.
As so few cases make it to the highest court in the land it has obviously garnered much public interest. The headline facts are well known:- an extremely wealthy German Heiress (Frau Radmacher) married a French banker (Mr Granatino). 2 children were born during the marriage. The pre-nuptial agreement prevented Mr Granatino from making any claims for financial provision in the event of a divorce from Frau Radmacher.

Mr Granatino reneged on the agreement and made claims for financial provision against Frau Radmacher. The trial Judge took the pre-nuptial agreement into account but still awarded Mr Granatino in the region of £5.8m including outright provision for housing and maintenance for life.

Frau Radmacher appealed to the Court of Appeal who were heavily influenced by the fact that in both Frau Radmacher’s native Germany and Mr Granatino’s native France the pre-nuptial contract would have been upheld and Mr Granatino would have received nothing. However far from upholding the agreement the Court of Appeal ordered that the property should revert to Frau Radmacher upon the youngest child reaching the age of 22. The spousal maintenance order in Mr Granatino’s favour should stop at the same time. Mr Granatino appealed the Supreme Court to restore the original Order.

It is essential that the Supreme Court provides clear guidance on this issue. The law on pre-nuptial agreements in England and Wales has been uncertain for far too long. Surely provided that there has been no undue influence or pressure then Pre-Nuptial agreements should either be upheld completely or, if not, then it is up to the trial judge to determine what reduction there should be to the financial award to reflect the fact that a pre-nuptial arrangement exists. In the absence of law reform (and the Law Commission are looking into this topic at the moment) the Supreme Court will have to give clear guidance. We think that it is likely that the Supreme Court will say that the Court of Appeal should not have interfered with the original Order. However the outcome is far from certain in what is the most eagerly awaited decision relating to family law since the McFarlane case in 2006.

We will file a further post as soon as the Supreme Court’s decision is known.

For more information contact info@flip.co.uk