Archive for June, 2010

TOP TEN THINGS FAMILIES NEED TO KNOW ABOUT THE BUDGET

George Osborne’s first Budget as UK Chancellor of the Exchequer held few real surprises but relief was felt all round that Child Tax Credits were being retained and, in fact, slightly improved.

The Budget headlines are as follows:

  1. Child benefit will be frozen for 3 years – currently £20.30 for first child and £13.40 for each subsequent child
  2. The child element of child tax credit will rise by £150 from April 2011
  3. Tax credits will be cut for people earning over £40,000 pa and from next year tax credits will rise by reference to the Consumer Prices Index rather than the higher Retail Prices index
  4. VAT to rise from 17.5% to 20% from 4th January 2011
  5. Income tax – personal allowance will increase from April 2011 to £7,475 per annum
  6. Higher rate tax threshold will remain frozen until April 2014
  7. Basic state pension will be re-linked to earnings from April 2011
  8. Capital Gains Tax (CGT) will remain at 18% for most individuals
  9. From midnight tonight CGT will rise to 28% for higher rate income tax payers
  10. State Pension age will increase to 66 by 2016.

 

For how this might affect you if your family is splitting up please contact info@flip.co.uk

The role of CAFCASS in private law court proceedings

CAFCASS stands for the Children and Family Court Advisory Support Service.  CAFCASS is charged with looking after the interests of children in family proceedings in the courts in England and Wales. http://www.cafcass.gov.uk/

 CAFCASS have a role in both public law (mainly cases involving Social Services) and private law court proceedings.  This blog looks at the role of CAFCASS in private law cases which are primarily concerned with disputes between parents over contact, residence and other specific issues concerning their children brought under the Children Act 1989. (See our earlier blog “What’s in a label – a brief look at court orders about children”   http://www.flip.co.uk/blog/?m=201003 )

 Parents are often concerned when a CAFCASS officer is appointed in Children Act proceedings,  that is proceedings where there is a dispute between parents about arrangements for their children.  Understandably parents often feel that their children are already under stress and that meeting a stranger to talk about where they want to live, when they want to see each parent, what school they want to go to, will be stressful.  But they should not be.

 The CAFCASS officer’s job is to meet and interview children so that their views are represented in the court proceedings.  Often a judge feels that each parent is saying what they believe the child’s view is, but an independent view is needed.  CAFCASS officers are trained child specialists who deal with all kinds of complex children cases on a daily basis. They use age appropriate tools to discuss matters with children and to get a sense of what their views are.

  Following the meetings the CAFCASS officer will prepare a report for the benefit of the judge and the parents and any other relevant people. If requested by either of the parents, the CAFCASS officer will then attend the court hearing to answer questions about the report. This gives an opportunity for the court and the parents to hear more about the children involved and their views.

 If requested by the parents, CAFCASS can remain involved in helping the family through a Family Assistance Order for up to 6 months in order to provide continuing support following the court’s decision.

 CAFCASS officers are very busy in the current court system, but parents should not be too concerned if a CAFCASS officer is appointed in their case. Their views can be hugely helpful in resolving children disputes and enabling families to move on following Children Act disputes.  

 For more information about specialist family lawyers in your area see www.resolution.org.uk

 For advice please contact info@flip.co.uk

Do You Want to Take Your Children “Home”?

“I just want to go home!”

This is a common reaction from someone whose relationship has broken down and they are living in a country which is not their “home”. Often all that keeps them in a particular country are the children that they have with their ex-partner. And, as often, that is where the problems start.

It is not possible, under the law in England and Wales, to return to your home country, or to move to a different country outside the British Isles, and take your children with you,  unless the children’s other parent agrees or you get permission from the court. Getting permission is getting increasingly difficult. The court has to make their decision based on the best interest of the child or children, weighing up all factors including the impact of the move on the child’s relationship with the parent who is left behind. If the children are old enough their views must be ascertained. The adversarial nature of the process inevitably leads to even more difficult relationships between separated parents making the co-parenting relationship even harder to manage.

If you find yourself in the position of someone who wants to go home then get legal advice from a family law specialist as soon as possible.   You can find details of local specialists on the Resolution website at http://www.resolution.org.uk/find_a_member/

The most important thing that you can do if you are the parent who wants to leave is to prepare your case carefully and as fully as possible before presenting it to the other parent and, if you have to, before making an application to the court.    In particular you must spell out in as much detail as possible:

  • The reasons why you want to live in a different – e.g.  home, family support, job, new relationship etc
  • Where you will live – local amenities, culture, sport etc
  • Where the children will go to school – provide as much choice as possible and highlight the similarities to, and benefits over,  the current or prospective UK schools
  • Whether you will work and if so at what and how much you will earn
  • MOST IMPORTANTLY – your detailed proposals for the children spending time with the other parent and how you will assist in minimising the impact of the move on their relationship with the other parent. Demonstrating that you and any other interested adults will positively support the children’s relationship with the other parent is also crucial.
  • How your proposals will work in practice, what financial and timing implications will there be. Put simply the further you move from the country where the other parent lives the harder it will be to get a workable arrangement.
  • Any other issues specific to your family such as religion, ethnicity etc

If you are the parent who will be left behind if the move goes ahead then you should also take legal advice and in particular think about:

  • The practicalities of the other parent’s proposals – not going out of your way to look for problems but identifying any that do exist
  • Thinking about whether there is any realistic possibility of moving too so that you and the children are living in the same country
  • Thinking about how you present your opposing case – being unpleasant about the other parent or their family rarely helps the cause.

Both parents should try and work together on:

  • Identifying the best way for the children’s wishes and feelings to be ascertained
  • Identifying a forum where the issues can be discussed in a non-adversarial environment such as mediation or collaborative law
  • Identifying a child specialist who can help you focus on the impact of the proposals on the children and so consider options which will work best for the children.

For further information please contact info@flip.co.uk or call us on 020 7420 5000.

Getting divorced? An overview of the “fault” grounds

In England and Wales, there is only one ground on which a petition for divorce may be presented to the court by a party to the marriage, namely, that the marriage has broken down irretrievably.

In order to prove that the marriage has broken down irretrievably you have to prove that one of the following facts is true:

  • adultery by your spouse
  • unreasonable behaviour by your spouse
  • desertion by your spouse for a period of at least two years
  • two years’ separation, if you both agree to the divorce
  • five years’ separation, if there is no agreement to the divorce

The Family Law Act 1996 introduced “no fault divorce” but, sadly, this part of the Act was repealed before being implemented and it seems that our new Government has its hands full with other matters to give priority to reform in this area.  Therefore, unlike most other European countries, if proceedings for divorce are to be commenced before you and your spouse have lived apart for two years, the divorce Petition will have to be fault based. The desertion and 5 year separation facts are the most rarely used.  One party to the marriage has to be the Petitioner and the other the Respondent.

The need to allege fault does not have to introduce (further) tension and hostility into what is a (usually) difficult and unhappy process. 

For example, if you choose to rely on adultery as the reason for the breakdown of the marriage, there is no requirement for you to name the other person involved even if you know them.  It is sufficient to say that adultery has occurred with “a man/woman whose identity the Petitioner does not intend to disclose”.  This will almost certainly ensure that areas of friction are minimised and that the proceedings are not unnecessarily delayed.  These in turn are also likely to keep costs down.

Alternatively, you may decide to rely on the unreasonable behaviour of your spouse as the reason your marriage has broken down.  Where it is possible to, it is sufficient to rely upon a single very serious allegation of misconduct.  However, usually it will be the course of conduct during the latter part of the marriage which has eventually resulted in its breakdown. The courts nowadays accept what are really quite mild instances of “unreasonable behaviour”. Two or three are usually sufficient to satisfy the court that a divorce should be granted.  Some example instances (known as “particulars”) may be;

  1. In 2009 the Petitioner was made redundant from his employment and has not been able to find other employment elsewhere.  The Respondent has shown him no sympathy or support.
  2. For approximately three years immediately preceding the presentation of this Petition, the Respondent has shown no tenderness or affection towards the Petitioner and has habitually resisted the Petitioner’s demonstrations of affection.
  3. From about December 2009 the Respondent has spent increasingly little time at home and habitually returns home from work between 9 and 10 pm. 
  4. On 1st April 2010, the parties’ wedding anniversary, the Respondent told the Petitioner that she did not love him, that she had not loved him for some years and that she wanted a divorce.

 It is important to remember that the reason for the divorce is very rarely a factor that is taken into account in the financial settlement or in any disputes about the children.  It is therefore advisable, and usually possible, to agree with your spouse who will petition and which of the five facts you will rely on. Ideally all this will be agreed before the petition before it is issued by the court. It is not uncommon for people to decide which of them will petition on the toss of a coin and for the Respondent to draft the allegation of behaviour against themselves.  Thinking carefully about these things at this early stage will help minimise friction and thus help keep your costs (financial and emotional) as low as possible throughout the remainder of the process.

You may also wish to consider how you resolve the other aspects of your divorce such as the financial claims and any issues about your children. There are a number of different process options such as mediation and collaborative law both of which are “no- court” processes. For more information about these and for people who can help with them visit the Resolution website www.resolution.org.uk

NB if you want to get divorced in England and Wales please check with a solicitor whether you satisfy the jurisdiction requirements before issuing a petition.

Contact info@flip.co.uk for more information.