May 4th, 2018
Divorce is not an easy process. It is fraught with emotional and financial pitfalls and has a smattering of serious competition. The first can be supported with counselling, and support of family and friends, the second by advice from family lawyers, but the third of these can derail both of the support systems for the others.
What makes people want to compete when their marriage is at the end? Divorce is not about winning. It is about getting to the other side of the process, not destroying yourself or your children it is about being able to move forward. So where does the desire to win come from? As divorce lawyers we are often asked what can we do to be on the front foot, to drive matters, to win. Explaining that it is never going to be about this is difficult for people to hear. A race to issue proceedings– really? Disagreement about everything, from who should value the house to who keeps the drinks coasters.
Is this what divorce turns us in to? Sadly for many it does. Coming to terms with the change in everything we deal with is tough and divorce does affect everything. It is easy as a lawyer to say this – we are not in it, but, certainly our lawyers want to achieve more than a battle won. We strive for the longer ‘win’ a settled content individual confident enough to move to the next phase of their life.
Let’s remove fault based divorce
As members of Resolution the national organisation of family lawyers who strive to set standard of professionalism, we are well aware of their march for change particularly in terms of the ‘facts’ upon which divorce is proved. In England and Wales there is one ground for divorce – the irretrievable breakdown of the marriage. This is provable by reliance upon one of 5 facts, and the most common is unreasonable behaviour. This is what is known as one of the fault based facts, as the person presenting the petition, the petitioner, has to describe what elements of their soon to be ex’s behaviour is unreasonable. The struggle in relation to this has been in the forefront of the legal world recently with the defended divorce proceedings of Mr and Mrs Owens. Mrs Owens has been trying to divorce her husband on the ground of unreasonable behaviour and thus far has failed to prove her case leaving her tied to a husband she no longer wishes to be tied to. Currently this is on the way to the Supreme Court, but without legislation to change this dated law, these sorts of issues arise on a daily basis for people wanting to separate and divorce. As a family lawyer it feels too intimate to trawl through the reasons why a marriage failed in this minute way, particularly as the detail rarely adds anything to the financial resolution or any children proceedings. So we need to change, to remove this fault based criteria and start catching up with this new century, and allow people to make rational decisions without this blame culture pervading our law.
What do I need to know if I decide to cohabit with someone?
Sir James Munby the President of the Family Division of the High Court of England and Wales, was quoted recently in The times as saying that divorce and family law needs to change. To catch up with what is actually happening and no longer be tied to old dated law. This is particularly so when you look to answer the above question. The current law frankly is neither appropriate or fair. There is no such thing as a common law wife – yet how many times are we asked if there is? Sometimes it makes me feel like driving one of those Brexit type busses up and down the country so people can see – common law wives do not exist!
So if I live with someone in their house and we have children and then years later we split up can I get maintenance? And a share of the house?
So maintenance. There are 2 types of maintenance, child maintenance and spousal maintenance, the former if there are relevant children then this will be payable/receivable and the child maintenance service has a handy calculator at www.cms.gov The latter is not available if you are not a spouse. At all. Nothing.
What about the house? Well you now enter the realms of trusts law. So if you are an owner then yes you will get your share, dependant upon how you defined it at the time of purchase or subsequently. If you simply shared the bills and you bought the food etc, and you just lived together then there is a big risk that you will not be entitled to anything for you. You might be able to make an application for housing/financial assistance for the children, but once they finish their full time education any provision reverts back to the other parent.
So imagine, you have been living together for 20 years, the children have grown and gone, you both work but your job is not very well paid; the house is in your partners name and you have assumed you will get a share but certainly never really discussed this, never mind been to a lawyer to document it. So what will you get when you part? Probably nothing. The reality is you could end up losing your whole lifestyle, your home and more importantly your financial security. This cannot be right. As a parent, it strikes real fear when I look at my adult children, that they may effectively place themselves in a vulnerable position like this. So don’t ignore legal things. Take advice. This could be the best money you ever spend.
The ongoing Russian oligarch saga
Not many of us will ever have to face the issues that Ms Akhmedova the wife of the Russian oligarch has to face. The couples marriage broke down in 2013 and despite a high court judge making a financial ruling in her favour for a transfer of among other assets the sum of £350M this money has not been paid. Indeed Mr Akhmedova disputes the jurisdiction of the English courts.
Interestingly the press have highlighted an asset that might just solve Ms Akhmedova’s problem if she can ever prove who owns it – it appears that a luxury yacht which is valued conveniently at £350M is being hidden by Mr Akhmedova. Formerly belonging to Roman Abramovich, Luna a 377ft super yacht would certainly resolve the breach of the order, the issue is tracing it and then actually taking ownership.
Jo qualified as a solicitor in 1992 having completed her training at leading Cambridge firms Taylor Vinters and Thompson and Co. After qualification, Jo moved to J Garrard and Allen in Olney where she established the family department. In 1994 Jo was made a Partner at J Garrard and Allen and continued to build and develop the practice. Jo trained as a mediator with Resolution in 1996.
In 2001 Jo decided to set up independently and created a purely family law practice in Stony Stratford recognising that in fact the skills required by family lawyers and the expectations of clients experiencing relationship breakdown and separation were different from those required in other areas of the law.
Hawkins Family Law fields 'a very professional team that delivers a high-class service and has strength-in-depth from senior to junior level'. Managing director and team head Jo Hawkins provides 'clear and accurate advice and moral support through often testing times for her clients; she focuses on deriving the best long-term outcome for her client and other parties'. The practice has particular strength financial matters, including divorce and ToLATA proceedings. Other key figures include Loraine Davenport, who has strong collaborative law expertise and handles complex children cases and high-net-worth ancillary relief matters; Annabel Hayward, who focuses on complex financial provision and co-habitation matters; and Stacey St Clair.
For more information please click here.
What the team is known for
Boutique family law firm that punches above its weight in terms of high-value and complex matrimonial finance instructions relating to business assets, pensions and substantial property portfolios, including assisting with the handling of assets abroad. Also represents clients in the negotiation of wealth protection agreements and private law childcare arrangements. Fields a team trained in collaborative law and alternative dispute resolution.
An impressed client says: "The team's personal service and individual care is a great asset,"adding that the lawyers are "always available to assist and understand the occasional need for immediate advice and guidance, providing a very reassuring service."
For more information please click here.