99 year old man files for divorce
In a case where the petitioner is believed to be the world’s oldest, an Italian man has filed for divorce from his wife of 77 years, based on discovering she had had an affair in the 1940’s.
This is a sad story, the couple involved have 5 children, 12 grandchildren and 1 great-grand child.
Divorce Procedure
Every divorce must start with one of the parties issuing what is called the Divorce Petition. The Family Procedure Rules 1991 set out the list of information to be contained in this petition and in practice there is a standard form to enable the party who will be the Petitioner, to enter all the necessary information.
The information needed includes:
Alongside the Divorce Petition it is necessary to provide the Court with the following additional documents:
1) Statement of Arrangements for Children – this is a standard form used when there are children of the family. This gives their details and information such as their living arrangements, maintenance, education and proposed contact. The Court will then consider these arrangements as they are required to do under s.41 of the Matrimonial Causes Act 1973. It is best to try and agree the Statement of Arrangements with the Respondent, however it will not stop the Petition if they don’t.
2) Marriage Certificate – The original certificate must be sent to the Court. If it is in a foreign language, then it is necessary for an authenticated translation to be obtained.
3) Certificate relating to Reconciliation – This is necessary where a Solicitor is acting for the Petitioner. The Solicitor must file this where it states whether or not he has discussed with the Petitioner the possibility of reconciliation.
4) Family Mediation and Assessment Form – Under recent changes in the law it is now also necessary for the Petitioner to complete this form which states whether or not the parties have attended mediation and if not why not.
Once these documents are sent to the Court along with the Court fee, the Court will issue the documents to the Respondent at the address provided in the Petition. The Court will also include instructions to the Respondent as to what he must do next.
At this stage the Respondent will need to complete the Acknowledgement of Service. This is a form with a series of straightforward questions which the Respondent must answer. The purpose of these questions is to reveal the following information:
i) Proof of Service.
ii) Whether the Respondent intends to defend the petition. However it should be noted that it is not binding and the Respondent can change his mind later.
iii) Whether they are in agreement with the Statement of Arrangements for Children. Again the Respondent is not bound by their reply.
iv) Whether they consent to a Decree of Divorce being issued. Where consent is needed for the fact relied upon, the Respondent’s signature on the Acknowledgement of Service is considered the consent required.
Once the Court receives this form, they will forward it to the Petitioner. At this stage the Petitioner must then swear or affirm an Affidavit in Support. This is again a question and answer form dealing with the following:
a) Confirming that the contents of the petition is true and that no amendments or alterations are required.
b) Whether or not the parties have lived together since the date of the particulars stated in the petition.
c) Confirming that the contents of the Statement of Arrangements for Children is true.
d) Identify the signature of the Respondent on the Acknowledgement of Service and Statement of Arrangements for Children.
An application for Directions for Trial is then made by the Petitioner. In most cases the Judge will then set the matter down for the ‘Special Procedure’, which is actually the general procedure now used.
The Judge will consider the papers received and if satisfied that the case has been proven he will fix a date for the Decree Nisi to be read out in open Court. An order for costs will be made if the Petitioner requested it. Notice of the date for Decree Nisi will be sent out to notify the parties. Neither party need attend on the day.
Generally the final stage will be for the Petitioner to apply for Decree Absolute 6 weeks and 1 day after the date of the pronouncement of the Decree Nisi. Once the application and fee are sent to the Court the Decree Absolute will be granted provided that the following points are satisfied:
The Decree Absolute is then granted and sent to both parties. At that stage the marriage is now dissolved and the Divorce procedure is complete.
This article courtesy of divorce solicitors in London
Varying a Financial Order on Divorce
Whether a Financial Order was made after a full hearing where there was a dispute between the parties, or whether it was made by consent, it is possible for either party to apply to the Court to vary such an Order.
Not every type of Order can be varied, as those which effect a clean break or provide for capital sums usually cannot be varied to avoid uncertainty. In this way all parties can make plans for the future with the knowledge that the distribution of capital is permanent as neither party can apply to amend it.
Orders that can be Varied:
Orders which can be varied include:-
1. Maintenance pending suit and interim maintenance. This is where a party has been awarded payments whilst the main Financial Order is being contested and before the final hearing has been concluded on the matter. Either party can apply at any time to vary such an Order.
2. Periodical payments. This type of Order is most commonly varied and either party may have reason to vary it. The Applicant may wish to seek that more is paid to them, whilst the Respondent may get to a time whereby they wish to see the payments reduced and eventually extinguished.
A variation could include requesting that the Court extend the time for their fixed term periodical payments. Such an application can only be made if the original Order has not yet expired. It does not matter if the hearing of the Application is after that time, as it is only necessary that the Application is made in time. Any party looking to make such a variation should also check that the original Order did not direct that no extension could be made.
Additionally, should the Court vary a Periodical payment they can add a direction to impose a ‘deferred clean break’, whereby they extend or modify the payments but for a limited time only, after which it will cease and neither party can seek to extend it. Whether such a decision is appropriate will depend on the circumstances at the time, much like as they are when they decided whether a clean break in the divorce was suitable at the original hearing.
It should also be noted that when a Respondent seeks to reduce the amount paid on a divorce, the Court could also agree to remit any arrears owing to the Applicant. This would occur, for example, where the Respondent has lost their job, arrears have built up and they are applying for a downward variation to the Periodical payments.
3. Payment of a lump sum by instalments. Although the Court has the power to vary not only the number and amount of instalments but also the overall sum, the Courts have made clear that they would only ever vary the overall sum in exceptional cases where the original circumstances had changed significantly, making it unreasonable to hold the Respondent to the original sum agreed.The purpose of this is to make sure that the finality which the Order was supposed to bring will remain.
4. Sale of a Property as a condition of failing to pay a lump sum payment. Where the Court has directed that a property should be sold should the Respondent fail to pay the lump sum Order, the Respondent can apply for that condition to be removed should they be able to provide another means of security or method of payment.
Orders that cannot be Varied:
In order to avoid uncertainty the following types of Orders cannot be varied on the basis that these Orders are supposed to be permanent to enable each party to make plans for the future without worrying about possible unforeseen changes:-
1. Lump sum Order not payable by instalments.
2. Transfer of Property Orders. No party can seek to delay any date of sale, however it might sometimes be possible to obtain a sale at an earlier date.
3. Pension Sharing Orders. These cannot be varied unless the variation takes place before the Order comes into effect and before the Decree Absolute is issued.
Although most Orders will state that the parties have “leave to apply” this does not mean that they are able to return to Court to vary the Order. This will mean that the parties have the opportunity to return to Court about a family law issue if they are having difficulty implementing the Order. If the result of any subsequent Order will make it more favourable to one party over the other then this will be seen as a variation and the party will not be “at liberty to apply”.
What the Court will Consider on Variation:
The Court is required to consider all the circumstances of the case, giving first consideration to the welfare of any children who have not yet turned 18. The needs of each party will be considered, however where the Applicant is making an application for variation, any need which has arisen out of their own financial mismanagement or extravagance will not be considered, as the Respondent will not be expected to meet these needs.
Any deliberations by the Court must include considering the complete ‘package’ of the original Financial Order. This means, for example, that whilst the periodical payments themselves may seem low and appropriate to be varied, if the Applicant was originally given a larger share of the matrimonial home and to increase the periodical payments will now sway the balance of the original Order, then the Courts will be less likely to agree to this variation. They will always seek to maintain the balance achieved by the original Order.
Landmark Court of Appeal decision
With an increasingly smaller world, increased movement of people and ability to “connect” with people all over the world on the net, marriages between people from different countries have become increasingly common. This, in turn, can create major issues on divorce where there are children involved.
Before a landmark decision in the Court of Appeal, the majority of cases where a spouse, often the mother, wants to move back to their country of origin with the children, involve this happening. The court always has to put the needs of children first but the way in which the issue has been dealt with, weighing heavily the emotional impact on the primary care giving spouse of being forced to stay in England & Wales, usually has resulted in an Order that the spouse can leave the country with the children.
In the relevant case, the father was found by the court to play a major role in the children’s lives, who had been living with him for 2 nights each week during an extended separation period. The Court effectively changed the principle away from giving heavy emphasis to the effect on the spouse forced to stay in this country to a greater emphasis on the likely detrimental impact on the children on being so far away from the spouse remaining in England & Wales.
This raises many possibilities and issues for the estimated 1,000 cases a year where this issue arises, including :-
It is worth re-emphasising that whilst this is an important precedent and clear shift in emphasis, each case is different and the courts will always weigh up all factors in these cases, but always putting the needs of children first.
Many thanks to Alicia Cenizo, family law and divorce partner at Darlingtons solicitors, for this article.
Massive divorce settlement
As has been widely reported in the press this month (so we will not post a lengthy article) Russian businessman Boris Berezovsky has paid his ex-wife the largest ever Uk divorce settlement, thought to be in the region of £100 million. The ex-wife’s lawyer was able to confirm that the settlement is the biggest known in the UK.
Relevant to the size of the settlement would have been Mr Berezovsky’s huge wealth, the couple have children the fact that the couple were married for 20 years, the fact that when they married Mr Berezovsky was not wealthy and possibly, to a degree, the fact the divorce was based on the ground of “unreasonable behaviour”.
Child Custody
When a marriage breaks down and both parties decide to divorce there are several stages to this process. A common misconception is that child custody is determined by the Courts automatically as part of this process. In reality child custody is only determined by the Courts should either of the parents make an application requesting that they do so.
When the mother and father decide to go their separate ways there are two possible paths that they can take in relation to the child. They can either come to an amicable solution, deciding what the living arrangements will be having determined what is best for their child(ren), or the matter could end up becoming very hostile requiring it to be taken to Court.
Although in the UK it is not the norm, joint custody is considered by many to be the preferred solution to any child custody dilemma. This allows both parents to have an equal share in the physical care and contact with the child(ren) and also an equal share in the rights and responsibilities relating to the child(ren) so that decisions are shared. The actual amount of time spent with each parent can vary from case to case, however this relies on the parties both being fit to parent and agreeing to come to such a solution.
This type of arrangement can be very beneficial, however it does demand a huge level of commitment from both parties. Through this type of child custody arrangement a separated father or mother can be far more involved with their child(ren), seeing them on a much more regular basis. It will also mean that neither parent carries the full burden of parental responsibility, rather it can be shared between the parties. The most important benefit is that the child(ren) will continue to have a proper family life with both their mother and father which will only enhance their relationship with them.
The problems facing joint custody is that both parties would have to live reasonably close to each other. This may lead to problems if being in close proximity to an ex partner is not beneficial for yourself. Furthermore, once the child(ren) become used to having both parents on a joint basis, it can make the moving process that much more difficult should one or other of the parties need to move due to their employment situation.
Within the divorce process one of the documents which needs to be completed is the ‘Statement of Arrangements for Children’. The purpose of this form is to give the Court basic information about the children and general contact arrangements relating to them. This is for information purposes only. Many people believe that the arrangements stated in this form become binding on divorce and sets out the child custody rights. This is incorrect. However the benefit of this form, aside from informing the Court, is that it allows each party to understand where the other side is standing in relation to the children.
Should it be clear at that point that the parties cannot agree by themselves to come to an arrangement relating to the children, then it is always advisable to seek mediation before applying to the Courts. This is because even throughout the Court process itself, the Court will be looking to settle this matter by agreement made between the parties, rather than having to set down an actual ruling on the matter.
If all else fails, then as a final resort either party can apply to the Court for one of the following orders;
It should be noted that for any of the above matters the overriding objective of the Court by which it bases all of its decisions is whether or not the matter being applied for is in the best interests of the child(ren).
‘Best Interests’ includes a variety of factors such as the child’s established patterns, the parties abilities to provide for them, the child’s right to maintain a relationship with both parents and also the child’s own wishes. The older the child the more the Court will take their wishes into account, however it is not decisive in itself. For example, if a teenage child refuses contact with one parent, the Court is unlikely to make an order for contact as it has very little chance that it will be followed, however for younger children the Court may still make such an order.
In practice the presumption is that it is in the child’s best interest to have contact with both parents. Should one or other party wish to contest this, it will be necessary to provide sufficient evidence. A party’s perception or belief that one parent is not capable, or that having contact with them could be harmful to the child, is not enough. It is very rare that one parent will be permanently excluded from having any type of access to their chil(ren).
Contact Orders will mean that one parent will have the majority of the day to day responsibility, while the other sees the children at agreed times, such as the weekend.
It is true that when the parents are unmarried, it is more difficult for the father to enforce his child custody rights as the presumption is that the mother is best suited to look after the child, however it is still possible to make an application to Court provided there is sufficient evidence to show that the mother is unfit and that he has been having quality time with the children to the best of his ability. However, any unmarried father must first establish paternity before a Court will award him custody.
Should the Court award one party or the other sole custody, or exclude one from having any contact, that party can always apply to the Court for the decision to be reviewed should the circumstances have changed.
It should be stressed that child custody rights are in no way related to financial payments for the child(ren). This is a separate matter dealt with by the Court. No party has the right to deny contact simply because the other is not paying any form of child maintenance. If there is a Contact Order in place, denying the other party their right could mean you are held in contempt of Court and could face imprisonment and/or a fine.
Finally, whilst the Court generally accepts that the parents are best placed to maintain the welfare of their child(ren), in some cases a third party, such as a grandparent, could seek custody. This may occur on the parent’s death or incapacity, or if both parents were unfit to care for the child(ren) and it would be in their best interests.
This article is provided by Darlingtons solicitors who provide specialist divorce and family law advice.
Survey on prenuptials
A recent survey of advisers to the very wealthy discloses some interesting views on prenuptial agreements and their likely increased use and importance in the future. Here are the stats :-
By clicking the next links you can access some additional family law resources or learn more about divorce.
Family law reforms – is it good that children may have a bigger say in separation ?
The Family Justice Review is currently considering the difficult issue of whether in legal separation matters, children’s views should be a factor which Judge’s will be compelled to take into account. These types of matters are inherently contentious as what may be good for 1 child may be devastating for another. Some children may benefit from having a voice in legal proceedings, others may feel responsible or even guilty if things don’t work out for the family in the future. This seems to be one of those debates, like prison reform, which are constantly on the agenda but where little changes. Maybe the status quo is no bad thing, since if the arguments are so finely balanced, it is perhaps not worth change for the sake of change.
What do you think ?
Foster carers the latest to be hit by Government austerity measures
I don’t think I’m being overly controversial in saying that foster carers are some of the best people we have in this country and deserve to be treated on that basis for the societal contribution they make.
It is particularly disappointing to note that foster carers are the latest group to be targeted for cost cutting by the Government, which increasingly seems to be making cuts from those who contribute most. The cuts in question relate to withdrawing benefit for spare bedrooms and could impact carers by up to £700.00 a year in reduced Housing Benefit.
The Fostering Network said that carers living in social housing should not have to subsidise the housing costs of children “out of their own pockets”.
Foster family allowances, depending on a child’s age and local authority, can range from £125 a week for babies to more than £250 for a 16- to 18-year-old in London. Under the housing benefit changes, a claimant with one “spare room” is expected to receive a 13 per cent cut, with the payment reduced by 23 per cent for two or more spare rooms. Claimants, on average, could lose £676 a year.
Parental Responsibility
More than one person can have PR for a child at the same time, and a person with PR does not lose it solely because another person acquires PR (sections 2(5) and (6), Children Act 1989).
However, the first person’s PR may end for another reason, for example, if the second person adopts the child, see When does PR end?
If more than one person has PR, each can act independently unless there is a statutory requirement to consult the others (section 2(7), Children Act 1989). For example, if both parents have PR:
In cases of disagreement between those with PR, it may be necessary to apply to the court for one of the following orders under section 8 of the Children Act 1989:
Married parents and parental responsibility
Julieand Ian are married when their daughter, Chloe, is born. Both parents have PR automatically.
Unmarried parents and parental responsibility
David and Emily are not married when their son, Frank, is born. Emily has PR automatically but David does not have PR. The relationship has already broken down when Frank is born and they have no plans to marry in future, but they do agree that they should be equally involved in making decisions for Frank. They decide that David should be registered as Frank’s father from the outset, and he acquires PR on the registration. If Frank had been born before 1 December 2003, it would not have been possible for David to acquire PR in this way. Instead, David and Emily could have made a parental responsibility agreement in the prescribed form and filed it with the court, giving David PR from the date the agreement took effect on being filed. If Emily did not agree to David having PR, he could acquire PR only by applying to court for a PR order or a residence order.
Step-parents and parental responsibility
Continuing the facts in Example 2: unmarried parents, Emily marries George and Frank lives with them. David moves away. By the time Frank is ten, he has only limited contact with David and becomes closer to George. George would like to have PR for Frank, so he and Emily ask David if he will enter into a PR agreement with them. David refuses. Because David has PR, George cannot make a PR agreement with Emily alone. George does not want to go to court so he lets the matter drop. hen Frank is 12, David dies. George and Emily can now make a PR agreement. However, they decide that George should adopt Frank instead. On the adoption, George becomes Frank’s father and automatically has PR from that time. Because George is married to Emily her position does not change: she remains Frank’s mother and continues to have PR.
Guardians and parental responsibility
Continuing the facts in Example 1: married parents, Amy and Brian make wills appointing Amy’s mother, Harriet, as Chloe’s guardian. Amy and Brian are both killed in a car crash when Chloe is three. The appointment takes effect on their deaths and Harriet has PR from that time. Harriet is 58 when she becomes guardian. When she reaches 70 and Chloe is 15, Harriet feels that she can no longer cope. The court appoints Chloe’s aunt, Imogen, as guardian in Harriet’s place. Harriet loses PR and Imogen acquires PR at that time.
Residence orders
Joe and Karen are not married when their son, Lee, is born. Karen has PR automatically but Joe does not. They later separate and Lee stays with Karen. Joe keeps in touch with Lee sporadically, but never takes any steps to acquire PR. Some years later, Karen’s boyfriend Mark moves in with her. When Joe discovers that Mark is violent towards Lee, he applies to the court for a residence order. The court grants the order and must therefore make a PR order in his favour at the same time. Karen or (with the court’s permission) Lee can apply to the court to end Joe’s PR, but the court cannot do so while the residence order remains in force.
For more information about all aspecxts of family law or divorce in London, contact Darlingtons solicitors. Alternatively, you may be seeking a family lawyer in East London or perhaps a family law solicitor in North London ?
