Category: Family Law

A number of parties either married, in a civil partnership or cohabiting tolerate coercive control by their partner and a number of parties do not even know what coercive control is or what remedies are available to them.

Coercive Control is:

An act or a pattern of acts of assault, threats, humiliation, intimidation and other abuse which is used by a party to harm, punish or frighten their victim.

Or as the Home Office has said, ‘A purposeful pattern of behaviour which takes place over time in order for one individual to exert power, control or coercion over another’.

WHAT ARE THE MAIN SIGNS OF COERCIVE CONTROL:-

•  A common sign is where a party seeks to isolate their partner from their friends or family
• Seeks to control the life of the other party.
• Seeks to control the families’ finances
• Repeatedly degrades the other party in public or in front of family members
• Must see any communication the other party has.

A prime example of coercive control is where one party informs the other that their relationship is at an end and where the other party threatens that they will report the party ending the relationship to the Local Authority and they will ensure the party ending the relationship loses their children.

If you are in such a relationship then an application may be made to the Court for an Injunction to prevent this behaviour.  Parties should not tolerate such relationships and it especially harmful to children living in a household where coercive behaviour is being tolerated by a party.

Coercive Behaviour is also a crime

In 2015 The Serious Crime Act was introduced and coercive behaviour became an offence.  Thus as well as taking civil proceedings for an injunction the matter may be reported to the police who may bring a prosecution against the party using coercive behaviour.

We sincerely hope you are not a victim of coercive control.   However, in the event that you are please do not hesitate to telephone our Senior Family Solicitor Lynette A’Court on 07754662438 for your free initial consultation.

Even though lockdown rules have now been relaxed parents must carefully consider how they approach spending time with their children.

In practice the rule is ‘where possible that Child Arrangements Orders should be complied with but parents must act sensibly’.   In deciding the best way forward parents must take into account their children’s health, the risk of infection in the area where they reside, whether an individual in one of the households is a vulnerable adult.  If the parent with whom the children resides is a vulnerable adult or if a parent is working for the NHS or in an environment where they are at risk of infection, the parents may decide it is safer for the children to have contact via facetime or zoom until the pandemic is over.  The child’s safety is paramount.

It is very important at all times that parents put their children first and not their own personal wishes.

If any parent has any concerns about having coronavirus symptoms, the NHS operates an online coronavirus checker.  Anyone with symptoms must self-isolate for 7 days.  Anyone who lives with a symptomatic person must self- isolate for 14 days.   If parties have major concerns over coronavirus they should dial 999 and seek assistance whether this relates to their children or themselves.

If any parents have concerns over Child Arrangements our Senior Family Solicitor Lynette A’Court will be happy to assist. She may be contacted on 07754662438.

During the current lockdown children’s schooling can be a major worry and concern for some parents. The government guidelines are that during lockdown there should be flexibility between parents over schooling even where a Child Arrangements Order is in place. Parents should be looking at what is in the best interest of the children. The parents should decide how the children will spend their day and in particular how their school work should take place during this unsettling time. Some parents decide that they should not depart from the Child Arrangements Order which is currently in place. However they should not do this if there are going to be problems over their children’s schooling.  They must put their children’s schooling first. In the event that parents cannot reach an agreement and as a result the children are not receiving their schooling at home an application may be made to the Family Court for a Specific Issue Order to deal with this problem. However such an application must be made as a last resort. Once papers are issued at Court a date will be fixed and a District Judge will usually order a remote court hearing. This is where the hearing is conducted by telephone so parties do not have to attend Court but all parties are connected to the same telephone conference call.   The District Judge will then introduce his or herself and explain that the conference call must not be recorded and then the case will proceed.

In the event that you are having problems over your children’s schooling or indeed any other problems relating to children’s arrangements please do not hesitate to telephone Lynette A’Court our Senior Family Solicitor on 07754662438 who will be able to assist you.

Unfortunately with many spouses, partners and children being in the same households for considerable periods of time tensions often run high and domestic abuse can occur.  

Spouses/Partners in Domestic Violence situations should ensure to maintain daily contact with family and friends via social media or telephone. They should also consider devising a code if they are unable to talk.  The code for example could be for a family member or friend to contact the local police or the spouse/partner’s solicitor. 

On the 26th March, 2020 THE HEALTH AND PROTECTION (CORONAVIRUS RESTRICTIONS) ENGLAND REGULATIONS 2020)  came into force.  These regulations specify situations which amount to a reasonable excuse to leave home.  The most relevant in so far as domestic violence is concerned are as follows:-

Regulation h)  To fulfil a  legal obligation, including attending Court or satisfying bail conditions or to participate in legal proceedings.

Regulation i)     To access critical public services, including services provided to victims

Regulation m)    To avoid injury or illness or to escape a risk of harm

HOW YOUR SOLICITOR CAN HELP YOU IN LOCKDOWN

If the circumstances you are living in are dire and you fear for your safety and the safety of the children as well as contacting the police you can contact a Solicitor, Lynette Ann A’Court of Aston Bond will be able to assist you to make an application to Court under PART IV OF THE FAMILY LAW ACT 1996  to apply for:

1.  A Non –Molestation Order to prevent your spouse/partner  from using violence against your children or yourself.  There are also a number of other orders which can be obtained, including preventing your spouse/partner from threatening harassing or pestering you.
2.  In extreme cases an Occupation Order can be made ordering your spouse/partner from the Family home.
3. In the event that your spouse/partner breaches Orders made by the Court he can be committed to prison for contempt of Court.

The courts are still available to hear urgent applications in respect of non- molestation orders and occupation orders.

The Court staff, judiciary, barristers and solicitors are key worker and are there to assist members of the public.

Usually the hearings are dealt with remotely by telephone. Such cases are classified as High risk and are dealt with as a matter of urgency.

If you are suffering abuse please do not hesitate to contact our senior family solicitor lynette Ann A’Court on 07754662438 to discuss your concerns and she will then advise the best way to try to resolve the position for you and put you in a much better place.

Urgent Family Matters

The Court Services are listing matters in accordance with how urgent the case.

Cases which are considered to be urgent and take priority are:-

1. Child abduction 
2. If you consider that a child is at risk of harm
3. If you have been harmed or are at immediate risk of harm

In the above circumstances, urgent applications may be made to the Court and the listing of these matters will be heard prior to the ordinary court family business.

Application for Child Arrangements Orders

These are applications where the parties have a dispute over the Arrangements for the Children.   The hearings have been categorised by the Courts as the ‘will be done category’.  These will be allocated to a District Judge or Magistrates for hearing as soon as possible but will not be classified as urgent.   However, if there are problems over the Children’s Arrangements parents should not be put off instructing their solicitor to issue proceedings, as these cases will be heard by the Court but the procedure will take a little longer than normal.

Divorce and Financial Remedy Proceedings

The issuing of Divorce Petitions again fall into the ‘will be done category’.   This means they will be done as soon as possible after the urgent Court business has been dealt with.     It does not mean that you should delay instructing your solicitor to issue your Divorce Petition when you are distressed as a result of the breakdown of your marriage.   The matter will still be dealt with by the Court but will not be prioritised.   However, at least having issued the proceedings you will be aware that the matter is progressing.

Financial Remedy Applications

Such Applications again fall into the ‘will be done category’.     It is often useful to have voluntary disclosure by way of the Form used by the Court, namely Form E, to provide full financial disclosure to the parties solicitors to see if agreement can be reached prior to issuing an Application for a Financial Order.     In the event that agreement is reached the matter may be resolved by way of a Consent Order made by the Court which incorporates the terms of the agreement which has been reached by the parties.    Also in some cases parties attend mediation to reach an agreed settlement but it is very important that if the mediation route is taken both parties must be willing to mediate.   If parties are living under the same roof in a very unhappy atmosphere the current pandemic should not hold parties back from issuing proceedings even though such proceedings will take a little longer than usual.

Remote Hearings

Except when there are exceptional circumstances all Court Hearings are heard remotely.   This can be via video link, skype or telephone.    The Court will usually make an Order that the case will be heard remotely. The writer has dealt with a number of telephone remote hearings which seems to be preferred method used by most of the Family Court’s at present.      The Court usually facilitate the Remote Hearing but in certain circumstances, the parties solicitor’s have to arrange the hearing.    It is necessary for the parties and their solicitors or counsel to provide their telephone contact details to the Court.       A fixed time will be given by the Court for the Remote Hearing and the parties will be called and will be invited to join the hearing.   The Judge will then introduce his or herself or in the event that the case is heard by Magistrates, the Magistrates’ clerk will introduce his or herself and also the Magistrates.  The case will then proceed as it would have done in Court but over the telephone.   The writer has found that these hearings work well and some parties prefer it as they are not intimidated by being in the formal Court Building and are sitting in the comfort of their own home.   However parties will be warned that no other person may listen to the proceedings neither is anyone permitted to record the proceedings.   In accordance with the Court’s normal practice the proceedings will be recorded by the Court.      

Can Aston Bond help with your worries and concerns about any of the above matters?

If you have any concerns relating to children’s disputes please do not hesitate to contact Lynette-Ann A’Court – Senior Family Solicitor at Aston Bond for your free initial interview

Mobile: – 07754662438 Email – lacourt@astonbond.co.uk

Concerns

If I have a Child Arrangements Order in force for my partner/ex-spouse to see the children of the family do I have to comply with the Order?

Government Guidance say:  ‘Where parents do not live in the same household, children under 18 can be moved from their parent’s homes”. This is clearly an exception to the “Stay at Homes Rules.” The decision that has to be made by parents,  ‘Is it safe for this to happen?”  For example, what occurs if the other parent works for the NHS or as a result of employment is in contact with a number of different people as a result of his or her employment. Clearly this would be unsafe. The parents have to assess what is in the best interests of the children, taking into account the children’s present health, the risk of infection, and the presence of any recognised vulnerable individuals in the household, for example, if the child’s mother or father are asthmatic.       

This is a time when parents should try and communicate with each other about their concerns.  Even if some parents think it is safe for child arrangements to take place by way of visitation or overnight stays others may be genuinely concerned. The parent’s should try and discuss their concerns and try to reach a temporary compromise until lockdown is over and the Order can be fully complied with.

What cannot happen?

Where a Child Arrangements Order is in the force the other parent cannot say there will be no Children’s Arrangements until after lockdown.   In the words of The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, “The key message is  that, where Coronavirus restrictions cause the letter of the Court Order to be varied, the spirit of the Order should nevertheless be delivered by making safe alternative arrangements for the children.”

How can parents deliver safe alternative Children’s Arrangements?

The children’s parents can agree Child Arrangements by facetime, skype, zoom, WhatsApp, or other video communication or by telephone. The main message is to keep all family members safe with the children’s interests being paramount.

What action do I take if my ex-spouse/partner refuses to agree on the children’s arrangement when a court order is in force?

Even though there is lockdown the Family Court are still operating mainly by way of remote telephone hearings or hearing via skype. Applications for Children’s Arrangements Orders and Application to Vary or Enforce Children’s Arrangements Order may be made to the Court.

How can I obtain a child/children’s arrangements order during lockdown?

The Court’s are working very hard to ensure that new cases relating to Children are still listed for Hearing. Parents may make an application to the Court for a Children’s Arrangements Order, which will usually be listed for a remote hearing as soon as practicably possible. The Court is doing its best to ensure that both parents are able to continue to spend time with their children unless there is a very good reason why they should not do so.   Clearly it is very wrong for one parent to refuse the other any contact with their children and it is totally unfair to the children.

If you have any concerns relating to children’s disputes please do not hesitate to contact Lynette-Ann A’Court – Senior Family Solicitor at Aston Bond for your free initial interview  – Mobile: – 07754662438 Email – lacourt@astonbond.co.uk

Divorce Process Overview

The divorce process: A marriage is dissolved by a decree of divorce which is pronounced after one party has filed a Divorce Petition in the English Court which asserts the irretrievable breakdown of marriage. This has to be proved by one of five grounds, these are:

• Adultery,
• Unreasonable behaviour
• Two Years Desertion
• Two Years Separation by Consent
• Five Years Separation.

The grounds most often used are Unreasonable Behaviour or Adultery.

Once Divorce Proceedings are underway the Court has power to make financial orders against each party, provided that an Application is made to Court, this is another part of the divorce process.

Financial Matters and Divorce

The principal statute is the Matrimonial Causes Act 1973.  Sections 23 and 24 establish the Court’s range of powers which are:  lump sum orders, property adjustment orders, periodical payments orders (maintenance orders) pension  orders, orders for sale of property and the division of the proceeds, variation of trusts.

Clearly some of these powers relate to income provision and some to capital provision.  In a normal middle asset case an award might be a mixture of both types of order, but in a high asset case the award will generally be just for capital.   The Court only has power to make orders against the husband and wife, not third parties.

When the Court considers making an order it must take into account Section 25 of the Matrimonial Causes Act 1973, namely:-

• Interests of the children paramount
• Age of the parties
• Capital and income resources
• Capital and income needs and obligations
• Standard of living during the marriage
• Physical or mental disability
• Contributions to the welfare of the family made during the marriage or in the future
• Misconduct (This is very rarely applied)
• Value of lost benefits because of divorce
• The need, if possible without hardship, to achieve a financial clean break between the parties
• All of the circumstances of the case

The above points tell the court what to take into account but they do not say how or what the objective for the Judge should be.  The final decision for the Judge as to the award he or she makes is discretionary.  The above points are not in order of priority but in some cases one factor will be more important than another.

THE LEADING CASES ARE:  WHITE –v- WHITE (2001)  MILLER –v- MILLER and McFARLANE –v- McFARLANE (joint appeals) (2006)  CHARMAN –v- CHARMAN (2007) and RADMACHER –v- GRANATINO (2010)

From the above cases the following principles have arisen

• The Court will take into account all of the parties resources, valued realistically in the event that the case proceeds to trial and is not settled the Court will be looking at the valuations as at the date of trial.
• The resources will be distributed between the parties fairly.

Fairness has three strands, meeting the parties needs, sharing and compensation.

Needs

To ascertain and meeting the parties needs is the basis upon which the majority of cases are determined.   When assessing needs the Court will look at the resources and the standard of  living of the parties  during the marriage and the length of the marriage.  The needs of both parties to the marriage are very important.

The main needs are for housing and income.  Due to the breakdown of the marriage and the parties requiring separate homes.    It is unlikely that the housing need will be at the same level as the matrimonial home.  It can be however, if there are high assets.

The income needs will be assessed by reference to a claimed list of expenditure and to the marital standard of living.  Ridiculous claims will not be taken into account.  The Court can order periodical payments for maintenance and may order a lump sum payment of money.

The Court will decide if the income provision should be for the whole life or for some shorter period (a term:  the length of the marriage,  a period of time to give the other party time to re-establish their career,   when the children cease full-time education or such term as ordered by the Court).

Compensation

Rarely used as needs are usually used.

Sharing

If the total capital resources exceeds the sum required to meet the needs of both parties, the Court will consider sharing the rest unless the wealth has come from an inheritance or from funds of the parties prior to the marriage.    With inherited wealth the Court usually look to the party who received the Inheritance retaining it but should there  be a need it will be used in the financial settlement.

The essential rule is that wealth built up during the marriage should be shared equally irrespective of the roles of the parties, whether money-making or home-making. To do otherwise would be discriminatory and unlawful. The wealth for sharing is called The Matrimonial Property.

Non Matrimonial Property

This consists of wealth brought into the marriage by one party or wealth inherited during the marriage or to a lesser extent wealth generated after the parties separation

Non Matrimonial Property is not completely excluded.    It is completely included if it is needed to meet needs.  Also it may transform into matrimonial property over time if it is mingled or merged (especially over a long marriage).

Unequal sharing of matrimonial property can be ordered in very high asset cases if the Court finds the money maker has made a special contribution.

Resources

The Court will take into account all of the parties assets anywhere in the world and whether or not they are held in their own names or through another entity. Both parties must make full and frank disclosure of their resources and give documentary proof to prove their disclosure.  Failure to make full and frank disclosure may result in any settlement being set aside.

If you require assistance with the divorce process please do not hesitate to contact us here. We offer a free initial consultation to every new client, so get in touch today. 01753 486 777

Lynette A’Court

Head of Family Law

 

The Ministry of Justice is currently investigating a fault that has been found in their online software. ‘Form E’ on the Ministry of Justice website is used by thousands of couples to input their assets and financial details when going through divorce proceedings. It is a simple online form used when applying for a financial order that requires individuals to give full and frank disclosure of their finances, in order to facilitate a division of these assets. Continue reading “Have you been calculating your assets wrong?”