Pannone Family Law Blog feed

Pre-nuptial Concerns

2010-09-02 00:00:00

There is uncertainty amongst non-UK nationals who may be working in the UK or residing here whether pre-nuptial agreements are recognised by the English courts.

Pre-nuptial agreements, which specify the division of martimonial assets, are currently not legally binding in England and Wales unlike in the US or in most European countries, although the courts can take them into account when deciding on a divorce settlement.

The lack of enforceability of pre-nuptial agreements and generous financial awards given to ex-wives, has given London a reputation as the divorce capital of the world for the rich and famous who choose the city as the jurisdiction in which to fight legal battles.

The Supreme Court is due to rule on the validity of a pre-nuptial agreement signed by Katrin Radmacher, one of Germanys richest women and worth an estimated 100m, who made legal history last year when her pre-nuptial agreement was recognised by the Court of Appeal.

Nicolas Granatino, Ms Radmachers former husband, is challenging the ruling that the couple were subject to a pre-nuptial agreement signed in 1998 that waived their rights to claim against each others wealth if they split. The Radmacher v Granatino case, however, is being seen as a key test of whether pre-nuptial agreements are enforceable in English law.

The Law Commission, an independent body that examines areas where the law should be changed, is about to embark on a three-month consultation on pre-nuptial agreements.

However, pre-nuptial agreements are not always suitable. Circumstances which existed when the agreement was entered into may not exist when the parties separate.

At Pannone, we have a team of family solicitors who have wide experience in advising clients about pre-nuptial agreements.

Does further education mean further child maintenance?

2010-09-01 00:00:00

Having received their A level results school leavers across the country are looking forward to beginning university or the adventures of a gap year.

This raises the question for parents of how these ventures should be funded, which is often of particular concern for parents who have separated or divorced.

When parents separate the parent with whom the children spend the greatest amount of time is entitled to seek financial support, known as child maintenance, from the other parent to assist in meeting the childrens day to day living costs.

These payments can be made by agreement between the parents, under a court order or through the Child Support Agency (CSA).

The CSA will only deal with child maintenance where the child is under 16 or in full time secondary education. The obligation on a parent to pay maintenance to the CSA will not, therefore, extend to a gap year or university.

If ongoing support for the child cannot then be agreed it is possible for the child to apply to the court for an order to require the parent to provide funding during a gap year and/or during their university education.

If parents have been able to agree arrangements for payment of child maintenance it is advisable that these be recorded in a court order, separation agreement or other written document which should stipulate when payment of child maintenance should end. This might be the end of secondary education or tertiary education (end of a first degree).

If stated to be to the end of secondary education a parent may be able to apply to the court to extend that term to cover a gap year or university. Alternatively the child could apply to the court themselves.

If the child has a need and the parent has the ability to pay it is likely that the court will require the parent to provide support during a gap and/or university course. The availability of student loans and grants or the possibility of a child working is unlikely to persuade a court that this should be otherwise.

Many parents paying child maintenance prefer to make payment of maintenance directly to the child when they have finished school. Ideally this should be dealt with in the court order or written agreement.

If the parents cannot agree then the court would need to decide what was reasonable. When asked to decide this question the courts have recognised that there often remains an ongoing cost in meeting expenses during university holidays or parts of the gap year and have apportioned payment between the parent and child.

This is a complicated area and it is important that advice is sought from a specialist family solicitor either at the time of your divorce or separation, or in good time before such costs need to be met. The solicitors in the family department at Pannone specialise in providing advice on financial issues arising on divorce and separation and will be able to answer any questions you have on this subject.

Contact disputes - an extreme solution

2010-08-31 00:00:00

The High Court has this month given judgment in a very difficult and long-running family dispute (Re S, 12 August 2010, His Honour Judge Clifford Bellamy Sitting as a Deputy Judge of the High Court in the Coventry District Registry).

The case (reported as Re S (Transfer of Residence)EWCA Civ 291) was the subject of much comment earlier in the year as an illustration of the robust approach the courts will take where one parent is implacably opposed to contact between a child and their non-resident parent. In this instance, the court had ordered that the child move from his mothers to his fathers care as a solution of last resort to prevent the childs alienation from his father.

The court consulted a range of expert opinion and ordered that the child be placed in foster care for a brief period in order to implement the change of residence step by step. Sadly, the child continued to display severe mental distress and alienation from his father in contact sessions and the father ultimately consented to the child returning to his mother under a care order in favour of the local authority.

The court eventually settled upon the child having indirect contact with his father through the provision of school reports and photographs. A local authority presence was maintained in the childs life by means of a supervision order.

This case illustrates both the measures available to the court where there is implacable hostility to contact on the part of a parent and the limitations of the courts powers where severe damage has been done to a childs relationship with the other parent. The court stressed that there is no one size fits all solution to an extreme situation such as this and emphasised the need for expert input from a professional accustomed to working with issues of alienation.

Is Tiger's top score linked to finalising his divorce?

2010-08-27 00:00:00

Yesterday, Tiger Woods fired seven birdies to lead the field at The Barclays.

For non-golfers there is a simpler way to understand the day's events - it was his best round of the year.

There has been speculation in the media that this is the direct result of finalising his divorce earlier this week.

Certainly, it is the writer's experience that there can be an improvement in (or a return to their pre-divorce levels of) professional performance following the conclusion of divorce proceedings.

Even the most amicable separations are physically and emotionally draining. The "closure" which accompanies finalising matters removes a large source of stress and anguish. This is particularly relevant to sports professionals whose performance is so closely linked to mental strength and the ability to focus on the task in hand.

Quite apart from the mental demands of a divorce, it can also be time consuming. Put simply, once a case has concluded the individuals involved can spend the time working that they were having to devote to their divorce. This too can lead to an improvement in performance.

Finally, and perhaps most importantly, the decision to divorce for many people stems from the fact that they are unhappy in their relationship. Once they have decided to move on and start their new life this can give rise to confidence and excitement about the future. This can have a positive impact not only in professional performance but on many areas of a person's life.

Tiger Woods and wife divorce

2010-08-24 00:00:00

Tiger Woods and his wife, Elin Nordegren divorced yesterday in Florida, USA.

Nine months ago the golfing legend crashed his car outside one of his many houses. The incident sparked an explosive chain of events resulting in allegations that Tiger had committed adultery with a string of mistresses.

As ever, many of the "facts" surrounding the relationship breakdown and divorce itself are speculation but there do seem to be some common reports.

The first of these is that although there was a pre-nuptial agreement in place when the couple married it was re-negotiated following the sportsman's misdemeanours. This presumably means that the financial settlement Ms Nordegren will receive is likely to be substantially higher than her entitlement under the original agreement.

The second is that both Tiger and his wife are making every effort to try and protect their children as much as possible. They have attended parenting courses and agreed to share custody (known as "residence" in this country).

Finally, and perhaps most obviously it seems agreed that the amount Ms Nordegren will receive is likely to be by any standards very large indeed. The reported amounts range from $100m and $750m. In exchange Ms Nordegren has apparently signed a confidentiality agreement to keep details of the marriage (and breakdown) as private as possible.

Hopefully this final chapter will bring to a close this sad and drawn out event.

Love the way you depict Domestic Violence?

2010-08-23 00:00:00

Never one to shy away from controversy, Eminems latest release Love the way you Lie focuses on the issue of domestic violence.

Whilst undoubtedly raising the profile of domestic abuse, there is debate as to the extent to which the song and accompanying video furthers the cause, and to what extent it is likely to have a counter-productive effect.

The lyrics of the song depict the internal struggle of a violent husband (Eminem), detailing the viscous cycle of anger, abuse, regret and self-recrimination he feels, and that of the woman (Rihanna) who cannot bring herself to leave him, despite the abuse. The video, which has now been watched by more than 10 million people on You Tube, includes graphic scenes of violence between the couple, played by Megan Fox and Dominic Monaghan of Lost and Hollywood fame, along with a burning house.

Some feel that the way the violence is portrayed in the video, especially when accompanied by the controversial lyrics, risks glamourising physical abuse and whilst undoubtedly hard-hitting, fails to convey the reality of domestic abuse for many who suffer it.

Many of the statistics relating to domestic violence are well-known; it is estimated that 1 in 4 women will encounter it at some point in their lifetime, as many as 1 in 8 will do so annually, and on average 2 women are killed each week by their partner or ex-partner. It must also not be forgotten that many men are also the victims of domestic abuse, but, it is thought, are generally less likely to go and seek help, and that at least 750,000 children each year are thought to witness first hand violence between their parents.

It is a topic which is often not talked about, and certainly, many of the clients we see who have been the victim of domestic violence have not felt able to tell their friends or family about it. There is therefore the argument that anything which raises the profile of the issue, and gets people talking about it has to be a good thing.

Playing the Blame Game

2010-08-19 00:00:00

The State of New York has this week passed a no-fault divorce law - the last State in America to do so. Previously divorcing couples had to prove that one party was to blame for the failure of the marriage. This had led to protracted court cases and increased legal costs where the parties could not agree who was at fault. One couple, Mr and Mrs Taub, fought bitterly over who was to blame and both refused to leave their home. A court ordered that a dividing wall split their living quarters.

In England the only ground for divorce is the irretrievable breakdown of the marriage something most parties can agree on. This however has to be evidenced by one of five facts, only two of which are no-fault: two years separation where both parties consent to a divorce, or if both parties do not consent, five years separation. For many people this is simply too long a wait and they must turn to a fault-based divorce.

The two quickie divorce facts in England are unreasonable behaviour and adultery. For couples that have simply drifted apart either allegation can seem cruel and un-necessary. On the other hand, if there is a high level of hostility, a fault-based allegation can simply add fuel to the fire. Whilst the consequences of these fault-based divorces may not be as extreme as in New York, the fact is that they can add to an already stressful situation, reducing the chances of an amicable separation and increasing legal costs. This is compounded by the general rule that the party at fault will pay the innocent spouses divorce costs.

At the present time, there are no plans to introduce a quick no-fault divorce law in England. Divorcing couples must therefore work within the existing framework. Instructing a solicitor who is a member of Resolution, who promote non-confrontational divorce, can help you to avoid, as far as possible, any un-necessary conflict and its resulting costs.

Till death do us part?

2010-08-13 00:00:00

It is always important to have an up to date Will but even more so when separating from your partner. Only once your divorce has been finalised (upon Decree Absolute) will any gifts made to your errant spouse in your existing Will fail and if you do not have a Will your spouse will automatically inherit some or all of your estate under the intestacy rules should you die prior to the conclusion of your divorce.

Therefore whilst negotiating your divorce settlement make sure that you prepare an up to date Will taking into account your present circumstances to ensure what is yours goes to whom you choose. It is a complex area and it is important that you obtain good specialist advice. The Society of Trust and Estate Practitioners recently highlighted the pitfalls and extensive problems that have been encountered by many people when an experienced Solicitor was not instructed to prepare a Will.Expert legal advice is essential when separating and the preparation of a Will must not be forgotten.

If you require advice or have any questions regarding divorce, separation and preparing a Will please do not hesitate to contact a family lawyer in our team.

Is Romance Dead?

2010-08-05 00:00:00

According to research statistics published in the Guardian newspaper this month, men under 45 who earn more than 100,000 a year are three times more likely to have a pre-nuptial agreement than those aged over 45. Almost one in five, or 17%, of men under 45 now have a prenuptial agreement, compared with 5% of over- 45s.

It would appear that pre-nuptial agreements are becoming increasingly common among a generation of financially secure men who are rejecting the more romantic notions of their fathers.

This increase in pre-nuptial agreements is somewhat surprising given that they are not currently binding in this country. However, the courts' approach to them is changing. The Supreme Court recently heard a case regarding a pre-nuptial agreement called Radmacher and the decision is expected very soon. It is hoped that when delivering the judgment the Court will provide further guidance on how pre-nuptial agreements should be treated in the future. Watch this space.

If you require advice or have any questions regarding your pre-nuptial, please do not hesitate to contact a family lawyer in our team.

Who's the daddy?

2010-08-04 00:00:00

American porn star Devon James has filed a paternity action against golfer Tiger Woods, two days after going public on the American news show Extra with allegations that he fathered her nine year old son.

Last week, as the golfing star began competing in the US Open tournament in California, Ms James filed legal documents in Florida, asking a judge to determine the paternity of her son, Austin. She claims she decided to commence court proceedings now as a result of Tiger Woods cheating scandal last year.

Ms James insists that Tiger Woods has never taken a paternity test to prove his relationship with Austin, although the childs grandmother, with whom Austin is living, claims that a DNA test was performed in 2002 and proved the golfer was not the father.

In order to collect the necessary samples from Tiger Woods, in the absence of his consent, Ms James requires a court order, directing Tiger Woods to consent to his DNA sample being taken. The same applies in this country, when the court would need to have regard to the best interests of the child in deciding whether to make such a direction.

Contrary to the common misconception, a blood test is not needed to test parentage. The necessary DNA information can be extracted from saliva samples. The samples can be taken from Tiger Woods, Ms James and Austin using a swab from the inside of their mouths. This non-invasive procedure would however need to be done under controlled circumstances, in order to maintain a chain of custody of the saliva from the parties concerned to the laboratory, and to prevent any allegation of the samples being tampered with.

In England, there are a number of companies offering this service, including the provision of swab kits for the samples to be taken, and which can provide an express service for results to be produced within 3 days from receipt of sample. The service is not free, but it could be money well spent if it will clear up any dispute about the parentage of a child.

If this is an issue which affects you, it is important that you take legal advice from a specialist family lawyer. At Pannone we have substantial experience in dealing with paternity disputes and would be happy to discuss this with you further.