When is a marriage not a marriage?

4 children playingVery often you hear people say “well, they’ve been together for years and they have children so the partner must have acquired an interest in the property” or you hear the term “common law marriage” and the implication that this must mean something.  Well it doesn’t – there is no such thing as common law marriage.  You are either married or not married.  If you are not married then you do not acquire an interest in anything belonging to the other party, however long you may have lived together, unless you actually take the trouble to put the house and any other assets into joint names.  So, if a couple have lived together for years and have several children, but the house is in the sole name of the man, then the woman has absolutely no claim in relation to the house – even if she has paid the mortgage and/or brought up the children.  The only claim would be on behalf of those children under Schedule 2 of the Children Act.  This would be a claim made for support while the children remain dependent, generally up until the age of 18 or while they are in full-time secondary education.  Any capital or housing provision made for those children ends when they reach the age of 18 and the capital would go back to their father.

So just a very small message, which I don’t seem to be able to repeat often enough – the mere fact of cohabitation does not convey any rights, however long you may have lived together and whether or not you have any children.

This also means that unless you make a Will leaving your assets to the partner, then if you are not married your partner will not receive anything – if you die without a Will then your estate passes under the Rules of Intestacy to your nearest relative, not your partner unless you are married.  So being married makes a difference.  Take it seriously!

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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The most popular age to get divorced?

There were several articles in the press recently about the latest divorce figures suggesting that the only reported rise in the divorce rate is amongst the 60+ age range.  This doesn’t necessarily mean of course that this is the most popular age for divorce, merely that there is a new trend – the numbers of those over 65 getting divorced is certainly increasing but in my view the most common age for divorce remains mid-late 40’s.

This may be because younger people have never married in the first place.  With short-term relationships or marriages there are often no children or few assets to argue over – it is only when there are children, pensions, property, mortgages and all the other aspects of aging and longer relationships that separation becomes more complicated.

IMG_9769webSo why more divorces amongst the over 65?  Is this simply an aspect of us all living longer and having higher expectations of our retirement?  We are no longer prepared to simply settle down with our partner of the last 20-30 years.  We may decide that the prospect of possibly 20 years with your current partner and no work as a diversion is simply too much to bear.

It can though come as a shock to anyone expecting to retire on a comfortable pension to suddenly find themselves faced with a Divorce Petition which will involve sharing that pension and possibly selling the matrimonial home and looking at either down-sizing or taking out a mortgage when you least expected it.  There are some advantages though to divorce so late – children are generally grown up, possibly even having left university, you are no longer responsible for them in any way, you no longer have to provide a ‘family home’ in the traditional sense.  But however old they may be, children still feel the impact and possible pain of their parents’ separation.  They may have left home but they would like the possibility of returning to what was their childhood home intact, and also what about the grandchildren?

While the percentage of divorcees amongst the over 65’s is still relatively low, the rate of disengagement is growing fast.

Divorce for the retired certainly has different aspects to a separation where there are young children, mortgages to pay and a career to establish – but similar principles apply.  Far better to separate constructively and collaboratively than incur unnecessary legal costs with stressful arguments through the courts.  One expenditure which is hard to avoid however, is an actuarial report.  Pensions obviously loom large in post-retirement separation and a proper actuarial value of your pension is essential.  You will not only want to look at its actual cash value, but also projected incomes going forward for both the male and the female – with their different life expectations they will need different pension pots to produce similar incomes.  Never has professional advice in relation to pensions been so important.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Managing Christmas as a divorced or separated parent

Although it is only November, as soon as the clocks go back it seems that everyone is trying to get us to focus on Christmas.  Christmas can be a great family time of year, an excuse to take some time to visit friends and family, but equally it can be a dreadful time of financial and emotional stress which can, for some families, be the final straw.  Or it can just be average:  most peoples’ Christmases are in fact just that – ok, nothing more nothing less.  But unfortunately the weeks of hype that lead up to Christmas encourage everyone to expect that Christmas should in some way be fantastic –  full of smiling parents and beautiful children, the perfect Granny and other relations in attendance, everyone with lavish and perfectly prepared food and great presents which everyone receives with beaming smiles.  Although we all know in reality it’s not like that, the marketing hype inevitably gets to us.

2 children at the windowSo, how can we manage Christmas better particularly if we do not happen to belong to the perfect family?  I think that what people are really short of, despite the recession meaning that people are also short of money, is time and that instead of spending hours shopping for loads of presents or even buying our children lots of things, we should actually propose a different sort of Christmas where spending time is more important than having presents.  Most adults have far too much stuff and I think that can be said of children too, although they might not so readily admit it.

The message must be that if parents can work together in relation to the arrangements for the children, whether together or separate, it is in their best interests.  Try and manage everybody’s expectations so you do not end up being disappointed about the lack of perfection which is an artificial creation anyway.  Reality might actually be better.

Some key points to focus on if you are separated: –

  • Agree which parent will have access to the children and when.
  • Allow the children to be able to fully relax and have a fun time with only one parent, without feeling disloyal or missing the other parent.
  • Avoid any competition between you about the provision of presents and stuff generally.  Is the parent with a better job or a new partner able to give the children a better time?  Don’t go there!
  • Think about how you deal with the fact that there may be sad memories of past Christmases when you were all together.

Of course Christmas is a difficult time of year for all families, particularly post separation.  Perhaps the following might help: –

  1. Perfect the essential art of enjoying the now – becoming a human being rather than a human doing.  Perfection is, as we have established, impossible so just enjoy what and who you have.
  2. Count to ten or take three deep breaths and relax before responding to a wind up from your nearest and dearest in whatever form  – text, or even Twitter, Facebook e.t.c.
  3. Try and make up your mind that you are going to have a good time this Christmas whatever the circumstances leading up to it and plan ahead.  Having a schedule in place for when the children will be with each partner if you are separated will ease their anxiety and help any transitions between parents.
  4. Try and let go and have fun!

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Mediation explained

From 6 April 2011 the Ministry of Justice proposed that before anyone made an application to the court in relevant family proceedings (and this is not divorce – relevant means an application in relation to money matters or children issues), the person making the application should contact a mediator.

Nicky GoughMediators must be authorised to carry out the mediation information and assessment meetings (MIAMs).  The applicant attends an information meeting at which the mediator will give advice about all forms of alternate dispute resolution.  This could involve mediation, whereby both parties meet with a trained mediator to see if the three can make any progress with regard to agreeing what is to happen either in relation to financial matters or in relation to the children.  The mediator may also discuss a collaborative process, whereby each person going through the divorce or separation has a collaborative lawyer and the four meet round the table to work through what needs to be done either in relation to money, property e.t.c., or children or both.

Hopefully a form of mediation acceptable to all the parties can be agreed.  If not, to demonstrate compliance with the Ministry of Justice pre-action protocol, the applicant would need to provide a form FM1 with their application to the court.  This is generally completed by the mediator, but can be signed by the solicitor acting for the applicant.

So what does the initial meeting with the mediator consist of?  Generally the mediator will try and meet both parties, either separately or together, and explore with them the various options available.  Also whether mediation is suitable if there is a risk of either party being influenced by fear of violence or intimidation.  A mediator can also assess whether they qualify financially for Legal Aid for family mediation.

If the parties do qualify for Legal Aid then the mediator cannot charge for this initial MIAMs meeting.  If either party qualifies for Legal Aid and they both decide to proceed with mediation, they are given the option of an onward referral to a Legal Aid Mediation Service if that particular mediator does not offer Legal Aid mediation.  The parties can decide to stay with their mediator, or choose the collaborative option.

The role of the mediator is of course totally neutral.  Mediators do not give legal advice.  For that, in the collaborative process, you need a collaborative lawyer or a solicitor, whether or not collaboratively trained.

What will it cost?

At the moment it is approximately £80 per person for attending the MIAMs meeting, or £200 per session if the parties attend jointly.

If the parties decide to proceed to mediation the cost will, subject to any particular consideration, be approximately £180 per hour per couple, with additional charges for the production of documents, depending on the amount of work involved.  The fees can be shared between the parties on a 50/50 basis, or in any other way that they may agree.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Is the divorce process unfair to men?

I make no apologies for revisiting this issue as it does seem to be a common concern.  There is a widespread perception that with the divorce process and any issue or argument over children, particularly if it is conducted through the courts, favours women.  Is this correct?

post_imageThe courts, when dealing with children, have as their primary concern the welfare of the children.  A fairly neutral position and certainly one that is supposedly child focused as opposed to looking after the interests of either parent.

Similarly, if the issue of finances is debated through the courts, then again the court would take a position that both parties to a divorce need to be adequately re-housed and that both parents have to have accommodation suitable for their children to visit.  So why is there this widespread perception that men do badly in divorce, or that the whole process is unfair and biased in some way against them?

It may be in some way related to the other statistic, which is that most divorces are commenced by women.  This may have something to do with the fact that women tend to want to do something about a situation that is unsatisfactory, whereas men are more prepared to put up with a degree of difficulty, provided house, home, pension, finances, remain intact – when these are all disturbed they take it rather badly.

Many men feel that they have worked all their lives to achieve a certain standard of living, and with that, an adequate or even good pension provision.  Obviously a divorce means that the family home may well have to be sold and the sale proceeds distributed, therefore both are in a smaller house, and the highly prized pension pot is also split.  If you are not the instigator of the divorce, you may feel very badly indeed when all these things happen to you, seemingly through no fault of your own – and if your wife is in a new relationship then the pill is even more bitter.

However, if you can step back from the situation, the courts really do try to be even-handed and if you avoid the courts altogether, so much the better.  By using mediation and a collaborative approach to divorce, the focus is on how both parents are going to manage their separation to avoid any damage to the children and to ensure as far as possible, that everyone continues to have a similar lifestyle afterwards.  It cannot be avoided that both parties will be worse off financially as a result of the divorce, but through mediation, there is the real prospect that both parties will feel they’ve had a fair and workable outcome.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Separating from your partner and it’s all getting out of control?

Generally speaking, when parties separate, one person will have realised that the relationship has broken down a long time before the other.  They will have been thinking about what to do next; maybe they have met somebody else or just decided that the relationship is not going anywhere and they would rather move on to something else.  It can, therefore, come as an immense shock to the other person when the news is broken or a divorce petition is received – suddenly the relationship that they thought was fine is in fact possibly broken beyond repair.  Sometimes people go into denial, refuse to face the facts and so the person has to initiate court proceedings.  Even then sometimes people cannot accept a situation, bury their heads in the sand and hope everything will go away or in some way ‘get sorted’.

father and son on beachI have an example of someone who had received a divorce petition, followed by court papers in relation to finances, followed by court document after court document, requests for information e.t.c. all of which had been ignored.  This led to stern letters from the court and ultimately something called a penal notice – an order issued by the court which states that if the person concerned does not respond to the requests for information e.t.c., they will be in contempt of court and as such could be sent to prison.

Therefore, faced with a possible prison sentence, this person made an appointment to see me!

Was the situation irredeemable?  Well, in fact, surprisingly it was not.

The other party’s solicitors were in fact very reasonable.  I telephoned them, explained the situation and they said they weren’t trying to put him in prison; all they wanted him to do was to face up to the facts that his wife wanted a divorce and as a result of their separation, various practical decisions had to be made.  Who was going to remain in the family home?  Where was the other person going to live?  How were the children going to be cared for?  Did they need to do anything about their pensions?  The husband had simply ignored everything in the hope that in some way or another either they would get back together or …  I am not sure he had really thought about what the ‘or’ might be.

The wife’s solicitors were perfectly amenable to a round table meeting which we organised relatively quickly.  They wanted certain information such as confirmation of his income but that was relatively easily provided and we sat round the table to have a constructive discussion about the separation and agreed the need for new accommodation for both parties.  This meant the matrimonial home had to be sold and the husband paid a share of his income to the wife to help her care for the children which he saw on a regular basis.  So relatively quickly we went from a situation that was completely out of control, with the wife despairing and the husband burying his head in the sand, to having a sensible and constructive discussion about how to manage the separation, as a result of which, both parties ended up living in new properties with their relationship intact enough to ensure that both maintained contact with the children on a civil basis.

So if you are separating from your partner and in receipt of solicitors’ letters or court documents, don’t ignore them.  They may look official, possibly worded in ways that are difficult to understand, but they serve a purpose.  It is generally possible to work through a difficult situation in a constructive rather than destructive way.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Are Mediation or Collaboration possible when you’re going through a divorce?

If people are separating or divorcing after many years together, particularly when there are children involved, then obviously there are emotions that may inhibit a calm and rational approach.  But surely it is better to try, rather than straight away decide to use the court which is an adversarial approach that merely polarizes the parties, is extremely stressful and costs an awful lot of money.  These must be reasons to look at collaboration more seriously.

So how does collaboration differ from mediation?

weighing scalesMediation involves the two parties going to a professional mediator who doesn’t necessarily need to be legally qualified.  The idea is that they explore ways of reaching a settlement through that one mediator.  The parties have to go back to their lawyers to convert the results of mediation into a settlement within the legal parameters of the divorce proceedings.

With the collaborative process there are two lawyers, both working towards achieving a satisfactory settlement, albeit one that is necessarily based on compromise.  It is often said that the best solution is one that neither party is terribly happy with, but is prepared to accept.   Generally speaking there are no winners in a divorce – what should be happening is every effort is made to limit the damage.  That is not only financial damage, but emotional damage to the parties and above all the children.

Obviously one of the main reasons for doing things collaboratively is to preserve a relationship between the parties for the sake of the children and to enable the parties to focus on the needs and interests of the children as well as their own emotional and financial needs.

Within the collaborative and mediation process both parents acknowledge their role in caring for the children and that this role will continue despite their separation, so every effort needs to be made by both parents to ensure that the children maintain a good relationship with both parents.

Surely everyone wants both parents, separated or not, to attend the family occasions – christenings, graduations, weddings e.t.c. without any lingering animosity as a result of separation or divorce.  At Cotswold Family Law we offer a variety of ways of resolving difficulties without necessarily going to court.  It may be that we bring the parties’ company accountant or an independent financial advisor or a family therapist into the meetings to help the parties deal with all aspects of their separation, whether it be the impact on their business or the effect of the separation on the children and how best to deal with this.  Every effort is made to ensure that the parties separate on the best possible basis.

Collaboration or mediation makes sense – emotionally, financially and practically.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Who cares for the children?

Whenever parties separate and there are children, then a decision has to be made as to whom the children are going to live with.  Do they stay mainly with one parent and have contact with the other or is there some sort of shared parenting arrangement whereby, as far as possible, the children spend equal time with both parents?  Is this a good idea?  Is it a good idea for the parents but not for the children?  How do families best manage the care of their children?  Who cares for the children?

2 children at the windowVery often both parents want to be fully involved with their children’s lives but face the practical difficulty that really the children can only live with one parent which means contact with the other can often be intermittent, alternate weekends and a few days during the week.  Is this enough to maintain proper contact and a good relationship with your child or children?

Lots of fathers fear losing their children if they separate from the child’s mother.  But equally mothers too fear losing their children in some way.  Even if the children live mainly with the mother, there will be weekends when they will be with their father who may have a new partner and possibly even a new family.  Separation can cause pain all round.

There has been a lobby suggesting that if the time the children spent with both parents was equal this would necessarily be the best in all cases.  This highlights the fact that this presumption actually risks subordinating a child’s best interest to the parents’ expectations of ‘equal’ rights.  It can be hard when parents separate to decide what is best for the children as opposed to what is the best for them, the parents.  Do children really want to spend half the time with one parent and half the time with the other with all the practical difficulties involved in changing from one house to another?

Sometimes this can be the best arrangement, particularly if the parents live near to each other and get on well.  But if the parents do not get on well and cannot see each other without arguing then going constantly backwards and forwards creates a lot of tension.

Obviously it is best if that tension can be avoided or dissipated altogether as both parents and children learn to move on and deal with their new situation.

All that can be said really is that there should be no hard and fast ‘rule’.  It is not the case the children automatically stay with their mother:  it is the case that both mums and dads need to look at what is actually best for their children and most of all try and have a good relationship with each other, even though you have separated, to ensure that the time the children spend with both of you is good.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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Is a good divorce possible?

little-boy-and-dog-300x216When people separate they are generally going through enormous distress and anxiety, so how can it be in any way good? There is the point that although the process can be a very painful one, for some people they end up in a better place emotionally. The relationship, for whatever reason, has not worked and moving on to be alone and comfortable with that or to be with a new partner is often far better than staying in a difficult and possibly destructive relationship.

Nevertheless if there are children both parents will fear losing contact with the children. Often there is an assumption that the children will stay with their mother. But women still worry about losing their children in some way. The children may spend time with their father who, if he is the breadwinner, may have more resources to give the children a better time, or so the mother fears. So there is anxiety for both parents. Added to that, children will notice difficulties between the parents well before you think they do. So try and focus on the children as soon as possible and this may help to be able to work towards separating on better terms.

In order to separate ‘better’, and to achieve if not a good divorce then at least a less awful divorce or separation, parents need to realise that if they can work together in relation to what is going to happen to the children, then neither of them will in any sense ‘lose’ the children.

Surely collaboration or mediation, whereby from the outset parents agree not to go to court and to do their best to cooperate – often sitting round a table together to find solutions that best suit their particular situation – must be a better way. Inevitably when parties separate there is less money; there is no solution which will enable the parties to be in exactly the same position financially as when together, and inevitably you will be worse off financially. But that does not mean that solutions are impossible. There is generally a way to ensure one way or another that both parents can be adequately rehoused, and in such a way that both parents can have the children staying with them.

Most importantly though, if parents can work together in relation to the arrangements for the children, both parents can then play a significant part in the rest of the children’s lives. Every parent will want to be able to attend school events, university graduations, weddings and any other significant family event. You may not be best friends with your ex-partner, but it would be good to be able to attend those joint family occasions after you have separated.

So right from the outset there are a lot of good reasons to make a commitment to collaborate in some way. To work out with the help of collaborative lawyers, mediators or other advisers how to arrange your finances so that although you are living separately you can in a way you decide together co-parent the children for the rest of their lives. It has got to be worth making the effort from the outset to do this for yours and your children’s sakes.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

 

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Mediating family fallouts after a death

It is not commonly realised that if you live with someone to whom you are not married, if you do not make a Will leaving your assets to them, then on your death they will not automatically receive anything from your estate.

Flowers in window - CroppedFamily arrangements are now increasingly complex.  People may have married and divorced, remarried or lived with somebody and they may have had children with a number of different partners;  so it is often not clear as to who “their children” are.  What happens when people die without a Will or without making their intentions clear?

If there is uncertainty, if it is not clear who is going to inherit, then families can, and often do, fall out.  Perhaps there is an unmarried partner – they will have a claim to part of the estate – obviously any children will also have a claim, and possibly children from a previous marriage will have a claim if they are still and young and dependant in any way.  What about a spouse or an ex-spouse?

If the person who dies is living with someone to whom they are not married then that person may expect to inherit the house, but under the Rules of Intestacy it may pass to children or other relatives.  Houses are valuable assets and are worth arguing over.  All the family members have different and competing interests.  If they all instruct Lawyers to argue their case and there is a possibility that the matter will go to Court then tens of thousands of pounds can be spent and those very assets that are in dispute are used up paying legal fees!

Ideally you should make a Will that sets out your intentions very clearly but if there is no Will or if there is still a dispute, then far better to consider mediation.

Mediation is very relevant when there are family fallouts and disputes about Wills or what is to happen to assets on death, just as it is relevant when people separate.  It is equally important to try and resolve differences without going to the Court and for all sides to reach an agreement that they can be happy with.  Otherwise a lot of money can be spent going to Court where an arbitrary decision is made which may suit no one.

Far better to mediate than to litigate.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

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