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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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 looks after the children?

children walking through wheat fieldRecent statistics have revealed that not only in most families do both parents work, full or part time, but also more surprising the increasing number of families where the woman is the main breadwinner.  We should not be surprised though it should perhaps lead us to question some other perceptions about who is or should be looking after the children. When parents separate there is often a fear on the part of fathers that they will in some way “lose their children”, that if they go to Court the odds are stacked against them because the perception is that children always stay with their mothers. But Judges do actually live in the real world, they and all the Court staff are part of the working population where it is normal for both parents to be juggling work and childcare.  So when parents separate it is only logical that Courts will see that men and women may both work and both want to see their children.  We have plenty of female Judges who may have a stay at home partner looking after their children.  There really is no longer any automatic prejudice in favour of mothers except in the case of very small babies who may be physically dependant on their mother.  It still happens though that the person, often the mother, who has the major child caring role considers that contact is their gift to dispense with as they decide.  The Court's view is that what is most important is what is in the child’s best interests.  Not what either parent may want. If we focus on what is in the best interests of the children, it is of course that the parents should not go to Court, should not argue about childcare but should resolve their differences through negotiation and compromise.  This itself conveys valuable lessons to the children. Fathers are often very fearful about losing contact which can make them over aggressive, anxious that they will lose their children forever.  Perhaps if they were more reassured that the Court’s attitude is very much that children should spend time with both parents, a lot of the hostility could be avoided. Historically children were very much the man’s property and women had no rights at all on separation or divorce.  Then the approach was that children always stayed with their mother,  possibly we now have a more sensible view which looks at the practical realities of daily life, the needs of the children and the importance of avoiding conflict. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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When is a matrimonial asset not a matrimonial asset?

little-boy-and-dog-300x216A typical matrimonial asset would be the family home; bought together, lived in together and when the parties separate it needs to be dealt with in a way that ensures both have somewhere to live.  The property is either sold or transferred to one or other of the parties.  This is on a relatively equal basis according to their means so that they both end up living in relatively similar accommodation. A “non-matrimonial” asset would be for example, an inheritance, something acquired by one party either prior to the marriage or during, but in some way kept separate.  This could be a family business or an inheritance received by one of the parties and perhaps kept separately or used to purchase another property or asset.  When the parties separate what should happen to these assets; do they belong to both of them equally or should they be treated differently?  I am sure the person that received the inheritance would argue that it’s “theirs” and not to be dealt with jointly.  After all if the asset was acquired after the parties were divorced then it would only belong to that person. The Courts have varied their approach to these non-matrimonial assets, whether it be an inheritance or other assets received post separation or brought to the marriage and kept separate.  Having established that those assets that the parties generated during the marriage otherwise than by external donation i.e. matrimonial property, are to be shared equally, the Courts are now saying that this also applies, this sharing principal, to all the parties’ property, however acquired.  But, “to the extent that their property is non-matrimonial, there is likely to be a better reason for departure from equality” (Charman v Charman [2007] 1 FLR 1246) so, the existence of non-matrimonial property can justify departure from equality, but not necessarily if this would result in unfairness to one party or the other. So there we have it – non-matrimonial property is to be treated as matrimonial property unless it would be unfair to either party. The situation remains very unclear! It means that if one party for instance acquires an inheritance shortly before they separate both would argue that it would be unfair to do one or the other, the recipient would feel it unfair to be divided equally, the other party would argue that it would be unfair for it not to be taken into account.  As always you would need to look at the particular facts of a particular case to come to any sensible conclusion.  This is why it is often very difficult to give categorical advice as to the likely outcome in divorce proceedings.  The financial aspects of separation are best agreed rather than argued through the Courts which can be an expensive gamble. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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A child’s dilemma

2 children at the windowI read a fascinating book called ‘The Science of Love and Betrayal’ by Robin Dunbar, all about why people fall in love, is there any scientific or logical reason for this, and does it actually help the development of the human race? It appears not, we do not actually need to fall in love to produce or even raise children, what women really need evidently is a supportive mother/grandmother figure and a few other friends.  As we can produce children without committing to a partner for life, why do we? It seems that humanity has always fallen in and out of love, formed close relationships and spent a good number of years together rearing infants. The book does not really explain why people fall in love or more importantly for my profession why people fall out of love. But they certainly do and it can cause immense pain for the parties and have a massive impact on the children. The child’s dilemma is that while their parents are falling out of love the children generally remain steadfastly in love with both parents. This situation was illustrated for me by a passage in a book where a boy is describing his father leaving his mother. His father had to come back for some items out of the shed a week later. The boy saw that his car was parked by the shed and his mother ran out to try and stop or shout at his dad. The boy positioned himself by the tailgate of the car hoping that his father would think that he was there to help him and his mother would think that he was there to stop his father leaving. To me this summed up the child’s dilemma, the impossible position children are placed in when parents separate. They love both parents, are loyal to both parents and so do not know how to behave. Parents have got to accept that the children do love both parents and so are caught in a dilemma when they separate. They may feel sorry for one parent or that their feelings of love for the other parent are somehow “wrong”. Both parents need to be aware of this and need to reassure the children that it is perfectly ok for them to love and talk about the other parent. Both parents need to allow the children to speak about the other parent in positive terms and to talk through these dilemmas. They need to know that the separation is not their fault and that they are “allowed” to show affection to both parents in either’s presence. Caught in the middle? Parents also need to consider the example they are setting to their children about relationships and how to treat one another; scenes of angry or messy relationships can have lasting detrimental effects upon a child’s outlook of such situations and may result in damaging the child’s future relationships. So falling in and out of love is what we do – we just need to be mindful of the children in the middle. 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 pain-free divorce possible?

2 children at the windowI think the short answer to this is possibly not, unless it is a short marriage without children, then it might be, but even then I am sure one person will be more upset than the other if they are in some way on the receiving end of news that they did not want to hear. Most divorces occur after several years and there are children who are bound to be confused, if not hurt and upset, by their parents’ separation.  Although, if there are problems in the marriage, the children are bound to know about it even if the parents think they do not. So if a completely painless separation is not possible, what can be done to make the process better?  Should we make the process better?  I ask that question because parliament, in its infinite wisdom, has still not agreed to the concept of a no-fault divorce which means that unless the parties agree to live apart for two years, then one has to in some way blame the other for the divorce which does not help. The first step in a potentially pain-free divorce is for everyone to agree not to fight.  There are going to be no winners, only the lawyers, if parties argue through Court.  I do think that it is wise to seek help and advice from someone outside of the immediate family – someone who can look rationally at the circumstances and give solid practical advice about the legal situation (marriage, after all, is a legal contract which has to be dissolved by a Court) and how best to deal with the practical issues of where and how the parties are going to live in the future.  Take advice from someone who is committed to reduce and not increase the tension.  Do not be tempted to think that you can score points over the other or “win” in any way.  I am not suggesting that you turn the other cheek in a passive sense but that you do something much more constructive; seek realistic advice, and together, work out how to use your joint resources in the best possible way. That’s not just the financial resources – house, pension, salaries etc – but also your joint parenting skills to make the separation as easy and pain-free for the children as possible.  Change of any sort can be difficult to deal with but change is not necessarily always for the worst – it can be an opportunity to do things differently and better. Mums and Dads can and will have to acquire new parenting skills to deal with a new situation, to adapt to dealing with the children on their own and ultimately probably introducing the children to new partners and possibly new siblings.  Step parenting is a skill that more and more parents are having to acquire and it’s much easier if the initial separation or divorce has been dealt with positively and with as much kindness as the parties can muster because it’s only the start of something new. It is a great mistake to look at the short-term – to concentrate on the divorce and regard it as a battle to try and get as much as possible (much in terms of financial resources and much in terms of contact or “possession” of the children).   Try and look on the divorce as a change that has got to be made to everyone’s lives but a change that, if made with the positive input of all concerned, can be if not for the better than at least not for the worst. Resources to help you include the really excellent Government website www.moneyadviceservice.org.uk for financial help and advice, and Resolution (www.resolution.org.uk) for details of collaborative lawyers and trained mediators. Nicky Gough is a trained mediator - for more information or to discuss further please contact Nicky on 07711 527968 or email info@cotswoldmediation.com.
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