Values in family matters

Values in family matters can mean those such as honour, dignity, trust etc and values as in terms of how much the property and other assets are worth.

Very often valuations are difficult to agree because of the breakdown in trust and communication that it is an inevitable part of divorce.  It may also be caused by the fact that if there is not quite enough money to enable both parties to rehouse themselves or start again in a satisfactory way, then the value of the assets become critical and therefore hard to agree.

Values in family mattersIf for instance the wife wants to stay in the family home she may have to pay something to the husband to enable him to move on – how much she pays depends on the “value” of the property.  But in reality it may depend on how much she can afford and how much she wants to stay in that house.  It may also depend on how much the husband needs together with his earning and mortgage capacity to enable him to buy a suitable or similar property.

Even more problematic are business valuations.  Very often only one of the parties will have been involved in the business and the other party may have an over inflated idea of what the business is worth.  Just because the business has in the past generated a good income for the family it does not mean that either the business will continue to generate that income or that it is worth for instance three times the profit.  These valuations are unrealistic.  What a business is worth is what anybody is prepared to pay for it and they will weigh up the risk of taking on a new venture with or without the current proprietor and so a business valuation can be very problematic.

This difficulty can be very expensive for the parties.  It can be the source of endless litigation which as everybody knows is very expensive, as well as emotionally damaging for all concerned, trying to establish exactly what the business is worth.  One party will argue that it is worth a lot more than the other – but neither really knows.  There is a strong argument for calling in experts early on.  They can help, although they also cost money, in determining the value of key assets – the family home, a pension if it is of significant value and the business.  If figures are agreed this makes negotiation much easier.  Even if the figures are not particularly palatable to either or both parties, they are at least fixed and enable negotiations to take place.

Although valuations may be expensive when money is tight – as it always is when people are separating – it may actually be cost effective to get an early and professional valuation of key assets.

Pensions have what is known as a cash equivalent transfer value but any independent financial advisor will tell you that this does not necessarily mean what it says, there are some pensions which carry significant benefits within them which mean that the face value, the CETV is actually a significant under value.  So again worth getting an expert opinion early on.

Sentiments I would also echo in relation to advice in relation to divorce and mediation too.

Expert valuations can provide clarity, not just in terms of actual price but also in explaining complex financial information or providing a professional judgement on the value of a key financial asset – particularly important if one asset, whether it be business or pension, forms a significant proportion of the couple’s total assets.

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 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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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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Changes in Family Law – a new dedicated Family Court

The Crime and Courts Act 2013 introduced the concept of a single Family Court, which will deal only with family matters.  This, it is anticipated, will be operational from April 2014.  The Family Court will deal with all family cases with the exception of two areas of law: those involving the jurisdiction of the High Court – i.e. serious and unusual matters such as Wardship – and International cases.

Three children in woodsThe Family Court will include all levels of Judge and there will not be the transfer between Magistrates and County Court as there is at the moment which should enable cases to be heard quicker and in less time. As there are various levels of Judges it is important to ensure that each case is allocated to the correct level which is hoped will be achieved by a specific team when cases are submitted.  Court staff have been assured that there will be no Court closures or redundancies as a result of this single Family Court – we shall see!

The big change after the reduction of the availability of Legal Aid in April is of course the number of people who are making applications in person rather than using a Solicitor or Barrister.  As they are often not aware of the procedure, cases can take longer and Judges are being given specific training on how to deal with litigants in person.   The new Family Court is presumably to make the whole process easier for everyone to use.

Other key changes being introduced are: –

  1. Attendance at a MIAM (Mediation Information Assessment Meeting) will be a  prerequisite before making an application to the Court (unless there are specified exemptions such as domestic violence).  This is a meeting before a Mediator who gives both parties (not necessarily together) information about the options available to them and encourages Mediation rather than an application to the Court.
  2. There is to be a presumption that both parents should be involved in the life of the child and that this will be in the child’s best interests – unless of course there is an exception indicating one parent’s unsuitability.
  3. Contact and Residence Orders are to go – they will be replaced by “Child Arrangement Orders” specifying with whom a child is to live with, spend time with or otherwise have contact with, and when they are to do so.

The most important change is of course the introduction of a single Family Court which it is hoped and intended will speed up the hearing of children proceedings which should of course be in everyone’s interest.

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

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Children In Conflict

post_imageAs you may be aware, it is not so much parental separation that causes problems for children but conflict they may see or experience between parents.  Conflict may not be obvious: silence can be a form of conflict which some children may be very sensitive to and affected by.  However difficult it may be for parents going through their own issues, when separating somehow they need to try and remember that their children may well be just as – and probably more – confused and upset by the situation than they are.

It is perhaps important to remember that parents need support and encouragement to be able to help their children.  The emotional health of parents is vital for their children.  The Children Society produced some frightening statistics.  There are some 100,000 runaway children every year, and according to them, 80% is as a result of family problems or break up – very often problems with step-parents.  25,000 of those runaways are under the age of 11 years.  Whilst your children may not be running away, the numbers indicate how separation can affect children and that those not running away may in fact be much more affected than their parents might imagine.

It is not that parents going through a divorce or separation are in any way bad parents – simply parents in a bad place.  Somehow, despite all that might be going on, it is important to try and encourage and support children seeing the other parent to give what Judith Walestine has described as loving permission for those children to spend time with the other parent.  Really hard to do but necessary for the emotional wellbeing of your children.

Whatever may be going on between the parents, the children have and will always have two parents who in some way are going to have to co-parent the children for the rest of their lives, whether it be through school, university, graduation, marriage, grandchildren e.t.c.  Parents will both remain involved to a greater or lesser degree.  So it is worth putting in time, effort and thought when initially separating to ensure as far as possible that an on-going relationship can be maintained.

This is where mediation or the collaborative process can really help.  Right from the outset everyone involved makes a commitment not to fight, not to argue unnecessarily and not to resort to any form of Court battle.  Obviously it is going to be difficult – feelings run high, people are hurt, damaged, upset and angry.  Both mediation and the collaborative process enable parents to express these feelings.  It is no good sweeping anything under the carpet but if it is done in a constructive way to enable all parties to move forward, this is much better than engaging in mud-slinging or making accusations merely for the sake of them.

Mediation or collaboration may not be the easiest option but there are ways to ensure a more constructive separation which has long-term benefits for all the family members.

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

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