The Supreme Court judges' decision to prevent a wife from divorcing her husband, which was made 'without enthusiasm', is expected to lead to calls for a rapid change in the law.

The case arose after a wife's application for a divorce was opposed by her husband on the basis that the marriage had not irretrievably broken down. Slightly more than 1 in 1,000 divorce applications lead to a contested hearing on that ground. Under the law, there is an automatic right to a divorce only under a limited number of circumstances.

These are:

*Divorce without consent can take place where the couple have lived apart for five years;

*A couple who have lived apart for two years can divorce with the consent of both spouses; or

*A couple can divorce where there is an irretrievable breakdown in the relationship. This can be evidenced in several ways, including adultery, but the essence is that the behaviour of the spouse is such that the other spouse cannot reasonably be expected to live with him or her. In this instance, the husband's behaviour, though far short of what might be expected in a normal loving relationship, was not so egregious as to meet that test.

In this case, the husband believed that a reconciliation was possible, and the couple had not lived apart for five years.

When a petition for divorce is made on the ground of unreasonable behaviour, the normal practice is for such behaviour to be dealt with very briefly, as a detailed exposition can increase the ill-feeling at what is always a difficult time and that in turn can make other aspects (such as the residence arrangements for children and the financial arrangements) more difficult to negotiate. The wife's evidence in respect of her husband's behaviour was therefore limited. For example, in regard to one aspect (that he belittled her in front of others) she called no witnesses to the first court hearing to support her claim.

The appeal to the Supreme Court dealt in essence not with the husband's behaviour as such, but the effect it had on his wife.

Our experts in family law are experienced in dealing with all aspects, contentious or not, of family breakdown.

For help and advice please contact Karen Moores, k.moores@sydneymitchell.co.uk on 0808 166 5638.

More and more couples are choosing to live together than marry.  Divorce rates continue to rise.  It is perhaps not surprising that one of the reasons some couples choose not to marry is because they are anxious to protect income, assets, pensions and businesses which they believe might be lost if the marriage ends in divorce comments Mauro Vinti, Partner Sydney Mitchell LLP.  The media is keen to report stories of multimillion pound divorce settlements and England is gaining a reputation as a divorce capital where generous divorce settlements are not uncommon.

Many people are not aware that they can take steps to protect assets.  Pre-nuptial Agreements are not just for the rich and famous.  There are many reasons why a pre-nuptial agreement is a good idea.  Some people are concerned to make sure that their children receive assets which they have built up over a lifetime, rather than go to a spouse on divorce.  Some families want to protect the shareholding in a family business to make sure, if there is a divorce, the business is not affected.  Parents want to protect the investment they have made into a child’s property to help them get on the property ladder so that if that property becomes “the matrimonial home”, that investment is not lost.

Increasingly Pre-nuptial Agreements are being upheld by the Court in divorce proceedings. Ideally both parties should have legal advice.  The Agreement should be signed well in advance of the wedding and certainly not less than a month beforehand.  Sometimes a pre-nuptial agreement is seen as “unromantic”, but they can be a way of talking about expectations for the marriage and give some certainty if the marriage comes to an end.  Perhaps if there were more pre-nuptial agreements there would be more people willing to marry?

If you wish to discuss this or other legal dispute matters, please call Mauro Vinti, Partner, Sydney Mitchell LLP on 0808 166 8870.

Moving around the globe to where the work is has become a way of life for many, but often begs the question where, if anywhere, a person has settled. A family judge was faced with just that issue in deciding whether a couple’s divorce should go ahead in England or in New Zealand.

The couple were born and brought up in New Zealand and there was no dispute that they were domiciled there. The husband’s work as an economist had over the years taken him and his family to numerous different countries, including England. After the marriage began to fail, the wife moved to this country and he joined her here during an attempt at reconciliation.

She ultimately petitioned for divorce in England, shortly before he launched parallel proceedings to dissolve the marriage in New Zealand. He applied to stay the English proceedings on the basis that the English courts had no jurisdiction to hear the wife’s petition and that the appropriate forum for the divorce was New Zealand.

In dismissing that application, however, the judge noted that, due to their peripatetic lifestyle, the couple had not spent much time in New Zealand for 23 years before the marriage broke down. The wife had been living in England, where she had many family and friends, for two and a half years before lodging her petition and was plainly intent on settling permanently in this country.

She wished to be close to the couple’s three children, all of whom seemed to have chosen to make their lives in the northern hemisphere. Whilst it was unclear whether the husband intended to settle in England, he had moved here indefinitely and had taken a job here. Requiring the wife – who was in remission from breast cancer – to litigate in New Zealand was also likely to be burdensome upon her.

The Court noted that both husband and wife wished to divorce in the jurisdiction that they perceived would be most advantageous to them financially. However, in all the circumstances, the balance of fairness and convenience clearly came down in favour of the wife’s petition proceeding in England.

Contact Karen Moores, Partner for help and advice on 0808 166 5368 or email: k.moores@sydneymitchell.co.uk

Tactical manoeuvring designed to ensure that big money divorce cases are heard in England, where judges are perceived as being more generous, does occur. In one case, however, the High Court cleared a wife of any such cynical conduct.

The former couple were both German nationals, but had lived in England for some years prior to the breakdown of the marriage following the wife’s discovery that the husband had had an affair. She petitioned for divorce in England, just over a month before her husband lodged a parallel petition in Germany.

In arguing that the divorce proceedings should take place in Germany, the husband claimed not to have been properly served with the English petition. He also asserted that the wife’s petition was an abuse of process in that, at the time it was issued, she held no genuine belief that the marriage had irretrievably broken down. She was alleged to have lodged the proceedings simply to ensure that the divorce would proceed in England in the event that a divorce proved necessary.

In rejecting those arguments, however, the Court found that the wife had clearly been shattered by the discovery of the husband’s affair. Her petition was genuine and was designed to be served immediately and to bring the marriage to an end. A delay in serving the petition was largely due to an administrative error and the husband was fully aware of the English proceedings before he lodged his own petition in Germany. In the circumstances, the English courts had jurisdiction to consider the wife’s petition.

Please contact Karen Moores on k.moores@sydneymitchell.co.uk for advice on this or other related Family Law matter.

The usual course of events on divorce is that there is a financial settlement which divides up the family assets as they are at that point in time. This takes into account the expected future income and need for income of the couple who have split up, based on how they lived during the marriage and whether or not they have any children.

The apportionment of a couple's assets also depends on whether or not there was a pre-nuptial agreement, how much each person brought into the marriage (the 'pre-marital assets') and how much each contributed to building up their assets during the marriage.

In a recent case there was a significant twist, however. A woman's ex-husband went to court to claim financial support under the Matrimonial Causes Act 1973, many years after their divorce had been accomplished amicably, based on the standard of living his ex-wife had provided for him after their marriage ended.

The couple had been married for nine years and had two children. The wife had always been the principal breadwinner and, when they split up, the husband had received the majority of their limited matrimonial assets and he and the children continued to live in the matrimonial home. The wife continued to pay the mortgage on the house and provided maintenance for the children.

This situation persisted for more than 20 years, when a falling-out between them led the ex-husband to issue his claim for financial provision.

His ex-wife opposed the application, arguing that she would not have agreed to provide the level of support she had for the last 24 years if she had known a claim would be made. However, at a hearing earlier this year, the Family Court granted the ex-husband the right to bring a claim.

In subsequently rejecting his claim and refusing to make an order in his favour, the Court noted that the parties had considered their original divorce settlement to be final and the ex-husband's current needs were not such as could fairly be expected to be met by his ex-wife.

If you wish to discuss this or other family matter, please call Emma Gray on 0808 166 8860.

London has gained a reputation as 'the divorce capital of the world' because settlements reached are, by international standards, very generous towards women. It is no surprise, therefore, that the courts in this country are a very popular choice of venue for wives seeking to divorce their husbands on the best possible terms.

However, the English courts are not the right place to deal with all divorces – they are for those who are domiciled in this country. Domicile is a complex notion but corresponds with 'where someone belongs'. It normally begins with the domicile of your country of birth. A 'domicile of choice' can be obtained and is generally proven by having an intention to remain permanently or indefinitely in a different country. In practice, however, replacing a domicile of birth is difficult.

Recently, a wife who wished to have her divorce dealt with in this country was denied that right because she failed to establish that she was domiciled here. The woman, who is Irish, had had an international career and is married to a man domiciled in India, albeit that he owns property in England.

The couple met when both were working for the European Commission in Brussels and were married in Italy. The wife lived in England for 18 months whilst doing a postgraduate degree and took a British passport. Later she worked in England for 11 months. Otherwise the whole of her career had been spent abroad.

Although the wife had what was described as 'an anchor' in England and paid National Insurance Contributions here, LJ King of the Court of Appeal concluded that  there was 'no evidence from which the judge could have concluded that in 2001 the wife took up residence in England with the intention of establishing permanent or indefinite residence'.

Accordingly, she had not demonstrated that she had established a 'domicile of choice' in England and will not be permitted to bring divorce and financial remedy proceedings here.

If you wish to discuss this or other family matter, please call Karen Moores on 0808 166 5638.

Going abroad on holiday or to live is becoming a common occurrence for many children. Parents may be offered positions abroad, either for a specific time or with endless possibilities of a permanent move. Likewise, grandparents may have chosen to move to a warm climate with a more relaxed way of life and promises of frequent long holidays for their family.

Although these changes can be viewed with a mixture of excitement and fear, if both parents agree, then their children can explore new vistas.

However, if the parents are no longer residing together there are many issues which may arise that need to be addressed. Karen Moores, family law solicitor explains the legal implications of taking your children abroad if you are divorced or separated.

Taking a child on holiday

The necessity to obtain permission to take a child out of the UK is not commonly known. It often depends on what Children Act Orders have been made, if any, and applies whether it is a day trip to France, a fortnight to Florida or the whole of the school holidays with relatives in Pakistan.

Consideration should first of all be given as to who has parental responsibility. If both parents have parental responsibility and there are no Child Arrangement orders (residence orders) or other restrictions in place, then neither can take the child on holiday outside the United Kingdom without the written consent of the other parent or any other party with parental responsibility. If consent is refused, an application to the Court will need to be made for permission.

The situation is different where one parent has a Child Arrangement Order. A person with a Child Arrangement Order (Residence Order) can take a child abroad for up to a month without the written consent of the other parent. However, it is good parenting to endeavour to agree the arrangements in advance; if consent is unreasonably withheld then an application may be made to the Court.

If the mother alone has parental responsibility and there are no child arrangement orders concerning the child, permission is not strictly needed by her to take a child abroad on holiday. However, again it is responsible parenting to consult and reach agreement with the other parent. Of course this does not stop a father without parental responsibility applying for parental responsibility and then objecting to the temporary removal of the child.

In almost all cases it is best to agree holiday or similar arrangements in advance to avoid misunderstandings, problems with contact, accusations of abduction and other applications to the Court. In the normal course of events permission for a child to go abroad is invariably given by a Court. Often details are required stating where the child will be staying, giving the date of departure, return and details of flights along with contact telephone numbers. If however there are suspicions that the child will not be returned, especially if the child is going to a non Hague Convention Country, then security will be necessary.

If grandparents and other family members want to take a child abroad, permission will be needed from both parents with parental responsibility and not just from one parent.

All of these issues may be dealt with at the local Court, however, if the approved holiday requires consideration of the law and procedures in foreign countries, then a Judge of the High Court may deal with such applications as consideration will need to be given with regard to putting in place specific orders. This may include mirror orders, notarised agreements and significant sums of money placed in a bond to be released upon the child's return. There have also been cases where family members, not just the person taking the child abroad, have been required to enter into a solemn declaration guaranteeing the safe return of the child.

The Court would also look at the risk of non return along with the magnitude of the impact on the child of any non return. It is therefore evident from previous Judge's decisions that they take account of each individual circumstance, the age of the child and detailed protective steps if there is a significant fear of non return after a trip abroad.

For further information and questions on taking your child/children abroad, contact us today.

Concerns of abduction

It is not unusual, particularly in families with international connections, for either parent to be anxious that the child will not be returned. These doubts may arise prior to the child leaving on holiday or indeed where the parent and child are returned late after a contact visit or if it has been difficult to get in touch with the other parent at any stage. If there is an immediate risk, port alert will be required. If there is time to secure an application to the Court for an order prohibiting the removal of the child from the jurisdiction without notice being given to the other parent, this should be done quickly as it can be crucially important to prevent the child leaving the UK. Any delay in an application can result in the child being taken out of the jurisdiction and may then result in great difficulty in locating the child and securing their return.

Nevertheless, if it is known that the child has been taken to a Country within the European Union there are considerable resources and facilities in place to track and locate a child in the hope of securing a return before departure to the rest of the world.

Abduction is known as a failure to return a child after an agreed period abroad. As stated above there are protective steps which can be taken if there is a fear of a non return after a trip abroad and legal advice should always be sought promptly to address anxiety about any concerns of an abduction. Information such as names, addresses, photographs and descriptions of people and places where it is likely that the child could be taken should be gathered as soon as possible. Clearly, this evidence may only be available if there is a reason to suspect that the child is being taken to other family members or friends who reside abroad.

If you have any concerns about abduction and need some legal advice on the issue, contact our family team.

Relocating abroad

A parent needs the permission of the other parent or a Court Order to take a child permanently abroad. This is known as a relocation application or leave to remove.

In some cases it is appropriate to oppose the relocation application but in others it may be wise to consider putting energies into legal representation to ensuring very good future contact before the relocation proceeds. If there are well thought out plans, with good reasons given to the Court for relocation, they will generally allow relocation. This however, does not mean that a parent opposing relocation of their child should immediately give up.

When considering opposing relocation applications it is essential to consider all aspects of a child's life. The Court will hear evidence as to the child's educational progress, family and support network, activities that they are involved in along with the impact of losing contact with the wider family. Consideration will also be given by the Court as to what more could the one parent offer the child if they continue to reside in this jurisdiction. If the child is to remain in Europe where the country has signed up to the appropriate conventions, there will be certain protection and enforceability of orders for contact. Even if a child has been permitted to go abroad, certain safeguards can be put in place to ensure that good contact continues. This may include extended staying contact during the school holidays and consideration as to travel arrangements, the use of emails and web cams.

Enforcement is another important issue that is required to be looked at before a child leaves the jurisdiction as often if there is a breach of an agreement or an Order these may have no validity abroad and may therefore not be relied upon. Therefore notarised agreements, mirror orders, bonds, religious oaths and other safeguards to ensure compliance with arrangements should be considered. Contact Orders made in England may not automatically be recognised or may require separate Court procedures and all of this must be done before departure.

A mirror order is an order made in the courts of the country of relocation.  This is identical to the order made before the UK courts. Therefore the advantage for the left behind parent is that because the order becomes an order of the foreign state, local enforcement is available.

There are therefore many issues that have to be considered as far in advance as possible. Legal advice from a Solicitor, preferably who has experience in such matters, should be taken so that due consideration may be given to all the possibilities that may arise and precautionary measures put in place.

Many children go abroad on holiday to visit family and friends or indeed to emigrate and it is a positive experience for them. Ultimately wherever the children is residing, it is usually in the best interests of that child to have regular, quality and contact with both parents. If this is an issue that you require further assistance or advice on please contact us today.

Leading Midlands Law Firm Sydney Mitchell gives a helping hand to parents who are feeling the pain when faced with the prospect of losing their children.

The family department in the Birmingham office has expanded their team to provide help and advice to families that are faced with complexities involving disputes regarding children.

Amanda Holland, Associate Lawyer in the City Family Team comments:

The idea came about because our family team became increasingly frustrated at being unable to help parents who were not eligble for Legal Aid but clearly needed some level of legal assistance, but were unable to afford the costs involved in our dealing with the whole case.

So they gave up and tried to represent themselves which often left them at a disadvantage or in some cases parents gave up completely and lost all contact with their children.

The client can chose which package they need to suit their budget and which stage of the process they need help with.  This could simply be help completing court forms.  Alternatively, it might be assistance at court.

The Family Team based at Sydney Mitchell’s Birmingham office are: Amanda Holland, Nigel Mears and Miranda Buttler.

Miranda Buttler, Legal Assistant, added:

This innovative package for clients will make legal advice more accessible in bite size chunks. The office is in the heart of Birmingham City Centre and within walking distance of the Family Court at Birmingham.

Sydney Mitchell Private Client teams include family law, residential property, dispute resolution and wills and probate, contentious probate, tax and trusts and personal injury. Sydney Mitchell’s corporate teams include employment, commercial property, company and commercial services, litigation and insolvency.

More information about this service... click here

For help and advice on this or other related Family matter contact Amanda Holland on 0121 698 2245

Family judges will approach pre-nuptial agreements with greater respect following a landmark Court of Appeal ruling in a 'big money' divorce case. The Court agreed with Lord Phillips' opinion in Radmacher v Granatino that failing to honour such agreements, if reasonable and freely entered into, on the basis that the Court knows best would be both 'paternalistic' and 'patronising'.

The case concerned a middle-aged former couple who had been married for over 20 years and had three adult children. Their matrimonial assets were valued at £273 million. Much of that sum was family money inherited by the husband, a Swedish national, who had increased his fortune by successfully investing in property. On the day before their wedding in Stockholm, they had signed a pre-nuptial agreement to the effect that their assets would be kept entirely separate throughout the marriage.

Following their separation, the husband had offered the wife £38 million in cash and a stake in his company. That was well in excess of her assessed needs, which came to £22 million, and was also substantially more than she would have been entitled to on a strict application of the agreement. The husband's approach was broadly accepted by a family judge, who awarded the wife a £51 million lump sum and a substantial shareholding in the company.

The wife challenged the award on the basis that the agreement should have been entirely ignored, in that she had not received legal advice before signing it, and that the equal sharing principle should have held sway. She sought an increase of her award to £116 million, which would still have left the husband with the lion's share – 57.5 per cent – of the overall pot.

In dismissing her appeal, however, the Court noted that the judge had described her attempt to claim ignorance of the agreement's wording and effect as dishonourable. She had fully appreciated the implications of the agreement, which was in effect part of their marriage, metaphorically taken with them wherever they went. She had taken an autonomous decision to enter into an agreement that was both commonplace and binding in Sweden and it could not be ignored simply on the basis that family judges know best.

The wife had also complained that the shares that formed part of her award could not readily be converted into cash and she had thus been denied a clear exit route from the husband's financial domain. The Court accepted that that part of the award was not ideal and urged the former couple to seek a better solution by agreement or mediation.

Says Mauro Vinti, Partner

A well-constructed and executed pre-nuptial agreement can be valuable for future protection. Contact us for advice.

m.vinti@sydneymitchell.co.uk

There can really be no excuse for a modern employer not to have in place comprehensive anti-discrimination policies that are fully understood by all workers. In one case that illustrates the consequences of failing to comply with the law in this respect, a transgender sales assistant who was subjected to playground-style bullying whilst working for a major retailer has been awarded almost £50,000 in compensation (De Souza E Souza v Primark Stores Limited).

The worker had been dressing as a woman on a permanent basis for almost 15 years before the retailer employed her. Although her male birth name appeared on her passport and other documentation, she made it clear during her interview that she wished to be addressed by her preferred, female name. Both names were, however, entered on the retailer's computer system and, despite her protests, one of her supervisors persistently called her by her birth name.

The woman had been in the job for about three months when her transgender status became widely known amongst her colleagues. A series of incidents followed, in one of which a co-worker commented on her deep voice and sprayed male perfume in her direction, causing her to cough. In another, when she was fixing her makeup in the women's toilets, a colleague commented that there were 'no ladies in there'. She had also overhead colleagues referring to her as 'evil' or 'a joke'. She became so upset by her treatment that she ultimately resigned.

After lawyers launched proceedings on her behalf, an Employment Tribunal (ET) found that she had been constructively dismissed after enduring harassment and direct discrimination due to her gender identity. Despite her complaints, including to the police, her employer had done nothing to assist her, merely telling her to calm down and that she was drawing attention to herself.

She had been bullied out of a job she loved and the injury to her feelings was severe. The discrimination had made her feel insecure about her gender identity with the result that she had been prescribed anti-depressants and was unable to work for a considerable period following her dismissal.

She was awarded total damages of £47,433, made up of £20,000 for lost earnings, £25,000 for injury to feelings and interest. The ET recommended that the retailer put in place a training regime and a written policy instructing its managers how to deal appropriately with new or existing staff who are transgender or who wish to undergo gender reassignment.

Employers should make sure they have up-to-date anti-discrimination policies in place and that these are effectively enforced. Contact Samantha Glynn on 0121 698 2200 if you would like advice on this topic.