Family Law

On the 6 July a team of four intrepid climbers from Sydney Mitchell Solicitors will take on the Yorkshire 3 Peaks Challenge. 12 hours, 3 Peaks, 64 pairs of socks and an abundance of plasters, is in between them and victory.

They are taking on this gruelling challenge to raise funds for two worthy causes, Age UK Solihull and The Buddy Bag Foundation.

Age UK Solihull is a charity with a mission to improve the lives of older people within the Solihull Borough. Age UK Solihull provides many services including social clubs and befriending programmes to tackle feelings of isolation and loneliness many within the older generation are going through.

Please click on the following link to learn more: https://www.ageuk.org.uk/solihull/about-us/

The Buddy Bag Foundation provides comfort to children who enter emergency care after fleeing violent situations at home. Buddy bags help to restore a sense of safety and security into a child’s life during a traumatic time.

To learn more about The Buddy Bag Foundation click on the following link: https://buddybagfoundation.co.uk/our-mission/

To sponsor our “Peaky climbers” in their aim to raise money for these two charites please click on the link below and donate, all donations are welcome.

https://uk.virginmoneygiving.com/Team/PeakyClimbers-Sydneymitchell

Watch out for more information. Hour by hour coverage will be posted on the 6 July on our Facebook page @SydneyMitchellSolicitors

Our lawyers are recommended in The Legal 500 United Kingdom 2018 editorial (listed below)

WEST MIDLANDS
Dispute resolution - Commercial litigation - Birmingham
- Dean Parnell
- Kamal Majevadia

Dispute resolution - Debt recovery
- Kamal Majevadia
- Hayley-Jo Lockley
- Gemma Parker

Finance - Insolvency and corporate recovery
- Leanne Schneider-Rose

Human resources - Employment
- Dean Parnell
- Samantha Glynn

Insurance - Clinical negligence - claimant
- Mike Sutton
- David Lydon
- Adam Hodson
-Stephen Jesson

Insurance - Personal injury - claimant
- Mike Sutton
- David Lydon
- Adam Hodson

Insurance - Professional negligence
- Sundeep Bilkhu

Private client - Contentious trusts and probate
- Kamal Majevadia (leading individual)
- Tracy Creed

Private client - Family - Birmingham
- Karen Moores
- Mauro Vinti

Private client - Personal tax, trusts and probate
-Tracy Creed ~
- Nicholas Bennett
- Ravinder Sandhu

Public sector - Health
- Dean Parnell
- Fahmida Ismail
- Tony Harris (Deceased)

Real estate - Commercial property - Birmingham
- Georgina Walsh
- Div Singh
- Fahmida Ismail

Real estate - Property litigation
- Sundeep Bilkhu
- Kamal Majevadia

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 Arrangements 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 Arrangements Order. A person with a Child Arrangements Order that provides for a child to live with them (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 on holiday 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.

Companies are notoriously difficult to value and particular difficulties can arise when they form the principal assets to be divided in divorce proceedings. In a big money case on point, the High Court bridged a huge gulf between the value placed by a wife and a husband on the latter’s business interests.

The couple’s marriage, which yielded two children, lasted about seven years. His business interests, principally his 40 per cent shareholding in the company for which he worked, represented by far their biggest asset. There was a gaping divide of about £9.5 million between the value put on those interests by the wife and that contended for by the husband.

On the basis of accountancy evidence, the Court valued the husband’s net business assets at a little under £17.9 million. Those assets were agreed to be matrimonial property and the husband was ordered to pay the wife half of their value, a lump sum of £8,948,930. The wife, who was anxious to achieve financial independence as quickly as possible, argued that the husband should be ordered to sell his shares within 12 months and that, if he failed to do so, a receiver should be appointed to enforce their disposal.

The Court, however, noted that it was not a propitious time to sell the shares, in that the company had just experienced its two worst ever years of trading. The wife, who was from a wealthy background, was not in immediate need of funds and an early forced sale of the shares was likely to cause both her and the husband significant financial loss. The Court therefore set a date about four years in the future when the husband would be required to pay the lump sum in full.

The Court made further orders designed to equalise the couple’s other assets and to make provision for their accommodation and other needs. The husband was ordered to make annual maintenance payments to the wife pending remittance of the lump sum, when a clean break would be achieved. He was also required to pay maintenance for the children and to pay their school fees.

For help and advice on any family Law matters please contact Emma Gray on 0808 166 8860.

Just because a person is a regular visitor to the UK and has a home here does not mean they have the right to bring divorce proceedings here. That was the decision of the Family Court in a recent case.

It involved a couple of German origin who had lived in Switzerland for many years. They also kept a flat in Belgravia for the use of their student son, which the wife visited many times in order to attend the opera and similar events.

When their marriage broke down, the wife wished to have the divorce proceedings dealt with by the UK courts, as the financial settlements between divorcing couples are traditionally more evenly balanced than is common in many foreign jurisdictions.

Under a foreign pre-marital agreement, the woman had disclaimed any right to a financial settlement. That would have been difficult for her to challenge were the divorce to be dealt with in Switzerland or Germany. She therefore issued divorce proceedings in the UK, where such agreements are not legally binding although in the appropriate circumstances a party may be held to it or at the least an award reduced. In the UK usually the Court will expect, although not necessarily require, certain key features in respect of pre-nuptial agreements regarding receipt of appropriate independent legal advice and the absence of undue influence when they are signed.

The wife indicated that she should not be held to the pre-nuptial agreement because of these flaws but she would only be able to present such an argument in front of a UK court.

To succeed in her wish to bring the issue before a British court she had to be of UK domicile. She claimed she was, having been a UK resident for more than six months and having become closely integrated into English society.

However, the Court rejected her claim of UK domicile. In its view, her visits did not satisfy the test that she 'belonged' in the UK rather than being a frequent visitor to these shores.

Says  Amanda Holland "Where a marriage break-up has an international dimension, there can be many added complications. Our experts can guide you through the process with sound advice and sensitivity."

Please contact Amanda Holland on 0808 166 8827 or email a.holland@sydneymitchell.co.uk

Large family fortunes are commonly held in complicated trust structures and that can give rise to difficulties in the event of divorce. However, a big money case in which a wife was awarded a seven-figure sum showed that family judges are more than capable of untangling them and ensuring that justice is done.

The husband was a major beneficiary of a family trust with assets worth around £400 million. Together with occasional seven-figure distributions, the trust provided him with a very substantial monthly income. He enjoyed a profligate lifestyle during the marriage and none of that income was saved. After his wife launched divorce proceedings, he was assessed as lacking the mental capacity required to litigate and was represented by the Official Solicitor.

The husband had entirely failed to engage in the proceedings, instead showering the wife – and the High Court – with a series of thoroughly offensive communications. His assets were frozen after he ignored a number of orders requiring him to pay maintenance to the wife. Having previously enjoyed a highly privileged lifestyle, she had been left with modest assets worth about £200,000.

Commenting on the huge gulf between the cases put forward by the former couple, the Court noted that the wife claimed to require more than £18.6 million to meet her reasonable needs, whilst the husband contended for a figure of less than £2.9 million.

In ruling on the matter, the Court achieved a clean break by awarding the wife a lump sum of £4.25 million, enough to support an income of about £175,000 a year for the rest of her life. She also received the former matrimonial home, an eight-bedroom mansion worth £2.55 million. Together with other assets, the value of her total award came to a fraction over £7 million.

The husband, who received an annual income from the trust of almost £1.2 million, was well able to meet the award, but was permitted to pay £2.5 million of the lump sum in instalments over a five-year period. He was ordered to continue maintenance payments to the wife until the last of those instalments was paid.

For help on divorce or family matters, please speak to Teresa Mannion t.mannion@sydneymitchell.co.uk  or a member of the Family Team on 08081668860

It is sadly common for wealthy people to exhibit extreme reluctance to disclose their assets if their marriages end in divorce. However, as a case concerning a husband worth more than £300 million showed, family judges have all the powers they need to punish those who drag their feet in complying with court orders.

After celebrating their wedding in Oman, the couple were married for 12 years and had three children together. After their relationship broke down, they engaged in a race to be the first to lodge divorce proceedings. The husband obtained a divorce certificate in Oman, which was presented to the wife the day after she served him with an English divorce petition.

Following a hearing in London, the validity of the Omani certificate was upheld and the wife’s English petition was dismissed. However, as she had lived in England for some years, she was permitted to apply for financial provision from the husband under Part III of the Matrimonial and Family Proceedings Act 1984.

The wife’s lawyers obtained an order requiring the husband to provide full details of his assets worldwide on the basis that such disclosure was necessary to ensure just resolution of the proceedings. After the deadline for compliance with that order came and went, they sought the husband’s committal to prison for contempt of court.

In ruling on the matter, the High Court was satisfied that the husband was well aware of the order despite having failed to engage in the proceedings. His deliberate disobedience had been proved beyond reasonable doubt. The Court imposed a three-month prison sentence, but suspended the term for seven days in order to encourage his belated compliance with his disclosure obligations.

For help or advice on this or other related Family Law matter, please contact Amanda Holland on 0808 166 8827 or email a.holland@sydneymitchell.co.uk

The legal ownership of property is not always the same as the beneficial ownership and disputes can arise when no documentation is executed to show the two are different. Such was the case in a recent dispute which occurred after a couple who had two children but never married broke up. The male partner worked in the IT industry and earned the greater part of their income. The female partner was a midwife, who switched to part-time working then gave up work to look after their young children.

The couple had moved to Hampshire from London, buying a property for £740,000 financed largely by the sale of the male partner's property and a joint mortgage of just under £500,000. The female partner paid £39,000 to assist in the purchase, which was registered in joint names.

When the couple broke up, the ownership of the property was disputed. At the heart of the dispute was whether they intended to purchase it as joint tenants, as the female partner contended, or as tenants in common, as the male partner asserted. If they had purchased it as joint tenants, the value would be split between them equally. If they had purchased it as tenants in common, it would be owned in unequal shares corresponding to their respective contributions to its purchase.

Among the evidence given was that the male partner said in a conversation in a pub, "We are now 50:50 owners but that means you owe half the debt as well." The ownership of the property was recorded at the Land Registry as being a joint tenancy, this being consistent with the advice of the solicitor who acted on the purchase that in the event of either partner's death, the title in the property would pass to the survivor.

At the original hearing, the judge ruled that the value of the property should be split equally. The male partner applied for permission to appeal, arguing that whilst he would have been content for title to pass if he died, while he was alive he would not have accepted a 50:50 split on a sale as he had provided more of the capital for the property's purchase. He also contended that the evidence presented at the first hearing could not displace the assumption that the ownership would be in the ratio of the respective partners' contributions.

In refusing the right to appeal, the High Court placed emphasis on the fact that the male partner did nothing to show that it was intended for the beneficial interest he had in the property to be different from the legal interest.

The moral of the story is that if you are buying a property with someone else and the legal title rests with all the buyers, you must ensure that if the beneficial interest is different, the appropriate documentation is put in place.

We can advise you on any aspect of property purchase and make sure that any necessary agreements are dealt with.

For advice on all aspects of the law relating to family law matters, contact Karen Moores on 0121 700 1400, email k.moores@sydneymitchell.co.uk; for property related matters contact Adam Oleskow a.oleskow@sydneymitchell.co.uk or complete our online enquiry form.

The process of divorce in the UK has for many years been seen as rather long-winded and tending to produce more conflict than need be. One of the reasons for this is that the grounds which demonstrate an 'irretrievable breakdown' of a marriage – the justification for a legal divorce – effectively apportion blame for the breakdown. This can cause the debate to become more argumentative than is necessary.

The Government launched a consultation last year and changes to the system were proposed to bring in 'no fault' divorce. These have met with overwhelming approval.

The Government has therefore promised to introduce legislation in the next Parliamentary session, which begins in May.

Says Emma Gray,

While we wait to see the detail of the legislation, the proposals are broadly to be welcomed and should allow the negotiation of care arrangements for children and the financial settlements to be conducted in a less confrontational way than is often the case.

For help or advice on the new rules and how it will impact on your divorce, please contact Emma Gray on 0121 746 3300 or email e.gray@sydneymitchell.co.uk.

More articles on this topic...

https://www.sydneymitchell.co.uk/news/no-fault-divorce-become-law

The welfare of children is always top of the list of priorities of the Family Court when making arrangements following the break-up of a family. This can be especially difficult where the parents are from different countries, as shown by a recent case in which the Court considered the welfare of a child of a Mexican mother and an English father.

When the child, aged seven, had expressed a wish to return to live in Mexico, the CAFCASS official appointed as the child's guardian recommended that this did not occur. When the child was 18 months old, the mother had taken her to Mexico to visit her family for what was intended to be a short holiday, but had stayed there. It took four years to obtain the return of the child to the UK, in the face of deception and obstructions put in place by the mother.

Recently, the mother expressed the wish to go to Mexico to see her elderly father, and to take the child with her. The mother has formed a new and lasting relationship with another English man and lives in the UK. She claimed to be 'in a different place' now. The judge commented at length that there were obvious risks of a repetition of the earlier events if the application were granted.

The hearing made it plain that careful safeguards would be required and a substantial financial bond would have to be put in place by the mother to enable the father to recover the child should legal proceedings be necessary. In addition, part of the earlier separation agreement would have to be redrafted.

As the issue was not capable of resolution at the hearing, a further hearing has been scheduled for mid-March 2019 and a final hearing for July. CAFCASS was reappointed to act as the child's guardian, with a recommendation that the same officer be appointed.

If your family is on the verge of breaking up, careful consideration of the needs of any children should be your first priority. This can include taking steps to ensure that contact to them is maintained.

For help and advice please contact Teresa Mannion on 0808 166 8860 or email t.mannion@sydneymitchell.co.uk