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Coronavirus likely to lead to a need to review spousal maintenance orders

Palmers Solicitors Article Right, Business News, Covid update, Family Law, Divorce & Children, Library 22 April 202023 September 2021

Thousands of people in the UK are facing the prospect of a reduced income as a result of the Covid-19 pandemic and this is likely to result in many being left unable to meet their regular spousal maintenance payments.

These payments mustn’t be stopped, as it will be seen as a breach of the original court order. So, what steps should divorce couples and dissolved civil partnerships be taking in light of the current crisis?

To help we have looked at some of the common queries around these payments and the impact that the pandemic is likely to have on them.

What is a spousal maintenance order?

Spousal maintenance is paid by a husband or a wife to their former spouse following a divorce to meet their needs that otherwise would have been fulfilled by the relationship.

This takes into account partners who may have had to give up a career to care for children or other circumstances that requires them to be maintained by their former partner.

Maintenance is typically paid monthly and continues either for a defined period or for the remainder of the parties’ lives.

These types of orders will only usually end when the recipient remarries or if either party dies, but both types of order can be varied or dismissed by the courts on a change in circumstances, such as a reduction in income.

How are the payment amounts set?

In determining whether and how much spousal maintenance should be paid the court has regard to the overall circumstances in the past, present and future.

It will then set an amount based on its conclusions, which may also take into consideration day to day financial commitments, including any child maintenance obligations.

I cannot pay my spousal maintenance order due to the economic impact of coronavirus. What should I do?

Thousands are likely to find themselves in this position as a result of this pandemic. Guidance suggests that parties should first seek to reach an agreement without going through the courts.

The onus is one the paying party to ask for a reduction in payments and this should be agreed in writing, clearly setting out how long the reduction will last for or any conditions for increasing payments in future.

Due to the current social distancing requirements, it is believed that an email should suffice in lieu of a more formal document, but it may be best to seek advice and keep a record of all correspondence to prevent a dispute arising in future.

My ex-partner will not agree to a reduction in maintenance payments, what can I do?

You could initially attempt mediation or arbitration to see if, with the assistance of a third party, you can come to an agreement without going to court.

However, if no agreement can be reached then either party can apply to the court to vary the maintenance upwards or downwards, to reflect the change in circumstances.

If a person loses their job as a result of the pandemic or sees a significant cut in their income and they are unable to reach an agreement they can apply to the court for a suspension or downward variation of the maintenance, however, if alternative employment is found or income increases again, the recipient can also seek an upward variation to reflect this change in circumstances.

Those attempting to seek a downward variation or suspension of payments via the court will be required to evidence their claims in detail.

Are you struggling to make spousal maintenance payments?

If you are then you must seek specialist advice to ensure you follow the correct procedures when seeking a downward variation.

Similarly, if you are in receipt of an order and are approached by a former partner to suspend or vary payments it may be best to seek advice to ensure the request is fair and appropriate.

Contact us today for advice tailored to your specific circumstances.

Coronavirus – Family law: Child Arrangement Orders

Palmers Solicitors Article Right, Business News, Covid update, Family Law, Divorce & Children, Library 31 March 202023 September 2021

The Government’s measures to slow the spread of coronavirus affect all aspects of life, including Family law.

Child Arrangement Orders have been affected significantly by measures limiting the circumstances in which people can leave their homes.

The President of the Family Division and Head of Family Justice, Sir Andrew Macfarlane, the senior judge with responsibility for Family law has now issued a statement to clarify the approach being taken to the crisis by the Family Courts in respect of Child Arrangement Orders.

Noting that the Government guidance issued with the Stay at Home rules states:

“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

Sir Andrew points out that this does not mean that Children necessarily have to be moved between homes and that parents should take decisions based on a full assessment of circumstances, such as the health of the child and the vulnerability of others in the households.

Importantly, where parents decide to vary temporarily the terms of a Child Arrangement Order, he recommends that they record this fact in a note, email or text message to the other parent.

If both parents cannot agree on a variation of the terms of a Child Arrangement Order, but one is concerned that complying with the terms would be against advice from Public Health England, they can decide to vary the arrangement to ensure they are safe.

Such a decision could be examined after the event by the Family Court, which expect the parent to have acted reasonably and according to current guidance.

Sir Andrew adds that where a Child Arrangement Order has been varied so that one parent does not see their child, the Family Court will expect alternatives such as regular video calling to be put in place.

Contact our family team today.

New mixed-sex civil partnership laws come into force

Palmers Solicitors Article Left, Business News, Family Law, Divorce & Children, Library 21 January 202022 January 2020

Mixed-sex couples are now able to enter civil partnerships after Parliament passed required legislation, meaning that the Civil Partnerships, Marriages and Deaths Act has now become law.

Couples were able to give notice from 2 December 2019, with the first civil partnerships registered on 31st December following the usual 28 day notice period.

The changes to the legislation come following a Supreme Court ruling in 2018 which found that restricting civil partnerships to same-sex couples breached human rights.

The case was brought forward by Rebecca Steinfeld and Charles Keidan, who argued that they should not be denied the financial benefits despite not wanting to get married.

During the debate on the legislation, Baroness Susan Williams explained that the bill was being passed without the inclusion of conversion to/from marriage as this won’t be implemented until 2020 following the consultation.

It was also revealed that because a bill to create opposite-sex civil partnerships was currently passing through the Scottish parliament, civil partnerships formed in England and Wales will currently be treated as marriages in Scotland for legal and financial purposes.

Martin Loat, Chair of the campaign group Equal Civil Partnerships said: “It has been a long journey through both the courts and parliament to get to this point.

“I’d like to pay tribute to everyone who has been involved in the campaign – especially Rebecca Steinfeld and Charles Keidan whose eventual win at the Supreme Court led us to this place.”

Rebecca and Charles were amongst the first to exercise their right to a heterosexual civil partnership, at Kensington and Chelsea Register Office on New Year’s Eve.

Speaking on the steps of the register office, Ms Steinfeld said their “personal wish” to form a civil partnership came from a “desire to formalise our relationship in a more modern way, with a focus on equality, and mutual respect”.

Ms Steinfeld said it creates “new, modern possibilities” for thousands of people to express their love and commitment and ends “the unrivalled position of marriage”.

The Government has said it estimates around 84,000 mixed-sex couples could choose civil partnerships rather than marriage in 2020.

Surjit Verdi, a Partner with Palmers who specialises in family law, said: “This new legislation is to be welcomed as it provides an alternative for couples who have, to date, shunned traditional marriage vows, but who wish to have their relationship recognised in law, with the various financial certainties that this includes.

“At Palmers, we can advise couples on the legal issues involved in entering a civil partnership, including assisting in putting in place agreements about financial arrangements, either before or after the civil partnership. We can also advise on the importance of making a Will.”

For more information on our legal services for couples entering into a civil partnership, please contact us.

What happens if I want to divorce amicably and start proceedings?

Palmers Solicitors Business News, Family Law, Divorce & Children, Library 29 July 2019

If your marriage has irretrievably broken down and you wish to divorce your spouse, you will need to follow the divorce procedure below to legally end your marriage. At present in the UK, there is officially only one ‘ground’ for divorce, which is that your marriage has irretrievably broken down.

To file for a divorce you must prove this by establishing one of the five following factors; desertion, adultery, unreasonable behaviour, separation of two years (with consent) or separation of five years (no consent required).

Steps:

The first step for any divorce is to file the divorce petition, which is completed by the Petitioner and filed with a regional divorce centre.

Within the divorce petition, it must detail the reason why your marriage has broken down.

When you submit your divorce petition you will need to provide the court with your marriage certificate and pay the court fee of £550, unless you are on a low income or receive certain benefits, in which case you may be entitled to court fee remission.

The second stage of the divorce proceedings involves the court sending a copy of the divorce petition to your spouse, with an Acknowledgement of Service form that they need to complete and return within seven days.

The Acknowledgement of Service form confirms to the court that; your spouse has received the divorce papers and they are happy with the reasons for the divorce as well as the wording used.

Once the respondent has sent back the Acknowledgement of Service form to the court, the petitioner can then apply for the decree nisi.

Decree nisi is an order by a court of law stating the date on which a marriage will end unless a good reason not to grant a divorce is produced.

The final step, once a date has been set, is it apply for the final decree this can be done six weeks and one day after the date given by the court. This application typically takes two weeks, which will then formally and legally end your marriage.

Keeping things amicable…

Here are a few suggestions for keeping, what is a stressful and upsetting situation as amicable as possible:

Plan how to tell your spouse you wish to divorce any why
Keep ‘blame’ out of the situation wherever possible
Focus on any children involved and place their needs first
Be patient with your spouse and give them time to adjust
Negotiate the terms of any settlements in good faith, be fair, and stick to agreements made

Our Family Law practitioners are members of Resolution and comply with the Resolution Code of Practice. We aim to offer both legal and practical advice, in what may be a particularly difficult time in your life. For more information about our range of family law services, please contact us.

Calls for divorce law reform to protect children

Palmers Solicitors Business News, Family Law, Divorce & Children, Library 20 December 201820 December 2018

Campaigners have called for an “urgent reform” in divorce law to reduce the emotional impact it has on children.

Resolution, the family law body, which represents 6,500 family justice professionals across the UK, said divorce must “protect the long-term interests of children of separating couples”.

In its report, it said the current fault-based system leads to conflict and confrontation and is particularly harmful to children. Due to this, the group is now calling for the immediate implementation of no-fault divorce.

Under current legislation, couples are required to live apart for at least two years or blame the other partner by alleging adultery or acting in an unreasonable manner.

The no-fault divorce campaign has seen successes in recent months, however, with the Justice Secretary David Gauke announcing a consultation on reforming divorce law.

In his speech to Parliament, the MP said: “We think the ‘blame game’ that currently exists helps no one. It creates unnecessary antagonism and anxiety at an already trying time for couples and in particular where there are children.”

Likewise, a large majority of the public support removing blame from the divorce process. According to a recent YouGov poll, 79 per cent of the population agree that conflict arising from divorce or separation can negatively affect children’s mental health. Meanwhile, 77 per cent of the population believe that conflict could affect a child’s academic performance and two thirds feel that social interactions and the ability to form “healthy romantic relationships” could be threatened by an acrimonious separation.

Those opposing no-fault divorce say reform could result in higher divorce rates, although there has been no evidence to substantiate this.

Commenting on the report, Margaret Heathcote, National Chair of Resolution and family lawyer, said: “We are delighted that the Government is listening to family justice professionals and taking proactive steps towards ending the blame game and modernising divorce law.

“Whilst reform will bring many benefits to separating couples, ultimately it’s the positive difference these changes will have on children that must be at the centre of everyone’s intentions.”

“We hope other responses to the consultation will reflect our own view, that it is time to end the blame game as soon as possible.”

Surjit Verdi, a Partner with Palmers who specialises in family law, said: “Parents are usually the best people to decide upon arrangements for their children. Where possible, we recommend that issues relating to children, such as education, religion or residence -formerly known as custody – are agreed amicably.

“Unfortunately, following the breakdown of a relationship, it is often difficult for parents to agree what is best for their children.

“In such cases, mediation can be extremely helpful to sort out arrangements without the need to go to court.”

For help and advice regarding all aspects of family law including separation, divorce and mediation, please contact us.

Could landmark ruling lead to more rights for cohabitees?

Palmers Solicitors Business News, Family Law, Divorce & Children, Library 18 September 2018

The Supreme Court has ruled that a woman who was denied bereavement payments following the death of her partner of 23 years, was unfairly treated.

The landmark court case which had been asked to rule whether Siobhan McLaughlin should have been allowed to receive a Widowed Parent’s Allowance.

The decision by the Supreme Court, which ruled that the denial of her claim was incompatible with human rights law, could lead to a flood of claims from those who have found themselves in a similar situation.

Ms McLaughlin, from County Antrim in Northern Ireland, had never married but had lived with her partner, John Adams, for 23 years and had four children with him.

When he died in 2014, she was denied a £2,000 lump sum bereavement payment as well as a weekly widowed parent allowance, which could have been worth up to £118 a week.

Explaining their decision not to marry, Ms McLaughlin said: “It was never an issue. I naively thought that the longer you were together as a couple the more rights you had.

“Our four children had their dad’s name; to me, it was just a ring and a bit of paper – the commitment was the same.”

The Supreme Court ruled that the terms of the current social security regulations, which denied Ms McLaughlin a pay-out, were at odds with Article 14 of the European Convention on Human Rights.

In 2017, it allowed a similar appeal relating to access to local Government pensions for surviving cohabitants in the case of Denise Brewster.

This latest case comes shortly after the Supreme Court ruled that opposite-sex and same-sex partners should have the same entitlement to Civil Partnerships following a challenge by Charles Keidan and Rebecca Steinfeld who argued that “civil partnerships are a modern social institution conferring almost identical legal rights and responsibilities as marriage”.

Last year Jakki Smith, an NHS worker, won a landmark battle for greater legal recognition for bereaved unmarried couples at the Court of Appeal. However, despite the occasional court victory, many cohabiting couples are left with nothing, following the death of their partner.

According to the Office for National Statistics, the number of cohabiting households has more than doubled from 1.5 million in 1996 to 3.3 million in 2017.

Surjit Verdi, a Partner with Palmers’ Family Law team, said that although the landmark ruling could now allow unmarried parents to receive benefits, the law still does not provide the same level of protection to cohabitees.

She explained: “There remains a myth that if you live together for long enough, then as a ‘common law spouse’ you will acquire the same rights and entitlements as a married person. This is simply not the case. Under law, there is no such thing as a ‘common law spouse’.

“Anyone who lives together, without marrying or entering into a Civil Partnership Agreement, is a ‘cohabitee’ and the law is the same, regardless of whether you have lived together for two months or 20 years.

“Putting in place a cohabitation agreement can give both parties some certainty in the event that one party dies or the relationship breaks down.

“However, a cohabitation agreement should not be relied on alone. It is particularly important that cohabiting couples have Wills in place as the rules of intestacy, which dictate the distribution of an estate where no Will has been made, do not take cohabitation into account.

“Where no Will has been made, the surviving partner can find themselves embroiled in time-consuming and costly legal processes, or even end up receiving nothing from the estate.”

To find out more about cohabitation agreements, please contact us.