By Kate Banerjee , head of Jones Myers Children’s Department  

My concerns about heartbreaking cases – when life-changing decisions affecting vulnerable and often bewildered clients are made at remote hearings – have been re-enforced in a recent study. 

The Covid-19 Pandemic has understandably called for remote video and telephone hearings where vulnerable clients are isolated and bereft of any contact or support from solicitors and barristers representing them.

At these hearings momentous decisions are being made about their future on highly sensitive and emotional issues which include babies being removed from their mothers after birth, children being adopted, their contact with parents suspended or stopped – and changes made to where they live.   

Prior to the Pandemic as family lawyers we could support our clients in a court hearing and intervene if they did not understand the proceedings or wanted to change their mind.   

A study commissioned by Sir Andrew McFarlane, president of the family division of the high court, highlight s how parents are participating in online proceedings on a phone from home – often without adequate technology or support.

The study says those who needed an interpreter or who had disabilities faced particularly severe challenges and that 40 per cent of parents did not understand what had happened during the hearing.

This situation is unacceptable. In my extensive experience as a family lawyer, it is impossible to read a situation virtually to sense if my client is, for example, upset, crying, shaking their head or confused.

There is also no privacy or opportunity in the hearings for clients/parents to say they don’t understand what is being said or to change their mind.

Sir Andrew McFarlane is following up concerns raised in the study and will be working with the judiciary and the professions to develop solutions – a positive development.  

In these heart-wrenching situations urgent improvements – such as providing down time in the hearings for clients to speak to their lawyers to clarify any points – are needed.  

More Nightingale Courts – temporary courts set up in July to help tackle the impact of Coronavirus on the justice system – would also be a step in the right direction.  

The overarching priority of the hearings is to keep children safe and our dedicated Children’s team continue to go the extra mile to advise and support our clients by face-to-face meetings where possible along with additional meetings and regular telephone calls.

The impact of momentous decisions made on these highly sensitive cases have lifelong consequences for society’s most vulnerable.  It is vital that these hearings are fair so they do not feel alone and in despair.        

For children related and family law issues, call us at Leeds on 0113 246 0055, Harrogate on 01423 276104, or York on 01904 202550. Visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce.

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By Peter Jones, founder

The government’s new divorce form, aimed at making the process more user-friendly, is more likely to backfire by increasing conflict and lengthening the time a divorce takes.

The updated online form includes a space for those applying for a divorce to name who their spouse has committed adultery with. Once named, the third party is tied up in the court case, sent copies of the paperwork and given an opportunity to respond. Failure to reply can delay proceedings and rack up more costs.

Although the naming is not compulsory, many commentators rightly predict it will lead to a rise in shaming third parties as ‘wronged partners’ publicly vilify their love rivals.
The supposed advancement is a major setback following the hard work and commitment in recent years of courts, responsible legal practices and support agencies to settle family disputes non-confrontationally. The invitation to name and shame flies in the face of this.

As members of Resolution, all Jones Myers family lawyers are prominent supporters of alternative dispute resolution – striving to resolve family disputes constructively, to try to avoid costly, public and stressful litigation. Retaliating in this way might provide a short-term lift, but is unhelpful in the long run – especially where children are involved

We are committed to a collaborative approach to dealing with divorce and family matters. Even if issues are particularly complex and need a judge or an arbitrator to make a decision, a lawyer who follows Resolution’s code of practice will avoid an unnecessarily aggressive route wherever possible.

Not only will this approach save much time, stress and cost by avoiding a court battle, it allows couples to concentrate on what is really important; ensuring that children’s interests are best served; reaching a fair settlement for both sides; and being able to move on afterwards without lingering bitterness and resentment.

For more information about divorce or any aspect of family law, call Jones Myers at our Leeds office on 0113 246 0055, our Harrogate office on 01423 276104, visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

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The case of a successful energy trader – who is appealing against a High Court decision to award almost half of her £7 million fortune to her adulterous ex-husband – is sparking concerns among divorcing couples.

The outcome of Julie Sharp’s Civil Appeal Court plea for a “fair divorce settlement” following the judgement to allocate Robin Sharp almost £3m after a marriage lasting just four years – is awaited with interest.

This case is a stark reminder that the rules of maintenance and capital distribution take no account of fault and apply to the main breadwinner – irrespective of the fact that the divorce was apparently prompted by her former husband embarking on a new relationship while they were married.

It also illustrates that conduct and gender are not factors in a court’s decision, which is made after appraising a couple’s joint assets and deciding how they should be divided whether by sharing equally, or with some other adjustment to meet the reasonable needs of both.

Costly, distressing and, in this case, high-profile courtroom battles over settlements can be avoided with Arbitration; which allows couples to reach a divorce settlement without the trauma of the courts. The sessions are held in private, which means that journalists cannot report the details of the divorce or settlement.

The hearings, which are arranged at clients’ convenience, and at comfortable venues, see the arbitrator determine who should have what. Similar to a judge, they collect relevant facts and evidence and base their decision on this evidence – taking into account the views of both parties. The Award is final and binding in both parties.

Arbitrators are not only qualified in their process – they are also experienced family lawyers who are either former judges or family law barristers or solicitors. Jones Myers founder, Peter Jones, was one of the country’s first arbitrators, when arbitration was introduced in 2012 to resolve differences on financial and property matters.

Two other ways to avoid confrontation and discord are pre-nups and post-nups.

A pre-nup agreement – which is drawn up between couples before marrying – sets out how their assets will be split if the marriage fails. Although not legally binding, a carefully thought through agreement, drawn up with independent advice, is quite likely to be upheld by a court.

They are also more likely to be accepted by a divorce judge if they were agreed well in advance of a marriage – and if there is no implication that one party was coerced into signing.

Post-nups are entered into after marriage; with the same aim as a pre-nup should a court decision have to be made. They are often made by couples in a second marriage who are seeking to protect children of previous relationships, or by those who wanted a pre-nup but didn’t have time, or or for some other reason felt it inappropriate, to arrange one prior to the marriage.

For both pre-nup and post-nup agreement to carry their full weight, both parties must enter into them of their own free will, without undue influence or pressure – and be fully informed of their implications.

Legal advice and disclosure are desirable, but what matters is that both parties are fully aware of the implications and have the information necessary to make an informed decision.

If you have any comments, queries or concerns on divorce affecting business and divorce  or wider divorce related issues including pre-nups and post-nups, leave a comment below, call the Jones Myers team on 0113 246 0055 or tweet us on @helpwithdivorce.

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There has been a dramatic rise in the number of litigants in person – those representing themselves in divorce court hearings – to decide children’s best interests.

This is because litigants are trying to reduce costs following the government’s abolition, in 2013, of Legal Aid in private law children cases where agreement cannot be reached on finance, contact or residence.

However, in our vast experience, representing yourself can bring many pitfalls for litigants in person. Not only is there the anxiety of speaking in court to a Judge but there is usually a substantial amount of paper work to prepare and also read. It is difficult to be objective when reading allegations from your own partner. Problems can likewise arise in understanding the Law and also appreciating what issues will be important to a Judge.

Even the most articulate people representing themselves struggle to get to grips with the finer points of law, the standards of evidence and the advocacy techniques that professionals take years to develop. The system is highly adversarial and cases need to presented in a technical way, requiring both knowledge and an emotional distance that parents will find hard to muster.

There is also a woeful lack of support and assistance in court for self-representing litigants.

The culmination of the above can lead to very highly charged hearings, with many of the marriage’s tensions and other arguments often aired in court – all of which can prolong the trauma for everyone involved, including the children.

Jones Myers’ highly trained Children Department lawyers always advise parents to consider the options for divorce by settlement – collaboration, arbitration and mediation – rather than a court battle. As well as being less confrontational, less stressful and completely private, they can result in a swift resolution and save on legal expenses.

Jones Myers partner and head of Children’s Department, Kate Banerjee, has ‘Higher Court Rights’, something fewer than 2,500 solicitors have in England and Wales, which enables her to offer clients an all-round litigation service.

Kate and her colleagues can also introduce parents going through divorce to support groups, counsellors and life coaches, to help guide them to making the right choices and ensure their wellbeing.

Whatever route is chosen, it is advisable to have legal representation to prevent matters spiralling out of control.

If a court hearing cannot be avoided, costs can be kept to a minimum by appointing a family law firm whose in-house expertise removes the need for a barrister. This can reduce fees by two thirds.

If you have any comments, queries or concerns on representing yourself in court or any other divorce related issues, leave a comment below, call the team at Jones Myers on 0113 246 0055 or tweet us on @helpwithdivorce.

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The media frenzy continues a week after Angelina Jolie filed for divorce from Brad Pitt with every aspect of their lives – and the lives of their children – continuing to be played out in front of millions of people worldwide.

However, irrespective of whether you are Hollywood’s most “golden” couple, divorcing through the courts comes with no guarantee of privacy – as some of the hearings are open to the public and journalists can attend and report details of the proceedings. 

They may do so if there is a salacious element, perceived wealth, or accusations of attempts to hide assets – which can be embarrassing and distressing for the couple, as well as their children, parents or business partners.

At Jones Myers our specialist family lawyers advise of three less public routes, outlined below, to take when marriages break down.

Arbitration is a quicker, less emotionally and financially draining alternative to court battles. The press is barred from hearings, which are arranged at clients’ convenience, at comfortable venues, where a family arbitrator rules on who should have what. Just like a judge, the arbitrator bases his or her decision on relevant facts and evidence – taking into account the views of both parties. The award is final and binding on both parties.

Arbitrators are not only qualified in their field – they are also experienced family lawyers who are either former judges or family law barristers or solicitors. Jones Myers founder, Peter Jones, was one of the country’s first arbitrators, when the process was introduced in 2012.

Mediation is also an effective and private way of resolving disputes without the need to go to court. It involves an independent third party – a mediator – who helps both sides come to an agreement. It is a highly effective method which can result in a swift resolution and save on legal expenses.

Couples often use mediation as a way to explore and discuss issues between them, with the assistance and guidance of an impartial mediator. Because many issues are resolved during mediation, they often find that they save a great deal in legal costs by opting for mediation first.

Collaboration sees couples each appoint their own collaboratively trained lawyer. They meet to work things out and are backed up by support and legal advice. All sign a contract committing them to trying to resolve matters by agreement, without going to court. The lawyers will agree only to represent the parties within the collaborative process and not in court. This ensures that everyone at the table, not just the divorcing spouses but also their legal representatives are committed to finding an out-of-court solution.

Collaboration places an emphasis on a respectful and dignified resolution, putting any children at the heart of the process, and keeping the details private and confidential. Our experts include Norman Taylor  who champions a non-confrontational solution-based resolution of family issues and has been recognised for his work in promoting and developing collaborative law.

Divorcing couples who value their privacy are advised to consider these options which are also more cost effective, less traumatic and less prolonged than litigating.

Jones Myers has vast experience helping couples reach a constructive settlement to their differences, avoiding protracted arguments and promoting co-operation between them.

If you have any comments, queries or concerns on any divorce related issue, leave a comment below, call the Jones Myers team on 0113 246 0055 or tweet us on @helpwithdivorce.

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The statement of a panel of judges that says:  “for most people they will not be relevant on divorce” may be correct if the agreement is tested in a court, and the terms found to be unfair.

Pre-nups have risen in popularity and influence since a 2010 UK Supreme Court ruling recommended that, although not legally binding, courts should uphold carefully thought through agreements drawn up well in advance of the marriage and without coercion. Of course, they have to be fair, and meet the respective needs of the parties. However, the determination of what is “fair” and what are the “needs” will be looked at in the light of the pre-nup terms.

The Family Justice Council guide, drawn up by a group that includes five judges and barristers, claims that pre-nups will be ‘irrelevant’ for most people undergoing a divorce – and that most courts will ignore them when they dividing up assets, basing their decisions on ‘fairness’ instead.

The guide also adds that, in the eyes of the court, “meeting needs is the central factor on divorce” and only the very wealthy – who have more assets than their former spouse could ever need – can benefit from an agreement.

The judges’ claims are based on the assumption that a pre-nup will be challenged, and indeed the Guide is aimed at people who represent themselves at Court. However, the whole point of the pre-nup is to agree things in advance in order to avoid the trauma, cost, and uncertainty of court proceedings.

If one partner does challenge the agreement, the court may have to make a decision. However, if needs are addressed and both parties deem the contract to be fair, the court will more than likely to uphold it.

The recent increasing influence that pre-nups have on courts suggests that the courts will take them very seriously into account in determining fairness and needs, and seek to ensure that these lie at the heart of the terms of such contracts. It is thought that a court is likely to follow a properly constructed pre-nup even if the terms are not precisely what the court might otherwise have ordered.

Originally drawn up to set out how a couple’s assets will be split if the marriage fails, the contracts can also address vital issues such as child residence and contact arrangements, occupation of homes on separation, interim support at the time of separation, and provision for each of the parties on the death of either or both of them.

We have witnessed the positive impacts of pre-nups which give comfort in cases where the wealthier spouse agrees to provide for the other spouse in the event of a split. Also, some couples embarking on marriage for the second time are keen to go down the pre-nup route to ensure that certain assets are preserved for their children from previous relationships – whilst others seek to protect wealth which may have been in their family for generations.

Addressing anticipated needs and reasonable requirements of both parties should always be a first priority for practitioners drafting prenuptial agreements. It is likewise understandable that a seismic change in circumstance may well influence a decision of the courts. Therefore, it is prudent that a pre-nup contains provisions to review the agreed terms in the event of a material change in circumstances. Ultimately, skilfully drafted and fair prenup’s appear to be welcomed by the courts.

Circumstances where the contracts run into problems include if judges are concerned that they are signed under pressure. They will want to know that the partner with the most to lose understood the agreement, that there was no pressure to sign and that there was independent legal advice. If there was little time to reflect on or be confident about the terms, judges may ignore or vary them.

To avoid these risks, set up the agreement at least 21 days before the wedding, make full financial disclosure and secure good legal advice. If respected family lawyers help draw up the agreement, judges can be confident that both parties understood it fully and were not rushed into it.

If you have any comments, queries or concerns on pre-nups, mediation or divorce related issues, leave a comment below, call the Jones Myers team on 0113 246 0055 or tweet us on @helpwithdivorce.

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The decision highlights both the value of such arrangements and the importance of taking the right legal advice to draw up robust ’post-nups’ that will stand up to scrutiny in court.

Deputy High Court Judge Nicolas Cusworth QC threw out a claim by Caroline Hopkins for a further £2 million from her ex-husband William.  The couple, both in their 60s, married more than 30 years after starting an affair, but separated in 2011 just three years after tying the knot.

Under the post-nup drawn up shortly after their wedding, Caroline Hopkins would receive two properties, £350,000 and a share of Mr Hopkins’s pension. At the court hearing Mrs Hopkins, who received ‘copious volumes of legal advice’ before signing, claimed that she had been ‘bullied and badgered’ into the arrangement.

However the judge declared: “I do not find it to be a dishonest document.  I find that it was entered into freely by the wife, and with full appreciation of its implications.”

Like pre-nuptial agreements, a post-nup (agreed after a marriage or civil partnership) sets out how property, finance and other assets are to be divided if a couple split up.

A post-nup can be drawn up at any time and is increasingly popular with older couples who may have been married before, and who might have dependent children or who have brought property or assets to the marriage.

In England and Wales pre and post-nuptial arrangements are not legally binding, however as the Hopkins’s case shows, courts often uphold agreements that are well drawn-up and where there is no evidence of one party being coerced into signing. Therefore it is critical that both partners take expert independent legal advice before signing on the dotted line. If a couple can’t agree on the terms then a family lawyer may suggest that they use mediation to resolve their differences.

Following the announcement that the over 55s can take cash out of their pension pots from April 6, we may see more older couples drawing up these agreements to help protect their financial futures in the event of divorce.

If you have any questions or comments about pre or post-nuptial agreements, or any divorce related matter, please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

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Spousal maintenance, which is quite distinct from child maintenance, is a payment made by either a husband or wife to the other on a divorce. It is most likely to be awarded to women as they tend to be the ones who have earned less during the marriage, or who have stayed at home to bring up children.

In his recent ruling in the Court of Appeal on the Wright v Wright case, Lord Justice Pitchford said divorcees with children aged over seven should be working for a living. His judgement on the case brought by top equine vet Ian Malcolm Wright against his former wife Tracey Wright, is now likely to be used by judges in family courts throughout England and Wales.

Growing numbers of husbands may go back to court to reduce or strike out existing maintenance orders for their former wives. Like Mr Wright, they may feel that original orders were unfair and that they should not be expected to support their exes indefinitely.

In some countries former spouses receive little or no maintenance, or it is awarded using a formula.  In England and Wales judges are able to use their discretion to decide how much an ex will receive – one of the reasons why London is seen as the divorce capital of the world.

This latest judgement highlights the need for separating couples to understand key issues which courts will look at when deciding on maintenance:

• The present income of both husband and wife, the value of any property and assets, and any future income, including the potential earning capacity of both parties
• Whether one party has stayed at home and been a long term carer of the couple’s children and therefore has been wholly dependent on their ex for financial support
• Whether a husband or wife has given up their own career. This might be to care for children, for an elderly relative or to support their spouse in his or her business
• The ages of any children. The judge in the Wright case sent out a clear message to ‘stay at home’ mothers or fathers that they should be looking for part time work once children reach age seven
• The couple’s standard of living before the marriage ended together with any benefits, such as private healthcare, that would be lost after a divorce
• Both parties’ financial needs and responsibilities
• The health of each person, including any disabilities
• Planned retirement age of the couple. Malcolm Wright told the Court of Appeal that he shouldn’t be expected to support his former wife on a diminished income after his retirement at 65
• A court has a duty under the Matrimonial Causes Act 1973 to consider if a ‘clean break order’ would be appropriate. This is where a husband’s or wife’s financial claim against the other comes to an end after a mutually agreed period.

The law regarding the flexible approach to maintenance in England and Wales could change.  Baroness Deech’s Private Members’ Bill, currently going through the House of Lords, proposes far reaching changes to all financial aspects of divorce.

If you have any questions or comments about spousal maintenance or divorce please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

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Could a landmark Supreme Court ruling allowing a woman to make a claim for financial support from her ex husband 20 years after their divorce open the floodgates for similar claims?

The unanimous decision by five Supreme Court judges to allow Kathleen Wyatt to seek a payout from her former husband multimillionaire Dale Vince is unprecedented.

Ms Wyatt and Mr Vince were penniless New Age travellers with a small son, Dane, at the time of their divorce.  Dale Vince made his fortune years later after founding the successful green energy company Ecotricity and was awarded an OBE. While Mr Vince is said to be worth £107m, his former wife lives on a limited income.

Many family lawyers and media commentators doubted that Kathleen Wyatt would win her case after such a long time lapse. I was not surprised as I had been involved in a not dissimilar case at the Court of Appeal some years earlier. The judges disagreed and they ruled that because there was no financial order in place at the time of the divorce – and no time limit in family law on making such orders – Ms Wyatt could apply to the Family Division of the High Court to make a claim for financial support.

There is no guarantee that Ms Wyatt will receive a substantial payout from the family court. However, the Supreme Court ruling is a timely reminder to all separated couples to have an order in place when they divorce to ensure that there will be no financial claims in the future.

Without this ‘closure’ either party could, like Kathleen Wyatt, come back with a claim for financial support from their ex many decades later. This can apply to husbands just as much as wives.

Although few people are likely to amass millions like Dale Vince, there are many of more modest means who could find their finances looking healthier some years after a divorce.  For example, an inheritance or a lottery win could change someone’s financial status substantially. Without a financial order an ex husband or wife could make a claim on that windfall.

The only way to ensure that future wealth and assets are protected is to seek legal advice when you are considering divorce. However, the demise of legal aid means that many thousands of divorcing couples are denied access to the expert advice they need.

Droves of couples are now undertaking DIY divorces and may not have considered the need to have robust financial orders in place which will give clarity and certainty to avoid delayed claims coming home to roost. Many may come to mutual agreements not endorsed by a court and which could come back to haunt them in the future. Whilst that may seem to be fine it is a recipe for disaster many years later.  No one should have to return to the court years later with all the anguish, stress and cost risking damaging a new relationship.

Dale Vince has described the court’s decision as “mad”, but his rags to riches tale should be a salutary lesson for all divorcing couples.

If you have any questions or concerns about financial orders, or any aspect of separation or divorce, please leave a comment below, drop us an e-mail or tweet us @helpwithdivorce

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Former oil trader Michael Prest has hit the headlines after being given a four week suspended jail sentence for failing to pay his ex-wife maintenance worth £360,000.

The High Court ruled that the 53-year-old, said to be worth almost £40m, had “wilfully refused or neglected” to pay his former wife Yasmin – despite spending more than £250,000 on holidays and £12,000 on tickets for a Justin Bieber concert.

And Mr Prest’s excuse? In a letter read out to the court, he said he had “engaged in the process, had not shirked responsibilities” and had taken care of his children, adding “I have not killed anyone, nor have I committed any crime… I have simply slipped on the accident of life.”

Not surprisingly, these excuses did not impress the court. As Ms Prest’s lawyer said, “This is a particularly bad case of wilful default and deliberate non-compliance to pay maintenance for the children,” despite being ordered by the court in 2011 to pay his ex-wife a lump sum of £17.5 million and annual maintenance payments of £300,000 a year.

While I welcome Mr Justice Moylan’s ruling, because it shows the family court is determined to enforce its orders, I am aware that many divorcees in this situation do not know what to do when payments are deliberately stopped.

As a follow up to our post on Child Maintenance Service, we hope the frequently asked questions below will help if you are in this situation.

What do I do if my ex won’t pay?

If the liability to pay child maintenance (or indeed spousal maintenance) is contained in a court order, the payee can take action to recover any arrears by applying to the court, which will choose the most appropriate method of enforcement. This will depend upon the financial situation of the payer and this will be examined by the court in order to determine which method of enforcement is most likely to achieve the desired result.

If the payment is through the Child Maintenance Service (CMS), they have various powers to recoup arrears.

How long before action can be taken in this situation?

If payments are stopped, this is likely to be in breach of the court order. At this stage there will most likely be maintenance arrears and enforcement proceedings can begin.

If payment is made through the CMS, then they will contact the ‘paying’ parent to find out why the payment has stopped and to arrange for it to be paid. They will then be given one week to comply.

What are the next steps?

This depends on whether there is a court order or a CMS assessment. If the maintenance was decided as a result of a court order, then you will need to go back to court. If it has been evaluated by the CMS, you will need to contact the CMS.

How common are such non-payment situations?

Unfortunately, in our experience non-payment occurs frequently – particularly in times of recession and financial strain, but also out of malice. However, there may also be a genuine reason for non-payment such as the payer losing his/her job.

Do you have any advice on preventing situations like this from escalating?

Maintain a sensible dialogue with the payer if at all possible, so that any issues can be discussed and solutions sought as they arise. However, we appreciate that this is not always possible.

If I owe maintenance and am in financial trouble – what do I do?  

Avoid burying your head in the sand and take advice immediately. This may include applying to vary the amount due to be paid and wipe out any arrears that may have built up.

Has your ex stopped paying you maintenance? What steps did you take? If you have any other questions about child maintenance that you would like answering, we’d like to hear from you so please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

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