Q:   When is a divorce decree not a Decree Absolute?
A:   When it is a Matrimonial Order! 

The Court rules alter from 6th April 2011.  These changes affect the steps to be taken before any proceedings can be issued to sort out disputes between couples concerning finances and children,  The procedures to deal with all aspects of a couples’ separation have not altered dramatically, although the terminology has!

For instance, what the lawyers usually refer to as “ancillary relief” (finances) becomes a ‘Financial Order’.  Although this may take a little getting used to (especially for the lawyers) this new wording should be easier to understand.

Contrary to reports in the press, separating couples do not have to go to mediation before the divorce proceedings can be issued.

The procedures for what we all know as ‘divorce proceedings’ will stay the same as they are now, and only the wording has changed.  For instance, what we have always referred to as a ‘Decree Absolute’ (bringing an end to a marriage) will now be known as a ‘Matrimonial Order’. 

Of course on the breakdown of a relationship there are inevitably other things to be considered as well.

These are usually arrangements for the children, and what will happen once you have separated; and also financial arrangements and assets.  These can sometimes prove to be the most complicated and challenging areas, for both the couples themselves and their lawyers.

Under the new rules, the main area of change is that before any proceedings can be issued relating to either children or finances, the parties themselves will have to attend meetings with a mediator (although there are some exceptions to this).  It is only if the mediator provides a certificate confirming that the case is not suitable for mediation that an application can then be made to the Court to deal with these aspects, and the Judge will then make a decision in those disputed areas.

After that initial session, mediation is not compulsory.  If either person, or the mediator decides at any stage that mediation cannot progress, the mediator will issue a certificate, and this is then sent to the Court by the lawyer with the necessary application.

Mediation will involve you both meeting with a trained mediator who may be able to assist in sorting out your difficulties.  If an agreement is reached you would both then have to go back to your respective lawyers, who will give advice on whether the agreement is appropriate, and if so that lawyer will  draw up an order setting out the financial arrangements, which is known as a ‘Consent Order’.  The Order will be sent to the Court for consideration by the Judge and once it has been approved and had a Court seal placed on it, it will be binding on you both.  A certificate from the mediator is not required in this instance.

The changes will not affect complicated cases involving domestic violence or child safety and mediation is not required in those circumstances. 

Of course, it may not always be necessary to issue Court proceedings, and for many  the Collaborative process may be the preferable alternative option.

Collaborative lawyers are trained to assist couples to reach solutions on any areas surrounding the breakdown of their relationship; marriage or civil partnerships.  This includes arrangements for the children and the divorce proceedings and finances.  If a couple sign up to this process, Court proceedings (other than divorce) cannot be issued unless the process breaks down.

Collaborative Law is in itself a form of mediation, although instead of a single mediator being involved, both parties appoint their own lawyers, who attend the meetings with them.

So, the choice is yours.  If you are going through an acrimonious separation the collaborative process is probably not the right way to go.  Mediation may not be either, but, the new rules state that a party must firstly explore that option and obtain a certificate before an application for orders regarding childrenor finances can be made.

Family lawyers will be able to advise you on the best course in any given situation, and although the rules are in their infancy we are all trained to a high degree and can give advice on all aspects surrounding a separation,  and to provide support at what is inevitably a very difficult and emotional time.

Sue Bradford F.inst.L.ex
Legal Executive and Collaborative Lawyer
www.bowerandbailey.co,uk


Article - March 2011 by Nichola Gough, Cotswold Family Law
ARE YOU SEPARATING? DO YOU HAVE CHILDREN?
IS A GOOD DIVORCE POSSIBLE?

When people separate they are generally going through enormous distress and anxiety, so how can it be in any way good? There is the point that although the process can be a very painful one, for some people they end up in a better place emotionally. The relationship, for whatever reason has not worked and moving on to be alone and comfortable with that, or to be with a new partner is often far better than staying in a difficult and possibly destructive relationship.

Nevertheless if there are children both parents will fear losing contact with the children. Often there is an assumption that the children will stay with their mother. But women still worry about losing their children in some way. The children may spend time with their father who, if he is the breadwinner, may have more resources to give the children a better time, or so the mother fears. So there is anxiety for both parents. Added to that, children will notice difficulties between the parents well before you think they do. So try and focus on the children as soon as possible and this may help to be able to work towards separating on better terms.

In order to separate better, to achieve if not a good at least a less awful divorce or separation, parents need to realise that if they can work together in relation to what is going to happen to the children, then neither of them will in any sense "lose" the children.

Collaborative law, whereby from the outset parents agree not to go to court and to do their best to cooperate, often sitting round a table together, to find solutions that best suit their particular situation must be a better way. Inevitably when parties separate there is less money, there is no solution which will enable the parties to be in exactly the same position financially as when together, you will inevitably be worse off financially. But that does not mean that solutions are impossible, there is generally a way to ensure one way or another, that both parents can be adequately rehoused, and in such a way that both parents can have the children staying with them.

Most importantly though, if parents can work together in relation to the arrangements for the children, both parents can then play a significant part in the rest of the children's lives. Every parent will want to be able to attend school events, university graduations, weddings and any other significant family event. You may not be best friends with your ex-partner, but it would be good to be able to attend those joint family occasions after you have separated.

So right from the outset there are a lot of good reasons to make a commitment to collaborate in some way. To work out with the help of collaborative lawyers, mediators or other advisers how to arrange your finances so that although you are living separately you can in a way you decide together co-parent the children for the rest of their lives. It has got to be worth making the effort from the outset to do this for yours and your children's sakes.

Nicky Gough
Collaborative Lawyer
www.cotswoldfamilylaw.co.uk


Article - Feb 2011 by Ann Barker, Spratt Endicott
NOT JUST FOR THE RICH AND FAMOUS!

When a Hollywood icon decides to marry, no one is at all surprised to hear that a pre-marital agreement is being drawn up by lawyers prior to the big day.  In some European countries, it is a matter of routine for people from all walks of life to enter into pre-marital agreements.

According to research, almost half of those questioned in this country would now like to see pre-marital agreements become legally binding.  Along with organising the venue, the caterers and the honeymoon, a visit to the lawyers could become part and parcel of planning wedding arrangements in the future!

Although recognised in some countries and despite recent indications in the press, pre-marital agreements are not presently binding and enforceable in this country.  Governments, keen to promote marriage, have historically viewed such agreements as contrary to public policy, on the basis that they focus on what would happen should a marriage breakdown.  

However, certain legal experts and interested organisations , including Resolution (the campaigning body representing family lawyers interests and advocating reform where required) are pressing the view that pre-marital agreements can promote stability, giving the parties more choice, encouraging them to take responsibility for their own lives in addressing financial issues before their marriage and potentially reducing the risk and cost of litigation should a divorce eventually happen.  The Government’s consultation document “Supporting Families” seems to suggest a change of attitude now however and although the document did not suggest that pre-marital agreements should become mandatory, they did recommend that they should be allowed if certain safeguards had been followed.  That view has been enforced by the recent decision in the high profile case of Radmacher –v- Granatino.

The landmark decision (as it is being hailed) in Radmacher –v- Granatino suggests that the Courts will now give decisive weight to the terms of a Pre-Marital Agreement, if it can be shown that both parties entered into the agreement freely, knowing what the terms of the agreement mean and intending it to be legally binding, unless the Court can be persuaded that the terms are now patently unfair.  The Collaborative Law process is ideal for making sure a Pre-Marital Agreement is entered into as required.

The Law Commission has recently been looking closely at this issue and has now released a consultation paper, seeking views regarding the future standing of Pre-Marital Agreements.  The Commission’s provisional proposal is that, for such agreements to be enforceable, both parties should receive legal and, if required, financial advice, the agreement should be in writing and full and frank disclosure must have been forthcoming from the party trying to enforce the agreement, when the agreement was made.  The proposal suggests that a Pre-Marital Agreement should not be binding if it fails to provide for the needs of any children of the family, or if the terms would leave one party reliant on State Benefits.

So for those contemplating the possibility of a pre-marital agreement, what is the best advice we family lawyers can give at present?

Firstly, such agreements should not be rushed. There needs to be careful planning, negotiation and advice.  Pre-marital agreements should not generally be made less than 21 days before the date of the marriage (so as to allow time for consideration without undue pressure).

Both parties should have provided full disclosure of their financial circumstances and should have received legal advice as to the implications of the terms that they wish to record.  Collaborative Law can provide a very suitable forum in which couples can do this.

Next, there should have been no duress by one party of the other and, finally, any such agreement should build in provision for regular reviews, particularly in the event that a child is born and perhaps, for example, in the event of redundancy or one party suffering permanent disability.

If there is no apparent injustice to either party and no unforeseen circumstances intervening such that it would make it unfair to hold one party to it, it seems likely then that the Court will find favour with the agreement. 

For the moment, Courts in this country retain the right to decide each case on an individual basis and the law does not prevent either party to the marriage from asking the Court to decide how their assets should be shared.  Pre-marital agreements are therefore of good evidential value at the very least and anyone wishing to consider this option should consult a specialist Family Lawyer.