Saturday 31 May 2008

Children

The Welfare Principle must be considered by a court when making an order in regards to a child: “The childs welfare is paramount consideration” (s1 (1)).

The Statutory Checklist under section 1(3) of the Children Act 1989 the court must have regard in particular to:-

  1. The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  2. His physical, emotional and educational needs
  3. The likely effect of any change in his circumstances
  4. His age, sex, background and any characteristics of his which the court considers relevant
  5. Any harm which he has suffered or is at risk of suffering
  6. How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
  7. The range of powers available to the court under this Act in the proceedings in question.

Parental Responsibility (PR): all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property (s3 (1) CA 1989). It gives the parent responsibility for taking all the important decisions in the childs life. However ‘parental authority ceases in respect of any aspect of a childs upbringing about which the child himself is sufficiently mature to make decisions for himself’ (Gillick v West Norfolk & Wisbech Area Health Authority [1986]).

Section 8 orders usually made in respect of children are:

  • Residence Order: Settles with whom a child shall live. Usually with someone who has PR, but can be made to a non-parent which will automatically grant them PR for as long as the residence order is in affect (s12, CA 1989). A residence order can be made to more than one party (shared residence) where the court will specify the number of weeks and holidays the child spends with a particular parent. HOWEVER they court shall only do this where it is within the welfare of the child to do so.
    • The RO provides the child cannot be known by any new surname without: (1) written consent from everyone with PR, or (2) permission from the court.
    • Also where a RO is in force no one can remove the child from the UK for longer than a month without either: (1) written consent of everyone with PR, or (2) leave from the court.
    • Breach of a RO is contempt of court and an offence under the Child Abduction Act 1984.

  • Consent Order: Requires the person with whom the child lives to allow child to have contact with person named in the order. There is a presumption in favour of the child having contact with both parents unless there’s a good reason NOT to. Courts will look at circumstances to determine the level, frequency and duration of contact or even left as ‘reasonable contact’ to allow the parties to decide themselves. ALTHO a contact order can also be made to prevent contact with someone (Nottinghamshire County Council v P [1993]) alternatively this also be achieved by a prohibited steps order.
    • Where there has been violence, the court mist consider: (1) the past and present conduct of both parties, (2) the effect of the violence on the child and the residential parent, (3) the motivation of the parent seeking contact and (4) in cases of serious domestic violence, the ability of the offending parent to recognise his past conduct and be aware of the need to change & make a genuine effort (Re K (Contact: Mothers Anxiety) (1999)).
    • Violence usually establish by holding a fact finding hearing; which once decided can not be disputed.

  • Prohibited Steps Order: directs that a certain step which would otherwise be exercised in PR shall not be taken by that person without the permission of the court. The prohibited action must be specified in the order. Prohibited steps order is limited to matters which come within PR.
  • Specific Issue Order: gives directions in order to determine a specific question or to resolve a specific dispute over exercising PR. Usually used to settle arguments over:
    • School child should attend.
    • Medical treatment child is to receive.
    • Religious upbringing.

The ‘no order’ presumption under s 1 (5) of the CA 1989:

The Court shall not make any order… unless it considers that so doing would be better for the child than making no order.”

Disposal of assets

Preventing the disposal of assets: possible to seek injunction under s37 (2) (a) Matrimonial Causes Act 1973 preventing a party from disposing of property. Although it’s usually easier to protect it by registering a matrimonial home right (s30 Family Law Act 1996).
For a s37 injunction, an application for financial relief under MCA 1973 (for limp sums/property adjustment order) is required. Granting an injunction if other party is about to make a disposition with intent of defeating the claim for financial relief or by impeding its enforcement.

If the disposition is already made, under s37 (2) (b) a court can set aside the disposition unless made to a bona fide purchaser.

Matrimonial home rights (s30 FLA 1996) protect a non-owning spouse against eviction from the matrimonial home. Which terminate upon the death of the owning spouse, unless directed by the court to continue beyond this even (s33 (5) FLA). Matrimonial home rights should be registered thereby binding any subsequent buyer.
A search by Index Map search @ Land Registry will reveal if the property is registered at which point an “agreed notice” should be placed on the register. If unregistered a Class F land charge should be registered against the name of the owning spouse.
Under s30(3) FLA a lender is obliged to accept payment from a non-owning spouse (also applies to rent payments). Once the matrimonial home rights have been registered they are binding on trustee in bankruptcy and on creditors. Although the trustee may apply to the court to have these rights terminated.

Pending Land Action: can be done once proceedings have commenced in relation to property. A request for a property adjustment order in the prayer of the petition is effective beyond the termination of marriage.
REGISTERED LAND – Unilateral notice in the proprietorship register.

  1. Check to see if its registered via an Index Map Search.
  2. Register an agreed notice in the Charges Register.

UNREGISTERED LAND – Registering a pending action against the name of the owning spouse. This prevents new deals with the property taking place without the non-owning spouse finding out.

Monday 26 May 2008

Cohabiting Family

Couple who live together without getting married or entering into a civil partnership are cohabitants.

Occupation order by cohabitants maybe brought under s36, where the respondent is entitled to occupy the home (by virtue of a beneficial estate/interest, contract or by statue). The home must be or have been intended to be the couples home.

Once granted s36 (13) provides that the applicant is provided the same protection as a spouse under s30 (3)-(6). Therefore any landlord or mortgagee must accept payment towards the mortgage or rent.

On the break up neither party is entitled to claim or maintenance, lump sums or a property adjustment order. Maintenance can however be claimed for any children of the relationship.

In a dispute over ownership/occupation of the home it’s possible to seek a declaration of ownership under s14 of the Trust of Land and Appointment of Trustee Act 1996 (TLATA).

Jointly owned property intentions to ownership should be clear from deeds. Either can apply for an order of sale under s14 of TLATA 1996. Proceeds divided equally among parties.

Legal estate in one name only: the other party will have establish a claim in equity; by establishing a resulting or constructive trust or by proprietary estoppel. If successful non-legal owner will be entitled to a share in the property as determined by the court. Interests based on direct contributions i.e. to the purchase price have been dealt with under resulting trusts! Interests based on wider equitable principles i.e. because its just and equitable are clearly just and equitable are clearly constructive trusts or proprietary estoppel.

Section 14 and 15 of TLATA 1996 gives the court powers to deal with disputes of land subject to trust. Section 14 gives the court power to make an order that reflects the underlying nature and purpose of the trust. Section 15 sets out things the court must take into account:

  1. Intentions of persons(s) who created the trust.
  2. The purpose for which the property is held.
  3. The welfare of any minor who occupies or may reasonably be expected to occupy trusts property as his home.
  4. The interests of any secured creditors (mortgagee).

The court must also take into consideration: if she can maintain the property itself and afford to pay bills and mortgage etc. If not the court may also order a sale of the property.

Sunday 25 May 2008

Divorce Law and Procedure

A petition for divorce can not be presented before a period of one year from the date of marriage (s3, MCA 1973). In order to discourage over hasty decisions to end a marriage. The English courts have jurisdiction to hear a divorce suit only where both parties are habitually resident & domicile in the England and Wales.
However a solicitor should also bear in mind the alternative solutions to protect a client during the first year: a decree of nullity or judicial separation is NOT affected by the one year rule.

Grounds for Divorce
Irretrievable breakdown of marriages1 (4), MCA 1973. In order to prove the petitioner must satisfy one or more of the requirements under s1 (2) MCA 1973:

s1 (2) (a) adultery and petitioner finds it intolerable to live with the R. The two elements require to prove this is:

  1. (i) adultery.
  2. (ii) Intolerability.

You can only commit adultery with a member of the opposite sex and therefore does NOT apply to Civil Partnerships. The test for Intolerability is subjective: applicant need only be convince the court that the applicant finds it intolerable to live with the respondent. Which is usually sent as an assertion in an affidavit. With cohabitation: applicant can’t rely on adultery if the parties cohabit for a period of 6 month from the date of discovery of the adultery (s2 (1) MCA 1973). This allows the parties a chance to reconcile.

S1 (2) (b) behaviour: respondent behaved in such a manner that the petitioner cannot reasonable be expected to live with the respondent. Objective test: ‘cannot reasonable be expected to live with R’. Court must make a judgement about R behaviour. Taking into account the history of the marriage as well as personalities.
In an undefended case the court will look for 3/6 examples of behaviour (his first, worst & last) i.e. physical violence, verbal abuse (inc insults, threats, nagging), demanding sexual intercourse too often or not agreeing to intercourse at all. Cruelty, failure to provide money for food, affection or attention.
Merely falling out of love or being incompatible will NOT be sufficient.

S1 (2) (c) desertion: the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the petition. There must be an intention to desert and bring the union to an end. The petitioner must NOT have agreed or consented to the separation. Nor must the respondent have had just cause to leave. And the leave must be continuous.

S1 (2) (d) two years separation with consent: parties lived apart for a continuous period of at least 2 years and respondent consents. Elements required (1) Separation (2) respondents consent.
A separation of the spouses living apart or living completely separate lives. A mental element requires spouses to regard the marriage as a mere shell and never intending to live with the other spouse.
Consent of the respondent must be acquired. Preferably in writing or given at the hearing to the district judge signed. Usually given in the acknowledgement of service form returned by the respondent. Respondent can withdraw consent at any time before decree nisi. However even after the decree nisi the respondent may withdraw consent by application to the court, who can rescind the decree if they are satisfied applicant misled the respondent.
Cohabitation of up to 6 months can be disregarded.

S1 (2) (e) 5 years separation: parties lived apart for a continuous period of at least 5 years. No need to obtain applicants consent. No defence except to deny separation or prove grave hardship under s5 MCA 1973. But maybe delayed to consider respondents financial position.
Grave hardship: dissolution of marriage would result in grave financial hardship to the respondent and maybe wrong to dissolve marriage.

Nullity is a declaration that a marriage is either void from the outset or voidable in which case its valid until the decree is obtained. Not effected by the one year rule. A marriage will be void in situations which inc:
a) Where the parties too closely related.
b) Either party was under 16yrs at the time of the ceremony.
c) Either party was already lawfully married (s11, MCA 1973).
If a marriage is void, it never existed.

Service of Petition: must be served on the respondent. Method of service usually by post, including copy of:

  1. A notice of proceedings (M5) general exp of divorce procedure.
  2. An acknowledgement of service (M6) proof of service.
  3. A copy of the statement of arrangement for the children (M4) attached to respondent copy of petition.

Alternative Method

  • Personal service by court bailiffs. Usually for a small fee + inc a small description/photo. Bailiffs serve the document personally and file a certificate of service. Which can be used as evidence of service if the acknowledgement is NOT filed by the respondent.
  • Service through the petitioner (r2.9 (2) (6)) a process server is instructed or the petitioner’s solicitor.

Saturday 24 May 2008

Funding In Family Law Cases

A solicitor can not enter a conditional fee agreement with a client in relation to family proceedings. However public funding maybe available where the clients of modest means. Section 8 of The Access to Justice Act 1999 establishes the funding code for funding individual cases.

Effect of public funding: to serve immediate notice upon the court and other parties the original public funding certificate. As a result the solicitor owes duties to the Legal Service Commission and must report any acts of unreasonableness by the client. Duty to LSC overrides the solicitor’s usual duty of confidentiality.

Statutory Charge: Where services have been funded by the commission this should be considered as a loan to the funded person. They will have to repay it through contributions from capital or disposable income. Applies where property is recovered or preserved.
It does NOT apply in the following cases:

  • Where you do not gain/reap money or property in dispute.
  • Where you recover all your costs from the other side.
  • To maintenance payments.
  • To the first 2,500 or 3,000 of any money/property you gain.
  • Where you’re being advised by a solicitor while attending family mediation (req ‘Help with Mediation’ certificate).
  • Advice given under “Legal Help”.

Sears Tooth Agreement- An agreement to assign any awards for financial relief to the firm in order to pay their fees.

Maintenance Pending suit: a court awarding a sum of maintenance pending suit at such a level as to include money for legal fee’s. However this is usually a last resort.

Lump Sum Orders can be made as an additional instalment to provide the other party with funds from which they can pay legal fees in anticipation of future litigation.

Bank loans: borrowing money in order to meet legal fees. However there will be conditions attached to such a loan and will vary from one bank to another (i.e. where the client can offer security or a favourable opinion from counsel on the outcome of litigation).

Useful Forms:
CLS APP3-Application for CLS funding Certificate: General Family Help.
CLS APP5-Application for CLS Funding Certificate: Special Children Act Proceedings.
CLS APP7-Applicationm for General Family Help and Legal Representations in Family Proceedings.
Controlled work 1 form: Application for CLS Funding Certificate for legal help and help at court.

Friday 23 May 2008

Domestic Abuse

Generally covers cases of personal violence, threats, intimidation and harassment. Court Action is not the only remedy, a solicitor letter warning the perpetrator to desist from his behaviour or face court action may act as a deterrent.

Under FLA 1996 there are two types of orders available:

a) Non-molestation order (s42): for the protection of parties and children. Prohibits the respondent from molesting the applicant or a child. Also covers pestering and harassment. Can be granted on application by any associated person or a free standing applicant. S42 (5) specifies the court needs to consider the health safety and well-being of the applicant and any child. An order will be granted if the applicant can show a genuine need for protection. Orders can be made for specific period or until further orders/indefinite s42 (7).

b) Occupation orders (s33 and 35-38): excludes the other part from occupation of the home/specified area. Both spouses and cohabitants can apply. ‘Associated persons’ are defined under s62. Under s33 an applicant has an existing right to occupy the home if she is entitled to occupy by virtue of a beneficial estate, interest, contract statutory entitlement. The home must have been intended to be the home of the applicant and the person with whom she associated (Resp). Where the above requirement is met, the applicant can apply for an occupation order which may:

  • Require the resp to allow the applicant to enter and remain in the home or part of the home.
  • Regulate the occupation of the home by either or both parties.
  • Prohibit, suspend, restrict the respondent exercise of his right to occupy the home.
  • Require the respondent to leave the home.
  • Exclude the respondent from a defined area.

Factors the court must consider (s33(6)) including circumstances:

  1. Housing needs and resources of the parties and any child.
  2. The financial resources of the parities.
  3. The likely effect of making an order or not making an order on the health, safety of the parties and child.
  4. The conduct of the parties.

S33 (6) is subject to the ‘balance of harm’ test: an order shall be granted where it appears the applicant or any child is likely to suffer significant harm attributed to the respondent conduct, unless:

  • The respondent or a child is likely to suffer significant harm if the order is made; and
  • The harm suffered by the respondent or child is greater or greater than the harm suffered by the applicant.

Emergency Application (s45) under FLA 1996 makes it possible to protect the applicant either on the same day or the day after. Allowing the court to make both non-molestation and occupation order without notice to the respondent. Where it considers it to be ‘just and convenient’. Taking into account:

  • Risk of significant harm to applicant if order not made immediately.
  • Likelyhood of applicant being deterred/prevented from making an application if order not made immediately.
  • Whether there is a reason to believe respondent is avoiding service and delay will prejudice applicant.

The courts are generally reluctant to grant orders where the respondent has been given no notice.

NOTE: ANY ORDER MADE WITHOUT NOTICE IS TEMPORARY, THE SOLICITOR MUST OBTAIN A HEARING DATE FOR FINAL

Undertaking (s46): a full hearing can be avoided by the respondent giving an undertaking, i.e. a promise to the court. The applicant often accepted the undertaking since it was made voluntarily & therefore more likely to be complied with.

However the court will not accept an undertaking on an application for a non-molestation order where the respondent has previous used or threatened violence.

Procedure: Under part IV of the FLA 1996 solicitor can bring an application either at the family proceedings court can not deal with cases where there is a dispute order applicant right to occupy the house (s59). This can only be deal with at the county court. But only in divorce county court or family hearing centres. Any application made by an under 18 must be commenced at the High Court.

Note: Occupation orders can’t be dealt with by the Family Proceedings Court.

Obtaining a non-molestation, occupation order without notice:

  • Grant Emergency Legal Representation but only if applicant or child is in immediate danger of significant or imminent danger. Before application will be brought before the court.
  • Telephone the court to make an appointment before the judge/magistrate if necessary.
  • Telephone a process server to attend court to serve it on the respondent.
  • Draft a FORM FL401 & a statement detailing the respondents behaviour and both parties housing & financial needs. Why without notice?

Obtaining a non-molestation or an occupation order on notice

  • Grant Emergency Legal Representation.
  • Draft a FORM FL401 & a statement detailing the respondents behaviour and both parties housing & financial needs. Sworn to be true. Notice of issue of Legal Representation. Where the application is ancillary to a divorce under Legal Help, a notice of acting must be included.
  • File the application in duplicate.
  • On filing the court fixes a hearing date which will be inserted in a notice of proceedings (FL402). The respondent must be given two clear days notice of this date.
  • Prepare the draft order(s)required on FORM FL404 or FORM FL404a.