Agreeing Holiday Arrangements for your Children when Separated

Agreeing Holiday Arrangements for your Children when Separated

Whilst children look forward to the summer holidays with fevered anticipation, it can be a source of stress for many parents, in particular in families where both parents have full time jobs outside of the home. It might seem that separated parents should be under less pressure as they arguably have two lots of holiday entitlements to give more cover to the 6 or 9 week break from school.

However the school holidays can set up a fresh set of problems for separated parents that can increase rather than reduce tensions in both households.

A source of stress for separated parents?

One of the issues that often comes in to play is what happens to a pre-existing visit or care pattern?  If a child spends every other weekend and one night each week with one parent in term time, does that carry on during the school holidays?  It may be clear that it needs to be suspended when one or other parent takes the child away on an actual holiday, but what about those weeks in between when little Johnny is at a holiday club or Grandma comes to stay to help out?

Frequently where there are court orders in place this has been anticipated and the order makes a demarcation between term time and holiday periods and the different arrangements for each.  If this is not the case, remembering that spending time with a parent is about what is right for the child and not the parent, it makes sense to look at the practical arrangements for cover and how the term time arrangements fit in (or complicate) those.

What is right for the child?

For some parents, the fact that collection and return happen at the beginning or end of the school day, can create real concern when the school is closed.  The answer is generally to find a neutral location where there are plenty of people about but that is relatively child friendly, so that the transition for your child in moving from one parent to another is as normal as possible.  If that is not feasible, then it may make sense to involve a third party to transport the children between the parents, especially if the frequency of handover is reduced during the summer because blocks of time are taken with each parent.

Leaving the country

I mentioned having an actual holiday with your child earlier.  Again this can be a minefield because, unless you hold a residence or “live with” order, you require the consent of the other parent to take a child out of England and Wales.  That parent can properly withhold their consent until they have full details as to the exact location of the holiday down to the address of the hotel or other base, details of flights and emergency contact numbers.  Sometimes this level of detail cannot be provided until the booking has actually been secured so there can be practical difficulties in tying the pieces together in a workable fashion.  Again it is good to remember that both parents want their children to have a good time and so flexibility over provision of this information can be really helpful – but should not be abused or there will be a lack of trust the following year.  Some court orders provide that holiday plans are provided by a set date much earlier in the year, enabling parents to try to book ahead and save money and this is a good practice to follow.

Communication and compromise

A lot of these issues centre around communication and frequently the Judges or CAFCASS officers seem to believe that just instructing separated parents to improve communication will sort out all the problems.  That does not recognise that poor communication is not always two sided or that sometimes well meaning messages are misconstrued.  It is helpful to have planned ahead, not least so if there is an insurmountable problem there is enough time to take the matter to a mediator or, if really necessary to a Judge, for resolution. 

Often addressing the issues at mediation or in court will mean there is then a plan in place, a template for future summers.  However children grow up and what works for children when they are 6 and 7 is not what they want when they are 13 or 14.  One of the skills of being a parent is to balance what a child says he or she wants with what will be of most benefit to them, but as this can be very subjective it is also something parents can disagree on.  One parent may favour a football training academy for two weeks of the holiday; the other may feel that downtime with family will refresh the child for the academic year ahead. The solution here is compromise and this is the mantra handed down by Judge and mediators alike.

Sitting down with the other parent, either with your respective lawyers or with a mediator is the common sense way to resolve any of the issues identified above and has the benefit of a clear record being created of what has been agreed, which will hopefully mean the same issues do not need to be revisited next year.

Did you consider your spouse’s pension when you divorced?

Did you consider your spouse’s pension when you divorced?

Pensions are something at the front of everyone’s mind nowadays, because of auto enrolment and press coverage of large company pension schemes. This is a brief outline of when pension orders came into being and what is currently possible.

If you started your divorce before December 2000, it was not possible to take a share of one spouse’s (usually the husband’s) pension fund as this was not provided for in the statute that governs financial claims on divorce – the Matrimonial Causes Act 1973.

Pension Earmarking Orders

Initially pension earmarking orders were introduced, which directed the pension fund trustees to pay a proportion of the member’s pension as income to the former spouse. This had difficulties though, as it did not survive the death of the member nor the remarriage of the receiving former spouse. It also meant that the member spouse could unreasonably delay their retirement to prevent pension income flowing through them to their former spouse.

Pension Sharing Orders

These difficulties were resolved by the introduction of pension sharing orders. Earmarking still exists, although re-branded as attachment orders, and there are some rare cases where that is the right option but, for the majority of people, if the pension fund is large enough then a pension sharing order is the right option.

A pension share has to be taken as a pension and, subject to the agreement of the pension fund itself, can be held within the original scheme or transferred out to a scheme of the recipient spouse’s own choice. It is then accessed by them in accordance with their scheme rules and is not affected by what happens to the fund it was carved out of, or by decisions taken by the original pension holder.

It remains with the recipient former spouse despite (her) remarriage or the death of the other spouse.

Differences between schemes

There can be differences, particularly in public sector schemes, as to the date on which the original member and the former spouse can access their benefits, and the early access rules for police and members of the Armed Forces are not carried across to their former spouses’ funds.

It is very difficult to conclude a financial agreement within a divorce without being aware of what pension each spouse holds. This is because any agreed order that is put before the court for approval by a judge has to have with it a document that summaries the financial position of each spouse. The form is in a prescribed format and has a specific box for pension provision.

Sometimes a deal may be struck which involves offsetting pension claims against other assets, effectively trading the money they could receive from a pension and taking it in some other asset, usually a house. This can be a sensible step for many spouses who still have children at home, to secure ownership of the house outright rather than having part of a house and part of a pension fund which, remember, they can only access on their own retirement.

Divorce without legal advice

But it is the case that many people simply divorce and manage the paperwork for that without seeking any advice from lawyers. They sell their jointly owned house and divide the proceeds. They use the child support calculation to work out what should be paid for their children and they leave it at that. Pensions are not discussed and are completely overlooked.

Financial claims are not extinguished by decree absolute (final divorce order)

Any couple in that position still have claims that they each can bring against the other. Financial claims are not extinguished by a final divorce order (formerly a decree absolute) and can still be pursued (but check with a lawyer if you have remarried). We know of cases where pensions are being looked at 18 years after the parties divorced even though, at that time, both probably thought that was the end of matters.

So if you did not think about pensions when you divorced, particularly if your divorce was after December 2000, you should speak to a lawyer to find out if this was something you should have looked at and whether it would be right for anything to be done about it now.

Divorce & Family: What to Expect at Your Initial Legal Consultation

Divorce & Family: What to Expect at Your Initial Legal Consultation

The aim of the initial consultation is to clearly explain what lies ahead and the options open to you. The consultation will be by phone or video call. We will discuss your objectives, and help you decide how you want to achieve them.

We suggest you prepare a list of questions and issues that you would like to discuss, to make the most of your initial appointment.

The consultation will focus on the needs of your particular situation and will include where appropriate advice on:

  • Options for Resolving Your Claims
  • Financial Disclosure
  • Potential Outcomes
  • Arrangements for Children

Options for Resolving Your Claims

We will discuss the various options open to you to bring about a resolution to the financial claims that arise when a relationship breaks down. At the initial meeting our solicitors will explain the options for dispute resolution, including all aspects of alternative dispute resolution such as mediation and collaborative-based approaches.

We will take you through the pros and cons of each option, discussing how they may fit your circumstances. You will then be able to make an informed choice about which will work best for you.

What to expect at your initial divorce legal consultation

Financial Disclosure

It will be useful if you were in a position to provide an overview of your financial situation. A preliminary understanding of your financial position will allow our solicitors to assess issues around asset and income division, current and future. If there is a prenuptial or postnuptial agreement, bring this along. Similarly, if you have a pension, bring along any information you may have.

Please only bring along your own financial paperwork, because your solicitor cannot deal with the financial papers relating to your ex-partner.

Potential Outcomes

With the benefit of the financial information and background you supply, our solicitors can explain to you how the courts would approach the division of assets, and the sorts of Financial Orders that can be made.

Understanding the potential outcomes will put you in a better position to secure a suitable financial settlement.

Arrangements for Children

If you want to discuss arrangements for your children, our solicitors will advise you as to the law and the best way to approach organising arrangements for your children.

How does the Court deal with a family business on divorce?

How does the Court deal with a family business on divorce?

A family business in divorce cases can be something of a Pandora’s box best left unopened or the golden goose of the marriage. The existence of family business assets tends to complicate divorce proceedings. Those running the business are anxious to know how the Court will treat their business and their other half of course wants to know if they are entitled to a share of the ‘business’ and if not why not?

How the Court will treat the family business will depend upon its make up (sole trader, partnership, limited company, trust) but a major factor is the amount and type of wealth which arises from the business.

Family businesses and small companies

The small family business run by one or both spouses is unlikely to be of significant capital value. Its value will lie in providing an income stream both during the marriage and beyond when the parties have gone their separate ways. There is good law to say that obtaining expensive accountants’ valuations for such businesses would be a waste of time and money. The reason is that this type of business will tend to have no intrinsic value beyond what cash there is in the bank and the value of fixtures and fittings.

A similar approach is adopted with small private companies. The difficulty of giving any weight and realising shares in a private company presents a real problem. You have to ask three fundamental questions:

  1. Does the company have any intrinsic value?
  2. How should that value be measured?
  3. Can or should that value be realised?

The reality is that a number of these companies are simply the alter ego of the person who is running them and, if they decided to cut their losses and head for a more contemplative life in the hills, would the company they leave behind be worth anything?  The likely answer is ‘ no’. Shares, like any other commodity, are only worth what someone else is willing to pay for them. Valuing shares in a private company is something of an art rather than a precise science.

Higher value companies

It can be most difficult to achieve a fair result when a significant slice of the family wealth is within a company. This problem was faced by the Court in the case of Well v Wells (2002). A range of values for the company were obtained. The Judge was unable to put a value on the company as he found that all of the valuations contained flaws. The other assets of the marriage were £1.9 million. The Judge left the wife with £1.3 million including the matrimonial home and £250,000 in cash. The husband retained his shares in the company, the remaining capital and his pension. The husband appealed and the Court of Appeal said it was wrong for the wife to retain a large slice of the ‘copper bottomed assets’ and the husband to have the more risk-laden assets. The Court increased the husband’s share of the liquid capital by £200,000 and gave the wife the option to come back to court if the husband sold his shares within five years. The court emphasised that this was a fairer division of the assets whether they be risk-laden or more concrete in nature. Interestingly, the Court also emphasised that achieving fairness is more attainable where there are to be ongoing maintenance payments paid to the non owning spouse.

A difficult question which can arise is that – if a company is to be treated simply as an income-producing asset, but of which the non-owning spouse will benefit by way of maintenance – is it worthwhile in going to the expense of a valuation? The answer is probably ‘yes’ (a) where the shareholding is significant or (b) where there may be surplus assets within the company. The Court will need to know what all of the assets of the marriage are worth to enable a judge to exercise his discretion properly and to try and achieve a fair result for both parties. It would be an anomaly to know the value of the other assets of the marriage except the family company even if that value turns out to be rather negligible.

Like Pandora’s box until the company’s lid is fully open one will not know what lies within.

Property ownership for cohabitees – common myths

Property ownership for cohabitees – common myths

A number of people to whom we speak initially have misconceptions about their legal rights in property when they are cohabiting rather than married.

Disregard entirely the law relating to marital breakdown

The following are the principle misconceptions many people hold and need to be corrected:

  1. There is no legal concept in English law of a common law man and wife. It does not matter how long you have lived together through thick and thin – it will not mean that you will acquire any more legal rights.
  2. If the house that you share is bought in one party’s name only, you will not acquire an interest in the property if you simply pay the utility bills or do some decorating or similar tasks around the house.
  3. If the house is bought in joint names this does not necessarily mean an equal division – it depends on how you bought the house.  A key question here is are you tenants in common or joint tenants?
  4. If one party contributes more to the purchase of the property than the other but it goes into joint names as joint tenants then you are not entitled to claim back the money you initially invested first and then split the equity equally. This means you may lose for example your initial deposit. This often comes as a big shock to one or both of the parties.
  5. If there are children of the relationship, this does not necessarily mean that the primary carer gets to stay in the house.
  6. It is not correct that maintenance can be claimed as of right from the other party, apart from child maintenance.
  7. It is not correct that a partner has a claim over any other assets of the other, unless those assets are in joint names or a direct financial contribution has been made.
  8. It is not true that if one partner dies the other automatically inherits, unless the deceased has made a Will naming them as a beneficiary. In the absence of a Will and under the rules of intestacy the surviving partner is not recognised as one of the categories of beneficiaries (although they may be able to make a claim under inheritance laws).
  9. Finally, disregard entirely the law relating to marital breakdown. There is no concept that everything you have is put into the pot to be divided using the principles of fairness and need (as is the case for married couples – see Finance Provision in Divorce Cases).

Take action just in case the rot sets in

This no doubt all sounds pretty grim to those of you who are living in a property with your other half which is in their name. You may have children and be the main carer and only work part time. See When Cohabiting Couples Separate.