Digital Divorce Application Process Rolled Out

A fully digital divorce application process has now been rolled out across England and Wales from 1st May 2018.

The online service offers prompts and guidance to assist people in completing their application, and uses clear, non-technical language. The whole process can be completed online, including payment and uploading supporting evidence.

During the testing phase conducted before the full roll out, more than 1,000 petitions were issued through the new system, with 91% of people saying they were satisfied with the service.

Court staff currently spend 13,000 hours dealing with complex paper divorce forms, but this simpler and less technical online service has already contributed to a 95% drop in the number of applications being returned because of mistakes, when compared with paper forms. This means only 0.6% of forms have been rejected since January.

“Allowing divorce applications to be made online will help make sure we are best supporting people going through an often difficult and painful time,” commented Justice Minister Lucy Frazer.

“More people will have the option of moving from paper-based processes to online systems which will cut waste, speed up services which can be safely expedited, and otherwise better fit with modern day life,” she added.

These changes are part of £1 billion programme to transform the court system – making it quicker, more accessible and easier to use for all. Other examples of the Government’s court reforms include:

  • A digital system which makes it quicker and easier for people to claim money owed, resolve disputes out of court and access mediation.
  • A new service which allows people to submit their tax appeals online – drastically cutting the number of applications being returned as incomplete or inaccurate.

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Court of Justice Considers Grandmother’s Right of Access to Grandchild

An Advocate General of the Court of Justice of the European Union has given his opinion in a case concerning the rights of grandparents to see their grandchildren.

The case in question concerned a grandmother, Ms Valcheva, who is a Bulgarian national. Her grandson was born in 2002, and since his parents’ divorce he has been habitually resident in Greece, where he lives with his father who is a Greek national.

Grandmother Seeks Access to Grandson

Ms Valcheva wishes to maintain a relationship with her grandson and sought to obtain rights of access. However, she was unsuccessful in her attempts to establish quality contact with her grandson and did not receive any support from the Greek authorities. She therefore applied to the Bulgarian courts for a determination of arrangements for her to exercise rights of access to her grandson. The access she requested consisted of seeing her grandson one weekend each month and that he come and stay with her at her home in Bulgaria for two or three weeks during his holidays.

National Courts Dismiss Case

Her application was dismissed by the Bulgarian courts of first instance and also the appeal court on the basis of lack of jurisdiction on the ground that an EU Regulation (Brussels IIa Regulation) provides for the jurisdiction of the courts of the Member State in which the child has his habitual residence i.e. Greece.

Ms Valcheva then took her case to Bulgaria’s Supreme Court, which has taken the view that in order to determine which country’s court has jurisdiction, it is essential to ascertain whether or not the Brussels IIa Regulation applies to the rights of access of grandparents. The case was referred to the Court of Justice for a ruling on this question.

Advocate General Gives Opinion

Advocate General Szpunar has now given his opinion on the matter. He notes that his analysis has been guided by the principle that the best interests of the child come first, which is of fundamental importance under the Brussels IIa Regulation.

He also notes that if applications for rights of access by persons other than parents are to be excluded from the scope of the Brussels IIa Regulation, jurisdiction in respect of such applications would be determined by non-harmonised national rules. The risk of bringing the dispute before a court the child has no close link to, and the likelihood of parallel proceedings and irreconcilable decisions would increase, contrary to the purpose of the Brussels IIa Regulation, which aims to lay down uniform rules of jurisdiction in accordance with the principle of proximity in judicial proceedings.

The Advocate General also looked at relevant international instruments such as the 1996 Hague Convention, noting that they adopt a broad concept of rights of access, thus supporting the integration of ties between near relatives, which can play a considerable part in family life.

He concluded that the concept of rights of access includes persons other than parents, since those persons have family ties to the child based on law or on fact.

He has therefore proposed the Court of Justice rules that in matters of parental responsibility rights of access include the rights of access of grandparents

It is important to note that the Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court will deliberate the case and give their judgment at a later date.

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Appeal Judges Rule Against Life-Long Maintenance Payments

In what has been described as a ‘landmark decision’, judges at the Appeal Court in London have upheld a man’s appeal against the requirement to pay life-long maintenance to his ex-wife, reports the Daily Mail.

Kim and William Waggott separated in 2012 after 21 years of marriage, and had one child together. At a divorce hearing in 2014, Mrs Waggott was awarded around £10 million in cash and assets plus annual maintenance payments from her ex-husband of £175,000, which were to be payable for life.

She was not happy with this settlement and subsequently went back to court to try and get her annual payments increased by £23,000.

However, her husband lodged an appeal against the original decision, claiming that the court had been wrong to award his ex-wife life-long payments. He argued that this meant there was no financial motivation for her to ever return to work, whereas he would have to continue to work hard in a demanding job.

The Appeal Court judges have now found in Mr Waggott’s favour, ruling that the annual maintenance payments should only be paid for three more years so as to allow Mr Waggott to achieve a ‘clean break’ from his former wife.

Lord Justice Moylan said that if Mrs Waggott invested part of her settlement she should be able to live off the interest, and if this didn’t provide sufficient income she was capable of finding employment and earning additional income.

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Couples in Dispute over Divorce Jurisdictions

When couples who live an international life-style take the decision to separate, the question of which county’s court system should hear their divorce can sometimes become hotly contested.

Less Wealthy Spouses Favour English Courts

Couples who own properties in several different countries will sometimes be able to choose which of these countries they would like to file for divorce in, however couples won’t always be in agreement over this decision, particularly where there is a significant difference in wealth between the parties.

When it comes to financial settlements on divorce, the family law system in England is generally seen to allow for more generous settlements and therefore is often the divorce destination of choice for the less wealthy spouse. At the same time, and for obvious reasons, the spouse with comparatively more assets is usually keen to avoid the English courts.

Couple Argues over English and Scottish Jurisdictions

One wealthy couple currently in dispute over jurisdictions is Charles and Emma Villiers, reports the Daily Mail.

They lived in Scotland for most of their married life, but after the relationship broke down Mrs Villiers moved to London. In 2014 Mr Villiers, who is thought to have assets amounting to around £5 million, filed for divorce in Scotland, but several months later Mrs Villiers submitted an application for financial maintenance in England, seeking £10,000 month.

In 2016 a court ruling found that because Mrs Villiers was now ‘habitually resident’ in England, she had the right to have her settlement application heard in the English courts. She was awarded £5,500 a month as an interim measure until a full hearing on her settlement entitlement could be heard.

Mr Villiers has now challenged that decision, claiming that it should be up to the Scottish courts to decide on the financial settlement, as that is where the divorce has been filed.

However, Mrs Villiers has argued that under EU law the question of maintenance is separate from the divorce itself, and doesn’t have to be settled under the same jurisdiction. She maintains that there is therefore no reason why her financial settlement claim can’t be settled in England, even though the divorce itself is being processed in Scotland.

Husband Challenges Divorce Decision

A second couple currently in dispute over whether England is the appropriate jurisdiction to hear their divorce is Una Kelly and John Pyres, reports the Evening Standard.

The couple owns properties in London, Brussels and Italy. Ms Kelly was apparently born in England but most of her childhood was spent in Ireland. Mr Pyres was born in India, and also lived briefly in England, but now considers Italy to be his true home. The couple most recently lived together in Bosnia, which is where Mr Pyres thinks their divorce should be heard. However, Ms Kelly wants the divorce to be heard in England, and has been given permission by the courts to proceed with her application.

Mr Pyres has challenged this decision, claiming that his wife never saw England as her permanent home. However, Ms Kelly told the Appeal Court in support of her claim that she views their property in London as her home and that she plans to live in England when she retires.

We await the outcome of both these cases with interest.

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Statistics Reveal Fall in Marriage Numbers

The Office for National Statistics has published its Marriages in England and Wales: 2015 bulletin, which gives details on the number of marriages that took place in England and Wales analysed by age, sex, previous marital status and civil or religious ceremony.

Key statistics revealed in the report include:

  • There were 239,020 marriages between opposite-sex couples in 2015, a decrease of 3.4% from 2014 when there 247,372 marriages, and 0.8% lower than in 2013.
  • Marriage rates for opposite-sex couples in 2015 were the lowest on record, with 21.7 marriages per thousand unmarried men and 19.8 marriages per thousand unmarried women.
  • Compared with 2005, marriage rates for opposite-sex couples marrying in 2015 were lower at all ages, except for men aged 65 and over and women aged 55 and over, where marriage rates increased.
  • In 2015 there were 6,493 marriages between same-sex couples, 56% were between female couples; a further 9,156 same-sex couples converted their civil partnership into a marriage.
  • In 2015, civil ceremonies among opposite-sex couples decreased by 1.6%, while religious ceremonies decreased by 8.0% compared with 2014.
  • In 2015, of all individuals marrying a same-sex partner, 85% were forming their first legally recognised partnership compared with 76% for opposite-sex couples.

“Marriage rates for opposite-sex couples are now at their lowest level on record following a gradual long-term decline since the early 1970s,” commented an ONS spokesperson. “The number of marriages between opposite-sex couples decreased by 3.4% in 2015, compared with 2014.”

“Despite this overall decline, marriages at older ages rose; the number of weddings increased for men aged 50 and over and women aged 35 to 39 years and 45 and over,” she said. “This is the first full year for which marriages were available for same-sex couples and they accounted for 2.6% of all marriages.”

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Contains public sector information licensed under the Open Government Licence v3.0.

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Supreme Court Rules on Parental Abduction Case

Cases where children are taken out of the country by one parent without the consent of the other can be highly complex.

One such case, which involved the removal of two children from Australia to the UK by their mother, recently found its way to the Supreme Court, which has now published its decision on the matter.

Facts of the Case

The case concerned a married couple who lived together in Australia with their two children until 2015. By the end of 2014 the marriage was apparently in trouble, and the mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay, however the mother and the children have remained in England since they arrived in May 2015.

Discussions between the mother and father apparently resulted in the father agreeing to an extension of the eight week visit up to a year and at that point the mother gave notice to her employer and looked for work in England.

In September 2015, the mother enrolled the older child at a local pre-school. In November 2015, without telling the father, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.

In continuing correspondence, the father pressed the mother on the children’s expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.

Father Brings Legal Action

The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Abduction Convention”).

One issue the court had to decide was at what point did the mother decide not to return to Australia. The mother’s own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year.

The High Court found in the mother’s favour, ruling that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But it accepted the mother’s evidence that she did not have the intention, in November 2015, or before April 2016, not to return to Australia.

Appeal to Supreme Court

The father successfully appealed this decision in the Court of Appeal, however the mother brought an appeal to the Supreme Court, which had two main issues to consider:

  • what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs?;
  • and if a child has been removed from their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so-called “repudiatory retention”)?

The Supreme Court found in favour of the mother and has allowed her appeal. At the same time, it dismissed a cross appeal by the father on the issue of habitual residence.

With regards to the first of the issues set out above, the judgment explains that:

“The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the child’s habitual residence, and there is no room for a mandatory summary decision.”

On the second issue, the judges said that:

“On the present facts there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe the mother’s evidence that she did not possess this intention in November. There is no basis in law for criticising the judge’s decision as to habitual residence.”

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Divorce Application Process Goes Fully Digital

The Government has announced that is currently testing a fully online divorce application process across England and Wales for the first time.

The pilot scheme means someone who wants a divorce can apply online, which the Government says will make the process easier to understand and remove some of the stress during a difficult time for families.

The pilot was initially launched last year and according to the Government has reduced the number of applications being returned because of errors, with a 90% improvement compared to paper forms. It has apparently gained positive feedback, with people welcoming the simplified, streamlined and easy to understand system that delivers their application instantly – without the worry of it being lost in the post.

The next stages will include making the system available for use by legal representatives.

Family law organisation Resolution has said it welcomes the move to a fully digitised service as it brings divorce in line with many other Government services that have been digitised for some time now.

“Although the consequences of divorce, such as making arrangements for how parents will care for their children and sorting out the finances, can be complicated, the divorce itself is usually a relatively simple administrative process,” commented Resolution Chair, Nigel Shepherd. “Moving it online is a step in the right direction, provided it functions well for the couples, their legal representatives where they have them and anyone else involved. We hope to see positive results from this pilot.”

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Findings of Adoption Enquiry Published

The British Association of Social Workers (BASW) has recently published the results of a UK-wide enquiry into adoption.

Key findings of the Adoption Enquiry include:

  • It was considered that in recent decades, and particularly in England, policy makers had tended to promote adoption as risk free in a ‘happy ever after’ narrative. The Enquiry heard from a range of respondents across the UK that this is unhelpful as it can lead to the silencing of adopted children and adults who may have to manage contradictory emotions such as grief and loss, joy and happiness.
  • Austerity was adding to the “considerable adversities” faced by many families in poverty who are seeking to safely care for their children. Welfare and legal aid cuts had reduced the financial resources available to some, while services designed to help more families stay together and prevent children being taken into care had also been stripped back. Cutbacks were also impacting post-adoption support, with provision for both birth families and adoptive families “inadequate”.
  • The quality of the relationship between social workers and families was “crucial” to pre-and post-adoption support. However, it warned the pressure of rising caseloads and cuts to services, meant many practitioners felt limited in the time and support they could provide and some families feared their children would end up taken into care if they sought help.

The enquiry’s authors, Professor Featherstone and Professor Gupta, made five recommendations and BASW has accepted them and has outlined how they will action them.

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Research Reveals the Financial Implications of Divorce

The emotional impact of divorce and separation is widely recognised and much has been written on the detrimental impact it can have on a family’s well-being.

Perhaps less widely recognised is the financial impact that divorce or separation can have on both parties. Some costs are obvious, such as legal costs and possible child or spousal maintenance costs. However, there are other potential costs that are less immediately apparent, and new research from Aviva has given an interesting insight into the extent of these costs and their impact on a couple’s finances.

Increasing Costs

According to Aviva’s Family Finances Report, 68% of couples have financial issues to resolve when they divorce or separate, and on average this process takes 14.5 months, which is three months more than in 2014.

The costs associated with divorce and separation have also increased, with UK couples spending an average of £14,561 on legal and lifestyle costs when they break up. This is an increase of 17% since 2014 when it totalled £12,432. Moving out of the marital home can add £144,600 to this bill on average for those buying a new property (16%), or more than £35,000 for those renting (51%).

Legal fees are the most common cost when a relationship ends, encountered by over half (54%) of couples, followed by setting up a new home (40%) and annual child maintenance payments (21%).

Housing Issues

Sorting out alternative accommodation following a split is a major issue for many couples. Nearly half (46%) of home-owning couples sell their property leading to both partners having to find a new home, in addition to those individuals who move out whilst their partner remains in the former joint home.

One in six (16%) buy a new home following separation, with an average cost of £144,600 per person, rising from £94,100 in 2014.

However, many can struggle to get back on the housing ladder, and 51% apparently move to the rental market after their divorce or separation, spending an average of £7,519 each year on rent.

Aviva highlights that with house prices continuing to rise across the country, renting post-separation could become a more permanent circumstance for many people. Of those currently renting as a result of their split, seven in ten (70%) feel that they will be unlikely to buy a property in the future.

Many people also find themselves unable to maintain their former standard of living and have to adjust to a reduced household income following divorce or separation. Around a third have been forced to dip into their savings, and 23% have had to borrow from friends or family to be able to make ends meet.

Impact on Retirement Income

Previous research has also highlighted the negative impact separation and divorce can have on pension savings and retirement income, particularly for women.

The study by Scottish Widows found that 70% of couples fail to take pension savings into account when agreeing their divorce. The study also found a general lack of understanding of how pensions should be handled during divorce, which might explain why so many leave it out of their divorce negotiations.

“Relationship breakdowns can leave people really vulnerable but, quite simply, they’re also throwing significant sums of money down the drain,” commented Catherine Stewart, Retirement Expert at Scottish Widows. “It is important that everyone – whether single, married or divorced – take steps to understand their finances and prepare for their independent future should a relationship break down.”

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Job Vacancy – We’re looking to hire a Child Law Solicitor to join our leading Family Law Practice

A leading family law practice with office locations in Surrey, Hampshire, Berkshire, Wiltshire and the South Coast  is looking to further consolidate its status as the go to firm for cases involving children.

We are looking to recruit lawyers who either have or are working toward achieving the Law Society Children Law Panel Accreditation.

The successful candidates will be joining a highly desirable family law firm where commitment and dedication to clients is second to none.

It is anticipated that the successful candidates will be skilled advocates, have strong negotiation skills and the ability and experience to handle difficult and complex proceedings.

Salary is negotiable and dependent upon experience. Benefits include life insurance, contributory pension scheme and discretionary annual bonus scheme.

To apply, please send CV and covering letter to pauline@childlawpartnership.co.uk.

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