Archive for the ‘Family’ Category

Cohabitation Case Goes to Supreme Court

It may be assumed that when a couple purchase a property in equal shares, that is how ownership remains, but it isn’t necessarily so.
In a recent case, the High Court had to rule on the ownership of a house, which had been bought for £30,000 by a cohabiting man and woman who lived in it between 1985 and 1993. When the relationship broke up, the man moved out and ceased to contribute to the mortgage and running expenses of the property, and made no contr House in Countryibution towards maintenance of the couple’s children. He bought another property and moved there. The couple cashed in a joint insurance policy to assist him to finance his new home.
In 2008, it became necessary to determine the respective shares of the ownership of the property, by which time its value had risen to £245,000. The County Court ruled that the share of the woman who had remianed in the house should be 90 per cent. On appeal, the High Court upheld this decision.
After a further appeal, the Court of Appeal ordered that the split should be 50:50. The case is now to be heard by the Supreme Court and may be expected to set a precedent for how similar cases will be decided in the future.
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Posted May 6th, 2011 in Family |

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Guide to Adoption Process

PlaygroundThe most important requirements for adoption are that the adopter must be over 21 years of age, the child to be adopted must be under the age of 18 and that joint applications to adopt can only be made by married couples and civil partners. Unmarried couples can adopt, but only one person can become the adopter.



People who do not already know the child they wish to adopt usually use an adoption agency. As a first step, the agency will arrange for a social worker to visit and make a home study assessment. As well as assessing the family, they will also take two references and obtain medical information from a GP. After this assessment is made, an adoption panel will make a recommendation and, if the initial application is approved, the process of matching a child to the family begins. If the adoption has not been carried out through an agency, it is necessary to inform the local council of the intention to adopt a child three months before placing the application with the court.



The next stage in the process of legally adopting a child is carried out through the courts. In most cases, applications for adoption orders are made through specialised Adoption Centres. These are courts that have specialist judges and adoption officers who are experienced in the process.



Once the official application has been made, the judge has a number of options. He or she may order that a reporting officer be appointed. This will happen if the current parent or guardian of the child agrees, or appears to agree, to the adoption. The reporting officer will produce a report on matters that may help the court to make a decision on the adoption application. If the parent or guardian does not agree, then a children's guardian is appointed by the court to protect the interests of the child. The children’s guardian will make a report to the court advising on the interests of the child and will represent the child in court. The local authority or adoption agency may also be required to provide a report. This will include details about the prospective family and the child.


About four weeks after the application for adoption, the judge may arrange a hearing called a 'first directions hearing'. At this meeting the judge will consider, amongst other matters, whether the application contains all the correct documentation and when and where the final hearing will take place.



Once an adoption order is granted by the court, the effect is to break all the legal ties between the child and his or her birth family, or current guardian, and transfer those ties to the adoptive parents. This process is final, even if the reasons for the adoption subsequently turn out to be unfounded. In a case in which a couple's children were adopted after the couple were wrongly believed to have abused them, the couple could not recover them even after it was shown that the children's injuries were not the result of abuse.



For more information on the adoption process, see the UK Adoption and Fostering website. For information on the legal issues, contact us.

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Posted March 23rd, 2011 in Family |

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Housing Law: What is a Spouse?

modern houseUnder the Housing Act a spouse or civil partner has the right to succeed, in most circumstances, to an assured tenancy where he or she was cohabiting with the deceased  immediately before the death. Whilst that is all reasonably clear, the definition of what constitutes a ‘spouse’ for the purpose of this legislation (the Act defines a spouse as someone ‘living with the tenant as his or her wife or husband’) has caused numerous arguments. In a case involving the surviving member of a homosexual couple who were not civil partners was heard. The survivor, who had lived with the tenant for more than two years, applied to succeed to an assured tenancy entered into by his partner but the application was refused. The criteria applied to determine if the relationship was one of living together were:
  • had the couple openly set up home together?
  • was the relationship one of mutual lifetime commitment?
  • was the relationship presented openly and unequivocally to the outside world, so that it could be considered permanent?
  • did the parties have a common life together, both in relation to the household and in relation to friends and family?

In other words, the principal factor in assessing whether one partner in a relationship was or was not a ‘spouse’ was what the outside world would have considered the relationship to be, rather than what the domestic arrangements were. Whilst living together for a long time might corroborate the existence of such a relationship, it was not of itself conclusive.

On the basis that the criteria had not been demonstrated to exist, the application to succeed to the tenancy failed.

This case illustrates the lack of protection afforded to someone who lives with an assured tenant but where the couple do not marry (or undertake a civil partnership), unless that person becomes a co-tenant in which case succession is not an issue.

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Posted March 16th, 2011 in Family |

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Family Law – the Government Wants to Know What You Think!

The Law Commission’s consultation exercise on  prenuptial  and post-nuptial agreements closes on 11 April and includes provisional proposals to make ‘pre-nups’ legally binding, which they currently are not.
Unusually, however, the view of the public at large are being sought. So, if you have a view on the matter, visit www.lawcom.gov.uk/marital_property.htm and tell them!
More law basics are here.

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Posted March 7th, 2011 in Family |

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Court of Appeal Rule on Children Conceived by AID

A father of children conceived by artificial insemination has won the right to share in the parenting obligations for the child despite the objections of the child’s mother and her lesbian partner.
 
The child was conceived after the father, who is in a stable gay relationship, took out an advertisement indicating that he wished to be a father.
 
The mother and her partner also wishes to have children and two children were born by artificial insemination by donor (AID )as a result of the arrangement. Unfortunately, the relationship between the father and mother of the children broke down, which led to court hearings to determine parental responsibility, residence and access issues.
 
The arguments went as far as the Court of Appeal, where both parents were criticised for their failures to resolve their issues by communication.
 
The father was granted a joint residency order for nearly half the year and the mother was given parental responsibility for them. The mother’s partner was added to the joint residency order in case of anything unforeseen happening to their mother.

Posted February 6th, 2011 in Family |

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‘Defiant’ Thirteen Year Old Chooses to Stay in Britain

A schoolgirl has been allowed to stay in Britain despite the fact that her mother violated international law when she brought the girl and her younger sister back to the UK. In a landmark ruling, the judges at the Court of Appeal ruled that the girl was entitled to make up her own mind as to where she wanted to live.
 
In August this year, the girls’ father used the Hague Convention to secure a High Court order that required their return to North America, so that their futures could be decided there.
 
The Court of Appeal heard that the girl had extensive family and friends in her home town of Middlesbrough. She had made a statement insisting that she would refuse to travel to Canada to live with her father, who had originally gone there to find work.
 
Before deciding the case, the Court conducted an interview with the elder girl, which is highly unusual. One of the Appeal Court judges said he was impressed ‘by the cogency of her reasons’ for rejecting a life in Canada.
 
The children’s mother had travelled to Canada and used the pretext of a theatre visit to ‘abduct’ the two girls. The Court was critical of her actions, which had caused significant problems with her former partner and had continued to have repercussions thereafter. Despite this, the Court overturned the High Court order to return the children to America on the basis of concerns that their wishes hadn’t sufficiently been taken into consideration by the lower court.
 
For advice on any family law matter, contact us for expert advice.

Posted December 18th, 2010 in Family |

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Divorce And Insolvency

Divorce & Insolvency - Divorce lawyers Birmingham
With money problems being a frequent source of marital discord, it is not surprising that a fairly common problem in dealing with the financial settlements on divorce is when one of the spouses is insolvent.
In a recent case, an ex-wife ‘s appeal against a ruling that a 75 per cent share of the sale proceeds of the former matrimonial home should be hers shoHouse 4uld be invalid was rejected.
The issue turned on the fact that the ‘uplift’ in her share from 50 per cent to 75 per cent was the result of negotiations between her and her ex-husband’s respective lawyers and that contracts for the sale of the house were exchanged the day before bankruptcy proceedings against her ex-husband were commenced.
In the view of the court, although the agreement to vary her share was made in the course of ancillary relief proceedings (the financial settlement on divorce), it was not enforceable against the trustee in bankruptcy.
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Posted November 4th, 2010 in Family |

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Child Maintenance and School Fees

Parents are reminded that when an agreement is made on separation or divorce for school fees to be paid by a parent, the Child Support Agency (CSA) will not necessarily take this into account when calculating the child support liability payable.
Whilst the CSA’s guidance on this issue, contained in ‘Child Support Guide Volume 7’, is unclear, it clearly does give the CSA discretion in the matter.
The CSA is required to use its discretion depending on the circumstances of the case. Clearly, if the parent with care (PWC) of the children was not on benefits and agreed to the offset, it would be accepted. However, if the PWC did not agree the offset, it is open for the CSA to rule as it sees fit.
In a recent case, the CSA sought a liability order to force a husband to pay the alleged shortfall in maintenance which resulted from his paying school fees and reducing his payments of maintenance accordingly.
He went to court to oppose the order and showed that the CSA had effectively denied him the opportunity to make his case that the school fees payments were made in lieu of child support. It was clear from contemporaneous correspondence that the CSA had not understood the extent of its discretion and had not carried out a proper review of all the relevant circumstances.
A judicial review of the decision was therefore agreed to allow the father to make his case.
We can assist you in all negotiations regarding family breakdown.
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Posted October 16th, 2010 in Family |

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Children & Divorce

Children & divorce - Family law & divorce lawyers in Birmingham
In a speech to the annual volunteers’ conference of shared parenting charity Families Need Fathers, Sir Nicholas Wall, President of the Family Division, has criticised separating parents who involve their children in their disputes. In his words, parents may sometimes use children as ‘the battlefield and ammunition’ for  their own disputes. He also stated, perhaps controversially, that disputes about contact are rarely about the children.
Sir Nicholas also warned that legal aid for private law proceedings could be abolished following the Family Justice Review currently underway. He told the conference, “Be under no illusions. The recommendations are likely to be radical .... you do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished... out of court mediation and conciliation will be encouraged.”
Recent decisions in child contact cases show that the courts do recognise the importance, where possible, of children having a relationship with both of their parents.
Contact us for advice on any divorce or  family law matter in Birmingham.

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Posted September 21st, 2010 in Family |

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Judges Favour ‘Johnny Come Lately’ Relatives

A senior family lawyer recently criticised the way the law is being interpreted by the Court of Protection when deciding how the estate of someone who lacks capacity should be apportioned.



Under the Mental Capacity Act 2005, which came into force in October 2007, the Court has the power to make a ‘statutory will’ if a person lacks the capacity to make a will themselves. This usually occurs when there has been a change in that person's family or wealth since an earlier will was drawn up, and they are no longer able to execute a new one, or where someone has not made a will at all. In these circumstances the Court has to decide what is in the ‘best interests’ of the incapacitated person, rather than putting themselves into that person’s shoes to ascertain how they would wish to distribute their estate.
This can include deciding that they would want to be remembered fondly by their surviving relatives or friends.

This approach marks a considerable shift from previous practice, when it was generally accepted that an individual had the right to make an eccentric will and to disinherit their children if they chose.



This change can result in ‘Johnny come lately’ relatives benefiting from a share of an estate to which they previously had no entitlement. If a relative becomes very attentive to an elderly person who no longer has the capacity to make a valid will, the change in the law means that they may be able to become a beneficiary of the estate even though they were not included in an earlier will.



It is sensible to make sure you plan for the inevitable and review your will regularly to make sure it reflects your wishes and your current circumstances.

 

Posted September 12th, 2010 in Family |

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