What is in a name? (Quite a lot actually)

 

I totally understand why (usually) mothers wish to change their children’s names to their own.  Sometimes the name may be the only real link the children have with their father so the Court often thinks it is important that is retained. The Court may well agree to a double barrelled surname though.

The bottom line is that if Father will not consent to a change of name, the Court is unlikely to make an Order.

If Father cannot consent to the change of name (or is nowhere to be found) then an application for a specific issue order to change the name will be necessary and may possibly be successful.

Alternatively, School may accept a double barrelled name informally in some circumstances (although it will not be possible to do make changes on formal documents eg passport) or some clients of mine have actually circumvented the problem by changing or hyphenating their surname by deed poll to include the children’s surname.

 However the most compelling reason NOT to change a child’s name is usually that mother’s name will change on marriage or remarriage (and however much mothers may not believe it a possibility at the time, it is more likely than not) so ultimately more change and confusion is inevitable.

 

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I put a nickel in the telephone, dialled my baby’s number……got a brrr, brrr, brrr, brrr, busy line

Telephone contact for young children is always problematic even if ordered or agreed. Trying to get young children to speak on the phone can be almost impossible and the parent requesting contact must reconcile themselves to the fact that it probably will only be an opportunity to say goodnight and I love you. However for young children, that brief contact by telephone can be very important in maintaining links between face to face to contacts, especially if they are weeks apart. Where distance has been a real issue I have know the Court order telephone contact for children as young as 2 years. The parent with care is often concerned about impact on routine and feeling that their day to day life is restricted by the need to be available for telephone calls. I think one call per week on a set day when the parent with care is usually home is worth a try but parents will need to be realistic – it won’t be a half an hour call. Bedtime can be disruptive so try just after dinner for example. 5pm or 5.30pm can work. Try not to worry too much about the effect on routine – these calls will be very short – but the parent calling should try to be prompt always. Webcams can also be a useful tool for indirect contact as they allow non verbal as well as verbal communication and can put less pressure on the parent with care to facilitate the call.

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How do we deal with the new partner?

This is a really difficult situation for parents but one the Court really has little control over. We have to trust the best judgement of the parent with the new partner (which sometimes is better than others). The Court will take into account the reality of new partners and new living arrangements and expect parents to be sensitive but accept children should and must adapt to the changes in the family. Unless the presence of a new partner is likely to cause harm to the children i.e. serious emotional distress or if the new partner is violent, abuses substances or has certain convictions, the Court will be reluctant to interfere.

I always advise parents to ensure that they always spend quality time alone with their children and are sensible about what their children see and do with the new partner. Take into account their age and understanding as what is acceptable for a 5 year old is likely to elicit a very difference response from a 15 year old!. To ignore children’s feelings on this can be very detrimental to contact. Likewise, the other parent should recognise that the presence of another adult can sometimes make contact more comfortable for children and another interested and affectionate adult can make it more enjoyable. Children do not need a stream of new adults passing through their lives so parents should only introduce partners when in a committed relationship. Friends are fine but make sure you behave like friends and keep an eye on how comfortable your children are.

Ultimately, the Court cannot compel a 3rd party to meet a parent. Talk to your partner about why it would help you and the children to meet the new partner. He or she may just think you want to cause a scene or talk badly about him or her to the new partner. However, bear in mind it may not be your ex who is the sticking point. The new partner may be happy to have your children in his or her home when they are with their parent but see the rest of your family life and your relationship with your ex as nothing to do with him or her and something he or she would prefer not to get involved in.

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How to (or not to) divorce

I like to think I help people rebuild their lives after divorce or separation. As someone so delightfully put it I do ‘Misery Management’. Many of my clients think I have a magic wand. I don’t. But I can give people the tools to change their lives when the Happy Ever After goes pear shaped. But first of all we are going to deal with a few fairy stories.

My personal favourite: The Common Law Wife

If you divorce after 20 years and 4 children, you can have property orders, lump sum, orders, maintenance orders, pension orders

If you separate after 20 years and 4 children, you get what? Nothing!

It’s still a shocker and can be sorted. Communicate and get your house in order (literally)

We’re Divorced So She (or He) Can’t Come Back for Any Money

No! If the Court hasn’t made an Order those claims stay alive potentially FOREVER

You don’t need to go to Court but you do need a Consent Order

So if you win the lottery, you might find someone wants a second bite of the cherry. Or if you agree that one person keeps the house and the other goes bankrupt, the trustee in bankruptcy is going for half that house, agreement or no!

The Woman Always Gets the Kids

Well no. The times they are a changing. The top brass are now saying shared residence orders are the norm. That doesn’t mean equal time but it does mean equal care. Our changing society is now communicating with our legal system.

If I Get Divorced, We Split Everything 50:50

Not always. A whole host of factors come into play including needs, contributions and, of course, children. A long marriage is now considered 15 plus years. Then 50:50 becomes our yardstick. Communicate with family lawyers not people down the pub about your financial settlement

Lawyers Mean Court Mean Massive Fees

Good family lawyers will do things properly so you can look to the future. They will put you in touch with the financial, coaching, counselling services you require to move forward. They will use meetings, correspondence and documents to ensure your relationship with your ex moves forward in the most positive way forward. If you communicate your needs they will listen and this will keep the cost down. Court is always a last resort.

The key tool is communication. Whether you are in a relationship, getting out of a relationship, managing client relationships, telling your children about ending a relationship, co parenting or getting the most out of your lawyer. Communication.

And that, in a nutshell, is how to, or how not to, divorce.

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The Imerman case – The Man from Del Monte, he says, YES!

Until last month, spouses who discovered information showing their partner was ‘hiding’ money (and not giving the court a true picture of their assets to reach a fair financial settlement) could copy it and put it before the court to help their case. But in the Imerman case, the Court of Appeal decided that those in the weaker position are effectively on their own: their spouse’s privacy is essentially more important than ensuring a fair outcome.

It fair to say that family lawyers are, not to put too fine a point on it, absolutely staggered.

The facts in a nutshell

– Mrs Imerman married the ‘Man from Del Monte’ who shared an office with her property tycoon brothers.

– When things went ‘pear-shaped’, the brothers locked Mr Imerman out of the office and downloaded somewhere between 250,000 and 1.5 million documents from his computer.

– They handed them to their sister’s family lawyers as they believed Mr Imerman had no intention of making full and frank disclosure.

– Court of Appeal ruled that Mrs Imerman could not use this information even though she had nothing to do with obtaining it.

Effectively the Court of Appeal said that married couples are entitled to privacy from one another even in relation to what are, after all, matrimonial assets!

What does this mean for divorcing couples (& their lawyers)?

Say a husband and a wife, let’s call them Mr and Mrs Jones since we’re in Wales, have been married for 20 years and throughout that that time Mrs Jones has kept all her precious things and private papers at the back of her knicker drawer. If Mr Jones thinks that Mrs Jones is hiding anything he will know exactly where to look when things breakdown. So, if they decide to part and Mr Jones has a little snoop around before meeting his solicitor and finds £40,000 in secret bank accounts (shock horror!), can he hot foot to his esteemed adviser with copies, crying “Jackpot”?

The short is answer is no. The information wasn’t in the public domain it was in Mrs J’s very private knicker drawer. And she certainly didn’t give him (or his solicitor) permission to have a good root around in there!

The law as it stands indicates that both our jaded Mr Jones and his solicitor have committed a breach of Mrs Jones’ confidence and she could sue them both.

So already our straight down the line solicitor has bad news for Mr Jones. All he can advise Mr J is to:

1. To remember and write down as much as he can
2. Wait for his wife to make full financial disclosure
3. Cross his fingers that Mrs J discloses the secret accounts
4. Advise on the steps (with detailed costs estimates!) of what can be done if she does not

So what does the Court of Appeal want us to do then?

Answer: Seize, Squeeze and Freeze!

If the information isn’t disclosed as anticipated then Mr Jones’ solicitor must follow the law and apply for a ‘search and seize’ order which means Mr J must:

– Instruct an independent solicitor to oversee a raid on Mrs Jones’ knicker drawer and take away the bank statements (which are highly unlikely to still be there)
– Pay Mrs J’s legal costs if nothing is found in said knicker drawer
– Apply for a ‘freezing’ order if any statements miraculously are found so she can’t blow the money in the account on toy boys or round the world cruises
– Pay his own solicitor’s fees (which by this time will be at least equivalent to the funds in the secret accounts)

And if he can’t afford that?

Answer: Nothing!

Why it is a bonkers decision by privileged, out of touch, non family lawyers (in my humble opinion)

Self help is no longer an option. Even though married couples have a legal entitlement to share in ALL the matrimonial assets and there is a risk that one party will be seriously prejudiced if one person doesn’t disclose everything they should. How assets WILL be shared is a different question.

And the Court of Appeal didn’t really deal with one burning issue. If documents are in your bedroom, or on your kitchen table or on your family computer, does it matter if they are yours or your spouse’s?

To quote from the judgement:

“If a husband leaves his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived, and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband’s confidence if it had been left by him in his study rather than in the marital bedroom, and the wife’s case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk.”

Does that sound like a 21st century family home to you? Does a ‘husband’ get the benefit of this ‘Cheat’s Charter’ simply by designating a private study (preferably with lockable drawers)? And if we are living in this old fashioned world where spouses have private domains and compartmentalised lives, can we assume that those documents lying on the kitchen table are (naturally) the private property of the woman of the house…..!?

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Why I Believe in the 1 Year Ban on Divorce Petitions

 

There seems to be some interest at the moment in why marriages fail at the first hurdle or, as Channel 4 recently termed it, ‘The One Year Itch’.  Of course marriages legally aren’t allowed to fail in the first 12 months as we have a 1 year bar on presenting a petition to the Court for divorce.  However, I have noticed that I am dealing with more and more divorces when couples have decided to end the marriage within the first 12 months and it has literally been a case of waiting for the first anniversary to start proceedings.

Why is this?  In many cases the couple have just made a big mistake and realise they are a mismatch.  Often they knew it before they got married but the wedding juggernaut by then had become unstoppable.  Weddings themselves play no small part.  The increasing trend for a grandiose day of self celebration can mask the real reason for the ceremony itself, meaning couples are hopelessly unprepared for the (potential) trials that lie ahead.  Sometimes the wedding is itself a band aid on a flawed relationship.  Occasionally is a catastrophic and unforeseen event that proves insurmountable.  Usually, however, couples are just naïve and have Great Expectations of married life that simply cannot be met.  This leads to rapid disillusionment, resentment and in some cases divorce.

I personally think the bar on petitions for one year is a good thing.  It is an odd concept to bind autonomous human beings in a contract that they consider no longer fits with their personal relationship but, if you believe in ‘for better and for worse’, this ‘holding period’ (while the romantic Great Expectations play out) can come into its own.  I will try to explain.

I know someone whose husband, six months into a new marriage, was diagnosed with depression and burn out.  In the run up to the wedding, a time of heightened anxieties and financial pressure in any event, he had been out of work so they had been relying on one income to pay the bills and prepare for a wedding.  The month before the wedding she also was made redundant.  Both had no option but to pack up their lives and move.  Both were lucky and secured new jobs before too long and plans were made to purchase a home.  But these things do not happen overnight and married life began in the spare bedroom of the in laws.  Not an ideal start perhaps.

The wedding was beautiful and filled with love, light and laughter.  By the honeymoon, already the spectre of Great Expectations was looming and that shiny new marriage was failing to measure up in at least one partner’s eyes.  The pressure of a new job and business and the financial demands of a new home were building.  “It is not supposed to be like this” they lamented as they worked hard, tried to balance the books and adjust to married life.  Where was the Hollywood spangled Happily Ever After fairytale?  Why did we just get the Ever After bit? And it feels like Ever and Ever and Ever….

His behaviour became more and more erratic as his unhappiness grew. She covered it up and made excuses because ‘It’s not supposed to be like this’ and felt unable and ashamed to face up to his growing difficulties.  His situation became more desperate and his feelings failed to live up to the Great Expectations he had of the honeymoon period of his baby marriage.  Imagine her guilt and his shame when it all came to a head during an alcohol fuelled rage and it became clear that everyone else knew he was depressed and the marriage was struggling except the people in it.

He was forced to confront demons.  She spoke out her resentment.  They both do not want to end their marriage although neither of them could really tell you why.  Those loving feelings are still buried under six months of depression, neglect, frustration and, most worryingly, detachment.  Possibly it is deep belief in their vows that hold them together.  Had they not been married, would it have been easier for her to walk?  Certainly.  Has she wanted to? Several times.  Ever the pragmatist, I think the acceptance that nothing can be done, whether they want to or not, until 1 year has elapsed has given them both a moratorium.  He has 6 months to get well and happier.  She has 6 months to deal with her hurt and disappointment.  Hopefully, by then they will both be in a position to build a real marriage together.  Not one based on Great Expectations.  I desperately hope so.

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The Post Divorce To Do List

Whether you are knee deep in divorce cake, quaffing champagne at your divorce party or hitting Debenhams to your divorce registry, the reason will be that your long awaited Decree Absolute will have arrived.  The legal position will have caught up with your emotional reality and your relationship with your former spouse will have been formally severed.

But let me just pop that champagne back on ice for a moment.  Has the practical position been brought in line with the legal and emotional ones?  You might have spent a considerable amount of time and money reaching a financial settlement which may have largely been implemented but what other hidden ties remain between you and your ex that need to be snipped and tidied away?

A little checklist of things to consider updating:

Pension & Death in Service Beneficiaries
Life Insurance Policies
Investment Accounts
Bank Accounts
Will/Living Wills
Powers of Attorney
Trusts/Estate Planning

Some of these may formally have been considered as part of your financial settlement but maybe not.  It is worth double checking.  If something wasn’t ‘in dispute’ potential issues may not have risen to the surface.

Wills most definitely will need updating.  Divorce automatically affects provision under a will.  You will need to give thought to the guardianship of any minor children as well as possibly making provision by means of a financial trust for their future.  If you intend to remarry, you need to consider how your children will be provided for in the future if their carer will not be your new spouse.  You may also consider a pre nuptial agreement to protect your children’s position in the event that the new marriage is dissolved.

So take advice from lawyers and IFAs.  Use the opportunity to plan ahead.  And enjoy that champagne with the peace of mind of knowing that you really so have a ‘clean’ break.

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