divorce

You are currently browsing articles tagged divorce.

Conduct in divorce cases

February 3, 2014 in Legal services by Alan Larkin | No comments

the relevance of conduct in divorce financial proceedings

GUEST POST: LISA BURTON-DURHAM

Conduct in divorce cases often raises its head as an issue when family lawyers are first consulted.  To most clients, it seems clear as day that since their spouse is at fault in some way, it must follow that this will impact on the financial outcomes in the divorce settlement.

I asked one of my colleagues at Family Law Partners, Lisa Burton-Durham, to let me post an article she has recently written on this enduring issue.  I think my readers will find it of great value.  Thanks, Lisa!

Conduct in divorce cases

I am often asked whether a spouse’s behaviour would have an effect upon the financial settlement following a divorce.  Indeed there is a common misconception that one person’s ‘bad’ behaviour will mean that their spouse will receive a larger financial settlement by way of compensation for one and penalisation for the other.  But is that right?

Conduct is one of the factors that the court should take into account when looking at the appropriate financial settlement within divorce proceedings.  However the law is very clear in that the conduct will only be taken into account if it is so serious that it would unfair for the court to disregard it.

Of course, deciding on whether conduct is such that it should be taken into account will be subjective to many.  I often hear: “It was my husband who went off with someone else so why should he get anything?” or “She recklessly gambled away lots of our money so why should she get half of my assets?”

When looking at the relevance of conduct there are two types to be considered: personal misconduct and financial misconduct.

Personal misconduct involves some sort of ‘bad behaviour’ on the part of one party. In my experience it the type of misconduct that is complained of the most but it is actually very rare that it will have any bearing upon the financial settlement.   Adultery and most forms of ‘unreasonable behaviour’ will probably only be relevant when deciding who should pay the costs of the divorce.

To be a relevant factor in a financial settlement, personal misconduct has to be of a very serious nature and outside the range of normality.  Ordinary fighting and quarrelling in an unhappy marriage would not be sufficient neither would one party having committed adultery.  Examples of cases where personal misconduct was taken into account include a wife shooting her husband and a husband committing incest with the children of the family.  Thankfully, these types of cases are extremely rare.

Financial misconduct is normally where one party recklessly or purposely squanders assets prior to the divorce proceedings, thereby reducing the amount of the ‘matrimonial pot’.  Examples of this are gambling and spending money on unnecessary things like expensive holidays and cars. 

In such circumstances the court will try to put right the circumstances by ‘adding back’ the money or assets that have been spent and continuing on the basis that the party still has them.

It is also important to note that conduct during the course of the divorce proceedings, such as failing to comply with a court order, is not usually punished by providing a lower settlement to the ‘guilty’ party.  However they can be penalised by the court ordering that that party pay a contribution towards the other party’s costs.  This is known as ‘litigation conduct’.

To summarise, it is quite unusual for a conduct claim to be successful, especially if the misconduct is personal.  It is therefore very important that legal advice is sought before embarking on such a claim as this could save considerable expense in the long run.

Lisa Burton-Durham is a Chartered Legal Executive and accredited collaborative lawyer with Family Law Partners based in Brighton.  Nothing in this article constitutes legal advice.

Tags: ,

Online divorce for fixed fee

October 8, 2013 in Alternatives to Court, Legal services, Self-Representation, Technology by Alan Larkin | No comments

Online Divorce

 

Regular readers of my blog will be used to me referring to my ‘day job’: as a family solicitor and collaborative lawyer at Brighton based Family Law Partners.  I am fortunate to work with a really strong team which is highly rated in the independent legal directories such as Chambers & Partners and also the Legal 500.  We specialise in offering our clients bespoke services such as mediation and collaborative law which usually involves face-to-face contact.

However, in a small but signifiant shift, we decided some time ago that we would open up access to our online divorce document platform.  My blog subscribers will know that that has been an aim of mine for some time. Our online document platform allows our clients to create their own divorce or civil partnership dissolution documents any time of the day or night.  Then they just let us know when we can review and approve the documents for them.   Previously, we kept such innovations strictly available only to our full-service clients who in the main are drawn from around the South East.

Why online divorce services?

I have tended to think of online divorce services as absolutely fine if the primary need is the processing of the divorce papers in a very straightforward case.  I regarded online divorce services as suitable for uncontested divorces.  As any decent divorce lawyer will know, there are some important strategic considerations to be kept in mind when completing divorce documents.  It is not as straightforward as might be thought.  The contents of a divorce petition can have an impact upon related proceedings dealing with the children or with the finances.

One of the drawbacks with purely online divorce packages appeared to me to be the need for the big players to deal with as many cases as they can.  They need high volume and low operating costs. But it does mean that if you look at the small print in certain of these online divorce websites  it will say that if you want legal advice you must go and speak to a lawyer.  In other words, the people who process the divorce forms are not legally qualified.  If you google ‘online divorce’ you will see the same handful of providers jostling for space at the top of the first page.  Google must make a fortune out of those sponsored links!

My firm is extremely busy.  We are fortunate in that. Did you know that 1,000 high street legal firms have closed down in the last year?  It is quite astonishing.  The disappearance of high street legal firms means that some people will have to rely upon getting online assistance with their divorces and utilise fixed fees.  But they should still get legal advice.  By that, I mean, proper, fully qualified legal advice.  When I look up from my PC at work in our open plan office, I can see a highly experienced legal team – between us we have over 80 years of legal experience, of every sort of case, involving clients from every walk of life.  That experience is hard won. But we regard it as an investment for our future clients.

We know that legal aid has disappeared for most family law cases (but not mediation – remember that please). So although we are busy, we have decided to offer our online divorce platform to the wider public.  This service will not be advertised on my firm’s website – it will only be offered to a small section of the public – mainly to the readers of the Divorce Finance Toolkit blog.  By keeping the take up of this service relatively modest, we can continue to offer proper legal review, from highly experienced lawyers,  to our online divorce clients at a fixed price.

Best of all, I am grateful to my team for letting me offer an exclusive 15% discount for this service to the readers of my blog.  Aside from divorce documents and civil partnership dissolution documents, we also have a pre-nuptial agreement package and a separation deed package.  Click on the banner at the top of the page.  If you decide to use the services please enter the following discount code to save yourself some money:

DFTFLPdisc1

The access to our online divorce services will be kept open for the foreseeable future but we will probably pull it if we get too busy as we would rather keep the quality of the service high by keeping the volume of users low.

Tags: ,

Piercing the corporate veil in divorce

June 12, 2013 in Companies, Disclosure, International by Alan Larkin | 1 comment

 

Piercing the corporate veil in divorce

Prest v Petrodel: Piercing the corporate veil in divorce (not)

 

Plate sin with gold,
And the strong lance of justice hurtless breaks;
Arm it in rags, a Pygmy’s straw doth pierce it.
King Lear, 4.6.170

Piercing the corporate veil in divorce

If you are considering piercing the corporate veil in divorce proceedings, you will need more than a Pygmy’s straw.  The Supreme Court has delivered an important judgment today for family lawyers.  It is the usual heady, divorce cocktail of naughty husbands, big, big money; opaque companies; and imploring wives.  Spoiler alert: justice and fairness win out in the end.

My previous post about this case  Prest (Appellant) v Petrodel Resources Limited & Others (Respondents) [2013] UKSC 34 carried a lovely quote from the Court of Appeal judge who feared that husbands with assets sheltered by company status would be given “an open road and a fast car” to defeat the reasonable claims of their wives on divorce.  The case had alarmed many family lawyers who fear that some spouses will hide certain assets – assets that should form part of the matrimonial pot for division – within company structures.  In other words, the family assets would lie behind the corporate veil and the law would be reluctant to allow the piercing of the corporate veil in divorce.

In this particular case, the husband, Mr Prest, owned the companies and when the High Court first dealt with the case, the Judge ordered some of the company properties and shares to be transferred to the wife, Mrs Prest.  The husband appealed to the Court of Appeal and argued that the orders should not have been made since the court had failed to distinguish between the husband as an individual and the companies of which he was the sole shareholder.   The husband reminded the Court of the long established legal principle that a company has a ‘legal personality’ which is independent of its shareholders.  The shareholders of a company have no interest in or entitlement to the company’s assets.  Therefore, the High Court had made a fundamental mistake when it ordered that the husband was entitled to the properties and shares in his companies and could therefore simply be ordered to transfer them to his wife.

The Court of Appeal agreed with the husband.  Cue: gnashing of teeth from family lawyers who labelled it a ‘cheat’s charter’.  There was to be no piercing of the corporate veil in divorce. The wife appealed and The Supreme Court has now considered the matter: the judgment was released today (12th June, 2013).

Scores on the door

The family court does have the power to order that “a party to the marriage shall transfer to the other party… such property as may be so specified, being property to which the first-mentioned party is entitled…”  As the Supreme Court acknowledged today, the ability of the court to exercise such a power of property transfer requires “a considerable measure of candour by the parties in disclosing their financial affairs”.  Unfortunately for the wife, the court described the husband’s conduct of the proceedings as being characterised by “persistent obstruction, obfuscation and deceit.”

The Supreme Court, like the High Court and the Court of Appeal, before it,  has decided that the piercing of the corporate veil in divorce proceedings will only be tolerated in exceptional circumstances, which would normally involve the husband acting improperly.  Now, there may be a few of you out there scratching your heads and thinking “surely, persistent obstruction, obfuscation and deceit amounts to improper behaviour?” Well, it is certainly improper, but the Supreme Court found little evidence that the companies were set up to frustrate the wife’s matrimonial claims.  Instead, the Supreme Court found that the companies were set up as a form of wealth preservation and tax mitigation.  Additionally, the court concluded that there were remedies available to the wife, such as the transfer of the properties owned by the companies, that would, and should, allow the court to stop short of piercing the corporate veil.

The Supreme Court was clear that the family court enjoyed no special rights, in attempting to provide justice and fairness to spouses, above any other court division.  As Lord Sumption, providing the leading judgment,  states:

Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. If a right of property exists, it exists in every division of the High Court and in every jurisdiction of the county courts. If it does not exist, it does not exist anywhere. 

But, the Supreme Court still came to the wife’s rescue by finding that the seven properties were owned “beneficially’ by the husband even though not in his personal name.  This meant that the court, using its family jurisdiction, could transfer the properties to the wife and did not need to think about using a lance, or a Pygmy’s straw to pierce the corporate veil.

Interestingly, the Supreme Court emphasised the existence, and usefulness of, the family court’s ability to draw adverse inferences from the husband’s failure to make proper disclosure of his finances.  In effect, the court could speculate as to why the husband might be trying to hide the reality of his financial affairs which is not a function you will find in civil (non-family) litigation.

Despite the pragmatic outcome of this case, the Supreme Court went on, Lord Neuberger in particular, to consider whether the piercing of the corporate veil, could be said to exist as a doctrine.  Lord Neuberger said it did exist.  But in what circumstances should it be deployed by the courts? Lord Neuberger declares:

The doctrine should only be invoked where “a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control”.

I welcome this judgment.  Like other commentators, I am pleasantly surprised at the fairness of the outcome.  However, I do not share the general gush of enthusiasm exhibited by some.  I do not see this decision as groundbreaking or even great news for wives in general.  This judicial approach could be summed up as: let’s exhaust all the other options first.  If everything else fails, we’ll blow the dust off the doctrine and give it a spin but only if the husband is a lying git of the highest order.  And you have the dosh to stay the legal course.

Last word

James Turner divorce finance toolkit Prest Petrodel

James Turner QC

The last word on the topic of piercing the corporate veil in divorce I leave to James Turner QC.  I asked James today for an off the cuff response to the judgment and, despite being extremely busy, as usual, he graced me with a sensible, and level response.

“This is an unexpected result, but it is pleasing to see that the courts are doing what they can to prevent a divorcing spouse from avoiding true justice.  However, it may create problems in future cases when deciding whether or not to join companies and trustees as parties, with the consequential expense of such a course”.

Tags: , , ,

How does the budget 2013 impact on divorce and separation?

March 20, 2013 in Uncategorized by Alan Larkin | No comments

How does the budget 2013 impact on divorce and separation?

Another (austerity) budget

How does the budget 2013 impact on divorce and separation?

Chancellor George Osborne has doled out his latest spoonful of medicine for the UK economy.  My take, as usual, is from the family lawyer’s perspective, for those families dealing with separation or divorce.  How does the budget 2013 impact on divorce and separation?  Where the money has to stretch to two households?

The devil is always in the detail, especially with the Budget small-print, and the picture will not be entirely clear for another few weeks, but here is my initial reaction.

The Help to Buy Scheme.

In my post upon the 2012 Budget I referred to a home buying scheme called FirstBuy (George, did they not tell you about finger spaces between words at Eton?).  FirstBuy was aimed solely at first-time buyers.   The better news, I think, is that the new scheme is no longer restricted to first time buyers but will now be available for all buyers of newly built homes.  I hope that it may ease the pressure for those parents needing to fund a new property purchase after a divorce or separation, especially as a deposit as low as 5% could be obtained.  It appears that up to 20% of the purchase costs will be funded by a shared equity loan which will be interest-free for the first five years.

Personal allowance up to £10,000

On the face of it, it will make the pennies spread further in the family budget, especially for those working parents who struggle to afford child care.  And, it will kick in a year earlier than anticipated – in 2014.

Employers’ National Insurance

Indirectly of potential benefit: NI changes (with a predicted 450,000 firms no longer paying NI) may reduce the financial burden for smaller nurseries to take on more staff and provide more childcare.  Additionally, it seems that a new employment allowance will cut National Insurance bills for every firm by £2,000.

Public sector pay rise cap

The chancellor giveth and the chancellor taketh away, or at least, he lets inflation do his dirty work for him.  Following a public sector pay freeze, a 1% pay rise cap for the public sector – the nurses, council workers and teachers – will last for 3 years.  With inflation last year running at 2.7%, this is a year on year pay reduction for the public sector.

The kids are not alright

The Budget comes hard on the heels of benefit changes including Universal Credit which will replace at least 6 individual benefits or credits in the future and changes to housing benefit for those deemed to be under-occupying in the social housing sector.  The net effect of Mr Osborne’s budgets since the coalition came to power has been, and will be,  to reduce the income of families with children.  It seems to have become fashionable again to hate the poor and less well off,  and perfectly acceptable to mis-label them as scroungers, skivers and deadbeats.  At the end of the day, public policy and budget changes are hurting kids.   Those inconvenient people at the Institute for Fiscal Studies have summarised it nicely in the following table.  Is this really what you want, Mr Osborne?

How does the budget 2013 impact on divorce and separation?

THE KIDS ARE NOT ALRIGHT

Tags: , , ,

The man who sued his wife over the children who were not his

January 14, 2013 in Uncategorized by Alan Larkin | No comments

The law on Deceit put to an unusual use

I have had cases of divorce or cohabitee separation where fathers have sometimes cast doubt on the paternity of the children they have brought up in the relationship with the mother.  In most instances, the doubts expressed are quickly abandoned, since most stem from anger at receiving a letter from the CSA following a very short relationship indeed.  Not many fathers insist upon having their paternity genetically determined.   So I was surprised to see a sobering (and sad) article about a man who sued his ex-wife for letting him believe that the children from her affairs were actually his.

The ex-husband succeeded in winning damages of £25,000 for deceit.  He had maintained the children financially after the separation and divorce believing himself to be the biological father.  It appears from the article that the court awarded the damages at a level equivalent to the feeling of ‘bereavement’ the ex-husband would have experienced when finding out he was not the father.

There is insufficient detail in the article for me to comment further but it would appear that the ex-husband’s legal claim was under the  under the Tort of Deceit (a Tort is a civil ‘wrong’).  The article reminded me of my law student days and the leading authority on Deceit which was then Derry v Peek (1889).  Lord Herschell , in that case, said:

“First, in order to sustain an action in deceit, there must be proof of fraud and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”.

I can only imagine the impact on this ex-husband and also his step-children upon discovering the truth.  How awful it will be if this revelation destroys the relationship he may still enjoy with the children who formerly looked upon him as their father.

Tags: , ,

Credit history problems after divorce

January 13, 2013 in Uncategorized by Alan Larkin | No comments

Credit histories should attach to the person rather than the address

It is always unsettling, many years after a divorce has been finalised or your ex-partner has moved out, to receive letters in their name.  This is especially the case when the letters are from creditors or debt recovery agencies chasing outstanding payments.

My virtual postbag received the following from Elsa:

I’ve been divorced for 7 years, but recently have been receiving letters addressed to my ex husband from debt collectors. I have phoned them to tell them, and they have said they will not send any more letters. But what about the ones that they have sent? He hasn’t lived with me for 7 years but still seems to be using my address. Why are the credit companies not checking the validity of the documents they are given? Won’t this compromise my credit score? If there are debts lodged against my address?

OK.  The first thing to note is that so long as the debt is in Elsa’s ex-husband’s name, it remains his debt and his debt alone.  Provided the debts are not jointly owed by Elsa (what is termed joint and several liability – which means the creditor will chase whichever of the joint debtors is most likely to cough up) there should be no problem.

However, Elsa should check to see if any of the loans or credit agreements giving rise to the debts were taken out by her ex-husband after he moved out of the former marital home.  He should not have been claiming to still live at the property when taking on those liabilities.  I think Elsa would benefit from obtaining a credit report from one of the main providers such as Experien UK.  In my experience, lenders and commercial loan companies tend to be more sophisticated in their assessment of someone’s credit worthiness than used to be the case.  They do seem to focus more on the individual rather than the address.  But, Elsa may well find that her credit record is linked to her ex-husband’s especially if they did have joint loans in the past.  if she finds that this is having an adverse impact on her credit history she can submit a financial dissociation request so that her financial history is separated out from her ex-husband’s.

Strictly speaking, Elsa should not open the letters addressed to her ex-husband as they are not her property.  Better to mark them: “Gone away – return to sender”.  The letters should soon dry up.

Tags: ,

Maintenance increase by the RPI

January 9, 2013 in spousal maintenance, Variation maintenance by Alan Larkin | No comments

Many a mickle makes a muckle (so long as you don’t ignore inflation)

If you have done the hard work of agreeing maintenance upon divorce and have sensibly put in place a mechanism to automatically increase the payment each year by the rate of inflation, then pat yourself on the back.  You’ve done all you can to avoid having a huge row with your ex each year about the amount of any annual maintenance increase and the prospect of an expensive return to the family court to argue the toss in front of a judge.

But, as I have discovered from my virtual postbag over the last two years, the scope for argument and misunderstanding still exists.  I have just heard from Lianne:

I wonder if you would please help solve an issue between my ex-husband and myself.

I am due to receive an annual RPI increase from 1.1.13. (date stated in my Court Order).

I receive my monthly maintenance payments on the 16th of each month.
Can you please clarify which months RPI figure is the one that should be used? My ex is saying that it should be the one for Sept. 2012 as the Court date is the first of the month.

My view is that it should be the figure for Oct. 2012 regardless of whether the increase is for 1st or the 16th of the month, as it is the actual month that is the deciding factor not the date of the month.

Thank you for your time and attention.

Well, I’m with Lianne on this one.  The normal mechanism is to use the RPI figure for the month three months before the month in which the maintenance is to be increased.  So that would be October.   For any visitors of the blog for which that sentence reads like gobbledegook, you will have to read the other posts and comments on this subject using the RPI tag in the Cloud Tag on the left hand side of the page.  The important thing to note is that the increase in maintenance is based on the increase in inflation in the preceding (or as near as dammit) 12 months.  There is always a lag before the Office for National Statistics can calculate each month’s RPI figure and then release it to the public.   So it is common to take a figure three months prior to when the increase is due because the RPI figure should be in the public domain by then.

If anyone wants to work out how to calculate an RPI increase then look no further.

Tags: , , ,

Sorting out Separation – new DWP App

December 7, 2012 in Legal services, Technology by Alan Larkin | No comments

The DWP App

The Department for Work and Pensions (DWP) launched an app at the end of November 2012.  The app is intended to provide assistance to people who are struggling with the issues that arise on relationship breakdown: divorce, child support and so on.   I think the app is the delivery of an initiative announced in July of this year when the press reports talked of a ‘Divorce App’ and the figure of £14M budget spend was bandied around.   I questioned then why £14M was needed for an app.  I now understand the spend was closer to £300,000.  Quite a come-down.

I had a bit of a go in that previous post, unhappy as I was with the brutal staff cuts to the court system and the planned withdrawal of most family legal aid in April of 2013.  My bad humour is not dispelled by the ‘Sorting out Separation’ app now hosted by the DWP.  I’m all for helpful guidance but placing impossible obstacles in the way of access to justice turns me into Mr Angry.  For one beautiful moment, back when the app was launched in November, I saw a link to MailOnline about the app that seemed to share my anger.  At last, I thought, one of the press big beasts has woken up to the threat posed by the withdrawal of legal aid and the insulting attempt to fill the impending void with an app.  Fortunately, natural order was restored once I read the article and realised that the Daily Mail was angry, as usual, for all the wrong reasons.  It was just the usual piece about how getting a divorce or separating was being made even easier.  Strangely enough, most of the readers of this blog seem to find the exact opposite: sorting it out is expensive, complicated and deeply stressful.

 

However….

However, I have allowed myself to be distracted.  Since my blog is intended to be helpful to the very people who will be most affected by public provision cuts, I have decided to give the DWP’s shiny new app a fair crack of the whip.

STOP PRESS: THE DWP ENCOURAGES GOOD BOY SCOUTS LIKE ME TO EMBED THE APP ON THEIR SITES.  THIS I DULY DID AFTER SPENDING HOURS WORKING OUT HOW TO DO IT.  UNFORTUNATELY, GOOGLE THEN DETECTED THE APP AND DECIDED THAT MY INNOCENT BLOG WOULD INFECT ANY VISITORS WITH MALWARE. MY TRAFFIC FELL OFF A CLIFF. THANK YOU DWP. SO I HAVE REMOVED IT. IF YOU WANT TO USE THE APP PLEASE GOOGLE IT AND YOU’LL FIND IT SOON ENOUGH.

Good luck and let me (and others) know if the Sorting out Separation app is worth the money we taxpayers have just spent on it.

Tags: , , , , ,

Separation no bar to divorce finance claims

October 30, 2012 in cohabitation, Pensions, spousal maintenance by Alan Larkin | No comments

Separation

Separate but not apart in absence of divorce

Any divorce lawyer will tell you that it is better to obtain advice about an appropriate financial settlement upon divorce than simply let things drift.  People’s lives move on, sometimes for the better, sometimes for the worse, but any delay of years can usually make it harder to sort out (never mind agree) an appropriate settlement.  Even when ex-husbands and wives are trying to negotiate financial claims many years after the separation they can get a nasty surprise to learn that the family court will value assets at today’s prices, not six or seven years ago if that happened to be the date of divorce or separation.

My postbag has a plea from Tina:

I left my husband six years ago, and have been living with a new partner.  I never divorced. I am on the bread line – used all my life savings to help support my new partner, even bought him 3 cars.  I’ve no income at all.  My new partner’s on very low income.  We live in rented house, and new partner is talking about leaving me now. I’ve no security. My husband still has his own business, and promised inheritance from his uncle. Could i be eligible for sposal maintenance? My husband was also left his mum’s house, which i didn’t get a penny from. Plus I’ve no pension, and I’m 52.  I had a heart op two years ago. Thank you.

There is so much about Tina’s situation that I do not know about.  Readers of my blog will know that the devil is always in the detail when it comes to the family’s court’s jurisdiction which takes all circumstances into account.  As usual, because I cannot and do not offer advice on my blog, I can only make some observations about Tina’s desperate situation:

  • I do not know the length of the marriage .  The longer the marriage, the more likely the presumption of the court to consider it reasonable for Tina’s husband to make financial provision for her, despite the significant period of separation;
  • I do not know whether Tina raised children with her husband during the marriage: is Tina’s lack of pension provision because she was busy bringing up the children?  A factor that would weigh heavily with the court.
  • When did Tina’s husband receive his mother’s house?  I presume this was an inheritance?  The inheritance is likely to be significant, especially if Tina and her husband already owned their own property and the mother’s house is a surplus asset.
  • Tina’s health is not good at the moment and she does not appear to have any earned income.  Her health may severely limit her ability to get paid work.  This would concern the family court.
  • There is mention of the husband’s business.  Was this a business he had during the marriage?  Was it a company and did Tina have any formal interest in the business, such as a shareholding?  Did Tina make an indirect contribution to the value of the business by dint of the marriage?  This business could be hugely significant in any divorce but I don’t have any information.
  • Tina mentions the ‘promised inheritance’ from the husband’s uncle.  This is only a promise and the uncle could change his Will at any time.
  • Unless there are very valuable assets in the marriage, it is likely that a court would deal with a financial settlement on the basis of ‘needs’.  This means that a court may compel Tina’s husband to use any assets he may have built up after Tina left him to satisfy Tina’s financial claims in divorce.  The husband’s inheritance from his mother may also have to be partially used.
  • Tina and her husband are not divorced.  There has not been a financial order from the court.  Tina has not re-married.  This means that the financial claims: property adjustment, lump sum orders, spousal maintenance, and pension sharing orders, are all still open to Tina.
  • Although Tina has been co-habiting with her new partner for six years, this does not have the same weight as a marriage in the eyes of the family court.  In any event, Tina seems to have spent her life savings supporting this man so he can hardly be viewed as a valuable resource to Tina whose existence should prevent her from reaching a divorce settlement with her husband.
  • Tina may well want to go and obtain advice immediately from a family law solicitor who offers legal aid before that scheme dries up  in April 2013.  The solicitor can advise upon initiating a divorce and also a financial settlement and may also want to explore how Tina’s housing situation can be secured should her present partner leave her.  Is the rent paid to a private landlord or to a local authority or housing association?  Steps may be taken under the Family Law Act 1996 to prevent Tina’s partner from relinquishing the tenancy and therefore making Tina homeless.
  • I doubt Tina can take any further steps against her present partner for the monies she has spent on him.  As co-habitees, neither has any financial responsibilities to the other.
  • Tina may also wish to consider booking an appointment with her local CAB to have her situation assessed by a welfare rights benefits adviser, particularly in view of her health.
I hope my observations are helpful and I wish Tina well.


Tags: , , , ,

Form A (for dismissal purposes only)

October 12, 2012 in Self-Representation by Alan Larkin | 3 comments

Form A – Notice of intention to proceed with an application for a financial order

Form A (for dismissal purposes only)

Form A is the document used to start a financial claim in divorce or civil partnership proceedings.  A fair amount of confusion appears to arise when solicitors ask their clients or the self-repping ex-partners of their clients to complete and return a Form A for dismissal purposes only.

Layla recently asked me:

My ex husband and I have been asked to provide a form for dismissal purposes only as we are not seeking a financial settlement do we have to complete one?

Well, I’m not sure who is asking Layla to provide a form but it is likely to be a Form A (pictured above).  This is the form used in divorce proceedings in the Principal Registry or county courts.  If the financial claims are not arising within divorce proceedings, such as Schedule I financial claims under the Children Act 1989, then Form A1 is used.  Any financial claim in the Magistrates’ Court uses Form A2.

Layla refers to neither her or her ex-husband seeking a financial settlement.  Just to be clear: even if Layla and her ex are dismissing all financial claims between them this is still ‘a settlement’.  So, I’m guessing that Layla and her ex have also just negotiated and signed a consent order.

Why Form A (for dismissal purposes only)?

When a Petitioner in divorce files his or her divorce petition, they complete (or should complete!) a page at the back ticking the boxes of various financial claims.  The divorce petition then proceeds through the court and, hopefully, a financial settlement is agreed which results in a document called a consent order.  This consent order, once agreed and signed by the parties is submitted to the court for approval by a judge.  At this point, the only party who has indicated any intention to apply for a financial order is the Petitioner at the back of the divorce petition.  The Court has not yet heard anything from the Respondent about the financial claims they may wish to make.

So, family lawyers simply ask the Respondent to complete a Form A (so that person is opening up their financial claims) but to mark across the top of the Form A “FOR DISMISSAL PURPOSES ONLY”.  This Form A accompanies the consent order to the Court and is a signal to the judge that the Respondent’s financial claims are limited to the terms of the consent order for which approval is sought.

For many years, the courts only seemed to require Form A (for dismissal purposes only) from a Respondent spouse but of late, it has become prudent to also ask the Petitioner to complete a Form A (for dismissal purposes).

The procedure

As for the procedure to lodge the consent order, there can be slight variations between the courts but you will probably need to:

1. Provide two copies of the draft order (that is, two unsigned copies) and a third version which is signed by both parties and any legal advisers who are providing representation;

2. A statement of information form (one for each party). The form can be filled out online or printed off for completion at leisure by visiting http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d081-eng.pdffor If this link does not work then visit the Justice.gov.uk website, go to the Form finder search box and type in Form D81.

3. The appropriate fee – which is, at time of typing, £45.00.

4. Form A, for both parties, which must be completed and then have written across the top “dismissal purposes only”. You can find the Form A, if this link works, at http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-a-eng.pdf. If the link does not work then go to the Justice.gov.uk website again and type Form A into the form finder search box.

I hope that helps.  Good luck.

Tags: , ,

« Older entries