“The Long and the Short of it” – The short marriage conundrum

It is now established in England and Wales than when a couple divorce, the matrimonial assets should normally be divided between them equally, unless there is a good reason to depart from equality. In a large number of cases, especially where the matrimonial assets are limited or where there are children of the family to consider, an unequal division of the matrimonial assets is far more likely to be the end result. However, it has often been argued that if a marriage was ‘short’ and if there are no children of the family to consider, the limited duration of a marriage may provide another good reason to depart from the principle of equality.

It was this issue that was the focus of the case in Sharp –v- Sharp, heard by the Court of Appeal in June 2017. The parties in this case met in 2007, married in 2009 and separated in 2013. The duration of the marriage was described by the original Judge, Sir Peter Singer, as, “not so desperately short … as some, but still by no means lengthy.”

The matrimonial assets amounted to £5.45m and it was accepted that a large part of those assets had been generated by the wife’s receipt of significant bonus payments from her employment. In November 2015, Sir Peter Singer awarded the Husband £2.75m, roughly half of the matrimonial assets. The wife appealed against this decision. Her view was that the husband should have received £1.3m, representing half of the total value of two properties held by the parties. That would in turn mean that she should retain the other assets of the marriage, largely generated by her bonus payments.

The Court of Appeal considered the issues at length. They concluded that in this particular case there existed a ‘perfect storm’ of four factors that when combined together, did present a good reason to depart from equality. Those features were:

– The short duration of the marriage (6 years from cohabitation to separation);
– There were no children of the marriage;
– Both parties were engaged in their own careers;
– There was a degree of physical separation of their personal finances.

However, the Court of Appeal did not agree that £1.3m would provide for a fair outcome in this particular case. The high standard of living enjoyed by the parties during the marriage and the need for the husband to have some capital fund for his future financial needs justified him receiving a further sum of £700,000. The husband was therefore awarded a total of £2m, to be provided by him retaining a property worth £1.1m with the wife to provide him with a lump sum of £900,000.

Family lawyers up and down the country are now left scratching their heads at the implications of this decision. It poses more questions than answers in the cold light of day. If the duration of the marriage had been 10 years rather than 6 years would the Court of Appeal have agreed with Sir Peter Singer? If the duration of the marriage had been only 3 years would the husband have received the £1.3m that the wife considered to be fair?
We do not know the answers to these questions. If the case tells us one thing, it reinforces that a pre-marital agreement between spouses may be the best way to try and achieve a degree of certainty over how the assets of the marriage should be divided in the event of divorce.

“Little more than a charade” – The nonsense of modern divorce

The recent case of Owens v Owens highlighted the ongoing scandal afflicting thousands of couples who remain unable to divorce one another without one of them being blamed for the breakdown of the marriage.

There is only one ground for divorce in England and Wales – the marriage must have broken down irretrievably. This is usually not in dispute. The difficult part is proving that the marriage has broken down because one of five reasons must be given to the court. Once a couple has been separated for over two years, a divorce can be obtained on a ‘non-fault’ basis that they both wish for a divorce. Once they have been separated for five years, no consent is needed for a divorce. However, many couples are either unable or unwilling to wait for such a length of time before seeking a divorce. For those couples, obtaining a divorce means that one of them must be blamed. Unless one of them has committed adultery (and is willing to admit to doing so), the only option is to seek a divorce based upon allegations of unreasonable behaviour.

In order to satisfy the court that there has been unreasonable behaviour, a test must be met: the party being blamed must have behaved in such a way that the party seeking a divorce cannot reasonably be expected to live with them.

The law sets no boundaries over what unreasonable behaviour may include or involve. In practice, an application for a divorce (known as a petition) usually contains several allegations of unreasonable behaviour. Family lawyers are encouraged to keep allegations as mild as is possible to avoid causing unnecessary offence and making the process of divorce more acrimonious than it should be. In the vast majority of divorces, a consensus is agreed between the parties. Even if the party being blamed does not accept what is alleged about their behaviour, they invariably choose not to defend the allegations. There are usually two good reasons for this:

a) Both parties want the divorce and nothing would be gained by defend the allegations; and

b) Even if a party has doubts over whether the marriage has broken down, the legal costs involved in defending a divorce are extremely high and often beyond their financial resources.

In effect, modern divorce in England and Wales is often based on a large degree of collusion. Even if a person does not believe that they have behaved unreasonably, admitting that they have done so enables the divorce to progress and they can move on with their life. However, what happens when the person being blamed does not accept that they have behaved unreasonably and does not accept that the marriage has broken down?
The Facts

In Owens v Owens the parties were aged 67 (the wife) and 79 (the husband). They married in 1978 and separated in February 2015. The wife started divorce proceedings in May 2015, based on allegations of the husband’s unreasonable behaviour. Her divorce petition raised four main allegations:

– The husband prioritised work over family/home life

– The husband failed to provide her with love and affection

– The husband suffered from mood swings

– The husband was overly critical of her

The husband responded by announcing an intention to defend the divorce. He denied the allegations and denied that the marriage had broken down irretrievably. After the court made further directions, the wife amended her divorce petition so it included 27 allegations in total. The husband responded to each of the allegations, continuing to deny them all. The court adjudicated upon the matter in January 2016. The Judge was unimpressed by the wife’s divorce petition and her allegations. He did not agree that the husband had behaved in such a way that the wife could not be reasonably expected to live with him:

“As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that.”

The wife appealed against the court’s decision. Her appeal was heard by the Court of Appeal in March 2017.
The Court of Appeal

Whilst the Court of Appeal was sympathetic to the wife’s predicament, they could find no fault with the earlier decision of the court. The Judge had applied the law correctly to the facts and was quite entitled to reach the conclusion he did:

“…this court cannot overturn a decision of a trial judge who has applied the law correctly, made clear findings of fact that were open to him and provided adequate reasons, simply on the basis we dislike the consequence of his decision.”

In reaching that conclusion though, the Court of Appeal saw fit the highlight that their decision left the wife feeling:

“…unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.”

The wife now faces an agonising wait until February 2020 before she can seek a divorce based on the fact that she and her husband have been separated for 5 years. Whether she, or her husband, will be alive at that point is open to some element of doubt. Can this deeply unsatisfactory state of affairs be considered fair? The Court of Appeal again highlighted (as they have done on numerous other occasions) that their functions cannot and do not extend to changing the laws of the land. The only way in which the wife’s situation could be changed would be if Parliament introduced wholescale reforms over divorce:

“…Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”

The Court of Appeal produced a detailed analysis of the current charade that is modern divorce practice in England and Wales. There were nearly 114,000 divorce petitions from January 2016 to January 2017. Of that number, less than 1% of all divorce petitions saw a party actively defended the divorce in the manner of Mr Owens. Based on this evidence, it does really appear ludicrous that there is no process of ‘non-fault’ divorce in England and Wales unless the parties have been separated for at least 2 years.

Look beyond the headlines – the case of Re JS

The case of Re JS (Disposal of Body) garnered front page headlines in the mainstream media. Once the sensationalism is discarded, the case remains a fundamentally tragic one. It was based on both a foundation that the child bringing the case would not survive much beyond the decision of the court, and that her wider family appeared locked in conflict that would subsist beyond her death. It saw a very experienced Judge, Mr Justice Jackson, grappling with both “a tragic combination of childhood illness and family conflict” and “the new questions that science poses to the law.”

The Facts

JS was a 14 year old girl. She was sadly diagnosed with a rare form of cancer and by August 2016 it was clear that she would not survive. Her parents had been separated for some years. JS had lived with her mother and had not seen her father since 2008. Their relationship was fractured. Relations between her parents were tactfully and simply described by the Judge as “very bad.” JS had a very specific wish in respect of what should happen upon her death. She wished for her body to be cryogenically frozen, in the hope that future medical science would allow her cancer to be treated and that she could have a second chance at life.

Court proceedings were started by JS herself because fundamentally, her parents were unable to agree upon what should happen to JS’ body after her death. Whilst her mother was supportive of her wishes, her father was not. Mr Justice Jackson was in no doubt that JS had the necessary capacity to start court proceedings. She was described as “a bright, intelligent young person who is able to articulate strongly held views on her current situation.” He met with JS in hospital on 7 October 2016, the day after he made his decision.

Mr Justice Jackson made it completely clear that the dispute between JS’ parents was not a dispute over the merits of cryogenics, nor was it an examination of whether JS’ wishes were sensible: “We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS’s position – what they must think.”

Approach of the Court

The approach taken by Mr Justice Jackson was to firstly check whether JS’ wishes were practically possible. Enquiries had to be made with the authorities in the United States, as that was where the cryogenic facility was based. Those enquiries, conducted through assistance from the NHS Trust caring for JS, were positive. The NHS Trust adopted a sensible position that whilst they were not endorsing cryogenics (and remained very uneasy over the procedure), anything that could be done to alleviate JS’ distress and anxiety was in her best interests.

Mr Justice Jackson then considered JS’ wishes upon death from a purely legal perspective. He noted that as JS was aged under 18, she could not make a Will: “My approach is therefore to try to remove the disadvantage that JS is under as result of her age. I do not intend to go further than that, as JS cannot be in a better legal position than she would be if she was an adult.” The central issue was therefore whether the court was able to intervene to resolve the dispute between JS’ parents.

Mr Justice Jackson was in no doubt that the court was able to intervene in these circumstances: “The court is not deciding or approving what should happen, but is selecting the person best placed to make those decisions after JS’s death.” In the case of JS, the view of the court was that it was JS’ mother who was the best person placed to make such decisions. Mr Justice Jackson made the following orders:

  1. A Specific Issue Order permitting JS’ mother to continue to make arrangements, during JS’ remaining days, for the preservation of her body after her death.
  2. An injunction against JS’ father preventing him from:
    – applying for a grant of probate after JS’ death;
    – making any attempt to dispose of JS’ body;
    – interfering with the efforts made by JS’ mother to dispose of JS’ body.
  3. An order providing that upon JS’ death, her mother would be the sole administrator of her estate.

Outcome

JS passed away on 17 October 2016. She died peacefully. Unfortunately, it appears that on her final day of life, JS’ mother was heavily preoccupied with ensuring that the arrangements to preserve her body were in place. This prevented her from spending time with JS. It also appears that the practical arrangements to preserve her body were disorganised and had to be resolved in a manner that had not been planned or approved in advance.

Analysis

The decision of Mr Justice Jackson does not set any precedent, nor should it provide any endorsement of cryogenics: “If another health trust was ever to be faced with a similar situation, it would be entitled to make its own judgment about what was acceptable in respect of a patient in its care, and it might very well reach a different conclusion, as might another court. There are clearly a number of serious ethical issues, and I have received information about procedures performed on the body after death that would be disturbing to many people.” He later commented that the case does highlight the potential need for proper regulations over the preservation of bodies where cryogenics is involved.

In the opinion of the writer, the decision reached by Mr Justice Jackson was one rooted upon the basis of compassion and simple humanity. JS was facing an awful situation that few of us can contemplate and none of us would wish for. She had a very specific wish as to what should happen following her death. She might have chosen specific music to be played at her funeral or asked for her ashes to be scattered at her favourite place. However unusual her actual request was, it was one that mattered to her. Allowing that wish to be fulfilled clearly gave her some comfort in her final days of life.

The Good, The Bad and the Ugly – Pension freedoms and divorce

Over a year has passed since the introduction of ‘pension freedoms’ contained in the Taxation of Pensions Act 2014. The ability of the public to treat certain pension schemes as akin to bank accounts raises significant issues for parties who are either going through divorce, or are contemplating divorce.

Perhaps the biggest impact of the pension freedoms are that holders of a defined contribution (money purchase) pension scheme are now able to withdraw funds from their pension scheme after they reach the age of 55. Rather than a pension fund being ‘locked away’ until retirement age, the fund is now accessible at a much earlier age. An expensive sports car, luxury holiday or a deposit for a child’s first property purchase are all within arm’s reach. The evidence so far suggests that the freedoms have been very well received and pension holders have not been discouraged by the significant tax consequences applicable to pension withdrawals.

Let’s consider an average divorce scenario where the wife wishes to retain the former matrimonial home. In order to retain the home, she has to pay a lump sum to the husband. However, raising that lump sum can often be problematic. If there is little equity in the home or the wife has a limited income, obtaining a lump sum from a re-mortgage may be impossible. However, if the wife has a defined contribution pension scheme, she has a valuable tool at her disposal to raise that lump sum. Problem solved. Good news all round? That would be no.

Whilst the freedoms can be advantageous, they can also cause significant problems. Let’s consider a scenario where the husband and wife separate in 2010. He is aged 53 at that point. Neither of them takes any steps to obtain a divorce. The only meaningful asset of the marriage is the husband’s defined contribution pension scheme, valued at around £60,000. Prior to the pension freedoms, the wife had little course to worry. The husband’s pension was locked away until he reached retirement age and he could not touch it before then.

In 2016 the wife becomes aware that the Husband has been spending money on expensive holidays and household gadgets. Such spending is entirely out of his usual character. Where has this money come from? You can take a guess. The wife issues divorce proceedings and asks the court to consider the resolution of financial matters. By the time the matter comes to court the husband’s pension scheme has been emptied. The husband has no money in his bank accounts. He has spent everything he received from his pension. There are no other assets of the marriage. What can the court do?

The answer in the above circumstances is, sadly, very little. The court does have the ability to make an injunctive order against the husband that would prevent him from withdrawing money from his pension scheme or spending money that has already been withdrawn. However, if his pension scheme is at zero and his bank account is virtually empty, such an order would provide the wife with little comfort or benefit.

If you are separated and have not yet resolved financial matters from your marriage, or if you are going through divorce where pensions are likely to be involved, expert advice is essential.

All is fair in love and war – The case of Liden v Burton

The recent case of Liden v Burton highlights the willingness of the court to uphold the old principles of equity when it comes to disputes between cohabiting couples.

Mr Burton and Ms Liden began living together in Sweden in 1995. He was married but separated from his wife. The parties moved back to the UK in 2001 and took up occupation at Willow Beck. This property was owned by Mr Burton and his wife in their joint names, them having purchased it in the 1980s. As part of his divorce settlement in 2002, Mr Burton paid his wife a sum of £37,500 and Willow Beck was transferred into his sole name.

However, from 2001 until their acrimonious separation in 2013, Ms Liden provided Mr Burton with a sum of £500 per month towards the expenses of running and maintaining the property. Following their separation, Ms Liden claimed that she had an interest in the property because of her payments over a period of some 12 years. Specifically, her claim was that her interest arose under the principles of proprietary estoppel. Proprietary estoppel is an equitable concept that involves the following:

– The owner of a property encourages or allows the non-owner to believe that they have or will enjoy some right or benefit in respect of the property;

– In relying on their belief, the non-owner acts to their detriment with the knowledge of the owner; and

– The owner then seeks to take unfair advantage of the non-owner by denying them the right or benefit they had expected to receive.

The parties were very much at odds with one another in respect of their evidence regarding their relationship and what had been said and done by one another. However, the Judge dealing with the matter at trial preferred Ms Liden’s evidence. He found that Ms Liden’s payments of £500 per month represented half of her pension income. He also found that she would not have made such a contribution unless she had expected to receive something from the property in return. After all, she could have invested her money elsewhere. Perhaps the final nail in Mr Burton’s coffin was that the Judge found that he proposed marriage to Ms Liden in 2003.

He was satisfied that the features of proprietary estoppel were made out. He found that there was an understanding between the parties that of her £500 per month payments, £300 covered a contribution towards the outgoings of the property and the balance of £200 could be said to be ‘her investment.’ Over a 12 year period, this amounted to £28,800. He also found that if interest at 3% was added to this sum, her total interest in the property amounted to £33,522. Given that the property was on the market for £435,000 at the time of the trial, this was around 10% of the equity.

Whilst Mr Burton appealed against the decision of the Judge, the Court of Appeal dismissed his appeal in March 2016. Their view was that the Judge dealing with the matter had the crucial advantage of seeing the parties provide evidence in person. After making the findings he did, he had applied the law correctly to the facts and his decision could not be questioned.

If you are cohabiting and remain unsure over your financial position, there really is no substitute for obtaining clear and comprehensive legal advice.

Divorce by Questionnaire – the paperless Family Court of the future?

The President of the Family Division, Sir James Munby, has given his enthusiastic backing towards the introduction of a fully digital and paperless Family Court by the middle part of 2020. In his recent speech at the Annual Dinner of the Family Law Bar Association, the President set out his hope that the ambitious Courts Modernisation Programme could transform the justice system across the board. In his words, it is long overdue that an escape route is found:

“…from a court system still in too large part moored in the world of the late Mr Charles Dickens.”

A pipedream? Well, the President thinks not. Perhaps there are good reasons for his optimism. Many people have already taken advantage of the Money Claim Online system that allows civil money claims to be processed without the need for setting foot in a court building. The President envisages a future where family proceedings – whether they are divorce or children applications – would be issued online with individuals completing a questionnaire rather than an application form. Judges would usually conduct ‘virtual hearings’ through the consideration of documents alone. If there is a need to hear evidence from an individual in person, telephone or webcam facilities would be the norm rather than the exception.

If this vision is to become a reality, it does represent a formidable challenge. The paperless Family Court of the future would not only require new (simpler) court rules that are understandable by all. The existing IT infrastructure of the justice system requires a comprehensive overhaul. Many court buildings are unfit for purpose, failing to offer adequate Wi-Fi facilities, let alone sufficient power points for electronic devices.

The President’s vision should be welcomed and embraced, despite the obvious challenges ahead. It is an ambitious timetable that he proposes. It is also one that would require immediate attention from a government that has been cruel and uncaring in its approach towards Legal Aid and access to justice for all but the most privileged in our society. If inspiration is sought, one can always turn to Dickens:

“My advice is, never do tomorrow what you can do today. Procrastination is the thief of time.” (David Copperfield)

Breaking the pattern of domestic abuse?

The Serious Crime Act 2015 came into force on 29 December 2015. The Act contains a new offence which is designed to provide greater protection for victims of sustained patterns of domestic abuse.

The new offence is designed to target the perpetrators of coercive or controlling behaviour within an intimate or family relationship. It has long been recognised that domestic abuse does not only manifest itself in physical violence, nor is it limited to relationships between partners. Domestic abuse can also occur in relations between children and parents. The new offence is viewed as filling in the gaps left by existing laws that do not provide sufficient protection for victims of non-violent domestic abuse.

It seems that the offence is designed to target the perpetrators of a wide range of essentially non-violent behaviours that frequently occur in domestic abuse cases. Such abuse can include a pattern of threats, humiliation and intimidation. It could include stopping a partner or family member from socialising, controlling their finances, monitoring or controlling their social media accounts or dictating what they wear.

In order for the offence to be made out, the controlling or coercive behaviour of the perpetrator must cause the victim:

  • to fear that violence will be used against them on at least two occasions; or
  • serious alarm or distress which has a substantial effect on their usual day-to-day activities.

The offence carries with it a maximum of 5 years’ imprisonment, a fine or both. There appears to be no doubt as to the sound intentions behind the offence. However, it remains to be seen whether the Police and other agencies will have the necessary training and expertise to assist victims in establishing cases where coercive or controlling behaviour is a feature.

Victims of such abuse may not feel that they are a victim at all and may consider the pattern of abuse they suffer as ‘normal’ and a simple part of daily life. Guidance to the Police in respect of the offence highlights that it remains the function of the Police to build a case for the benefit of the victim, rather than it being the responsibility of the victim to build a case to present to the Police. To that end, the Police will be encouraged to consider a wide range of evidence sources to build up a picture of the pattern of abuse. This should include both traditional ‘witness evidence’ as well as social media accounts, emails, text messages and the like.

If you feel that you are a victim of domestic abuse in any context, please do not suffer in silence. We are here to help.

When is a parent not a parent?

Administrative errors are a common fact of life. All of us (lawyers included) are prone to mistake. Unfortunately, sometimes those mistakes can have quite significant consequences. The President of the Family Division, Sir James Munby, had to grapple with that problem when he heard the matter of HFEA 2008.

The matter concerned the applications of no less than 7 parents who were seeking declarations of parentage in respect of their children. In each case, the children concerned had been born by way of donor insemination, overseen by a number of fertility clinics. These parents clearly considered themselves to be parents of their children. However, the fertility clinics said otherwise. This was because in the case of these 7 parents, the correct forms to confirm that the donors consented to fertility treatment had either gone missing, or were not the mandated forms specified by the Human Fertilisation and Embryology Authority (HFEA).

The President indicated in his judgment that it would clearly be wrong to deprive a child and parents of a legal relationship because of an administrative error relating to incorrect paperwork. As far as he was concerned, the crucial issue was that each donor had provided written and informed consent to fertility treatment, as required by the law. He heard evidence at length from the parents, commenting that it was:

“…some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, [her] partner might not legally be the parent.”

The oral and written evidence presented to the President left him in no doubt that in each case, it was clear that the relevant consent to fertility treatment had been provided, even if not in the correctly prescribed manner. Declarations of parentage were accordingly made in favour of the 7 parents.

The President’s clear regard for the emotional turmoil and distress suffered by the parents contrasts starkly with his criticism of the “administrative incompetence” demonstrated by the fertility clinics. As a postscript to his judgment, he made a series of recommendations to the fertility clinics to avoid future repetition of the mistakes inflicted upon the 7 parents. However, he feared that given the number of fertility clinics in the UK (over 100), it was more than likely that the 7 parents he had dealt with were “only the small tip of a much larger problem.”

probate

A Stranger to Charity? The case of Ilot v Mitson

The Inheritance (Provision for Family and Dependants) Act 1975 gives the court the power to make orders where the deceased individual failed to make reasonable financial provision to a dependant upon their death. Claims under the Inheritance Act are often made by children of the deceased, or by surviving spouses. In deciding the outcome of such claims, the court must take into account competing interests. On the one hand, the court must consider that the deceased has the right to leave their assets to whomever they wish. On the other hand, the court can and should intervene when it is clear that the deceased has failed to make adequate financial provision (or failed to make any financial provision) for a dependant.

The recent case of Ilot v Mitson and Others highlights how the court exercises its discretion in deciding claims under the Inheritance Act. Mrs Melita Jackson died in 2004. Mrs Ilot was her only child. Sadly, Mrs Jackson and her daughter were estranged from 1978 onwards. Despite several attempts at a reconciliation between the parties, they remained estranged up until the death of Mrs Jackson.

In 2002, Mrs Jackson made a Will. Within this, she made no financial provision for Mrs Ilot, nor any provision for Mrs Ilot’s five children or her husband. The entirety of Mrs Jackson’s estate was left to various charities, including the RSPB and RSPCA. It was accepted by all involved that Mrs Jackson had not enjoyed any connection with the various charities during her lifetime. Unsurprisingly, Mrs Ilot made a claim under the Inheritance Act following the death of her mother.

By August 2007, Mrs Jackson’s estate was valued at £486,000. The circumstances of Mrs Ilot and her husband were extremely modest. They did not own a property and were renting. They had no savings. Their total combined annual income including state benefits was less than £19,500. Mrs Ilot was in her 50s and had no pension to look forward to upon retirement.

Following a hearing before a District Judge, Mrs Ilot was awarded £50,000. This sum was awarded to her on the basis that she had previously been living within her means and such an award, capitalised over time, equated to around £4000 per year. She appealed against that decision and the case eventually came before the Court of Appeal in July 2015.

The Court of Appeal agreed that the decision of the District Judge was unfair. They found that the District Judge had made an error in limiting his award purely because Mrs Ilot had been living within her means. The fact that Mrs Ilot was estranged from her mother and had no expectation of receiving anything from the Will should also be discounted. Moreover, they found that the District Judge had not considered that a capital sum of £50,000 awarded to Mrs Ilot would actually lead to a reduction in her state benefits. She would therefore be worse off under the order of the District Judge than if there had been no award in her favour at all.

The Court of Appeal noted that because Mrs Ilot was reliant on state benefits to supplement her income, the practical effect of any alternative award in her favour had to be carefully considered. In essence, the only real way to protect her ability to claim state benefits would be if she was awarded enough capital to enable her to purchase a property for herself and her husband. The Court of Appeal awarded her £143,000 to purchase a property as a result. They also gave her the option of claiming a further capital sum of £20,000, should she wish to do so. Claiming such a sum would impact on what she received by way of state benefits but it was down to her as to whether she wanted to make that decision.

If you are worried over the terms of your own Will, or believe that you may have a claim under the Inheritance Act, we are here to help.

A very modern family – The Case of Re A

Families come in all sorts of shapes and sizes. The recent case of Re A highlights the difficulties that the Family Court may encounter when dealing with family circumstances that are highly unusual.

The case concerns Alice, a 9 year old girl. Her mother was Rachel. Her father was David, a known sperm donor who lived abroad. At the time Alice was conceived, Rachel was in a civil partnership with Helen. Both Rachel and Helen had mental health issues. Helen also suffered from mobility issues and had two adult children of her own, one of whom (Susan) had her own physical and learning difficulties. Rachel and Helen separated in 2009. Rachel was detained under the Mental Health Act and so Alice went to live with Helen under a court order. Alice had lived with Helen since that point, although she maintained supervised contact with Rachel. Alice also had contact with David by way of social media and occasional visits.

In 2009, Helen started a relationship with Matthew, a female to male transsexual in the process of transitioning. Matthew also had mental health difficulties. During his relationship with Helen, Matthew played a role in caring for Alice. The relationship between Helen and Matthew ended in 2013. Matthew then entered into a new relationship with James. Matthew did maintain contact with Alice for around 16 months after his separation from Helen. Contact ceased in acrimonious circumstances. Following the cessation of contact, Matthew applied to the Family Court for permission to seek a child arrangements order, namely contact with Alice.

At the time of Matthew’s application, Alice had been diagnosed with autism spectrum disorder. She was also said to have experienced some gender confusion, spending a period of time identifying as a boy.

The issue before the Family Court was whether Matthew should be granted permission to proceed with his proposed application. Given the exceptionally unusual circumstances behind the application the Judge appointed a guardian for Alice to represent her in the proceedings. Matthew’s application was opposed by Rachel, Helen and David. Alice herself appeared to be aware of the proceedings but expressed no preference over their outcome.

The Judge heard that there were several factors that pointed towards granting permission for Matthew to proceed with his application. He had clearly played a role in Alice’s life, both before and after his separation from Helen. It was also argued that Matthew would not have required permission from the Family Court to proceed with his application, had he applied earlier. This was because he had lived with Alice for a period of 3 years. Matthew argued that he was essentially no different to any other step-parent and he could perform a role as a father-figure to Alice.

There were also a range of arguments that pointed entirely the other way. Alice was already engaged in relationships with a large number of adults and her guardian was concerned that any reintroduction of contact with Matthew would have to be both sustainable and of significant benefit to her. Rachel considered that Alice’s wellbeing and gender confusion issues had improved since David’s departure from her life. Helen was concerned that if permission was granted, Alice was at the risk of being introduced to conflict and stress.

The Judge faced a difficult task in weighing up the arguments from both sides. He was especially concerned at taking a global, holistic view of Alice’s circumstances when making a decision. The Judge noted that Helen’s health issues (and those of Susan) created considerable care needs. When combined with Alice’s autism and apparent gender confusion, the Judge was clear that if Matthew’s application proceeded, there was a clear risk to Alice’s welfare. He therefore refused permission for Matthew to proceed with his application.

It is worth remembering that for the majority of applications to the Family Court, parents and primary carers of children do not require permission to proceed (as Matthew did). However, grandparents and step-parents often will require permission to make applications. In many cases, that permission is granted. Re A is a reminder that having an arguable case is one factor that the Family Court will consider in such cases. However, simply having an arguable case is not always sufficient. The welfare of the child or children concerned is always a relevant consideration for the Family Court, In cases where there is a risk of litigation creating significant conflict and harm for the child or children concerned, the Family Court is entitled to err on the side of caution.

For further help or advice, we’re just a phone call away.