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For further help or information regarding the articles below, please contact Elizabeth Hodder at eah@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk or Julie McDonald at jm@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

JACKPOT!

Would your ex be entitled to a share of a lottery win if you are separated or divorcing? Maybe not!

In October 2011, the High Court had to deal with this issue when deciding whether a husband should receive a share of his wife’s £½ million win.

The wife paid her winnings into an account in her name. She purchased a property in her name and used her money to renovate it.

The couple later divorced and the husband claimed a share of the winnings in the divorce proceedings.

Was the lottery win “matrimonial property” to be shared or “non-matrimonial property” to be treated in the same way as inheritances – potentially ring-fenced? As the husband had lived in the property, albeit for a short time, it was decided that the wife had converted some of her winnings to matrimonial property. As the original source of the funds was “non-matrimonial property” and as the husband only lived in the property for a short period of time, he was awarded a lump sum of £85,000.

If the wife had not purchased a family home for them both, she may have kept the lot!

In divorce, all the circumstances of the case are looked at. As a starting point, matrimonial property may be shared equally but non-matrimonial property may not be. The needs of both parties must also be considered and equality may not be the fair outcome.

If you would like more information, please contact Julie McDonald jm@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

15 minutes of (unwelcome) fame

On 9 November 2011 Mr Kernott and Miss Jones made headlines. To do so, they had to endure trials in the County Court; High Court; Court of Appeal and Supreme Court. What happened to them and why is a salutary tale for all unmarried couples who own a property together.

Jones/Kernott owned a house, as joint tenants. They separated 19 years ago; the house stayed in joint names. It went up in value. Miss Jones lived there with their children. Mr Kernott asked for 50% of the value of the property in 2007. The County Court Judge said that over time, the intention of the parties had changed, and it was not right for the value of the house to be divided equally as a result. Miss Jones recovered 90%. The case ping-ponged through the Courts until the Supreme Court’s decision in November; 5 Judges said the County Court Judge was right and Mr Kernott recovered a 10% share. This is the very briefest of summaries of course , but what the case highlights for unmarried property owners is this; it is vital that you are both clear about your intentions not only from the outset of your relationship, but as time goes on, and the financial or personal dynamics of the relationship change.

Because there was no document saying ‘this is what we are intending to do regarding our house/assets…’ the Court/s had to try and work out a fair solution based on inferences and ‘the whole course of dealing’ between the couple. A recipe for uncertainty! Four different Courts; four Judgments, four years of litigation and many thousands of pounds later this couple now finally know their fate. A Living Together Agreement and/or a Declaration of Trust could have spared Miss Jones and Mr Kernott their 15 minutes of fame, and saved them a small fortune. If there had been a document setting out their intentions which the Court could have taken into account, you would not now be reading about their plight. If in doubt, spell it out, is the moral of this story.

Collaborative Law is available for Living Together Agreements.

Elizabeth Hodder eah@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

“If in doubt, spell it out” - Living Together Agreements

On 9 November 2011 Mr Kernott and Miss Jones made headlines. To do so, they had to endure trials in the County Court; High Court; Court of Appeal and Supreme Court. What happened to them and why is a salutary tale for all unmarried couples who own a property together.

Jones/Kernott owned a house, as joint tenants. They separated 19 years ago; the house stayed in joint names. It went up in value. Miss Jones lived there with their children. Mr Kernott asked for 50% of the value of the property in 2007. The County Court Judge said that over time, the intention of the parties had changed, and it was not right for the value of the house to be divided equally as a result. Miss Jones recovered 90%. The case ping-ponged through the Courts until the Supreme Court’s decision in November; 5 Judges said the County Court Judge was right and Mr Kernott recovered a 10% share. This is the very briefest of summaries of course , but what the case highlights for unmarried property owners is this; it is vital that you are both clear about your intentions not only from the outset of your relationship, but as time goes on, and the financial or personal dynamics of the relationship change.

Because there was no document saying ‘this is what we intend to do regarding our house/assets…’ the Court/s had to try and work out a fair solution based on inferences and ‘the whole course of dealing’ between the couple. A recipe for uncertainty! Four different Courts; four Judgments, four years of litigation and many thousands of pounds later this couple now finally know their fate. A Living Together Agreement and/or a Declaration of Trust could have spared Miss Jones and Mr Kernott their 15 minutes of fame, and saved them a small fortune. If there had been a document setting out their intentions, which the Court could have taken into account, you would not now be reading about their plight. The moral of this story is clearly - if in doubt, spell it out.

Collaborative Law is available for Living Together Agreements.

Elizabeth Hodder eah@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

INHERITED ASSETS

One of the most common questions I am asked by new clients considering divorce/separation is what happens to assets which the client has received under an inheritance. It is a straightforward enough question, but as with many things in life there is no straight black-and-white answer. In a case in which there are few marital assets to be divided up, an inheritance can play a very large role. For example, if when the marital home is sold, the sale proceeds will be insufficient to allow both the husband and the wife to re-house adequately, a Judge will be looking around for what other assets there may be which could plug the shortfall. The inherited money sitting in a bank account in the name of one party will be something which a Judge cannot ignore in these circumstances.

Money which was inherited many years before the breakdown of the marriage, and used for example to pay off a mortgage or to improve the marital home, is money which has probably been subsumed into marital assets and cannot later be extricated and given back to the party who originally acquired it. Money which is inherited very soon before the marriage breaks down, is much easier to identify, and so to ring-fence. In the former case, where the inherited money has been used for the family’s benefit, the party who provided the inheritance can justifiably say they should receive a greater share of the overall marital pot because of their superior financial contribution.

What I have never known a Court to do is to divide up an inheritance 50/50 between the husband and the wife. That is because the inheritance was not generated by the husband or the wife through any of their own efforts. It is not therefore a marital asset. It is an asset which one or other party has, and therefore it has to be taken into account but, it will never be treated in the same way as, for example, money invested in the marital home itself.

What about future inheritances? Can spouses can make a claim for a share of a future inheritance from their ex-spouse? Probably

So when my clients ask me “Is my spouse going to get 50% or my inheritance?” my answer to that can be a fairly confident “No”. The Court will not overlook the fact that had the parties remained married, the inheritance would have played a role in the marriage. Because the marriage is ending, the chance of both parties benefiting from that future inheritance has gone. The Court may need to dip deeper into the true marital assets in order to compensate the non-inheriting party for that loss of benefit.

Elizabeth Hodder eah@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

THE MYTH OF THE QUICKIE DIVORCE

Many people assume they must be separated for two years before they can get divorced. Many also think that once separated for two years a divorce will be automatic, without the need to file divorce proceedings. The press lead us to believe it is possible to get a quickie divorce, especially if you are a celebrity.

None of these are true.

There is one ‘ground’ for divorce – the irretrievable breakdown of the marriage proved by either:

Despite what the soap operas would have you believe, there is no ground called ‘irreconcilable differences’ or ‘mental cruelty’. There is also no fast track divorce for Royalty or rock stars. Everyone has to follow the same procedure. It takes the same amount of time whether you are an HRH or Mr Jones from the corner shop. Other matters such as resolving financial issues, the marital home and with whom the children of the family are to live, can lead to the divorce itself taking a little longer than the standard length of time, namely four months.

If you would like more details about any Family Law matter, or would like to book a free initial assessment interview, please contact Julie McDonald, Solicitor, on jm@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk or 01284 763333.

LIFE’S LOTTERY

Did you hear about the man who won the Lottery, and then paid his ex-wife £2 million of his winnings because he didn’t have a clean break order? The chap concerned had been divorced 10 years previously, but was still paying maintenance to his ex wife. She sought to capitalise the remaining maintenance claim, and settled for a £2 million share of his £56 million jackpot. An apocryphal story? Well, it’s the first reported case of a Lottery winner having to stump up some of their winnings to pay to an ex-spouse. However, what lessons can be learned by those of us who haven’t been fortunate enough to win millions on the Lottery?

The most important lesson to remember is that a divorce does not end the financial ties between a husband and wife. It just ends the marriage itself. Many spouses rush to get their Decree Absolute believing that it means ‘there’s a clean break between us’. It doesn’t. It’s necessary to go one stage further, and to obtain an Order which deals with the financial ties both spouses acquired when they signed the Register on their wedding day. In many cases there can’t be a clean break once and for all settlement – the Lottery winner’s ex-wife was receiving maintenance for herself, and so she could capitalise the remaining term of her maintenance Order. Maintenance isn’t paid to an ex-spouse in every case however. Some couples earn the same amount; some have no children. In those cases it may not be appropriate for maintenance payments to be made by one partner to the other. In that event, a clean break can be obtained, and it should be, or it could prove a very costly omission.

Elizabeth Hodder eah@gross.co.uk

A STITCH IN TIME

An increasing number of my clients are in unmarried relationships, and 99% do not have Living Together Agreements. What are the benefits of a Living Together Agreement (LTA), how do you get one and who should have one? When a marriage breaks down, couples usually get divorced. There are Statutes telling Judges how the couple's property should be divided up between them and couples can get a pretty good idea from their lawyer on what the financial outcome of their divorce might be. There are no Statues covering financial disputes between unmarried couples. Until we have a Cohabitation Act, there will always be uncertainty of outcome for unmarried couples (of either gender), and uncertainty is stressful and expensive.

Sometimes the couple will live in a house which one of them has owned for many years previously, in their sole name. They pool their resources, split their bills and each pay towards the mortgage. In the warm glow of a new relationship, it's easy to overlook how that situation might cause problems in later years. The relationship can last 1 year or 10 years. At its end, what happens to the house? I see many non-home-owners who believe that because they have paid the mortgage, or done work in the house, they have a % stake in the property. Some clients think that the longer the relationship lasts, the bigger their stake gets, till eventually it's 50/50. I often hear that 'I'm a common law wife'. There is no such thing.

Conversely, some home-owners come to me saying ' my partner has never paid towards the mortgage' and believe this is a bar to their partner having any stake in the property at all. All of these are assumptions which for different reason or another are bad assumptions to make. A person can acquire an interest in a property even though they are not on the legal title, and haven't contributed to the mortgage for example. Without An Agreement in writing at the start of the relationship it, the lawyers must try and re-construct (sometimes many years later), what each party intended. What did paying or not paying the mortgage mean, in the minds of each party? Will both sides agree on what was intended? Most unlikely. What about possessions - cars, contents of the house? What about debts some of which may be in the name of one party only, but have been used to fund the couples' lifestyle?

A Living Together Agreement spells out what the couple intend at the start of the relationship. That's when they are most likely to be signing from the same hymn sheet. It covers the problem where their home or owned by just one party; equally it can cover what happens when the home is jointly owned. Who can stay in the property, for how long, on what terms; can one party buy out the other's interest, and if so how quickly? Who should clear jointly accrued debts; who gets to keep contents, cars, and other possessions?

How do you get an LTA? Easy - book an appointment with Elizabeth Hodder.

Elizabeth Hodder eah@gross.co.uk

MAINTENANCE AFTER DIVORCE – HOW MUCH AND FOR HOW LONG?

Nothing in family law is guaranteed; there is no cast-iron certainty, no failsafe system of predicting or planning for a particular outcome to a client's case. I attended a course recently, at which two top Queen's Counsel argued a fictional case; one for the husband, and the other for the wife. Two senior Judges listened to the QC's speeches. The Judges each then gave their Judgments, based on what they had heard. One Judge found in favour of the wife, the other, for the husband. They had both heard exactly the same facts, yet they came to totally different decisions. This is what I have to deal with every day in my practice - uncertainty of outcome.

Since 1984, Judges have a duty to consider severing all financial ties between husband/wife after a divorce. The concept of maintenance 'for life' was up until that point, commonplace. Post 1984, Judges have to consider '...whether it would be appropriate to require payments to be ...made only for such term as would in the opinion of the Court be sufficient to enable the party in whose favour the Order is made to adjust without undue hardship to the termination of his/her financial dependence on the other party.' Note the wording of this clause refers to undue hardship. Thus, the party receiving the maintenance could suffer some 'hardship' as long as it was not 'undue hardship'.

Many people believe that post-divorce that there is an obligation to ensure that both parties enjoy the same level of income. Many people perceive that if one party in the marriage has worked part-time, to fit in around children's schooling for example, that this status quo should invariably continue when the children have ceased school, and are no longer dependent. There is also a perception that if one party cohabits with a new partner, the maintenance liability of the other ex-spouse will automatically terminate. These are all common misconceptions, or traps for the unwary.

The ability to become self-sufficient by exploiting an earning capacity which has lain dormant during the years of bringing up a young family, and re-training for new job skills are issues which I discuss with my clients at an early point in any financial application during divorce proceedings. These are significant factors which may sway a Judge to set a limit upon the number of years for which maintenance should be paid.

The significance of a cohabitee is not the automatic end to a maintenance obligation, which most think that it is. It is just one of a number of issues a Judge will consider.

This means that in every case, the unique facts particular to that couple are what will decide a case, one way or the other. Thus, it is not possible to predict with certainty what a Judge on any given day will determine is fair in all the circumstances. The answer is surely clear – don’t take a gamble on what the Judge may or may not decide. Use Collaborative Law for a tailor-made solution which suits your circumstances, and long-term goals.

Elizabeth Hodder eah@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

WHERE WILL CHILDREN SPEND THEIR HOLIDAYS?

At this time of year, the family department at Gross & Co receive numerous enquires from separated parents about “which parent should have the children over the Christmas holidays?” Both parents would like the children to wake up on Christmas morning in their home, and to enjoy the magic of Christmas Day with them. That is only natural after all. So how should separated parents decide who sees the children when and how during holiday periods?

There are no hard and fast rules; if at all possible, parents should agree between themselves how the holidays are to be shared, and they should start planning for the holiday season early. Failing to tackle this problem early (and October is not too early to start), can lead to the all too common battles in Court on Christmas Eve. County Court Judges in December spend a vast amount of their time deciding contact disputes between parents who can’t agree on how their children shall spend 48 hours in one month of the year. Christmas is expensive enough for parents - avoid litigating about the children at all costs!

If the parents cannot agree, the matter can be decided by the Court, when one parent makes an application for a Specific Issue Order. The Court will decide on what contact arrangements will prevail on Christmas Eve and Christmas Day.

The interests of the children are the paramount consideration. In most cases, Courts consider that the children should spend Christmas Eve and sometimes Christmas Day, with one parent in year one, and the same arrangement for the other parent, in year two. Many children are very fortunate to enjoy two Christmas Day celebrations with their respective parents. What can be better than dividing the day equally between both parents? That is the ideal solution, but for families who live a great distance apart, it is not workable. To ensure that Christmas is a very peaceful and special time, spend December looking forward to Christmas contact arrangements with the children rather than spending time and money arguing it out in Court.

Julie McDonald jm@gross.co.uk

A few statistics for you; nearly one in two marriages end in divorce. Nearly 78% of couples who divorce, will remarry. In 1991, 41% of all marriages were second marriages. We like marriage. We like it so much, we often do it twice.

In the course of acting for a client going through a divorce, my client may exit the marriage with a house or houses, cash, or pension assets, or a combination of all three. My client may get a 50% share of the overall marital assets, and may consider that result fair in all the circumstances. So may it be. However, if my client then marries again, and that marriage also ends in divorce, is it then right and fair that my client’s assets are divided up again, and possibly split 50/50 with the new spouse?

So why prevention is better than cure? Well, if my client had drawn up a premarital agreement with his/her new partner, the couple could have reached an agreement over what should happen in the event the second marriage did not last. This can, for example, ring-fence the pre-acquired assets from the first marriage. The agreement might provide that the assets from the prior marriage would remain where they were, and any assets acquired by the couple through their joint efforts after the marriage, were to be shared equally, if the marriage did not last. It can protect both parties, as both may be bringing assets into the second marriage.

Pre-marital agreements are also ideal when there is a family business, which has been owned and run by family members for many years. The last thing the family will want is a situation where part of the business has to be sold off as part of a divorce settlement, or even more disastrously, part of the business has to be transferred to a non-family member, as part and parcel of an overall division of marital assets.

If one party to the marriage is a farmer, whose family have passed down land through the generations, protecting the land for future generations is vital. It can be done, with a bit of forward planning, careful legal advice, and a pre-marital agreement.

You may ask if a pre-martial agreement is legally enforceable and 100% water-tight. That has been a moot point for many years. In late 2008 the legal position became much clearer. Now, providing both parties are frank with each about their financial position, providing each party had equal bargaining power, and there is reasonable provision made for the financially weaker party (if there is one), then a divorce Court will uphold the terms of a pre-marital agreement. Reviewing the terms of the agreement when, for example a child is born in to the marriage, is also advisable, to ensure a Court is convinced of the overall fairness of the document.

Hard bargaining tactics simply aren’t appropriate in pre-marital agreement negotiations, of course. A pre-martial agreement is best discussed in the Collaborative Law process, where both parties sit down face to face, with their respective Solicitors, and discuss their wishes and objectives openly, and amicably. Pre-marital agreements and the Collaborative process are a match made in Heaven.

Prevention is always better, and far, far cheaper, than cure.

For further information, contact:
Elizabeth Hodder
Partner and Collaborative Trained Lawyer
eah@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

CHILDREN - Who Decides?

What happens when parents cannot agree on an important step in a child's upbringing or welfare? For example:

None of these decisions can be made by one parent acting alone; the other parent with parental responsibility for the child, must give their consent. If the parents cannot agree, the Court must decide by making a Specific Issue Order, in the course of proceedings brought under the Children Act 1989.

If one parent has threatened to make a unilateral decision e.g. to take the child on holiday, the other parent can apply to the Court for a Prohibited Steps Order, which will stop the holiday (for example) unless and until the Court approves it, having heard evidence from the parties as to the pros and cons.

When a Judge is asked to make a Specific Issue Order or a Prohibited Steps Order, the welfare of the child is the Court's paramount consideration and the Court will take into account the ascertainable wishes and feelings of the child concerned, as well as all other relevant factors known to the parties. There is a great deal of case law which provides guidance to Judges in these circumstances. Each case is decided on the individual circumstances of the particular child.

Will I Keep my Pension on Divorce

When I see a new client who has just separated from their spouse, this is one of many questions I am asked. Other common questions are (for example), "I paid all the deposit to buy our house, will I get that back?", "my parents loaned us £10,000 to pay off our mortgage when we got married, will my spouse have to pay half of that back to them?", "I was due to retire next year, but if my spouse takes half my pension how can I afford to pay my outgoings and still have enough to live on?".

Divorce/separation is one of the most stressful events we can experience; it ranks amongst stressors such as the loss of one's job, and even family bereavement. Much of the stress comes from uncertainty both parties face once they separate their lives physically, emotionally, and of course, financially. Both parties will have many questions, to which they quite naturally want black and white answers. At an initial interview with a Solicitor who specialises in this area of law, it is almost always impossible to provide concrete answers to all the client's questions. This article will endeavour to explain why that is.

Solicitors advise on likely outcomes, based upon the facts of the client's case, and the criteria which a Judge would apply to those facts. The criteria a Judge will apply are set out in s 25 of the Matrimonial Causes Act 1973. They are:

  1. The income, earning capacity, property and other financial resources which each party has or is likely to have in the foreseeable future including, in the case of earning capacity, any increase in that capacity which it would be, in the opinion of the Court, reasonable to expect a person to take steps to acquire.
  2. The financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeable future.
  3. The standard of living enjoyed by the family before the breakdown of the marriage.
  4. The ages of each party and the duration of the marriage.
  5. Any physical or mental disability.
  6. The contributions which each party has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
  7. The conduct of each party, if that conduct is such that it would in the opinion of the Court be inequitable to disregard.
  8. The value to each party of any benefit which one party because of the divorce will lose the chance of acquiring (most usually pension provision).

A new client will be asked by their Solicitor to provide a great deal of financial information about themselves. Earnings (both past and present); non-financial contributions to the family unit (like looking after children/the home); the values of pension/s; contributions to the family 'pot' which were not earned by either party (inheritances under a family member's estate e.g.); future expectations (pay increases/new jobs with fringe benefits like cars or private healthcare) - all of these can provide valuable information for the Solicitor to begin working out how the parties' financial affairs can fairly be unravelled and (if need be), how family assets should be re-assigned.

Both spouses will have to provide the same financial information, to their own Solicitors, so there is a level playing field. The Solicitors for each party exchange that information, and each side can then ask questions of the other, to clarify issues or fill any gaps in information. The Solicitors will then apply the s25 criteria a) - h) to both sides' information, and try and work out a fair and equitable outcome for their own client.

Take for example a wife who gave up her career to raise children, and provide the husband the opportunity to work full-time and develop his career. When the wife's role as mother and home-maker comes to an end (when the children leave school), her ability to earn a substantial income is greatly diminished. The husband may by then be at the peak of his earning capacity. If the parties separate at this point, both parties' earning capacity must be looked at, with a view to re-distributing income to compensate the wife for her role over many years as home-maker.

In another case, the husband may farm land which has been passed down through his family for generations. The husband has made a contribution to the family 'pot' (the family farm) which should not be overlooked. Would it be right for those farming assets to be put into the 'pot' and divided up equally between the parties? Is the farm a matrimonial asset, or should it be treated differently, given the parties to the marriage did not acquire that asset through their own joint efforts?

Working out how a Court might divide up family assets is not a precise science. Judges have discretion, and how one Judge might approach a given set of facts, can differ to how another Judge would do so. You can see from the examples above, that fairness or sharing of assets, may require that one party or another to give up assets, or a claim to assets, in order to achieve an overall fair outcome.

It is only when all the relevant facts about a case are known, that a Solicitor can (with any degree of certainty), advise clients properly on a likely outcome to their case, based on the current law and the statutory checklist.

If both parties give a full and frank account of their financial positions, the Solicitors will be in the same position of a Judge who is asked to judicially determine a case. At an initial interview with a new client about whom the Solicitor knows very little, it is therefore virtually impossible to answer the question "Will I keep my pension?" with accuracy.

Be wary of genuinely well -meaning advice from friends or colleagues who have been through a separation/divorce themselves. Their financial and personal circumstances are unlikely to be exactly the same as yours. How the s25 checklist applied to them, was based on their individual facts and figures, not yours. What is the right outcome for you, is not necessarily what was the right outcome for them.

An initial interview with a Solicitor about the financial implications of a separation/divorce, is the first step towards achieving the right outcome for your circumstances. There are no instant answers, or at least, none which should be relied upon.

Tips for the first meeting with your Solicitor.

This will help your Solicitor to give you basic initial advice on where you stand, and how a Court might treat the different assets in your case.

CHILD MAINTENANCE AND UNEMPLOYMENT

When parents divorce, the parent with whom the child/children resides can ask the non-resident parent to pay maintenance for the children, in a number of ways: payments can be made voluntarily; the CSA can be asked to assess the non-resident parent; or an agreement can be incorporated in a Consent Order between the parties. With unemployment rising, incorporating maintenance payments for children in a Consent Order may no longer be the best option.

If child maintenance is included in an Order, neither the payer nor the payee can apply to the CSA to take over or review the maintenance payments for 12 months following the date of the Order itself. So, what happens if the payer is made redundant or takes a pay cut? If payments are not made, the Order is breached, and the payee can apply to the Court to enforce the Order. The Court will undoubtedly vary the Order to take account of the redundancy or pay cut. However, getting there can be an expensive option for both the payer, and the payee. There is a Court fee to pay, Court forms to complete, and the process is not straightforward. Involving a Solicitor on either side will be costly.

It may not now be advisable not to include maintenance for children in an Order, but simply to take voluntary payments and if need be, apply to the CSA if the voluntary payments are not maintained.

CHILDREN'S WISHES

The Children Act 1989 contains a welfare checklist. This is a list of factors that the Court (and other parties) must take into account when making a decision about the welfare of any child involved in any application to the Court. It is no accident that at number one the checklist says that the Court shall have regard in particular to "the ascertainable wishes and feelings of the child concerned".

It is a common misconception that when a child reaches a given age, that he/she can express a binding view about, for example, which parent the child wishes to live with. There is no set age at which a child can simply tell the Court (and the parents) where the child will live in the future. Depending upon the maturity of the particular child, the child's ascertainable wishes can carry a lot of weight. However, children do sometimes express wishes to do a particular thing, which are based upon a whole range of factors, and not necessarily, what is in that particular child's interest. Many children say that they do not want to go to school; if parents and Courts followed the child's wishes in those circumstances, many of our schools would be poorly attended.

The Court must balance a number of factors when making a decision about where a child will live, following a relationship breakdown. The more mature the child and the more clearly expressed the child's wishes, the more weight those wishes will carry. Each case in Children Act proceedings is judged on its own particular circumstances, and like children themselves, no two cases are identical.

MARRIED OR UNMARRIED

WHAT HAPPENS TO THE HOUSE WHEN YOUR RELATIONSHIP ENDS?

Alan and Elaine have lived together since they married ten years ago. Alan is the sole owner of their three bedroom house, which is now mortgage free due to the success of Alan's computer software business.

Their friends, Helen and Karl have also lived together for ten years, but are not married. They also live in a three bedroom house, which is in Helen's sole name. She inherited it from her grandmother when she was eighteen, and it is also mortgage free.

The only difference between the two couples is that one is married, the other is not.

Alan is having an affair with Helen, and it is likely that the couples will separate. As Alan and Helen are the sole owners of their respective houses, will they each keep their houses, and will Karl and Elaine each get a share?

If Alan and Elaine decide to divorce, the Court would treat Alan's house as a matrimonial asset regardless of who owns it. All Alan and Elaine's assets would be put into the matrimonial pot and would form part of the overall financial settlement.

In contrast, if Helen and Karl go their separate ways, the Court would not have the power to grant Karl a share in the house, unless Helen and Karl intended that he would have a share, and Karl acted to his detriment in reliance upon that intention/ agreement.

The law governing unmarried couples and distribution of assets when a relationship breaks down is likely to change in the foreseeable future.

WHAT IS PARENTAL RESPONSIBILITY?

Parental responsibility means the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child's property. A parent is responsible for making all the important decisions in a child's life, such as where a child goes to school, and in relation to religion and medical care, as well as day-to-day decisions.

Who has parental responsibility? Married parents have joint parental responsibility. If the parents are not married, only the mother has parental responsibility. The unmarried father can acquire parental responsibility in one of six ways:

If the child lives primarily with one parent, parental responsibility is unaffected. The resident parent may make day-to-day decisions in relation to the child without consulting the non-resident parent. However, if any important decisions need to be taken, the non-resident parent must be consulted. The main areas of disagreement between parents are changing the child's surname, permanently removing the child from the country and deciding where a child goes to school, medical treatment and religious upbringing.

If parents cannot agree on any of these issues, or one parent intends to or has made a major decision without consulting the other parent, an application must be made to the Court to resolve the issue. This is called a specific issue order. The Court will make a decision on the issue, on the basis of what is in the child's best interest.

At Gross & Co, we aim to help parents resolve such issues quickly, and hopefully without the need to apply to Court.

Julie McDonald