Don’t Stay Together For The Kids

The following is an extract from the Herald on Monday 23rd November 2015 referring to a survey undertaken by ComRes, commissioned by Resolution and supported by Consensus Collaboration Scotland. It’s a bit of a spoiler, but the heading tells you the conclusion so no need to read any further from here really, unless you are particularly interested and want to know a little bit more! But this new research does tell us that unhappily married parents who stay together ‘for the children’ may not be acting for the best, and that children tell unhappily married parents: don’t stay together for the kids.

“A poll of young people aged 14-22 who had been through a parental separation or divorce, found a large majority (82 per cent) said that even if they had been upset at the time they felt it was ultimately better that their parents split rather than staying together unhappily.

The research also found that children and young people want greater involvement in decision-making during the divorce process.

However half of young people (50 per cent) indicated that they did not have any say as to which parent they would live with or where they would live (49 per cent) following their parents’ separation or divorce. While this needs to be carefully handled – 88 per cent of young people said it is important to make sure children do not feel like they have to choose between their parents – but nearly half (47 per cent) of children and young people polled said they had not understood what was happening during a parental separation or divorce and would have liked to know more. Nearly two thirds (62 per cent) felt they had played no part in any of the decision making process about the separation.

However many common concerns about the impact of family break up on children, were not borne out by the findings 50 per cent of young people agreed that their parents had put their needs first during a separation or divorce and only two in ten (19 per cent) had felt – or been made to feel – that they were in some way to blame for the domestic breakdown. Asked what advice they would give divorcing parents, one young person said, “Don’t stay together for a child’s sake, better to divorce than stay together for another few years and divorce on bad terms”; while another said children “will certainly be very upset at the time but will often realise, later on, that it was for the best.”

While most young people preserved good relations with their mother and wider family members following a break up, their relationship with their father worsened for nearly half of all children. Some 45 per cent said their relationship with their mother had improved, but only 19 per cent said their relationship with their father had improved – against 46 per cent who said it deteriorated.

Parenting expert and author Sue Atkins says: “Children want to feel involved and empowered with relevant information about their parents’ divorce and what it means for them. They also want to see their parents behaving responsibly, such as to not argue in front of them.

“As the long distance parent, dads must work hard to maintain their relationship with their child. They may feel angry that this task falls on their shoulders since they may not have initiated the divorce in the first place and it’s easy to feel like a victim and spend their time and energy blaming their ex. But being a long distance parent doesn’t mean that a dad has to automatically disappear from their child’s life.”

Out with the Old and in with the New!

Next week sees the coming into force of the Marriage and Civil Partnership (Scotland) Act 2014.  On 16th December 2014 same sex couples will be allowed to marry in Scotland for the first time.  Given the formalities which require to take place before a marriage ceremony can be conducted, the first same-sex marriages will not take place until 31st December 2014.  This will indeed be a happy new year for some!

People in same-sex relationships will now be able to decide if they wish to cohabit, enter into a civil partnership, or enter into marriage.  I am sure it will not be long until some opposite sex couples decide they wish to enter into a  civil partnership! I am for equality, absolutely 100%, but time will tell if the institution of “civil partnership” will stand the test of time, if it will evolve to include heterosexual couples, or if it will be effectively phased out over many years to come.

If you are already in a civil partnership, this civil partnership can effectively be converted into a marriage. It can also be backdated to the date of the civil partnership, either by having a marriage ceremony if you so desire, or simply meeting with the registrar in the appropriate registration district.  This seems a very straight forward and sensible approach if civil partners, previously denied the right to marriage, wish to have the same legal rights and “status” as opposite sex couples.

Congratulations to the new Mr and Mr, and Mrs and Mrs of 2015!

 

CHANGES IN CHARGES FOR CHILDREN

As from 30th June 2014, anyone who makes an application for child support maintenance to the Child Maintenance Service (CMS) has to pay a £20 fee to the Secretary of State, to enable child support calculations to be commenced.  The application fee will be waived if the applicant is under 19 or is a victim of domestic violence or abuse.  For a person to be considered “a victim of domestic violence or abuse” for these purposes, the abuse must have been reported to “an appropriate person” such as a Court, the police, a medical professional, social or educational services, a lawyer or a specialist support organisation including refuge.

Under the Child Support Fees (Regulations) 2014, in addition to the initial £20 application fee, a further “collection charge” will apply to both the paying parent and the receiving payment if the “Collect and Pay” option is used.  In this case, the paying parent will have to pay the assessed maintenance plus an additional 20% collection fee. The receiving parent will also pay a 4% collection fee which is to be deducted from the maintenance amount. So if the assessed maintenance amount is £100 per week, then the paying parent will have to pay £120, but the receiving parent will only get £96 of this. The DWP is effectively charging parents a total of 24%  of assessed child maintenance to use its Child Maintenance Service. According to some figures, the estimated revenue from collection fees may be as high as £1.2 billion over the next ten years.  Initially, the proposed charges were higher but even these charges as introduced will have an impact on low income families with money going to the DWP rather than the children for whom financial assistance is actually intended.

Not everyone will need to pay collection charges: collection fees will not need to be paid if the parties agree and are able to use the “Direct Pay” option (for Child Maintenance Service cases) (or the “Maintenance Direct” option for certain pre-existing claims through the Child Support Agency). This is where the amount of maintenance is calculated, but is not collected. The paying parent makes payment direct to the receiving parent and neither have to pay any collections fees.

If payments are not maintained then the receiving parent can ask the CMS (or CSA) to take action to enforce payment.  With older Child Support Agency cases both parents must agree to use “Maintenance Direct” before it can be set up and there will be no collection fees or enforcement charges if the case moves to the collection service. However, with new applications which must now proceed through the Child Maintenance Service, enforcing payment will mean changing a case to “Collect & Pay” in which case both parents will have to pay collection fees and the paying parent will have to pay enforcement charges as well.

Parents who have existing Child Support cases will shortly receive letters from the Child Maintenance Service advising them their cases will close in six months unless they convert to the new child support system.  Whilst the ethos behind the introduction of the new changes and the new charges is to encourage estranged partners to communicate with each other better (and deal with finances for their children themselves rather than through the Government) it is often exceedingly difficult for separated parents to communicate about even the most routine of matters, such as dates and times for contact, never mind the touchy subject of finances, particularly in the aftermath of what could have been acrimonious relationship breakdown.

 

Where Scotland leads is England following?

So, is the English legal system actually looking to the Scottish system for inspiration in divorce law reform?

There have been a number of reports in the media recently about the English Law Commission’s  four  year review of “nuptial” agreements and divorce pay outs.

Of course pre-nuptial and post-nuptial agreements have always been binding under Scots Law provided they are essentially fair. There is a long standing history in Scotland of couples regulating their financial affairs after separation by use of registered separation agreements, and pre-nups and cohabitation agreements  are also proving more popular.

The English courts have however not always felt bound by such agreements and can ignore or modify  them in family cases. It is now proposed that divorcing couples in England could set their own terms in a pre-nuptial agreement or decide on division of their assets in a legally recognised post nuptial agreement. The Commission goes further and recommends that divorced spouses should no longer expect financial support for life from their ex . Typically the support should not be paid for any longer than ten years after divorce or until the children reach secondary school age.

The Scottish divorce system has however been curtailing payments for continuing support of an ex-spouse since 1986, and awards of support for life are now very rare and generally the maximum an ex-spouse can expect is three years after divorce. The English Law Commission is now laying  emphasis on achieving financial independence for both partners, mirroring the clean break principle in Scots divorce law.

While the wider debate about Scottish independence is hotting up towards the September referendum, it’s worth remembering that Scotland already has a very different, independent  and unique legal system in this area of law.

Some clients I have spoken with recently have been unaware how different our divorce law is to England and on more than one occasion I’ve had to point out that in Scotland, unlike England, you can’t expect to get divorced first and sort out the finances later. Hopefully a potential disaster averted! But how many residents of Scotland know that when they read the press reports which tend to report on English cases or reform proposals?

Even with the proposed reforms there will still be scope for argument. What may be reasonable for one couple might not be for another. That is where the skills of a family lawyer will still be required. And so it has proven already in Scotland for nearly thirty years.

As specialist family lawyers, we at MTM can steer clients through the complexities of pre-nuptial and separation agreements as well as a host of other family law issues.

A Christmas Crisis?

I love Christmas! The smell of newly fallen snow. Sparkly fairy lights everywhere. Carol singing on my doorstep. Children playing and laughing. Friends and family over for drinks and helping themselves to the plentiful, most delicious homemade fayre laid out beautifully on my table which has been lovingly decorated by angels sprinkling angel dust as they go……..

Ok, ok, that is how I often imagine Christmas! But in reality I don’t think I’ve ever had a Christmas like that – ever! Newly fallen snow means I can’t get the car out the drive, I’m late for wherever I have to be, I’m cranky and the kids are moaning as snow has got in their boots and made their tights wet. Children are usually squabbling over the remote control or which game to play next or who has eaten the last chocolate decoration from the tree without asking. My delicious homemade spread is quite possibly a selection of party offers from Iceland (or the local petrol station) and the angel dust is really just dust as I’ve not had time to clean the house as I’ve been too busy shopping, buying presents, writing Christmas cards and ferrying kids to social event after social event whilst at the same time trying to keep on top of homework, housework and an ironing mountain rivalling the size of Ben Nevis!

So is it any wonder that Christmas is one of the most stressful times of the year for couples where even the strongest of relationships can experience difficulties? If you add in overspending on Christmas presents, general financial strain, unrealistic expectations of the perfect Christmas and bad weather, not to mention over indulgence in food and alcohol then Christmas may not be so merry for some couples after all. That doesn’t even include the slaving in the kitchen whilst others chillax with a sherry or two (or 3,4,5,6,7…..), the lack of time for each other as you’re too busy or just exhausted – and probably best not to mention the arrival of the in-laws!

But, if after all the excitement (or stress) of the day is over, you still feel that there is more substance to the arguments than just Christmas, you may decide to turn your attention to legal advice in the New Year. Statistically, more couples separate in January than any other time of the year. Its really important to get good quality advice from specialist family lawyers if you are thinking of separating, or even if you just want to find out what your options are in the event that your marriage or cohabitation ultimately does go down the separation route. That’s where we come in. Get clear and concise advice before you rush into anything. You might want to consider relationship advice or counselling first. You might think mediation or collaborative law would be the best option for you, and then there’s arbitration to consider too. More information on the possible methods to resolve your family issues can be found on theRIGHTKINDOFDIVORCE.com.

Hopefully you won’t need our services, but if you do, we’re back after the holidays from Friday 3rd January 2014 at 10am. Despite the above, Christmas for many is a wonderful time of the year and from all the staff at MTM Family Law Specialists Glasgow, Merry Christmas and best wishes for 2014.

Arbitration for family law – YES!

Shona Templeton in our firm is one of only 29 lawyers in Scotland accredited as an Arbitrator in Scotland. She is a member of the FLAGS organisation (Family Law Arbitration Group Scotland). Details are on the website at www.flagscotland.com.  Shona was recently asked to speak at a conference to other solicitors about the usefulness of arbitration in family law.  It is somewhat bizarre that this method of resolving disputes has not been adopted by family lawyers.  There are however clear advantages for arbitration over other forms of dispute resolution and in particular litigation which has financial and emotional cost.

Arbitration is a method of resolving disputes that does not require parties going to court.  The arbitration process is flexible and can resolve full issues surrounding separation and divorce or indeed is appropriate to address single issues, which are causing a negotiation to falter., for example, disputes over the date of separation or disputes over the value of matrimonial property.  The benefits of arbitration are that it is an adversarial, yet inquisitorial process that has many advantages to a client.  In particular, it is quicker and operates to a fixed time table that is set by the parties and the arbitrator. This means that the process is not open ended and subject to a court time table.

  • The process is confidential which can be a significant benefit to clients of high net worth, who do not wish their business interests to be discussed in open court.
  • The process may be cheaper as the arbitrator will work with the parties to determine what is the appropriate method for the process and can focus the parties to provide relevant information to the issues in dispute.
  • The arbitrator has considerable discretion to tailor the process to the nature of the particular dispute.
  • All of the arbitrators are trained or experienced family lawyers and accredited specialists.  They are experts in their field and can be chosen to address particular disputes that the parties need to address.

Shona is happy to discuss with all of her clients the use of arbitration as a method of resolving disputes and is also able to sit as an arbitrator to resolve the disputes of other parties.

Our new arrival!

I want to welcome the new addition to our team. We are most fortunate to have Caroline Henderson join us from the family team at Maclay Murray & Spens.  Caroline is an experienced family lawyer who has specialised in this field for many years.  She is accredited by the Law Society as a specialist in her field and is trained in both collaborative practice and mediation.  Her skills  sit very well with the objectives and aims that we have of providing a specialist, rounded service to our clients.  Welcome to the team Caroline.

Happy holidays?

The festive season brings its own challenges for couples and families in crisis. It’s no surprise to divorce and family lawyers that they see an influx of new clients after New Year. Enforced periods of time together and the pressure of trying to create the “perfect” family Christmas can often can be the catalyst for family break up, particularly when the rest of the year has been punctuated with rows and disagreements. New Year, as a time of reflection, may lead to a realisation that the relationship isn’t working. Many couples will seek counselling after the festive period but for others there may be no alternative but to look for a separation.
There doesn’t need to be a rush however to the divorce courts. Nowadays specialist family lawyers are well equipped to offer more creative ways of resolving disputes such as collaborative law or mediation, where a couple can have a bigger say in the process of achieving a fair outcome when dividing up their property, but also putting the interests of any children centre stage. Litigation can breed further animosity which can adversely impact on the children. Children need more than fake jollity or sentimentality on one day a year. No amount of expensive presents can be a substitute for good quality time with each parent and parental co-operation. Parents can be encouraged through these alternative dispute resolution methods to look at successful parenting apart for the years and Christmases ahead, which is a more valuable gift for their children.

Cohabitants claims

The decision of the Supreme Court just out in Gow v Grant means we family lawyers once again will have some difficulty advising clients whose relationship has ended after cohabitation about their right to make a claim against their former partner. It may involve sticking a finger in the air rather than being able to give reasoned advice! It seems that where one partner sells a property to live with another he or she may claim “compensation” for the loss of the increase in value of their former property if they can show the sale was done “in the interests” of the other party even if the partner selling also got some benefit from it. No doubt there will be considerable analysis more learned than mine but it does highlight the importance of educating the public to the potential rights of a former partner. There is still a feeling among family lawyers that many people don’t appreciate that their partner may have these rights on separation. Some adhere to the urban myth that cohabitants have the same rights as married people. It may be time to increase awareness and encourage anyone entering into a relationship that involves living together but not marrying, to consider carefully the implications and to take advice and consider a cohabitation agreement as a way of protecting assets or ensuring that the other person does not get an unintended windfall as a result of the relationship. I’d love to know what others out there think?