Great Expectations? (What the Family Court Expects from Parents

Great Expectations? (What the Family Court Expects from Parents)

Glasgow Sheriff Court previously issued guidelines for parents who are involved in Court proceedings in relation to their child or children.  The guidelines apply to all the children and all parents and carers, without exception.  We discuss the content of the guidelines with clients and we forward this information to parents and carers whose children are the subject of Court proceedings. The guidelines serve as a useful reminder to clients to try and encourage resolution of child related matters with the other parent, rather than asking the Court to regulate things.  Obviously, this is not possible in all cases but these guidelines are a reminder of how, where possible, parents should co-operate in relation to arrangements for their children. Please feel free to print and share.

These guidelines apply to all children and all parents & carers. Please do not think that your case is an exception

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The Court wants you to think about these things:

● As parents, you share responsibility for your child.  You have a duty to talk to each other and make very effort to agree about how you will bring your child up.

● Even when you separate, this duty continues.

● Try to agree the arrangements for your child.  If talking to each other is difficult, ask for help. Trained mediators can help you to talk to each other and find solutions even when things are hard. Local services include: Relationship Scotland – Family Mediation West (

www.fmwest.org.uk) and CALM Scotland (www.calmscotland.co.uk)  (You can also get assistance from The Spark (http://www.thespark.org.uk)

  • If you cannot agree, you can ask the Court to decide for you. The law says that the Court must always put the welfare of the child first. What you want may not be the best thing for the child. The Court has to put the child first however hard this is for the adults.

 

● Experience suggests that agreements between you as parents work better than Court imposed orders.

The Court therefore expects you to do what is best for your child:

● Encourage your child to have a good relationship with both of you.

● Try to have a good enough relationship with each other as parents even though you are no longer together as a couple.

● Arrange for your child to spend time with each of you.

Remember that the Court expects you to do what is best for your child even when you find that difficult:

● It is the law that a child has a right to regular personal contact with parents unless there is a very good reason to the contrary. Denial of contact is very unusual and in most cases contact will be frequent and substantial.

  • A Court may deny contact if it is satisfied that your or your child’s safety is at risk.

 

  • Sometimes a parent stops contact because he or she feels that he or she is not getting enough money from the other parent to look after the child.  This is not a reason to stop contact.

 

Your Child needs to:

  • Understand what is happening to their family. It is your job to explain.

 

  • Have a loving open relationship with both parents. It is your job to encourage this. You may be separated from each other but your child needs to know that he or she is not being separated from either of you.

 

  • Show love, affection and respect for both parents.

 

Your child should not be made to:

● Blame himself or herself for the breakup.

● Hear you criticize the other parent or anyone else involved.

● Turn against the other parent because they think that is what you want.

You can help your child:

● Think about how he or she feels about the breakup.

● Listen to what your child has to say about how he or she is feeling, and about what he or she thinks of any arrangements that have to be made.

● Try to agree arrangements for your child with other people.

● Talk to the other parent openly, honestly and respectfully

  • Explain your point of view to the other parent so that you do not misunderstand one another.

 

● Draw up a plan as to how you will share responsibility for your child.

● When you have different ideas from other parent, do not talk about it when your child is with you. Do not publicise your disagreement or make derogatory comments on any social media sites where the child might access them or hear about them from others

If you want to change agreed arrangements such as where the child lives or goes to school:

● Make sure the other parent agrees. If you cannot agree, go to mediation; if you still cannot agree, apply to the Court

If  there is a Court Order in place, you must do what the Court Order says even if you

don’t agree with that. If you want to do something different, you have to apply to the

Court to have the Court Order varied.

So, some helpful home truths from Glasgow Sheriff Court. If you need any help or guidance, or further explanation as to the effect these guidelines may have on you then please do not hesitate to contact Caroline Henderson on 0141 611 7535 or visit us at www.mtmfamilylaw.co.uk.  Please feel free to share this information.

A Guide for Separated Parents at Christmas

With 10 sleeps until Santa comes (as I was so excitedly told by my boss when I arrived in the office this morning!) our thoughts turn to friends, family, fizz, gifts, fizz, selection boxes, presents and of course, fizz! Christmas is usually a time for family, especially children. But, for separated families, it can be a time of increased pressure and unhappiness. You may find it incredibly hard to be away from your children for even a few hours on Christmas day but here are some helpful hints and pointers (from the centre for separated families) which may help make the day, and the rest of the holidays, a little easier for everyone. Maybe not for all, but fingers crossed.

If your children will spend time with both of you
Try to agree, as early as possible, how your children will spend time with each of you. It isn’t important that they spend exactly the same amount of time with you both. What’s important is that the time is as relaxed and enjoyable as possible. Think about how it may be possible for your children to spend some quality time with both of you that allows everyone to get something of what they would like.

Make any hand-over as easy as possible
If your children will be spending time in two places, make sure that the transition is as simple as possible. The last thing your children want is to see their mum and dad arguing. Agree when, where and how your children will move between you. Stick to your agreement and contact each other if there needs to be any changes. If seeing each other is too difficult, think about people who may be able to help at hand-over such as grandparents or friends.

When time with both of you isn’t possible
If it is not possible for your children to spend time with both of you on the day, try to think about ways that you can share the celebration with your children at another time and make that as special as possible. A phone call on, or a special letter for the day can help children feel connected and reduce any anxiety. If your children’s other parent doesn’t seem interested, might it be possible to encourage them just to send a card?

Don’t compete over presents
Some separated parents find it possible to share present buying and giving. However, for many, this isn’t realistic. If you are buying presents separately, try to agree who will buy what. It can be very difficult if one parent has more money than the other. So try not to compete over who will buy the biggest or the best present – it just isn’t in your children’s best interests.

Think about extended family
Try to make time for grandparents, aunts and uncles if your children are used to seeing them at Christmas. If it is too difficult to spend time with them, then a phone call will help everyone stay in touch.

Think about new partners and other children
If there is a new partner in your life, think about how that will affect your arrangements. How will your children feel about that? How will your new partner feel about it? How will you children’s other parent feel about it? What about step-siblings and half-siblings? Try to find a way forward that means that as little friction as possible. But be honest about what you want, too.

Don’t require your children to make the decisions
It is important that children, especially younger ones, are not required to make decisions on your behalf. Talk to all the adults involved, talk to your children if they are old enough, decide what is best and then tell your children what has been decided.

When you are unable to see or contact your children
Being prevented from seeing or contacting your children, for whatever reason, is usually a very painful experience. Times of celebration can be especially difficult. Many parents in this position find their own way of marking the occasion. It can be helpful to try and make contact with other parents in a similar position as a way of offering and receiving support. If you are unable to buy your child a present or show them that you are thinking about them, you may wish to consider buying a different kind of gift. For example, you can name a star, adopt an animal, plant a tree or make a donation to a charity on their behalf.

Look after yourself
Christmas for separated families can be an emotionally difficult time. Not only for children, but for parents as well. This may be your first Christmas without your children or without your husband, wife or partner. Take some time to think about how you might feel and then think about ways of coping. If old traditions are too painful, create some new ones. If you won’t have chance to see your children, write a letter and raise a toast to them. If you are going to be on your own, with or without your children, think about whether you might spend some time with friends or relatives.

So hopefully some of this advice will be useful. No matter what, have as nice a day as possible. Get stuck into the big box of Quality Street (it’s Christmas so chocolate is allowed as soon as you open your eyes!), have some fizz (did I mention that?!) followed by a wee snooze before the last ever Downtown Abbey! And from all of us at MTM Family Law, Merry Christmas and best wishes for 2016.

Please note our offices are closed from 12 noon on Thursday 24th December 2015, until 9am on Tuesday 5th January 2016. If you require urgent family law advice during this time then please email us on general@mtmfamilylaw.co.uk.

Pensions Keeping Healthy

 

Pensions – Keeping Healthy Through Active Service

 

As many of you who have been through the process of separation and/or divorce will know, pensions get taken into account when quantifying the net matrimonial property to be divided. The law provides that there should be a “fair share” of the net matrimonial property, and this is presumed to be an equal share, unless there are any specific legal reasons why it should not be.  So when we are advising clients as to what constitutes a fair share of the net matrimonial property, we require to firstly ascertain what the net matrimonial property actually consists of.

 

Pensions can be particularly valuable in the context of a separation and/or divorce, and it is the “Cash Equivalent Transfer Value” (CETV) which is looked at to determine a capital value for the purposes of a separation.

 

Only the proportion of rights referable to the period of the marriage will fall into the matrimonial pot and there is a specific apportionment which can be carried out to ensure that not the entire value of the pension is taken into account, only the marital portion.

 

Until August 2015, to work out what the CETV would be, solicitors were directed to look at what the current Cash Equivalent Transfer Value was, then work out the days between the date of marriage and date of separation, and apportion that by the number in days of membership of the pension scheme. It was the words “period of the membership” of a party in the pension arrangement before the “relevant date” which has been the subject of recent case law.  From many years this has caused some difference of opinion as solicitors have argued over whether this “period of membership” has meant active membership or any other type of membership for example deferred or pensioner membership.  A majority decision handed down from a Court of Session appeal on 11th August 2015 has now upheld that the “period of membership” in the pension scheme should only be the period of active membership, and not any other type of membership; the period that somebody is a deferred member or a pensioner member is now disregarded when working out the capital value of a pension for divorce purposes.

 

This will have far reaching consequences for some members who have been a member of a pension scheme for some time, but only a short period of that time was during active service.  Thomas McDonald whose favourable decision was appealed against by his wife Anne is no doubt delighted. In his particular case, he joined the pension scheme in December 1978.  He married Mrs McDonald in March 1985, and left active service and ceased contributing towards that particular pension only five months later.  A CETV using an active period of membership i.e. five months, resulted in a capital pension value of £10,002 having to be taken into account.  Mrs McDonald submitted the entire membership of the pension should be taken into account which would have meant a figure of £138,734 going into the matrimonial pot to be divided. As you can see, this is quite a difference!

 

If you have a pension which you think needs to be taken into account in quantifying matrimonial property, get in touch with us. We know the appropriate calculations to be carried out and notwithstanding this particular Court of Session case,  you may find that there are some “special circumstances” which could justify a departure from a fifty/fifty split in any event keeping your pension as healthy as possible for your retirement.

 

Holidays are Coming!

Holidays are Coming!

With summer rapidly approaching and holidays on the horizon, if you haven’t yet got a passport for your child, then get your skates on! I have just received a renewal passport for my daughter, and head off to sunnier climes in 38 days time (not that I’m counting!). I actually used the Government’s online passport service, completed the information and paid the fee, then printed off the form and sent it with a counter signed photograph to the Passport Office. Eight days later the new passport arrived! However, please allow as much time as possible as it is likely the Passport Office will get busier, the closer we get to the school summer holidays!

So, who is able to sign the child’s first passport or renewal passport application? Such applications require to be completed by a person with parental responsibility in relation to the child. The law in Scotland (which differs from the law in England and Wales) provides that the mother of a child can sign the passport application. Who the “mother” is may seem obvious, but it is the woman who gave birth to the child. This can cause a few difficulties in surrogacy situations, but the woman who gives birth to the child is the mother of the child for all legal purposes (until such time as that is changed, either by a parental order or by adoption).

The rules regarding fathers are slightly different, and the rules also depend on when the child was born and his or her birth registration. The important date is 4th May 2006, as this is the date that the Family Law (Scotland) Act 2006 provisions came into force.

For children born in Scotland, whose births were registered before 4th May 2006, if the child’s parents were married to each other then both parents have equal parental rights and responsibilities and either can sign. If the child’s parents were not married at the time the birth was registered, but have subsequently married, then both mother and father can sign the passport application. Even if the father’s name is on the birth certificate, but the child’s parents were not and have never been married to each other, the father in these circumstances is generally unable to sign.

For children born and whose births are registered after 4th May 2006, an unmarried dad can acquire parental rights and responsibilities if he is named on the birth certificate and both parents jointly register the birth, meaning either can apply for a passport. If the child’s parents are married to each other, then both parents have equal rights and responsibilities at the time of birth and subsequently (unless removed by order of the court), therefore either parent can complete the passport application.

Parental rights and responsibilities can also be acquired by the mother completing a Parental Responsibilities and Parental Rights Agreement in terms of section 4 of the Children (Scotland) Act 1995 (or in some same sex situations a section 4A Agreement can be completed), or if the court has made an order granting the other party parental rights and responsibilities.

In some situations the court may also grant orders for parental rights and responsibilities to persons other than parents for example grandparents, step- parents, aunts and uncles. Even though a court may make an order of contact between a child and a parent, if that is the only order made, this does not entitle the parent exercising contact to complete a passport application. If the unmarried father is not named on the birth certificate and doesn’t fall into a category detailed above he cannot apply for a passport.

If there is any doubt as to who can complete the application or who has parental rights and responsibilities entitling them to complete the application then full advice can be found on the Government website www.gov.scot . Alternatively, give us a call and we would be happy to help!

Scotland’s New Adoption Register

Last week, the Scottish Government  launched a new and improved website for adoptions in Scotland, the website being run by the British Association for Adoption and Fostering (BAAF) Scotland. This new website for Scotland’s Adoption  Register aims to improve the number of successful matches between children and prospective adopters, and will involve prospective adopters and social workers more directly in the process of finding families for some of Scotland’s most vulnerable children.

The adoption process in Scotland is well known to be lengthy, and at times frustrating, and there are families out there looking for children who they can raise and love as their own. These children to need to find secure, stable and loving homes and it is hoped that the re-launch of the website, and its innovations, will help speed up the matching process to find suitable families for all the children who need them.

The Children and Young People (Scotland) Act 2014 has placed Scotland’s Adoption Register on a national footing. This means every adoption agency in Scotland must use the Register, and must refer both children and approve adopters within a  time scale to be specified in the regulations to follow.

At MTM Family Law, we can assist in advising you on the adoption process. Quite often, we receive instructions in relation to step-parent adoptions too. If we can assist you in any way please just get in touch.

 

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.

 

I Must Make Mention Of Your Pension

I Must Make Mention Of Your Pension

The Chancellor George Osborne made changes to pensions in his recent budget speech. This could affect you if you are separating, or if you are about to.

The new arrangements, which will come into force in April 2015, will give some people greater access to their pensions. There are also some transitional arrangements in place since last week.

Firstly, these arrangements apply to defined contribution pensions, also referred to as money purchase plans. Under these plans the income a person receives at retirement is not pre-determined. It is based on the assets in the individual retirement plan at the time of retiral. Individuals determine which investments their contributions (and perhaps those of an employer) are invested in from a selection of investment options available within the plan.  These are different from defined benefit schemes where the amount of income received at retirement is pre-determined and is usually based on a formula involving the employee’s years of service and earnings. There will therefore be a large number of people in Scotland who will not have the opportunity to participate in the potentially more flexible arrangement referred to below. Those in unfunded pension schemes will remain subject to the current regulations affecting all pensions.  This of course may well change in the future, perhaps even by the time the legislation is finalised as there is now a consultation period.

Mr Osborne said that from April next year, people over aged 55 will be able to access their entire pension pot. The existing provision for a 25% tax free lump sum stays, and in addition, there will be scope to withdraw the other 75% – but subject to the pensioner paying their usual rate of income tax on any balance taken (either zero, twenty, forty or forty five per cent). Pensioners will no longer be forced into buying an annuity, although can if they want. For full details go to HM Treasury website at https://www.gov.uk/government/organisations/hm-treasury. It should of course also be borne in mind that when the legislation is actually passed, the final effect may not be as currently anticipated in the recent Budget announcement. Sometimes a watered down result may be what is delivered at the end of the day following consultation. Time will tell.

So for separating or divorcing couples these proposed changes mean that pensions need no longer be looked at solely from the point of view of an income stream in later years, and can now be looked at as a fairly realisable and relatively liquid asset (depending on how old you are). A pension may well be the second biggest asset in a divorce or separation, second to the matrimonial home. It might even be the biggest asset depending on the length of service of the employee (if it is a contributory scheme), the duration of the marriage and obviously, the level of contribution. The importance of the existence of a pension therefore cannot be underestimated when a couple decides to separate. Often the pension value will be offset against the value of the matrimonial home but where this is not favoured, or is perhaps not possible, these new budget changes may do away with necessity for a pension sharing order at all. Instead of perhaps being forced down the route of pension sharing on divorce, there may now be scope to withdraw lump sums from certain pension pots and transfer this money in settlement to a spouse instead. This provides more options for separating couples dealing with their finances if having to consider splitting capital assets. This greater flexibility might generate even better financial solutions for individuals and their families. That must be a good thing.

But what does more scope to be even more creative in relation to financial planning for separating couples mean in practice? We are not authorised by the Law Society to provide financial advice but we have close links with a number of excellent independent financial advisers who are qualified to help with this. An example is shown below of what this may mean in practice for some.

Clearly, anyone who has still to resolve their joint finances following separation should pay particular regard to these proposed legislative changes, and even more so if they are approaching the age of 55. Pensions can be complicated and specialist advice should be sought. Not only do you need robust advice from specialist family lawyers (like all our lawyers here at MTM Specialist Family Lawyers), but you need a good financial expert too. A joint meeting can be really useful to explain all of the options available to you to allow you to make the decision that works best for you.

EXAMPLE

Lets take 2 entirely fictitious clients, Jane and Steven Collins. Both are over the age of 55 and they are both currently working.  Steven earns £100,000 per year whereas Jane, who has only worked part time since having the children some years ago, earns £25,000 per year. They have decided to separate. Both want to act collaboratively and maximise income for the family. Steven chooses to invest the maximum amount into a new pension arrangement, which from April 2014 is £40,000 a year. But as a higher rate tax payer, this is only going to cost him £24,000 in real terms as he enjoys higher rate tax relief – 40% x £40,000 = £16,000 tax relief.  If in the context of a divorce, a pension sharing order is granted in Jane’s favour for 100% of Steven’s new pension, then Jane can effectively access this entire pension pot and use her own tax allowances. She would be able to take the first 25% tax free (£10,000). If she took more than this in the first year then this would push her into the higher tax bracket and she would pay 40% rather than 20%.  If she took the remaining £30,000 equally over two tax years, the tax paid would stay at 20% (£3000 per year, totalling £6,000) and she would have in her hand another £24,000. Jane would therefore withdraw a total of £34,000 over two tax years but this effectively has only cost Steven £24,000.  It has cost Steven £24,000 to give Jane £34,000 cash. Another way to look at it if maximisation of family income was not the main priority is to say it has cost Steven £24,000 to give Jane a pension sharing order of £40,000 on divorce.

 

 

 

 

Putting “The Spark” Into Your Relationship

Putting “The Spark” Into Your Relationship

Relationships. They’re great. Well, most of the time! Ok, most of the time when the going is good. But they can also be really hard work sometimes! Having just come back from the launch of “The Spark” it made me realise that no one actually tells you how difficult a relationship can be. Not just a relationship with a partner or spouse, but all sorts of relationships can have their ups and downs – relationships with parents, siblings, colleagues, and employers to name just a few. (Luckily I have lovely colleagues and bosses and as they check the content of my blog before it goes online I feel I better be clear about that!) And its not just me who thinks that you need to work at a relationship: a huge number of people are calling the Relationship Helpline (tel 0808 802 2088) for different sorts of advice in all sorts of relationships.

When “The Spark” first started out as Scottish Marriage Care in 1965 they provided marriage guidance only. But times have changed. Now, “The Spark” offers telephone support and online counselling so that regardless of geography, people all over Scotland can access counselling services. Services cover every stage in relationships from the first flush of romance through to support for new parents, coping with teenagers, all the way through to relationships in later years. Help is available for those in heterosexual or same-sex relationships. You can get additional information online at www.thespark.org.uk. They are the relationship experts.

Should you consider seeking relationship support before deciding to separate or divorce? It won’t be appropriate in all cases, but it could help. Some people I’m sure will find the word “counselling” off-putting. Maybe if you know someone who would simply benefit from a chat about what’s going on in their life, it might be more appealing for them to think of it in that way. I’m not on commission from BT but “it’s good to talk”! Actually, whilst it is good to talk, you don’t even need to speak to anyone face to face – you can just pick up the phone or simply go online in your lunchbreak or when the kids are in bed.

Hopefully “The Spark” might help. Its worth a shot if it’s appropriate in your case. But if not, and you need specialist family law advice for a separation or divorce, or contact issues with children, or aliment or maintenance or any other family law matter, get in touch with us at MTM Family Law instead. We’re not the relationship experts but we are experts in family law.

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.