Marilyn Stowe Family Law Blog is an Award-winning family law & divorce blog covering family law news, information and guides on the divorce process, financial settlements, cohabitation, prenups, wills, trusts & more.
I thought it was going to be another quiet week for family law news, and then the last story appeared…
But first, the other news. As I reported here, Research by Birmingham University has found that women who experience domestic abuse are three times more likely to develop a serious mental illness. The study was based on 18,547 women who had told their GP of domestic abuse they had experienced. They were compared with a group of more than 74,000 women of a similar age who had no experience of domestic abuse. The study found that domestic abuse survivors were twice as likely to develop anxiety and three times as likely to develop depression, schizophrenia and bipolar disorder. Dr Joht Singh Chandan, lead author and academic clinical fellow in public health at the University of Birmingham, said: “Considering how common domestic abuse is, it is important to understand how strongly the two are connected and consider whether there are possible opportunities to improve the lives of women affected by domestic abuse.” The only thing I would add is “and men”.
Moving on, Sally Challen, who killed her husband with a hammer in 2010, will not face a retrial, after prosecutors accepted her manslaughter plea. In 2011 Mrs Challen was found guilty of murdering her husband, and jailed for life. However, she appealed against her conviction on the basis of fresh evidence, namely a diagnosis by a consultant forensic psychiatrist that she was suffering from two previously undiagnosed disorders at the time of the killing, and fresh evidence as to alleged coercive control by her husband. In February this year the appeal was allowed by the Court of Appeal, which quashed the conviction and ordered that she should face a retrial for murder. However, prosecutors accepted a manslaughter plea on the grounds of diminished responsibility, and she was sentenced to nine years and four months for manslaughter, but walked free due to time served. Mr Justice Edis said the killing came after “years of controlling, isolating and humiliating conduct” by her husband. The outcome has been welcomed by many, who believe that it shows that the law recognises the effects of psychological abuse upon victims. It has also been criticised by others, who say that Mrs Challen could have simply walked away, that it implies that her actions were proportionate to his, and that it turned a killer into a hero. Hmm. I’m not sure that she would consider herself to be a hero, and we must not forget that she was found guilty of manslaughter, for which she served a lengthy sentence, so it can hardly be said that she ‘got away with it’.
Next, the latest figures for care applications and private law demand, for May 2019, have been published by Cafcass, and the picture of a long-term downward trend in care cases, and a long-term upward trend in private law cases continues. In that month the service received a total of 1,152 new care applications, 11.5% lower (149 applications) than May 2018. As to private law demand, Cafcass received a total of 3,950 new private law cases, 8.5% (311 cases) higher than May 2018.
And finally, that big story, and arguably the biggest family law story for fifty years, is of course the introduction of the Divorce, Dissolution and Separation Bill (‘dissolution’ of course referring to dissolution of civil partnerships, and ‘separation’ referring to judicial separation) to Parliament (i.e. the House of Commons) yesterday by the Lord Chancellor David Gauke (you can read his statement here). If passed, the Bill will finally bring in a system of no-fault divorce, thereby ending the ‘blame game’. The Bill, which is actually quite short (you can read it here), does three things: it replaces the requirement to prove either a conduct or separation ‘fact’ with a requirement to file a statement of irretrievable breakdown of the marriage (couples can opt to make this a joint statement); it removes the possibility of contesting the decision to divorce as a statement will be conclusive evidence that the marriage has broken down irretrievably; and it introduces a new minimum period of 20 weeks from the start of proceedings to conditional order stage. David Gauke commented: “Marriage will always be a vitally important institution in society, but when a relationship breaks down it cannot be right that the law adds fuel to the fire by incentivising couples to blame each other. By removing the unnecessary mudslinging the current process can needlessly rake up, we’ll make sure the law plays its part in allowing couples to move on as amicably and constructively as possible.” The Bill is apparently to have its Second Reading in the Commons today, so it may be passed sooner than previously thought. I suspect that I, and others, may have something more to say about the Bill in the coming days…
Whether it is your first Father’s Day as a single parent or your tenth, being away from your children on a special day can be tough.
One of the key challenges is if Father’s Day does not fall on your weekend with the kids. In this situation, who the kids spend the day with very much depends on how amicable you are.
Hopefully, in most cases, flexibility and respect will be in place and the kids will spend the day with their Dad. However, we know this is not always the case, so the five tips below will help you manage the day, the best you can.
If Father’s Day does not fall on your weekend, then some pre-planning will help. Talk to your ex-partner months in advance to see if weekends/days can be swapped so you can be together. And ensure that you do the same for Mother’s Day.
Communicate in a different way
If seeing the children is simply not possible then look at other ways to communicate. Pick a good time with your ex-partner, calling during screen time or lunch is never good, and call them for a video chat. Depending on the age, why not read a bedtime story?
Do something different with your day
If you cannot see them, then do something with your day. Get friends together for who Father’s Day is difficult and get out even if it just for a quick drink. If possible, spend time with your own Dad. You will miss your kids and it will not be the best of days, but you can control it not being the worse.
Pick a different day
Father’s Day is just a date. So, move it. Plan something for a day when you do have the kids and organise something for you all to do something together.
Stowe top tip – Stay off social media
Our number one tip is to AVOID social media. Nothing worse than scrolling through hours of #blessed posts about father’s celebrating with their kids.
Put your phone down and disconnect for the day. Instead, focus your attention on having the best day possible and creating a special day for you and your children later.
And remember, being a father is a lifetime job so do not let 24 hours overshadow all the rest of your good times together.
If you are struggling to deal with Father’s Day after a divorce or separation, the following websites have some useful tools and advice.
And I, for one, agree. The Divorce, Dissolution and Separation Bill will revolutionise the way in which divorcing couples will end their marriage.
No longer will they need to lay blame either through allegations of bad behaviour or adultery and instead this will be replaced with a simple statement of irretrievable breakdown.
The truly original feature is that couples may opt to make a joint statement of irretrievable breakdown if they choose. Reflecting the fact that when many marriages end, both parties have reached the same conclusion.
It will also take away the prospects of unsightly defended divorce cases where parties are subjected to airing the intimate aspects of their marriage in the Court.
It is to be hoped that starting the divorce process on a less contentious footing will help the parties to resolve other issues that may arise whether they relate to future arrangements for their children or sorting out financial settlements.
I think that the end of the blame game in divorce is definitely one step closer.
Julian Hawkhead, Senior Partner at Stowe Family Law
Dating after divorce can be brutal, particularly if your marriage / long relationship lasted for a couple of decades. If this is the case, the last time you dated, back in 1999, there was no dating apps, no ghosting and certainly no bread crumbing.
Instead, it was a world of speed dating, matchmaking and a ‘little black book’. And, the most popular dating term was the straight forward “He’s Just Not That into You” popularised in an episode of ‘Sex in the City’ in the ‘00s.
So, if you find yourself “back out there again” (something that strikes fear in anyone at any age) after a relationship breakdown, we’ve rounded up some of the latest dating terms you need to know to survive.
First up, dating apps. According to Glamour Magazine, the best dating apps in 2019 are Tinder, Bumble, Hinge, Happn, Wingman, Pickable, Badoo and Coffee Meet Bagel. The article also declares “one app is SO 2018” so you can find out more and select your choices of digital dating here.
Next stop, dating terms. Well, there are plenty out there, here are our favourite (?) five.
Things have ended or, maybe they haven’t? It was not clear. Either way, they have continued to like all your social posts, spy on your Instagram stories etc to make sure you know that they are still there. Not quite in your life but not entirely removed.
Bread crumbing basically means stringing someone along. Think, suggesting a date but never with any actual plans or commenting on your latest Insta but screening your calls. To be blunt, they are not forgetful. This is tactical. They are not interested in you but having you around boosts their ego.
If your first experience of zombies was the film ‘24 days later’ with the now Thomas Shelby from Peaky Blinders in lead, zombies are not the first thing that pops to mind when dating. Today, however, it is a sort of non-committed ghosting. So just as you realise you may have ghosted, they return from the dead (like a zombie) and get back in touch.
You have dated for months and things seem to be going well but you realise that you have never been introduced to anyone: family, friends, colleagues. In fact, you only see each other when the ‘pocket-er’ wants to or has nothing else planned. It’s like they have just stuffed you in their pocket to keep you hidden.
You are dating someone but get the feeling they are dating others. They want to see you, but it is clear that you are their plan B or C whilst they keep looking for a better option. They do not want to burn the relationship bridge, just yet.
Dating after divorce
Wow, welcome to the complicated and slightly terrifying modern world of dating. It certainly is a minefield and its digitalisation brings both benefits and challenges.
So, if you are getting ready to date again after divorce, take your time, go with your instinct and remember sometimes, they are just not that into you and that’s fine.
Good luck out there.
Disclaimer: I left ghosting out of the list as it has been around for a while, even I at 43 years old have heard of it before.
As I have explained here many times previously, the rationale behind the Hague Convention on Child Abduction is that the child should usually be returned to their ‘home’ country, where decisions as to their welfare should be made. The ‘defences’ to a Hague application open to the ‘abducting’ parent are therefore very limited. One of those defences is that there is a grave risk that the child’s return would expose them to physical or psychological harm, or otherwise place the child in an intolerable situation.
It is comparatively rare for such a defence to be successful. Sometimes, however, the court, perhaps in its ‘eagerness’ to follow the rationale and order a return, gets it wrong, by not accepting the defence when perhaps it really should. Such was the situation in the recent European Court of Human Rights (‘ECHR’) case OCI and others v Romania.
The facts in the case were that the mother was a Romanian national and the father was an Italian national. They had two children, who held joint nationality. The family resided in Italy.
In June 2015 the family went to Romania for the summer holidays. A few days later the father returned to Italy, expecting to go back to collect the mother and the children at the end of the summer. On the 25th of June 2015 the mother informed the father that she and the children would not be returning to Italy. The father made an application under the Hague Convention for the summary return of the children to Italy.
The mother opposed the application, raising the ‘grave harm’ defence. She alleged that the father had used serious violence towards the children, including beating them with hard objects, bruising their faces and giving them nose bleeds, calling them names and humiliating them. The Romanian court found that the evidence proved “without doubt that the father used physical force and a raised voice to discipline his children”, and the father confirmed this in his statement. Notwithstanding this finding, the court found that there was nothing to oppose the children’s return to Italy, and therefore made a return order. The mother appealed, but the appeal court upheld the return order. However, the order was never enforced, due to the children’s refusal to go back to Italy.
The mother, on her behalf and on behalf of the children, issued proceedings in the ECHR, alleging that the Romanian courts had breached their right to respect for their family life, protected by Article 8 of the European Convention on Human Rights, in so far as the courts had failed to take into account the grave risk that the children would be subject to physical or psychological harm at the hands of their father.
The ECHR found that there had been a violation of Article 8. The Romanian courts, while condemning in general terms abuse against children, were nevertheless satisfied that what the children had suffered at the hands of their father had only been occasional acts of violence and would not reoccur “often enough to pose a grave risk”. However, that assessment ran counter to the prohibition of abuse against children under domestic law, and cast doubt on the decision-making process. The ECHR said:
“Corporal punishment against children cannot be tolerated and States should strive to expressly and comprehensively prohibit it in law and practice … In this context, the risk of domestic violence against children cannot pass as a mere inconvenience necessarily linked to the experience of return, but concerns a situation which goes beyond what a child might reasonably bear.”
Furthermore, there was nothing in the Romanian courts’ decisions that led the ECHR to believe that they considered that the children were no longer at risk of being violently disciplined by their father if returned to his care.
The ECHR considered that the Romanian courts should have given more consideration to the potential risk of ill-treatment of the children if they were returned to Italy. They should have at least ensured that specific arrangements were made in order to safeguard the children. In short, the Romanian courts had failed to examine the allegations of “grave risk” in a manner consistent with the children’s best interests within the scope of the procedural framework of the Hague Convention, and there had accordingly been a violation of Article 8.
I have written here previously (for example here) that financial remedy orders are intended to be final, and that therefore a party is not usually entitled to have a ‘second bite of the cherry’. Once a claim against property has been determined, no further claim can be made against that property. In the recent case Chaudhri (Shafi) v Shafi & Another, however, the situation was slightly different: here, the wife had declined to take that first bite. She did not actually pursue a first claim against the property. However, as we shall see, the end result was still the same.
The case, heard by Mr Justice Mostyn in the High Court in April, concerned the wife’s application for a freezing injunction against a property in London (the injunction had been made earlier by Mr Justice Cobb, and Mr Justice Mostyn was reconsidering it). The injunction was sought in relation to the enforcement of a lump sum order requiring the husband to pay to the wife £686,000. The husband had failed to comply with the order, and the wife sought the freezing injunction to prevent the property being sold or mortgaged, thereby protecting the wife’s claim against the property, which she no doubt hoped would be sold, so that she could recover all or part of the lump sum.
The complication was that the property was held in the name of a third party. The wife claimed, however, that she and the husband had funded its purchase, and were the true (’beneficial’) owners. The wife had made a claim against the property within the financial remedy proceedings. However, she stated that she “did not pursue it due to stress and ill-health.”
Whilst it was true that the wife had suffered stress and ill-health around the time of the final financial remedies hearing, Mr Justice Mostyn found that she was not incapacitated, and was in a position to give instructions to her solicitor. A lawyer for the third party had written to her solicitor stating that her claim against the property had no substance, and asking whether the wife would oppose an application by the third party to have the claim struck out. The wife’s solicitor replied, confirming that she would not resist the strike-out application.
In addition to this, when the matter later went before the court the judge specifically recorded that the wife did not pursue a claim against the property.
Turning to the wife’s freezing injunction application, it was suggested by counsel for the third party that it would be an abuse for the wife now to be allowed to pursue a claim in relation to the property. Mr Justice Mostyn agreed, citing the following words of Lord Bingham in a 2002 House of Lords case:
“The underlying public interest is … that there should be finality in litigation and that a party should not be twice vexed in the same matter … The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.”
Mr Justice Mostyn said that not once, but twice, had the wife failed to pursue her claim in relation to the property. In his judgment, it would be a manifest abuse were a claim now to be allowed to be mounted and protected by a freezing injunction. Accordingly, the injunction was discharged.
(It should be noted that the wife also had the protection of an earlier worldwide freezing order, presumably freezing any property held by the husband, anywhere in the world. Sadly, it can be very difficult to enforce against assets held abroad, which was no doubt why the wife was eager to enforce against an asset in this country.)
This is such a common question that our lawyers are asked and quite rightly so. The family home is a special place and, in many cases, is the main family asset so it is little wonder that when a family breaks down, the property will be central to the divorce.
“What are the options for the family home in a divorce settlement?
In a divorce, all assets held jointly and in sole names need to be identified and their values agreed in order for the negotiations to commence to bring the parties financial relationship to an end. During this process, a value for the family home will be agreed for negotiation purposes.
There are several options for the home. For instance: one spouse buys the other one out and keeps the house, the house is sold and the proceeds divided, or one parent remains in the property and the other party may defer receiving the balance for their share. This can be until the property is sold or transferred to another party upon a specific future event, such as once the children move out or the partner remarries.
It is usually clear early on whether one party can afford to retain the family home post-divorce or if it needs to be sold. Retaining the family home is important when children are involved to give them stability as they adjust to the new dynamic, but this is not always financially possible.
What if I cannot afford to run the family home by myself?
If you are unable to meet all the outgoings on your income, you could seek assistance from your spouse as an interim measure if they have the money available to help and your own outgoings are reasonable. You will need to check that your income includes everything that you are entitled to e.g. child maintenance/tax credits etc. If your spouse is unwilling to agree, it is worth contacting the mortgage provider to see if they can offer any assistance by way of a mortgage holiday as a short-term solution.
My name is not on the property deeds – do I still have any rights?
If the property is the family home then the court views it as a joint asset. However, if the family home is in the sole name of your spouse you must act quickly and enter a Notice of Home Rights against the property with the Land Registry. This should help prevent your spouse from trying to sell the property without your knowledge or consent.
Are my rights affected if I move out before the house is sold?
No. If the atmosphere at home has become unbearable and you need to move out it will not affect your entitlement to a claim on the property. It is advisable to collect all your personal belongings, including paperwork, before you go in order to prevent any issues in recovering them at a later date.
Do you need divorce advice?
There are many myths surrounding divorce and what happens to the assets of a marriage so I always recommend obtaining legal advice from a solicitor so that you can get advice tailored to your own situation. This will enable you to make informed decisions about you and your family’s future.”
If you would like advice on divorce and who keep the house, you can make an enquiry here or call our Client Care Team at the number below.
I suspect that when most people think of domestic abuse they envisage physical abuse, and physical injuries to the victim. At least that is likely to be the case with people who have not experienced abuse, or witnessed it, whether first- or second-hand. But domestic abuse, even of the physical kind, can also seriously affect the mental state of the victim. Of course, it has long been well known that abuse of whatever kind can have a serious detrimental effect upon the victim’s mental state, but new research suggests that the effect is considerably more serious than, I suspect, many would have imagined.
The research was carried out by Birmingham University and published in the British Journal of Psychiatry. It should be noted at the outset that the research looked only at female survivors of domestic abuse, or “intimate partner violence” (‘IPV’), as the researchers called it, although I see no reason why the findings would not be similar with male survivors. They matched 18,547 women exposed to IPV between the 1st of January 1995 and the 1st of December 2017, to 74,188 unexposed women, identifying ‘outcomes of interest’ (anxiety, depression and serious mental illness).
The research found that 49.5% of women in the exposed group had some form of mental illness, compared with 24% in the unexposed group. That would suggest that women exposed to domestic abuse are about twice as likely to suffer mental health problems as women who have not been exposed to domestic abuse. However, the effect of abuse is actually worse than that. About half of the women in the exposed group had already experienced some form of mental health problem, whereas only about a quarter of those in the unexposed group had. The effect of this (as I read it) is that women exposed to domestic abuse are actually about three times as likely to suffer mental health problems as women who have not been exposed to domestic abuse.
That is quite a significant finding, indicating that the effects of domestic abuse are potentially even more serious than previously thought. And it may be trite to drag this up, but it is surely a truism: physical scars may heal quite quickly, but mental scars can take much longer. The adverse effects of domestic abuse may stay with victims long after the abuse has ended.
Obviously, as the researchers point out, the study could have important implications for health practitioners when treating women (and no doubt also men) with mental health problems. But could it have any implications in the field of law?
To be honest, I’m not entirely sure that it could have any direct implications, other than to make us all even more aware of the adverse effects of domestic abuse, and of how important it is that we do all we can to reduce the incidence of abuse, and to ensure that its victims are protected as quickly as possible.
We are not, for example, concerned here with the type of abuse. The study does not distinguish between different types of abuse, merely looking at the effect of abuse generally upon the mental health of the victim. We are not therefore considering whether the definition of abuse should be extended to cover other types of abuse. The Government is already intending to introduce a revised definition of domestic abuse in its Domestic Abuse Bill, as I explained in this post, and that definition will include “psychological, emotional or other abuse”, which obviously can have a direct effect upon the victim’s mental health.
But there are also indirect implications. Take, for example, the issue of child arrangements in a case where there have been findings of domestic abuse. It is easy to see that the effect of that abuse upon the mental health of the ‘victim parent’ could certainly have a bearing upon what arrangements are appropriate. For example, if the parent with whom the child lives suffers from anxiety problems resulting from abuse by the other parent, then that obviously must be taken into account when formulating any contact arrangements.
In short, research like this helps to inform those who have to make decisions in the family courts, and those who advise the decision makers.
Rebecca offers one-to-one coaching sessions and workshops that focus on the emotional and practical issues surrounding separation and divorce.
She joins us to explain how a divorce coach can help you to stay focused and make clear and well-informed decision before, during and after a divorce.
“Why do you need a Divorce Coach?
Whether you have left, you want to leave or have been left, a Divorce Coach will sit beside you steering you through the myriad of information and emotions that will come up during and after your divorce process.
Unlike a psychologist or counsellor who will analyse and give advice, a coach is there to motivate, guide and inspire. A coach will focus on the outcome, and then break that down into sections (maybe weeks or days) so that you can make clear and well-informed decisions with the help of your solicitor.
A Coach is there for YOU as a sounding board and empty space for you to fill with the EMOTION of your Divorce.
But I have fabulous support from my friends and family.
Yes, and that is amazing, you can tightly wrap them around you. However, your coach will be there for you to rant at, to be angry at, to look for solutions for you, to help you find the light at the end of what can be a very long tunnel.
The most important thing is that your coach is unbiased, non-judgmental and wants the best outcome but isn’t your mum, sister or best friend who have their own personal feelings regarding your situation. A coach allows you to manage your own feelings and find strategies to deal with the emotions of the people closest to you.
What about the cost? I am already paying for a solicitor.
It’s no secret that it costs to get divorced, but by working with a coach you can speed up the process, save the frustration and unnecessary emotional turmoil and, in turn, save money. You can fully utilise your solicitor to do their job: to make your actual divorce as straight-forward as possible, sort out the financial element and the child contact element. You won’t feel the need to lean on them for emotional support – which they are not trained to give.
The benefits of a divorce and separation online course
This course is designed for anyone who has been through or is going through separation and divorce and is run in a group setting via Facebook.
It includes interactive Zoom calls once a week as well as my regular presence on the page – not forgetting the chance to ‘meet’ people in the same place as you.
Small 5 minute ‘Game Changer’ challenges will be posted daily as well as inspirational stories and techniques to assist you at this truly challenging time of your life.
I wrote here last week explaining why we don’t need another code of conduct for solicitors dealing with children disputes (we already have one). Remarkably, despite my post there are still some who are not convinced, and who continue to call for a new code. Yes, I know that it is difficult to understand that some people disagree with me, but clearly I need to explain in more detail.
Seriously, I’m sure that most of those who make these calls are well meaning, but what bothers me is the implied idea that any further code must by definition be a good thing. But you can’t solve everything just by making more rules. It needs to be understood that ‘more is not necessarily better’. In fact, more can actually be a bad thing.
For a start, another code would impose a further burden on family law solicitors, who are already have enough law, rules, guidance and codes to weigh them down. Yes, I realise that few lay people are going to be concerned about how much solicitors are required to know, but every new thing further impinges upon their freedom of action. I’ve often thought that I’m glad I stopped practising ten years ago, as there now so many sets of rules, guidance and codes that I would be afraid to advise a client upon a particular course of action, for fear that I might be in breach of the latest edict setting out the ‘correct’ way to proceed.
And any new code will obviously be more complicated than what we have now, dealing with specific situations that its proponents believe are required to be covered (more of which in a moment), rather than generalisations. But surely, a more complicated code is less likely to be remembered and complied with than a simple code. The beauty of the Resolution Code is its simplicity. It essentially comprises seven short and easy to remember sentences (excluding the Guides to Good Practice). And most of it is common sense anyway (again, more of which in a moment). In the realm of children disputes, if one just follows the first two points of the Code (‘Reduce or manage any conflict and confrontation; for example, by not using inflammatory language’, and ‘Support and encourage families to put the best interests of any children first’) then you are not going to go far wrong. You can simply apply those general principles to whatever situation you are faced with.
Which brings me to my next point. A more complicated code is, by definition, going to be more rigid. It will prescribe what to do in a given situation. But you simply cannot cover all possible situations that a family lawyer will face, and very often the situation is not as ‘black and white’ as any code maker may envisage. In fact, a rigid code may even point towards the wrong outcome.
And that brings me to my last point. A rigid code encourages solicitors to disregard the one thing that they require above all else: common sense (yes, I accept that some family law solicitors may be lacking in this commodity, but I’m sure the vast majority are not.) Common sense is what is really required to guide family law solicitors, just as it is anyone else. Yes, use a basic code as an outline, but apply common sense to it. Don’t let yourself be blindly guided by a code, just because you have been told that you must follow it.
Let us finish by briefly looking at some practical examples. After she read my last post, that well-known and very highly regarded family lawyer to whom I referred, and who suggests a further code may be required, sent me the following tweet (I have expanded the abbreviations, for the sake of clarity):
“Agree that respecting/enforcing existing codes vital. But clear that more needed. Are we, for example, under a duty to follow instructions if they are obviously in conflict with the child’s best interests? What should be our role getting clients to sign a parenting pledge? What about litigants in person?”
OK, I think I can deal with those three examples very quickly, using what we have already: follow the ‘put the best interests of the child first’ point in the Resolution Code, and apply common sense. Sorted.