blame game

Author Archives: Alison Winterbottom

End to the blame game in sight?

The Justice Secretary has today finally announced plans for a new law meaning divorcing couples will no longer have to blame each other for the breakdown of their marriage.blame game

The current law requires evidence of 1 of the following; adultery, behaviour, desertion, 2 years’ separation (if 1 spouse consents) or 5 years’ separation (otherwise).  As Accredited Members of Resolution we have supported the campaign for this change which will reduce conflict in the process and therefore the impact on any children.

New legislation will be introduced by Parliament in due course.

For more information or advice contact contract our specialist Family Solicitor Alison Winterbottom at our office.

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Seek advice from a Family lawyer

It’s tempting to try and cut costs by seeking help from a cheaper, lay adviser, for example ‘MacKenzie Friends’, however, they are untrained, the law is complex and if things go wrong you would have no right of redress against them like you would against a Solicitor regulated by The Law Society.

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With the launch of the online government divorce service in April 2018, sadly, it’s easier than ever to make a life changing decision with the simple click of button.

Between 24 December and 1 January, 455 divorce applications were filed in England & Wales with 13 submitted on Christmas Day itself…which begs the question whether these applications were made in the heat of the moment, without any advice or consideration of the long term costs and implications.

Even if you want to manage the process yourself, you should still seek professional advice from a qualified family lawyer BEFORE taking any hasty steps.

But, quite rightly, instructing a lawyer doesn’t have to mean going to Court.  We are Resolution Accredited which means we are wholly committed to a non-confrontational approach to family matters.

For more information please contact our family law solicitors at our office.

 

 

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BREAKING NEWS – SUPREME COURT REFUSE RIGHT TO DIVORCE

The Supreme Court has today ruled that Tini Owens cannot divorce her husband, Hugh Owens of 40 years until 2020, when they will have been separated for 5 years.  This is because of the manner in which the Matrimonial Causes Act 1973 (which provides the basis of a divorce) is drafted and because Hugh Owens refuses to agree to a divorce.   The couple have been separated since 2015.

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This case and others have prompted a campaign for a change in the law to allow couples to divorce without a finding of fault on either party to the marriage.  Until the law is changed, it remains necessary for a party who wants to divorce their spouse to prove that the marriage has broken down irretrievably relying on one of the 5 facts out in the Matrimonial Causes Act 1973.

For expert help and guidance on any aspect of relationship breakdown, contact the Family team at North Ainley Solicitors.

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Should we end the blame game of divorce?

Under current English law, even if both parties agree that their marriage has broken down, unless and until they have been separated for 2 years, they cannot get divorced without one party being blamed.

The reasons for the breakdown of a marriage are usually complex and it is not uncommon for both parties to have quite different views regarding the cause of the difficulties that have arisen. When emotions are already running high, the law, which requires reliance upon either adultery or unreasonable behaviour (unless parties are willing to wait 2 years) is only likely to add fuel to the fire.

Forcing couples to blame each other when there is no real need to do so, can create unnecessary conflict which can in turn affect how the couple deal with the related arrangements that must be made in respect of any children and regarding financial matters.Resolution Standard

Resolution, an organisation of 6,500 family lawyers and other professionals who believe in a constructive and non-confrontational approach to family law matters, is currently campaigning for a change in the law that would allow couples to divorce without blame.

The need for reform has to a great extent been highlighted by the recent case of Owens v Owens in which a wife has been denied a divorce because the Court determined that her husband’s behaviour was insufficient to justify the granting of a divorce decree.  A decision of the Supreme Court is still awaited and will turn upon the interpretation of the relevant section of the Matrimonial Causes Act 1973. Whatever the outcome, the case highlights the need for change.

Resolution are proposing a new “no fault” process allowing one or both parties to give notice that the marriage has broken down irretrievably.  The divorce can then be progressed and if after a period of 6 months , either or both remain of the view that the marriage is over, the divorce can be finalised without any blame being assigned to either party.

Our family solicitors at North Ainley are accredited Resolution members and can advise and assist you with divorce proceedings and all other issues that can arise following the breakdown of a relationship.

 

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Separating Together

The decision to separate can be difficult and daunting, with the most common concerns and fears relating to the risk of conflict, the impact on the children, your future financial security and of course costly legal battles.

Unfortunately family breakdown is a fact of life and the legal process can sometimes lead to more pain and heartache.  Whilst there is no way of avoiding the sadness and upset that the end of a relationship brings, a new approach, called Collaborative Law, could enable you and your partner to work out the arrangements to be made together, with your lawyers and without going to court.

The traditional approach involves both parties taking separate advice from their own family lawyer and working through their lawyers they attempt to reach an agreement.  If agreement cannot be reached then court proceedings are likely to follow with a decision being imposed by the judge.

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The Collaborative process is fundamentally different in that you and your partner commit at the outset not to go to court but rather to sit down together and work with your respective collaborative lawyers, to find a solution to all the issues.  You are in control, you set the agenda and talk about what is important to you.

Although meeting face to face and talking things through with your ex-partner can seem a huge challenge when you are dealing with all the emotions that accompany the end of a relationship, focussing on solutions and the best outcome for the whole family can actually ease the pain of family breakdown.  Discussing how you feel and what you want for the future can enable you and your ex to have a better understanding of each other’s views and to remain on more amicable terms in the future.  This is of course particularly important if you have children.

Everyone knows that a bitter separation or divorce can leave lasting scars, not only for the couple involved but also the children and extended family.  Whilst dealing with arrangements through the Collaborative process, does not prevent separation being difficult, for many couples it can provide a better way of separating, together.

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Love is in the air

With Valentine`s Day around the corner and the shops filled with love hearts, chocolates and balloons, it can be easier than ever to be swept away in the first blush of a new relationship.

But if you have recently separated or divorced, whilst a new romance is a happy and exciting time for you, it can be an unsettling and worrying time for your ex-partner and your children.

However head over heels in love you are feeling, it is worth taking some time to think about the impact your new relationship may have on others close to you.

Whether your ex–partner still has feelings for you or not, a new relationship can be a source of conflict, which if not handled properly can lead to problems with the arrangements for the children. Inevitably your former partner will be concerned about how your new relationship will impact on the children.

Your children too may need some time to adapt and may initially feel jealous or insecure now they have to share you with someone new. Don`t forget that many children continue to harbour secret hopes that their parents will get back together and a new partner can bring this hope to an end.  It is not uncommon for children to feel worried about how the other parent is feeling and concerned that if they like the new partner this may cause further upset.  These conflicting feelings can be very confusing and unsettling and can lead to the children being reluctant to leave the other parent or even saying that they don`t like the new partner .

So what can you do?

Be patient:  Take things slowly. Children need time to adjust to the separation of their parents before being introduced to a new partner.

Communicate: It will definitely help if you keep your ex-partner informed, particularly of any plans to introduce the children to your new partner. If possible talk through any concerns and be prepared to offer assurances about your new partner`s involvement with the children. Be willing to listen.

Be sensitive: Only introduce the children to someone you are in a long-term relationship with. Do not rush the children but let them take time to get to know your new partner gradually. Remember the children will not feel the same as you do about your new partner and will still need some time alone with you, particularly if they do not live with you.

Reassure: Both the children and your ex-partner will benefit from assurances that the new partner is not a substitute parent ,replacing mum or dad and that you and your former partner will continue to have joint responsibility for the children`s parenting .

If you are experiencing difficulties regarding the arrangements for the children, particularly if a new partner is involved, seeking early advice from a specialist family lawyer can prevent a small problem becoming a major headache.

For more information or advice contact Alison Winterbottom in our Family Department.

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Cohabitation Agreements – Do you need one?

If you are living as an unmarried couple the simple answer to this question is probably yes, given that under English law cohabiting couples have little or no legal protection if their relationships break down.

Cohabiting couples are the fastest growing family type in the UK with almost 7 million people living in this type of relationship and the numbers are projected to rise further as the decline in marriage continues.

It is perhaps astonishing in the circumstances that the law does not recognise the rights of unmarried couples who live together.

In a previous article, we talked about the myth of the “common law husband or wife” and highlighted the difficulties that unmarried couples can experience asserting their rights to the family home.  The difficulties do not stop there.  Under the current law, a couple could live together for 20, 30 or even 50 years (periods longer than most marriages) and following separation, simply walk away without any on-going financial responsibility to each other.   Perhaps even more surprisingly, the case remains the same even when the couple have children together.

Imagine the not uncommon scenario of an unmarried couple with young children.  The mother has given up work, putting her career on hold to look after them.  Should their relationship break down, although the father will have a responsibility to pay child support he will have no financial obligations to his former partner.  This is despite the fact that they made choices together as a couple which may have prejudiced the woman financially and damaged her career prospects.

You may have seen reference in the press or social media during the last week in November to “Cohabitation Awareness Week”. This campaign is about raising awareness amongst cohabiting couples and is calling for the introduction of laws to provide cohabiting couples with legal rights.

Sadly however, pending any change in the law many unmarried couples will remain vulnerable if their relationship breaks down and may find that it is too late for a family lawyer to help them.

So what can you do pending a change in the law?

You and your partner could agree to enter into a Cohabitation Agreement, to protect you both if  your relationship breaks down. The Agreement can record your intentions and deal with both the financial arrangements whilst you are living together and set out what will happen to finances and property if the worst happens and you split up.

You could also consider taking out life insurance and you should definitely make a Will.

Many unmarried couples continue in the mistaken belief that they have rights as a common law husband or wife, when no legal rights exist. If you are in a cohabiting relationship, it is important to seek legal advice from a specialist family lawyer so that you understand how you would be affected financially if your relationship were to break down and how a Cohabitation Agreement could help to protect you.

For more information or advice, please contact Alison Winterbottom in our Family Department.

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Divorce and Business Assets

How a couple’s assets are to be divided is often the most difficult issue to resolve when a couple is going through a divorce.

Businesses (which include limited companies, partnerships and sole traders) form part of the assets to be shared on divorce and will be a central consideration in the negotiations and any financial proceedings.  It is therefore very important that if you are going through divorce or contemplating separation, where there is a business involved, that you seek expert legal advice from a family lawyer.  This will enable timely consideration of your particular circumstances and help to ensure that the best outcome is achieved.

Where there is a business, alongside the more usual considerations given in respect of the family home, investments and pensions, there must be careful exploration of the nature of the business, its value (if any), and the income it generates.

There are a number of points to think about.

Early consideration should be given to the need for a valuation of the business.  If the business produces an income stream only and there is effectively nothing of value to sell, then a valuation will not be necessary.  In these circumstances, depending upon the level of income generated, it may however be relevant to consider sharing the income stream by way of a Maintenance Order or conversely obtaining a Clean Break Order to prevent future financial claims being made.

A valuation is however likely to be required if one spouse has a significant shareholding or owns the business outright and where there is a sizeable turnover and profit.

Valuing a business is not straightforward and it would be usual to instruct an independent expert accountant jointly with your spouse.

Once a valuation is obtained, it is not as straightforward as adding the value in with the other assets to be divided between the parties.  This approach is too simplistic and does not recognise the risk laden nature of some businesses.  The capital value of business assets is not necessarily the same as property or money in the bank and this should be factored into the negotiations and the terms of the financial settlement.  This is particularly relevant if the business is to be retained by the owning spouse with the non-owning spouse receiving a greater share of the other property or investments owned outside the business by way of compensation.

This is a complex area of law and if you are dealing with relationship breakdown, seeking early legal advice from a specialist family lawyer is important and more likely to enable you to resolve the arrangements constructively and without unnecessary legal costs being incurred.

For further advice, please contact Alison Winterbottom at our office.

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Should the house wife go back to work following a separation?

In circumstances where a husband and wife have made a decision at the start of a relationship for one of them (usually the wife) to stay at home and look after the children whilst the other (usually the husband) works, what should happen on separation? Should the husband continue to support the wife financially by paying spousal maintenance?

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There are no easy answers to these questions.  The Courts have a high level of discretion and will consider a list of factors when determining whether maintenance is payable.  Any dependent children will be the Court’s first consideration.

However, in an age of male and female equality, the Court will expect the wife to maximise her earning capacity and take all necessary steps to become self-supporting, unless a good reason can be shown to defeat this expectation.  For example, it could be relevant that the wife is nearing retirement age and would struggle to find gainful employment.

In the recent case of ‘Wright and Wright’ the Judge said that there is a general expectation that the ex-wife and mother with children over the age of seven should seek appropriate work compatible with the children’s educational requirements and without undue hardship.

If the wife cannot earn enough to maintain the standard of living enjoyed during the marriage, then in certain circumstances the Court may still determine that maintenance is payable to “top up” the wife’s earnings.

The Court can order that maintenance be payable for life, however, this case demonstrates a move towards maintenance being reduced to a specific term and in certain circumstances maintenance no longer being paid, especially when at retirement age, as in this particular case.

It is important to note that any maintenance order can be varied at a later date if either the husband or wife’s circumstances change.

For further information please contact a member of our Family Department for more information and advice.

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Finalise your finances as well as your divorce

There is a common misconception that a divorce will finalise all financial matters arising from the marriage. Whilst a divorce does bring an end to a marriage itself it does not also bring an end to the financial obligations spouses have to each other.

Anyone seeking a divorce should also ask the Court to approve any agreement reached by lodging an agreed Consent Order.  Such an Order can deal with any income, capital and pension to be distributed.  The Order should provide for a clean break so that no claim can be brought by either party to the marriage in the future.

There are various methods to assist parties’ in reaching an agreement and your Solicitor will be able to advise you of the options available.

The only way to ensure an agreement reached is binding is to have it embodied in a Consent Order. As such it is important that legal advice is obtained even if an agreement has been reached directly between you and your ex-spouse.

If an agreement cannot be reached then either party has the right to claim financial provision and to bring proceedings at Court.  These proceedings are complex and will result in a Court Order determining the finances.

Importantly, the right to bring proceedings at Court does not come to an end on divorce unless a Court Order has already been obtained.

As such it is vital that a Court Order providing for a clean break is obtained even if there are no assets of the marriage. If no order exists you could be left vulnerable in the future to a claim from your ex-spouse even in circumstances where your assets have been accrued post marriage and even if one or both of you have remarried.

If you wish to find out more please contact a member of our Family team for further advice.

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Christmas – A time for putting the children first

broken bauble turquoiseWhilst Christmas is usually the most exciting and magical time of the year for children, for parents who have recently separated, it can be a difficult and challenging time with the arrangements for the children being an additional source of stress and anxiety.  Although for most parents Christmas is about making sure the children have a wonderful time, separated parents can unconsciously allow their own feelings to cloud their judgment about what is best for the children.

Sadly, Christmas can become an opportunity to use contact as a weapon to hurt or punish a parent who has left. One parent may feel strongly that they have earned the right to have the children with them at Christmas after working hard to provide for them throughout the year.  The existence of a new partner can also add fuel to the fire. These issues and many more can lead to parents being unreasonable about the arrangements.

Although an unreasonable stance will undoubtedly hurt the other parent, it will also hurt the children who are caught in the middle.

In most situations, whatever the circumstances for the breakdown of the relationship, children will continue to love both parents unconditionally.  Many children harbour secret hopes that their parents will get back together, probably more so at Christmas than any other time particularly with the emphasis on families spending time together during the festive season.  Imagine the sadness and distress children will therefore feel if they are aware of the conflict about the arrangements or if they are prevented from seeing one of their parents over the Christmas period.

For children whose parents cannot be together, it is hugely important that they feel loved by both parents and that they can feel safe and secure in the knowledge that they will be spending time with all of the family with their parent’s blessing and agreement.

If the Christmas arrangements have not yet been made, now is the time to do so.  Here are some tips to help:-

  1. Be fair in your approach and be prepared to agree to an alternate year arrangement, so that both parents have the chance to experience the excitement of Christmas Eve and Christmas morning.
  2. Be creative about the arrangements and consider whether the children should effectively have two Christmases, spending Christmas Eve and Christmas Day with one parent and Boxing Day and 27 December with the other, with this arrangement alternating in the following years.
  3. Be child focused and make sure that the children will be happy with the arrangements, and that they will have time to play with their presents and see extended family members.
  4. Be prepared to talk and listen to each other. You continue to have a relationship as parents and therefore a continuing responsibility to make joint decisions for the benefit of your children.
  5. Avoid asking the children to decide the arrangements but instead tell them about the arrangements (together if possible) once they have been agreed. This way the children have certainty and can look forward to spending Christmas with both their parents without worrying that either parent may be upset.
  6. Avoid gift competitions by sharing the children’s wish list and agreeing who will get what.  You could even consider giving the main present as a joint gift from you both.

It is better for children and better for parents if all arrangements, following separation, can be agreed without costly and stressful Court proceedings but sometimes this is not always possible.  We offer an initial free consultation at which we will discuss the various options to help you move forward and resolve any issues with the least amount of upset as possible.  If you need advice or help in this regard contact Alison Winterbottom who heads our Family department.

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The rising cost of divorce – a better alternative

Traditionally when couples separate they take independent legal advice from a Solicitor and working through their Solicitors they try to reach agreement.

When agreement cannot be reached the issues are left to be decided by the family Court which can lead to increased costs, conflict, uncertainty and anxiety for all involved.

It is not commonly known that there are alternatives to Court and these alternatives have a proven track record in assisting Parties in resolving their issues arising from separation.

Our family law team will provide you with comprehensive advice regarding your options at an initial meeting, which include:-

Mediation

Mediation involves meeting with an independent third party who is trained to help resolve issues faced by separating couples. Mediators will not take sides and cannot give you legal advice. Our family law team would be able to provide you with legal advice alongside the mediation process. Once an agreement is reached the terms of agreement need to be embodied into a “Consent Order” which, once lodged at Court, is legally binding.

Since April 2011 there has been a requirement that anybody who wants to go to Court has to attend an information and assessment meeting with a qualified mediator (MIAM). There is no requirement that you have to engage in mediation. In some circumstances mediation may not be suitable i.e. where there is domestic violence or when one party is more dominant than the other.

Collaborative Law

Collaborative Law offers a refreshing alternative to Court. In the Collaborative process each person has their own specially trained Collaborative Lawyer and it is agreed in writing at the start of the process that the couple and their Lawyers will work together in a series of face to face meetings to resolve all the issues, without involving the Court. Our Alison Winterbottom is a trained Collaborative Lawyer and will be able to provide full details in respect of this process in order that you can assess whether the process is right for you. If an agreement is reached through the process then the terms of the agreement will need to be embodied into a legal binding “Consent Order”.

For more information and to discuss your options please contact our family law Solicitors on 01616245614.

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  • Excellent service all round.
    Mr & Mrs B Hurst - Failsworth
  • Lisa Wright
    Lisa Wright
    15:05 25 Feb 19
    Cassie was fantastic throughout our sale and would recommend North Ainley if selling or buying a house.read more
    Lynn Findlater
    Lynn Findlater
    18:55 01 Dec 18
    I have used North Ainley for a number of years. They have successfully dealt with my parent's wills and more recently the sale of 2 properties. The staff are exceptional and imparticular Cassie who took care of the whole process from start to finish whilst I was overseas. She diligently chased all third parties and kept me informed at all times. I would recommend North Ainley as they have proved themselves time and again over the last 10 years in all of my family's legal affairs.read more
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    Idnan Ahmed
    12:57 30 Nov 18
    Excellent service. handled my latest commercial purchase professionally. Would recommend to anyone who is looking for a solicitors who are proffesional and easy to work with. Top service.read more
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    Lucy Hoy
    16:39 27 Nov 18
    Excellent! Very friendly and fantastic communication throughout. Nothing was to much trouble. Thankyou Vinesh and Cassie. Would definitely recommend.read more
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    Fantastic Solicitors firm. Very professional. Close to Oldham Town Centre. Answer all your questions and concerns. Keep you upto date at every stage. I have used this firm for many years in buying and selling property. You can not go wrong using North Ainley Solicitors.read more
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