Have you wondered what happens about finances when you have to go to court ? It is sensible to consider this question when deciding whether or not to use family mediation to resolve issues about how to split your finances.

Here is a link to a recent 1 hour discussion on the subject on Radio 4. The discussion included a retired Family Court judge, a practising barrister, an academic and a McKenzie friend ( a person who assists a litigant in person in court and who does not need to be legally qualified): Splitting the Assets .

When involved in divorce proceedings (or dissolution, nullity or judicial separation proceedings) concerning finances couples have to fill in a very long form called a Form E. This is intended to be a complete disclosure of the parties respective financial positions (i.e. assets and liabilities). Parties and courts make final decisions and orders on financial settlements based on this disclosure. If it is substantially wrong i.e. there would have been a different outcome if the true facts were known, it is possible for any final court order to be set aside.

There is an online form for this purpose which calculates certain totals of individual figures. If using a solicitor the solicitor will usually provide the hard copy form but for those acting without solicitors the online form is often used.

At the end of last year it was discovered that there was a problem with the online software, which had existed since about April 2014, which resulted in the form containing inaccurate figures. This was corrected on 14 December 2015. However, it was then discovered that the error could also have affected cases between between April 2011 and January 2012.

In January 2016 the Ministry of Justice announced that this affected 3,638 couples and has potentially voided about 2,235 settlements, as 1403 cases were still live. Justice minister Shailesh Vara MP wrote that some parties may want to set aside or vary their order and that there would be no court fee for making such an application. He also said: ‘I have instructed HMCTS to write to all parties in the 2,235 closed cases. The letter expresses our sincere regret for the error, sets out what happened and explains that, although Form E is just one part of the evidence used in their case, there remains a possibility that the error affected the final outcome.’

The Ministry have said “Anyone concerned about their own court proceedings should contact
formE@hmcts.gsi.gov.uk”.
(Advise (sic) regarding a faulty divorce form E (Financial Statement):

The Office for National Statistics have published (23 November 2015) more information showing how marriage and divorce in England and Wales have fared over the last few years.

The rate of divorces fell in the years 2003/2009. The rate was then steady until 2010 when there was a 4.9% increase after which the rate was more or less steady until 2012, then fell in 2013. As to the actual figures in that year, in 2013 there were 114,720 divorces, a fall of 2.9% since 2012, when there were 118,140 divorces.

So, who is doing the divorcing? The statistics show that in 2012 divorce was highest among men and women aged 40 to 44. In 2013 the average marriage that then ended in divorce lasted for 11.7 years. This average has kept fairly stable since 2005. Interestingly 65% of petitions for divorce were started by women.

As reported in my last blog, more couples are now choosing to cohabit, which might help to explain these figures.

The Office for National Statistics (Families and Households survey, released 5 November 2015) has shown that unmarried living together is the fastest growing family type. The statistics disclose that in 2015 there were 3.1 million opposite sex cohabiting couple families, an increase from 14% of all families in 2005 to 17% in 2015. This difference is described as a “statistically significant increase”. In the case of opposite sex cohabiting couple families, 41% have dependent children in their homes which figure is 3% for same sex cohabiting couple families. Also, in 2015 there were 90,000 same sex cohabiting couple families in the UK. These figures mean that there are more unmarried couples with no children in the household than those who do have children in the household.

There is a big gap between the protection the law offers to married couples compared to those who are unmarried. This leads to much debate about the extent to which the law needs to close the gap; that is, should unmarried couples who choose to live together and not marry, be given rights closer or equal to those who make the choice to marry?

There is no right or wrong answer. However, given the increased numbers who chose to live together and not marry, the law should at least be as clear as it can to help such couples divide their money and property if and when they separate without the added worry and cost of an uncertain legal position.

These relationships cover a wide range of situations, from childless couples who have lived together for a short period, maybe days and months, to those who have lived together for many many years, have had children together and where one of the parties, typically, might have given up or slowed down a career for the sake of bringing up their children. So it can be seen to be very difficult to create a system that provides fairness in all of these different situations whilst being straightforward, clear and cheap to administer.

In March 2014 the law changed to allow for same sex marriage. The result has been a 70% fall in the rate of civil partnerships from 2013 to 2014.
( Office for National Statistics ).

When these partnerships/marriages end they can raise exactly the same issues as on the termination of heterosexual relationships. Family mediation can often be helpful in these cases.

In 2014 there were 1061 civil partnerships dissolved which was 8.9% more than in 2013.

To divorce couples need to wait for at least a year after the marriage so it is early days to be looking at the statistics for the ending of same sex marriages.

It is commonly thought that unmarried couples living together have legal rights.
These relationships are referred to as common law marriages.

Those who are married or in civil partnerships have rights to claim against each other, on the ending of their legal relationship, for maintenance, orders concerning capital (property such as houses, savings and other assets) and pensions.

However, this is not the case where the couple are unmarried or not in a civil partnership. In general no rights arise so, on the ending of the relationship neither party can claim against the other’s property or for maintenance.

If the couple have children there can be claims in respect of the cost of raising the children which rights generally end when the children reach their majority.

If one of the couple dies during the living together there may be claims against the deceased’s estate under the Inheritance Act.

This is of some concern as there has been an increase in the number of couples choosing to live together without getting married. This is happening more in older age groups. In 2011 the 40 and overs made up 41% of the cohabiting population up from 31% in 2001.

The government has issued a consultation paper on court fee increases (responses by 15th September).

It used to be the case that the courts were regarded as part of the public service funded mostly by the taxes citizens pay. However, over the last few years that has changed to trying to make the courts self financing. In fact the government can now, and do, charge more than the cost of providing the service.

It has often been said of the courts that, like the Ritz, they are open to all. Court fee increases, especially substantial ones, make that saying all the more real. The effect is that the courts are increasingly only open for the rich. The government counter this by saying that they have a court fee remission scheme but, apart from being very bureaucratic, hence discouraging use, the vast majority are left having to fund court fees from their own pockets if they wish to enforce their legal rights. After all, what use is a right if only the rich are able to enforce such rights.

The present court fee for starting a divorce petition is £410 (increased to that figure in July 2013). The government is proposing that it increase to £550. They describe this one third increase as “modest”. The original proposal from the coalition government had been to increase the fee to £750 but in January 2015 it decided to make no increase at all so the government has now changed its mind.

Over the years the prevailing view on this question and what is in the best interests of the children has shifted from saying that the children should be heard, to keeping them away from the court and the parental dispute, leaving it to the court and the parents to decide what is in their best interests.

The United Nations Convention on the Rights of the Child 1989 provides that children should be given the opportunity to be heard where they are capable of forming a view. Opinion has and does vary as to the age at which the child’s view should be taken into account. The European Convention on Human Rights gives similar rights.

With the agreement of the parents children can be consulted in the mediation process where the parents consider this would be of help. Research in Australia has found that this can have significant beneficial outcomes for the children and the family.

In November 2014 the Government set up the Child Dispute Resolution Advisory Group to consider these matters. The Group published its Final Report in March 2015. It concluded that children should have the opportunity to be heard during processes to resolve disputes and that this should be the normal starting point for family mediators. The emphasis from the Group was strongly on the child’s rights. It recommended there be a non-legal presumption that all children aged 10 and above should be offered the opportunity to be heard during any dispute resolution processes, including mediation. The right to be heard is about including the child in the process, taking note of what the child has to say and listening to those views.

Separating couples considering family mediation sometimes worry that what they say in mediation or other matters relating to the mediation process will be reported to the judge if the mediation doesn’t work.

Whilst not unusual, this worry is ill founded. Mediation is a private process which is one of its main principles. Accordingly, a judge is not told about what happened in mediation other than the fact that it took place but didn’t achieve a settlement on some or all of the issues. It might be the case that some issues will have been resolved and it might be that both parties are then happy for the court to know about that.