REMO stands for Reciprocal Enforcement of Maintenance Orders and it is essentially an international agreement between countries to help recover child maintenance from parents who live in different countries.

REMO can help parents living in England or Wales (when the other parent has moved abroad) and if a parent is living abroad (and the paying parent lives in England or Wales). This is on the strict basis that both countries are participating REMO countries.

Before beginning the REMO process you must first ensure that you have a child maintenance order (or equivalent) that you can enforce. The aim of the REMO system is for reciprocating countries to enforce the child maintenance order you have as if a court in that country had made the order itself.  It sounds straightforward but the REMO system can be complex and slow.

The first stage is to find out where the ‘Central Authority’ is in the country where you live. All applications must go through this Central Authority. The Central Authority in England is at: The Reciprocal Enforcement of Maintenance Orders Unit (REMO), Victory House, 30-34 Kingsway, London, WC2B 6EX. You can find the list of reciprocating countries and their Central Authority addresses here:  https://www.hcch.net/en/states/authorities

Once you know where your Central Authority is, you need to make an application for ‘registration and enforcement of your order’. The precise form and details you need to provide will vary from country to country.

Your application will need to be supported by documentation i.e. your original court order and details of any steps you have taken to try to obtain payment from the paying parent directly. It will also be helpful for the application to include details of where you think the paying parent lives and works. The more information the better. If any of your documents are not in the language of the court who will be asked to deal with enforcing the decision, you will need to obtain a translation.

Registering and applying to enforce your order is a very important step that must be done correctly. If it is not, the court will not have the power to obtain payment from the other parent. You can make the application yourself in England or Wales (with the assistance of REMO) but you may want to consider instructing a specialist family solicitor to ensure this is done correctly.

Your Central Authority is likely to require you to obtain a ‘Statement of Enforceability’ from the court that made the original order to send with the application. So, contact the court as early as possible about this. You may need to attend in person before a judge to obtain this documentation. Again, you may prefer to instruct a specialist family solicitor to assist with this. 

You do not have to use a lawyer to access the REMO system, but the application process can be complex and confusing. Even if you do not instruct a lawyer to assist you with the application, it is advisable to instruct a specialist lawyer in the country where the court will hear your application to ensure that you are best represented at any court hearings.

Once your court order has been registered in the reciprocating REMO country (this can take many months), you can proceed as if that country made the order in the first place. In England or Wales, an application to enforce the order and deal with any arrears is likely to involve 3 separate court hearings. The first two will be preliminary ‘directions’ hearings at which the court determines what further evidence is needed from the parties – for example disclosure of P60s, tax returns or witness statements. Eventually a Final Hearing will be listed (at which you may need to give evidence) and the court will determine whether or not money is owed and, if so, how much. The court may also use its powers to ensure payment is made. For example, in England and Wales the court has the power to put a charge on someone’s property or make an ‘attachment of earnings order’ (where the court can obtain payment directly from someone’s employer). The power the court has to obtain funds for you will depend on which country is dealing with your REMO application.  

If you are successful in enforcing your court order and you incurred legal costs in doing so, it would be advisable to seek a cost order against the other parent. Whether or not you can obtain a cost order at the end of REMO case will depend on the specific rules of the country enforcing the order and the specific circumstances of your case, but it is always something to request.

Edwards Family Law is a niche London-based firm specialising in complex family law cases. To find out more about enforcement of maintenance orders, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk.   All enquiries are treated in the strictest confidence.

ToLATA or Not ToLATA? That is the question; well it may be for separating unmarried couples seeking to resolve a dispute relating to their land or property.  Today, the number of couples who cohabit (i.e. live together but do not marry or enter into a civil partnership) is increasing, with around 25% more people now cohabiting than a decade ago (according to the Office for National Statistics (ONS)) Contrary to popular belief, there is no such thing as a “common law marriage”, so these cases pose a particular challenge when it comes to  dividing assets following separation,  This is where the Trusts of Land and Appointment of Trustees Act 1996 (‘ToLATA’) comes in.  In this article, we will explain the purpose of ToLATA, and why this may provide recourse when determining how property and land should be handled following the separation of an unmarried couple.

What is ToLATA?

In the event of a property or land dispute following the separation of an unmarried couple, a claim can be brought under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) to request that the Court make a decision regarding that property. 

Under ToLATA, the Court will have the power to make a decision (as it sees fit) on:

• Who owns the property, and how this is shared
• Whether the property or land should be sold
• Who should remain in the property following separation
• Whether parents or grandparents should be able to regain their financial interest in a property.

They cannot, however, remove or appoint trustees.

Before ToLATA, its predecessor, the Law of Property Act 1925 imposed a duty to sell property owned by more than one person in the event of separation.  Section 5(1) of TLATA, in contrast, states that there is no duty to sell in such circumstances.

What is a ‘Trust of Land’?

A trust of land can arise in several ways, including:

• expressly in writing
• implied, resulting, or constructive – where the proprietor has acquired the land using funds provided by another
• as a statutory trust – imposed when two or more persons own land jointly
• as a bare trust where the trustee is a nominee for a beneficiary

As such, where a couple have been living together in a property that was purchased by one person partially using the funds of the other person, this would create an implied trust of land.  Where property is jointly owned by two people (i.e. co-owners), they are classed as both trustees and beneficiaries.  Claims brought under ToLATA can, therefore, be brought by either party as a trustee or beneficiary.

Section 14 of ToLATA states:

“(1)Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the Court for an order under this section.

(2)On an application for an order under this section, the Court may make any such order—

(a)relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b)declaring the nature or extent of a person’s interest in property subject to the trust, as the Court thinks fit.

(3)The Court may not, under this section, make any order as to the appointment or removal of trustees.

(4)The powers conferred on the Court by this section are exercisable on an application whether it is made before or after the commencement of this Act”.

How can a family law solicitor help with a ToLATA claim?

It is always advisable to seek advice from a family law Solicitor who deals with ToLATA claims, as this is a specialist area of law. They will be able to explain the best options based on your circumstances and whether making a ToLATA claim is appropriate.  Key to this is collating enough evidence that a trust of land exists and who has a beneficial interest.  A family law Solicitor will act quickly to protect the interests of their client, especially where they have no legal ownership of the property and their beneficial interest is not protected on the registered title at the Land Registry. Where necessary, an application can be made to the Land Registry to have their beneficial interest noted and place a restriction on the title of the property to prevent the registered owner from selling it.

A family law solicitor can also intervene urgently where one person has been unlawfully excluded from the property by the other party by seeking an interim injunction.

Where possible, offers will be made (a Part 36 Offer) in order to try and  reach an agreed conclusion out of court either before ToLATA proceedings are commenced or throughout the course of the proceedings. 

Before an individual or their Solicitor can bring a claim under ToLATA at court, they must follow the required pre-action protocol. This includes seeking an Alternative Dispute Resolution (ADR) (e.g. mediation, negotiation, or arbitration) outcome, as well as sending a letter before claim setting out the facts of the dispute, the law and the relief claimed..  If necessary, a claim can then be brought under section 14 of ToLATA before the High, County, or Business and Property Court, depending on which is appropriate.  Your Solicitor will also  determine whether to follow the part 7 or part 8 procedure – this depends on the extent of the dispute, whether matters of fact are disputed, and the outcome required (e.g. part 8 must be followed if the application is to sell the property in question).

Costs

As ToLATA proceedings are must follow the Civil Procedure Rules, the general rule is that the successful party is entitled to recover their costs from the losing party, although what order is made is at the court’s discretion. In deciding what order (if any) to make about costs, the Court will have regard to all the circumstances, including—

a) the conduct of all the parties;

b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

c) any admissible offer to settle made by a party which is drawn to the Court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

If a party brings a ToLATA claim which is unjustifiable, defends a claim or an issue on which they should have conceded, or neglects to make any reasonable offers they could find themselves having to pay their opponent’s legal fees in addition to their own.

It is therefore essential to take advice in respect of the merits of any claim you may bring or have to face defending from a specialist family solicitor.

Final words

Bringing a claim under ToLATA to resolve a property ownership dispute following the separation of an unmarried couple requires careful consideration of the possible outcomes, the likelihood of making a successful claim, and the costs (including the costs risk) and timescale involved.  An experienced family law Solicitor will listen to the details of your case and explain all aspects of bringing a claim before you make the decision to proceed.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about bringing a claim under ToLATA, please phone +44 (0)20 7129 7978 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

International travel has boomed since the pandemic, with many families planning trips abroad to make up for lost time.  Holidays can be a great opportunity to create fun memories for children in particular, but what happens when one parent wants to take a child on holiday without the consent of the other parent? This article will consider the law in relation to parental rights, the position on taking children abroad following divorce or separation, and provide guidance to help parents navigate the relevant considerations to be made.

Parental responsibility and the law

The rules around taking a child abroad without consent hinge on the concept of parental responsibility. The Children Act 1989, which defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” Practically, this means that a person with parental responsibility may make decisions about the child’s upbringing, such as:

• Where the child goes to school;
• How to discipline the child;
• Consenting to the child’s medical treatment; and
• Choosing, registering or changing the child’s name.

How long does parental responsibility last?

Parental responsibility usually comes to an end when the child reaches the age of 18. The responsibility may however end earlier if:

• A court makes an order terminating the responsibility; or
• A child arrangements order ends or is discharged.

Who has parental responsibility?

Parental rights as a mother differ slightly from a fathers’ rights. In England and Wales, a mother automatically has parental responsibility for her child from birth. A parent who is married to or in a civil partnership with the birth mother will also automatically have parental responsibility for the child from birth.

If parents are not married, a father may usually obtain parental responsibility by:

• Being named on the child’s birth certificate or birth registration (if the child was born after 1 December 2003);
• Marrying the child’s mother;
• Entering into a parental responsibility agreement with the child’s birth mother; or
• Applying to a court for parental responsibility, sometimes known as a ‘parental rights order’.

Other adults may acquire parental responsibility in some circumstances, for example, through adoption.

Can parental responsibility be removed?

Parental responsibility will only be removed in extreme cases where it is in the child’s best interest. For example, for the protection of the child’s physical or emotional health. 

Note that the concept of parental responsibility is distinct from the issue of child custody or child arrangements, which concerns a child’s living arrangements, both in terms of where they live and with whom, and the time they spend with the other non-resident parent.

The rules

In order to take a child abroad for any length of time, consent must first be obtained from every individual with parental responsibility for the child. In the absence of consent being provided, the parent seeking to remove the child from the jurisdiction must apply to the court for permission in good time, and certainly well ahead of any planned trip. However, it is worth noting that if there is a child arrangement order which states that the child lives with you (and spends time with the other parent – what used to be called a ‘residence order’), and there are no court orders preventing you from taking the child abroad, then you may take them abroad for up to 28 days without the requirement to obtain consent from the non-resident parent in advance.

Where consent is required, it is advisable to get written consent in the form of a signed letter from each other individual with parental responsibility towards the child. You may be required to produce this letter at the UK or foreign border, or you may need to rely on it in the case of any dispute. The letter should include contact details for the other person. If you and the child do not share a surname then it is also wise to carry documents which evidence your relationship with the child, such as a birth or adoption certificate, a divorce or marriage certificate, or any change of name deed where relevant.

If you are unable to get consent of other individuals with parental responsibility to take a child abroad, you can apply to the family court for permission. This will involve providing details about the trip, such as the destination, and proposed departure and return dates, as well as details of other people with parental responsibility staying in England and Wales. The court will consdier your application and may then make what is referred to as a ‘specific issue order’, allowing the child to go abroad.

Conversely, if a parent or other adult with parental responsibility wishes to prevent a child being taken abroad, perhaps because of concerns that the child will not be brought back to England or Wales, they may apply to the court for a ‘prohibited steps order’ to stop the child being taken abroad.

In each case, the court will consider the wishes of the parents (or other adults with parental responsibility) and decide what is in the child’s best interests. 

As with all matters relation to children, it is preferable to seek to reach an agreement outside of the courts directly with the other parent in the first instance, using open and honest communication, or other means of dispute resolution, such as mediation, before engaging in court proceedings.

What happens if you don’t get permission?

If you do not have the appropriate permission to take a child out of the jurisdiction of England and Wales, or abroad internationally, and you do so anyway, you could face charges of child abduction. Child abduction is a criminal offense under the Child Abduction Act 1984 and it can carry serious consequences.

How can we help

Whether you are divorced or separated we understand that you want to continue creating memories with your child. This issue of taking a child abroad can be complex where there is disagreement amongst adults with parental responsibility for that child. Our experienced team of family lawyers at Edwards Family Law will help you navigate your parental legal rights, responsibilities, the relevant legal procedures and other considerations to ensure that you are able to reach a solution that is in the child’s best interests. If you have any questions, please get in touch with us at Edwards Family Law.

Child maintenance payments play a key role in ensuring the financial support of children whose parents are no longer in a relationship. This article will explore how maintenance payments are calculated in England and Wales and important points to be aware of.

What is child maintenance?

Child maintenance is a regular payment made by the paying parent to the receiving parent of a child following divorce or separation. It can also be payable even if the parents have never been in a relationship.  The maintenance payments cover the child’s living costs when one of the parents does not live with the child. The person paying child maintenance, the “paying parent”, is the person who does not have the main day-to-day care of the child. The receiving parent is the person who does have the main day-to-day care of the child. 

A child maintenance agreement must be in place if the child is under 16, or under 20 and still in full time education, up to and including A level or equivalent. Child maintenance payments may be agreed privately between parents, or can be put in place more formally by the Child Maintenance service (CMS). The CMS calculates weekly child maintenance payments using a six step process, which takes into account various factors with the aim of arriving at a fair figure. It is possible to use the CMS calculator and use that figure privately and ‘informally’ between parents.

Working out child maintenance

If the CMS is contacted by the parent with the main day-to-day care of the child and is asked to formally assess the amount payable, the following steps are undertaken.

Step 1 – working out income

The CMS will gather information from HM Revenue and Customs (HMRC) to ascertain the paying parent’s annual gross income. The CMS will also check if the paying parent is receiving benefits. Tax credits, student grants and loans will not be counted as income.

Step 2 – looking at factors affecting income

The CMS will check for factors which could increase or decrease the gross income amount, for example, pension payments, and/or other children the paying parent is supporting. 

Either parent may ask for extra income, assets or expenses to be taken into account, such as:

• Rental income exceeding £2,500 a year;
• Interest and dividends from savings and investments exceeding £2,500 a year;
• Any income the paying parent may be diverting to avoid it being included in the calculation (for example, by giving it to someone else); and
• Assets like shares, stocks, gold or money worth more than £31,250.

As the paying parent, you may ask for the following expenses to be taken into account:

• Costs of keeping in contact with a child you pay maintenance for (for example, fuel to travel between your home and the child’s home with the other parent);
• Costs of supporting a child with a disability or long-term illness who lives with you;
• Repaying debts from a previous relationship;
• Boarding part of boarding school fees for a child you pay maintenance for; and/or
• Mortgage, loan or insurance payments for the home you used to share with the receiving parent – if the receiving parent and your child still live there.

The CMS will then convert the yearly gross income into a weekly figure.

Step 3 – applying child maintenance rates

There are 5 different rates and the one that applies will depend on the gross weekly income of the paying parent:

Gross weekly income	Rate	Weekly amount
Unknown or not provided	Default	£38 for 1 child, £51 for 2 children, £64 for 3 or more children
Below £7	Nil	£0
£7 – £100, or if the paying parent gets benefits	Flat	£7
£100.01 – £199.99	Reduced	Calculated using a formula
£200 – £3,000	Basic	Calculated using a formula

If the paying parent’s gross weekly income exceeds £3,000, the receiving parent may apply to the Family Court for extra child maintenance in the form of a ‘top up’ order.

Step 4 – other children

The CMS will take into account how many children the paying parent has to pay maintenance for, whether this has been arranged privately by the parents, or through the CMS.

Step 5 – weekly amount of child maintenance

Using all the gathered information, the CMS will decide the weekly child maintenance amount.

Step 6 – shared care

Occasionally the paying parent’s child may stay overnight with the paying parent. Where this is the case, CMS will make a deduction from the weekly child maintenance amount based on the average number of ‘shared care’ nights in a week.

Changes to child maintenance payments

The amount due for child maintenance payments may change as a result of the CMS’ annual review of a case. Each parent may apply for a variation. 

There are certain changes which must be reported to CMS by law, such as:

• A change in how often the child stays overnight with the other parent;
• A change of address (CMS must be notified within 7 days of moving);
• A change in who the child’s main carer is; or
• A change of bank details. 

Failure to provide requested information or the deliberate provision of false information could result in a fine of up to £1,000.

If a parent is unhappy with the CMS calculation of maintenance payments, they must ask for the decision to be looked at again in a process called ‘Mandatory Reconsideration’, before they will be allowed to submit an appeal to the Social Security and Child Support Tribunal.

How we can help

It is important to reach a child maintenance agreement that is in the best interests of the child, and fair to both parents. Whether you need support in reaching a child maintenance agreement privately, or you would prefer to use the CMS process, our experienced team of family lawyers at Edwards Family Law will help you navigate your options and help you reach a suitable solution.

Although we advise and represent many high net worth (HNW) people during their divorce, most of our clients are anxious about paying their legal costs, especially if the matter goes to the Family Court. HNW people are often wealthy in assets but short on liquid cash.

The perceived cost of litigation costs often results in people choosing to forgo legal advice and represent themselves in Court. This is a mistake as if your spouse has instructed an experienced divorce lawyer you will be at a significant disadvantage. Furthermore, it is extremely difficult for someone not trained and experienced in family law to successfully navigate the legal system and instruct expert witnesses etc.

There are several options available to cover your legal costs whilst your financial settlement is being agreed upon.

Self-funding

This is where you use your own capital to pay for your legal expenses. If you are in a financially stronger position than your spouse, you may choose to fund their legal costs. This will work to your advantage if it mitigates the risk of your spouse taking out a commercial loan at a high-interest rate, therefore reducing the capital available to be divided in the financial settlement. However, this should not be an open-ended commitment and your spouse should be encouraged to have a backup plan in case you have to withdraw your financial support.

Family and friends

If you receive financial help from a family member or a friend, make sure you ask your Family Law Solicitor how long they believe your divorce case will take to settle. Also, agree that notice will be provided if funding has to cease to ensure you do not continue to run up legal costs without any ability to pay them.

If the money from family and/or friends is in the form of a loan, it is always best to have a legal agreement drawn up. For example, you could agree that you will pay the money (plus any agreed interest) loaned for legal costs back once you receive the funds from your share of the financial settlement. The other reason for documenting the loan is so it can be presented in the Family Court as a debt that needs to be repaid.

Remortgaging your property

If you have enough equity in your family home, you can apply to remortgage your property. The advantage of remortgaging is the interest rate will be lower than that of a personal loan and the loan can carry on after your divorce is concluded.

Personal loan or credit cards

Personal loans are available from many financial institutions including high street banks, independent lenders, even Sainsbury’s and Tesco. Your financial circumstances and the value of the loan will determine the interest rate. You will also need to pay an administration fee.

A bank will require confidence that you will receive a substantial financial settlement. To this end, an undertaking from your Solicitor and you that the debt will be paid will be required. Other third-party lenders may require security such as a charge over your property before they lend you any money.

Sears Tooth agreements

A Sears Tooth agreement is a deed that assigns the settlement you receive from your divorce to your Solicitor who will pay themselves in full before handing over the rest of the funds.

The agreement will need to be signed and witnessed after you have received independent legal advice. Furthermore, you will need to tell the Court and your spouse that you have entered into a Sears Tooth agreement.

Sears Tooth Agreements are now very rare as they are inherently risky for Solicitors and generally not necessary given the introduction of litigation loans, as discussed below. They also require the Solicitor to cover any disbursements themselves. However, experienced divorce lawyers who know that their client will receive a high-value settlement may enter into one if it means getting their client’s case over the line.

Litigation funding (also known as a litigation loan)

Litigation funding for divorce is essentially where a commercial lender loans you the funds you need to cover your legal costs and disbursements. The loan is repaid from the financial settlement you receive when your divorce is concluded.

Because the lender needs reassurance that they will get their money back, they may secure certain assets against the loan, for example, any property you own or valuable artwork but many do not. The lender will make an assessment of your case (guided by your solicitor) as to the likely outcome and how bug a loan you might need.

Although your divorce lawyer can advise you on how to obtain a commercial loan, you must receive legal advice from an independent Solicitor before you sign the loan agreement.

Court-ordered interim financial provision

If the financially weaker party in a divorce has no income or capital to meet their legal costs, and for whatever reason they cannot obtain a litigation loan, the Court can order the financially stronger party to pay. This ensures both parties can fairly pursue their case. A separate hearing will be held to determine if an interim financial provision is suitable. The Court will consider the following:

• Is the dependent spouse’s case reasonable and are they taking every opportunity to settle the matter early? An example of this is trying mediation to resolve any disputes rather than insisting on going straight to Court. Any history of domestic abuse within the relationship will mean it is highly unlikely that mediation will be a suitable dispute resolution alternative.
• Have commercial lenders been approached?

Your Solicitor will advise you on the risks of an interim financial provision application and the steps that must be taken beforehand – court should always be seen as the final resort for legal fees funding.

Final words

Having the finances available to see your divorce case through to the end can result in shorter court proceedings and encourage your spouse to settle early. At Edwards Family Law, we will explore every avenue that suits your financial situation to allow you to receive our specialist, astute divorce law advice.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

The theme of the 2022 Mental Health Awareness Week during mid-May was loneliness. This condition, experienced by many of us throughout our lifetimes is seldom discussed due to the feelings of shame and stigma attached to the word ‘lonely’. And in any case, how can a person feel lonely in the age of Facebook and other social media platforms, where connection to others is a mere click away? The truth is, although a widely publicised 2018 study showed that moderate social media use (30 minutes a day, three times per week) had a positive effect on mental well-being, almost a quarter of adults in the UK report feeling occasionally lonely.

Being single in later life as well as suffering from mental health problems such as depression, are factors that can increase a person’s chances of experiencing loneliness. And with the increase in divorce among people over 60 years, the mental health implications of marital separation in adults must be acknowledged.

What are the mental health risks of divorce for adults?

When compared with the numerous studies examining the impact of divorce on children, there is little research available on how divorce affects those who are experiencing the process. One recent paper found that in cases of divorce where the parties were over 50 years:

“older adults’ depressive symptoms (GHQ) increase in the years before and upon union dissolution. After separation, depressive symptoms decrease and return to approximately previous baseline levels. Our analyses on heterogeneity in the effects of gray divorce show that post-divorce adjustment is faster for childless adults than for parents. We find no evidence that adjustment after gray divorce is slower for women than for men, or for persons who already experienced a prior union dissolution than for those who separate for the first time.”

The circumstances surrounding the divorce can greatly increase the chances of negative mental health implications. Long, drawn-out, contentious proceedings, divorcing a narcissist, disputes over finances, jurisdiction, and child arrangements – all these factors can lead to stress, anxiety, and depression. Matters can be complicated further in situations where one spouse’s pre-existing mental health condition affects divorce proceedings.

How can I look after my mental health during a divorce?

The following tips can help you stay positive and focused throughout the divorce process:

• Prioritise getting enough sleep, exercise, and healthy food. When going through a relationship breakup it is easy to overindulge in wine, ice cream, and Netflix as a way of coping. And a good old-fashioned pity party once in a while can be extremely therapeutic as long as 90% of the time you are taking care of yourself physically.
• Don’t cut yourself off from family and friends. Although it is common to feel others are judging you for getting divorced, in all likelihood your loved ones are worried about you and want to help. Let them take your children for an afternoon so you can have some time to yourself. And remember, you do not have to pretend everything is fine if you feel down – a problem shared is a problem halved as the old saying goes. This point is especially salient for men, who tend to rely on their spouse for emotional support and find themselves adrift when they are no longer available to talk to and share life with.
• Consider professional help. Divorce can ignite a raft of negative memories and emotions that need to be worked through so you can come out the other side a stronger person. A counsellor or psychologist can provide vital support and guidance before, during, and after your divorce.

Final words

Few people are prepared for the emotional distress divorce can cause. One factor that can greatly alleviate stress and worry is choosing the right divorce solicitor. Make sure you talk to a few to find one who you feel you can trust and who has an approach that suits you. A good family law solicitor will not add to your anxiety by leaving you wondering how your case is progressing, instead, you will be kept constantly informed. They will also spot signs of distress and gently refer you to a professional counsellor if they feel you need extra support. One way to choose a high-quality divorce solicitor is to look for one who is a Resolution member. They are required to follow a Code of Practice and are trained to resolve disputes in a non-confrontational manner.

If you are feeling things are becoming too much, please remember that you are not alone. You can call the Samaritans at any time of the day or night, 365 days of the year on 116 123.

Edwards Family Law is a niche London-based firm specialising in complex family law cases following the breakdown of a relationship. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Longstanding practices in the Family Court that restrict reporting of cases and protect litigants’ anonymity may be coming to an end, as Kate Pooler of Edwards Family Law discusses.

Mr Justice Mostyn’s Campaign for Greater Transparency

Senior judges in the Financial Remedy Court (FRC) are not in agreement as to how to strike the right balance between transparency and privacy in matters such as who can attend hearings, what documents should be provided to reporters, and retaining parties’ anonymity. Mr Justice Mostyn has made waves by unequivocally asserting in a series of judgments since late 2021 that the FRC has been getting the law wrong for decades. Mostyn J’s position is that, whilst Family Court proceedings sit in “private” (as opposed to “open” court, like the majority of court divisions), that does not in and of itself require reporting restrictions or that the parties be anonymised when the judgment is published on a public database. He has made statements such as:

• “Had a member of the press or a legal blogger attended I consider that they could have reported everything that they heard during the proceedings” (Aylward-Davies v Chesterman [2022]);
• “The correct question is not: ‘Why is it in the public interest that the parties should be named?’ but rather: ‘Why is it in the public interest that the parties should be anonymous?’” (Xanthopoulos v Rakshina [2022]); and
• “if very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about. The judgment should therefore name names. Redactions can be made of commercially sensitive information, but…the redactions should never obscure the way the court has decided the case” (Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022]).

“Is it fair that one party’s poor behaviour could result in the other party’s identification?”

You might notice something that the above three cases have in common: you can read the names of the parties. That is because Mostyn J did not anonymise his judgments. The vast majority of financial remedy judgments heard by judges other than Mostyn J, however, continue to be anonymised. The lead FRC judge, Mr Justice Peel, has been the most prolific publisher of judgments since November 2021 and all have been anonymised. Since parties have no control over which judge hears their case, they face a bit of a lottery as to the publication protections they might be afforded.

The TIG Report 

TIG has just reported its findings on all issues of transparency as they relate to the FRC. Acknowledging Mostyn J’s judgments, it states “it is not for this report to set out what we consider the law to be on any particular, controversial, point. That must be a matter for the Court of Appeal. We acknowledge that there are different approaches to certain issues by different judges at High Court level and that this is far from ideal…it will be for others to decide whether the conclusions we reach should be implemented”.

The TIG report’s most critical recommendations can be summarised as follows:

Attendance at hearings

Cases should continue to be heard in private – ie, the only individuals permitted to attend are the parties, their representatives, and accredited journalists. Efforts should be made to better inform practitioners and judges on what to do if a reporter attends their hearing.

Reporting 

Reporters attending hearings currently cannot see any case documents without specific permission of the Court, meaning that the hearing is often impossible for them to follow. The report recommends that, when a reporter attends, a standard Reporting Order be made by the judge which:

• permits reporting of what the reporter witnesses, subject to anonymisation and protection against intrusive and personal identification; and
• entitles the reporter to see the parties’ position statements, together with the “ES1” (a brief case summary document) – reporters cannot publish any information that would breach the Reporting Order, even if it appears in a provided document.

Anonymity in published judgments

This is at the centre of Mostyn J’s standpoint and is arguably the most controversial issue. The report considers that “the default position should be one of anonymity”, but “there will be cases in which the presumption of anonymity will not be upheld”, which is a matter for the judge to decide on a case-by-case basis. Examples might include “situations of poor behaviour, either within the proceedings (by way of litigation conduct) or outside the proceedings in appropriate cases”, or where the public interest in identification outweighs the privacy justifications. The report also strongly encourages judges at all levels, not just High Court, to publish their judgments, to reset the imbalanced focus on “big money” cases heard by the High Court. 

The TIG report’s recommendations, if implemented, would undoubtedly provide greater clarity as to what parties to FRC proceedings can expect from a transparency and privacy perspective. The idea, however, that a party’s conduct could lead to a loss of their anonymity leaves much room for judicial discretion. What sort of behaviour outside of proceedings should this cover, what is the threshold for “poor behaviour”, and is it fair that one party’s poor behaviour could result in the other party’s identification? The question of transparency is by no means answered and we eagerly await a Court of Appeal case on the topic. In the meanwhile we will report back on the extent to which the TIG report recommendations are implemented by the Family Division.

There has been lots mentioned about children and their surnames in the press recently following an Italian court ruling in which it was confirmed that new-born Italian children should be given the surname of both parents. This decision reversed the long-standing tradition of children being given the surname of their father.

In the UK, a child acquires their name when it is registered following their birth by the child’s parent or another person with parental responsibility. A child’s name must be registered within 42 days of it being born. If the parents are married, both parents have the power and duty to register a birth. If they are not married, only the mother has the power and duty to do so. It is therefore easy to see how issues can arise during the birth registration process. Issues can also arise a number of years after the registration of a birth. For example, the parents of a child who was registered with the father’s surname, might separate and the mother thereafter wants their child to be known by her surname or the surname to be double barrelled. Equally, there are fathers who were not consulted prior to the child’s registration of birth who would like the surname to be amended to reflect their own or to be double barrelled.

To change a child’s name, you need either the consent of all persons with parental responsibility or a Specific Issue Order. Applications are made under s.8 Children Act 1989 and must address any relevant welfare concerns under s.1 of the Children Act 1989 (the welfare checklist).

The Law

The case of Re W, Re A, Re B (Change of Name) [1999] EWCA Civ 2030, [1999] 2 FLR 930 (“Re W”) is the leading case relating to the change of a child’s name. In case, the judge set out some general guidance for cases such as these:

(a) If parents are married, they both have the power and the duty to register their child’s names.

(b) If they are not married, the mother has the sole duty and power to do so.

(c) After registration of the child’s names, the grant of a residence order (now known as a ‘lives with order’) obliges any person wishing to change the surname to obtain the leave [permission] of the court or the written consent of all those who have parental responsibility.

(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave [permission] of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) [of the Children Act 189] criteria [the welfare checklist].

(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

(i) The reasons for an earlier unilateral decision to change a child’s name may be relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.

(l) Where the child’s parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.

Each case will be decided on its own facts and with the welfare checklist being the court’s paramount consideration. The higher courts are increasingly supporting the idea that a child’s name should reflect both their maternal and paternal heritage – as has become law in Italy. For example, in the case Re H (Child’s Name: First Name) [2002] EWCA Civ 190, the judge said [at paragraph 13] that a child’s surname is of ‘particular significance’ because it ‘denotes the family to which the child belongs’. In the case of Re R (a Child) (Surname: Using Both Parents’) [2001] EWCA Civ 1344, the judge said, “In my judgment, parents and courts should be much more prepared to contemplate the use of both surnames in an appropriate case, because that is to recognise the importance of both parents”

In Practice

Whilst the case law seems to favour the recognition of both parents when deciding on a child’s surname, applications to change a child’s surname are considered by lawyers to be ‘roll of the dice’ type cases. Much may depend on who is hearing the case and, of course, the specific circumstances of each case. It is therefore very difficult to advise clients on the likely outcome. The expense and uncertainty is therefore inevitably off-putting to prospective applicants. To some, however, it is worth the risk.

Edwards Family Law is a niche London-based firm specialising in complex family law cases. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Pride marches will be held up and down the country, with those in Brighton, London, and Manchester, in particular, drawing thousands onto the street. As a divorce law solicitor, I have advised and represented many same sex couples whose relationships have broken down resulting in divorce or civil partnership dissolution. And although some clients worry that the law may be different when it comes to getting divorced or dissolving their civil partnership, recent changes in the law mean regardless of your sexual orientation, ending a marriage follows the same course.

No requirement to prove fault

On 6th April 2022, the Divorce, Dissolution and Separation Act (DDSA) 2020 came into force. Before April, the only ground for getting a divorce was that the marriage has irretrievably broken down for one of the following reasons:

• Adultery
• Unreasonable behaviour
• Desertion
• The couple had lived apart for more than two years, and both agreed to the divorce
• The couple had been separated for five years, no consent was required

Due to the legal definition of adultery being confined to an act between a man and a woman, sexual intercourse between people of the same sex was never a reason for the marriage irretrievably breaking down. Thankfully, this anomaly has now been swept away as the DDSA 2020 ushered in no-fault divorce. Under the DDSA 2020, one or both parties only need to make a statement that the relationship has irretrievably broken down – no reasons are required. There is also no longer any scope for one party to contest the divorce in order to prevent it. The court must accept the individual’s or couple’s statement that the marriage has irretrievably broken down and make a divorce order.

Divorcing in a country that does not recognise same sex marriages

One area of divorce law in which there is a slight difference between the law applying to opposite sex married couples and those of the same sex is that of jurisdiction. Although same sex marriage is now recognised in many territories, distressingly, there remain 71 countries that criminalise same sex relationships and marriage. Other nations, for example, India and Japan, do not allow couples of the same sex to marry. However, in the aforementioned countries things are progressing, for example, the Delhi High Court is currently hearing several petitions seeking to legalise same sex marriage and in March 2021, a district court in Sapporo, Japan ruled that the country’s non-recognition of same-sex marriage is unconstitutional.

To ensure same sex couples marrying in England and Wales can also divorce, the court has jurisdiction to facilitate the divorce of a same sex couple who married in the UK but are living in a country where their marriage is not recognised. This is regardless of whether or not one or more of the parties is a habitual resident or domiciled in England and Wales.

Wrapping up

Getting divorced can be a stressful time and having an experienced divorce solicitor who is a member of Resolution can make a great deal of difference, especially when it comes to the financial settlement in high-net-worth and/or international divorce cases. Our team can advise and represent you during your divorce and you can be confident that we will tenaciously work to protect your best interests.

Edwards Family Law is a niche London-based firm specialising in complex family law cases . To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Charlotte Lanning, a specialist family lawyer and associate solicitor at Edwards Family Law, outlines the factors that determine spousal maintenance payments and offers guidance on navigating changes in the face of ever-increasing living costs.

Courts in England and Wales can make various financial orders with regard to divorce. The three primary categories that such orders concern are:

• capital (ie, to purchase a home);
• income/maintenance (ie, to meet day-to-day living costs); and
• pension-sharing (ie, to meet day-to-day living costs in retirement).

If there are sufficient resources to meet both parties’ capital and income needs, matrimonial property will be divided equally as a starting point. If an equal division will not meet both parties’ needs, there can be a departure from such equality. Further, the court may utilise non-matrimonial property (such as inheritance, or funds acquired post-separation or prior to the marriage) to meet needs, if so required.

If the parties have children, child maintenance will always be payable by the party who spends less time with the child(ren). If a party is earning GBP156,000 or less, the amount of child maintenance is calculated using the Child Maintenance Service (CMS) formula. This is based on the paying party’s gross income and the amount of overnight contact that they have with the child(ren). Judges typically extrapolate and apply the same formula for incomes of more than GBP156,000; however, specific advice should be sought in these circumstances.

When Must One Party Pay Spousal Maintenance?

However, if the financially weaker party still does not have sufficient financial provision to meet their day-to-day needs after factoring in child maintenance as forming part of a parties’ income, they may be entitled to spousal maintenance. This is subject to whether the paying party has a surplus from their income after meeting their own needs.

The various financial orders are interlinked and complementary. An order for maintenance may end when the parties’ children reach the age of majority or conclude tertiary education, thereby reducing the recipient’s income needs and perhaps allowing them to downsize and release capital to supplement their income position.

“Spousal maintenance is always variable, which allows the court to revisit the order if either party faces a significant change in their financial circumstances.”

Similarly, as parties approach retirement, any maintenance provision is likely be for a limited period and ceases at the point when any pensions can be drawn down.

All parties are expected to maximise their earning capacity, even if they have been out of the work for a long time. The court will be realistic about what a party can earn based on their qualifications, previous income, and childcare responsibilities. Therefore, a court will only order one party to pay spousal maintenance to the other if:

• there is insufficient capital; or
• one party is incapable of earning enough to meet their income needs.

Spousal maintenance is always variable, which allows the court to revisit the order made if either of the parties faces a significant change in their financial circumstances, including – but not limited to – redundancies or, indeed, promotions. This prevents parties from being “trapped” by an order that they cannot afford but, equally, dissuades them from misrepresenting their income position (ie, downplaying their earning potential).

What Impact Does Inflation Have on Spousal Maintenance Payments?

A common feature of these orders is that they are often index-linked. This ensures that the payments keep up with the pace of inflation. The following three indexation rates commonly used.

• Consumer Price Index (CPI) measures the average change from month to month in the prices of goods and services purchased by most households in the UK.
• Retail Price Index (RPI) measures the average change in prices of goods and services purchased by most households in the UK – however, crucially, it also includes mortgage interest, council tax and other housing costs not included within the CPI.
• RPI All Items Excl Mortgage Interest (RPIX) is the same as RPI, apart from mortgage interest payments – therefore, it is closer to CPI (albeit still slightly different).

The most appropriate indexation rate to apply will depend on what the receiving party primarily requires the maintenance for. If the receiving party has a mortgage, it is essential that the spousal maintenance is RPI-linked to insure against any drastic changes to repayments (such as the ones seen in 2022). If a party owns a property outright, CPI or RPIX are likely to be more appropriate. Child maintenance will typically be CPI-linked because it relates to general costs, as opposed to mortgage interest payments.

“Salaries have not increased in line with inflation, and the huge wave of strikes faced by the UK in 2023 is testament to that.”

Where there is a lengthy term of maintenance, the inflationary uplift can be significant. There were huge upward variations in maintenance during the last few months of 2022. A monthly payment of GBP6,000 ordered in 2012 will now be more than GBP8,000. In previous years, the annual increase would have been a few hundred pounds per calendar month at most. Over the past year (2022), this sum has jumped up by almost GBP1,000 per calendar month – and, arguably, rightly so.

The court will typically order that any spousal maintenance award is index-linked. There is relatively little scope for negotiation on this point, and the recent spike in living costs demonstrates why it is so essential to factor this into any agreement.

How Can Spousal Maintenance Survive the Cost of Living Crisis? 

Nonetheless, it is commonly accepted that salaries have not increased in line with inflation, and the huge wave of strikes faced by the UK as the country enters 2023 is testament to that. Although the court’s starting point is to apply an increase in line with the order, there may be an oncoming wave of applications to vary quantum of maintenance downwards if the paying party simply cannot afford the uplift in line with inflation (or any uplift at all).

The best way to compromise this issue and avoid a costly court application for enforcement or variation of the order is to suggest an uplift that is perhaps a middle ground and affordable for the paying party in the longer term. Evidence should be provided to demonstrate why the payer cannot afford the uplift pursuant to the order – for example, confirmation of any increase to their income (by way of a letter from their employer or accountant), along with a budget setting out the paying party’s monthly costs.

The outcome of these applications is likely to be uncertain and it is always best to seek early legal advice to try and reach an agreement where at all possible. The costs of pursuing such an application can easily outweigh any financial gain, and there is no guarantee that either party will be successful – nor that they will be awarded the costs of their application if sought.