Family Lawyers

Family Lawyers

We take this issue very seriously, and will fight very hard to enable a father to see his children.

Rodney Hylton-Potts has huge experience in this area and has been divorced twice (with 5 children himself) , so he knows how you feel. We are good to have on your side.

He says: “Never, never, never give up on your children”.

Rodney is one of the best lawyers in London to help with contact. Better faster and cheaper than any solicitor.

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Family Lawyers

We offer the highest quality of legal help with all matters relating to family law such as divorce, separation, cohabitation, child custody, pre-nuptial agreements, civil partnerships, pensions and wills, as well as disputes over property, including pet custody disputes, such as cats, dogs horses and other pets.

Our legal consultants guarantee a fast and efficient service. Our reputation for tough negotiating skills, good judgment and care and attention are second to none. We are committed to the highest levels of client satisfaction, and aim to achieve fair divorce settlements, without the need and expense of contested Court proceedings.

We are not doctors, but know that the impact of our legal work can be as important and life changing as that of a surgeon.

We are informal and approachable, but deadly serious about helping you, just like a top surgeon.

Need a good Family Lawyer in London?

Our areas of expertise include:

  • Contact with children
  • Residence Orders
  • Specific Issue Orders
  • Injunctions
  • “Freezing Orders”
  • Shared Residence
  • Parental Responsibility
  • Moving Abroad
  • Separation agreements
  • Cohabitation agreements
  • Pre-nuptial agreements
  • Post-nuptial agreement
  • Disputes between unmarried couples
  • Civil partnerships
  • Form E (the legal equivalent of a dentist’s root canal treatment – but not with us)
  • Pensions
  • Child Abduction
  • International family law
  • Families need Fathers
  • Disputes over pets.
  • CSA
  • Protecting the family home

Read more about the CSA (Child Maintenance Service) and what they could take here

The trouble with the CSA is however their failure to collect. Almost £4 billion remains uncollected.

Recently a father was recently forced to pay 18 years of maintenance totalling £70,000.

We have considerable experience and an excellent success rate in kicking their arse when required for a fixed fee of £195.00 including VAT.

We offer an ‘Unbundling’ service, where we provide separate items of legal assistance where required, leaving you the client to handle the more routine matters and keep costs well under control. We can offer highly competitive fixed prices for each stage of the case.

The case remains client- led and elements can include advice on law and procedure, drafting documents, consent orders and arranging advocacy with barristers via direct access. You handle the routine correspondence. This is extremely cost-effective.

 

A father has been refused custody of his motherless daughter by a High Court judge who ruled that ‘love is not enough’.

The man, who is in his mid-30s, had asked to be given the right to care for his seven-year-old after her mother died suddenly.
However, the judge decided that although he said he loved the girl, the father had neither the ‘understanding’ nor the ‘ability’ to meet her emotional needs after such a heartbreaking loss.
‘I do not doubt that in his own way he deeply loves his daughter,’ he said. ‘He may love her, as he did frequently say he loves her. Sadly, in life that is not enough.
So fathers who want to win a Residence Order (custody) have to be practical and have a written parenting plan in place. We can help with this.
Consult Hylton-Potts, the experts who offer fixed fees, and give excellent value.
We operate a free and confidential 24 hour email service. Just click on law@hylton-potts.com or during office hours there is a free and confidential legal helpline 020 7381 8111

CHILDREN ACT ARBITRATION

 The best way to achieve the solution and avoid an expensive Court battle is to submit to binding arbitration, with an organisation like the Institute of Family Law Arbitrators (IFLA). www.ifla.org.uk

We can draft and submit the application for arbitration, for a fixed fee of £395, including VAT.

The scheme covers:-

  1. Residence Order, Contact, Specific Issue and other Children Act Disputes
  2. claims for child maintenance between unmarried parents;

Disputes can be settled more quickly, cheaply and flexibly and less formally than in the setting of a Courtroom.

An arbitration award is agreed to be binding.  The parties are bound to apply to the Court for an Order in the same, or similar terms, as the award and the Courts invariably will enforce awards made under the scheme.

We offer competitive fixed fees if help and advice is needed to filing the arbitration.

For more information or free legal advice telephone 020 7381 8111 or email law@hylton-potts.com or fill out our contact form.

Petitioning for Divorce

Your can find a Divorce Petition here for you to download.

Street Fighting Family Lawyers London

Family LawyersWe operate as street fighters in the real world where children are often used as pawns, and money and children unfortunately do mix. We understand the use of offshore companies, credit card abuse, nominee directors, the taping of calls and steaming open of post. We know the impact that drugs, alcohol or gambling addiction can have upon a family and how this affects relationships. We understand how immigration status can impact, and advise on Wills and preserving family assets.

We can be utterly tough (Rodney Hylton-Potts’s nickname is Rottweiler”) or charming and “touchy-feely”, depending on what is best for the client’s interests.

Online Services

Purely Online services can work well and are certainly low cost.

If you want a very straight forward quickie divorce they are worth a look, although our similar fixed price fees, have a significant element of personal service including face to face meetings and a dedicated lawyer.

Where we really score is that if there are any disputes over children or money, when our pay as you go fixed price service is a brand leader, and is based on years of experience and being street-wise and, where necessary, tough.

Family Fixed Fees

If you are divorcing someone or getting a dissolution : £795 plus VAT and Court fees of £410, total £1364 (most couples are made to pay half each)

If someone is divorcing you or civil partnership is being dissolved by your partner : £395 inc VAT

Living Together Agreement – £395 including VAT

Parental Responsibility agreement – £125 including VAT

Pre-Nuptial Agreement – £595 including VAT

Post-Nuptial Agreement – £595 including VAT

Pre-Cip Agreement : £595 including VAT

Post-Cip Agreement : £595 including VAT

Change of Name: £195 including VAT

Protecting the family home if your spouses sole name : £195 including VAT

Separation Agreement – £295 including VAT

Application for contact, residence order, parental responsibility, maintenance, specific issue : £395 including VAT

Application for attachment of earnings, fixed fee of £295 including VAT

Application for financial settlement, lump sum, family home, maintenance (Form A): £295 including VAT

Drafting a will : £125 including VAT Husband and wife, or civil partners, or cohabiting couples, identical wills £195 including

VAT Living Wills : £100 +VAT

Probate : £950 + VAT

Known and unknown donor agreements £950 including VAT

Guaranteed fees includes all required divorce documentation. Advice from experienced, approachable Divorce and Family Lawyers. Access to your Lawyer by email and direct dial telephone, and a meeting. A Lawyer who explains everything, and uses clear plain English

Are lawyers worth it over online services?

Solicitors and lawyers must demonstrate the value of a qualified family lawyer in divorce cases.
We are used to buying practically everything on the internet. Accordingly, why should not we also be able to buy a divorce online? Or is that just too simple and one-dimensional?
There are, however, many people who need clear, expert and independent advice about the consequences of separation and divorce, both for them and their children. At the same time, however, it is becoming more difficult for the public to obtain such advice, especially those of limited means.
Legal aid, in divorce and family cases, was all but abolished in April 2013.
Another development has been the increasing number of online sites offering a range of services for divorcing couples at very tempting prices. The clear message from those sites is that consulting solicitors should be avoided.
There will always be couples who need only a divorce and nothing else. In other words, they will have no issues to resolve with regard to either their children or their finances. Hylton-Potts’ ‘no frills’ service can get you divorced is a similar price to online services, but with a dedicated lawyer and telephone discussions and meetings as required. A real live lawyer who knows you, and looks after your case, not a ‘cookie’.
Do not be fooled may into believing that all a divorce entails is a simple matter of filling in an online form and paying a fee, if issues over children or money are involved.
Each case is different and requires its own individual solution, from a skilled and experienced lawyer.
With the withdrawal of legal aid and at a time when the court service is facing virtual meltdown, there has never been a more important time for solicitors and lawyers to ensure that they offer divorcing and separating couples the best possible service, and exert whatever pressure is necessary to ensure that other would-be providers of legal services are also required to meet those high standards.
Consult the experts. Hylton-Potts have a free telephone hotline, and free twenty-four hour email service.
020 731 8111 or law@h-p.net

Muslim/Islamic Marriages

We have considerable experience of advising couples who have entered into a Muslim/Islamic marriage, but not an English legally binding civil marriage.

This includes the impact of the Muslim religion and culture, and on what are often are extended families. This includes the giving of the nikah.

We are familiar with cases where the parents’ first language is Urdu.

We have a free confidential telephone legal hotline on 020 7381 8111 and a 24 hour free confidential email legal service – just click here law@hylton-potts.com

مسلم/اسلامی شادیاں

 ہم ایسے جوڑوں کو مشاورت دینے کا خاطر خواہ تجربہ رکھتے ہیں جنہوں نے مسلم/اسلامی شادی کی ہو لیکن قانونی طور پر پابند کرنے والی انگلش سِول شادی نہ کی ہو۔

اس میں اسلامی مذہب اور ثقافت کا اثر شامل ہے جو ان پر ہوتا ہے، جو اکثر قریبی رشتہ دار ہوتے ہیں۔ اس میں نکاح کروانا شامل ہے۔

ہم ایسے معاملات سے خوب آگاہ ہیں جن میں والدین کی مادری زبان اردو ہوتی ہے۔

ہمارے پاس 020 7381 8111 پر ایک مفت راز دارانہ قانونی ہاٹ لائن اور 24 گھنٹوں کی ایک مفت رازدارنہ ای میل کی خدمت موجود ہے – صرف law@hylton-potts.com پر کلک کریں۔

Parenting Plan

Click here to download our Parenting Plan.

The Felt Tip Pen

We write on the file in a felt tip pen what the client wants, and go out to get it for them.

We offer fixed fees where possible, and often keep costs down by working with the client as a team dividing the legwork.

One Parent Moving Abroad

A divorced or separated parent moving permanently moving abroad will want to take their children with them.
Consent is needed from the other parent, or a court order is necessary.
An important decision case is Payne v Payne which sets guidance known as 
the ‘Payne test’.
The Judge must consider if the proposed move:
1 derives from a genuine desire to start a new life abroad (not being selfishly motivated to cut one parent out of the child’s life); and
2 has been well thought out and researched having regard to the practicalities of 
the situation.
If the application to relocate is deemed to 
be genuine and realistic, the court must then weigh up:
1 if the other parent’s reasons are based on a genuine concern for the future child’s welfare,
2 What effect the move would have on the relationship between the parent who is not moving and the children.
3 What the impact would be on the parent who proposed the move if the application 
was refused. An unhappy parent who feels imprisonment, in a country where they do not want to be is often not a good parent.
It is more difficult for one parent to take the children abroad, if there is a shared Residency Order, which is a good reason to get one.
Payne is only applicable where the relocating parent is the main carer. The approach in Payne should not be followed where the parents share the caring of the children in more or less equal proportions.
In all cases the judge will want to know
1 Who is paying for the international travel so that contact can be maintained with both parents?
2 If the children are young, how will they travel?
3 Will contact between the child and the non-relocating parent take place during term time and in what form, e.g. face to face, email, phone, text or Skype?
4 Being provided with copies of future medical records and school reports.
5 If a Court order is made in the UK, will this need to be mirrored abroad?
6 If the order is not followed, should the relocating parent be forced to set aside an amount for legal costs of the other parent.
7 Will the parent not relocating have more contact prior to the move?
8 Will the parent agree for the relocation to be for a defined time before returning?
9 Will the children return to the UK for college education? In the future for their college education?
10 How will extended family members remain involved with the children?
At Hylton-Potts we are experts in this field and we have a free confidential 24 hour legal email service at law@hylton-potts.com, and a free confidential telephone hotline 020 8381 8111

Court Appearances

We take you through the strength and weaknesses of your case to prepare you for the court hearing. We will guide you and be by your side every step of the way, and will assist you to give your evidence clearly and effectively.

We even advise you on what to wear in Court.

We work with touch, approachable, businesslike barristers, providing excellent value for money, goals we ourselves emulate” – Rodney Hylton-Potts

More Information on Family lawyers in London

For more information or free legal advice telephone 020-7381-8111 or email law@hylton-potts.com or fill out our contact form.

We advise on leave/permission to remove children from the jurisdiction.

We offer a fast and efficient service and are cheaper and better than solicitors always committed to a high level of client satisfaction.

Related Audio Guides

Help with Child Contact

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HELPFUL HINTS

 

Never leave the family home unless absolutely necessary, e.g. your partner has obtained a Court Order, Injunction or other legal instrument, or you are fleeing violence from your partner.  Never leave voluntarily.  You will probably never be able to return to your house, either to see your children or collect personal belongings.

Beware of an unanswered divorce petition

Some allegations in the ‘particulars’ if not answered may come back to haunt you, affecting contact, residence and financial issues.  You have a right to file an answer to the divorce petition even though you don’t choose to defend the divorce.  Refute any false or wildly exaggerated allegations, especially any concerning domestic violence and indifference/ neglect/ abuse relating to your child.

Parental Responsibility (PR)

You will have this automatically if you are/were married or signed the birth certificate (from 1st Dec 2003 in England/Wales).  Otherwise, we recommend that you obtain PR by signing an agreement with your ‘ex’ or, if necessary, by making a court application.  95% of such applications are successful.

Maintain contact with your children

Establish regular and frequent contact as soon as possible, with as much staying contact as you can manage.  Do not agree to a period without contact.  After a break, contact can be very difficult to establish.  Any loss of contact will be harmful to your children.

Never disappoint your children

Never break contact arrangements. If you are going to be late, get a taxi.  If they expect you to telephone, do call.  If you do not turn up, it will be used against you in Court.

Stay healthy and maintain a social life.

Don’t let your work suffer, adding work problems to family ones. You need to be physically and emotionally strong, or you can’t look after your children’s needs.  Get whatever help you need – e.g. health advice.  www.nhsdirect.nhs.uk

Listen to your children

Don’t question them about what happened while with the other parent.  Never ask them to keep secrets or put them in a position where they have to tell lies.  Don’t make them take sides.  Allow them to love both parents without being got at by either – don’t force them to choose between you.

Be wary of Social Services

The culture in these departments can mean that they will judge a non-resident parent’s concerns as vindictive complaints likely to undermine the primary care-giver and thereby threaten the children’s well-being.

Press your Lawyers

Insist that they follow your instructions, on time and report back to you.  If they are not satisfactory, fire them.

Consider representing yourself as a Litigant in Person

This is cheaper and can be more effective than using solicitors in the more straightforward cases.  You are entitled to have a “McKenzie friend” with you in Court to support you.  Some judges actually prefer to deal with parents representing themselves.

If the Court appoints a CAFCASS Officer

Try to have the court direct how the investigation is to proceed, for example, that the children are seen in the company of each parent, and in their respective homes if possible.  Rather than wait until the final hearing to challenge inaccuracies or omissions in the report, consider earlier remedies: e.g. complaints, addendum reports.

If the Judge ignores a favourable CAFCASS report you may have grounds for appeal.

Listen very carefully to all sensible ‘advice’.
Because another individual, after following a particular strategy, experienced a certain outcome it does not mean that you can predict your outcome will be the same.  Seek out different opinions and weigh them up carefully before embarking on a course of action.  Never respond as a knee-jerk reaction.  Most situations won’t be emergencies.  Ask others to read through any letters you compose so you are not compromised by a lack of perspective.

ABOVE ALL, NEVER GIVE UP

It may be a long struggle but you can succeed.  To persevere, you will need to draw on support from family, and friends

 

 

Pre-nuptial Agreements

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Cohabitation

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Pre-nuptial agreement

A strong Court of Appeal has decided that a pre-nuptial agreement will be relevant factor in a divorce settlements, it is carefully drafted with proper safeguards, to avoid the stress and expense of a fully contested financial divorce battle.

(Radmacher CA 13 July 2009)

We can draft an agreement for you £595 plus VAT including all advice.

Custody of Pets

View our 8 step guide to winning custody of your beloved pets here

If you wish to go ahead please contact Rodney by phone on 020 7381 8111 or email law@hylton-potts.com

Family law for gay men and lesbians

Child Support with both parents in UK

Family Lawyers

 

Child Maintenance Service

This is dealt with by a government agency not the court although it can intervene with “topping up” if the family is wealthy.

The CSA uses information from both parents to decide if someone has to pay child maintenance and to work out the amount of maintenance that should be paid. They may also use information from other sources, including the non-resident parent’s employer or HM Revenue & Customs (HMRC).

The CSA work out child maintenance by applying one of four rates to the non-resident parent’s income. Income is earnings, money from an occupational or personal pension, and tax credits. They use the amount of income left after things like income tax, National Insurance and any money paid into a pension scheme have been taken off.

The child maintenance calculator will provide you with a rough guide to how much child maintenance you may be asked to pay or might expect to receive based on the rules for the current scheme.

Click here to calculate your child maintenance payments

CSA – www.csa.gov.uk – phone 0845 713 4000

The maximum income on which the CSA payments are calculated is £2,000 per week.

It is calculated on the basis of net weekly income;

15% for 1 child
20% for 2 children
25% for 3 children or more

Net income is net of tax, NI and Pension contributions.

Roughly speaking this come to a maximum of;

£ 300/week for 1 child

£ 400/week for 2 children£ 500/week for 3 children

There are deductions from this if a paying parent has other children in his/her care.

Scale reductions according to 1 child, 2 children or 3 or more.

There are also deductions where the child being supported spends more than 51 nights a year with the paying parent.

When the maximum figure is reached, the court has jurisdiction in respect of top-up maintenance for higher earners.

High earner is defined as anyone earning more than £2000 net per week (£104,000 p.a.)

For further advice on Child Support and the legal world it lives in, call 0207 381 8111 for free and impartial advice off our well informed legal team.

 

If the Child Support Agency (CSA) Criminal Compliance Department are investigating you, or wish to interview you under caution we can help.

An interview can be frightening, especially as it is like a police interview, when you are given the caution and it is on tape. They thrust documents at you without warning, and try to catch you out, and a prosecution is far more likely if they think you are not being 100% straight with them.

We do not allow our clients to be interviewed

What we do is contact the Benefit Fraud Office, cancel the interview, discuss the situation with them and prepare a statement for you. We do this in private and in confidence with you, and the aim is to send it by post, to avoid an interview. This minimises the chances of them deciding to arrest or prosecute, or a prison sentence if they do.

Also, in appropriate cases, we submit medical reports, often from sympathetic and helpful private doctors, and character references.

This minimises the chances of them deciding to prosecute, or a prison sentence if they do.

The CSA Investigators know us all over the country and love our approach. We make their life easy, and keep investigation costs down.

Unlike inexperienced Legal Aid solicitors, we do not ask for copy documents for the sake of it, or ttreat them like idiots, which they are certainly not.

Invariably the response is “Thank Heavens you are involved. How can we sort this out?”

As far as I know our approach is unique.

Consult the experts.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

 

Parental responsibility (PR)

What is it? Does the father need it? If so, how does he get it.

Unmarried Fathers can acquire parental responsibility in any of the following ways:

(a) By jointly registering the child’s birth with the mother (for births registered after 1 December 2003) you will automatically gain parental responsibility (i.e. there will be no separate official document stating that you have PR).

It is the date of registration, not the date of birth which is important in determining whether the father has parental responsibility.

(b) By re-registering the birth for pre December 2003 registrations to add the father’s details you will automatically gain parental responsibility.

You would either need the mother to attend with you or provide a formal declaration of agreement that your name is to be added to the birth record.

NB: the birth can only be re-registered if the father’s name was omitted from the original registration. If it is already there, you cannot re-register, and therefore you cannot gain parental responsibility by this means.

(c) By subsequently marrying the mother of the child you automatically gain PR.

(d) By obtaining a residence order from the court (PR is a ‘by-product’ of the residence order) you will automatically acquire parental responsibility, although in this form PR will terminate when the resident order ends (usually age 16).

(e) A birth parent can sign a parental responsibility agreement on form C(PRA1) according to the Children Act 1989. This document itself will signify that you have parental responsibility for the child).

(f) A step-parent’s PR agreement can be made by consent with all those already having PR for the child on form C(PRA2) according to the Children & Adoption Act 2002.

(g) By obtaining a parental responsibility order from the court. The order will specifically state that the court has granted you parental responsibility.

(h) By obtaining an adoption order from the court.

Only with (d), (e), (f), (g) and (h) will you obtain a document that explicitly states that the father has parental responsibility for the child. With the other means of obtaining parental responsibility there will be no separate documentation confirming parental responsibility, the documentation of the status acquired (marriage, child’s birth
certificate, etc.) being themselves evidence of parental responsibility.

Consult the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Anti-Shared Parenting Arguments and Rebuttals

Assertion

“Children do not like to have two homes”

Rebuttal

What is best for children is to have both parents raising them in one happy united home, but if that is not possible, it is better for them to have two homes, than to lose a loved and loving parent.

A majority of children whose separated parents raise them equally are positive about it.

For contact problems, speak to the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

CHILD ABDUCTION

A rising number of international marriages and a global mobility of the workforce within the EU and beyond has led to a sharp rise in international child abduction cases.

Many countries are within the Hague Convention the principles of that Convention are not accepted in much of the Islamic world, where the result may clash with religion-based law.

Also many Asian and African Countries are not parties.

If therefore a child is abducted into one of those non-Convention countries proceedings have to be taken in the Court of that country to get the child back.

If a child is taken to a Convention country different rules apply. The underlying principle is that the Courts of the country where the child was last habitually resident is the proper place for proceedings.

There the parents’ claim is brought in the UK and notified to the Child Abduction Unit to the country where the child is, to show cause why there should not be an automatic return to the UK. The Child Abduction Unit has a questionnaire on its website.

Specialist Lawyers should be consulted without delay.

Rodney Hylton-Potts has over 25 years experience in this field. Consult the Experts Free Legal Helpline and e-mail service.

We are experts in child abduction – incredibly fast service, total focus, reasonable fees, great success rates.

 

0207 301 8111

law@hylton-potts.com

Shared Residence Orders

For some time, Shared Residence Orders (SRO) were rare, as it was considered they would only work in situations of close co-operation between the parents.

This has changed and now they are being granted in situations of bitter conflict.

An SRO has been granted to a man who was not the natural father even though the children only spend alternate weekends with him (which is the usual regime).

Judges are using these orders to send a strong message to both parents, that they are equal in the eyes of the law, and that overriding concern is the best interest of the children.

Divorce after sale service

On a lighter note, but also seriously, once a year we have a get together/supper for all the clients we have got divorced that year.

We have had many hilarious evenings, but also found that there is a lot of support for each other, and sometimes a new romance!

The ladies often have new, glamorous, blonde hairstyles, and their own Mercedes parked outside. Sometimes the ex husbands have nicked themselves shaving, have a grubby collar and perhaps drink a little too much.

By and large when taken out of the divorce fighting arena, they are all, invariably, very nice people, and good parents and relieved and supported to see that other people also went through the mill.

It puts things in perspective.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Hit Him Hard While Guilt Is High

A philandering husband goes off with his secretary. He then regrets it, feels guilty, but the wife will not take him back.

Hit him hard while the guilt is high.

Do not get mad, ladies, get even. Hit him in the pocket and get him to agree an excellent settlement while guilt runs high. It will not last for ever.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Conduct in Divorce

Generally the Judge does not give a hoots who divorces whom or on what grounds. He does not care who slept with who, got drunk with whom, or behaved unreasonably.
He does not care if a man puts work before his family, leading to a divorce breakdown. He does not care if the wife has ten lovers.

None of this is relevant to the division of family assets, so he does not want to know, unless the conduct is “gross and obvious”. These are the more serious cases such as:

  • Child Abuse
  • Adultery in the matrimonial bed
  • Serious violence involving breaking bones

Then the Judge will take conduct into account and punish the guilty party.

Raising the issue of conduct in a battle over money is an important one and can have huge cost implications.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Bitterness in Divorce

Wives may get what appear to husbands to get too much money in a divorce battle, but sometimes the one thing that infuriates them is that their (often older) husband can still “pull” and attract younger women, whereas they have to settle often for a new partner who is older than they are, and probably divorced and down at heel himself.

Some ladies turn to “toy boys”.

This basic fact on the real world causes much bitterness.

Consult the experts as to how this impacts on tactics.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Expat/Non-UK Divorces

We can advise you on obtaining or dealing with a UK divorce, if you are living abroad.
Also if you have been served with papers from an overseas jurisdiction, including the United States.
The language of the documents can be confusing, and sometimes not even in English, we can help you through the minefield quickly and cheaply.

Fixed fees generally apply. £395 including VAT if someone is divorcing you in overseas jurisdiction.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Why you need a plan

Your own will and estate plan enables you and your family to answer such questions as:

  • Who will look after my children if both my partner and I die prematurely?
  • How can I prevent my children inheriting too much too young?
  • How can I protect my assets if one of my children divorces?
  • What if my partner remarries after my death – will my children’s inheritance be protected?
  • How can I be confident that my partner will be properly cared for when I am gone? Does it make a difference if we are not married?
  • Have I done everything I can to minimise the inheritance tax burden on my family?
  • What happens if I become too ill to make important decisions?
  • How can I legally make decisions on behalf of my parents if they are no longer able to make those decisions for themselves?

Consult the expert. Over 25 years experience.

Rodney Hylton-Potts

020 7381 8111 or e-mail law@hylton-potts.com

Have a Second Bite in London

If you have been divorced abroad and received a poor settlement, e.g. in the Middle East, Nigeria, or another jurisdiction dominated by men, consider filing a financial claim in London.

The Supreme Court has ruled that it is lawful to top up awards made abroad, so if you were disappointed with your first bite at the cherry contact the experts.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

How to get value for money from your advisers

Solicitors are trained, expensive professionals. They are not emotional props, or your friends.

“If you want a friend, buy a dog”.

Take Domestic Violence

“The husband hits the wife. She phones her solicitor and spends 30 minutes recounting her tales of woe. This phone call will costs her £200 + VAT or more, and on top of that she still has the bruises and the humiliation. Instead she should:

  1. As soon as she is able after the attack, get photographs taken by a relative or friend and have 5 colour prints made, which should be signed and dated on the back by the friend, or downloaded and emailed to herself and her lawyer.
  2. Immediately write a dispassionate account of the incident and what led up to it, in chronological order.
  3. Visit her Doctor to ask him to examine her and made a note of her injuries and her account of what happened. Explain to the doctor he or she could be asked to provide a medical report later for use by her legal team.
  4. Telephone the police to ask then to note her complaint and possibly to proceed further. Note the crime reference number.
  5. Then telephone her solicitor to brief him about what happened.

She now has the evidence in the bag to proceed to obtain a Court Injunction, so that if the husband repeats his conduct, she can apply to commit him to prison for contempt of court. This usually does the trick.

Keeping a chronology

Keep a diary of all events and incidents you think could be relevant on a chronology.
Make notes especially of acts of violence or those relating to money or the children.
The fact that you write up your diary promptly of itself makes it more likely that the Judge will believe what you write

We can provide you with a template for a chronology both in Word and Excel free of charge.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 or emaillaw@hylton-potts.com.

Fathers can win residence orders

Recent decisions show that the courts are increasingly prepared to transfer residence to the father where mothers repeatedly block contact arrangements.

High-profile protests by pressure groups such as Fathers 4 Justice have fostered the perception that fathers face unfair treatment from the courts, when it comes to recognition of their role in their children’s lives. Fathers face considerable difficulties when it comes to enforcing orders for contact with their children, in the face of mothers who are determined to obstruct those orders.

However, the family courts are becoming increasingly unwilling to tolerate such behaviour and have new provisions available to enforce contact orders (including community service penalties) by virtue of the Children and Adoption Act 2006.

A number of recent reported decisions show that the courts are also willing to take the ultimate step to ensure children do not lose their relationship with their fathers, and will transfer residence between parents where absolutely necessary.

These decisions may compel obstructive mothers to encourage the relationship between father and child and, perhaps, to recognise that their behaviour can ultimately result in their ‘losing’ their child.

Transferring residence

On 4 January 2010, in the Family Division of the High Court, His Honour Judge Bellamy ordered that a child (S), aged 11, who had always lived with his mother, should now live with his father.

The parents separated in September 1997 and their son, S, was born in March 1998. The father made his first contact application in June 1999, and more than ten years of litigation followed.

S had not had any contact with his father since February 2006, almost four years before the final hearing before HHJ Bellamy, and there had been a failed contact order providing for S to spend time with his half-siblings in July 2009.

Assessing wishes and feelings

The judge found that S had become completely alienated from his father, and had no wish to see his him, let alone go and live with him.

However, expert evidence was provided to the court by a consultant adult psychiatrist who said that “the child’s expressed wishes and feelings are irrational and should form no part in the court’s decision making”.

The judge said that it would be wrong for a court to ignore a child’s true wishes and feelings, as this would be contrary to existing case law as well as both the welfare checklist and the United Nations Conventions of the Rights of Child. However, he went on to say that S’s expressed wishes and feelings needed to be assessed in the light of his age and understanding, and that, when considering the weight which should be attached to them, the impact of alienation and the fact that S’s expressed wishes and feelings might not be his true wishes and feelings should be taken into account.

The judge found that the mother had opposed and undermined contact between S and his father, but the judgment makes clear that she had been a good mother in most other respects.

HHJ Bellamy had an extremely difficult task in balancing all the competing factors, and, following a detailed analysis, concluded that “traumatic though it may be in the short term, it is in the best interests of S’s long-term welfare for him now to live with his father”.

Shared residence

There has been an increasing trend for fathers to seek orders for shared residence rather than contact, and such orders are increasingly becoming the norm in the Principal Registry of the Family Division in London, regardless of whether a child’s time is shared equally between parents.

Shared residence orders are now commonly made in cases where the court takes the view that the label of shared residence is a useful tool to reinforce to both parents that they have equal rights, responsibilities and duties in relation to their children and are of equal status.

A gap in the Children and Adoption Act 2006 is that the new enforcement provisions are not available to the court to order against an obstructive mother where a shared residence order has been made; the new enforcement provisions are only available to enforce contact orders.

To ensure the child has a continuing relationship with both parents, in the context of a shared residence order, the court must fall back on the established enforcement methods, including the ultimate step of transferring residence where one parent is persistently obstructing the child’s relationship with the other parent – as in the case of Re S.

So fathers- do not give up on your children- contact the expert
- For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Father’s rights violated

The “systemic failings” of the family justice system violated an “irreproachable” father’s human rights by denying him contact with his daughter over a decade, senior judges have ruled.
In a ground-breaking judgment the Court of Appeal judges said that they had never encountered a case in which the family justice system had “failed a family so completely”.
The man, 60, had endured a dozen years of legal battles against his mentally unstable ex-partner who was “implacably hostile” to any contact between him and their daughter.
His daughter now nearly 14, was aged 1 when her parents separated in 2001 and the legal marathon began, continuing “almost without interruption” for the next 12 years, appeal judges said. The litigation had “irredeemably marred” the girl’s childhood, they added, and denied her a proper relationship with her father.
Since 2006 the family courts had made 82 orders to try to break the impasse between the former couple.
The Court of Appeal ordered a rehearing of the father’s plea for direct contact. The judges also referred the case for investigation to Sir James Munby, the country’s most senior family judge.
Last year a senior family judge, finally banned the father from direct contact with his daughter, restricting him to sending e-mails, cards and presents at Christmas and on her birthday. However, he remarked that in 24 years as a judge he could not recall any case that had taken so long “or left me with such a feeling of failure on the part of the family justice system”. But now the Court of Appeal as ruled that both the father and the daughter’s human rights to respect for their family lives had been breached by “systemic failure” in the family justice system.
Collectively over time, the courts’ failure amounted to “an unjustified violation of the child’s and the father’s’ rights to respect for family life under the European Convention of Human Rights”. The cause of the failures was an over-worked and under-resourced system in which judges and child care professionals had no time to consider the basics.
The court heard that the father and the 48-year-old mother, had been together for about ten years before they separated when their daughter was a baby. Despite the mother’s the judge said protestations that she wanted father and daughter to see each other, said the “unimpeachable father had been consistently prevented from enjoying contact with his daughter by an implacably hostile mother”.
The father’s behaviour in court had been “dignified and measured despite the enormous frustration and anger that he must feel”, he said. His daughter clearly loved him; she had “thoroughly enjoyed” seeing him and such limited contact as had been allowed between them had gone well.
We fight for all our clients, but never more than for fathers in this situation. Contact Rodney Hylton-Potts on 020 7391 8111 or 24 hour email service law@hylton-potts.com for immediate, sympathetic and expert advice

Adoption

We can handle an adoption, in an efficient, sympathetic and cost-effective way.

Contact the expert – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Cohabitation appeal ruling prompts new calls for law review

Judges hearing cohabitation claims over a former couple’s home should only depart from the principle of equal interests where there is a clear indication of joint shared intentions to the contrary/

In the Court of Appeal, Lord Justice Wall said there was “a total lack of evidence about the parties’ intentions”, in this case and overturned the findings by the county court and High Court that the interests should shift to 90-10 in favour of Patricia Jones.

Ms Jones and Leonard Kernott had lived together unmarried for eight years in the house they had jointly bought in 1985 in Essex, before separating in 1993. Since then Mr Kernott has lived in his own property, leaving Ms Jones to pay for the remaining mortgage on the house and fund the upbringing and education of their two children.

“The critical question is whether or not I can properly infer from the parties’ conduct since separation a joint intention that, over time, the 50-50 split would be varied,” said the judge.and I simply cannot infer such an intention from the parties’ conduct.

“The conveyance into joint names created a joint beneficial interest, and had equal interests, when they separated .There has to be something to displace those interests, and I have come to the conclusion that the passage of time is insufficient to do so, even if in the meantime [Mr Kernott] has acquired alternative accommodation, and [Ms Jones] has paid all the outgoings.”

“In my judgment, [Mr Kernott] has a 50 per cent interest in the property,

Leading London lawyer, Rodney Hylton-Potts said, ‘There really must be a new law. It seems quite unfair that when one party pays all the outgoings, after a separation, he or she is still only get 50%. The courts must be forced to be not concerned with fairness’

If you own a property jointly with an ex-partner contact the expert:

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Cohabitation agreements/living together

Entering into a cohabitation agreement may not appeal to couples still in the throes of romance, but too much is at stake not to.

The law is that there needs to be powerful evidence of the parties’ common intention that beneficial interests were intended to be different to legal interests. So if both names are on the deeds, the likely outcome is 50/50.

Cohabiting partners must contemplate and address the unthinkable, namely that their relationship will break down and that they will fall out over what they do and do not own.

Cohabitees should not expect the court to fix any unfairness, caused by their failure to express in writing any ‘fairer’ division of property ownership, than that set out in the legal title.

Getting it right on purchase.

The first occasion when lawyers are likely to need to advise cohabitees, is when a solicitor is approached to act on the purchase of property.

While cohabitees tend to purchase a property together precisely because they are optimistic about the permanence of their relationship and/or the reasonableness of their partner, cohabitee relationships often begin in romantic generosity, only to end in intractable arguments.

Without a written agreement in place, in most cases beneficial interests are likely to match legal interests no matter how ‘unfair’ that may appear. For this reason, cohabitees should consider a declaration of trust and/or a ‘living together’ agreement which sets out the parties’ agreed terms.

One of the issues to be considered will be whether the parties intend to vary the beneficial interests should one party move out of the property. If there is such a common intention to vary then it needs to be put in a written agreement, and any existing declaration of trust or ‘living together’ agreement should be varied. Other alternatives might be for one party to buy out the other at the time of separation at an agreed price or for the property to be sold on the open market.

Exceptions

Cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different, from their legal interests will be very unusual

One factor that makes a case ‘ unusual’ ,are that the parties kept their finances separate; other than the house, there were no pooled resources or joint account.

Other cases of note are;

Adekunle & Ritchie v Ritchie; a son and mother purchased a right to buy property with unequal contributions, and the court decided these were exceptional circumstances that justified awarding the son only one third of the beneficial interest in the property.
Kali & Burlay v Chawla – the High Court accepted Mr Chawla’s evidence that since their divorce he and Mrs Chawla had had a shared intention that her beneficial interest in the property (though it was registered in their joint names) had ended.

James v Thomas- Ms James moved into the house bought by Mr Thomas in his sole name four years before their relationship began.

The Court of Appeal rejected Ms James’ argument that by working for no remuneration, contributing money to their partnership business and living with Mr Thomas as man and wife for many years she had acquired a beneficial interest in the property.

Morris v Morris – Catherine Morris was the second wife of Mr Morris who lived on the farm owned by his mother, Mrs Morris senior. Mr Morris stood to inherit the farm and Catherine Morris spent money and time working on the farm. After they separated and Mrs Morris senior died, she claimed a beneficial interest in the farm.

The court found that when Mrs Morris senior acquired the farm. Catherine Morris had no beneficial interest and no change in intention post-acquisition was established.

Williamson v Sheikh – Ms Williamson contributed the deposit funds needed to purchase the property bought in the sole name of Mr Sheikh in which they lived together for less than a year. The court found that Ms Williamson, even though she was not a legal owner at all, was entitled to the return of her deposit sum and 60 per cent of the remaining beneficial interest in the property (this 60 per cent figure being something that had been discussed with their solicitor even though no declaration of trust was executed).

The moral of the tale

When buying a property together, sign a living together agreement.

Hylton-Potts are experts at this – fixed fee for a Living Together Agreement : £395 inc VAT.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Cheaper better and quicker than solicitors.

When breaking up sign a separation agreement -

Hylton-Potts are experts at this – fixed fee for a Separation Agreement : £295 inc VAT.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Cheaper better and quicker than solicitors.

Collaborative Law

This process is designed to resolve disputes without going to court. Here at Hylton-Potts we are experts in the techniques, and offer them as a service to our clients.

Collaborative Law Solicitors

The emphasis is very much on helping clients find a solution for the best of the family as a whole and that will work for them in future.

If the collaborative approach interests you contact Hylton-Potts the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Keeping a Chronology of Important Dates

In any dispute, a good tactic is to prepare and keep up-to-date chronology of important dates, events and cross-reference in the documents.

We can e-mail you this template free of charge.

Later a Judge might say “How do I know this is accurate?”. You reply that on legal advice you recorded the event on your computer, in the spreadsheet, that very same day.

This works.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Can I get a divorce, or dissolve my civil partnership in the UK?

English procedure can be summarized as follows.

A person has jurisdiction to apply for a divorce in England and Wales in any of the following circumstances;

  1. Both parties are habitually resident in England and Wales at the time the divorce proceedings are started.
  2. Both parties were last habitually resident in England and Wales and one of the parties still resides there at the time the divorce proceedings are started.
  3. The respondent is habitually resident in England and Wales at the time the divorce proceedings are started.
  4. The petitioner has been habitually resident in England and Wales for the 12 months before the divorce proceedings are started.
  5. The petitioner is domiciled in England and Wales and has been habitually resident there for six months before the divorce proceedings are started.
  6. Both of the parties are domiciled in England and Wales at the time the divorce proceedings are started.
  7. The petitioner or the respondent are domiciled in England and Wales at the time the divorce proceedings are started, and no other court of a “contracting state” to the European Convention known as Brussels II (see Brussels II) has jurisdiction.

If a person is able to satisfy one of the above categories, then there will be jurisdiction in England and Wales for that person to start divorce proceedings.

If you are in doubt about whether you can get divorced or other civil partnership dissolution in the UK, consult the experts -
For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Pet Custody – The Law

If a couple, (husband or wife or civil partners,) break up, the matrimonial Judge has a wide discretion to divide assets and make orders. This could include ownership of a pet, and with whom that pet should live.

If children are involved, often their wishes will tip the scales, and an order could be made for example giving the absent parent visitation rights to the pet when seeing the children.

If the couple, however are not married the Judge’s powers are much reduced and could be limited just declaring ownership. Obviously if a pet is bought jointly it cannot be sawn in half.

The moral of the tale

In all cases, especially where there is no marriage or civil partnership, an agreement to who would have the pet, and on what terms, on separation is vital to avoid an expensive battle.

Love, ownership, pride and a way of punishing the other party can result in heartbreaking decisions affecting children.

We at Hylton Potts are experts and can draft you a separation agreement for a fixed fee of £295 including VAT.

Contact the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Contempt of Court – HOW TO GET EVEN IF YOUR OPPONENT LIES

Anyone who has lost, or even won, a matrimonial or litigation case because the opponent has lied, carries a sense of grievance. The police do not want to know. The judge goes on to the next case, but you know your opponent lied and want to prove it.

We can help you get even legally and cost effectively.

Proceedings for contempt of court is the answer.

Proceedings for contempt of court may be brought against a person if he make a false statement in a document verified by a statement of truth, or gives dishonest oral evidence

Contempt proceedings can only be dealt with in the High Court. Proceedings that are being dealt with in the Principal Registry or a county court must therefore be transferred, but this can be done quickly and cheaply.

To be successful in contempt of court proceedings, the dishonest statement must be obvious. It must be proved to the criminal standard of proof, beyond reasonable doubt, and the victim has to move quickly.

If the witness is found to be in contempt of court, he could face up to two years imprisonment or an unlimited fine.

This is a really useful weapon.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

We advise on leave/permission to remove children from the jurisdiction.

Prenuptial agreements

Q&A

What is a prenuptial agreement?

A contract made between a couple before marriage (although post-nups can also be made at a later stage) which says who will get what if they split up.

Are they only for the rich?

No, because even an asset like a flat, may be worth protecting.

What do they cost?

In London a family solicitor would charge £5,000 to £7,000 for a standard pre-nup, although with complex assets the fee could be much higher. Do not be ripped off. We at Hylton-Potts charge £595 inc VAT and Yes, they are just as good and effective. We achieve this highly competitive fee by working with you on the document as a team. For example, you do not need a lawyer to list your assets.

Are they now legally binding?

They will be followed if they have been freely entered into, with full disclosure of assets and the couple had separate legal advice.

Decisive weight” will be given to the agreement, and couples can now decide in the best of times what the outcome would be in the worst of times.

Whilst a judge will depart from the agreement to the extent necessary to cater for the needs of the children, the parties will be held to the agreement once the children’s needs are catered for.

Courts will not follow a contract that is not flexible enough to provide for a spouse who looks after children.

This could be translated into a situation where a spouse, typically the wife, keeps the use of a house until the children leave college, but not have a meal ticket for life.

What will lawyers want to know?

Details of all the assets and how children would be financially provided for. Lawyers suggest that they are signed no less than 21 days before the day of the wedding or it could be argued that they were drawn up under pressure.

What about civil partnerships?

Pre-nups and Post-nups apply to them also.

Post-nups

These are signed on a change of circumstances such as the birth of a child, or on a party receiving an inheritance. The fixed fee applies- £595 inc VAT.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Tax Problems

The Last Chance Tax Saloon

HMRC has offered taxpayers one last chance to declare overseas assets – take advantage while you still can. The world is becoming a smaller place. Swiss banks ‘voluntarily’ disclosing information; bank data ‘going missing’ – tax authorities whether in the UK or elsewhere are having a field day!

The major nations have declared war on tax havens. You must face up to dealing with undeclared assets overseas for peace of mind, and ensure you do not leave your heirs with a mess.

December 2009 saw the door close on the widely publicised voluntary disclosure amnesty made available by HMRC, but all is not lost and there are even opportunities to discuss cases anonymously – and potentially deal with them on favourable terms – with HMRC. We, at Hylton-Potts, can handle these anonymous discussions for you.

While the days of keeping funds abroad out of the clutches of the UK taxman are long gone, not everyone has recognized that ‘the party is over’. It appears that a significant number of UK taxpayers did not take advantage of the HMRC amnesty and are now either too apprehensive to address the issue, or simply believe they are minnows and will slip through the net – but this is not true. HMRC is currently analysing data of over 500,000 account holders provided by some 3,500 institutions from whom they demanded, and received, information.

However, there is still time for those who wish to become UK tax compliant and seek protection against future prosecution for them and their successors. This includes those who have money in Liechtenstein.

We at Hylton-Potts can help you may navigate your way around the traps and utilise the opportunities as they arise.

The fees involved are not significant but the savings in potential penalties are considerable. Moreover, there is no need to repatriate funds, which can be used freely in the UK by current and successive generations subject to present tax obligations.

You can also legitimately use overseas trust structures to protect the funds in the future.

If you want expert confidential advice consult the experts. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Live-in lovers break up…boom for unmarried couples

Couples who break up following a live-in relationship are paying tens of thousands of pounds in settlements to their former partners.

A new phenomenon of ‘break-up payments’ is increasingly common because more and more couples are living together for several years without marrying. When a marriage collapses, a spouse is usually entitled to half the couple’s assets, but for cohabitees the legalities can be a minefield.

Some people were willing to pay up to £100,000 to former partners to avoid lengthy legal action which can last up to 18 months, it said. Recent actions have involved custody of children, jointly owned property, bank accounts and even pets. There are 2.3million cohabiting couples and the number is expected to double in the next 25 years. One in four children is born to cohabitees.

The problem is partly due to such disputes being dealt with using property rather than family law, as no legislation had yet been passed making clear the rights of unmarried partners when they split up. It can ultimately be a case of “he said, she said” – one partner’s ability to be more convincing than the other in court can be crucial in determining how cases are settled.
Some disputes involved individuals who had genuinely made contributions to building up joint assets, others featured demands which could best be described as ‘nuisance’.

We have seen instances in which people have issued demands to complicate their exes’ new relationships.’

If you are involved in a relationship breakup consult the experts

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Children Act Applications

After the application form CA100 is filed at the Court, the Court will notify the parties of the first appointment which is a conciliation appointment.

Most clients are quite able to attend this appointment without the expense of legal representation, with help from Hylton-Potts’ highly competitive fixed fees.

At that appointment the parties sit down with the Judge and Social Worker (from CAFCASS), to see if an agreement can be reached.

If it could not the Judge will then give directions, i.e. set a timetable typically for the Social Worker to produce a report and for each side to file and serve Witness Statements.

Later a final Hearing is appointed which determines facts and the Judge reaches his decision based on that Hearing. At that Hearing legal representation should be obtained if at all possible. We can arrange these highly competitive fixed fees.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Parental Alienation – my experience both as a lawyer and as a therapist (click here to download)

Legal Aid

We specialise in helping people who cannot get Legal Aid, or where none is available.

Legal aid solicitors are usually free. They are often dedicated and compassionate, but quite clueless and inexperienced, and just sit there.

Whether you come to us or not, what you probably need somebody who is a specialist, and very streetwise.

It is like the difference between a Harley Street specialist and the local crowded GP’s surgery. The prisons are full of people on legal aid.

Also increasingly Legal Aid has been withdrawn from key areas, and our fixed fee, no nonsense, no bullshit approach may appeal to you.

We are better and cheaper than Solicitors.

If you think we might be the Lawyers for you please contact us – For more information or a free legal opinion telephone 020-7381-8111  or email law@hylton-potts.com.

As far back as 1988 Rodney Hylton-Potts was congratulated by a High Court judge, with the speed with which he conducted litigationclick here to view.

All our services apply to civil partnerships as to heterosexual couples.

We advise on leave/permission to remove children from the jurisdiction.

Applications to remove a child from the jurisdiction

Often the mother’s application will succeed provided there are reasonable and well thought through proposals.

With expert legal help, however, a Judge will often impose vital conditions such as:

1. Arrangements for contact.
2. A “mirror” order for contact in the foreign country.
3. School enrolment.
4. Funding for education.
5. Cessation of the mother’s periodical payments.
6. Travel costs.

The case of Re AR (A Child: Relocation) 2010, gives hope to fathers emphasising the right of the child when growing up to have a meaningful participation by both parents in his upbringing.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111  or email law@hylton-potts.com.

LEAVE TO REMOVE A CHILD FROM THE JURISDICTION

The family courts are beginning to adopt a more child-centric approach

It used to be widely believed that the primary carer, usually the mother, who sought leave to remove her children permanently from the jurisdiction would succeed providing her plans were coherent and sensible.

Payne v Payne [2001] EWCA Civ 166 is still classed as the leading authority on relocation cases. It involved the Court of Appeal reviewing a long line of authority going back more than 30 years to the case of Poel v Poel [1970]

Before Payne, the guiding principle was based upon a presumption in favour of granting a reasonable and properly thought out application. Payne considered this presumption and established a new procedure for relocation cases.

The father in the case was British and the mother was a New Zealand citizen. She applied for leave to remove their four-year-old daughter to New Zealand. At first instance, Judge Langan allowed her application on the basis that the relocation would make her happier, which in turn would be in the child’s best interests.

The father unsuccessfully appealed to the Court of Appeal, and the judgment of Dame Elizabeth Butler-Sloss sets out what was the accepted approach to relocation applications: “There is no presumption in favour of the applicant, but reasonable proposals made by the applicant parent, the refusal of which would have adverse consequences upon the stability of the new family and therefore an adverse effect upon the welfare of the child, continued to be a factor of great weight.”

New approach

While the judgment of Butler-Sloss is most quoted, Thorpe LJ made it clear that he was keen to guard against the risk of creating a presumption that an applicant’s proposals are compatible with the child’s welfare and suggested the court adopt the following approach as a prelude to conclusion.
First, is the mother’s application genuine in the sense that it is “not motivated by some selfish desire to exclude the father from the child’s life”? If so, is the mother’s application realistic, that is, “founded on practical proposals” which have been “well researched and investigated”? Thorpe LJ said that, if neither of these hurdles are passed, “refusal will inevitably follow”.

But if the above is satisfied then, second, the court should carefully appraise the father’s opposition and question whether it is “motivated by genuine concern for the future of the child’s welfare” or whether it is “driven by some ulterior motive”.

Third, the court should look at the extent of the detriment to the father if the application is granted and offset this against the extension of the child’s relationships with the maternal family and homeland. The court should question “the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal”. The outcome of the second and third questions must then be brought into “an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate”.

While suggesting this discipline, Thorpe LJ stressed that he did not wish to diminish the importance that the Court of Appeal has consistently attached to giving “great weight” to “the emotional and psychological well being of the primary carer” when evaluating the welfare of the child.

In the Court of Appeal case of Re G (Children) (Removal from Jurisdiction), the mother successfully appealed against a dismissal of her application to permanently remove her children to Argentina, her place of origin. Thorpe LJ held that the first instance decision had distinctly failed to give a proper assessment of the emotional impact a refusal would have on the mother as the primary carer. He greatly emphasised the notion of transference of unhappiness from the primary carer to the child in the event of a refusal to relocate.

Although the mother was granted permission to return to her homeland, the Court of Appeal laid down a number of consequential issues to be agreed between the parties before the mother relocated. These included arrangements for contact, investigation into the means of how a contact order could be mirrored in Argentina, the children’s enrolment into schools, funding for education, cessation of the mother’s periodical payments and the costs of travel.

These cases are difficult and painful for all concerned but travel between countries is an important part of everyday life and some would say that unrestricted movement from country to country is fundamental to our concept of freedom and an essential human right.

Further afield

What of the approach in other jurisdictions? The approach of the English courts is not so different from that of the Australian and US courts. In some Scandinavian countries, notably Sweden, it is difficult to obtain the court’s permission to relocate, but such countries are much more likely to stress the importance of both parents in a child’s life. Notably these countries tend to favour shared residence arrangements and have far greater parity of maternity and paternity rights, including leave following the birth of a child.

In New Zealand, the courts have declined to follow the guidance in Payne by drawing attention to the child’s welfare as the paramount principle in relocation cases and refusing to place too great an emphasis on the psychological and emotional well being of the primary carer.

Essential reading for those lawyers and parents involved in opposing a leave to remove application is the Reunite research published in July 2009 and available on the group’s website. The research focuses on the difficulties in enforcing contact orders abroad by mirror orders, funding contact, the loss of the wider familial relationship for the child and the long-term effect of the loss on establishing important relationships. The research recognises that losing the continuity and familiarity of relationships causes grief for children (which is akin to bereavement) and that such loss may cause profound and adverse personality changes in the long term.

In conclusion the research itself calls for further research into the outcome and affect of relocation on children and an amendment to the welfare checklist in the Children Act 1989 to avoid the vagueness of the ‘welfare test’ in line with the Australian system which considers the benefit to a child of a meaningful relationship with both parents and the practical difficulty and expense of spending time with each following relocation.

Momentum for change

Perhaps unsurprisingly there is now considerable momentum for a change of law in this area. In Re D (Children) . Lord Justice Wall acknowledged the criticisms of Payne and stated: “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by permanent breach of the relationship which children have with the left behind parent.”

In March 2010 there was a meeting of family judges from all over the world in Washington DC and a Declaration on International Family Relocation was made. Part of this states: “The best interests of a child should be the paramount consideration. Therefore, determination should be made without any presumptions for or against relocation.”

Mostyn J referred to the declaration in the recent case of Re AR (A Child: Relocation). Here, a French mother sought leave to permanently remove a five-year-old child to Troyes in the Champagne area of north east France. The English father applied for shared residence. The child had only French nationality. The father had parental responsibility by virtue of being named on the child’s birth certificate.

Mostyn J granted the father shared residence and refused to allow the mother leave to remove. In calling for a review of Payne, Mostyn J went further and said: “If one were to draw up a hierarchy of human rights protected by the convention, I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing.

“Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases.”

A recent case to be considered at the time when Payne is being criticised is Re J v S (Leave to Remove). Here, a Japanese mother sought permission to return to Japan with the two boys aged eight and ten. The Swedish father sought to extend the length of the weekend contact available to him. The parties had lived in London for more than 20 years and following divorce the mother lived in London with the children and the father had alternate weekend contact. The children alternated their holidays between Japan and Sweden. The mother spoke Japanese to the children and her mother stayed for six to eight months every year.

Eleanor King J granted the mother permission to relocate to Japan. However, it could be said that the case is extremely fact-specific given that the mother suffered a gastro-intestinal illness with vomiting, depression and anxiety. King J accepted expert medical evidence that if the mother were refused permission to return to Japan she would suffer extreme ill health requiring long-term medical and psychological support and this would be harmful to the children’s welfare.

It was held that the welfare of the children was paramount and taking into account the questions in Payne she decided that the mother’s application was genuine and realistic. While she accepted that the father’s opposition was also genuine, it appears that the detrimental effect on the mother’s medical condition was a decisive factor in the balancing exercise such that Eleanor King J accepted the effect of refusing the mother’s application would have been so harmful to the mother that it meant it was in the children’s best interests to grant permission.
Relocation cases are accepted as difficult and painful for all concerned and, despite recent criticism, the principles established in Payne still live on and it remains the leading relocation authority. However, recently reported cases along with the Reunite research and the Declaration on International Family Relocation demonstrates there isnow considerable drive for change in this area of law.

We submit that an emphasis on the wishes and feelings of the relocating parent, even with practical proposals, may now no longer be the deciding factor in relocation cases.

The presumption that the applicant’s realistic and genuine proposals are compatible with the child’s welfare is being increasingly questioned and we submit that we are moving to a time when leave to remove may no longer be carer’s prerogative.

If you wish to apply to remove the child from the jurisdiction or to oppose such an application consult the experts.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Christmas contact

Here are some of the factors and common topics that arise.

1. Telling the children. If this is the first year that the parents are separated, how will the separation be explained to the children before contact issues are resolved?

2. How old are the children? Toddlers compared to teenagers are going to need different lengths and frequencies of contact that need to be considered. When the children get older should there be trigger points for reviewing the contact schedule over Christmas? e.g. after a year.

3. How would the children like contact to be over Christmas? The parents need to decide the final contact arrangements, but it is important when the children are old enough to find out their views. The children can also be part of the mediation process if both parents consent to this. Everything said to the mediator will remain confidential apart from what the children want to be passed back to the parents. The welfare and wishes of the children is of central concern to the judge.

4. Other relatives. What are the grandparents’ and other relatives views for contact who may want to see their grandchildren over the Christmas period?

5. Travelling abroad. If one parent is to travel abroad, ensure that the other parent will have a telephone number or contact details so that they can have telephone or even Skype contact on Christmas day.

6. Alternate Christmas contact. A lot of families now like to spend Christmas abroad. The other parent’s consent is needed.

7. Keeping the other parent informed. The Christmas period has a lot of festive events, religious ceremonies and activities. Try to agree how far in advance parents should communicate with each other, so that if there is a clash of events a compromise can be reached.

8. Breaking the Christmas period into slots of days. Sometimes one parent has the children for contact on Christmas Eve and Boxing Day while the other parent has contact Christmas Day and other days. Or one parent has contact over Christmas and the other parent then has contact over New Year. This then rotates yearly.

9. Having Christmas together. Sometimes the resident parent agrees that the non-resident parent can spend Christmas Day at the resident parent’s house, so that both parents have contact with their children on Christmas Day when the presents are opened.

10. Morning and evening contact on Christmas Day. One parent has contact with the children in the morning of Christmas Day and the other parent has contact in the afternoon.

11. Shared Christmas contact. If there is a shared residence order in place and contact cannot be divided 50/50 over the festive period, it is explored whether there are other points in the year, where more contact can be granted so that there is a balance of contact between both of them.

12. Good communication between parents. Is this best done by email, phone or face to face where there is an acceptance by both parents that over this busy period flexibility is needed? Good communication can also work if the parents agree to arrange a neutral point for contact handovers, agree an agenda of items in advance, looking to the future rather than to the past, and agreeing to a time limit for discussions so that everything talked about is focused.

13. Keeping the other parent informed. If there is important information that the other parent needs to know – for example new dietary needs or their general routine – write this down and keep the other parent informed so that the child’s transition is not disrupted between parents.

14. Business partnership. If communication is strained and difficult can you liaise with your former partner as you would with a work colleague? And if things do become heated find a way to calm down before continuing discussions?

15. Passport and travel. Discussions centre on giving consent for passport applications, and, if the children are travelling abroad, on consent being given for how long they agree to them being outside of the jurisdiction. If there are child abduction or relocation concerns seek legal advice immediately.

Make sure that you have spare batteries to hand for Fig it (a robot that can dance and tell jokes).

16 Court If the matter of Christmas contact goes to court, the hearing date may be listed sometimes after several weeks by which time Christmas may have come and gone, or, if the plan was to go abroad, travel will be a lot more expensive, so plan in good time.

If you have a contact problem at Chistmas or any time, consult the experts – For more information or a free legal opinion telephone 020-7381-8111 ( or email law@hylton-potts.com.

Click this link to see how the judge decides

 

Donor Conception

Donor conception involves the use of embryos, eggs or sperm donated by someone else in fertility treatment. There are legal issues surrounding donor conception, whether you are a single woman, a married or unmarried couple, lesbian couple, a donor, or donor conceived.

How we can help

Donor conception law in the UK can be complex and there are potential pitfalls and difficulties, particularly if you are conceiving with a known donor (informally at home or at a licensed clinic in the UK), whether you are single, married, or in a civil partnership, or if you plan to co-parent or have complicated personal circumstances.

The right expert legal advice can help you proactively and efficiently manage the legal issues

We have helped and advised many people (including single women, lesbian couples, heterosexual couples, co-parents and donors) at all stages of the process
- For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

We can help with

  • Assistance with donor or co-parenting arrangements (including legal parenthood, parental responsibility, birth certificates, fertility treatment, handling donor information rights and ongoing relationships concerning your child)
  • Advice and preparation of known donor and co-parenting agreements
  • Advice concerning donor conceived children following relationship breakdown (including acquisition of parental responsibility, contact, residence, specific issue and prohibited steps orders)
  • A specialist Will to protect your donor conceived family

Donor Conception Law in the UK

Donor conception law in the UK dictates legal parenthood in respect of children conceived through assisted conception.

Donor conception law in the UK can be complex, depending upon your circumstances. For example:

  • Non birth mothers of donor conceived children prior to 6 April 2009 will not automatically have legal parental status for their child (regardless of whether they have entered civil partnership)
  • For children conceived as from 6 April 2009, non birth mothers (who have not entered civil partnership) will not automatically have legal parental status for their child conceived abroad or at home (although they can be treated as their child’s second legal parent if they conceive with their partner at a UK licensed clinic and sign the appropriate consent forms prior to treatment)
  • Civil partnered non birth mothers of children conceived as from 6 April 2009 will be treated as the child’s second legal parent (whether conception takes place at a UK clinic, abroad or at home) unless it can be shown that she did not consent- For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Further Information about Donor Conception

The websites and links below provide useful information about donor conception in the UK.

HFEA – Human Fertilisation and Embryology Authority- provides a wealth of information as the UK’s regulator of fertility treatment

NGDT – National Gamete Donation Trust- is a charity which recruits and helps egg and sperm donors

DCN – Donor Conception Network- offers help and support to donor conceived families and individuals

INUK – Infertility Network UK – a charity which provides help and assistance with fertility. Offers help and support to donor conceived families and individuals

Stonewall – leading charity providing help to gay and lesbian people on a diverse range of issues including fertility treatment and parenting

Fertility Friends- fertility patient forum where people seek help and support and share their personal experiences of fertility treatment and parenting

OUT WITH THE OLD

Family Procedure Rules

Came into effect on 6 April 2011

Some familiar phrases will be consigned to history, with the most notable changes being:

  • ‘Ancillary relief’ becomes ‘financial order’;
  • Divorce proceedings become ‘matrimonial proceedings’
  • A petition will simply become an ‘application’

Costs

The presumption that each party pay their own costs is excluded from applications for maintenance pending suit/interim periodical payments.

This should therefore mean that the losing party in such applications will be facing the risk of cost order. Applications to vary maintenance pending suit/interim periodical payments orders are not included within this exception.

Mediation.

Apart from certain exceptions, such as applications for enforcement in Children Act proceedings, or applications for avoidance of disposition orders within financial proceedings, there must be compliance with the pre-action protocol prior to instigating proceedings, which require the applicant to arrange mediation.

If the applicant then makes an application to the court, they should at the same time file a completed family mediation information and assessment form, confirming the attendance at a mediation information and assessment meeting, or giving the reasons for not attending.

There are circumstances in which an applicant is not expected to attend a mediation information and assessment meeting.

Those include domestic abuse; the dispute concerns financial issues and one party is bankrupt; the whereabouts of the other party is unknown to the applicant; the application is being made without notice to the other party; the prospective application is urgent (which includes a risk to the life, liberty or physical safety of the applicant, or any delay in attending mediation could cause significant harm to a child, risk of miscarriage of justice or unreasonable hardship to the applicant); or that no mediators are available to conduct an initial meeting within 15 working days, subject to certain provisos.

These rules will have a big impact on divorce and children practice.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Being Sectioned

If a family member or friend has been sectioned, under Sections 2 or 3 of the Mental Health Act we can help.

We are experts at appealing a decision to section, obtaining the early release of patients and we work with top psychiatrists.

We move quickly and cost effectively, and we know that being detained one moment longer than in reasonable or necessary, is frightening, humiliating and very distressing.

Consults the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Detention under the Mental Health Act factsheet – click here to download.

Court overrides mother’s will

- download pdf.

Mirror Orders

W v W (Minor) (Mirror Order) [2011] EWCA CIV 703

The case concerns the nature of the Mirror order, the jurisdiction of the High court to make one, and the consequential effect of one.

Where a parent has a final Order affecting children abroad, and wishes to visit England/ Wales, a wise precaution is a Mirror Order obtained in England/Wales.
This is an Order to confirm the regime laid down by the foreign court Order during on a visit to the UK.

A parent however must take care that the child does not become habitually resident in England and Wales, which could then give the other parent the chance to open up dual jurisdiction, and challenge the foreign Order’s application in England/ Wales.

This was the issue in this case. The mother attempted to demonstrate that because the father had applied for a Mirror Order, he was conceding jurisdiction by virtue of European law concerning jurisdiction in matrimonial matters and in matters of parental responsibility.

The Court of Appeal overruled the High Court Judge upholding the father’s position that rule 12(3) of Council Regulation (EC) 2201/2003 had not been engaged because he had not accepted jurisdiction merely by applying for a Mirror Order.
The Mirror Order was to uphold a foreign judgment, not to give jurisdiction in English/Welsh court.

The judgment is helpful in focusing on the need to avoid the child remaining in England and Wales for a period which could amount to habitual residence. The court did not rule on what that might be but clearly a brief visit or holiday of perhaps a month would not amount to habitual residence or presence.

Practitioners should bear in mind that the visit might become longer than planned unintentionally (illness, weather (volcanic ash?)) and to advise accordingly.

The grey area unresolved issue is the length of time that the child can safely remain in England/Wales without thereby granting jurisdiction.

A thought out and well worded letter to the other party prior to visiting England/Wales setting out the plans and specifically saying that jurisdiction is not to be granted if for any reason the visit was extended for a reason beyond the parent’s control is a good starting.

Another wise tactic is to include the foreign court Order, as specific provision saying that if the order is mirrored in foreign country, it is not intended to grants jurisdiction to that country.

Further in the application in England/Wales, it should be specifically stated that nothing in the application is designed or deemed to grant a jurisdiction to England/Wales.
There is still no clear jurisdiction to make a Mirror order, if the child is not physically present in England/Wales.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Blackmail

If you are being blackmailed perhaps by an ex-partner, girlfriend, prostitute, mother of your child etc, or by somebody who has got something on you, do not despair.

You would be probably amazed at the number of perfectly legal strategies, and tactics that can be adopted to get you out of this mess. We are very experienced and have achieved some excellent outcomes.

Consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Civil partnerships in the United Kingdom.

Those from countries where civil partnerships are not allowed, or even amount to a criminal offence, can look to the United Kingdom to overcome the difficulty.

In order to enter into a civil partnership in the United Kingdom :

  • Both parties will need to enter the registrar’s office, in person
  • Overseas couples wishing to register their partnership in the United Kingdom must reside in the country for seven days prior to application for the partnership, and wait a further fifteen days before the civil partnership may be formed.
  • There are special offices you need to register at if either party is an immigrant
  • You must be over the age of 18, or have written permission if you are between the ages of 16 and 18
  • You must be free of any previous partnerships or civil marriages
  • The notice must be made public during a 15-day period of waiting, so that any objections to the union are allowed to be made

The rules in relation to both EC residents and others are complex, but we can guide you through them, and arrange everything, quickly and at a highly competitive fixed fee.

We are cheaper, faster and better than solicitors. For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

The rules for cohabitation disputes

The Supreme Court has laid down a five-point test asking courts to look for evidence of intention or ‘fair share’

Here is a set of principles applicable to ascertaining the property split between cohabitants on separation where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests:

(1) The starting point is they are joint tenants 50/50.

(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.

(3) Their common intention is to be deduced objectively from their conduct.

(4) Where it is clear either

(a) that the parties did not intend joint tenancy at the outset, or

(b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.

(5) Each case will turn on its own facts. Financial contributions are relevant but there are

Rodney Hylton-Potts, said the ruling confirmed that intention can change over time, and as such did not create more uncertainty. However, he said, by opening up a number of scenarios the ruling could lead to a rise in disputes over the existence or otherwise of evidence of common intention.

FAIR & LOATHING

Cohabitees –, people who purchase and live in a property together as a family home but are not married or in a civil partnership – have always been able to formalise the terms on which they own the beneficial interest in a jointly owned property by entering into a declaration of trust. Unless such trust is in some way invalid, that document will generally be accepted as proof of the cohabitees’ common intention. In practice, however, few cohabitees enter into declaration of trusts or even seek legal advice at the outset of a relationship.

In the absence of a trust deed the court’s approach in such cases is to “ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it. First, it emphasises that the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended. Second, therefore, it does not enable the court to abandon that search in favour of the result which the court itself considers fair.”

On the basis of the Supreme Court’s ruling in Jones, the principles to be applied in future cohabitation disputes where there is no express declaration of beneficial interests are that where property is held in joint names the presumption or starting point will be that equity will follow the law so that joint tenants receive equal shares. This presumption can be displaced if there is evidence showing a different intention when the property was purchased or the common intention was later formed that their shares would be changed. If the presumption is displaced then the common intention of the parties is, if possible, to be deduced by inference of the court from the parties’ conduct. If not possible, then each party is entitled to what the court considers to be ‘fair’, taking into account all facts and factors relevant to the particular case

Though the courts should only look into the issue of fairness in cases where:

there is no express declaration of beneficial interests;

  • the joint names’ presumption has been displaced; and
  • there is no evidence available to the judge that is probative of the couple’s common intentions, it is to be expected that judges will now feel that questions of what is ‘fair’ will be central to many (perhaps most) cohabitation disputes where the couple did not formally address what was to happen if their relationship ended.
  • Another likely scenario is where the cohabitees’ relationship ends but they cannot each afford to buy separate properties. In such circumstances, the equity in the jointly held property could be the most valuable financial asset each cohabitee owns but if one of them moves out there is a risk that the court will decide that his interest in the property crystallised at this time, or soon afterwards.

This cohabitee now faces the following options:

(a) move out and run the risk of his assets being locked in the property for an indefinite period of time;

(b) try to sell the property, which may not be either possible or straightforward if the other former cohabitee does not want to sell and/or there are children living there; or

(c) continue to live together in the property after the relationship has ended. None of these options are going to be very attractive to such a client, but that is part of the landscape that

If you are a part owner of a property or just cohabit-consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

We are experts at parenting and family plans.

Harassment/bullying

If you are being harassed or bullied in a relationship, or in the work place, look no further.
The Protection Against Harassment Act and other laws, if properly applied are powerful weapons.
You are not alone. We can help.

Consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Advice to unmarried couples

The myth of common law husband and wife.

The starting point is that where property is held jointly the beneficial interests follow the legal interests, without any written declaration of trust to the contrary.

However, the court can redistributed the beneficial shares unequally despite joint ownership, and unmarried couples can get some protection.

Be certain to record on file your client’s full instructions on each aspect of your advice. This is especially important where, despite your strong pleas, they have decided to ignore your advice on all of the following issues and jump without a parachute. Your partners will thank you for it should the matter reappear down the road as a potential negligence claim.

Property

Consider your intentions if you split up, and the differences between joint tenants and tenants in common.

Unmarried couples should execute a declaration of trust at the time of purchase. There is no substitute for this. The deed should state: the parties’ intentions; the purchase price and purchase costs; how much is provided from mortgage and/or capital; who provided the capital and in what proportions; how the property is to be held legally and beneficially; in what shares; what will be the trigger events for sale and who gets what in the event of sale.

Hylton- Potts can draft a deed for £395 including VAT.

Protecting assets

If unmarried couples they have assets prior to the relationship, a divorce settlement or inherited property for example, or if they plan to have children together and not marry, they should enter a cohabitation contract.

This will be helpful for the parties to set out what they intend to do during their relationship regarding contributions and what happens to the children and property in the event of separation.

Hylton- Potts can draft this for £395 including VAT

Cohabitation contract

This needs to full and frank disclosure, and evidence of this should be included in the contract which should be under deed. A piece of paper drawn up between them might be evidence of their intentions but will not be legally binding.. The contract is much wider than a declaration of trust relating to one property. It can cover all other areas such as: personal property; joint accounts and credit cards; mortgage and life policies; motor vehicles; collections; gifts; hire purchase or other finance; business interests; payment of living expenses; pension and death in service benefits.

Children

If a cohabiting couple has children only the mother will automatically have parental responsibility. The father will obtain parental responsibility if he is named on the child’s birth certificate. Otherwise both parents can enter a parental responsibility agreement. The couple should also consider the appointment of guardians for the children in their wills in the event of death.

Hylton- Potts can draft the parental responsibility for £125 including VAT. If the mother will not sign, a court order can be obtained giving the father parental responsibility for a fixed fee of £295 including VAT.

Tax and trusts

Cohabiting couples should make wills as they cannot currently benefit under the Intestacy Rules no matter how long they have lived together and even if they have had children.

Also hold their property as beneficial joint tenants so that the survivor automatically inherits the entire property.

Hylton- Potts can draft identical Wills £195 including VAT

Claims on death

Where there is no will the law will only recognise the inheritance claims of a cohabitant survivor if he or she has lived in the same household of the deceased as a dependant for at least the whole of two years preceding the death of the deceased.

There are the tax consequences of remaining unmarried when their partner dies. There is no equivalent to the spousal exemption for them on inheritance tax on any gifts made within seven years of the deceased’s death. Again this can be covered by an appropriate insurance policy. Here again provision in a will can save the day or even nomination of the survivor to receive any death in service benefits of the deceased.

If you are planning to cohabit, buying a property, or living together, or involved in a dispute with your partner consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Correction to a birth registration

It is sometimes possible to correct birth certificate particularly if

  • There was a mistake in the original record
  • Are other circumstances warranting a change – ONLY baptism names (as verified by vicar)
  • Has been a change of gender

The law is based on the Births and Deaths Registration Act 1953 the something of a minefield.If you want to change your birth certificate consult the experts – better than solicitors – - For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

10 TIPS FOR PARTING COUPLES

1. Spare-room
You can’t sleep in the spare room for ever. A sluggish housing market and falling share prices have fuelled the view that splitting up is unaffordable. Needless to say, carrying on living with your ex is usually awkward and distressing. Signs are that many couples who have stuck together are reaching breaking point. Figures from the Office for National Statistics show that divorces in England and Wales fell for several years but are on the rise again. The number of divorces in 2010, the latest year published, was 119,589, up 5 per cent on the 113,949 divorces in 2009. A big growth area is the “grey divorce”, among the over-sixties.

2. Get ready for a long slog
The economic downturn means divorcing couples are fighting harder to get their fair share of the spoils. Unravelling a couple’s intertwined affairs means the divorce process tends to take a minimum of three to four months. If you end up fighting in court expect it to take more than a year.

3. Are you better off?
It could be a good time to divorce if you are the wealthier half of a separating couple. Falling property and share prices mean that your estate will be worth less than before the downturn. Sharing half of a £500,000 estate is easier to swallow than dividing a £1 million pot. Some may accuse you of being cynical, others of simply protecting your own interests.

4. Disregard nothing
Make sure everything is up for grabs. When marriages break up couples often end up fighting over the dog and the house but forget the pension. A pension, however, can have greater value than the matrimonial home, particularly after a long marriage. If you have spent a large chunk of your marital life looking after children you may have little or no pension fund in your own name. Leaving it out of the equation means you can be left at a considerable financial disadvantage.

5. Pension sharing
Pension sharing is the favoured way of dividing a retirement fund. This involves couples splitting a pension into two new funds, and is preferred because it achieves a “clean break”. The valuation is generally provided by the pension provider, but you can get it checked by a qualified independent financial adviser or pension consultant. The two alternative approaches are called offsetting and earmarking. For further advice consult Hylton-Potts the experts.

6. Dialogue is key
Splitting up is much easier if you are on speaking terms. You will need to know what you and your former spouse’s pension and other assets are approximately worth. However, if your spouse is uncooperative there is no need to worry. Mention this to your lawyer, who can request the information from your spouse’s lawyer. If that fails, the courts have the power to demand these financial details.

7. The business
Divorcing in a downturn requires more imagination. This is particularly the case if you own a business. As with other assets, it is usual for the value of a business to be split on divorce. In the past, a non-working spouse would be typically offered cash raised by taking out a bank loan. As banks have become less free with their funds, it is often no longer possible. Where a business is involved you may have to accept that there cannot be a clear split. The non-working spouse may be required to take the value in shares to be cashed in later.

8. Prenups
Prenuptial agreements are more likely to be upheld. Post-nuptial agreements are also likely to be accepted if they are fair.

9. The cohabiting myth
Many people assume if a couple have been living together for a year or more they automatically have the same rights as a legally married couple. This is not true. However, that does not mean that you do not have any rights when a relationship breaks down. You are unprotected unless you contributed in specific financial terms or beneficial terms by, say, spending money doing up a property. An oral agreement or a written contract will also be upheld. Children are also entitled to financial support

10. The final tip

IF YOU ARE SEPARATING CONSULT THE EXPERTS EARLY.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Preconception Agreements

Preconception agreements in the context of non-traditional families, is that they are a checkpoint for the parties to assess the long-term sustainability of their shared parenting.

Take the example of a gay man who donates his sperm to his lesbian ex-wife – who gives birth .The mother says she made a pact with the father before the child was conceived that she and her partner would fill the role of “primary parents” within a “two-parent, nuclear family”.

She and her partner feel that the father’s ambition of having contact, represents a significant departure from their plan about their son’s upbringing.

The parental rights of gay and lesbian couples who conceive outside of formal medical structures are complex. While the parents may have a clear view before the birth of the child, once he or she arrives they may feel differently. The plan is often very different to the reality of having a child. People may underestimate the emotional attachment that they will feel once the baby arrives, with agreements not to have contact or be directly involved in the child’s life, not being honoured.

It is clear that many judges will welcome a preconception agreement.

Negotiating terms

A preconception agreement sets out the intentions of the parents for the unborn child and the roles they will each take. This govern issues such as who will be responsible for making important decisions relating to matters such as schooling, religion and naming the child; who will make the day-to-day decisions; who the child will live with; and arrangements for contact, both generally and on special occasions like birthdays and Christmas.

They set out intentions, and while not binding, such agreements could be extremely persuasive to a court. The parties may agree to something before conception that they later regret as they had not anticipated the way they would feel towards the child once it is born. Such agreements could be revisited after the birth of the child to reflect any change in the parents’ views, before the hostility and need for court proceedings is even contemplated.

The exercise of negotiating the terms of a preconception agreement might prompt the prospective parents to consider matters which might not otherwise come to light until after the child has been conceived. In turn, this might help them to assess each other’s suitability as a co-parent. It may even persuade the parents-to-be that this agreement is not one they are able to commit to.

Ultimately, in deciding any application under section 8 of the Children Act 1989 or for parental responsibility, the determinative factor remains the welfare of the child, not any terms that the biological parents agreed before conception. It is essential to put aside the fears, aspirations and feelings of the adults and try to look at the case through the eyes of the child.

If you are planning a conception outside formal medical structure consult the experts.

We are quicker, cheaper and better than solicitors.

For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Bankruptcy and divorce.

When one spouse, usually the husband, threatens bankruptcy on the breakdown of a marriage, this always impacts on the resolution of the couple’s financial affairs. On occasions, it is nothing more than an idle threat. At other times, it is more serious, and may result in a bankruptcy order being made.

The non-bankrupt spouse feels powerless, as the control she thought she had over the process, especially she was the one who instigated the proceedings, suddenly disappears.
An important distinction is that between provable and non-provable debts. With provable debts, the non-bankrupt spouse can ‘prove’ as a creditor in the bankruptcy. For non-provable debts, they can have no involvement in the bankruptcy proceedings – while being subject to their effect – and have to wait to recover what they can from what is likely to be a very diminished pot once the bankruptcy proceedings have been discharged.

Lump sum and costs orders are provable in bankruptcy. If you decide that it is in your best interests to try and prove in the bankruptcy, efforts should be made to advance the position of you, the non-bankrupt spouse above other creditors, before the bankruptcy order is made, for example, by seeking security. If there is the prospect that the other spouse might be made bankrupt, any final financial court order should be drafted with this in mind.

A judgment call must be made whether to prove in the bankruptcy. There may be good reason not to prove. For example, if the bankrupt spouse is expected to come into a substantial amount of money at some point in the future, it may be appropriate to delay in pursuing the non-bankrupt’s claims until that time.

When divorce financial proceedings are ongoing but a final order has not been made, these may be adjourned, before the making of the final order, until after the conclusion of the bankruptcy proceedings.

Discharge of a bankruptcy order does not release the bankrupt from any debt arising under an order made in family proceedings. However, it should not be assumed that the non-bankrupt spouse can always pursue a provable debt in the bankruptcy, and then go on to pursue the remainder of the debt afterwards using the standard family enforcement methods.

The judge can put conditions on any bankruptcy release. The bankrupt could therefore specifically request that the court discharges the provable divorce financial order, to protect himself from further claims, once the bankruptcy has been discharged. Also if the bankrupt has lost everything, there will be few assets available from which to recover a lump sum after discharge in any event.

Property transfers

Act fast, securing a property adjustment order in a court-approved financial consent order, together with pronouncement of decree absolute, before the making of any bankruptcy order. Implementation of the order is not necessary. If a final financial order has been made within matrimonial proceedings before the start of bankruptcy proceedings, that order cannot be challenged by the trustee, even if it has the effect of reducing the bankrupt’s estate, as long as there is no evidence of collusion between the spouses.

A judge may not, however, approve a consent order where there is the risk of a bankruptcy order being made. The judge’s refusal to approve a proposed order leaves the non-bankrupt spouse in a vulnerable position, especially if, under the terms of the consent order, they would receive more than 50 per cent of the equity in a jointly held property.

Pension position

The treatment of pensions on bankruptcy means they may be a very useful resource available to the non-bankrupt spouse to recover some assets from their bankrupt spouse following the breakdown of the relationship.

Pension rights in approved schemes are excluded from the bankrupt’s estate, and therefore remain available for consideration in divorce proceedings taking place even during the subsistence of a bankruptcy order. ‘Approved schemes’ include tax-approved occupational pension schemes, personal pension schemes and retirement annuity contracts. This means that annuities and lump sums from pensions remain vested in the bankrupt. Most pension schemes will be approved.

This leaves open a relatively safe area of the bankrupt’s finances that cannot be touched by the trustee in bankruptcy. Although unlikely to be adequate for the non-bankrupt spouse, in view of the restrictions on when pensions can start paying out, and the level of pension income likely to be available, a 100 per cent share of that pension may go some way towards meeting the non-bankrupt spouse’s claims on divorce.

Work with the trustee

The role of the trustee in bankruptcy is to strike a balance between the bankrupt and his family on the one hand, and the rights of creditors on the other. It is this balance, protecting the creditors, which the non-bankrupt spouse does not often understand.

While they may be tempted to avoid any contact with the ‘nasty’ trustee, hoping that by doing so they can minimise the impact which the trustee might have on their financial affairs, their interests are usually better protected if a relationship is formed with the trustee as soon as possible. By building up a rapport with the trustee, the non-bankrupt spouse can be kept informed about the bankruptcy proceedings and, if appropriate, negotiate a deal with them, for example in relation to their interest in the family home.

There are several key legal principles to be applied in valuing the non-bankrupt spouse’s interest in the family home. The most well known is to show a common interest to hold the beneficial interest in a certain way and then acting detrimentally in reliance on this common intention. Beyond that, the equitable principles of equitable accounting or exoneration accounting can further assist the non-bankrupt spouse in ring fencing for themselves as much of the equity in the family home as possible. This is the starting point to calculate your client’s legal or beneficial interest in the property, and you should do this as soon as possible, seeking agreement to such quantification from the trustee.

The trustee will insist on realising the bankrupt’s interest at the first available opportunity, once the 12 months period of grace is complete. The worst-case scenario for the non-bankrupt spouse who does not agree to a sale of house would involve the trustee seeking an order for sale under The Trusts of Land Act 1996. In that event, they may be faced with a substantial costs order if they cannot reach an agreement with the trustee. This means that spouses who, through the family courts, might have expected to achieve an unequal share of assets, now end up substantially worse off.
If a non-bankrupt spouse has a provable debt, they can have a say over who the trustee is. There may be merit in exercising this right. Not only is it sensible to try and have a trustee appointed whom the non-bankrupt spouse can work with, but also one who is cost effective, given that any fees levied by the trustee will diminish their return.

If you or your spouse is going bankrupt, or getting divorced, consult the experts – For more information or a free legal opinion telephone 020-7381-8111  or email law@hylton-potts.com.

Non-disclosure of assets in divorce proceedings

Is the non-disclosure of assets a common problem within divorce proceedings ? Is it simply the case that suspicious spouses expect the worst of their soon-to-be former partner?

A 2011 survey showed that 30% of family lawyers felt that their client did not obtain a fair settlement due to undisclosed assets; 94% of respondents stated that in three out of 10 cases hidden assets were revealed.

The issue of non-disclosure was considered in detail by Judge Mostyn in NG v SG .The judge said I am ‘ thrown back on inference and guess-work within an exercise which inevitably costs a fortune and which may result in an unjust result to one or other party’.

Hallmarks of financial proceedings

  • Proceedings are quasi-inquisitorial. The judge must be satisfied that he has sought, all the information he needs to find the fairest solution.
  • The parties owe an absolute duty to the judge to give full, frank and clear disclosure.
  • This duty is as much breached as it is observed.
  • Breaches by omission are commonplace. For example, a bank account or another asset may not be declared.

While a breach by omission may be excused as an oversight, a breach by commission is more serious. Mostyn J noted that a breach by commission is plain perjury and therefore risks serious consequences.

Quantifying adverse inferences

The origin of the duty of the judge to consider drawing adverse inferences where non-disclosure is found can be seen in the decision of Sachs J in J-P C v J-A F . The judge said ‘[The] husband can hardly complain if, when he leaves gaps in the judge’s knowledge, the judge does not draw inferences in his favour… any shortcomings of the husband from the requisite standard can and normally should be visited at least by the judge drawing inferences against the husband.’

The real problem, however, arises in placing a figure upon the finding of non-disclosure. Munby J in Al-Khatib v Masry described it as the ‘seemingly unanswerable question’. Finding an answer to that question involves a consideration of two strands of judicial thought which sometimes pull in opposite directions:

  • One strand can be summarised by the comments of Thorpe J in F v F . If the husband seeks to camouflage his assets, it is better that the judge is drawn into making an order that is unfair to him, rather than making an order that is unfair to the wife.
  • The second strand is that inferences ‘must be properly drawn and reasonable’, as per Otton LJ in Baker v Baker. In essence, it would be wrong to draw inferences that the husband has assets which, on an assessment of the evidence, the judge would be satisfied he has not got.

Mostyn J concluded that there must be a sound evidential basis for reaching a conclusion as to the scale of undisclosed assets. The judge should not be led into a kneejerk reaction that says simply because evasiveness is demonstrated, there is some vast sum which has been hidden. That does not however mean that the judge has to put a precise figure on the scale of hidden assets; the judge always makes a broad, and sometimes very broad, estimate based on admissible evidence of the scale of the hidden funds.

This evidential exercise may be based upon unexplained payments made by the husband, as the wife sought to argue in FZ v SZ and others. In the absence of such direct evidence, the judge normally reaches for an analysis of lifestyle – such an approach was adopted in Ben Hashem v Al Shayif .

Mostyn J did however express the view that it would be dangerous for a judge to rely primarily on the Al-Khatib v Masry technique alone. Also in Al-Khatib v Masry, Munby J found that vague evidence of reputation or the opinions or beliefs of third parties was inadmissible.

Principles that decide cases.

Mostyn J concluded that, where the judge is satisfied that the disclosure given by one party has been materially deficient, then:

  • By the process of drawing adverse inferences, the judge is duty bound to consider whether funds have been hidden.
  • Such inferences must be properly drawn and reasonable. It would be wrong to draw inferences that a party has assets which, on an assessment of the evidence, the judge is satisfied a party has not got.
  • If the judge concludes that funds have been hidden, then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms.
  • In making its judgment as to quantification, the judge will first look to direct evidence, such as documentation and the observations made by the other party.
  • The judge will then look at the scale of business activities and lifestyle.
  • Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible.

If you are involved in divorce proceedings, especially where it is said assets are being hidden, consult the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Sperm donor father is not secondary parent

Where a child is conceived by a mother and a father by virtue of an agreement between them that the child would live with, and be brought up in the care of the mother and her female partner as the primary carers of the child, there is no general rule that the biological father is to be regarded only as a “secondary” parent or as likely to have a limited relationship with the child.

There is no general rule which would apply to all disputes between two female parents and the identified male parent. The only principle was the paramountcy of child welfare.

A mother and her female partner might desired to create a two parent lesbian, nuclear family completely intact and free from fracture resulting from contact with the third parent, but such desires might later insufficiently weigh the welfare and developing rights of the child.

There is no concept of principal and secondary parents.

Adults’ pre-conception intentions were relevant factors but they neither could nor should have been determinative. The adults can enter into a contract they like but no matter how detailed their agreement, or what formalities the adults had adopted; it was not a dry legal contract.

Biology, human nature and the hand of fate can to undermine it and to confound their expectations. Circumstances changed and adjustments have to be made. Above all, the welfare of the child and not the interests of the adults had to dictate.

A practice had grown up of referring to the father in such circumstances as a “donor”. That is entirely understandable where he had made an anonymous donation of sperm.

However, that label might merit reconsideration in other cases as it was capable of conveying the impression that the father was giving his child away and that was misleading. The role of the father in the child’s life would depend on what was in the child’s best interests at each stage of the child’s childhood and adolescence.

If you are considering a sperm donor agreement consult the experts – For more information or a free legal opinion telephone 020-7381-8111  or email law@hylton-potts.com.

Family provision for an adult child

The majority of parents with children will wish to ensure that their property ultimately benefits the next generation. Most parents want to be ‘fair’, which usually means each child taking an equal share. Sometimes, however, a parent wants to give one child a greater share than his siblings, or excludes one or all of the children altogether.

The Court of Appeal judgment in the case of Ilott v Mitson is important.

When Mrs Jackson died in 2004, she had been long estranged from her daughter, Mrs Ilott, aged 50. Mrs Ilott was not mentioned in the will, which left the estate to charity. Mrs Jackson left a letter to her executors explaining why she was leaving nothing to her estranged daughter. Nevertheless, Mrs Ilott (who was living on state benefits) claimed ‘reasonable provision’ from the estate under the Inheritance (Provision for Family & Dependants) Act 1975.

The county court judge agreed that Mrs Jackson’s will did not make reasonable provision for her daughter and awarded her £50,000 – a little over ten per cent of the estate. The Court of Appeal held that the judge had applied the correct test, and that they would not interfere with his decision.

Importantly, the Court of Appeal did not rule that it will always, or normally, be reasonable for a parent to provide by will for their adult child, any more than the previous landmark cases ruled that it is always, or normally, reasonable for a parent to leave him or her nothing.

The Court of Appeal also noted that parliament deliberately included children over 21 among the categories of individuals entitled to claim under the 1975 Act, even if not financially dependent on the deceased.

This decision undoubtedly poses problems for a testator who wants to leave his child little or nothing from his estate. One useful strategy is to make a will containing a modest legacy for the child together with a forfeiture clause. This will not prevent the child claiming under the 1975 Act but makes his risks significantly higher. It means if they make a claim and fail, they get nothing.

Objectively, is reduced (or no) provision for this child in this will reasonable? Has he or she already received significant lifetime gifts? Does he have other financial resources available?

International estates

Estates with an international dimension often raise issues as to whether the children of the deceased have a legal right to inherit notwithstanding the terms of the will and the intentions of the deceased. In some foreign jurisdictions, it is impossible to completely disinherit children.

One such estate came before the High Court in May 2011: Morris v Davies.

The claimant was the executor of a British citizen who lived in Belgium and France from 2001 until his death in 2008. He sought probate of the deceased’s will; various family members opposed this, claiming that the deceased was domiciled in Belgium, that Belgian compulsory inheritance rules applied, that the will was invalid, and that Belgian intestacy rules operated. At a case management conference the Master directed that the question of the deceased’s domicile be tried as a preliminary issue. A trial in the Belgian court was scheduled before the hearing on domicile.

The executor obtained an anti-suit injunction precluding the defendants from proceeding in either Belgium or France before the preliminary issue had been heard in England.

He said;

  1. The foreign court’s findings would be      relevant only after the English court had determined the issue of      domicile, and there would still need to be a trial of that issue in      England
  2. it would not deprive the defendants of any      legitimate advantages in the foreign proceedings; and
  3. it would protect the process of the English      court from misuse.

The judge,, concluded that “the wide-ranging nature of the Belgian proceedings at present seem to me to be designed at the very least to enable… the second defendant to reduce to her own possession and for her own benefit some of the deceased’s assets in advance of the hearing of the preliminary issue in England… Given that the present defendants had submitted to the hearing of that issue and had allowed costs to be incurred, in my judgment such conduct is vexations and oppressive.”

If you have a problem or an issue, in relation to drafting a will which does not provide for your children equally, or if you are a child whose parent has died, without giving you equal provision with your siblings, contact the experts – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com

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