sills & betteridge family magazine 2012

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John BlackbourneLegal [email protected]

Skegness

Helen [email protected]

Lincoln

John MitchellHead of [email protected]

Lincoln

Yvonne [email protected]

Boston

Emma [email protected]

Lincoln/Coningsby

Rachel [email protected]

Sleaford/Gainsborough

Karen MotleyLegal [email protected]

Spilsby/Coningsby

Family First MagazineSills & Betteridge


Skegness

[email protected]

Foreword

Lincoln

Edition 4

Our latest Family First Magazine

shows the breadth of legal issues and

processes which now involve families

when relationships get into difficulties.

Andrea Inglis one of our family

mediators, discusses the extension of

mediation as an alternative to using

the court system and the emphasis

being placed by the Government

now for separating couples to opt for

mediation. When mediation works

well it is a far cheaper, quicker and

ultimately less stressful way of dealing

with the difficult issues which arise

from relationship breakdown and for

those with children the focus is on the

continuing parental relationship which

will exist between the couple even

though their own personal relationship

has ended.

When divorce proceedings are

necessary, Alex Meade sets out in

detail how a divorce can be obtained

and also details our transparent fixed

fee system for advising and assisting

at this difficult time.

For couples who have not married

but are separating, Emma Lawler

writes about the latest very important

decision of the Supreme Court in Jones

-v- Kernott which helps clarify what

should happen to property which was

co-owned by a couple but where they

never married.

For couples who wish to marry but

fear what could happen to their

assets should they do so, Helen Derry

discusses pre-marital agreements in

her article. It is true that this is not

the most romantic way of looking at

marriage but sometimes, particularly

with older couples where they are

widowed or divorced, they may wish

to protect what they have accumulated

during their first marriage, especially

if they want to benefit the children of

that marriage rather than their new

spouse. That new spouse may be well

provided for anyway and also wish to

make provision for his/her children in

the same way. These agreements can

take away quite a lot of the financial

worries which can occur for couples

when they are entering marriage

and have financial assets they wish

to protect in the event of something

going wrong. This may be particularly

important in farming cases.

With regard to children, Chris Milns

talks about the court system for those

who feel they have no alternative

but to take matters relating to their

children to court.

Chrystal Theofanous writes about an

increasingly significant area which is

where one of the parents of a child

wishes to leave the jurisdiction and

to either take the child with him/her

or preserve contact with a child who

remains in this country. As changing

work patterns mean that increasing

numbers of people work abroad, there

is an increasing frequency of mixed

nationality relationships. What happens

to the residence of the children when

that relationship breaks down and

where they should live in the future

is a difficult and complex issue and

Chrystal’s article may provide some

help in this regard.

Mo Hayes answers a number of

problems which have been sent in by

our readers.

Caroline Johnson, Karen Motley and

Rachel Eager reflect on the work which

we carry out in our different Branches

throughout Lincolnshire.

John [email protected]

Spalding

Branch Focus

Caroline [email protected]

Spalding

In October 2010 Sills & Betteridge opened a new branch office in the market

town of Spalding, South Lincolnshire. Initially we took two rooms in the shared

workspace venue – Welland Workspace, 10 Pinchbeck Road, Spalding and handled

primarily family matters from this branch. The office was staffed by one Partner,

Caroline Johnson, an experienced family solicitor and Sue Leaback. However, due

to the demand for the service offered, in October this year we expanded the office

and were joined by Sellina Kauser, solicitor who also undertakes family work and

by Alwen Barber, a legal executive who undertakes Wills and Probate matters. We

hope a conveyancer will also shortly join our team.

From the Spalding office we are also able to undertake employment and personal

injury work as specialist solicitors from our other offices visit on a regular basis.

Much of our work in Spalding has come from referrals from the Citizen Advice

Bureau, Women’s Aid and also from other local solicitors firms. The Spalding

office, like our other offices has the benefit of a Legal Services Commission

franchise.

If you would like to speak to Caroline or a member of her team, please get in

touch on 01775 714874. We are happy to offer a free initial consultation service.

We hope you find our Family Magazine both interesting and informative, in

this edition we are focusing on three of our eight branch offices that we have

throughout Lincolnshire, these are Coningsby, Spalding and Skegness.

Sills and Betteridge have been established in the County for over 250 years and

our aim is to be there for the community working hard to provide an excellent

service for both new and existing clients throughout the County. I hope by

reading the articles about the branches you will get a feel for our commitment to

the local community and a taste of what we have to offer at a local level.

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Finally, in an interesting article reflecting the age in which we now live, Rachel

Maclean writes about the influence of social media on family matters in this

“Twitter” and “Facebook” era.

I hope that our readers will all find something of interest in this magazine either

for themselves or for their relatives and friends who may be going through

difficulties.

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Chris [email protected]

Lincoln

Chrystal [email protected]

Lincoln

Jennifer [email protected]

Boston

Jayne CoddingtonLegal [email protected]

Boston

Tony [email protected]

Lincoln/Gainsborough

Mo [email protected]

Gainsborough/Lincoln

Andrea [email protected]

Lincoln

Caroline [email protected]

Spalding

Email: [email protected]: www.sillslegal.co.uk

[email protected]

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Skegness


Skegness

The Skegness Branch of Sills and Betteridge is an extremely busy office that

specialises in all areas of family, children and criminal law.

The Skegness Branch is also able to offer many other areas of legal advice by prior

appointment as all our lawyers are willing to travel over to Skegness from our

other branches situated throughout Lincolnshire to ensure that the local people of

Skegness can access legal advice without the need to travel.

The Skegness Branch has a long history of providing excellent legal services to the

residents of Skegness and surrounding areas for over 30 years as previously the

premises were occupied by Norman Green Solicitors. Sadly Norman Green passed

away in November 2010 and thereafter his firm continued to trade and was run by

his business partner Rachel Eager who specialises in family and children law.

On 1st October 2011 Norman Green Solicitors merged with Sills and Betteridge

Solicitors and this has meant that the local people of Skegness have not suffered

any interruption in being able to access vital legal services.

Every single member of staff at the Skegness Branch is committed to providing

a professional, efficient and friendly service and is one of the only two firms in

Skegness able to offer its clients the benefits of Public Funding (formerly Legal

Aid) meaning that people from every walk of life have access to legal advice and

representation.

The Skegness Branch is open between Monday to Friday 9am until 5pm and free

parking is available on the car park at the front of the premises.

Our Solicitors offer a free half hour advice service to every client and legal aid is

available subject to eligibility.

Our solicitors are :-

Rachel Eager – Partner specialising in children and family law

Gordon Holt – Partner/ High Court Advocate specialising in criminal law

Nicholas Alderson – Solicitor/High Court Advocate specialising in criminal law

John Blackbourne – Legal Executive specialising in matrimonial law

Coningsby

Karen MotleyLegal [email protected]

Spilsby/Coningsby

Our office in Coningsby is in the heart of the village. The premises were originally

occupied by Thimblebys whom Sills & Betteridge merged with in June 2007.

The Family Department at Coningsby consists of Karen Motley who is a Fellow

of the Institute of Legal Executives, Emma Van-Der-Sluis who is a Trainee Legal

Executive and Mathew Daurge (Secretary). Karen Motley joined the firm in

November 2009 and has over 10 years experience dealing with all areas of family

law including divorce, contact, residence, injunctions and financial matters.

Appointments are available upon request for a free half hour and an evening legal

clinic takes place every Monday from 5pm to 6.30pm for which appointments are

not necessary. In addition, Karen and Emma also hold a legal clinic at The Lounge

at RAF Coningsby every Wednesday from 12pm to 1.30pm.

Public Funding (formerly Legal Aid) is offered in relation to matters for those who

are eligible. Free eligibility assessments are carried out at appointments.

The Wills and Probate Department work closely with the Family Department as

more often than not in a relationship breakdown it is advisable for Wills to be

made or amended.

Conveyancing matters at the Coningsby office are dealt with by a Partner, David

Stapleton who also works at the Firm’s Spilsby office. David deals with all aspects

of conveyancing including sales and purchases of property/land, transfers of

equity and tenancy agreements.

Please note that by prior arrangement, all legal matters can be dealt with at the

Coningsby office.

The Coningsby office is open Monday to Friday 9 am to 5-15 pm and free parking

is available close by.

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Sellina Kauser [email protected]

Spalding

Sills & Betteridge Solicitors Debbie Gregory [email protected]

Lincoln

Natalie Wiles [email protected]

Lincoln

Alex Meade [email protected]

Lincoln

Euan McLaughlin [email protected]

Lincoln

Grace Davy [email protected]

Lincoln

Family First MagazineSills & Betteridge

[email protected]

This edition’s Guest Writer Tim Atkinson J H Walter

Valuing Farms and Farmland

There has been a great change in

the family law world. From April 6th

2011, in accordance with the new

Family Procedure Rules 2010 all

applicants wishing to issue private law

children proceedings and/or financial

proceedings will need to show that they

have either attended a mediation and

information assessment meeting with

a mediator or that they are exempt

from doing so. This provision has been

introduced to help increase public

awareness of mediation and other

alternatives to court and help the public

understand how these processes could

support them through separation and

divorce. So if you are thinking about

asking for a Court Order concerning

a child, divorce/separation or family

finances, you will be expected to

contact a family mediation service and

to consider with a mediator whether

the dispute may be capable of being

resolved through mediation. Experience

suggests that court imposed orders

work less well than agreements made

between you and that you are more

likely to be satisfied with the outcome

and uphold decisions made jointly. In

addition, children do better when their

parents cooperate with each other.

At the Mediation and Information

and Assessment Meeting (MAIM) the

mediator will explain to you what

mediation is, how it works, and the

benefits it can bring. Information

will also be given about other forms

of problem solving models, such

as collaborative law. You will have a

chance to ask any questions or raise

any concerns you might have regarding

your situation and how mediation might

work for you. It is an opportunity for

you to consider whether mediation

may be helpful in trying to resolve your

differences and for the mediator to

assess the appropriateness of mediation

for your case. The obligation to see a

mediator is limited to attendance at the

assessment meeting. Beyond that there

is no obligation to attend mediation

even if assessed as suitable, as one of

This edition’s guest writer Tim Atkinson

is a rural practice Chartered Surveyor

and Agricultural Valuer. He has worked

as a land agent in the East Midlands

for over 20 years and regularly acts

as an independent expert to assist

matrimonial settlement.

Lincoln sits at the heart of one the

nations premier farming counties - to

the south east the deep rich alluvial

silts of Boston and Spalding produce

vegetables, to the north east the

beautiful rolling chalk wolds yield high

quality malting barley for the nations

brewers, to the north and south the

limestone soils of the Lincoln Cliff and

Heath are ideal for potatoes, to the

west deep sands produce turf, some of

which finds its way beneath the feet of

premiership footballers, and on the side

of the river Trent there are warp soils.

These were created by generations of

our forefathers flooding the land and

building up silt deposits to create a deep

rich soil.

The method for valuing land and farms

for matrimonial purposes is similar

to that used for bank lending, sale or

purchase. However, the often tense

background to the valuation requires

that the valuer is scrupulously impartial

and thorough. We hope by inspiring the

confidence of both parties the pedigree

of the valuation will enable the parties to

arrive at a settlement without recourse

to proceedings.

Our valuation process starts with a

detailed inspection, measuring inside

and outside of the dwellings and the

farm buildings, and walking the land to

see the quality of the soil, efficiency of

the land drainage and the condition of

the growing crops.

Following the inspection, we carry out

desktop research with the assistance

of the instructing solicitors to establish

land ownership, tenancies, restrictions,

covenants and development clawbacks.

We then gather together evidence of

the key principles of mediation is that it

needs to take place on a voluntary basis

for both parties involved. The mediator

will also be able to assess whether you

are eligible for Legal Aid, in which case

mediation is free of charge, or whether

you will need to pay for mediation.

The costs of mediation are usually

considerably less than those incurred by

using the legal system.

It is a generally held view that courts

should be seen as a last resort and left

to concentrate on those cases which

really need their help. Most couples

have no idea how expensive, how

stressful, and how inappropriate the

court system is for them until they are

embroiled in it. They become locked in

their own conflict unable to find a way

out. It must make sense for families

going through the traumas of separation

to be able to access expert help and

assistance to reach their own solutions.

Most importantly the new changes offer

mediation as an option from an early

stage which is often more appropriate

to peoples needs and which they are

more likely to take up as a result. We

are already seeing a positive reaction

to the new Family Procedure Rules with

increasing numbers, armed with the

knowledge and information about the

huge benefits of mediation, choosing

to pursue mediation as a means of

resolving their issues and thereby

avoiding adversarial proceedings. This

may be seen as the start of an important

new era when mediation will no longer

be seen as the alternative, rather the first

port of call in the majority of cases.

Green Light for Mediation

Andrea Inglis [email protected]

Lincoln

property sales in the locality or region to

form the basis of our value calculations.

In matrimonial valuations land

ownership anomalies can create unusual

situations not normally encountered

in real life sales. For example the

farmhouse may not be in the same

ownership as the surrounding land

and buildings, therefore it cannot be

valued with its surroundings. The value

of the house is then depressed by

having the noise and disruption of the

adjoining farming operations but none

of the benefits. Having established the

ownership, the property is divided into

its most marketable parcels and each of

the lots is valued separately.

This best price for farmland is achieved

when it can be sold with vacant

possession, allowing the new owner to

farm the land. However, some land is let

on secure lifetime tenancies statutorily

regulated by the Agricultural Holdings

Act 1986. Here the tenant has the right

to occupy the holding for his lifetime

and potentially there may be rights for

his children to succeed to the tenancy.

In addition the rent is reduced by the

provisions of the Act to around half the

level that would be paid in the market

under a modern Farm Business Tenancy.

The reduced rent and the inability to

obtain possession means that land let

on this basis is often only worth around

60% of its value with vacant possession.

This situation can be quite common

on family farms where tax planning

schemes deliberately put in place 1986

Act tenancies to family members or

a family company with the deliberate

intention of reducing the land value to

reduce future tax bills.

The value of farm cottages can also be

affected if these are part of the farm

tenancy or occupied under tenancies

protected by the Rent Act 1977 or the

Rent (Agriculture) Act 1976 and similar

discounts are applied.

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Emma Van-der-Sluis Trainee Legal Executiveevan-der-sluis @sillslegal.co.uk

Coningsby/Spilsby


Karen James [email protected]

Lincoln

Sharon Guest [email protected]

Boston

Helen Addlesee [email protected]

Boston

[email protected]

5

Lincoln

Can Pre-Marital Agreements reduce the impact of Divorce on a Farming Business?

Helen Derry [email protected]

Pre-marital agreements are entered

into before marriage and set out what

should happen in the event of a future

marriage breakdown. Protection of a

farming business upon divorce can

be extremely important, not least,

because the whole family may be

involved in the running of the farm.

The land usually provides the income

and includes the family home. Often

the farming business has been in

existence for many generations and

it is wished to be preserved for future

generations. A pre and post-nuptial

agreement could mean the difference

between the farm business continuing

or being sold upon any future divorce.

A pre-marital agreement can set

out the intentions of the parties in

relation to the assets at the date of

the marriage, particularly in relation to

those assets which one spouse wishes

to preserve for future generations. It

may, for example, be sensible to make

clear, at the outset that the farming

assets are to be retained by one

spouse in the event of future marriage

breakdown.

Pre-marital agreements are not

currently enforceable in England and

Wales, however, they are a relevant

factor that will be taken into account

when looking at financial settlements

and the terms can be decisive.

Following the case of MacLeod v

MacLeod it is also advisable to convert

any pre-marital agreement into a post-

nuptial agreement.

Pre-marital agreements may be helpful

in dealing with the following:-

1. Identifying ‘separate property’ and

‘matrimonial property’ and the parties

intentions in relation to each asset. The

agreement may set out the different

treatment of:

- Inherited assets acquired

prior to or during the marriage

- Gifts acquired prior to or

during the marriage

- Matrimonial property

- Property and investments

excluding the farm

- Assets generated solely by the

efforts of one spouse

- Assets generated by the

efforts of both spouses

2. What will happen in different

circumstances for example, if it is a

short or long marriage or if there are

children or no children.

3. Provision for housing, i.e. at

what level and whether it is to be

index linked or perhaps based on a

percentage of the marital property or

all assets.

4. Provision of other capital and again

whether it is to be index linked or

based on a percentage of the marital

or all assets.

5. Maintenance, i.e. whether

there should be any at all or only

if dependent children. Whether

maintenance should be a fixed

percentage or perhaps capitalised and

if so how this should be calculated.

6. Whether there should be a review

after the marriage. This should be

considered in every case.

Pre and post-nuptial agreements are

often seen as a form of insurance.

Hopefully they prepare for the never

to occur future separation of the

parties, just as insurance policies

may deal with the hopefully never

to occur fatal accident or fire. In the

event of this event occurring, however,

they can assist in the parties sorting

out their financial affairs without

emotionally and financially costly legal

proceedings.

The diversification of farming means

valuing a variety of non agricultural

assets. These can include offices, holiday

cottages, farm shops, workshops,

commercial storage, haulage yards,

telecoms masts, caravan sites, fishing

lakes and woodland. Some unusual

assets can cause a furrowed brow but

fortunately the profession is well served

by the Central Association of Agricultural

Valuers which provides access to a

network of rural professionals across

the country one of whom will have come

across a similar situation elsewhere.

As part of assessing the value of the

holding we consider development

potential. This involves reviewing the

Local Authorities planning policies

and where appropriate discussing

issues with the planning officer. Where

land has development potential but

no planning permission this can be

particularly contentious. In current

market conditions often the hope of

future development does not greatly

enhance the asset value. Traditional

brick buildings with conversion potential

and areas of land or farmyards within

or close to a settlement are areas of the

farm that can have particular hope value.

Sometimes a more equitable solution is

to impose a development clawback so

that if planning permission is granted

in the future both parties can share the

benefit.

Valuation is an art rather than a science

and therefore instructing parties and

their legal advisers have to accept that

the valuation is one person’s opinion

and that opinions will vary between

valuers. In the days when matrimonial

settlements involved a valuer being

appointed by each party it was quite

usual to find that there was a significant

difference of opinion. In acting as an

independent expert between the parties

it is our aim to take a balanced view

and find a fair value for the property.

However, when we consider there is a

wide range of opinion we will highlight

this in our report and can give an

indication of the likely range. The parties

can then take this into account in their

negotiations.

A well researched, impartial valuation

report can help achieve a settlement and

ease a difficult situation for the parties.

Tim can be contacted at the Office:

Tel: (01522) 526526 or

Mobile: 07919694224

Email: [email protected]

Tim Atkinson Bsc MRICS FAAV

JHWalter

1 Mint Lane

Lincoln

LN1 1UD

Views of Chantry Farm

Mediation

Separation can be stressful and costly. Using mediation, it doesn’t need to be that way.

At Sills & Betteridge our specialist mediators can help you agree an arrangement, avoid court and expense

involved.

Found out more by calling us on: 01522 542211 or visiting our offices.

Together We Can

Commercial Forces

Criminal LawWills, Trusts & Probate

Family Putting You First Accident Claims Moving Home

AgriculturalDivorce & Separation

6

Sills & Betteridge Family First Magazine

[email protected]

Edition 4

More and more we find ourselves advising

clients of their legal position where either

they or the resident parent of a child, starts

making plans to remove the child from the

jurisdiction of the United Kingdom.

It is important that legal advice is sought

so that the parent intending to remove the

child from the jurisdiction is aware of their

legal position.

It is imperative that notice is given to the

non-resident parent that steps are being

put in place to remove the child from the

United Kingdom. If this cannot be agreed a

leave to remove application will need to be

made to the court by the resident parent

for the court’s permission to leave the

United Kingdom with the child.

Where a Residence Order is in force with

respect to a child, no person may remove

the child from the jurisdiction without

either the written consent of every person

who has parental responsibility for the

child or the leave of the court.

If a child is removed from the United

Kingdom without your consent or the

court’s permission, and you hold legal

parental responsibility for a child, then

removal is illegal. Since 2001, the case of

Payne v Payne defined what a court should

consider when refusing or granting a leave

to remove application. In that case, it was

for the resident parent to satisfy the court:

1. That their motives for the move were

genuine

2. That their plans are well thought

through.

The court’s paramount concern will

always be the welfare of the child. The

courts take applications to remove a child

permanently from the jurisdiction very

seriously. Hasty decisions will not be made

and it is essential to put well prepared and

researched proposals before the court to

show that it is in the child’s best interest to

leave the United Kingdom.

In the more recent case of re K (2011)

further guidelines have been made by

the Court of Appeal for parents wishing

to move abroad. In this case, Lord Justice

Thorpe stated that the guidance given in

Payne v Payne is only applicable where

the applicant is the primary carer. Where

parents share the responsibility of caring

for the children in more or less equal

proportions, the approach in Payne should

not be applied. Each case must be judged

on its own unique facts. The court in this

case looked at how much time the child

spent with the non-resident parent and

if it can be demonstrated that refusal

or permission will be emotionally or

psychologically harmful to the child, then

there is a possibility that the court will not

grant permission for the resident parent to

leave the United Kingdom with the child.

Circumstances which may influence

the court granting a leave to remove

application are as follows:

1. It can be demonstrated that refusal of

permission will be sufficiently emotionally

or psychologically harmful to the resident

parent or the children’s step parent that

it impacts on their care of the child (this

is commonly referred to as the distress

argument).

2. The resident parent or their new partner

seeks to return to their country of birth

and/or has family in the country they wish

to emigrate to.

3. There are no concerns as to the resident

parent’s ability to provide adequate

childcare.

4. The plans for the move are well thought

through.

5. There is no intention to disrupt the

relationship between the children and the

other parent.

6. A support structure exists to assist the

resident parent with the childcare in the

new country.

7. The plans are to continue to contact the

non-resident parent are practical.

8. The resident parent has remarried and

the child is in a new family structure.

9. The family have step brothers/

sisters within the resident parent’s new

relationship (the Court would rarely agree

to the new family being divided).

10. The child has sufficient maturity to

understand what impact the move would

have on their life and wishes to emigrate.

11. The resident parent is clearly the

primary carer.

Circumstances which may assist someone

in defending against a leave to remove

application

1. That the resident parent seeks to

reduce or prevent the child’s relationship

with their non-resident parent due to

continued hostility. A history of broken

contact, refusing to co-operate over

schooling/medical matters may assist in

demonstrating questionable motives.

2. The division of time that exists between

the parents two homes. Though care is

shared, the Court would be less likely to

disturb the status quo.

3. That the plans for the move and the

child’s subsequent care are not practical.

Questions need to be asked such as:

a. Who will care for the child as a

resident parent (or child) is ill?

b. What childcare plans exist?

c. How do these compare to the

support structure in the United

Kingdom?

d. Who will pick the child up from

school?

4. There exists concern about the resident

parent’s ability to provide consistent care.

5. There are concerns regarding the

resident parent’s mental health.

6. That a strong bond exists between the

child and non-resident parent as a result of

substantial contact time.

7. That the child currently benefits from

shared care arrangements between the

resident/non-resident parent.

8. The child is sufficiently mature to

Removal from the Jurisdiction

Chrystal Theofanous [email protected]

Lincoln

understand what impact the move would

have on them and he or she wishes to

remain in the United Kingdom.

If you are a resident parent thinking about

relocating to another country with your

child or you are the non-resident parent

and have concerns that the resident parent

may remove the child from the jurisdiction

to live in another country, then please

do not hesitate to contact ctheofanous@

sillslegal.co.uk or 01522 542211.

“If a child is removed from the United Kingdom without your consent or the United Kingdom Court’s permission, and you hold legal parental responsibility for a child, then removal is illegal.”

Wills Advice Call us now on 0800 542 4245 or email us at

[email protected] for more information on a free half hour appointment at one of the following offices:

Lincoln | Boston | Sleaford | SkegnessGainsborough | Spilsby | Spalding | Coningsby

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[email protected]

the factors listed in s. 1(3) it would not be

taken into consideration by a judge.

The advice that should be taken on board

by parties therefore is that, however

hard it is to see through their individual

disagreements at the time, they must try

their hardest to do so and act in a way that

a court feels appropriate. The risk if they

fail to do so is lengthy, often expensive,

litigation that ends with a decision being

made by a judge which ultimately neither

party is satisfied with but which because a

judge has to make the final order, they will

be left with.

Even for parties with the benefit of public

funding there is a real risk that if one

party is not seen to be acting in the best

interests of the child and is felt to be

acting unreasonably or obstructively, they

may lose their public funding altogether –

solicitors have a duty to the Legal Services

Commission to report to them any party

who they feel is acting unreasonably whilst

being funded with public money and,

unfortunately, this means that occasionally

such decisions do have to be made.

So what is in place to help parents

overcome these substantial hurdles?

On the 6th April 2011, the new Family

Procedure Rules came into force. These

are designed to place a much greater

emphasis on parties coming to an

agreement long before matters come to

court. For example you are now required

to attend an initial mediation meeting

before making an application to the court

in the first place. If you have done so, but

mediation has not been successful, you

will be issued with a form by the mediator

and can proceed with your application to

court as planned. If you have not done so

the court will want to know why and may

not hear your application until you have.

Sometimes mediation can be attempted

at court, either through dedicated court

mediators or via CAFCASS (the Child

and Family Court Advisory and Support

Service), who can help parents try and

come to an agreement, even at the doors

of the court, without solicitors being

involved.

You also cannot successfully apply

for public funding without having

demonstrated that you have attempted

mediation, there are only a few exceptions

to this and generally this is the rule in

most publicly funded cases.

If matters have reached the court, judges

have the power to make what is known

as a ‘Contact Activity Direction’, and

very often this can include a referral

to something called the ‘Parenting

Information Programme’ or ‘PIP’. Many

parents find the suggestion of this a little

confusing, often stating that they ‘know

how to be a parent already!’.

This is of course very true, and we would

certainly not presume otherwise. In

actual fact the ‘Parenting Information

Programme’ is designed to alert parents

to the impact their divorce, separation,

or indeed the court proceedings they are

currently going through are having on

their children, it demonstrates to parents

what the court expect of them in these

situations and the impact their behaviour

could be having. Looking at these issues

through the eyes of their children will

often change a parent’s perspective on

their disagreements and often can have a

very positive impact. In Lincoln this course

is run by RELATE and consists of two

two hour sessions which parents attend

separately.

The best advice to parents, however is

always to try and agree matters without

the need to go to court, in doing so

you are automatically acting in the best

interests of your children for whom a

lengthy court battle will be unsettling and

upsetting.

If you have no other option than to go to

court you will be forced to give careful

consideration to the points detailed here,

which whilst appearing daunting, with the

right approach can be tackled relatively

easily for all parties.

Great Expectations: Parents and the Court System

Chris Milns [email protected]

Lincoln

Sadly, if a dispute between parents goes

to court, it invariably means that all other

forms of Alternative Dispute Resolution,

negotiation between solicitors, mediation,

or other forms of collaborative law have

failed, or have not been deemed to be

appropriate.

As a result by the time a matter comes

before a judge, emotions can often

be running high. Understandably, in

such a situation it is often hard for the

parties involved to put aside their own

disagreements and work together towards

a solution that works for everyone,

however as hard as it is, this is exactly

what courts are asking them to do. Often

it is this that proves the most difficult for

those involved to come to terms with,

especially when a relationship has ended

in difficult circumstances.

So what do courts expect from parents

in this situation? In order to answer this

question, we have to look back at the

Children Act 1989, and in particular

section 1 (1). This stipulates that the

overriding factor in any case involving a

child or children is that child’s welfare. The

court are under a duty to consider what

is in a child’s (i.e. anyone under 18) best

interests. This must be considered before

the making of any order under section 8

of the Children Act – this includes orders

relating to how often a parent has contact

with a child, where a child lives, disputes

centred around specific issues involving

a child, and other disputes that arise

between parents.

There are, of course, other issues that

judges need to weigh up before making

a decision, and these are detailed in what

is known as the ‘statutory checklist’ of

factors to be considered under s. 1 (3) of

the Children Act, these include:-

(a) The wishes and feelings of the child

concerned (considered in the light of the

child’s age and understanding).

(b) The child’s physical, emotional and

educational needs.

(c) The likely effect on the child of any

change in his or her circumstances.

(d) The child’s age, sex, background and

any other characteristics which the Court

considers relevant.

(e) Any harm which the child has suffered

or is at risk of suffering.

(f) How capable each of the child’s parents

and any other relevant person is of

meeting the child’s needs. (The court will

decide who is a relevant person).

(g) The range of powers available to

the court under the Children Act in the

proceedings in question.

The crux of the matter is that if you go to

court on any matter involving a child, as a

parent, you will also be expected to act in

the best interests of the child concerned.

This may seem like a simple request but

when put in the context of an emotionally

draining day at court with a former partner

who it is difficult to be in the same room

as, never mind to talk to; this becomes

more of a challenge.

Judges will not take into consideration

factors such as whose fault it was the

relationship broke down and unrelated

arguments between parents, if it is not

relevant to the child it will simply not be

considered. As a general rule the only

things that are taken into consideration

are the above factors and what is in a

child’s best interests.

Courts will also wish to see parents acting

reasonably towards one another, as failing

to do so is not felt to be in the spirit of the

Children Act. Again this can be a tough

challenge if two parties have a difficult

relationship. By way of an example, it

would not be considered by a court

appropriate for one parent to stop their

son or daughter seeing the other parent

because they cannot agree who should

clear an outstanding credit card bill,

unlikely though this may sound it does

happen, and as it is not relevant to any of

“The crux of the matter is that if you go to court on any matter involving a child, as a parent, you will also be expected to act in the best interests of the child concerned.”

Free Family Advice

Call us now on 0800 542 4245 or email us at [email protected]

for more information on a free half hour appointment at one of the

following offices:

Lincoln | Boston | Sleaford | SkegnessGainsborough | Spilsby | Spalding | Coningsby

8


[email protected]

Change of Name Deed for Adults | only £90 (inclusive of VAT)For further information, or to discuss a child’s change of name,

please contact Alex Meade on:

01522 542211

Edition 4

Fixed Fee Divorce

only £387.50

Plus VAT and court fees

Statistics show that the number of

couples who get divorced is dropping.

A report, published by the Office for

National Statistics, shows the number

of divorces in England and Wales in

2009 - the latest year published - was

113,949, a 6.4% decrease from 2008.

This is the lowest figure since 1974

However, it is still an unhappy

statistical fact that four in ten

marriages in England and Wales are

likely to end in divorce.

If you and your spouse have looked

over all of the available options and

divorce seems inevitable, then the

following is an overview of the divorce

process:

Grounds for a divorce

Initially, you will need to prove that you

have grounds for a divorce. This is a

two-fold test which must be satisfied

before you can file your Divorce

Petition with the court.

The first aspect is one of time

limitation: in England and Wales, you

may not submit a Divorce Petition until

you have been married for over 12

months.

Assuming that you have been married

for over a year, and the marriage has

irretrievably broken down, you then

need to prove one of the following

‘facts’:

1) adultery;

2) unreasonable behaviour;

3) desertion;

4) lived separately for over two years

(by agreement); or

5) lived separately for over five years.

The divorce process

Assuming, that you have satisfied both

these criteria the next step is to file a

Divorce Petition. This is in a standard

format, and is sent to the county court

together with your marriage certificate.

If there are dependent children, then

a Statement of Arrangements form

will also need to be completed and

sent to the Court, even if there is no

dispute regarding contact or where the

children will live.

The county court will issue

your Petition and send a copy

to your spouse, with a form of

acknowledgement. Your spouse has 14

days to return the acknowledgement

to the court.

Thereafter an Application for Decree

Nisi and affidavit (sworn statement)

need to be lodged at Court.

Upon receipt of the application, it

is put before a judge to decide if

you have grounds to divorce. If so,

he will issue what is known as a

Decree Nisi. Once the Decree Nisi

has been granted, you must wait a

statutory period of 6 weeks and 1

day, after which time you can make

your application for Decree Absolute.

Shortly thereafter the Decree Absolute

is issued. At this point you are legally

divorced.

Proceedings take around 4-6 months,

and there should be no need for you

to attend any court hearings, providing

the proceedings are undefended. This

is, of course, only a brief overview, and

more detailed information could be

provided at your initial appointment.

Cost

If you are not eligible for Legal Help,

then our specialist divorce team offer

a fixed fee divorce package. The fee

for an uncontested divorce is £387.50

assuming there are no unforeseen

problems. In addition there will be

VAT and court fees of £385 payable.

The total fixed fee is therefore £850

including our fees, VAT and court fees.

Divorce Proceedings

Alex [email protected]

Lincoln

The fixed fee is payable in three

instalments:

1. £255 – payable following receipt

of your full instructions

2. £340 – payable when the Divorce

Petition is ready to be sent to the court

3. £255 – payable when we apply for

Decree Nisi

The only other additional costs you

may have to pay are £9 if we need

to obtain a copy of your marriage

certificate, and approximately £100 if

your spouse fails to co-operate and it

is necessary to personally serve them

with the divorce papers.

What work is covered?

The fixed fee package includes your

first meeting with a member of our

team. The package will cover your

divorce as long as it is uncontested

and there are no additional costs in

trying to locate your spouse. It does

not cover the financial aspects of your

divorce. We would be able to provide

you with further fee information if you

did wish for us to deal with financial

matters.

What do I do next?

Please contact a member of our team

on 01522 542211 or info@sillslegal.

co.uk to make an appointment to see

one of our specialists.

Free Legal Advice Clinics

Free initial advice available at the following

clinics:

Coningsby Office - 45 Silver Street

Every Monday 5pm - 6.30pm

01526 344444

Lincoln Office - Aquis House

Every Thursday 2pm - 4pm

01522 542211

Sleaford Office - 27-31 Northgate

Every Thursday 2pm - 4pm

01529 302800

Gainsborough Office - Unit 1c The Pattern

Store, Station Approach

Every Thursday 10am - 12pm

01427 616816

Holbeach Children’s Centre, Holbeach

Last Tuesday of every month

9.30am - 12pm

01775 714874

The Bridge Community Centre, Lincoln

Every other Wednesday 10am - 12pm

07963 790759

RAF - Digby, The Hive

Last Thursday of every month

10.00am - 12pm

(RAF personnel/Families only)

01526 327543 (by appointment only)

RAF - Coningsby, The Lounge

Every Wednesday 12.00pm - 1.30pm


01526 344444

RAF - Cranwell, The HiveFirst Monday of every month

10am - 12pm


01529 302800

Police FederationNettleham Police HQ

1st Thursday of every month

9.30am - 12pm

01522 542211

8

9


9

[email protected]

hiding parts of your profile, such as

your email address, home address or

phone number, or even deleting them

altogether.

Furthermore, most websites now,

particularly social networking sites,

allow you to put as much information

about yourself on your profile to make

it easier for friends and family to find.

However, it is not essential for you

to fill in everything the website asks

for. This can then protect you from

people putting your details up on other

websites and can also protect you from

other illegal acts such as identity theft

and fraud.

We advise parents that are going

through family problems to think

about how children should use social

media sites. We know it’s very hard to

strike a balance when trusting your

children and worrying about them and

what they get up to online. However,

we have seen situations where parents

have been unable to agree on the

use of Facebook or other sites being

used. It is important to remember

that Facebook regulations state that

children must be thirteen to join but

I know this can be a very difficult

situation when all the children’s friends

have accounts. This is something that

needs to be discussed with families

that are going through difficulties.

As stated earlier I would recommend

that you all check your privacy settings

and look at your social media status.

We have put together a leaflet about

how to stay safe on a social networking

site. If anyone is interested in this they

should email [email protected]

for a copy of the leaflet.

Sleaford

A lot of us now rely upon social

media sites like Facebook, Twitter or

even LinkedIn. Some of us use it for

business and others use it to keep

in touch with family and friends.

However, this type of communication

can sometimes create problems

when it is used insensitively. Over the

last year we have noticed problems

with people using social networking

sites where they reveal personal

problems about themselves and the

people related to the situation. With

changing technology people have

tended to talk about their family

difficulties online which has then

caused offence and problems with

their ex partner. It is easy to post a

comment or status about a particular

problem and have many friends and

family post their views about it which

can then complicate things further.

Having many opinions from others

outside of the situation distorts the

way the problem could be solved

calmly. We would recommend anyone

to think carefully when using social

networking sites and not to use them

inappropriately. You don’t want to

inflame the situation or make matters

worse when you are already going

through family difficulties.

We have been involved in several

cases over the last few months

where people have become upset

and distressed when their personal

information has been put on different

social networking sites. It is possible

these days for anybody on the internet

to copy and paste your details and

place them on any other website so

long as you yourself has allowed the

public display of your information.

As with any website you join up to,

we strongly advise you to review your

privacy settings and adapt them to be

as private as possible. This could mean

Social Media and Family Matters


““

Cohabitants’ Property Disputes

Emma [email protected]

Lincoln/Coningsby

The case of Jones v Kernott has

recently been before the Supreme

Court following a number of appeals

by both parties.

The case relates to a property dispute

between cohabitees. In 1985 the

parties purchased a property in joint

names. The couple did not make any

declaration as to how their beneficial

interest in the property should be held.

The deposit was paid for by Ms Jones

and an extension to the property was

paid for by Mr Kernott. The couple

then split up in 1993. Ms Jones and

their two children remained living in

the property, with Ms Jones taking on

full responsibility for the mortgage

payments. Mr Kernott purchased his

own property in 1995.

Over the years, the value of the jointly

owned property increased and in 2006

Mr Kernott indicated that he wished to

realise his 50% share of the property.

The following year, Ms Jones applied

to the county court for a declaration

that she owned the entire beneficial

interest in the property and that Mr

Kernott should not be entitled to any

share in it.

The Judge in the county court noted

that the house had been bought by the

couple as a family home originally and

therefore the reasonable presumption

was that their intention was to share

the beneficial ownership equally.

Ms Jones however claimed that their

intention had altered since 1993 when

Mr Kernott moved out of the property

and she took on responsibility for

the mortgage and other household

expenses. The Judge agreed with Ms

Jones and ordered that Mr Kernott

should be entitled to 10%, rather than

50%.

Mr Kernott appealed this decision

in the High Court. His appeal was

dismissed and he therefore appealed

to the Court of Appeal, who allowed

his appeal, agreeing with Mr Kernott.

Ms Jones appealed the decision of the

Court of Appeal and the decision by

the Supreme Court was released in

November 2011. The Supreme Court

agreed with the original decision of

the county court Judge, granting Mr

Kernott a 10% share in the property.

The 10% was based on the value of Mr

Kernott’s share in the property at the

time he purchased his own property in

1995. The county court Judge was of

the view that his share in the property

crystalised at this time as a result of

the couples’ conduct and intentions.

It is clear that the court can interfere in

cohabitants’ property disputes where

there is no clear indication of how

beneficial ownership should be held.

Every case will however be different

and it is important that you seek legal

advice at the earliest opportunity if you

do separate from your partner.

At present, unmarried couples are

unable to make financial claims

against each other in the same way

as those who have married or entered

into civil partnerships. Any property

dispute between cohabitants has to

be addressed with reference to strict

property law. There have been calls in

recent times for the law to be altered

for cohabiting couples. The argument

against such reform however is that

married couples have chosen to enter

into a legally binding relationship,

whereas some cohabiting couples may

have decided not to marry simply to

avoid the legal consequences if the

relationship does break down.

“At present, unmarried couples are unable to make financial claims against each other in the same way as those who have married or entered into civil partnerships.”

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[email protected]

Edition 4

Dear S&B

I live with my partner and her son. I am

really the only father figure he knows as

his biological father has not been very

interested in him and does not see him.

My girlfriend and I have talked about the

possibility of me adopting him but I don’t

know where to start.

Adoption is one of a number of different

options open to you in this situation

depending on what is most important to

you. You can apply to adopt your partner’s

son provided that he has lived with you

for 6 months by the time you make your

application. If you wanted to make an

application you would first have to give

notice to the Adoption and Fostering

Team of your local County Council as the

court will require a report to be prepared

before it can consider making an Adoption

Order.

In your situation an Adoption Order

would have the effect of discharging

the biological father’s legal status where

the child is concerned (but not your

partner’s as mother). If he has Parental

Responsibility for the child, for the Order

to be made he would either have to

consent to it or the court would have

to dispense with the need for him to

consent. If there is a chance that the

biological father might object it would be

sensible to seek more specific legal advice

as this may prolong the court case and

have a bearing on whether you take this

course. Ultimately the court has to base

its decision on what it deems to be in the

best interests of the child. This is why it is

necessary for a social worker to look into

your family’s circumstances to advise the

court.

Dear S&B

I have recently found out that my husband

has been having an affair and I want to get

a divorce. I know the woman he had the

affair with but do I have to name her in the

divorce?

If you decide that you definitely wish

to seek a divorce, it would be open to

you to base your application on your

husband’s adultery. Assuming that your

husband admits to the affair you would

not have to name any third party. If you

did that person would become a party

to the divorce proceedings which could

complicate and delay the progression of

the divorce, therefore it would rarely be

beneficial to name anyone else.

Dear S&B

My fiancé and I are due to get married

at Christmas and this will be a second

marriage for both of us. I know that he felt

that his ex-wife got more money than he

thought she should when they divorced

and to reassure him I would like us to have

a pre-nuptial agreement. Over the years

I have accumulated a lot of credit card

debt which he is aware of but not the full

extent. Would he have to know this?

In the run up to your wedding, the

last thing either of you are probably

thinking about is divorce, however as

you have both been through it before it

is understandable that you might have

concerns. A prenuptial agreement would

set out what each of you would propose

to be a fair financial settlement in the

event that you did separate and divorce.

Helen Derry expands upon this further in

her article. Although a pre-nuptial would

not bind any court looking at this in the

future, it would be taken into account

provided both of you had the benefit of

independent legal advice and exchanged

full financial disclosure. If you withhold

any financial information when making

the agreement, any court looking at

it in the future is likely to find it a lot

less persuasive. Whether you decide to

opt for a prenuptial agreement or not,

therefore, it would be sensible to talk to

your fiancé and maybe seek some more

specific advice in coping with your debts.

The National Debt Line provides free,

confidential debt advice on 0808 808

4000 or try their website at http://www.

nationaldebtline.co.uk/

Dear S & B

Do I need to use a solicitor in respect of

my divorce?

If you can afford one then it is better to

have one and it may cost you more in the

long run if you do not do so.

In relation to divorce proceedings many

people are now trying to do it themselves

or online. We see many cases where

people come in when they have either

started the process themselves or online

and it has become necessary for them to

get help. This can ultimately cost more

and result in delay. We do offer a fixed fee

divorce service and suggest you consider

our earlier article for more information

about this process.

In relation to the financial aspects of your

separation, we strongly recommend that

you obtain legal advice. To have a binding,

enforceable settlement you need to have

full disclosure of your respective financial

positions and a Court Order confirming

the terms and if appropriate dismissing

future claims. The drafting of a Consent

Order needs to be done carefully. It is

important to remember that without an

Order dismissing future financial claims,

your respective claims against each other

will remain open, unless the remarriage

trap applies. This is often considered

unsatisfactory, for example, your spouse

could make a claim against your home,

Questions & Answers

Mo Hayes [email protected]

Gainsborough/Lincoln

pension or capital in the future, particularly

if your circumstances improve. You must

also be aware that if one of you remarries

prior to lodging an application with the

court for financial issues to be dealt with

then you may lose your right to claim

against your former partner in the future.

There are, however, many things that you

can do to limit the cost. The more you and

your spouse can agree the better. This

should only be done once there has been

an exchange of full and frank financial

information.

Mediation or collaborative law can assist in

helping you reach an agreement and then

it will simply be a matter for the lawyers to

put that agreement into a binding order to

be placed before the court.

At Sills & Betteridge we can offer you a

bespoke service dealing with all matters

on your behalf or simply provide you with

advice on an as and when basis. If you

are still on good terms with your spouse

and you are able to discuss these matters

either direct or in mediation we can then

convert any agreement that you reach,

after giving advice, into a consent order to

be placed before the court.

How much you use your solicitor depends

on whether you remain on reasonable

terms with your partner, the nature and

extent of your assets and your own

confidence in dealing with such matters.

It remains, however, strong advice that

you always do seek legal advice in relation

to financial matters before you agree a

financial settlement.

(The Sills & Betteridge Family Team at Christmas Party 2011)

11


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[email protected]

I hope you enjoyed this edition. As with everything we do, we welcome your feedback, so if you have any comments on this issue please send me an email at: [email protected] & Betteridge is a trading name of Sills & Betteridge LLP. Sills & Betteridge LLP is a limited liability partnership registered in England and Wales ( Registered number OC339586) and is regulated by the Solicitors Regulation Authority.

The term partner is used to refer to members and certain employess of Sills & Betteridge LLP. A list of the members’ names is available for inspection at the registered office: 46 Silver Street, Lincoln, LN2 1ED.

The contents of this document are copyright © Sills & Betteridge LLP. All right reserved.

All questions in the questions and answers article and case studies are fictional and any similarities to any individual case is coincidental

The contents of this magazine are intended for general information only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of articles printed in our magazine

Helpful OrganisationsHelen Derry [email protected]

Lincoln

Domestic Violence Lincoln Women’s Aid and Refuge 01522 510041 Boston Women’s Centre 01205 311272 Lincolnshire Police 01522 532222 National Domestic Abuse Helpline 0808 2000 247 Forced Marriage Unit 020 7008 0151 Honour based Violence/forced Marriage Karma Nirvana 0800 5999 247 Broken Rainbow 08452 60 55 60 Men’s Advice Line 0808 801 0327 National Victim Support 0845 30 30 900 NSPCC/Childline 0808 800 5000 Elder Abuse Response Line 0808 808 8141 Lincoln Victim Support 01522 542 687 Boston Victim Support 01205 359759 West Lindsey’s Women’s Aid 01427 616 219 Grantham Women’s Centre 01476 561 131 Women’s Aid South Holland (W.A.S.H) Spalding: 01775 720 400 Holbeach: 01406 493 222 West Lindsey: 01427 616 219

Breakdown and Seperation Relate www.relate-lincs.co.uk relate Lincolnshire 0845 6046206 Lincoln & Boston 01522 524922 Grantham 01476 592921

Housing Citizens Advice Bureau 08444 994199 Shelter 08088 004444 Council Housing Lincoln City 01522 881188 West Lindsey 01427 676676 North Kesteven 01529 414155 South Kesteven 01476 406080 South Holland 01775 761161 Gainsborough 01427 676676 Skegness/Mablethorpe 01507 601111 Boston 01205 314200 Longhurst Housing Association 0800 111 4013 Boston Mayflower Ltd 01205 318500

Debts Problems Citizens Advice Bureau As mentioned National Debt Line www.nationaldebtline.co.uk 0808 808 4000 Legal Services Commission Debt & Benefit Helpline 0845 3454345

Welfare Benefit Problems Citizens Advice Bureau As mentioned

Child Abduction Reunite www.reunite.org 0116 2556234 or 0116 2555345 Constitutional Affairs International Child Abduction and Contact Unit 020 7911 7045

Other Helpline/ Resources Resolution www.resolution.org.uk 08457 585 671 Parent Line Plus www.familylives.org.uk 0808 800 2222 Samaritans www.samaritans.org 08457 90 90 90 Childline www.childline.org.uk 0800 1111 NSPCC Helpline www.nspcc.org.uk 0808 800 5000 NHS Direct www.nhsdirect.nhs.uk 0845 4647 Mental Health Foundation www.mentalhealth.org.uk 0207 803 1101 Alcoholics Anonymous www.alcoholics-anonymous.org.uk 0845 769 7555 Al-Anon/ Alateen (Help for families and friends of alcoholics) www.al-anonuk.org.uk Cafcass www.cafcass.gov.uk National Youth Advocacy Service www.nyas.net 0800 616 101 One Parent Families/ Gingerbread www.gingerbread.org.uk 0800 018 5026

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sills & betteridge family magazine 2012

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