Family law and the art of waiting. If you’ve not been through a divorce or legal separation, you may not see an obvious connection between these phrases, nor will they likely be in your mind if you’re thinking about initiating a divorce. The truth of it however, is that the traditional, adversarial approach to family law and the art of waiting are inextricably linked. In fact, if you are of a mind to approach your divorce by instructing the biggest, meanest lawyer you can find to defend your idea of what you feel is right and fair before a judge, you’ll soon find yourself getting far more practice in the art of waiting than you ever could have imagined!
The legal system is slow. There is no other way to say it than to just call it what it is: Slow. After months of waiting for your first day in court – yes, your first, you can be sure you’ll next find yourself waiting a good couple of months for your second appearance (and even then it will not necessarily your last!). Most people are surprised to find out that nothing really happens in terms of a judge or magistrate making a decision at their first appearance in a courtroom. Yes, for those who decide to fight the big fight hold their ground in the name of their own sense of justice, there is a lot more waiting to come!
It is not in the least uncommon for divorce battles to last two or three years for those couples who’ve chosen to dive all the way into the legal rabbit hole of attending hearing after hearing while they wait for some officer of the court to finally tell them how things are going to be. Now to be fair, for those who manage to stick it out all the way to the end will eventually see a judge or magistrate make a decision about their matter. It must be pointed out though, that no matter how strongly each party to such disputes believes in their own position, there is absolutely no guarantee that the judge’s decision will look anything like they want it to – and this is true regardless how firmly one believes they are in the right or the efforts of their legal representatives.
Fortunately, Cambridge Family Dispute Resolution Group (CFDRG) offers an alternative for those who don’t have the physical, mental or financial stamina to go the distance, or who just want a better way. CFDRG members are family law professionals who can assist you through the processes of Collaborative Law, Arbitration or Mediation. These dispute resolution processes are designed for those who don’t want to wait month after month of stress and worry, paying all of those legal costs only to find they’ve lost control over their financial settlement solution and parenting plans in the way that those who go to a final hearing ultimately end up doing.
CFDRG is a collection of solicitors who, wherever possible, utilise these alternatives over the more traditional adversarial divorce to assist separating couples create sensible financial settlement solutions and workable co-parenting plans for their children in a fraction of the time than it takes to get to a final hearing. And often at considerable savings too.
If you are contemplating a divorce, and you want to avoid months of legal wrangling whilst also remaining in control of your own future plans, contact one of our solicitors here on the CFDRG website and ask about how a collaborative approach can spare you a crash course in the art of waiting.
The Lifetime Allowance (LTA) was introduce in April 2006 when pension rules were overhauled. The LTA is the total value of pension benefits an individual may build. The original LTA limit was £1.5m and rose to £1.8m, however from 2012 it has been reduced and this year (2016/2017) is £1m.
Generally, anyone taking (“crystallising”) their pension will have the benefits tested against the LTA. Values in excess will be taxed at 55% on capital or 25% on income.
In April 2006 and subsequently each time the LTA was reduced, various protections were available allowing individuals to lock in to higher LTAs. Those with protection will need to take extra care in planning, especially where they have Enhanced Protection or Fixed Protection as they may no longer make pension contributions.
The value of an individual’s Lifetime Allowance may also be adjusted where pensions are shared on divorce. If the shares is in their favour and they receive a pension credit their LTA will be adjusted if:
i. The credit was before 6th April 2006 OR
ii. If the pension being shared came into payment after 5th April 2006 and was in payment at the date of the sharing order.
In these instances an individual must apply for an increase to their standard LTA, it will not be awarded automatically.
The position is more complex where the individual receiving the credit has LTA protection (Primary, Enhanced, Fixed or Individual).
If the sharing order is against an individual’s pension and a debit is made and they have Primary Protection or Individual Protection then that protection is recalculated.
Anyone with Enhanced Protection or Fixed Protection will not be affected in this way by a debit but due to the terms of protection they will have limited ability to rebuild their pensions.
The deadline for apply for Individual Protection 2014 is 5th April 2017.
A brief word on the Annual Allowance (AA). This is the amount that may be paid into a pension each year. This has also been reduced recently to a standard £40,000. From this year those with high earnings or who are taking pensions using flexi-access, will have an AA as low as £10,000 and £4,000 next year. Again this will limit the ability to rebuild pensions if they are shared on divorce.
This article has not attempted to cover all the aspects of the LTA and AA but highlights some key issues. As with many aspects of pensions a little knowledge can be a dangerous thing. Specialist financial advice should be sought when LTA and AA planning is required.
At the start of a New Year, our thoughts have turned to pre nuptial agreements, or pre marital contracts as they are now known. These have not been a large part of the everyday work for some of our members but it is clear that their popularity is increasing.
Pre nuptial agreements have been used for many years in other countries in particular in Europe to avoid being caught in a community of property regime from the date of the marriage. In the UK they were most frequently used where property eg farmland was both expected and needed to pass from generation to generation.
For many years in the UK it was understood and accepted that these agreements had no legal force. This changed, not by any statute passed by Government but by a ruling of the Supreme Court in 2012. Judges will now give considerable weight to pre- marital contracts that have been entered into with appropriate legal advice and sufficient knowledge of the surrounding circumstances and assets involved. It is also a good idea to have a reasonable period of time between the signature of the contract and the actual wedding day!
So where does dispute resolution come into this, as one might assume there is no dispute at this stage, pre wedding, other than over the seating plan. The collaborative law process is however ideally suited to sorting out the terms of a pre -marital contract as it is a forum in which both parties have a voice and can hear each other, assisted by lawyers who can inform the couple of the approach that is likely to be taken by a court on divorce and what they therefore need to think about in the agreement. All can discuss future scenarios and what will be needed, both to protect (say) pre -acquired wealth or property and to meet the needs of the more economically vulnerable person. Whilst one cannot exclude the right of the court to examine any agreement that seeks to set out what should happen if a marriage ends, the court is less likely to interfere if the pre marital contract both makes provision and explains the level of that provision, even where that might be less than the Judge might have ordered off his or her own back.
It is also possible to enter into such agreements after the marriage, as a post nuptial settlement, perhaps to address an inheritance received during the marriage that does need to pass onto one spouse’s children or as part of tax planning for future generations.
To approach either a pre or post marital contract as a two party discussion through collaborative law, hopefully gives them the best chance of existing alongside a long and successful marriage and so, never being needed at all. So many of us need no convincing to put insurance in place to help if the unthinkable event of terminal illness or other permanent incapacity came along, and a pre or post marital contract is very similar – it is preparing in advance for something you both hope will never happen but the aim is to make that event, whilst unwelcome, more easily navigated by all.
Many couples cite poor communication as being a key factor in their divorce or separation. How many times have you heard, “She wouldn’t listen” or “He couldn’t communicate”? The sadness lies in the fact that what we mean is often not what we actually say; and what we say is often heard in another way altogether by the other. We each bring to each individual relationship our own set of filters through which we listen. We can make wild assumptions about the responses we receive as we try and make sense of our feelings. Depending on our levels of self awareness, we may or may not have a sense of what’s going on. We may just be left with a continual feeling of not being heard and of not being able to get our message across which results in frustration and resentment. It’s easy to see how misunderstandings then become commonplace and in the end, a couple argue more and more or drift apart and separate.
At times of high conflict, couples have a tendency to take up polarised positions where communication is less likely to be moderated. The flavour of communication becomes more about “I’m right, you’re wrong – you just don’t get it!” Listening can often go right out the window as they battle to get their point across. These battles can go on for a very long time, well beyond the decree absolute with untold damage to the family’s wellbeing.
So why is communication so important once a couple have split up, surely that’s the problem solved? For the very reason that it’s arguably even more crucial that you communicate well with your ex spouse post divorce rather than pre-separation in order to function well as co-parents. Without good communication, you will merely repeat the dysfunctional patterns and dynamics that are probably pretty well entrenched by now and perhaps one of the key reasons for your separation.
When a couple separate, understandably there is often a powerful mix of emotions including hurt, sadness, rejection, betrayal, misunderstanding, jealousy, denial, anger and more besides. When we experience these difficult feelings, our natural response is to take up a defensive position that involves attacking the other, either explicitly or implicitly. It rarely involves saying what we think or how we feel but tends to focus on what the other has done or not done. More often than not, we’re not even aware of how we’re acting but good communication can minimise the detrimental impact that this kind of behaviour has on the whole family. It can be very hard to do things differently which is why support from family, friends or professionals can really help. Others can listen and help us find alternative ways of communicating.
Good communication becomes easier if you are able to think of your ex-spouse like you would a business partner (as a co-parent) rather than as ex-partners. Although you might be separated, if you have children, you will need to communicate for years to come – whether that’s discussing children’s arrangements, making decisions together or simply attending parents’ meetings or family celebrations. The more openly you are able to talk, the easier it will be to make tough decisions, to negotiate issues on which you disagree and most importantly, to mutually support your family in the future. Good communication models something very powerful to children and makes it much harder for them to take sides or play one parent off against the other.
If we communicate honestly and openly, we are far less likely to blame, point fingers or engage in manipulative behaviour. The upside is that good communication also aids understanding, helps us feel heard and can leave us and the other person feeling much better.
The Child Arbitration scheme launched in July 2016 covers all private law Children Act Disputes between parents, parents and grandparents, cases where a party lacks capacity under the Mental Health Act, medical treatment cases of a life threatening nature, applications for injunctions, applications to commit someone to prison, cases involving parents who are minors and cases where a child needs separate legal representation.
Arbitration is a more informal process than that of a court. The parties decide when and where the hearing will take place. They also choose the arbitrator themselves.
The parties can choose arbitration from the start of the dispute or part way through court proceedings and a referral can be made at the dispute resolution appointment hearing. Arbitration is binding on the parties involved.
The parties or their legal advisers refer the matter to arbitration by completing form ARB1CS which is sent to the Institute of Family Arbitrators. An arbitrator is appointed and the first hearing known as a planning meeting is set up. Following the arbitration which usually lasts up to a day a written determination will be given the terms of which are incorporated into a consent order which is then sent to the court for approval by a judge in the usual way. It will only be in the rarest of cases appropriate for a judge to do anything other than approve the order. An appeal against the decision of the arbitrator is only possible on a matter of law or a serious irregularity in the way the arbitration has been conducted.
Arbitration is a more informal process than that of a court.
The process from start to finish will take less time than court proceedings and the lengthy delays with court listing are avoided.
The cost of arbitration is cheaper as arbitrators often charge fixed fees. Arbitration is less stressful as it is likely to be resolved in one hearing and can sometimes be dealt decided on documents alone.
With the proposed court closures and a court system which is overburdened arbitration can be a cost effective, less stressful and quicker way to resolve children disputes between the parties.
On Tuesday 22nd November, as part of “Good Divorce Week, members of the Cambridge Dispute Resolution Group met at their annual Dispute Resolution conference.
They heard firstly about child arbitration from Charles Hale QC and local lawyer Simon Bethel who have both been trained as children law arbitrators. They were able to provide an explanation of what arbitration can do and what it can’t and how it is to deal with safeguarding issues. It will have a not insignificant cost but the advantage of privacy, determination of the issues placed before the arbitrator and speed may well outweigh this.
In our second session, we had the privilege of hearing from John who had used the collaborative law process to deal with his divorce and financial matters some 3 years ago. The two lawyers involved in John’s case and the family consultant were also part of the panel and after some pre-prepared Q&A’s, John accepted questions from the floor. It was fascinating for lawyers and mediators present to hear from a client’s perspective and John was also able look back on where he is now as a result of dealing with the divorce through the collaborative law process. We were very grateful to John for sharing with us in such an honest way.
John’s final conclusion was that he was 70% likely to recommend collaborative law to someone else in the same position!
When going through a divorce, it is not only difficult for the parents but also the children. Here are some children’s books to help children understand the divorce process, their feelings and how to deal with their new situation.
For the younger audience
For older children
The following video from Resolution, may also be of assistance:
Members of Cambridge Family Dispute Resolution Group acknowledge that court is not always the best place to settle disputes that have arisen out of intimate relationships. Sometimes court proceedings are unavoidable; but wherever there is a possibility of keeping things away from a judge, we try to do that. We negotiate, mediate, collaborate on behalf of our clients when appropriate to do so. However, we can now also “arbitrate” in children matters after a scheme was formally launched on Monday evening this week at a reception in the Inns of Court.
The child law scheme has come into being because of the great success of arbitration in financial divorce matters. The financial scheme started in 2012, and it’s fair to say it was a slow-burn, but in a case in 2014 our head judge handed down judgment where he affirmed and approved a financial award made by an arbitrator appointed under the scheme. In his judgment the President said, “There is no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make the decision for them.” This provided the reassurance about certainty of outcome that many practitioners were waiting for, and since then the practice of family law arbitration has grown exponentially.
It also led directly to the new Family Law Children Arbitration Scheme. The new scheme offers the opportunity to resolve disputes about the care, upbringing and welfare of children after parental separation and divorce by arbitration. It covers internal relocation cases (though not at the moment external relocation), child arrangement orders, change of name requests, disputes about education and prohibited steps orders.
Arbitration becomes an option when avenues for settlement of the dispute by agreement have been explored and have not led to a solution. The arbitrator has the power to impose a settlement on those in dispute, and he or she does so by their consent. Unlike a court, which can compel someone to attend and make someone subject to court orders whether or not they agree, arbitrators can only act if both sides of the dispute agree that they should.
If this is the case, though, the advantages of arbitration are many. There is no waiting around for court dates as you can choose your arbitrator on the basis of availability – or indeed on any other basis – and speed can be especially important when dealing with children matters. There is also more chance of arranging appointments with an arbitrator that are convenient for everyone involved, as opposed to fixed court hearings. The arbitration procedure is flexible and can be adapted to fit the particular circumstances of the case in terms of evidence heard, and the issues decided – from everything, to a single discrete matter. The costs of arbitration are almost always substantially lower than taking a case through the courts to a final hearing.
If a case goes to court, CAFCASS will usually be called upon to provide a report to the court about the children’s wishes and feelings. In arbitration, it is usual to request the assistance of an independent social worker to perform this role. It is fully intended that the children themselves are at the heart of arbitration in children matters, just as the court is led by a detailed consideration of their welfare before it makes a decision concerning them. Arbitrators apply the same law as the courts. If you wish to explore the option of Arbitration further then please do contact our members and they will be able to answer your questions, alternatively please contact any one of our arbitrators and they will be able to provide you with information with respect to the scheme.
At the launch, the Chair of IFLA (the Institute of Family Law Arbitrators), Lord Falconer, said:
“The new children arbitration scheme will enable couples to resolve disputes concerning parental responsibility of children more quickly, cheaply and in a more flexible, less formal setting than a court room. It will also guarantee confidentiality where that is required or necessary. These are all important ingredients to minimising conflict and supporting the best interests of children.”
“At a time when our courts are under significant pressures, the availability of arbitration for children matters builds on the long and proud tradition arbitration has in other areas, and gives parents and practitioners another tool with which to resolve family disputes”
If you wish to explore the option of Arbitration further then please do contact our members and they will be able to answer your questions, alternatively please contact any one of our arbitrators and they will be able to provide you with information with respect to the scheme.