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Lawyers are given new guidance on litigants in person (LiPs)
New guidance has been issued in response to the growing number of people representing themselves in court rather than hiring a legal practitioner. The increase in litigants in person (LiPs) especially in family courts is as a result of the reforms to Legal Aid which were introduced in April 2013 whereby some family cases became ineligible for public funding.
Whether you are a solicitor, barrister or legal executive the professional bodies for each have said their members have to be polite and non-judgemental when dealing with LiPs and take “extra care to avoid using inflammatory words or phrases”. This joint guidance issued by the Law Society, Bar Council and Chartered Institute of Legal Executives outlines the fine line that lawyers need to be aware of between their duties to clients and to the court.
Further, the guidance advises a ‘courteous approach’ when dealing with LiPs by avoiding confusing terminology in court or through correspondence. However, lawyers are still expected to fully represent their clients and “knowing and using law and procedure effectively against your opponent because you have the skills to do so, whether that be against a qualified representative or a LiP, is not taking unfair advantage or a breach of any regulatory code”.
The guidance has accentuated that lawyers need to explain to their clients why they are assisting the opposing party: “You should emphasise that you have a professional duty to the Court and that in the interests of fairness the court may require you to provide procedural assistance to the LiP”.
This does present certain challenges for practitioners with the interests of the client and the duty to the court appearing to come into conflict. It presents an interesting challenge for lawyers to seek a balance between the two by incorporating the guidance in their every day practice. However, one could argue that a client is at the end of the day best served by a fair transparent system which the guidance seeks to promote.
The guidance which can be accessed through this link http://www.lawsociety.org.uk/News/Press-releases/Surge-in-DIY-justice-sparks-guidelines-for-lawyers-May-2015/ includes sources/advice for practitioners to provide to their clients or LiPs.
There is also a passage in the guidance dealing with McKenzie friends which includes a list of prompts for practitioners to raise concerns about their presence in court. It is clear that the mater is for the court or objecting party to provide sufficient reasons why a LiP should not receive assistance from the McKenzie friend. Since the dismantling of legal aid it is an natural consequence that LiPs and McKenzie friends are here to stay.
Fullers offers ‘unbundling’ of family services on a Pay As You Go basis giving LiPs control of the costs of the advice and assistance sought.
By Asia Razaq 17 June 2015
Social media and divorce – avoiding ‘anti-social’ communication
We live in an age where digital communication is a necessity. Smart phones are no longer a luxury - for some they are the primary means of working, managing their home life and socialising.
Our lives are lived online via social media and our memories stored in a ‘cloud’. So how does this affect separating couples?
Last week, The Portsmouth News reported that a man had been convicted of harassment against his ex-partner. The court found that the man had broadcast a series of status updates and profile pictures on the mobile app “Whatsapp”, designed to upset his former girlfriend. These updates included images of her with statuses such as “Gold digger” and “We know where you’ve been”. Passing sentence, magistrates told the 49 year old man that he had behaved like a “lovesick teenager”.
Cases such as this raise the question - if you are no longer in a relationship in real life, why be ‘friends’ with your ex-partner on Facebook, or let them ‘follow’ you on Twitter.
We think very little of using social media to chart our day to day life for the entertainment and attention of our friends and family. But how many times have you logged in to find a ‘friend of a friend’ has tagged your name to a photo or location? Have you ever thought about how many people saw this information before you did? Hundreds, possibly thousands. Would you want your ex-partner to know where you were, who you were with, what you were doing?
The good news – it is possible to use social media safely, sensibly, and respectfully:
•Choose what you share by reviewing your security settings. The internet is awash with tips on how to set up security profiles, preview when you are mentioned or tagged on social media and limit who can look at your account.
•Set boundaries. Tell friends you do not want to be tagged or mentioned in comments or statuses. Explain that you are being careful about who sees your profile.
•Parents can keep in touch with teenage children by using the various chat apps. Finding out what they are interested in by keeping up to date with their social media ‘likes’ can break the ice and make contact sessions less uncomfortable in the early days of separation.
•Pictures and videos can be shared with your ex and their family members – holiday snaps and other photographs can be sent at the click of a button. An ‘Instagram olive branch’ can go a long way to easing tense relationships.
•It is natural to miss an ex-partner, but if the temptation to ‘check in’ on them is too strong to resist, then consider a Facebook holiday. Deactivate your account. Take a break. Re-join when you are strong enough to manage your feelings.
•Take personal responsibility for what you post. If you know it will upset or provoke, then don’t post it to an open source site.
•If you find you are at the receiving end of abusive messages, keep a record, never retaliate and report to the authorities – either to the page itself, or the police.
Fullers Family Law offer one-to-one Conflict Resolution and Negotiation sessions. These sessions come with a money back guarantee. Call us to discuss how we can help you regain control of communications.
By Dominique Edell 23 June 2015
Same sex marriage – one year on
Last weekend, thousands flocked to London Gay Pride 2015, to celebrate and represent their LGBT communities.
What made this year particularly noteworthy, is that it is the first Pride when some of the revellers could – technically – be divorcing from their same sex marriage.
The Marriage (Same Sex Couples) Act was passed in 2013 and the first ceremonies took place in March 2014. Previously the Civil Partnership Act 2004 had allowed partners of the same gender to form a legal union, and afforded them some of the rights enjoyed by heterosexual spouses.
The 2013 Act was seen by many as a welcome update to our marriage laws. Indeed, only last Friday, America have followed suit, by passing a bill enabling the same.
But does same sex equal the same rights in the UK? There are still some differences.
Firstly, the good:
•Transgender people awaiting their gender reassignment certificate can now remain married, if their spouse consents. Previously the man and woman would have to dissolve their marriage, and then register their civil partnership once the transgender partner had received legal recognition of their new gender. An insensitive and – for many – an offensive process.
•Same sex partners now have a choice of how to legally recognise their relationship – enter into a civil partnership or a marriage. Indeed, some heterosexual couples are now campaigning for the equal right to register civil partnerships!
Secondly, the bad:
•If a same sex marriage breaks down because one of the partners has been unfaithful, the law does not currently recognise this as adultery. Adultery is defined by case law as “sexual intercourse between a man and a woman”. By this definition, same sex partners may not be able to rely on the fact of adultery to dissolve their marriage, unless the relationship was with a person of the opposite sex.
This does not mean that a same sex couple must remain unhappily married – the extra-marital relationship may be cited as an example of intolerable behaviour on a divorce petition.
•Pension inheritance rights are less favourable for a surviving same sex spouse. They are currently not entitled to receive the full value of the deceased spouse’s pension. Employers are required by law only to pay same sex widow/er’s pensions based on contributions made since December 2005.
Contributions made before 2005 can be discounted and would not be received by the surviving same sex spouse. Some employers may exercise discretion and pay out on contributions predating 2005 but there is no legal obligation for them to do so.
And lastly…the ugly:
•A same sex marriage cannot be annulled on the basis of non-consummation. A heterosexual partner can cite ‘invincible repugnance’ for not being willing to share the marital bed. This means that if a heterosexual person is so repulsive that the thought of physical intimacy harms their partner’s mental wellbeing, their marriage could be declared void. Same sex couples do not have the same luxury!
Speak to Fullers for information about converting your civil partnership into a same sex marriage, or for advice if your relationship breaks down.
By Dominique Edell 30 June 2015
Lump sum orders and business cases.
In many cases involving lump sums and large amounts of money, one of the assets is a business owned by one or both of the parties.
Where the business is a private business i.e. one in which the parties themselves have a controlling interest and which provides the source of the family’s wealth, particular considerations arise. The court has two important purposes in such cases. The first is to establish a value for the parties interests in the business, as part of its duty under s25 (2)(a) Matrimonial Causes Act 1973. The second is to decide how that value should be reflected in the final distribution.
As to the issue of valuation, it should be remembered that until recently, the understanding was that the court will avoid making an order the effect of which would be that the business would have to be sold against the will of the party wishing to continue in the business; in most cases the business would be looked upon as the provider of income, now and in the future, and not as a source of liquid capital. It follows that any valuation should not be in the same detail as would be employed by someone wishing to buy the company but rather to establish a realistically accurate figure for the income which the business could produce, and its eventual value as, for example, the source of a pension annuity.
White v White  however introduced a new set of principles, particularly in the cases of substantial assets, and in more recent case law it has been said that the older authorities disapproving the sale of what is referred to as ‘the golden goose’ might no longer apply. In cases concerning private companies a commercial/company law resolution might be preferable to a clean break based on valuations. Practitioners should not confine their approach to valuations and liquidity but should consider commercially realistic alternatives and periodical payments.
The only exclusion to the principle that a thorough and accurate valuation is inappropriate would be where one party was likely to convert his or her interest in the business into a liquid form, for example, by sale, retirement or takeover, or where one party had acquired a quantifiable interest in the business, for example, by a direct financial contribution or by working in the business.
If any valuation of the business is to be carried out with a view to counting on it in court, it will at some stage become necessary to instruct an accountant.
The value of any business is typically what a willing purchaser would pay for it on an arm’s length basis.
There are three bases of valuation which an interested party would usually use; these are the asset basis, the dividend yield basis, and the earnings basis. Commonly a calculation is done on each of these bases and then compared to attain a cross-checked final result.
•The asset basis produces the figure which would be obtained if the assets were sold and the business closed down. For the reasons above however, businesses are not often closed down to provide a lump sum, so, in addition to being the more difficult, this basis of valuation is not likely to be the one finally relied upon by the court.
•The dividend yield basis is equally unlikely to provide an absolute answer. It gives a value to a potential purchaser who is above all interested in the dividend income from the company. It involves dividing the gross dividend by the required rate of return to give a value per share.
•The earnings basis of valuation is therefore likely to be the most beneficial starting point. It involves first establishing the maintainable earnings of the business. This figure will be derived from one or more sources; one would be the most recent year’s gross profits. Another would be the average of the last three years’ gross profits. These could then be compared to obtain a final figure.
The figure for maintainable earnings must then be multiplied by the P/E (profits: earnings) ratio appropriate for that type of business. The ratio can be found from the FT Actuaries Share Index.
To be able to carry out the calculations as above, or to instruct an expert, certain documents are required, and should be acquired. At the very least, the last three years’ accounts must be obtained.
Where one spouse is involved in a company, the other often thinks he or she must have some interest not immediately apparent on the face of the accounts and, of course, that may be the case; identifying such benefits is one of the tasks of the expert.
After ascertaining the value of the parties’ interest in a business, the court must then decide what to do with the figures. The first fundamental issue is what is the financial worth of the parties on the immediate dissolution of the partnership; the second is whether the court should use it’s powers to increase one party’s share, the third is, if no, whether the court should exercise its authority to condense one party’s’ share.
Where spouses are shown to be genuine partners, the dissolution of their partnership both in marriage and in business ought not to require the intervention of the courts.
Emma Bilsborrow 7 July 2015
Honour Based Violence, and the Family Law solutions.
Today is the first national memorial day for victims of ‘Honour Killings’.
Contrary to media portrayal and public opinion, honour based abuse is not solely the reserve of families with an Asian heritage. It does not always manifest with a teenage girl being taken abroad to marry a distant relative, or a young Irish traveller male being beaten for talking to the wrong girl.
Abuse can take the form of financial, emotional sexual or physical harm, isolation, forced separation from children and social exclusion. This perverse concept of ‘honour’ can be found at the heart of any community.
The criminal courts have powers to protect those at immediate risk of honour based abuse, but how can Family Law play its part in offering long term protection?
The Forced Marriage (Civil Protection) Act 2007 allows that a court may grant an order protecting a person who is at risk of being forced into a marriage (or has already been married against their will). Conditions may be attached to this order to prevent the person from being removed from the UK against their will. Breach of a Forced Marriage Prevention Order is a criminal offence, carrying up to 5 years imprisonment.
There are many charities and organisations such as Karma Nirvana and Women's Aid who can support a person who has chosen to flee forced marriage or honour based abuse. Once the subject of the abuse is in a safe place, they may start to consider their legal options.
Protection of any children of the family is often the first priority - prohibitive steps or specific issues orders under s8 of the Childrens Act 1989 can enforce a parent's rights, or deter other family members from using children as a means to coerce a vulnerable parent. The Family Law Act 1996 allows the court to grant non-molestation orders to protect family members who are at risk of harm. These orders can prohibit a connected person from harassing or intimidating the applicant, either directly, or indirectly through other family members. Occupation orders relating to the family home can also be granted, however in many cases, a person is forced to flee their home to prevent further abuse.
Finally, in cases of forced marriage, your family lawyer will help you apply for a divorce or annulment, and can give advice on jointly owned assets. Importantly, victims of honour based abuse may be entitled to Public Funding (Legal Aid) in order to seek assistance from the Family Courts.
In an emergency, or if you are worried for somebody’s safety, call the police on 999 immediately.
Dominique Edell 14 July 2015