Grandparents: the silent sufferers when their children get divorced

When parents get divorced, they are encouraged to sort out arrangements for any children between themselves, so that things can remain as amicable as possible. The best interests of the children should be the focal consideration and both parents should continue to have a strong involvement in their lives, so long as there are no welfare issues to consider.

The concept of ‘custody’ was traditionally used to define who children of divorce would predominantly live with; however, this has been abolished and, instead, parents will make ‘child arrangements.’ The change in terminology was an attempt to remove the concept of one parent being the ‘winner’ and one the ‘loser’, and to keep parties focused on making decisions based on what is best for the children.

In the event parents cannot agree on arrangements in relation to their children, they can apply to court for a child arrangement order to be made. Their right to apply is an automatic one, which means that although a parent may worry about the outcome of the application, they can relax somewhat in the knowledge that the court will make the best decision for the children.

Unfortunately the same cannot be said for grandparents in such circumstances. When their children decide to divorce, this can mean an uncertain future in relation to contact with their grandchildren. This is due to the fact that if one of the children’s parents decides they do not want the grandparents to maintain contact with the children, the grandparents do not have an automatic right to apply to court for a child arrangement order to be made. Instead, they must apply to the court for permission to make an application for such an order.

It goes without saying that grandparents in the above position should always attempt to negotiate with whichever parent is making contact difficult for them. However, when such negotiations aren’t successful, many people argue that grandparents should have an automatic right to apply to the court for a child arrangement order.

The above argument is based on the fact that many grandparents have extremely close relationships with their grandchildren, and it can be traumatic for both the children and the grandparents when such relationships come to a very sudden halt upon divorce. Many people also find it unfair that relationships between grandparents and their grandchildren should stop because of ill-feelings between the parents. Neither the grandparents nor the children should be punished because of any animosity between parents.

Whilst there have been parliamentary debates about the difficulties grandparents face in maintaining contact with their grandchildren after divorce, no action has been taken yet. In the 2008 report, ‘Beyond the nuclear: Including the wider family’[1], it is pointed out that the government argues that if grandparents had an automatic right to apply for contact, this could impact a child’s rights being paramount. The government claims that it would be hard for a child’s welfare to be considered, or for their rights to be protected, if grandparents were not required to request permission to apply to court.

The main problem with the government’s argument is that it is not consistent. Any potential welfare issues that could emerge from providing grandparents with an automatic right to apply for contact surely already attach to the existing automatic right that allows parents, or those with parental responsibility, to apply for contact.

It is important to note that no one is campaigning for grandparents to have an automatic right to contact, as this could indeed be detrimental. Instead, they should simply be granted an automatic right to be acknowledged and considered in child arrangements.

Providing grandparents with an automatic right to apply for a child arrangement order, would signify the important role they play in many families. Eliminating the need to request permission to make an application to court would remove one huge hurdle that grandparents currently often need to go through during an already emotionally draining and troubling time. This would make the process easier and, hopefully, in cases where it is appropriate, allow contact to resume as soon as possible.

[1] http://www.fnf.org.uk/phocadownload/research-and-publications/research/Including_the_Wider_Family.pdf

 

One rule for him and another for her as Oklahoma Supreme Court dismisses Sue Ann Arnall’s appeal

In November 2014, Harold Hamm, the CEO of Continental Resources, was ordered to pay his ex-wife Sue Ann $995.5 million in what was described as one of the biggest divorce settlements in history. With the award representing only a fraction of Mr Hamm’s estimated $18 billion empire, Sue Ann appealed, claiming that she should be entitled to a much heftier settlement due to her significant contributions during their 26-year marriage. Conversely, Harold made his own appeal, arguing that the almost $1 billion figure was excessive.

On 28/04/15, the Oklahoma Supreme Court dismissed Sue Ann’s appeal in a 7-2 decision, stating that she had forfeited her right to appeal in January, when she took possession of the marital property that had been awarded to her and cashed a cheque for $975 million. The Supreme Court did not dismiss Harold’s appeal.

The two dissenting judges branded the above decision ‘old fashioned’ and ‘draconian’. They suggested that if the only way to maintain the right to appeal was to reject the tendered cheque, this would allow the husband absolute and unfettered control over the marital property during the pendency of what could be a lengthy appeal. Not only would this provide Harold with the opportunity to deplete the marital property (admittedly a rather onerous task considering the extent of his wealth), but it would also leave Sue Ann, and other women in such a position, potentially unable to afford the cost of living in the interim period between the court ruling and the appeal. Surely it is inequitable for those who are unhappy with a court decision to have to choose between affording to live and appealing a ruling?

Not only does the Supreme Court’s ruling seem outdated, but more importantly it appears to be bias towards Harold. For if the court thinks that accepting the tendered cheque removes the right to appeal for the wife, then surely, using the same logic, writing the cheque should also remove the right for the husband. Using the basic concept of offer and acceptance, it could be argued that if there is a ‘no returns’ policy for Sue Ann, then there equally shouldn’t be room for Harold to recall the cheque that he presented to his ex-wife. It is potentially inequitable and inconsistent of the court to draw a distinction between the party’s actions.

Ironically, Oklahoma is an equitable distribution state, which means that divorce settlements must be just and reasonable. One of the big considerations for judges dealing with such disputes is what each spouse needs in order to move forward following their separation. Understandably, the judges who reviewed Sue Ann’s appeal would have found it very difficult to sympathise with an argument, claiming a life with only $1 billion is not worth living; however, they should have also considered factors such as her contributions during the marriage, as well as providing a more impressive basis for dismissing her appeal.

Craig Box, one of Mr Hamm’s attorneys, has said that it is too early to comment on whether or not Harold will appeal. However, the likelihood is that he will not and that, instead, he will be delighted with the dismissal of his ex-wife’s appeal. There is even room to suggest that Harold was content with the initial ruling in November, and appealed against it himself simply to highlight his disdain for Sue Ann’s appeal. After all, although $995.5 million is more money than most people could ever dream of earning, it is only a minute fraction of his overall wealth and therefore he could well have been relieved with the county court’s decision.

One thing that has been made very clear by the Supreme Court’s ruling is that the Oklahoma state does not believe equity necessarily requires equality. Whereas the UK has gained a reputation for being the ‘divorce capital of the world’ due to its generous divorce settlements that often entail a 50/50 split of assets, the Oklahoma courts clearly do not mirror this approach.

Don’t look back in anger? Try telling that to Dale Vince

During the couple’s relationship, the pair lived a nomadic lifestyle, surviving on very little money. Following their separation, life continued in a similar manner for Ms Wyatt, who today lives in an ex-council house in Wales with her children. However, things changed dramatically for Mr Vince when he founded Ecotricity in 1995, which is now one of the UK’s biggest green energy companies.Mr Vince’s new lifestyle mirrors his business success and he currently lives in a £3 million 18th-century castle with his new wife and their son.

At first glance, it seems obvious that any maintenance claim brought by Ms Wyatt so long after their divorce should fall flat. After all, the maths is plain and simple: Mr Vince’s success came three years after the couple divorced and therefore this surely means that Ms Wyatt’s ship has sailed and she has no right to any of her ex-husband’s earnings? This logic was certainly used by Lord Justice Thorpe in the Court of Appeal, who stated that Mr Vince was not to be Ms Wyatt’s ‘insurer against life’s eventualities’. However, shockingly, when the matter reached the Supreme Court, Lord Wilson ruled that Ms Wyatt should be entitled to bring a claim against her ex-husband and stated that the matter should be heard by a judge in the Family Division of the High Court.

When the case does come before the High Court, Ms Wyatt will likely base her claim on her significant childcare contributions over the years. Mr Vince will rely on the ridiculously long delay in the claim being brought, as well as the fact that although the couple were officially married for 11 years, they actually only enjoyed marital cohabitation for two years.

Although Ms Wyatt’s claim may not be successful, the fact that she has received permission to bring it before a Judge is still extremely unsettling for divorcees, who should not have to live in fear that their divorces, which they presumed to be ‘done and dusted’, may rear their ugly heads in the form of a claim in the future.

If nothing more, the Supreme Court’s ruling comes as a huge warning to anyone whose marriage ends in divorce, and that warning is quite straightforward: it is imperative to get a final order so that all monetary claims are dealt with together with the divorce. It is certainly understandable why many fall into the trap of thinking that a clean break is unnecessary; after all, when a couple have lived on an extremely low budget throughout their marriage, the cost of a court order is likely be viewed as an unnecessary expense. However, it is vital for couples to realise that things can and do change – one party may win the lottery, a loved one may leave a large and unexpected inheritance, or one party may start a business that reaches a level of success they couldn’t have imagined in their wildest dreams.

Today, separating spouses are privy to the ‘online quickie divorce’, a service that allows parties to get divorced for a fixed fee of as little as £100 plus VAT. Whilst such services may appear appealing and are often very useful for those looking to keep their divorce costs to a minimum, it is imperative for couples to understand that such a service often does not deal with matrimonial finances and instead only take the couple to the decree absolute stage of their divorce.

In order for both spouses to move on with their independent lives after divorce, it is crucial that they draft, approve and sign a final financial order before submitting it to court for approval. Whilst the cost of a lawyer drafting such an agreement may be a slight inconvenience, it will be miniscule compared to a claim that could be brought years later by an ex-spouse with a hefty sense of entitlement. Nobody wants to be looking over their shoulder after divorce and the best insurance against having to do this is to tie things up at the point of divorce instead of leaving loose ends

Artist divorce case highlights sexism of the UK courts – and it’s not the women who are suffering

A stay-at-home father who was supported by his millionaire wife is appealing a court decision that would see him receive a £300,000 lump sum, as well as a long term £50,000 annual maintenance payment.

His appeal is based on the fact that his lump sum payment is to be partially funded by the sale of the former matrimonial home, in which he still lives, as well as the fact that his maintenance payments were calculated on the basis that he goes back to full-time work and secures the salary that he had 11 years ago.

Rupert Nightingale had worked as a picture editor and photo director for Men’s Health magazine until 2003, when he gave up his full time profession to pursue a part-time career in fine art photography, whilst also acting as a househusband. He was married to his wife, Kirsten Turner, for seven years, having dated her for over a decade beforehand. Ms Turner had supported the family during the marriage, earning £420,000 per annum as a partner at PWC.

Mr Nightingale believes that he should be able to remain in the former matrimonial home, have his maintenance payments upped by 50% and continue being a househusband on at least a part-time basis. He believes that the court has been guilty of gender bias and does not think that the same order would have been made in relation to a housewife in his position.

As Lord Nicholls explained in White v White [2000] , fairness should be the ultimate consideration by a court dealing with financial distribution on divorce. However, the focus in this case should not be whether the law is fair to homemakers, but rather whether the MCA 1973 S25 factors have been applied in the same way that they would have been if Mr Nightingale had been a woman.

The strongest argument in Mr Nightingale’s favour is likely to be found through S25(2)(f) MCA 1973, under which the court must give consideration to the contributions each party has made to the welfare of the family. It has been highlighted many times that there must not be any bias in favour of the breadwinner and against the homemaker, and this has protected many women who have sacrificed their careers to be housewives and child-carers.

Surely then, Mr Nightingale, who acted in the same manner, should also receive such protection? After all, the decision for him to cease full time work will have been made jointly by him and his ex-wife, and it would no doubt have been his support as a househusband that enabled Ms Turner to progress so far in her career.

When considering financial resources under S25(2)(a), the Court is to take into account not just present resources, but also those that will become available in the foreseeable future. For this reason, a spouse’s earning capacity can be considered and this explains the court’s decision to make an order based on Mr Nightingale returning to full-time employment. However, the court does not seem to have applied this factor in the same way in which they would have applied it to a woman in Mr Nightingale’s position, as they appear to have overlooked the fact that he has dedicated the past decade to childcare, which may have damaged his earning capacity.

The financial needs of a party to be considered under S25(2)(b) can often be reviewed jointly with the standard of living enjoyed by the family before the breakdown of marriage – a consideration under S25(2)(c). Mr Nightingale would have become accustomed to a certain lifestyle when married to Ms Turner – one that he will not be able to maintain unless he returns to full-time employment. It can therefore be said that the court order does not meet his financial needs, despite the fact history has seen women successfully claim that they need three houses.

The court may, of course, argue that they have not been sexist and that they would have applied the law in the same way if the roles of the couple had been reversed. They could claim that the basis of the order rested on the relatively short length of the 7-year marriage, along with the fact that the couple’s child is now spending four nights with Ms Turner and just three with Mr Nightingale. The latter factor may also justify why the court did not deem it appropriate to keep Mr Nightingale living in the former matrimonial home.

“The difficulty for Mr Nightingale,” says Katie McCann, Head of Family for Kuits, “is that it is impossible to say with absolute certainty what the court would have done if the spousal role had been reversed. There may be those who believe that the law is incorrect and that those who are able to go back to work should have to, even if they have taken many years out to raise their children. However, this is not the question at hand.

“The imperative question is whether the law is being applied equally to both sexes, and the case of Mr Nightingale seems to suggest that it is not. The S25 factors should not be simply about protecting women who are vulnerable, but rather about protecting any spouse in the financially weaker position. This case suggests that fathers who make such a sacrifice are not necessarily guaranteed the same protection afforded to mothers who do the same.”

Lessons from Thiry: The important distinction between financial and litigation misconduct

Property tycoon Didier Thiry has been ordered to pay his ex-wife Alisa Thiry £17 million in a judgement issued by Sir Peter Singer. Due to Mr Thiry’s ill behaviour, which included him acting in a ‘financially predatory fashion’, as well as bombarding his ex-wife with communications throughout the proceedings, the judgement is riddled with references to Thiry’s misconduct. Indeed, Sir Singer described Mr Thiry as an ‘unprincipled rogue’ who had shown a ‘sadistic side to his personality’.

The strong descriptions used in the judgement have led to some people inaccurately suggesting that Mr Thiry’s misconduct during the legal proceedings, which also includes failure to disclose his finances, has had a direct impact on the size of the financial sum awarded by Sir Singer. This is, in fact, incorrect; and, in order to fully understand the outcome, a distinction must be made between this (Thiry’s litigation misconduct) and his financial misconduct throughout the time of their marriage.

When dealing with financial settlements upon divorce, the court may take into account certain factors. Financial conduct is one such factor that may be considered under S25(2)(g) MCA 1973 if it would be inequitable to disregard it. Mr Thiry’s financial misconduct included him preying on his ex-wife for his profit and to her detriment after she had trusted his advice on his reassurance that he was an ‘experienced investor and financial expert’. As explained by Burton J in S v S (non-matrimonial property: conduct)* , only conduct that causes a ‘gasp’ should be considered – as opposed to that which only produces a ‘gulp’. Sir Singer clearly felt that this behaviour had the ‘gasp factor’ and his award reflects this accordingly.

Litigation misconduct, on the other hand, only covers behaviour that takes place during the proceedings. In the case of Mr Thiry, this included his financial non-disclosure and offensive statements made to his ex-wife and her lawyers. It is highly relevant that this behaviour took place once the Thirys’ marriage had broken down. As suggested by Thorpe LJ in Tavoulareas v Tavoulareas** , a clear distinction between marital conduct and litigation conduct is imperative, due to the fact that S25(2)(g) should only catch marital misconduct.

Sir Singer honoured the above distinction in his judgement by not attaching a punitive element to Thiry’s litigation behaviour when dealing with the capital award. Although Mr Thiry’s conduct during litigation was unacceptable, his punishment for such behaviour did not come in the form of a generous financial award to Mrs Thiry. His financial conduct throughout the marriage, on the other hand, will have been considered as Sir Singer attempted to restore Mrs Thiry back to the position she had been in when they married.

Mr Thiry’s litigation behaviour, however, is penalised by way of a costs order to his detriment, as Sir Singer instructed him to pay Mrs Thiry’s entire £456,000 legal bill. This indicative move serves as a warning that, while a party’s bad behaviour during proceedings cannot affect the terms of an order, one should not assume that it will go unpunished. Although a costs penalty for litigation misconduct is discretionary, the fact that a judge is willing to order a disruptive party to pay the other side’s half a million pound legal bill in its entirety should serve as a significant deterrent against acting in such a manner.