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.

Hohn divorce settlement secures the UK’s position as the divorce capital of the world

It has been an exciting few weeks in the world of divorce settlements. Less than a month after American Billionaire Harold Hamm was ordered to pay his ex-wife almost $1 billion, the UK’s largest divorce pay-out has hit the headlines as Mrs Justice Roberts ruled that Ms Cooper-Hohn is entitled to £337 million following her divorce from philanthropist Sir Chris Hohn.

Although the size of the couple’s wealth was a source of contention throughout the trial, it has been reported that they had assets worth more than £700 million, which means that Ms Cooper-Hohn has been awarded about 40% of the wealth. This near to equal split is miles apart from the Hamm settlement, which although saw Mrs Hamm receive a much greater sum, actually only represented one tenth of the Hamm’s fortune. The large discrepancy between the percentages awarded to the ex-wives highlights the generous awards that are often made by UK judges, which – some would argue – secures the UK’s position as the divorce capital of the world

Attempting to depart from an equal split, Sir Chris Hohn argued that he had made a special contribution that justified him retaining three-quarters of the wealth. Counsel for Sir Hohn, Lewis Marks QC explained, “The husband was the sole decision-maker in this enterprise. Without him there is no business.” Ms Cooper-Hohn strongly disputed this claim. She stated that she had worked long hours on behalf of their charitable foundation, The Children’s Investment Fund Foundation. She also claimed that she had been the one to turn her ex-husband’s attention to charitable giving, stating that when they met he had only been interested in making money.

Although the full judgement has not yet been published, what we currently have appears to reiterate the principle that one spouse’s contribution should generally not be viewed as being superior to the others. Although Sir Hohn argued that he had made a stellar contribution by claiming that he was the “unbelievable money maker”, it appears that this was rejected and, instead, the court reemphasised the Lambert principle.  As Thorpe LJ had pointed out in this 2002 case, “Special contribution remains a legitimate possibility, but only in exceptional circumstances… The stellar contributor is a very rare creature, the likes of which would seldom be seen.”

Sir Hohn does not appear to have qualified as a ‘stellar contributor’. For this reason, the Hohn case highlights how difficult it is to displace the principle that both parties’ contributions should be viewed as equal in the majority of situations. Realistically, it will likely have been the support of his wife that allowed Sir Hohn to have progressed so far in his career. Be it the emotional aid or practical assistance, such as caring for their four children and her position as chief executive officer of the ex-couple’s charity, Ms Cooper-Hohn’s actions will have aided Sir Hohn in achieving such a high level of success.

Despite the sizable figure that has been awarded to Ms Cooper-Hohn, it has been reported that she intends to appeal the decision, presumably on the ground that there should have been an exact 50/50 split. Without the full judgement it is impossible to understand Mrs Justice Robert’s logic when dealing with this case and we will therefore await with bated breath its release on 12 December.

Family Dispute Resolution Week: A Look at Mediation

Mediation will make the divorce process quicker, fairer and more empowering for both parties, says a family law expert at Manchester-based Kuits Solicitors today to mark the beginning of Family Dispute Resolution Week.

The comments come from Kuits’ Head of Family Law, Katie McCann, in response to further advancements made by the government to encourage divorcing couples to stay out of court in favour of mediation services.

“Last April saw the introduction of compulsory Mediation Information and Assessment Meetings (MIAM) for divorcing couples,” says McCann. “The purpose of these meetings is to provide the couple with information in relation to mediation and other forms of non-court-based dispute resolution. In a further attempt to encourage divorcing couples to use mediation as an alternative to the courts, a free mediation session will now be available, as long as one of them qualifies for legal aid.”

Previously, only the party eligible for legal aid was entitled to receive a complimentary session, whilst the other party had to pay for it. The Chief Executive of National Family Mediation, Jane Robey, says that the new scheme seeks to aid people’s understanding of what mediation can achieve, presumably by allowing them to experience the benefits of it first-hand.

MIAMs, along with the free initial mediation sessions, have the potential to enable ex-couples to reach agreements regarding finances and children outside of court. Commenting on the benefits of mediation the Justice Minister, Simon Hughes states: “Mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court.”

As well as being less stressful than court, an additional benefit of mediation is a financial one. David Norgrove, chairman of the Family Justice Review, estimates that, if used, mediation has the potential to reduce legal aid costs by £100million – and it is not only the government who would reap the financial rewards. Ex-couples would also benefit significantly due to the fact that only one mediator is required, as opposed to two lawyers, and the hourly rate of a mediator is commonly less than that of a lawyer. However, families should be aware that, should mediation be unsuccessful and lawyers instructed at a later date, costs are likely to end up higher than they would have been if lawyers had been instructed at the outset.

“There certainly exists the potential for mediation to be a success due the fact that it allows for effective communication between the parties, who are able to speak directly, as opposed to having to pass their opinions and negotiations through their lawyers,” says McCann. “Not only can this save a lot of time, but it also ensures that words are not minced or misinterpreted. Without the court getting involved, an ex-couple can potentially reach a subjective, tailored arrangement that works best for them, without feeling that they are being ordered to do so. Significantly, it is often the non-forced nature of the arrangement reached that attracts separating couples to mediation.”

McCann also thinks that the fact that an ex-couple have managed to sit down and reach an agreement using mediation will mean that they have effectively communicated and compromised with each other. The skills acquired will hopefully allow them to renegotiate their arrangements should they require adaptation in the future, especially in relation to arrangements for the children.

“Due to the benefits attached to mediation, it is understandable why the government are encouraging more couples to attempt it,” says McCann. “Although couples cannot be forced to mediate, the existence of compulsory MIAMs suggests that there is some sort of pressure being placed on separating parties to consider it. However, the government should consider whether this pressure could potentially threaten the success of mediation, due to the fact that it removes the voluntary element – if an ex-couple attend mediation against their wishes, there may be less chance of them co-operating in order to reach a suitable agreement.”

McCann goes on to note that, even when attendance at mediation is voluntary, there are still risks attached to the process, particularly for cases involving intricate financial complexities: “Mediation does not attract the same disclosure mechanisms as the court does and therefore a party may find it easier to conceal financial information during the mediation process,” explains McCann. “This, together with the fact that the mediator remains neutral throughout the process, offering no legal advice, can result in an unfair agreement being reached. As long as both parties are aware of these potential limitations, for many, mediation will provide a welcome alternative to court proceedings.”

Ultimately, McCann applauds the government’s support of mediation: “Anything that empowers couples going through the upset of divorce is a great thing. A settlement reached on their own terms is always better than an artificial result imposed by a stranger: the judge. At Kuits, we are great supporters of empowering clients to reach fair and equitable resolutions in the quickest and most effective way.”

“Of course, while divorce cases can often be extremely acrimonious (and therefore the government cannot expect every separating couple to mediate), for the majority of separating couples, mediation provides a real opportunity for them to settle their disputes outside of the court room – and the service is set to get even stronger in the future.”

Indeed, from January 2015, the Family Mediation Council (FMC) will introduce a new accreditation scheme and new professional standards that all mediators will have to work towards. In addition to this, all mediators and those training to be mediators will have to register with the FMC. It is hoped that the stricter criteria will result in a greater confidence being placed in the mediation system, which in turn will result in a rise in its popularity. Although the government is unlikely to ever make mediation itself compulsory, if its effectiveness is well documented then couples will be eager to use it without pressure.

Billionaire Hamm’s is one of the biggest divorce settlements in history, but is it big enough?

American entrepreneur Harold Hamm, best known for his position as CEO of Continental Resources, has been ordered to pay his ex-wife, Sue Ann Hamm, $995.5 million in what has been referred to as one of the biggest divorce settlements in history. Although an enormous figure to most, it is only a fraction of Mr Hamm’s $14 billion empire and Sue Ann plans to appeal the decision on the grounds that it is inequitable. For this reason, the ruling invites an intriguing question – is the Oklahoma County Court’s decision reasonable compared to the conclusion that a court in England and Wales would have reached?

Oklahoma is an equitable distribution state when it comes to the division of property on divorce. This means that any settlement must be just and reasonable. In order to achieve this, a judge must take into consideration the contributions of each party during the marriage, as well as deciding what each ex-spouse needs in order to move forward following the separation. Also to be considered is the standard of living enjoyed by the ex-couple whilst they were married and any factors that are clearly relevant – such as a spouse’s ability to pay. As the 24th richest man in the United States, it is fair to assume that Mr Hamm wouldn’t exactly struggle to make payments to his ex-wife. One would also be forgiven for suspecting that the ex-couple enjoyed a rather comfortable standard of living.

Whilst equity is central to property division in Oklahoma, its synonym fairness is the main consideration of judges making financial orders following marriage breakdowns in the UK. But what exactly is fair? And would Lord Nicholl’s famous ‘yardstick of equality’, together with the S25 factors of the Matrimonial Causes Act 1973, place Sue Ann Hamm in a better position? Let’s consider the facts. Harold 68 and Sue Ann 57 were married from 1988 until Sue Ann filed for divorce in 2012. Although Harold made mention of the fact that the couple had been separated since 2005, in England and Wales a marriage of 17 years could be considered long for the purposes of financial distribution. The affair that Sue Ann alleged Harold to have had would be irrelevant in an English court, as only conduct with the ‘gasp factor’ would be taken into account. The ex-couple have two children together: Jane, 23, and Hillary, 20. Although a UK court would investigate their financial needs together with their earning capacities, the reality is that this would not be a huge consideration due to the fact that they are both over the age of minority.

In Oklahoma, a significant factor for consideration was how Mr Hamm acquired his fortune. Just your ‘regular’ multi-millionaire when he married Sue Ann, Harry went onto purchase one million acres of land leases, which saw Continental Resources become a major oil producer and in turn propelled him into billionaire’s territory. Oklahoma law states that money earned during a marriage can form part of a divorce settlement if made through skill, as opposed to ‘luck’, or a change in the economy in which case it cannot. Mr Hamm’s argument that he had ‘stumbled across’ his additional wealth fell short when Judge Haralson stated that Harold’s skill, effort and leadership had been the driving force behind the success of Continental Resources.

Although Mr Hamm’s argument was unsuccessful, looking at how wealth has been generated in this way would be completely alien in the UK. Whether by luck or skill, this amount of wealth would fall into the pot for consideration.

A consideration of the UK court would be the needs, obligations and responsibilities of both Harold and Sue Ann. Due to the extreme wealth of the couple, this factor is likely to be reviewed in conjunction with the standard of living enjoyed by the parties before the breakdown of the marriage. This is because the ‘needs’ of a party are extremely subjective and will therefore be very different depending on the lifestyle a party has become accustomed to. A UK court would be looking to ensure that Sue Ann would be able to continue living comfortably; however, the difficulty arises when trying to decide how much money she will need to do this. Realistically, the almost $1 billion that she is set to receive in Oklahoma would allow her to have a life of luxury beyond anyone’s wildest dreams.

Also relevant is the fact that Sue Ann Hamm was not a lady of leisure throughout her marriage. She was a lawyer in Harold’s company when the couple married, playing a significant role negotiating the company’s land deals. Her work could be found to be a significant contribution to the family, alongside Harold’s contributions. Also, if she stopped working to take care of the children (which is currently unreported), she could have an argument to be compensated for the loss of her career.

Taking all of the above factors into account, it appears that there could be a strong argument in the UK in favour of Sue Ann receiving an equal distribution. After all, she had a long marriage and contributed to the family’s welfare. In addition, Harold certainly has enough money to fund an equal split. However, the ruling of Cowan v Cowan[1] throws a significant curve ball into the equation. In this case, the Court of Appeal held that a stellar contribution by one spouse is enough to justify a departure from the yardstick of equality. Charman v Charman[2] seems to confirm that Harold’s $14 billion business could be viewed as stellar, hence creating a shift in his favour.

So what would all this mean for Sue Ann here in England? All the factors certainly point to potentially more than the 1/14th share she has been awarded. Some might say it’s no wonder she is trying her luck on appeal!

[1] [2001] 2 FCR 332 [2] [2007] EWCA Civ 503

New Presumption of Parental Involvement: Is the law too concerned with appeasing the parent?

The welfare of the child has always been the fundamental consideration for courts dealing with child arrangements following a couple’s separation. The welfare checklist set out in S8 of the Children Act 1989 provides statutory guidance that requires certain factors to be considered. Amongst other things, the wishes and feelings of the child and the child’s needs are considered, so that the most appropriate arrangement is reached. Due to the subjective requirements of each child, extreme care must be taken to ensure that the specific needs of the child are met.

Consideration must be given to where the child should live and how often they should see or speak to each parent. Until recently, these matters were addressed through residence and contact orders respectively; however, these were replaced with the all-encompassing child arrangement orders in April 2014. The purpose of the amendment was to shift the focus away from the name of the order and towards the content. Too often, parents were being side-tracked and, instead of focusing on their child’s best interests, they were becoming fixated on becoming the parent with residence. By removing the concept of a ‘winner’ and a ‘loser’, it was hoped that the focus would return to the child.

A further change to the law came into force on 22 October 2014, whereby S1 Children Act 1989 was amended to include the presumption that it is in the best interests of the child for both parents to be involved in the child’s life, unless evidence to the contrary is shown. Explaining the legislative changes, Mr Justice Hughes stated that, “No parent should be excluded from their child’s life for no good reason.”

But when has the law ever allowed this to happen? Surely it goes without saying that as long as it is safe to do so, then parental involvement will be encouraged? Judges have been dealing with parental disputes for many years and reported cases show that even when a parent’s conduct has been questionable some sort of contact has been maintained, as long as there is no risk to the child.

“As a result, one could be forgiven for thinking that the amendment brings nothing new to the table,” says Katie McCann, Head of Family Law for Kuits. “However, what it does do is shift both parent’s involvement from being a consideration to a presumption that is not to be strayed from without good reason.” As Mr Justice Hughes goes on to explain, “This is not about giving parents new ‘rights’ but making clear… that the family court will presume that each parent will play a role in the future life of their children.”

It is important to clarify that the changes to the Children Act do not create a presumption of equal parenting. Although this idea was considered initially when the above provisions were drafted, it did not come into fruition, and rightly so. A presumption of a 50:50 split in relation to parenting would not compliment the welfare principle and would be a potentially dangerous move in some cases. The risks attached to such a presumption are highlighted by Australian family law and the devastating case of 4-year-old Darcy Freeman, who died at the hands of her father in 2009. He had been given access to his children under the Australian shared parenting law, despite concerns from his ex-wife as to the safety of this. This tragic case emphasises that a presumption of shared parenting can easily jeopardise the safety of a child, without relevant checks and balances being in place.

“The UK law appears to tread with caution by expressing that the presumed involvement may be direct or indirect,” says McCann. “Although the importance of child-parent contact is acknowledged, the law is not prepared to endanger the child and therefore indirect contact may be appropriate where there is the potential of harm through direct contact. Although this approach appears to be balanced and sensible, the motives behind the recent amendments can be questioned. There is room to argue that the introduction of child arrangement orders and the insertion of the presumption of parental involvement are both for the benefit of the parent, as opposed to the child.

“As stated above, the involvement presumption has always existed and recording it in statute simply reassures parents that, unless there is a good reason to the contrary, they will remain involved in their child’s life. The introduction of child arrangement orders does nothing more than rebrand contact and residence orders by placing them in a slightly more modern and less stigmatising packaging. Massaging the ego of the parent that does not gain the label of a ‘residence order’ appears to be the main objective. By focusing on accommodating the parents’ feelings, it can be argued that the child’s welfare becomes less of a priority and this is unacceptable.”

The government do not accept that the focus has been shifted away from the child and explain that, on the contrary, the purpose of the changes is to ensure such focus remains intact. They claim that the aim of the legislative amendments is to promote a greater understanding of how the courts reach their decisions in cases relating to parental disputes. The hope is that, in doing so, parents will be persuaded to take a less rigid approach, secure in the knowledge that their involvement is desired.

“It is still early days and one cannot be sure of the effects, if any, of the legislative changes,” concludes McCann. “However, if the government’s outcomes are achieved, it is hoped that parents will stop trying to win the ‘custodial war.’ In turn, this will ensure that focus is placed on accommodating the child’s best interests and this, of course, is the ultimate goal.”

The Marriage (Same Sex Couples) Bill: legal update

Background

Civil partnerships were introduced in the UK in 2005, but legislation such as the Matrimonial Causes Act 1973 has historically prevented the marriage of same sex couples.  In a bid to step closer to equality, the Coalition Government introduced the Marriage (Same Sex Couples) Bill (“the Bill”) which will legalise the civil and religious marriage of same sex couples.  If the Bill receives Royal Assent it will undoubtedly mark an important milestone in the battle for equality.  A number of YouGov surveys published between 2012 and 2013 reveal that although the precise figures vary, the majority of participants have confirmed their support of the legalisation of same sex marriage.

On overview of the area

While the majority of the British public appear to be in favour of same sex marriage, presumably many of us anticipated that making it legal would simply require the Government to extend the current legislation to include the gay community.  However, some unanticipated difficulties have arisen during the drafting of the required new legislation.

One of the main causes of confusion that has arisen is that under the present drafting adultery will only be a ground for divorce if the adultery has taken place between the cheating spouse and a member of the opposite sex.  In other words, if two men are married and one of them is unfaithful with another man, his husband will not be able to petition him for divorce on grounds his adultery.  Instead, he will have to rely on grounds of unreasonable behaviour.  If, however, his husband were to be unfaithful with a woman, the aggrieved husband could petition for divorce on grounds of adultery.

There has been concern that some couples will choose to wed to benefit from tax and other reasons disassociated from traditional factors such as love and children.  Others argue that those who take this view are simply opponents of same sex marriage seeking to opportunistically discredit the viability of the Bill.

The Marriage (Same Sex Couples) Bill was not featured in the Queen’s Speech this year, but it continues to progress speedily through the House of Commons and is expected to reach the House of Lords in June.  The Bill may be subject to amendment on its way to Royal Assent and once it becomes law certain aspects may be made subject to judicial interpretation (for example, notions of consummation and adultery seem particularly vulnerable to litigation given the unanticipated difficulties).  Despite the technical difficulties faced by the legislators so far, the majority of the British public supports the right of same sex couples to marry and we are well on the way to making it legal, despite some bumps in the road.

For more information on same sex marriage of any area of family and matrimonial law contact Lisa Kemp